India’s Turn to Rights-Based Legislation (2004–2014): A Critical Review of the Literature

Abstract

This article surveys the academic literature on rights-based legislation and critically discusses key findings and arguments that emerge from this literature. I conduct this survey and discussion in light of a wider understanding of the political economy of Indian democracy as resilient but limited in terms of substantial forms of redistribution and recognition in favour of subaltern groups. This contradiction has arguably become especially pronounced in the context of neoliberalisation, where, despite the active participation of the poor in electoral democracy, socioeconomic inequality has reached dramatic heights, and I discuss rights-based legislation as a response to this. In conclusion, I reflect on whether rights-based legislation has anything to offer an oppositional political project to break with this spiral of dispossession and impoverishment.

Keywords

India development democracy law rights-based legislation

Introduction

In Indian politics, the 10-year period from 2004 to 2014 is known as the decade of the United Progressive Alliance (UPA)—that is, a coalition government that brought together regional parties and parties representing lower caste groups and dalits under the leadership of the Indian National Congress with external support from the parliamentary Left. A defining feature of Indian politics during the UPA decade was the introduction of a series of laws that enshrined civil liberties and socio-economic entitlements as legally enforceable rights (Ruparelia, 2013). These laws include the Right to Information (RTI) Act of 2005, the National Rural Employment Guarantee Act (NREGA) and the Forest Rights Act of 2006, the Right to Education Act of 2009, and, most recently, the Right to Food Act of 2013 and the Land Acquisition, Rehabilitation and Resettlement (LARR) Act of 2013 (Das, 2013; Hasan, 2018). Crucially, rights-based legislation, as I shall refer to it in this article, responded, to a greater or lesser extent, to social movement projects that had crystallised in India during the 1990s. This was done in part by the establishment of the National Advisory Council (NAC) to serve as a forum for dialogue between the UPA government and leading figures in Indian civil society and in part by the inclusion of senior movement activists in the drafting of specific laws. Moreover, the drafting processes were shaped in significant ways by extra-parliamentary mobilisations and campaigns (Nilsen, 2019).

What exactly have these laws entailed in terms of vindicating rights for the citizens of the world’s largest democracy and in particular the poorest and most marginalised among them? How can we explain the turn to rights-based legislation by a political party that has been committed to neoliberal reform since the early 1990s? And what are the prospects of rights-based legislation in the context of the current political dispensation in which a resurgent Hindu nationalism constrains the space for progressive reformism and civic mobilisation? These are questions that I address in this article, which surveys the academic literature on rights-based legislation and critically discusses key findings and arguments that emerge from this literature. I conduct this survey and discussion in light of a wider understanding of the political economy of Indian democracy as resilient but limited in key respects: on the one hand, the institutional and procedural forms of liberal democracy have proven to be remarkably stable in India in the seven decades that have passed since Independence in 1947; on the other hand, Indian democracy has failed to deepen in such a way as to propel substantial processes of recognition and redistribution in favour of subaltern citizens (Jakobsen, Nielsen, Nilsen & Vaidya, 2018). This contradiction has arguably become especially pronounced in the context of neoliberalisation, where, despite the active participation of the poor in electoral democracy, socio-economic inequality has reached dramatic heights (Hasan 2014; Nilsen & Nielsen, 2016). In conclusion, I reflect on whether rights-based legislation has anything to offer an oppositional political project to break with this spiral of dispossession and impoverishment.

The Right to Information Act (2005)

At the core of the Right to Information Act of 2005 is the stipulation that any Indian citizen can request information from public authorities—defined as a body of government or an instrumentality of the state—and that these authorities in turn must reply to such requests within 30 days. It was the first piece of legislation to be introduced by the UPA regime and was promoted as a significant measure to curb corruption in public governance and administration (Naib, 2013).

The RTI Act has undoubtedly been a significant development in terms of state-society relations: indeed, I believe it would be safe to say that anyone who has spent time researching subaltern politics in India will be familiar with how RTI claims have become a standard part of activist repertoires of practice to hold an otherwise opaque state apparatus accountable to poor and excluded citizens (Webb, 2010). However, scholarly research on both its making and its working gives reason to doubt assertions celebrating the RTI Act straightforwardly as a grass-roots initiative that democratises state power. In terms of the making of the law, Prashant Sharma’s (2015) study is of singular importance. Sharma sets out to question a dominant narrative which, according to him, is based on the idea that, ‘the enactment of the RTI Act can be seen as a hard-won victory of ordinary people over a trenchant state’ (p. 59). This narrative, he suggests, is characterised by three silences that mar its accuracy: one, the impact of the social profile of the key actors involved in making the law; two, the role of the state in processing the demand for information and accountability; and three, the significance of the international context in facilitating the pursuit of claims for state transparency (p. 60).

Sharma’s study fills in these gaps in order to craft a more encompassing and complex narrative about the origins and making of the RTI Act. In terms of the social profile of central actors in the RTI movement, Sharma shows that the leadership of the National Campaign for People’s Right to Information (NCPRI) and the Mazdoor Kisan Shakti Sangathan (MKSS) was composed of an urban, upper caste, middle class, and very well-educated ‘elite fraction’ that was ‘highly networked with the ruling elite’ (Sharma, 2015, p. 68, 69). This made it possible, he argues, to mobilise both material and non-material resources with relative ease, and especially to gain access to both higher levels of the Indian bureaucracy and to the country’s political class in order to advocate for the demand for RTI legislation to be introduced (pp. 69–84).

At the same time, the character of the state was changing in significant ways. Among other things, affirmative action based on caste had democratised the Indian state as upper caste and middle-class elites departed from the higher echelons of its civil service in favour of the growing corporate sector. This in turn diminished elite investment in opposing state accountability, ‘as long as the demand for accountability would not be extended to the spaces it was to relocate to’ (p. 150). And finally, the global tide had long since turned in favour of introduction of laws to promote state transparency since the early 1990s. Transmitted as a normative ideal through international development discourses and NGO networks, transparency came to be seen as a hallmark of good governance in the post-Cold War era. Given India’s aspiration to power in the world-system, this created a positive motivation among political elites, Sharma argues, as RTI legislation could ‘shoulder the onerous responsibility of showcasing the vibrancy and depth of Indian democracy to the world’ (Sharma, 2015, p. 181; 2016).

Sharma’s argument, of course, casts doubt on any simple proposal that rights-based legislation is expressive of the deepening of Indian democracy. Significantly, it helps remind us of the more general fact that, whereas rights-based legislation was responsive to important oppositional demands from below, it simultaneously emerged in a conjuncture when many of the social movements that had emerged in the preceding decades had entered into phases of decline, abeyance, or professionalisation. As a result, laws to advance civil liberties and socio-economic entitlements were animated less by a subaltern groundswell than by the efforts of, ‘local NGOs and advocacy groups, drawing on transnational networks, led by middle class intellectuals’ (Harriss, 2011, p. 11). This does not necessarily lessen their significance, of course, but it does compel us to read this significance in terms of its full complexity and composite nature.

When we consider the literature on the use of the RTI Act in activism, similar constraints and limitations become evident. RTI activism, Martin Webb (2013, p. 365) argues, ‘[is] directed towards inculcating discipline and rationality in what we might term the everyday state and society in India’ by reinforcing boundaries between state and society and disembedding the state from everyday social relations. However, in their day-to-day uses of the law, RTI activists find themselves compelled, he argues, ‘to accommodate the mediated practices of the local state in order to carry out their work’ (p. 365). Using the RTI Act in its intended and ideal–typical form—that is, on strictly liberal democratic terms and conditions —has turned out to be very difficult for many among the urban poor who are not familiar with ‘individualised rational-legal processes of active citizenship within civil society’ (p. 383). This creates a need for activists to intervene, and in order for their interventions to be effective, they in turn have to rely on their specific knowledge of local power structures and the workings of the everyday state in particular sites. In this sense, then, the ability of the RTI Act to discipline the state by imposing rational bureaucratic norms according to its writ is, quite limited (p. 390).

Aradhana Sharma (2013) approaches RTI activism and its limitations from a different angle. RTI activism, she maintains, ‘works as a governmental mechanism … that forces people to engage and audit the state in its own idiom’ (p. 310). This in turn has compelled state officials to ‘use bureaucratic techniques to avert accountability and preserve anonymity’ (p. 310) in the face of such activism. This focus on formal procedures and statist language, she argues, goes against the grain of broader activist conceptions of transparency and excludes subaltern groups from RTI activism:

The law, enacted in the name of the ordinary citizen, furthers cultures of expertise and audit among the public that are empowering for some but not necessarily horizontal or inclusive. It governmentalises social life and fosters bureaucratised activism and procedural citizenship. (Sharma, 2013, p. 319)

Ultimately, then, both Webb and Sharma provide us with accounts of RTI activism which suggest that though the RTI Act responded to key demands for social justice, the law in itself ‘is not directed towards social justice per se’ (Baviskar in Webb 2013: p. 374). This does not entail that rights-based legislation is inconsequential for oppositional collective action, but it sheds light on ambiguities pertaining to the law as a terrain of subaltern organisation and mobilisation—an ambiguity which is central to much of the literature surveyed in this article.

The National Rural Employment Guarantee Act (2006)

Guaranteeing the right to work, the National Rural Employment Guarantee (NREGA), later renamed the Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA), is designed to improve rural livelihood security. The Act does so by providing at least 100 days of paid employment each financial year to households whose adult members volunteer to carry out unskilled manual labour (Khera, 2011; Manor & Jenkins, 2017).

The making of the NREGA has been studied intensively by Deepta Chopra (2011a, 2011b), who focusses in particular on the interaction between different actors and institutions within and beyond the state. Detailing the trajectory of the drafting process, she argues that in the confrontations between civil society groups, different ministries, and the Planning Commission, civil society groups adopted a twin strategy: ‘… on the one hand, they were transcending the boundaries of the state and negotiating changes within the bill, and at the same time, they appeared to be standing in opposition to the state, pressuring the state to fulfil its commitments’ (Chopra, 2011a, p. 98). At the same time, the UPA government was keen to push the bill ahead and sought the necessary compromises to do so. According to Chopra, this reflects a desire on the part of the political elite to appear as effective in living up to electoral promises and executing its governmental responsibility (pp. 98–102). The contentious negotiations that surrounded the making of the law were animated by the building of networks that ‘transcended the binary distinction between state and society, as they extended across affiliations and actor groups’ (Chopra, 2011a, p. 102; 2011b, p. 165). And precisely in these interactions, Chopra argues, the state was made to appear as an entity that was both responsible for and willing to meet the needs of India’s rural poor. This outcome illustrates ‘how the state pursues policy-making as a strategy for governing its population, and in turn, how the state itself gets reconstituted in the making of policy’ (Chopra, 2011a, p. 106).

Matthew McCartney and Indrajit Roy (2015) have noted that the introduction of the NREGA as a legally enforceable and universal right militates against the negative consensus that the prevalence of patronage politics and clientelism would prevent India from ever introducing a rules-based welfare policy. Moreover, they propose that its workings should be considered not just from the point of view of standard bureaucratic criteria—it is not possible, they argue, to attain a political and administrative system free from ‘inefficiencies and politically motivated interventions …’ (p. 6). The standard, rather, has to be the extent to which the law, both through its intended and unintended workings, has enabled the rural poor to live more dignified lives. The significance of this proposed standard in turn becomes clear in light of Roy’s fascinating ethnographic work (2014) on the forms of subaltern politics that has emerged around the NREGA (see also Roy, 2016, 2018). For the rural proletariat at the heart of this work, the NREGA provides an opportunity to connect with the state and to use the leverage that comes with this connection to circumvent durable inequalities and caste-based social discrimination (Roy, 2014, pp. 520–521). The fact that NREGA schemes are not subject to seasonal restrictions on the execution of projects means that the rural poor have access to alternative employment even during peak agricultural seasons, which enable them ‘to ignore claims on their labour by local agriculturalists’ (p. 530). Availing of this opportunity is in turn motivated in a desire ‘to turn away from economic relations that are embedded in hierarchical social relations’ (p. 533). Roy delineates the larger implications of this withdrawal from the reserve army of labour as follows:

By taking up employment with the NREGA rather than work on the cropping operations of local agriculturalists, erstwhile agricultural labourers assert their presence in the village, without having to adhere to the customary relations of subordination and social hierarchies. Theirs is a public presence—neither hidden nor subtle. (2014, p. 539)

This public presence, he argues, constitutes an ‘encroachment’ upon ‘socially authorized relations of subordination’ (Roy, 2014, p. 540). And such encroachments are intended ‘to facilitate survival and improvement’ (p. 540). As Roy (2018, p. 289) has argued more recently, there is an ‘inchoate antagonism between the poor and the rich’ underlying such intentions—regardless of the fact that these antagonisms rarely erupt into overt resistance and class struggle.

Work by other scholars has in turn demonstrated that the NREGA can be put to good use in organising and mobilising among subaltern groups. For example, Nandini Nayak’s (2012) doctoral research on activism around the NREGA in rural Madhya Pradesh shows how the law has made it possible for Bhil Adivasis to develop new forms of claims in relation to the local state apparatus. The making of ‘a language of justiciable rights in relation to employment works’ (p. 135) allows the movement to politicise the public work programmes that have been a part of the developmental project of the postcolonial Indian state since its inception by engaging in a strategy that combines bureaucratic and legal proceduralism with disruptive collective action. In a context of entrenched chronic poverty, this strategy has had a considerable and very tangible impact on local livelihoods: ‘As a result of the NREGA works, people could for the most part earn a liveable wage within their village. Village natural resources were conserved by NREGA work, which then fed into supporting their own livelihoods too’ (p. 165). Beyond the obvious point that NREGA provides much-needed incomes to bolster Bhil livelihoods, the fact that the law posits employment as a right means that public work can no longer be doled out by local state actors at will to reinforce relations of patronage (Nayak, 2016). Neither Nayak nor Roy’s work, however, should be read as an unequivocal testimony to the capacity of the NREGA to tip the scales of power in favour of subaltern groups. Drawing on extensive research in Karnataka, Jonathan Pattenden (2017) argues that despite having such a potential, the performance and impact of the law are highly sensitive to local power differentials. In some contexts, the dominance of capitalist farmers in relation to the local state has made it very difficult for agricultural labourers to press for the NREGA, ‘to be implemented in such a way as to redistribute power and resources in their direction’ (p. 131).

This work ultimately affords insights into key dimensions of rights-based legislation that were intimated in the literature on the RTI Act surveyed in the previous section. Through Chopra’s work it becomes clear that the contentious negotiations that shaped the policymaking that gave rise to rights-based legislation cannot be understood in reductive terms as either elite ploys or subaltern advances. Rather, the law emerges as a terrain upon which intricate hegemonic processes unfold: on the one hand, subaltern movements stake claims by holding state actors accountable to state ideologies; on the other hand, political elites articulate concessions to such claims that will enable them to retain popular legitimacy and consent. And from Roy and Nayak we learn how rights-based legislation can in fact be appropriated for oppositional ends—more, arguably, than in the case of the literature on the RTI Act. The fact, as is brought out in Pattenden’s work, that the effectiveness of such appropriations depends on local configurations of class and caste power serves as a useful reminder that our analyses and deliberations about rights-based legislation must be highly sensitive to context, conjuncture, and contingency.

The Forest Rights Act (2006)

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006 acknowledges the rights of forest-dwelling communities in India, the vast majority of which are adivasis, to land and other resources in forest areas. The Act is significant as it reverses the thrust of previous forest legislation in India, which effectively criminalised customary use of forestland for agricultural cultivation and other purposes (see Bose, Arts, & van Dijk, 2012).

There are, by now, a number of accounts of the making of the Forest Rights Act that map out the dense interplay between different actors in the drafting process (Kashwan, 2017, Chapter 5; Kundan & Kerr, 2012; Vaidya, 2014). Among these, Anand Vaidya’s doctoral research stands out due to its perceptive analysis of activist strategies in relation to the drafting process. As Vaidya notes, activists from the Campaign for Survival and Dignity (CSD) managed to persuade leading figures in the UPA government that their activists in collaboration with the Ministry of Tribal Affairs should draft the new law. This provided an unprecedented opening for framing the claim for land rights in very specific ways, which Vaidya interprets through the notion of ‘word traps’ (Vaidya, 2014, p. 118; Vaidya, 2016). Through their participation in the drafting process, he argues, CSD activists took care to construct a legal text that resonated with the many ‘moralized narratives’ (Vaidya, 2014, p. 119) of Adivasi dispossession that circulated in India’s public sphere—in large part as a result of many years of mobilisation around forest rights by subaltern movements (Gopalakrishnan, 2017). In doing so, they took care to insert ‘words and phrases that would allow [the law] to be interpreted not according to its strict legal provisions but as the redemption or culmination of moralized histories’ (Vaidya, 2014, p. 119). In this sense, Vaidya argues, the Forest Rights Act was written ‘in order to be interpreted not only in bureaucracies and courts, but by organised groups of landless forest dwellers—and to aid in organizing such groups’ (p. 119). This was achieved in the face of stiff opposition, throughout the drafting process, from the Ministry of Environment and Forests whose representatives consistently evoked a conservationist ethic against the activist concern with land rights. As Vaidya notes, it is an achievement that is inscribed, first and foremost, in the Preamble of the Act, which states that dispossession constitutes a historical injustice has been committed against Indian forest dwellers. This formulation ‘enabled the law to be embedded within an extra-legal chronotope, a historical narrative that contained its own moralized rules through which the law could be interpreted’ (p. 138). In unearthing the insertion of word traps that enable collective action, Vaidya’s analysis sheds crucial light on the subtle dynamics of lawfare as an activist strategy and the ways in which participation in the making of laws can be used for oppositional or subversive purposes.

Assessments of the working of the law tend to point out a number of shortcomings. For example, Kumar, Singh, and Kerr (2015) have noted that implementation of the Act and in particular the recognition of community land rights have only happened in a substantial way in Maharashtra, Odisha, and Gujarat. Elsewhere, effective implementation of the law and its ‘more radical community rights provisions’ (p. 7) is being constrained by the opposition of powerful vested interests in the forest bureaucracy (Kumar, Singh, & Rao, 2017; Springate-Bagsinski, Sarin, & Reddy, 2013). However, much like in the case of the NREGA, shortcomings in implementation should not be read as a straightforward index of failure. Vaidya’s (2014) doctoral study is once again useful in driving home this point. Focussing on rural Uttar Pradesh, his analysis shows how the Forest Right Act can be put to use in ways that fuel radical oppositional imaginaries. In the case that Vaidya investigates, a community of landless Adivasi and Dalit labourers organised by left-wing activists decided to occupy forestland and establish their own village on this land in order to lessen their dependence on Yadav landowners for work. The local movement marshalled the provisions of the Forest Rights Act to justify the occupation of forestland (Vaidya, 2014, Chapter 4). The land occupation faced a substantial backlash and was ultimately razed to the ground in an attack by a mob led by landed Yadavs from a neighbouring village. However, the significant point here is that this initiative was made possible as a result of a radical reinterpretation of a legal text, which in turn signifies that the Forest Rights Act ‘presents the possibility of a reorganization of property and labour relations … across the 23 per cent of India’s land area that is owned by the Forest Department’ (p. 170). I explore the ramifications of this insight in the concluding remarks below.

Rights-Based Legislation under UPA-II (2009–2014)

Whereas the first five years of the UPA regime was marked by the introduction of three landmark laws, its second term witnessed fewer such advances, with only two new laws—the Right to Food Act and the Land Acquisition, Rehabilitation and Resettlement Act—being passed towards the end of the period, in 2013.

The making of the Right to Food Act has been analysed in detail by Shareen Hertel (2014, 2016). What emerges from her work is above all a tale of frustrated activist ambitions. The campaign for the right to food, which developed out of the Rajasthan-based campaign for the NREGA, articulated ‘a radical demand for legal recognition of the right to food as intrinsic to the right to life, while seeking implementation of the right in practice through reform of existing government programmes’ (Hertel, 2014, p. 73). As Hertel notes, the campaign focussed on the responsibility of state actors to respect the Right to Food by implementing public programmes in a transparent and efficient manner. In particular, the campaign focussed on identifying and assigning blame for specific cases of bureaucratic malpractice that resulted in malnutrition and hunger deaths:

The RTF campaign has thus employed a strategy of legal claims-making that equates violation of the right to life with a lack of access to public food. This radical legal claim-making strategy is coupled with a reformist implementation strategy that focusses on improving the delivery of food through public programmes not as a matter of charity but as a matter of rights (Hertel, 2014, pp. 76–77).

From 2009 onwards, the campaign was concentrated on engaging with the process of policy reform set in motion by the UPA which had made the fight against hunger a key plank in the agenda for its second term in office. RTF activists advocated for universal coverage under the new law, for access to diverse types of food, for food to be provided in sufficient quantities to meet basic needs, and for food to be allocated in kind, rather than through cash payments (pp. 86–87). However, in contrast to other forms of rights-based legislation such as the Forest Rights Act, and despite the fact that key RTF activists sat on the NAC during the drafting of the new law, it became clear by the autumn of 2012 that ‘the scope and content of the proposed reforms fell far short of what the RTF campaign had hoped for’ (p. 87), especially in terms of its scope and coverage. As Hertel (2016) argues elsewhere, this raises thorny questions about how to expand the normative content of the right to food in India from its current circumscribed character.

The new Land Acquisition, Resettlement and Rehabilitation (LARR) Act that was passed in 2013 differs in some respects from the other laws under discussion as the NAC did not play a central role in its making. Nevertheless, the LARR Act must be understood as part and parcel of the UPA’s project for rights-based legislation: it responded to long-standing campaigns by social movements for legal reform in this field, and, crucially, it did so through a range of concessions to the key demands that have been made through these campaigns.

In our joint work, Kenneth Bo Nielsen and I (Nielsen & Nilsen, 2015) have developed an analysis of the hegemonic politics that animated the making of the LARR Act. As is well known, dispossession of land has been a major source of agitation and struggle in India since the 1980s. Following the neoliberalisation of the Indian economy since the 1990s, such conflicts have come increasingly to be fuelled by state acquisition of land for private investments in mining and special economic zones. As is evidenced by several partly successful land struggles, Indian political elites are not entirely immune to pressures generated by such convulsions, which clearly have a capacity to destabilise the trajectory of neoliberal reform. It is against this backdrop, we argue, that the UPA developed a legal regime that was intended to contain opposition and construct the basis for subaltern consent to the neoliberal accumulation strategy that was at the core of its economic policy (Nielsen & Nilsen, 2017). To bring about such a resolution, the LARR Act was made to hinge on a two-pronged move: on the one hand, it introduced seemingly generous provisions for resettlement and rehabilitation; on the other hand, it widened the definition of the public purpose for which the state can acquire land. The first part of this move was a clear concession to the long-standing demands of social movements that have challenged forced displacement. In contrast, its second part worked so as to constrain the political space in which social movements can articulate oppositional projects that challenge the form and direction of development in contemporary India (Nielsen & Nilsen, 2015, pp. 8–12). Drawing on Gramscian perspectives, we argue that ‘for political authorities, lawmaking serves as a modality through which a “compromise equilibrium” … can be established between dominant and subaltern groups, which ultimately enables the long-term advance of neoliberal restructuring’ (Nielsen & Nilsen, 2017, p. 131).

Both the Right to Food Act and the LARR Act were passed towards the end of the UPA regime, and as a result of this, there is also a dearth of literature on the workings of these two laws. However, after the 2014 elections, the LARR Act became subject to an attempt by the Modi regime to undermine some of its key provisions. Motivated in no small part by a desire to address corporate discontent with the law, the Modi government sought to pass a revised LARR Act in 2015, but this ultimately foundered in the Rajya Sabha where the NDA does not have a majority. A Joint Parliamentary Committee (JPC) has been set up to deliberate on the proposed changes to the 2013 Act, but it is still unclear what the outcome of the JPC’s work will actually be (Nielsen & Nilsen, 2017, pp. 143–144). To bypass this deadlock, the Modi regime has resorted to encouraging the introduction of legislation at state level that undercuts the provisions of the 2013 LARR Act (Kohli & Gupta, 2017).

Concluding Remarks

The attack on the 2013 LARR Act is only one of many instances of how the Modi regime has sought to reverse and dilute the rights-based legislation that was brought in by the UPA. Whereas it has not proved possible for Modi to do away with popular laws such as the NREGA through full frontal assaults such as the ones launched against the LARR Act in 2015, the current government has persisted in its attempts to undermine the new legal regime through reduced funding and other forms of subterfuge (Gatade, 2017; Lahariya & Paliath, 2018). This raises questions, and difficult ones at that, about how progressive actors in civil society and political life should relate to the legacy of rights-based legislation left behind by the UPA regime. As the review above has hopefully made clear, there is a fundamental ambiguity at play in this question: on the one hand, rights-based legislation was first and foremost intended to serve as a vehicle that would enable the party to win popular support for a hegemonic project that ultimately attempted to deepen the neoliberalisation of the Indian economy; on the other hand, rights-based legislation has brought some significant concessions to the claims and demands of subaltern movements, and in some cases, the new legal regime has also pried open new spaces for organising and mobilising resistance (Nilsen, 2018). How can progressive forces strike a strategic balance in relation to this ambiguity in an increasingly authoritarian context?

As I have argued elsewhere, the fact that rights-based legislation was put in place to enable the UPA to engineer a compromise equilibrium between subaltern and dominant groups in order to stabilise the long-term advance of neoliberalisation does not constitute an inherent limit to the oppositional potential of rights-based legislation (Nilsen, 2018). As critical legal scholars have pointed out for some time, laws are fundamentally indeterminate and can be given ‘radical new meanings’ (McCann, 1994, p. 284) through mobilisation from below. Indeed, Vaidya’s work on oppositional uses of the Forest Rights Act in Uttar Pradesh clearly demonstrates that radical interpretations of legally recognised can destabilise the balance of power underpinning existing hegemonic formations. In sum, what this means, is that the question as to whether rights-based legislation can be made to serve counterhegemonic ends or not depends, most fundamentally, on how this new legal regime is appropriated by progressive social movements and political parties—both in determinate locales and at a national scale.

For law to have a genuinely counterhegemonic potential in the current context in India, it has to be embedded into a wider strategy of what Andre Gorz (1967) referred to as ‘non-reformist reform’—that is, an oppositional strategy that aims to augment autonomous power from below in order to achieve fundamental political and economic changes. Whereas conventional reformism seeks to make it possible for subaltern groups to participate in implementing policy, non-reformist reform is oriented towards advancing their ability to challenge the very premises upon which dominant groups develop and impose policy regimes. In order to do this on the terrain of the law, it will be necessary to organise and mobilise around more radical interpretations of legally recognised rights in order to decisively shift the balance of power that sustain existing hegemonic formations in India, as well as to further expand the register of rights-based legislation to encompass more fields of social and economic life. Such a strategy, I submit, could be instrumental, not just in bringing together scattered resistances against the Modi regime but also in wresting away control of the agenda of rights-based legislation from the Congress as a quintessentially bourgeois political force.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The author received no financial support for the research, authorship and/or publication of this article.

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