UNDERSTANDING POSITIVE DUTIES OF THE INDIAN STATE

The success of a society is to be evaluated primarily by the freedoms that members of the society enjoy” – Amartya Sen

Scholars like Amartya Sen have argued that the ideal way to measure a society’s development is through the freedom that the citizens of the society enjoy. This freedom is based upon a system of rights bestowed upon the individual citizen to realise their agency as active participants in the discourses of material and political wellbeing. These rights aim to bring everyone at a level playing field, protect them against intrusive state action aimed at curtailing freedom and taking away of free choice and also ask for justice in the case of violation of these rights by the state itself or a third party. The system of rights is often understood as a combination of civil and political rights (justiciable rights) and socio-economic rights (often non-justiciable), as has been put forth by Sandra Fredman, a leading scholar of human rights of our times. Thus, it is imperative to understand these rights as they shape state-society interactions and guide state policies.

Rights, both justiciable and non-justiciable, have entailed two kinds of duties upon the state – positive and negative. The nature of the negative duties are that of refraining, on the part of the state, from interfering into the lives of individuals. Positive duties entail actions by the State to improve the life of individuals through policies and programmes that provide resources to the needy and are associated with socio-economic rights. 

Human necessities can vary from achieving material comfort to basic needs like food, shelter and education that give dignity to an individual.  But these rights are also enjoyed on the condition that the state or any other third party does not infringe on one’s freedom. In other words, to enjoy socio-economic rights, it is important to have an environment that ensures freedom and security through civil and political rights. This puts certain binding responsibilities on the modern state that direct them to act both positively and negatively to provide for its citizens. The responsibilities originate in the various civil and political and socio-economic rights of the citizens that are constitutionally guaranteed. These rights entail different forms of actions on the state. Sandra Fredman, in her piece, distinguishes between these forms of actions. These rights obligate the state to perform three kinds of action – the duties to respect, protect and fulfill. The duty to respect requires the State to refrain from interfering directly or indirectly with the enjoyment of the right. The requirement to protect demands that the State prevent third parties from interfering in the enjoyment of the right. The obligation to fulfill requires the State either to provide the right directly or to facilitate the provision by assisting individuals and communities to make their own provision (Fredman 2008). 

Such a distinction clears the path to view the welfare state in a new light. In the context of India, fundamental rights and institutions like the judiciary have ensured an environment of freedom and social security for the have-nots of the society to access government programmes that aim at socio-economic welfare. Along with this, the rise of coalitional politics in the post-liberalisation era, had widened the ambit of public accountability and issues related to the well-being of the marginalised have found voice in mainstream political discussions. This has largely contributed to the upward social mobility of large sections of the society, though numerous gaps remain. But, the distinctive feature of the Indian welfare state is the fact that most of the functions of the state on the socio-economic front is provided for as duties of the state and not rights. The Directive Principles of State Policies lists out positive actions that the state may take for the development of its citizens. It constitutes a cluster of principles on the basis of economic, social and political perspectives that aims at realising the ideals of justice, liberty, equality and fraternity as outlined in the Preamble to the Constitution. 

The State must adhere to these principles while formulating its welfare programmes. While these principles guide state action and establish the duties of the state, being principles and not rules render them to be non-compulsory actions. They only act as a guiding framework upon which the State can formulate its policies. Principles are norms that are to be realized to the maximum effect. They do not put any obligation on the state to act in a way that can be determined (Alexy in Fredman, 2008). This has allowed for positive action without justiciability. In the recent past, we have seen the Indian state create a rights-based approach to socio-economic welfare, making the state undertake a set of both positive and negative duties. This was further fortified by the judiciary bringing more positive duties within the ambit of the human right of right to life. In more recent years, the Indian state has veered away from this approach towards a more positive duties-based approach of provision of private goods aimed at improving socio-economic conditions. And while these measures are expansive, they also allow for the state to avoid accountability due to their non-justiciable nature. 

The nature of DPSPs also directs us to explore another side of it. Sandra Fredman argues that “human rights are based on a far richer view of freedom, which goes beyond absence of coercion and instead pays attention to the extent to which individuals are actually able to use their freedom”. She further elaborates, “Instead of seeking simply to prevent interference in free choice, the role of human rights includes facilitating the exercise of the freedom guaranteed. This necessarily creates a duty to remove constraints on choice and facilitate development of individual agency.” This means that while socio-economic wellbeing is a matter of state action, ensuring socio-economic wellbeing as a human right is unrealised as both are delinked from one another. In recent electoral campaigns, ruling dispensations have coloured welfare programmes as benefits being transferred by a benevolent state rather than a duty that the state is bound to fulfil. This has put the have-nots as receivers of state benevolence rather than agents of individual freedom realising dignity as a right. 

Thus, the story of India in the context of Freedman’s framework tells us that even though civil and political rights of the citizens can be ensured through strong institutions, it does not always translate into citizens enjoying their freedom to full potential. The principle-based approach of the positive duties of the Indian state has benefited its large population of poor and marginalized, it has also shifted focus from creating agency for the disadvantaged to limiting the discussion to the quality of public service delivery.

Sayak Sinha
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Sayak Sinha has studied Public Policy and Governance from Azim Premji University, Bangalore. His areas of interest include governance, policy analysis and welfare rights and regimes.