Strengthening the concept of legal empowerment in India will serve to alleviate poverty
It is now globally agreed that the root cause of all forms of exploitation is poverty and exclusion. The rights of the poor and the excluded sections are generally denied and they fall easy victims for crime and oppression. The human rights approach through legal empowerment of the poor as a means to fight poverty and exclusion is the theme of global consciousness today. However, legal empowerment is not to be confused with the economic development of the poor, especially through state-sponsored poverty alleviation programs. It is something fundamental to the concept of human rights which is different from charity or philanthropy.
The report of the UN Secretary-General in the 64th session of the General Assembly on poverty eradication, July 2009, interprets legal empowerment as a process of systemic change through which the poor are protected and enabled to use the law to advance their rights and their interests as citizens and economic actors. It is a means to an end but also an end in itself.' One couldn't agree more. This is primarily because, in most third world countries laws, policies and institutions do not ensure an equitable opportunity to the poor, minorities, women and other disadvantaged sections. Informal institutions, practices, and norms continue to negate the purpose of laws and the poor are forced to live in perpetual misery. It cannot be truer in countries where social inequalities deny human rights to a vast number of people. Economic empowerment of the poor cannot be left to market forces as traditionally dominant classes, who's social power controls the economy, would thwart such initiative. The UN General Assembly, therefore, resolved that ensuring equal and equitable access to life chances to the excluded classes through institutional frameworks under the protection of the state is important.
Livelihoods, shelter, tenure of jobs have to be made secure so that poor are empowered to fight for their rights; legal empowerment that way is not only preventive but curative as well for it provides tangible social and economic opportunities. A quick but crude example is, Central Act MGNREGA which guarantees the right to work with fixed tenure and wage. The twin aspects of legal empowerment are the 'freedom from want' and the 'freedom from fear' which are completely different from the characteristics of an entitlement regime. Legal empowerment also means preventing abuse of authority, and discrimination against the excluded and vulnerable people by reinforcing rule of law.
The essential conditions in uplifting the poor are identity, information, voice and organisation which only can translate the rights of the poor into reality. It won't be out of place to refer to Amartya Sen's five complimentary freedoms, ('Development as Freedom') in this regard namely, political freedom, economic facilities, social opportunities, transparency and security. Though he doesn't explicitly recommend legal empowerment as a means to realise them but all the same the prescription cannot be very different. Opportunities for growth and progress, therefore, have to be recognised as 'Rights', and the state must also make sure that such rights do not merely remain on paper but are translated to reality. The other side of legally empowering is protection from illegal disenfranchisement too. But unfortunately, political parties hastily believe that distribution of freebies is social and economic empowerment of people and interestingly the belief has perfect timing with elections. Subsidised grains, free gas, free energy, free school uniforms, free books, cycles etc fall in the category of charity rather than economic empowerment, let alone legal empowerment; on the contrary, it makes entitlement a right, killing the individual initiative.
The approach to legally empowering people needs to be two-pronged; firstly, the existing laws that empower people in terms of livelihoods, and basic human rights have to be effectively enforced and secondly, new areas of empowerment have to be focussed to make sure that the gaps in inclusive development are addressed.
Many developing countries including us, are lagging in the mission. It's no denying that laws were made on property rights, labour rights and rights to self-employment which empowers people but sadly they fail in achieving the intended purpose either due to inherent lacunae or ineffective enforcement. For instance, land ownership rights facilitate access to credit and receive benefits from schemes; but nothing substantial happened on the ground about huge numbers of landless agricultural labourers. Lakhs of land dispute cases of farmers remain undecided in revenue courts for years causing title related issues. Similarly, violation of labour rights is commonplace, especially in the unorganised sectors, but penalties are insignificant in almost all the labour laws. 'Hire and fire' is the open norm even in the organised sector and surprisingly even trade unions tend to look the other way. Self -employment or small businesses are extremely difficult for the poor since more than half of them are at the mercy of money lenders who charge far higher rates of interests than what commercial banks do. Similarly, lack of an adequate number of low-cost justice delivery models and efficient law enforcement machinery disempowers the poor in realising their right to justice.
PESA (Panchayats Extension to Scheduled Areas) Act, 1996) was meant to empower tribal populations with a system of self-governance in matters of customary resources, minor forest produce, minor minerals, minor water bodies, the sanction of projects, and control over local institutions. But much is left to be desired on the ground as abject poverty and exploitation in tribal pockets speak volumes for their disenfranchisement. Though governors of states are authorised under Fifth Schedule of the Constitution to exempt 'notified'(tribal) areas from enforcement of any state or central law in the interest of the tribal population, such powers are hardly used. TSP (tribal sub-plan) allocations are never exclusively utilised for programmes and projects meant for tribal areas any more than funds under special component plan meant for scheduled caste populations. Despite much importance given in various meetings and deliberations Gender Budgeting, aimed at empowering women hasn't seen the light of the day yet just as the bill on reservation for women.
Concept of legal empowerment immediately takes us to constitutional safeguards like special provisions, the advancement of backward classes, SCs and STs through affirmative action under Article 15 and 16. Though these are undoubtedly perfect examples, legal empowerment doesn't necessarily mean legislative initiatives. A lot can be achieved through executive decisions as well locally, by various state departments, municipalities, and district collectors. Even the private sector and NGOs can be pulled in. Identification of areas of disenfranchisement and creating opportunities of livelihoods through an institutional framework in the livelihoods the poor usually depend on can be a good beginning. Here are some success stories. Bottom-up organising of waste pickers in Pune known as KKPKP (Kagad Kach Patra Kashtakari Panchayat) a trade union of workers dealing with waste paper, glass, and metal scraps helped them providing a respectable economic enterprise for the poor with identity and bargaining power. Nidan Swachdhara Private Ltd (NSPL) in Patna successfully undertook the job of improving work conditions of cleaning people Safai Mitras by transforming them into professional service providers with financial inclusion. Around six lakh rickshaw pullers in Delhi were subjected to exploitation by middlemen and chased by DMC staff for want of licence. When the high court in 2010, at the initiative of an NGO, issued a ruling that rickshaw pulling was recognised as any other work for a livelihood the DMC made amends to its earlier policies and recognised rickshaw pullers rights. These are illustrative, and many more can be explored.
The writer is a former Additional Chief Secretary of Chhattisgarh. Views expressed are personal