Rites To Our Constitutional Rights?

Rites To Our Constitutional Rights?

Ganga Prasad G. Rao http://myprofile.cos.com/gangar

Call it human nature, but we generally accept the system in which we grow. That includes our religion, our surroundings and its racial mix, our family, our institutions, political system and the constitution. Not surprisingly therefore, we Indians broadly agree with our constitution, with its basic tenets and the rights it bestows upon us. Our socialist legacy has however brought up generations of citizens who have come to expect from the government many constitutional rights that one should fight for a life, if not a war as our freedom fighters did. These 'wants' should be viewed in the broader perspective of the struggle for constitutional rights in developed countries – albeit of a different nature. Thus, while Indian political and social groups seek support for proclamation of the right to livelihood, right to education, right to equality in outcome (as opposed to equal opportunity), right to subsidized electricity (oh, excuse me, I grew up on it!), right to potable water, or the right to free or subsidized transport, elsewhere in developed countries, the emphasis is on right to self­protection (euphemism for right to carry and use arms), suicide, privacy, healthful environment, peace or abortion(1)

But what is a 'right'? Human necessities are not rights, nor are our ideals, or for that matter, desires. A right is a constitutionally protected and enforceable contract with all citizens that guarantees recourse to law should they be denied their opportunity to engage in certain activities or to possess legal property in pursuit of livelihood, protection of self and family, and enjoyment of life. All rights impose a cost of monitoring and enforcement on the government and provide perpetual benefits to citizens. Rights are considered so fundamental and necessary that a nation implicitly guarantees to protect and provide them at any cost. Unfortunately, the constitution has little to say regarding the degree to which or the time frame within which to provide the rights (given that the rights are incompletely available or enforced to start with). Perhaps those who penned the constitution did not anticipate how these rights would be manipulated by political parties in their mad, unquenchable thirst for power. Even more unfortunately, our jurists apparently do not always appreciate the economic and political fallout of enforcing these rights. At other times, the courts are inexplicably silent despite repeated and egregious denial of basic rights to oppressed citizens. In an overpopulated world teeming with hunger, unemployment and budgetary deficits, no government can afford to protect all rights of every person ­ born and unborn. This is particularly true if the rights are costly to enforce and obtain little benefit to the society. Then why the sham? Why do Supreme Court judges interpret the constitution as if we live

1 www.hrcr.org

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in a world of plenty? Why do they issue edicts on the government to provide schools, water and sewerage without regard to the mandate they have or have not received from the public, and that too by a certain deadline when they are aware of the scale of investments required vis­a­vis the size of the budget and the state of public finances? How then should we interpret our constitutional rights? Must the Supreme Court always uphold the rights enshrined in the constitution? Must these rights be sacrosanct regardless of how the economy is doing, regardless of peoples wishes as reflected in the government they elect to power (presuming the elections, composition of the electoral colleges and the votes of elected representatives substantially reflect the peoples' preferences)? Must the constitutional rights be upheld despite evidence that citizens may be willing to trade them off for certain durations in return for other privileges? These are questions of deep import that bear upon the long­run future of the country and its people.

Any economist worth his salt will opine that all free goods are consumed inefficiently. That is, consumers will generally over­consume, store and waste goods and services provided free to them. In fact, free goods will be consumed to the point at which their marginal utility is zero (ie, until the person is 'sated'). Now consider that rights are but 'legalese' for 'guaranteed free goods, services or options' held and enforceable by members of the public. It doesn't take a rocket scientist to deduce that rights too will be over­consumed – especially if they happen to be luxuries otherwise! Consider the 'right' to safe drinking water and the right to vote. Every country aspires to provide safe drinking water to its citizens. Yet, most developing countries are many decades away from the goal. The fact of the matter is that water is easily provided to large communities located near large water sources, albeit with some investment. However, providing safe drinking water to small, remote villages can be quite costly, since the fixed cost is distributed over less number of residents. From a national perspective, providing safe drinking water to the first few ten percents of dense, urban population may be relatively inexpensive. As villages turn remote and surroundings hostile, providing safe drinking water becomes incrementally more expensive, and turns prohibitively so for covering the last twenty or ten percent of the population that is dispersed sparsely. If per capita benefits are presumed constant across all degrees of coverage, it follows that net benefits are probably maximized well short of the hundred percent coverage that politicians and rights activists would like the constitution to guarantee its citizens. In other words, economic efficiency dictates a smaller public safe drinking water program than what the constitution guarantees. This is clearly no laughing matter. A judge who interprets the constitution literally and directs the government to expand drinking water program could do immense economic harm to the country.

The case of the right to vote is slightly different. Under our constitution, it is the political parties and politicians who exploit the right to vote provided to citizens. This exploitation takes many forms that include frequent mid­term elections, inferior candidates, 'unholy' alliances, multiple candidates and so on. Under these circumstances, citizens will generally under­value the importance of their vote because it comes at no price. More to the point, they have no benchmark to determine the value of the right to

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vote that they possess and hence will be unable to make intelligent trade­offs. The resulting inefficiencies materially reduce the credibility of the electoral process, the claim to representative democracy and indeed the performance of the government.

One may sneer at the brouhaha raised over a matter that has always been in the constitution. But in an increasingly inter­woven world where 'country risk' is an important determinant of international monetary flows, foreign investors, especially the big institutional investors and pension funds who invest over decades, look in to a country's constitution, judiciary and enforcement record as well as political promises. They examine a country's obligations to its people and the degree to which these rights can be enforced in its courts. A country that frivolously grants court­enforceable rights to its citizens without providing for the means to achieve, maintain or enforce them is likely to be viewed with suspicion by the international investor community on account of the financial obligations that courts can enforce on the government's budget. On the other hand, too few constitutional obligations could also be viewed negatively by investors who bank upon public expenditures by a pro­active government to sustain the industry and the stock market. Put another way, too many rights and the nation is mired in to financially impossible obligations of enforcing them all the time for all citizens at all places; too few rights and the nation is dragged in to anarchy and destruction (and perhaps into a low GDP growth trajectory!).

So, where lies the middle ground? What solutions are out there? One could perhaps subscribe to an international set of rights that are linked to the stage of development of a country. Poor nations with limited resources guarantee only the minimum, leaving the rest as optional campaign promises. Under such a system, different political entities would put forth different 'bill of rights' that suit their perspective, target class of voters, tax and budget plans (beyond those guaranteed under the constitution). A party on the left would stress the right to employment and public property rights while imposing tax on capitalists. A party backed by capitalists would stress private property rights and reduction in taxes. These rights could form part of election campaigns along with other poll promises, thus differentiating political parties unambiguously and facilitating a clearer electoral mandate from citizens as to the rights they wish for and the sacrifices they are willing to make before they vote at the ballot box. This system would ensure that no country subscribes to more rights than are sustainable even while providing for optional rights as determined by voter preferences on one hand and economic conditions as perceived by political parties on the other.

Alternatively, rights could be evaluated for their costs and benefits perhaps on a per­-capita basis and arranged in order of decreasing net benefits for any given distribution of income in the population. Those rights that pass the 'positive net benefits tests' for the income level of a particular country(2) can be implemented immediately because they are beneficial to that society. Other rights, including those that

(2) Since willingness to pay generally varies in some proportion with income.
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impose a net cost on the society, may be accepted in to the constitution over time as the country progresses economically and a willingness to pay for more rights rises (or a willingness to bear the burden of inefficient rights emerges). Thus, the positive net­benefits criterion serves as a threshold to determine the set of rights that should be constitutionally protected. It ensures that only those rights with broad­based support among the masses find a place in the constitution.

Finally, demands for various rights could be accepted based on monetary subscription to a program of 'compensated rights'. This system may be indicated when the demanded rights benefit only a narrow section of the nation's population. A system of 'compensated rights' segregates the population in to those who subscribe to it and those who don't, much like private insurance. Despite negating the very definition of 'rights' as understood, such as system could turn out to be free, fair, efficient and economically sustainable in certain contexts. Different population groups would subscribe to different compensated­rights programs based on how they value them and the 'price' at which those 'rights' can be bought. Such a system would be applicable to the right to privacy. Privacy is a matter of utmost concern to certain sections of the population, yet an universal right to privacy is difficult to legislate and enforce. A system that permits the population to self­segregate with regard to privacy along the lines of an economic threshold (the threshold being those who value the benefits of privacy higher than the fee to obtain the 'compensated right' to privacy) is potentially very useful to a country that cannot enforce the right over the entire population for reasons of feasibility, interest or intent. A variant of the above is applicable in the case of the right to vote. On account of the inefficiencies under the right to vote system discussed above, it is important that voting be transformed from a freely provided right to a privilege – a privilege that requires one to earn it, either by qualifying or by paying for it. Consider a (substantial) 'voting privilege fee' denominated in monthly income of voters. Voters will implicitly evaluate each candidate, his or her party and its electoral agenda against their now valuable vote. The immediate cost to the voter is the sum of the 'voting privilege fee' and the value of the time and effort spent on voting. The benefit is the monetary value (to self and society) of the probability that the chosen representative wins and, with his party, brings about desired changes. The decision involves maximizing expected net benefits across voting for alternative candidates. The 'voting privilege fee' system increases the probability that voters value their vote against the expected performance of alternative candidates and make rational decisions. In fact, voters retain the right to abstain should they find the candidates not worth the privilege they have paid for. (These results are contingent upon the type of electoral, political and government systems in place under the constitution). This is an example of how economic efficiency is improved by turning the constitutionally guaranteed rights in to privileges. To sum up, rights are a sensitive issue among the public since they involve subjective, sometimes emotional, matters that can be provoked or instigated by various entities for their private ends. Indeed, this explains why politicians pry upon and exploit them in their campaigns. Most governments,

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political groups and rights activists in developing countries have tended to ignore the economic, financial and legal implications of accommodating such demands, in the process risking large budgetary obligations, additional economic inefficiencies and heightened perception of risk in the community of investors that are not readily detectable or even understood. As we move in to the 21st century and as nations turn wealthier, rights activists are likely to turn more strident with their existing and new demands. No country, especially no developing country, can afford to enshrine new rights in to the constitution oblivious of the cost it imposes on the government. In this context, it behooves rights activists, lawmakers, jurists, politicians and other stakeholders to dispassionately examine the demands for various rights along with the economics­based resolutions offered and ensure that the country adopts a middle path that is publicly acceptable and economically sustainable.

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