I am privileged to be given this opportunity to present the Second H.R. Khanna Memorial Lecture.
I remember the days of Emergency when we, the public, were very unaware of what was happening as there was total censorship of newspapers.
During the height of emergency, the people of the country were wholly unaware of what was happening in regard to the challenges which would have an impact upon the future of the country. During these times, I myself had appeared in various political detention matters in the Karnataka High Court and in matters such as the dismissal of the Karunanidhi Government on 31st January, 1976 just before the General Elections were to be held in Tamil Nadu State, really with intention of eliminating the political rival in the State. If any attempt was made by newspaper to publish any of the news relating to challenges to the Central Government, the censure would straightway cut it out and there would be a white blank triangle, square or rectangle where the news would appear. Where the newspaper enclosed a blank square in a black border depicting important news, the censure would have even the black border removed.
It was in this atmosphere of fear that one person stood out in defence of the Constitution and for the liberty of the individual. It was Justice H.R. Khanna who was prepared to declare in his dissent that notwithstanding the suspension of the Right to Life enshrined in Article 21 of the Constitution or the Right to Equality in Article 14 of the Constitution or the various freedoms contained in Article 19 of the Constitution, nevertheless no person could be detained without authority of law or contrary to law.
When this judgment was delivered, Justice H.R. Khanna had no doubt, whatsoever, that though he was the senior-most Judge, he would stand superseded, but, nevertheless he went ahead and delivered his dissent. As expected, he was superseded, and he straightway submitted his resignation as a Judge of the Supreme Court.
I was in Madras at the time when my friends at the Bar in Delhi informed me about this great Judge who had upheld, during the time of Emergency, the human values which permeate the Justice delivery system. The New York Times, in its issue of 30th April 1976 declared:
If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H.R. Khanna of the Supreme Court.
No statue was put up in the Supreme Court, but in Court No.2, a life size portrait of his was put up so that even now, the new generation of advocates would notice it and ask who it is. They would then be told the entire history of his battle to uphold the basic human rights enshrined in the Constitution even though the fundamental rights to life and to equality had been suspended during the Emergency.
Almost a quarter of a century later, it is but fitting that we remember Justice Khanna’s legacy through this commemorative lecture of the Indian Institute of Public Administration on “The Rule of Law and Human Rights in India”. Both “Rule of Law” and “Human Rights” are familiar phrases, which all of us have often heard, but when we delve into the subject, we find that different thinkers and jurists have understood them in a variety of different ways. Justice H.R. Khanna himself, in his autobiography titled “Neither Roses nor Thorns” - a clear reference to another great Judge, late Justice M.C. Chagla, the title of whose autobiography was “Roses in December” - mentioned that:
If there are three prime requisites for the rule of law, they are a strong Bar, an independent judiciary and an enlightened public opinion. There can, indeed be no greater indication of decay in the rule of law than a docile Bar, a subservient judiciary and a society with a choked or coarsened conscience.
The Indian Parliament has also defined Human Rights, in The Protection of Human Rights Act 1993, to mean:
The rights relating to life and liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India.
The International covenants which would be relevant for the purpose would be the Universal Declaration of Human Rights which, as proclaimed by the United Nations in 1948, in Article 1, itself sums up the basic doctrine on which Human Rights are founded, namely: all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
The Declaration includes various civil and political rights, which we find enshrined in Part-III of our Constitution which was adopted the year after the Universal Declaration (the Constitution of India was adopted by the Constituent Assembly on 26th November 1949). However, in addition to these basic civil and political rights, it has also incorporated in Part-IV of the Constitution what are generally viewed as ‘socio-economic rights’. For instance, it is expressly stated in Article 23 of the Declaration that “everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment; everyone, without any discrimination, has the right to equal pay for equal work; everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” Again, Article 25 of the Declaration states that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age.” Under Article 26, “Everyone has the right to education which shall be free, at least in the elementary and fundamental stages”. And finally, Article 8 of the Declaration speaks of “Access to justice for enforcement of these fundamental rights”.
Many of these socio-economic rights found in the Universal Declaration like, the right to work, to education, to live, to nutrition, standard of living and all adequate means of livelihood are all found in our Constitution in the Directive Principles of State Policy which, in terms of Article 37 of the Constitution, as stated - “are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”.
However, if one were to dispassionately consider the ground reality, one would find a very different and stark picture. Even though 60 years have elapsed since the adoption of the Constitution, we are faced with the grim reality of over 30% of the population of this country being subjected to dire poverty. India is crippled, in my view, by staggering poverty, which results in grave hunger, malnutrition and disease. While the rule of law may have come to be accepted as part of the basic structure of our constitutional system, to my mind, it is difficult to argue that the rule of law is a core value so long as millions of Indians are not free from want. Poverty in India constitutes, at the most fundamental level, a denial of the rule of law. The reality is that the Constitution’s promise of equality rings hollow for an unconscionably large section of Indian society even today.
It is true that we are fed, on an almost daily basis, with the idea of an India that is fast emerging as an economic powerhouse. No less a person than the President of the United States, on his recent visit to India, had remarked, in his address to the India Parliament that “India is not simply emerging. India,” he said, “has already emerged.” This statement was greeted with enthusiasm and self-congratulation in wide sections of the media and by the public. One may not have to look very far to see what inspired the U.S. President to say these words: a clutch of high-profile, high-value acquisitions of foreign firms by Indian companies, with just the top ten high value acquisitions so far being worth around USD 21.5 billion which is more than double the amount involved in the acquisitions of Indian companies by American companies; foreign direct investment in India, till November 2010, totaling to USD 140 billion; and an average quarterly GDP growth rate of 8.4% for the period 2004 – 2010, reaching a high of 10.10% in September 2006. India’s economy, as one article put it, has had its head in the clouds (As India’s clout grows it will reshape the world around it, The Economist, 29 September 2008).
This headline-grabbing growth unfortunately masks a quite different reality. A few kilometres beyond the plush five-star luxury and swanky board-rooms that the U.S. President visited in Bombay, is a rusty sprawl of shanties where grinding poverty prevails. With the incessant hype about India’s triumphant arrival on the global stage, it is perhaps easy to lose sight of the fact that India, according to latest UN statistics, is home to 410 million people living below the UN estimated poverty line of $1.25 a day, an increase of a 100 million from the year 2004. What this means in real terms is that no less than 410 million Indians (or about 37.2 per cent. of India's population) cannot afford two square meals a day that meet minimal nutritional needs.
According to a new 'multi-dimensional' poverty index developed by the United Nations Development Programme, acute poverty in eight Indian States (400 million, including Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh, Orissa, Rajasthan, Uttar Pradesh and West Bengal) together account for more poor people than in the 26 poorest African nations combined (410 million, including war-ravaged Somalia and Sierra Leone). The new measure takes into account not only per capita income but also access to resources, education and medical care.
There was a view in the 1950s and 1960s, dominant amongst Western sceptics that India was too vast, too poor and too diverse to succeed as a nation. Born against a background of privation and civil war, divided along lines of caste, class, language and religion, independent India has defied numerous prophets of doom who believed that its poverty and heterogeneity would force it to break up or come under autocratic rule. Today, India can be justifiably proud of its vibrant democracy, its strongly secular tradition and its fiercely independent judiciary which has breathed life into the promises of the Constitution.
At the same time, in the face of daunting statistics on poverty, hunger, malnourishment, starvation deaths, illiteracy and lack of medical care, one cannot help but wonder: of what use is the lofty rhetoric on the right to life to a starving child in rural Chattisgarh or a homeless person on the streets of Delhi? Do India’s constitutional guarantees truly have meaning for those who suffer great deprivation of basic needs?
I must say, therefore, that while the discourse on human rights has usually focussed on civil and political rights, and their deprivation, such as violations of personal liberty without authority of law, rights of undertrial prisoners and so on, to my mind, the failure of the State, over the period of the last six decades, to eradicate the abject poverty which more than a third of the population of this country has to suffer, and to ensure that all its citizens are extended the minimum benefits of nutritious food and basic healthcare, is the single most important violation of human rights of our citizens. To repeat, one would ask oneself the question as to what purpose the rights such as freedom of speech, equality and access to justice would serve when a person has to suffer debilitating hunger and end his day without a meal, be unable to access the basic health services, and be compelled to sleep on pavements at the height of winter with only a sheet to cover himself - in other words, suffer what can only be termed as a mere animal existence.
It is not as if the three organs of the State have not made any effort to address the problems of poverty, hunger and disease, and the consequent denial of human rights. Each has been attempting to take steps to remedy the rather appalling situation that India finds itself in. For instance, The Protection of Human Rights Act, 1993 was enacted by Parliament to meet the national as well as international demand for the constitution of the National Human Rights Commission, State Human Rights Commissions in the States and Human Rights Courts for a holistic protection of human rights. In addition, innumerable laws have been enacted to implement some of the Directive Principles of State enshrined in Part IV of our Constitution and these laws strive and aim at protecting and promoting human rights. Some noteworthy instances are the Mahatma Gandhi National Rural Employment Guarantee Act, 2006, which guarantees a minimum employment of 100 days each year to eligible adults, and the Right to Education Act, 2009, which guarantees the right to education to all children between the ages of 6 and 14. The task of implementing the policies incorporated in the various laws made by Parliament, and the State Legislatures, falls on the shoulders of the executive wing of the State.
However, it is really the judiciary in India, especially the higher judiciary, which really stands out as the institution which has exhibited the most concern, understanding, as well as positive action in the field of human rights. The Supreme Court of India has, through its various pronouncements, enhanced the coverage of the various rights guaranteed by the Constitution. It was Justice P.N. Bhagwati, who, in Francis’s Coralie’s case, declared that the “right to life is not a mere right to life under Article 21 and cannot be restricted to mere animal existence. It means much more than just physical survival and that further that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in adverse forms, freely moving about and mixing and mingling with fellow human beings…. there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights.”
The Court has forged remedies and brought about dramatic andfar-reaching changes. For instance, in Hussainara Khatoon (III) v. State of Bihar, (1980) 1 SCC 108, the Court stated:
2…The Government in a social welfare State must set up rescue and welfare homes for the purpose of taking care of women and children who have nowhere else to go and who are otherwise uncared for by the society. It is the duty of government to protect women and children who are homeless or destitute… We direct that all women and children who are in the jails in the State of Bihar under ‘protective custody’ or who are in jail because their presence is required for giving evidence or who are victims of offence should be released and taken forthwith to welfare homes or rescue homes and should be kept there and properly looked after.
8…We, therefore, direct the Government of Bihar to inquire into these cases and where it is found that the investigation has been going on for a period of more than six months without satisfying the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary, the Government of Bihar will release the undertrial prisoners, unless the necessary orders of the Magistrate are obtained within a period of one month from today.
Shantistar Builders v. Narayan Khimalal Totame, (1990) 1 SCC 520
Mohini Jain (Miss) v. State of Karnataka, (1992) 3 SCC 666
People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235
6… But apart altogether from the requirement of Convention 59, we have Article 24 of the Constitution which provides that no child below the age of 14 shall be employed to work in any factory or mine or engaged in any other hazardous employment. This is a constitutional prohibition which, even if not followed up by appropriate legislation, must operate proprio vigore and construction work being plainly and indubitably a hazardous employment, it is clear that by reason of this constitutional prohibition, no child below the age of 14 years can be allowed to be engaged in construction work. There can therefore be no doubt that notwithstanding the absence of specification of construction industry in the Schedule to the Employment of Children Act, 1938, no child below the age of 14 years can be employed in construction work and the Union of India as also every State Government must ensure that this constitutional mandate is not violated in any part of the country.
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161
There is no area of human endeavour with regard to which the Supreme Court has not sought to bring its judicial activism to bear to bring relief to those whose human rights have been infringed.
A very significant step, undertaken by the Supreme Court, in my view, is the exercise to extend to the poverty stricken population the ‘right to food’. In April 2001, People’s Union for Civil Liberties (PUCL, Rajasthan) filed a writ petition in the Supreme Court seeking legal enforcement of the right to food, a basic human rights issue.
The legal basis of the right to food has also been underscored by the National Human Rights Commission (NHRC). In the course of a hearing held on 17 January 2003, it has declared:
Article 21 of the Constitution of India guarantees a fundamental right to life and personal liberty. The expression ‘life’ in this Article has been judicially interpreted to mean a life with human dignity and not mere survival or animal existence. In the light of this, the State is obliged to provide for all those minimum requirements which must be satisfied in order to enable a person to live with human dignity, such as education, health care, just and humane conditions of work, protection against exploitation, etc. In the view of the Commission, the right to food is inherent to a life with dignity, and Article 21 should be read with Articles 39(a) and 47 to understand the nature of the obligation of the State in order to ensure the effective realization of this right(Article 39(a) of the Constitution enunciated as one of the Directive Principles, fundamental in the governance of the country, requires the State to direct its policy towards securing that citizens, men and women equally, have the right to an adequate means of livelihood. Article 47 spells out the duty of the State to raise the level of nutrition and the standard of living of its people as a primary responsibility).
The reading of Article 21 together with Articles 39(a) and 47 places the issue of food security in the correct perspective, thus making the right to food a guaranteed fundamental right which is enforceable by virtue of the constitutional remedy provided under Article 32 of the Constitution.
The NHRC went on to state that “there is a fundamental right to be free from hunger”. PUCL’s petition was filed at a time when the country’s food stocks reached unprecedentedly high levels while hunger in drought-affected areas intensified. Initially, the case was brought against the Government of India, the Food Corporation of India, and six state governments in the context of inadequate drought relief. Subsequently, the case was extended to the larger issues of chronic hunger and under-nutrition and all the state governments were added to the list of respondents.
Despite the interventions of an activist Supreme Court, almost every national social-security programme, theoretically serving as cradle-to-grave buffers against destitution, has been racked by failure. For instance, most tribals who are officially poor have no access to five major national schemes (subsidised food, child health care, mid-day meals, jobs for work and old-age pensions) on which India is slated to spend Rs 118,000 crores in 2010-11. This is illustrative of a deepening gulf between legal entitlements and ground realities.
A grim reminder of the depth of deprivation in the country recently emerged from a village, Ganne, in its most populous state, Uttar Pradesh (UP). The front page of a national newspaper recently reported that malnourished children in Ganne have been eating moist lumps of mud laced with silica - a raw material for glass sheets and soap - because they are not officially classified as poor and are therefore ineligible for subsidised food and other state programmes. The state governments came forward with a cruel and unbelievable defence - that the children were eating mud out of habit, and not hunger.
In Ganne, which is incidentally part of the former constituency of India’s first Prime Minister, Jawaharlal Nehru, the effects of a faltering system are evident. 33% of the villagers are tribal, another 30% schedule castes, driven out of the jungle when forests were cleared for “development”. Many of the BPL cards in Ganne have been issued to rich or influential families. Two anganwadis (child health centres) serve the area. They are too distant for the villagers. It is a twelve-kilometre walk from the nearest road. With most land being unfit for cultivation, villagers have little choice but to work in the silica mines for exploitative contractors under conditions close to bonded labour.
They are not covered by any labour laws or medical benefits. Nine of ten mud-eating children are in the last stage of malnutrition. Eight of ten people are deprived of every national social-security net and starvation and hunger are their constant companions. The average life span of the people here is 40 years(Hunger stares you in the face, Samar Halarnkar, Hindustan Times, 28 May 2010).
A Supreme Court inquiry team that visited the area following the newspaper report had this to say:
A grim, catastrophic picture emerges from enquiry of commission (sic)…there is a total collapse of food-security related schemes,” said the report, recommending several “emergency measures” in up to 46 villages. “Protruding stomach, dry, whitish hair, ashen skin, skinny children — hunger stares you in the face.
The day after the Supreme Court’s enquiry team’s report was made public, the state government, as already pointed out, refuted this assessment, saying "habit, not hunger" made children eat mud. The report attributes the crisis to “apathy, insensitivity, nexus between vested interests and elected representatives with active approval of administration and state”. Written by Arundhati Dhuru, an advisor to the Supreme Court, and noted economist Jean Drèze, the report is the latest indicator of the frailty of India’s vast but inefficient and corruption-ridden social-security systems.
The Supreme Court, in some of its landmark pronouncements, has taken the view that the Government is under a constitutional obligation to provide healthcare facilities to For instance, in Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165, the Court observed:
A healthy body is the very foundation for all human activities. That is why the adage “Sariramadyam Khaludharma Sadhanam”. In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health.
Again, in State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83, the Court stated that:
It is now settled law that right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities.
The problem is, for all its talk of pro-poor policies, the Indian government’s overall expenditure on health until the fiscal year 2000-01 did not even amount to 1% of total GDP. Public expenditure on health for the current fiscal year (2009-10) is expected to be a measly 1.45%, according to figures published by the Government of India’s Ministry of Health and Family Welfare.
According to a study published by the World Health Organisation, aggregate government expenditure on health by all central government departments (health, defence, labour, etc.), state departments, local bodies and public enterprises amounts to 1.3% of India’s GDP for each of the years from 1999 to 2002. On the other hand, public spending on health in the year 2002 even by relatively poorer African governments, for instance, in Rwanda and Senegal exceeded India’s, amounting, respectively, to 3.1% and 2.3% of each country’s GDP.
Faced with the collapsing and/or woefully inadequate medical infrastructure in some of the poorest parts of India, one might well question the priorities of the leaders in Delhi and each of the state capitals. Surely the measure of the civilization of a nation lies, at least to some extent, in the way it cares for its sick and needy? There can be no greater irony than a country which loses no opportunity to advertise its world-class pharmaceutical and technological advancement to medical tourism but which does not have the wherewithal to care for its own most vulnerable citizens, thus grossly violating their human rights.
As the statistics quoted above will show, the goal of securing health for the poor is riddled with challenges at multiple levels: a lack of prioritization of the health sector vis-à-vis other sectors which receive (and have historically received) a greater share of public expenditure, a consequent paucity of resources, and finally, challenges stemming from faulty implementation, including leakages and other inefficiencies. These are ultimately largely policy questions within the domain of the legislature and the executive. At the same time, over the course of the last few years, orders of the Supreme Court in the “right to food” case have had some bearing on the right to health in the context of the government’s social security programmes.
India’s Constitution is celebrated the world over as an expression of progressive, liberal ideals symbolizing the hopes and aspirations of its founding fathers for a pluralistic society founded on values of democracy, secularism, equality and liberty. The Supreme Court has, in great measure, fulfilled its role as a vanguard of the Constitution, not only preserving and protecting the rights of individuals against arbitrary state action, but also asserting the rights of the vulnerable and weak in the face of glaring state inaction.
The Central Government cannot close its eyes to large-scale fraud in the public distribution system by taking the narrow constitutional position that implementation is each state’s responsibility. A shocking 58% of India’s subsidized food grain does not reach BPL families. After all, there are limits to what the court can achieve without decisive, collective action from every level of the administration if we are to make anydent in the lives of the 410 million Indians who go to bed without a square meal a day. For so long as there are Indians who live in poverty and in want, the Constitution’s promise of rule of law is bereft of meaning, and human right of a vast population is reduced non-existent.
Long years ago, one of India’s greatest statesmen, Pandit Jawaharlal Nehru, remarked in his now legendary Tryst with Destiny speech, that the service of India means the ending of poverty and ignorance and disease and inequality of opportunity. I will conclude with his words, to remind us, as he said, whither we will go and what shall be our endeavour:
There is no resting for any one of us till we redeem our pledge in full, till we make all the people of India what destiny intended them to be.
It is a great tragedy that his vision and hope for India remain unfulfilled even after six decades of the working of the Constitution.
This lecture is taken from the book "Justice H.R. Khanna - Law, Life and Works" edited Dr. Lokendra Malik and Dr. Manish Arora, published by Universal Law Publishing an imprint of LexisNexis, with the permission of Dr.Lokendra Malik. We express our special thanks to Dr.Lokendra Malik for his contributions to LiveLaw.