Essays

The Constitution of India is one of the most rights-based constitutions in the world. Drafted around the same time as the Universal Declaration of Human Rights (1948), the Indian Constitution captures the essence of human rights in its Preamble, and the sections on Fundamental Rights and the Directive Principles of State Policy.

The Constitution of India is based on the principles that guided India's struggle against a colonial regime that consistently violated the civil, political, social, economic and cultural rights of the people of India. The freedom struggle itself was informed by the many movements for social reform, against oppressive social practices like sati (the practice of the wife following her dead husband onto the funeral pyre), child marriage, untouchability etc. Thus, by the mid-1920s, the Indian National Congress had already adopted most of the civil and political rights in its agenda. The movement led by Dr B R Ambedkar (one of the founding fathers of the Constitution) against discrimination against the Dalits (the erstwhile outcasts or so-called untouchables who formed the lowest strata of the caste hierarchy and who currently number more than 170 million or 16.5% of the total population of India) also had an impact on the Indian Constitution.

Inspite of the fact that most of the human rights found clear expression in the Constitution of India, the independent Indian State carried forward many colonial tendencies and power structures, including those embedded in the elite Indian Civil Service. Though the Indian State under Jawaharlal Nehru took many proactive steps and followed a welfare state model, the police and bureaucracy remained largely colonial in their approach and sought to exert control and power over citizens. The casteism, feudal and communal characteristics of the Indian polity, coupled with a colonial bureaucracy, weighed against and dampened the spirit of freedom, rights and affirmative action enshrined in the Constitution.

In the first 15 years of the Indian republic, such inherent contradictions within the Indian polity were glossed over by the euphoria of 'nation-building', an agenda generally endorsed by political parties, the middle class and elite civil society. However, when the contradictions within the Indian polity and State came into the open in the late-'60s, the

oppressive character of the State began to be challenged by student movements and ultra-left formations like the Naxalite movement. When the Indian State began to suppress such expressions of political dissent and mini- rebellions, the violation of human rights by the State began to command attention.

Over a period of 30 years, the articulation and assertion of human rights within civil society has grown into a much richer, more diverse and relatively more powerful discourse at multiple levels. A brief historical sketch of the different trajectories of human rights discourse will help us locate human rights in the historical context. There are four specific trajectories of human rights discourse in the Indian context — Civil and Political Rights, Rights of the Marginalized (such as women, Dalits and adivasis), Economic, Social and Cultural Rights, and the Right to Transparent and Accountable Governance. Though each of these trajectories is interconnected, they were promoted by different sets of actors (often with varying ideological affiliations) at different points in time. There has always been tension and lack of mutual appreciation between those who promoted civil liberties and the left- oriented groups who worked towards the structural transformation of socio-economic conditions and consequently of the State. As the concept of human rights was perceived as a western idea to gloss over inequalities and as a means of legitimizing the capitalist and imperialist projects of the west (particularly the US) the left-oriented groups were clearly sceptical about human rights, particularly as expressed by the civil liberties groups. Though in some quarters such scepticism still exits, there has been a greater recognition of the need to promote and protect human rights, inspite of the misuse of the human rights discourse by the new imperialist forces.