R to Development

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HUMAN RIGHTS, REFUGEE LAW AND

INTERNATIONAL HUMANITARIAN LAW

RIGHT TO DEVELOPMENT

Submitted To: Submitted By:

PROF. GHULAM YAZDANI SIR MOHD. AADIL KHAN

FACULTY OF LAW III YEAR BA LLB (H)


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TABLE OF CONTENT

INTRODUCTION

RIGHT TO DEVELOPMENT AS A HUMAN RIGHT

WHAT IS THE RIGHT TO DEVELOPMENT?

UNITED NATIONS MECHANISMS DEALING WITH THE RIGHT TO

DEVELOPMENT

WHAT IS THE ADDED VALUE OF THE RIGHT TO DEVELOPMENT?

HOW CAN THE RIGHT TO DEVELOPMENT BE OPERATIONALIZED

IN PRACTICAL TERMS?

THE DECLARATION ON THE RIGHT TO DEVELOPMENT

CENTRE/STATE ACTS AND RULES ON RIGHT TO DEVELOPMENT

BIBLIOGRAPHY


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ACKNOWLEDGEMENT

I express my deepest sense of gratitude to my reverend guide Ghulam Yazdani sir ,

Professor ,Jamia Millia Islamia , New Delhi for his countenance advice, adherent

interest and pain taking nature.

He spent no pains in correcting and expertly evaluating my project work. It is

pleasant opportunity to pay my regards and sincere thanks to Sir for his valuable

support, guidance and immediate help whenever I approached him.

Finally, I wish to thanks my parents and colleagues for their pleasant cooperation,

support and encouragement.

MOHD. AADIL KHAN

III YEAR

BA LLB (H)


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INTRODUCTION

The discourse on rights in India predates the formation of the modern Indian state.

1) Providing an important basis to the nationalist discourse on freedom and

numerous other subaltern struggles, rights have formed an integral part of the

Indian polity. Representing claimsmade upon the State, the notion of rights has

played an important role in defining certain fundamental precepts of the

obligations and duties that the Indian State has towards its citizens.

2) The Constitution of India, drafted roughly around the same period as the

Universal Declaration of Human Rights provides for a separate chapter on the

protection and promotion of Fundamental Rights.

3) However, unlike the Universal Declaration that does not distinguish between

sets of rights (civil, political, economic, social and cultural), the Indian

Constitution makes a fundamental distinction between justiciable and non-

justiciable rights.

4) While theprotection and promotion of civil and political rights is legally binding

upon the State, the responsibilities of promoting economic, social and cultural

rights are relatively less explicit.

Enlisted as Directive Principles of State Policy, these do not enjoy the justiciable

status of fundamental rights, but are nevertheless important as they embody policy

guidelines that are to be progressively realised and observed by the State in good

faith. The present study on the implementation of the right to development, builds

on the normative and legal foundations for linking rights with development in the

Indian context. While India is an official signatory to the UN Declaration on the

Right to Development, discussions on the specifics of the right to development at

the formal level have been limited.


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Although there is recognition of the need to institutionalise more democratic norms

of governance, linkages to the right to development have not been sufficiently

explored.

At the policy level, while certain elements of a rights-based approach have been

institutionalised, the progress made in adopting a holistic and comprehensive

approach that characterises the right to development has been slow. The possibility

of the implementation of the right to development in India remains as yet a largely

untested proposition. Keeping in mind the constraintspolitical, social, economic,

and culturalthat typically inhibit development efforts in low and middle-income

countries, as well as the contradictions and challenges confronting development

within the country, there exists a strong case for exploring how the right to

development approach may be adopted in the Indian context. The term

development has been open to several conflicting interpretations. As an activity,

development has come to signify different things to different classes and groups of

people. The amazingly fast growth of consumerism in the contemporary period, its

coexistence with abominable conditions of poverty and deprivation, and the

absence of analysis regarding the distribution of benefits is a relevant illustration of

the problems of finding appropriate definitions of development. Whereas for some

people development is synonymous with economic growth, for others it is the

positive outcomes that flow from growth such as fulfilment of basic needs, human

development, opportunities and freedoms that qualify as development.

5) The conceptualisation of development as a process that consciously focuses on

the realisation of the human rights and fundamental freedoms. That form the

central proposition of the right to development provides a fresh and innovative

interpretation of development. Coined by the Senegalese jurist, Keba Mbaye, in

1972, the right to development has been amongst the most controversial issues in

contemporary international relations.


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In the last few years, there has been a significant re-examination of the concept and

value attached to adopting a rights-based approach to development, especially in

reducing the levels of poverty and deprivation prevalent across large areas of the

globe. At the policy level, the main discussion has been in the United Nations

forum, where the adoption of the Declaration on the Right to Development has

provided a rallying point around which academics, policy-makers and civil society

may formulate concrete proposals identifying the main parameters of the right. The

current resurgence of interest in the right to development amongst policy makers

and academia comes at a time when concerns are being expressed about the

contradictions and biases of the process of globalisation, especially its effects on

the lives of the poor in the developing world. The present study is part of a larger

research project undertaken by the Franois-Xavier Bagnoud Center for Health and

Human Rights of the Harvard School of Public Health. The Centre for

Development and Human Rights (New Delhi) has attempted to document the

prospects and challenges confronting the implementation of the right to

development; thus this report focuses on the meaningful applications of the right to

development in the realisation of basic needs and rights in India. The report is

based on preliminary research undertaken by the Centre concerning the application

of a rights-based framework in the areas of food, health and education.

The report has five main sections. Section I lays down the basic precepts of the

right to development approach that differentiates it from other approaches to

development. Section II presents an historical overview of the process of

development in Indiaencompassing a review of the goals, policies, approaches

and structures influencing the formulation and implementation of development

programmes. Section III reviews the possibilities and implications of adopting the

rights approach in fulfilling the basic needs related to food, health and education in

development.


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Section IV outlines the role of international cooperation in realising the right to

development. The last section, Section V, presents the conclusions and main

findings of their search. The interpretations of development in human rights

language undoubtedly raise certain questions.

For example, how does the claim to a right to development actually help

individuals? To whom does the right belong and who are the duty bearers? What is

the scope of the right, or the range of specific cases or instances to which the right

applies? While the actual content and meaning of the right may still not be in a

final form, the importance of assimilating rights with development cannot be

discounted. For example, while a country may not consciously follow the right to

development model, it is still possible to identify the linkages between

development and rights and the extent to which the rights framework is interwoven

with the realisation of development. The section below takes a look at the basic

precepts of the right to development, before undertaking a larger discussion on the

relevance of the right to the Indian context.

The right to development can be rooted in the provisions of the Charter of the

United Nations, the Universal Declaration on Human Rights and the two

International Human Rights Covenants.

Through the United Nations Charter, Member States undertook to "promote social

progress and better standards of life in larger freedom" and "to achieve

international cooperation in solving international problems of an economic, social,

cultural or humanitarian character, and in promoting and encouraging respect for

human rights and for fundamental freedoms for all without distinction as to race,

sex, language or religion."


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The Universal Declaration on Human Rights contains a number of elements that

became central to the international community's understanding of the right to

development. It attaches importance, for example, to the promotion of social

progress and better standards of life and recognizes the right to non-discrimination,

the right to participate in public affairs and the right to an adequate standard of

living. It also contains everyone's entitlement to a social and international order in

which the rights and freedoms set forth in the Declaration can be fully realized.

An important step towards the recognition of the right to development was UN

General Assembly resolution 1161 (XII). In this resolution, the General Assembly

expressed the view "that a balanced and integrated economic and social

development would contribute towards the promotion and maintenance of peace

and security, social progress and better standards of living, and the observance of

and respect for human rights and fundamental freedoms."

This theme was taken up at the International Conference on Human Rights, held in

Tehran, Islamic Republic of Iran, from 22 April to 13 May 1968. The Conference

expressed its belief "that the enjoyment of economic and social rights is inherently

linked with any meaningful and profound interconnection between the realization

of human rights and economic development." It recognized "the collective

responsibility of the international community to ensure the attainment of the

minimum standard of living necessary for the enjoyment of human rights and

fundamental freedoms by all persons throughout the world."

In 1969, the General Assembly, in its resolution 2542 (XXIV), adopted the

Declaration on Social Progress and Development, which states that "social

progress and development shall aim at the continuous raising of the material and


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spiritual standards of living of all members of society, with respect for and in

compliance with human rights and fundamental freedoms."

In its resolution 4 (XXXIII) of 21 February 1977, the UN Commission on Human

Rights decided to pay special attention to consideration of the obstacles impeding

the full realization of economic, social and cultural rights, particularly in

developing countries, and of national and international action to secure the

enjoyment of those rights. Recognizing the right to development as a human right,

the Commission requested the UN Secretary-General to undertake a study on "the

international dimensions of the right to development as a human right in relation

with other human rights based on international cooperation, including the right to

peace, taking into account the requirements of the New International Economic

Order and fundamental human needs." The study was submitted and considered by

the Commission on Human Rights at its thirty-fifth session in 1979.

The Commission subsequently, by its resolution 36 (XXXVII) of 11 March 1981,

established a working group of 15 governmental experts to study the scope and

contents of the right to development and the most effective means to ensure the

realization, in all countries, of the economic, social and cultural rights enshrined in

various international instruments, paying particular attention to the obstacles

encountered by developing countries in their efforts to secure the enjoyment of

human rights. It also requested the Working Group to submit a report with concrete

proposals for implementation of the right to development and for a draft

international instrument on this subject.

The right to development was proclaimed by the United Nations in 1986 in the

"Declaration on the Right to Development" which was adopted by the United

Nations General Assembly resolution 41/128.


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Right to Development as a Human Right

The existence of a right to development was first asserted in 1977. Following

many years of debate, that was centred on the conceptual differences

regarding the right and the political differences of states that reflected the cold war

tensions, the General Assembly adopted the Declaration on the Right to

Development (DRD) in 1986, proclaiming that: The right to development is an

inalienable human right by virtue of which every human person and all peoples are

entitled to participate in, contribute to, and enjoy economic, social, cultural and

political development, in which all human rights and fundamental freedoms can be

fully realized.

And in 1993, it was declared that the right to development is a universal and

inalienable right and an integral part of fundamental human rights. And

nowadays, references to the right to development are seen in all major UN

documents. The right includes: full sovereignty over natural resources, self-

determination, popular participation in development, equality of opportunity and

the creation of favourable conditions for the enjoyment of other civil, political,

economic, social and cultural rights.

The right to development, by incorporating all human rights and recognizing that

all rights and freedoms are indivisible and interdependent, is presented as a fusion

of all human rights and fundamental freedoms. It is these rights and freedoms that

protect our dignity as human beings, and the enjoyment of all human rights is

facilitated through the right to development. There is universal consensus that

development is important to humanity as it would enable every person in the

world to enjoy their rights and freedomsc iv i l and pol i t ica l , economic,


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so cia l and cultural as well as other specified rights and to pursue what

they value.

This idea is not only appealing, but is the primary objective and the

means of development. When the fundamental freedoms are ensured,

people are empowered, through their human rights, to resist torture,

arbitrary incarceration and racial discrimination to demanding an end to

hunger and starvation, and to medical neglect across the globe.Freedom

is essential to the realisation of these rights as to be free is to be

unrestrained by others in the pursuit of one sends, and freedom is

valuable because it provides opportunities to pursue our objectives and

things that we value. It also ensures that one is not forced into something

because of const raints imposed by others. Consider a person in a least

developed nation who wants to pursue her dream of becoming a doctor,

but have to give up on that dream because she is denied even the basic

education, due to the lack of schools in her village. When she grows up

she is forced to resorting to prostitution as a means of survival. While

this may (or may not) bring in money, the lack of choice and opportunity

through the lack of freedom is humiliating and takes away her human

dignity. There is the lack of opportunity to get oneself educated, to seek

medical help when infected with HIV, the lack of choice of work, or to

escape the freedom of starvation. To develop therefore, means the

removal of this lack of freedom that leave people with little choice

and little opportunity of exercising their reasoned agency. The removal

of substantive un freedomsisconstitutive of development.

The right to development would therefore ensure the eradication of the

various constraints that lock humans in impoverishment and deprivation, in terms


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of material goods and the ability to exercise their rights. Specificreference to the

cooperation to eliminate the obstacles to development is therefore made in the Vienna

Declaration, and Article 28 of the UDHR which state that Everyoneis entitled to a

social International order in which the rights and freedoms set forth in this declaration can

be fully realizedcould be inferred to imply a right to the removal of the impediments

to development.

Interpreted in this way, the developed community could act not to deny the rights

of those who are unable to realise their rights due to lack of development. The

UDHR reminds that Everyone owes duties to the community and this

community is not only the neighbouring countries, but is also the global community. For

Rawls, a decent society or community is one that honours the basic human rights that

respect the humanity of its members, and these rights includes among others, a minimum

right to the means of subsistence. A decent people does not let its members die of

starvation. The rights to education or health would be less useful as rights that

respect human dignity when there are no ways of realising them through the

availability of schools or hospitals. And the rights to freedom of assembly, speech, and

political participation matter little when daily life is a struggle for survival.

The realization of these rights and a life in dignity then require an adequate standard of

living. Afully human life cannot be achievedifthe availability of social goods

is so reduced that life itself becomes nothing more than a struggle to survive. And

development, as acomprehensive economic, social, cultural and political process aimsat

the constant improvement of the well-being of the entire population and of all

individualsThis improvement would entail a standard of living adequate for the

health and well-being and development would mean improvement in this well-being,

which can be described as the level of realization of the fundamental rights.


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The right to development could then be seen to derive from the inherent dignity of the

human person because it helps to attain both freedom and wellbeing, which is what,

gives the humans their equal worth. As content of the right to development is founded on

the Bill of Human Rights, the legal basis for the right to development can therefore be

derived from the UDHR, the Covenants on Civil and Political Rights and Economic, Social

and Cultural Rights.

However, not everyone is satisfiedwith that there is any moral or legal basis for the right

to development. Much in the same manner that human rights have been denied as some

to exist and that belief in them equals belief in witches and unicorns, the right to

development has also been said to be nothing more than a mythical unicorn. Criticism is

levelled at the right to development as it being meaningless, dangerous, and

catastrophic and a total failure, in that states will be unable to fully realize all of its

components. But it is worth noting that something cannot be both equally meaningless

and dangerous because that which is meaningless is unlikely to be dangerous.

As mentioned earlier, the right to development is one of the third generation rights and

Donnelly sees that the use of the term generationis dangerous because it would mean

that the solidarity rights would replace the already established preceding generation of

rights. But this interpretation is erroneous as generations of rights do not make each

other obsolete but add upon each other and the right to development derives its basis from the

interconnected of all the rights and development is needed to realize of these rights. It is

this striking feature of the right to development in asserting the unity of all human

rights that its rejection equates to the rejection of even some of the other basic rights.

Another contention that Donnelly findsto be dangerous is the claim to be developed, as

distinct from a right to pursue development. But the right to development does not assert that

the human individual should be fully developed or that it is the end the right is seeking to

achieve. It asserts that we have a right to pursue development, to the base on which one can


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construct a meaningful life through freedom and well-being. As noted above, it forms the

means as well as the ends. Furthermore, the realisation of rights does not have to be in

full or may end up not being fulfilled,even in the case of civil and political rights where it

would seem that resources play little role. But no state can afford a police force

adequate enough to secure the right to life of every citizen.

However, the aspect of Donnellysargument that continues as one of the challenges to

the right to development is the difficulty in determining who is to exercise the

right. As with all third generation rights, it is uncertain of its holder and the duty-

bearer.


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What is the Right to Development?

The Preamble of the Declaration on the Right to Development states "development

is a comprehensive economic, social, cultural and political process, which aims at

the constant improvement of the well-being of the entire population and of all

individuals on the basis of their active, free and meaningful participation in

development and in the fair distribution of benefits resulting therefrom."

The right to development is an inalienable human right by virtue of which every

human person and all peoples are entitled to participate in, contribute to, and enjoy

economic, social, cultural and political development, in which all human rights and

fundamental freedoms can be fully realized. (Article 1.1, Declaration on the Right

to Development) The human right to development also implies the fullrealization

of the right of peoples to self-determination, which includes, subject to the relevant

provisions of both International Covenants on Human Rights, the exercise of their

inalienable right to full sovereignty over all their natural wealth and resources.(Article 1.2)


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United Nations Mechanisms dealing with the Right to Development

The intergovernmental open-ended Working Group on the Right to Development

was established in 1998. The Working Group meets once a year and reports to the

Human Rights Council (HRC) and the GA. Its mandate is inter alia: (a) to monitor

and review progress made in the promotion and implementation of the right to

development as elaborated in the Declaration, at the national and international

levels, providing recommendations thereon and further analyzing obstacles to its

full enjoyment; (b) to review reports and any other information submitted byStates, United Nations agencies, other relevant international organizations and non-

governmental organizations on the relationship between their activities and the

right to development; and (c) to present for the consideration of the HRC a

sessional report on its deliberations, including advice to the Office of the United

Nations High Commissioner for Human Rights (OHCHR) with regard to the

implementation of the right to development, and suggesting possible programmes

of technical assistance at the request of interested countries with the aim of

promoting the implementation of this right. Until April 2010, the Working Group

was supported by the high-level task force on the implementation of the right to

development, established in 2004 with the composition of five independent

experts, to provide expert advice to the Working Group2. At the request of the

Working Group, the high-level task force proposed a set of criteria and

corresponding operational sub-criteria3 for the implementation of the right to

development.


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What is the added value of the Right to Development?

The right to development provides a comprehensive framework and approach to

the policies and programmes of all relevant actors at the global, regional, sub-

regional and national levels as this right

integrates aspects of both human rights and development theory and

practice;

encompasses all human rights civil, political, economic, social and

cultural;

requires active, free and meaningful participation;

involves both national and international dimensions of State

responsibilities including in the creation of an enabling environment for

development and favourable conditions for all human rights;

demands comprehensive and human-centred development policy,

participatory development processes, social justice and equity; embodies the human rights principles of equality, non-discrimination,

participation, transparency, accountability as well as international

cooperation in an integrated manner;

implies the principles of self-determination and full sovereignty over

natural wealth and resources;

facilitates a holistic approach to the issue of poverty by addressing its

systemic and structural causes;

strengthens the basis for pro-poor growth with due attention to the rights

of the most marginalized;


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How can the right to development be operationalized in practical

terms?

With the purpose of translating the right to development from political

commitment to development practice, the criteria proposed by the high-level task

force were designed to serve as an operational tool to:

assess the extent to which States are individually and collectively taking

steps to establish, promote and sustain national and international

arrangements that create an enabling environment for the realization of the

right to development;

serve as a useful tool for stakeholders to assess the current state of the

implementation of the right to development and facilitate its further

realization at the international and national levels;

contribute to mainstreaming the right to development in the policies and

operational activities of relevant actors at the national, regional and

international levels, including multilateral financial, trade and development

institutions; and

evaluate the human rights implications of development and trade policies

and programmes.

The operationalization of the right to development also requires application of the

above-mentioned human rights principles and good governance to the activities of

all relevant stakeholders at both the national and international levels.


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The Declaration on the Right to Development

The Declaration on the Right to Development defines such right as "an inalienable

human right by virtue of which every human person and all peoples are entitled to

participate in, contribute to, and enjoy economic, social, cultural and political

development, in which all human rights and fundamental freedoms can be fully

realized." (Article 1)

The Right to Development includes:

full sovereignty over natural resources

self-determination

popular participation in development

equality of opportunity

the creation of favourable conditions for the enjoyment of other civil,

political, economic, social and cultural rights

The human person is identified as the beneficiary of the right to development, as of

all human rights. The right to development can be invoked both by individuals and

by peoples. It imposes obligations both on individual States - to ensure equal and

adequate access to essential resources - and on the international community - to

promote fair development policies and effective international cooperation.


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Centre/State Acts and Rules on Right to Development

Following are some of the acts on the right to development in India:-

1.

Mahatma Gandhi National Rural Employment Guarantee Act, 2005

Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) refers

to the world's largest welfare program, run by the Government of India.

It is a job guarantee scheme for rural Indians. It was enacted by legislation on 25

August 2005. The scheme provides a legal guarantee for at least 100 days of paid

employment in every financial year to adult members of any household willing to

do unskilled manual work related to public work at the statutory minimum

wage of 120 per day in 2009 prices. If they fail to do so the government has to

pay the salary at their homes. The central government outlay for the scheme was

4000 billion in Financial Year 201011.

This act was introduced with the aim of improving the purchasing power of semi-

or un-skilled rural people of India, irrespective of whether or not they fell below

the poverty line. Around one-third of the stipulated work force is women. The law

was initially called the National Rural Employment Guarantee Act (NREGA) and

was renamed with the prefix "Mahatma Gandhi" on 2 October 2009, Gandhi's birth

anniversary.

In 2011, the program was widely criticized as no more effective than other poverty

reduction programs in India. Despite its best intentions, MGNREGA is beset with

controversy about corrupt officials, deficit financing as the source of funds, poor
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quality of infrastructure built under this program, and unintended counter-

productive destructive effects on the rural economy and inflation.

2. Right of Children to Free and Compulsory Education Act, 2009

The Right of Children to Free and Compulsory Education Act or Right to

Education Act (RTE), is an Indian legislation enacted by the Parliament of India on

4 August 2009, which describes the modalities of the importance of free and

compulsory education for children between 6 and 14 in India under Article 21a of

the Indian Constitution. India became one of 135 countries to make education a

fundamental right of every child when the act came into force on 1 April 2010.

Present Act has its history in the drafting of the Indian constitution at the time of

Independence but is more specifically to the Constitutional Amendment that

included the Article 21A in the Indian constitution making Education a

fundamental Right. This amendment, however, specified the need for a legislation

to describe the mode of implementation of the same which necessitated the

drafting of a separate Education Bill.

3.National Food Security Bill, 2013

The Indian National Food Security Bill, 2013 (also Right to Food Bill), was signedinto law September 12, 2013. This law aims to provide subsidized food grains to

approximately two thirds of India's 1.2 billion people. Under the provisions of the

bill, beneficiaries are to be able to purchase 5 kilograms per eligible person per

month of cereals at the following prices:


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rice at 3 per kg

wheat at 2 (3.1 US) per kg

coarse grains (millet) at 1 (1.5 US) per kg.

Pregnant women, lactating mothers, and certain categories of children are eligible

for daily free meals.

This Bill is referred as the "biggest ever experiment in the world for distributing

highly subsidized food by any government through a rights based approach."The

Bill extends coverage of the Targeted Public Distribution System, India's principal

domestic food aid program, to two thirds of the population, or approximately 820

million people.
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Bibliography

Human Rights in India: Issues and Perspectives by S. Mehartaj, 2000

Perspectives on Human Rights by V. K. Gupta, 1996

Human Rights and the Law by Jaswal & Jaswal, 1996

http://www.un.org/en/events/righttodevelopment/pdf/rtd_at_a_glance

http://ssa.nic.in/rte-docs/free%20and%20compulsory

http://nhrc.nic.in/documents/LibDoc/Right_to_Developement_A.

http://www.thehindu.com/multimedia/archive/01404/National_Food_Secu_1

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http://nhrc.nic.in/documents/LibDoc/Right_to_Developement_F.

http://nhrc.nic.in/documents/LibDoc/Right_to_Developement_C.

Right to Development, NHRC, India, nhrc.nic.in

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