Through the prism of human rights
RAVI S. SRIVASTAVA
THE basic idea of social security is to use social means to prevent deprivation and vulnerability to deprivation.1 Conventionally, the notion of social security has been linked to the workers’ status in formal labour markets and the focus has been on contingencies rather than on deficiencies. However, from the point of view of developing countries, the two notions (viz. deprivation and vulnerability) are closely interlinked, necessitating a broader notion of social security. Jean Dreze and Amartya Sen distinguish between two aspects of social security: ‘protection’ and ‘promotion’.2 The former is concerned with preventing a decline in living standards in general and in the basic conditions of living in particular. The latter has the objective of enhancing normal living conditions and helping people overcome regular and persistent (capability) deprivation. The ILO and many other international organizations, now use the broader concept of ‘social protection’, which covers not only social security but also non-statutory schemes.
The importance of social security can be gauged from the fact that it has been the primary public policy instrument for the direct sustenance of living standards of workers and citizens in industrialised countries, absorbing over half the total government expenditure, and with a few exceptions, more than 20% of Gross Domestic Product.
Areview of the brief history of the evolution of social security system since its advent in the developed countries shows that it has expanded and sustained under three main forces: (i) the rising insecurity which accompanied industrial revolution and the further episodes of economic crisis, such as the Great Depression; (ii) the consolidation and radicalisation of working class movements; and (iii) the growth of political democracy and state welfare capitalism.
The erstwhile socialist countries were from the very beginning committed to providing comprehensive social security to their population, even at low levels of development. Till the collapse of the former socialist states, the importance given to the provision of social security remained a common feature of both the socialist and the developed capitalist systems.
Social security in the industrial countries reached a peak in the 1970s. Starting in the late 1970s, however, the welfare state has come under increasing pressure. The neo-liberal policies that gained ascendancy in the 1980s spurred a strong wave of economic liberalization, privatization of state enterprises and services and deregulation of the economy.
The intensification of globalization, technological change and competition led to further pressures. Over the past two decades this has resulted in many countries dismantling key social programmes and reducing the scope, level and range of benefits. There is also a trend towards privatizing social security – replacing or supplementing government schemes by private schemes or contracting private agencies to manage existing schemes.3 In some countries the universal, rights-based programmes are being converted into targeted schemes with beneficiaries subjected to a means test.
Despite these measures, the ratio of public social expenditure to GDP rose slightly or stayed constant in most developed countries between 1985 and 1996.4 The social security systems in the OECD countries have continued to retain their basic features. This provides evidence that social security systems are deeply embedded in national economic, social and political structures and reflect deep rooted political consensus. This also owes, in no small measure, to the fact that social security measures have a legislative basis, and changes have been subject to intense public and legislative scrutiny.
The course of social security in the former socialist economies (the transitional economies) has, however, been quite different. In these countries, the social and economic consequences of the Bretton Woods policies were catastrophic in the short and medium term leading to a contraction of the economies and of employment, an increase in poverty, and a worsening of social development outcomes. The new social security systems in these countries are still in a transitional phase. But on the whole, a system that provided a comprehensive package of social security, albeit at modest levels, has been replaced by a highly selective and targeted system which excludes a significant proportion of the population.5
In the developing countries, unlike the OECD countries, vast segments of the population lack formal social security cover, and suffer from persistent, chronic deprivation. As Jean Dreze and Amartya Sen remind us, ‘the majority of humanity face an almost total absence of security in their fragile and precarious existence. … It is this general fragility, on top of chronic and predictable deprivations that makes the need for social security so strong and palpable.’6
Although the situation varies across and between sub-groups of countries, ILO states that more than half of the world’s population (workers and their dependants) is excluded from any type of social security protection.7 Two main reasons are usually mentioned for the inadequacy of social security in developing countries – viz. the structure of the economies and their level of development.
The first reason, often discussed for the lack of extension of coverage of formal social security, is that contrary to expectations, the already high proportion of the workforce in the informal sector is either stagnant or increasing. This can be seen from the case of India where the proportion of the informal workforce is close to 92% and a greater proportion of the organized workforce is getting informalised.
The growing informalization of the developing economies is significantly a result of globalization and structural adjustment policies which have resulted in privatization, down-sizing, outsourcing and flexibilization of labour relations. Globalization, either alone or in combination with technological change, has exposed large sections of workers to greater income insecurity. Reductions in income security and social protection also arise from the attempts of governments to promote competitiveness and attract foreign direct investment.8
The level of development of the developing economies is cited as the other most important reason for the inadequacy of social security. In fact, some observers have gone so far as to say that at the present levels of development, developing countries ought not to aspire for universal coverage of their populations.9
However, within the group of developing countries, while there is indeed some relationship between per capita income and social security expenditures, the relationship is not strong.10 Ghai suggests that there are four groups of developing countries that have relatively more adequate social security coverage.11 These are those with broad based growth, mineral rich countries, countries with a socialist orientation, and those with a social welfare approach. The fourth category (among developing countries) comprises a diverse range of countries that have succeeded in building most of the key elements of a comprehensive social security system, albeit at modest levels. These countries have succeeded in providing universal primary education and health services, as well as food subsidies for the poor. They include Sri Lanka, the Indian state of Kerala, Costa Rica and Chile. These countries have followed a combination of models based on state contribution and social insurance.
One also needs to take note of the large body of evidence in the developing countries which suggests that higher levels of social security translates itself into higher productivity and growth and lower levels of poverty, although these effects may be felt with a lag.
The post-war consensus on social security (both basic and contingent) is clearly set out in the Universal Declaration of Human Rights. Articles 22 to 26 enjoin the universal rights of each individual to a basic standard of life, to proper working conditions and to social security and social protection. The International Covenant on Economic, Social and Cultural Rights, 1966, again recognizes ‘the right of everyone to social security, including social insurance’ (Article 9) and Articles 10 to 13 of the Convention elaborate on the right of mothers and infants, the right to a decent standard of living, the right to food, health and education.
The Universal Declaration of Human Rights constitutes both civil and political rights (Articles 1 to 21) and economic, social and cultural rights (Articles 22 to 28). In fact, as Sengupta,12 the United Nations Rapporteur on the Right to Development shows, the Universal Declaration reflected the immediate post-war consensus about human rights based on what President Roosevelt described as four freedoms – including the freedom from want – which he wanted to be incorporated in an International Bill of Rights. There was no ambiguity at that time about political and economic rights being interrelated.
The consensus over the unity of civil and political rights and economic, social, and cultural rights was broken in the 1950s, with the spread of the Cold War.13 Two separate covenants, one covering the civil and political rights and another covering economic, social and cultural rights, were promulgated to give them the status of international treaties in the late 1960s, and both came into force in the late 1970s. The affirmation of the Right to Development, integrates in Sengupta’s view, economic, social, and cultural rights with civil and political rights in the manner that was envisaged at the beginning of the post-second world war human rights movement.
The implication of accepting the rights to education, food, health, social security and so on as human rights is that it obligates the authorities, both nationally and internationally, to fulfil their duties in delivering (or in human rights language, promoting, securing, and protecting) that right in a country. If the right to food, education, and health are regarded as human rights, the state has to accept the primary responsibility of delivering the right either on its own or in collaboration with others. It has to adopt the appropriate policies and provide for the required resources to facilitate such delivery because meeting the obligation of human rights would have a primary claim on all its resources – physical, financial, or institutional – that it can command.14
There are three principal reasons why there is an opposition to considering economic and social rights as inalienable human rights: (a) human rights are individual rights; (b) they have to be coherent, in the sense that each right-holder must have some corresponding duty-holder whose obligation would be to deliver the right, and (c) human rights must be justiciable.15
The first of these implies that human rights are only personal rights, based on negative freedom, whereas economic and social rights are associated with positive freedoms which the state has to secure and protect through positive action. As Sengupta has noted, these arguments have been substantially repudiated in literature.16 Furthermore, the identification of civil and political rights with negative rights and economic, social and cultural rights with positive rights is too superficial because both would require negative (prevention) as well as positive (promotion or protective) actions.
The second criticism, which Amartya Sen has described as ‘the coherence critique’ is spelt out as, ‘Rights are entitlements that require correlative duties.’ Sen argues that for a right to be treated as an entitlement, it needs to be characterized only by what Kant called an imperfect obligation: ‘When the claims are addressed generally to anyone who can help, even though no particular person or agency maybe be charged to bring about the fulfillment of the rights involved’.17
The above argument counters the criticism that human rights have to be justiciable. This criticism confuses human rights with legal rights.18 Human rights are based on moral standards on a view of human dignity, and which have many different ways of fulfillment depending on the acceptability of the ethical base of the claims. This, however, does not of course minimise the importance or usefulness of such human rights as translated into legislated legal rights.
In other words, once the right to social security is accepted as a human right, it entails an obligation on the part of the state (the primary duty holder), its international partners, and the community to ‘try to realise, as expeditiously as possible, the whole range of substantive rights – such as the right to food, health, education etc’.19 It does not entail, as Streeten argues, ‘immediate fulfillment’, nor can it be relegated to being a mere ‘aspiration’.20 Furthermore, since fulfillment requires resources, there exists not only complementarity between rights, but also trade-offs and the ‘speedy realisation of rights calls for softening the resource constraint, which in turn calls for economic growth.’21
Apart from the ‘fundamental rights’, the Indian Constitution gives a pride of place to the Directive Principles which link political democracy with economic and social democracy. The Directive Principles of the Indian Constitution lay down directions and goal posts in the achievement of economic rights, but they are not justiciable. They are, however, to be used by the government in making laws.
Of particular interest in the Directive Principles to us here is Article 41 which directs the state to ‘within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.’
It may be noted that formal social security arrangements (including health care, accidents, and old age benefits) cover about 8% of the work-force in the formal sector. Another 6% of the informal workforce is estimated to be covered under some sort of social security mechanism based on social insurance principles and state contributions.22 In the state of Kerala, 57% of the informal workforce has some social security protection, provided through the mechanism of occupation based ‘welfare funds’.23 Although, the state is expected to be the main provider of health services, in actual fact, a majority of hospitalisations occur in the private sector, while the private sector (both qualified and unqualified) is responsible more than 90% of out-patient care.
While there are a large plethora of schemes and programmes to provide social assistance, generate employment during slack seasons and droughts, improve access of the poor to land and other productive assets etc., with some exceptions (such as the Employment Guarantee Scheme in Maharashtra), these schemes are non-statutory in character and have a thin spread. The country’s social security expenditure is a relatively small part of GDP and total public expenditure – approximately 3.6 to 4.8% in the former case and 12 to 16% respectively – depending on the items that one chooses to include in the rubric of social security.
The extent of persistent capability deprivation in the country is high and the rate of improvement is low and uncorrelated with the high rate of growth (5.5 to 6%) experienced in the last two and a half decades. There are also large regional differences with the deprivation in some areas being on par with sub-Saharan Africa,24 while other regions (states such as Kerala, Goa and Himachal) show high levels of social development. The successful states, especially Kerala, underwent large-scale political mobilization, on the one hand, and state policy which favoured land reforms, labour rights, social development and social security, on the other.
In the 1980s, Kerala’s high level of social development was seen to co-exist with economic stagnation, and this was partly explained on the basis of labour market conditions. This generated a great deal of discussion on the specificities of the ‘Kerala model of development’. Subsequently, however, Kerala’s rate of growth picked up and there has been a rapid decline in income poverty, bringing the state (a middle income state) on par with Punjab, the highest income state. Thus, international comparison apart, the Indian regional experience has also highlighted the scope of expansion of social opportunities at present levels of income.25
There has been an increased focus on the rights-based approach in India and how elements of rights contained in the Directive Principles could be converted into entitlements and/or legal claims. This debate first arose in the context of education on the basis of judgements in the Supreme Court which interpreted the ‘Right to Life’ (a fundamental human right) with a right to life with dignity, and indicated that access to basic education, health and food were part of a citizen’s claim. This judgement catalysed the civil society movements in India, since the Directive Principles of the Indian Constitution (themselves not justiciable) could now be interpreted in terms of their linkage with fundamental rights. Using this broad interpretation, civil society initiatives sought to convert Article 45 of the Directive Principles into a Fundamental Right. The broad-based campaign resulted in the government bringing in an amendment in 2002 in the Indian Constitution making the right to education of all children in the 6 to 14 year age group a fundamental right. However, for the Article to become justiciable, the government needs to legislate a model bill on the obligations of the Centre and the provinces which is still pending.
There have been campaigns to justiciable claims to information, food, health and employment. Some of these rights are complex and difficult to translate into specific claims, but as Dreze has observed in the case of the right, some parts of this right can be converted into a claim, perhaps even backed by a legal entitlement.26 In this case on the right to food, the court has directed the government to provide for mid-day meals in primary schools and to open ICDS centres (which, among other things, provide supplementary nutrition to young children) in every habitation.
Article 41, as discussed earlier, refers to the Directive Principles on social security which has also figured prominently on the programme of the current government. The National Commission for Enterprises in the Unorganised Sector (NCEUS) has now proposed a legislation for a national minimum social security package for unorganised workers, who remain without any social security cover.27 The national minimum social security package combines social insurance with social assistance and proposes to provide modest life and health cover, and old age benefits to all workers within a period of five years. The scheme will be financed by contributions from the Centre and state governments, employers (where identifiable) and workers. The total package, as proposed in the NCEUS report, is modest, and will imply a fiscal burden of 0.2% of GDP on the government in the first year, and of 0.45% in the fifth year.
The crux of the NCEUS proposal is to demonstrate that the provision of a minimum level of social security to unorganised workers (a universal provision) is financially and administratively feasible. But more than this, the NCEUS proposal seeks to establish a claim (a right) of the unorganised workers to a minimum level of social security protection, largely through state assistance.
This rights based initiative is in accordance with the aim of the Indian Constitution, as well as international practice and consensus regarding social security as a legal and human right. It is also related to the dramatic extension of rights-based social security initiatives in India in recent years, catalysed by civil society pressure, but in many cases also supported by governments in power and by political parties across a wide spectrum.
The NCEUS approach is based on the understanding that a rights-based approach has some clear-cut implications. First, such an approach can create some pressure on the state and other obligation holders to follow concerted strategies which can lead to the fulfillment of these rights. This includes higher allocation of resources to the relevant areas. Second, the creation of rights and specific entitlements might lead to a greater demand, and encourage a process of greater participation as also give greater voice which is otherwise lacking among dispersed and poor social groups. Third, this might lead to greater accountability of the providers and increase the efficiency of delivery, a crucial issue in countries where governance structures are weak. Fourth, a rights-based approach may also help to overcome opposition of the dominant groups which are inimical to the expansion of social opportunity.
The Indian experience on these issues so far is positive, although mixed. For example, as Dreze points out, the broad recognition of elementary education as a fundamental right of every child has contributed to the relatively rapid expansion of schooling facilities and school participation in the 1990s.28 This is in contrast with the corresponding situation in the field of health care which has still not been recognized as a basic right and which continues to suffer from an intensification of state abdication in this field.29
The legislation on guaranteed employment in rural areas has also elicited a specific commitment from the state in terms of allocation of financial resources. The issues of increased demand, accountability, efficiency and voice are more difficult to comment upon, but certainly in specific areas, some of the states appear to have responded to pressures from below, and introduced innovations in service delivery which may not have happened to the same scale in the absence of the rights-based initiatives.
Amajor obstacle in expanding social opportunity is the supposed inability of the state to meet the fiscal requirements. However, the state constantly makes choices for both revenue and expenditure in terms of its priorities. By one token, tax exemptions (mainly on corporate income tax and customs duty) amounted to 52% of tax revenue collected in 2004-05.30 A similar approach can be seen in the creation of Special Economic Zones. As the ILO powerfully points out, in the current climate of globalization, moves that promote labour rights and social security are often seen as being inimical to the interests of growth.31 The NCEUS’s advocacy of a rights-based approach to social security also arises from the understanding that such an approach can help to create a different understanding of the relationship between social security and development, and leverage and commit financial resources for social security.
We are arguably in a situation where, while on the one hand, the pattern of growth accentuates insecurities, on the other, growth no longer remains a necessary or sufficient condition for achieving social security. Perhaps the only answer lies in greater democratisation at the national and international levels, which can sustain the move to social security as a right.
1. Abram De Swaan, In Defence of the State, Polity Press, Cambridge, 1988; International Labour Office, Social Security: A New Consensus, Geneva, 2001.
2. Jean Drèze and Amartya Sen, India: Development and Participation, Oxford University Press, New Delhi and Oxford, 2002. Also, J. Dreze and A. Sen, Hunger and Public Action, Clarendon Press, Oxford, 1989.
3. International Labour Office, Social Security: A New Consensus, Geneva, 2001.
4. International Labour Office, World Labour Report, Geneva, 2000.
5. Dharam Ghai, ‘Social Security Priorities and Patterns: A Global Perspective’, DP/141/2002, Education and Outreach Programme, International Institute of Labour Studies, Geneva, 2002.
6. J. Dreze and A. Sen, op cit., 1989, p. 1.
7. ILO, op cit., 2001.
9.For example, Paul Streeten, ‘Human Rights’ in Franciscans International, The Right to Development: Reflections on the Right to Development – Reflections on the First Four Reports of the Independent Expert on the Right to Development, Geneva, 2003.
10. Dharam Ghai, op cit., 2002; Jean Drèze and Amartya Sen, ‘Public Action for Social Security: Foundations and Strategy’, in E. Ahmad, J. Dreze, J. Hills and A. Sen (eds.), Social Security in Developing Countries, Oxford University Press, New Delhi, 1991.
11. Dharam Ghai, ibid.
12. Arjun Sengupta, ‘The Right to Development as a Human Right’, Economic and Political Weekly, 7 July 2001.
17. Amartya Sen, Development as Freedom, Knopf, New York, 1999, p. 8.
18. A. Sen, ibid., A. Sengupta, op cit.
19. Siddiq Osmani, ‘Some Thoughts on the Right to Development’, in Franciscans International , The Right to Development: Reflections on the Right to Development – Reflections on the First Four Reports of the Independent Expert on the Right to Development, Geneva, 2003, p. 38.
20. Paul Streeten, op cit.
21. S. Osmani, op cit., pp. 39-40.
22. National Commission for Enterprises in the Unorganised Sector (NCEUS), Social Security for Unorganised Workers, New Delhi, May 2006.
24. Jean Drèze and Amartya Sen, op. cit., 2002.
26. Jean Dreze, ‘Democracy and Right to Food’, Economic and Political Weekly, 24 April 2004, p. 1723.
27. NCEUS 2006, op. cit.
28. Jean Dreze, op cit., 2004.
30. Centre for Budgetary and Governance Analysis (CBGA), ‘Whose Side Are You On, Mr. Finance Minister?’ Mimeo, New Delhi, 2006.
31. International Labour Organisation, Economic Security for a Better World, ILO Socio-economic Security Programme, Geneva, 2004.