I recently returned to Hong Kong from a trip to India, where I participated in three workshops during 12-18 July 2014. The first was a consultation hosted in Delhi by the UN Special Rapporteur on the Right to Health, Mr Anand Grover. One of the consultation’s aims was to discuss the content of General Comment 14 of the Committee on Economic Social and Cultural Rights in relation to the responsibility of non-state private actors regarding the right to health. The second was a workshop on business and human rights issues held in Bhubaneshwar, Odisha, an Indian mineral-rich state. This workshop was organised by the Business and Human Rights Resource Centre in collaboration with University Law College, Utkal University. The third workshop was organised in Delhi by the Centre for Policy Research and the NYU Law School’s Centre for Constitutional Transitions to discuss draft contributions to the forthcoming Oxford Handbook of the Indian Constitution. This four-day workshop – in which leading constitutional law scholars, lawyers and judges participated – examined numerous aspects of Indian Constitution in a comparative and inter-disciplinary manner.      

Apart from the Odisha workshop, the other two took place in the capital city of India with no field visits or ‘direct’ interactions with the mostly severely affected stakeholders. As I found out, choices made as to the location and the process of engagement had a bearing on the workshop outcomes. Although all three workshops focused on different issues, certain common themes emerged, which I felt sharing with wider audience. Hence this short piece!

First of all, I was struck by the fact that the agenda for law and policy reforms or regulation for matter is invariably set from the top and by the elites (economic, social, political, legal or intellectual). Even when people from the bottom of the pyramid are consulted, their inputs are solicited within the framework already set. The grassroot consultations are seemingly designed more to accord legitimacy to the unrepresentative and hegemonic nature of norm creation, than to identify issues/problems bottom up and then look for solutions. 

One of the consequences of the ‘top down’ agenda setting is that a significant under-privileged section of society has no effective voice in issues affecting them, even within a democratic set up. The current model of economic development is a case in point. Tribal people or farmers – which might consider land as part ‘self’ and thus inalienable – are merely consulted as part of an impact assessment process which is often designed to secure a green light for projects. But they rarely decide whether and which development projects they would like on their land or in their vicinity. Nor do they get to taste the fruits of factories and plants planted on their land.

Let me provide a concrete example. GMR Kamalanga Energy Ltd. (GKEL) is running a coal-based power plant at village Kamalanga in Dhenkanal district of Odisha. For this plant, Odisha Industrial Infrastructure Development Corporation (IDCO), a public sector enterprise, acquired about nine hundred acres of private agricultural land and leased it to GKEL. What I found most paradoxical was that the very farmers whose land was acquired to build this 1,400 megawatt power plant had no electricity. Should GMR be not obliged to ensure an uninterrupted supply of electricity at a subsidised rate to the displaced farmers as a basic minimum?  

The role played by the state in this power project brings me to the second common theme: state agencies being part of the problem in the quest to realise human rights. Instead of protecting the human rights of vulnerable people, various state agencies are often blinded by the allurement of cumulative development and take the side of powerful companies to safeguard their commercial interests. Drawing an analogy with Gandhi’s three monkeys, it can be said that state agencies generally do not see, hear about or speak against corporate human rights abuses. While police may use violence against peaceful protesters demanding fulfilment of their human rights or contractual promises, the administrators may turn their back to complaints made by the affected community. Courts are either not accessible to the disempowered sections of society or they are unable to ensure compliance with their orders. Complaints to supra-state institutions may also not deliver any concrete benefits to the affected community, as illustrated by how the complaint process before the World Bank’s Compliance Advisor Ombudsman (CAO) has unfolded so far in relation to the International Finance Corporation’s funding to the GKEL project.

It will be fair to say that both (international) human rights law and constitutional law have so far not been able to control the state’s abuse of power resulting in human rights violations. They are likely to struggle more in taming powerful corporate actors which operate at transnational level and rely on a multi-layered supply chain to offer products and services globally. At the right to health consultation, a few human rights specialists questioned the necessity (as well as the feasibility) of an international legally binding framework to deal with human rights abuses by companies, even in situations where recourse to state agencies does not bring any relief to victims. Nor did I feel comfortable by the fact that the best constitutional law brains at the Oxford Handbook workshop were mostly preoccupied with controlling public power, rather than broadening the scope of their inquiry to private corporate power or the cocktail of public-private power.         

The third and final common theme that I noticed is that almost everything links to ‘business and human rights’ in a free market economy. For instance, it is inconceivable to talk about the right to health without talking about corporate behaviour: whether it is the price of medicines, access to health facilities, clinical trials, drug patents, or the availability of health insurance, what companies do (or don’t do) have a direct bearing on the right to health. The same could be said about constitutional questions which earlier mostly engaged the conduct of public authorities. The application and extension of affirmative action measures to the private sector is one example. The corporate reliance on the state’s commitments under bilateral investment agreements (BITs) as a limitation on what the government can do to realise fundamental rights under the constitution is another.      

Note: Business & Human Rights Resource Centre is grateful for Dr. Surya Deva's assistance with and participation in the workshop and field visits in Odisha.