Seminar Baxi

Seminar, #511, March 2002.

Sense and sensibility U P E N D RA B A X I

I AM in no sense of that word an ‘expert’ in the area of population planning. This disclaimer is not ritual modesty on my part (modesty being no longer a post-modern public virtue!). I remain aware that much of what I have to say will appear superficial to policy-makers and specialists in the area; indeed some of them may feel outraged by what I say. But outrage need not be their monopoly. I, for one, feel deeply affronted by the fact that much of the official and scholarly discourse is devoid of concern with the logic and languages of human rights. My principal concern, in this paper, is to locate the place of rights in population policies of the Union of India and several states. By ‘place of rights’, I designate the following: (a) Rights as markers of policies: In which ways, if at all, policy enunciations recognize, respect and reaffirm human reproductive rights? (b) Rights as constraints on policy implementation: In which ways are the policy formulations self-consciously constrained by human rights obligations? What disincentives are provided for rights violating administrative and legislative conduct?

(c) Rights as resources for policy: How are processes and structures of policy implementation socially legitimated by recourse to specific regimes of human rights? (d) Rights as orderings of effective legal redress: How do the policies provide for access to remedies for violation of human rights in population planning and implementation? (e) Rights as resources for collective action: In what ways do the policy enunciations make space for collective social action in terms of its political legitimacy to mobilize default and discontent with implementation? The ‘place’ of human rights necessarily depends on our conceptions about the space of human rights. In an important, even constitutive, sense the space is instituted by the international discourse generally concerning women’s rights as human rights and by specific international instruments enunciating the human right to ‘reproductive self-determination’, and especially the human reproductive rights. The national constitution, laws, policies and administration determine their place. Juridical geographies mark the distinctive processes of translation of spaces into places for human rights.

In the Indian policy discourse, agonized over the judicious mix of consent and coercion in the politics of fertility control, human rights languages play a negligible role indeed. The spaces of international human rights are not translated into places for constitutional or legal rights; their translation into languages of constitutional

human rights is at best a wayward process, requiring considerable feats of social and judicial activist cooperation, not as yet fully in sight. The inelegant combination of constitutional ideals and political experience during the fifty years of the Indian Republic has failed to produce a charter of reproductive human rights. All we have are benign statements of state policy. And these in real life terms end up with social reproduction of rightless peoples. Policy-makers as well as human science specialists are not persuaded, on available evidence, by the rights approach. The reasons for this ‘benign neglect’ of rights vary. Malthusians and neo-Malthusians are wary of rights approach, in general, because they perceive ‘overpopulation’ as a social scandal and menace; the hard-core among them are not perturbed by excesses in ‘family planning’ programmes and measures implementing these. In their view, ‘man’-made policy disasters are as welcome as ‘natural’ disasters that in net effect reduce population levels.

The more sophisticated among these may well argue that reduction in population levels may serve better futures for human rights. Theirs is a thesis that may be described in terms of ‘carrying capacity’ of human rights. This implies that a stable downsizing of fertility rates is a prerequisite for effective exercise and enjoyment of human rights; a runaway growth in population, in this view, affects the overall levels of actual enjoyment of human rights. Humane policy-makers and social theorists, however, remain concerned with coercive state policies. They favour elements of

consent and cooperation over coercion. The argument here is basically that coercion is counterproductive to the aims of the policy; persuasion, rather than force, is a more effective way of achieving policy purposes. This instrumentalist perspective manifests a kind of ‘rights utilitarianism’. It risks the logical conclusion that unrestrained force may be justified when shown to produce fertility decline. The logical risk is averted by the belief that it is unlikely that state coercion by itself will ever produce such results in the long term. Second, these discourses emphasize that a regime of human reproductive rights is not decisive for population ‘control’ or ‘planning’. Other states of affairs like education, status of women, reproductive technologies, are more crucial than enunciation of human rights. And if rights are relevant at all, these are so only as effective instruments of policy. Third, this instrumentalist view of rights also relies, implicitly, on the state of rightsadministration in India. Access to justice remains unavailable to large masses; it is costly and cumbersome; outcomes remain unpredictable and its processes labyrinthine. In sum, what we need is a rights-oriented policy and rights-sensitive administration, not enforceable rights, legal or constitutional, that fall within the province and function of adjudication. This then, in essence, is what the Roman Law prefigured as the doctrine of parens patriae state or governance, or much the same thing as the mai-bap sarkar, which knows what is best. Humane folks then hitch their wagon to some notions of ‘good governance’. The languages of human rights, in this view, must yield to legal paternalism. Though somewhat useful as the

last resort when policies go egregiously wrong, languages of human rights may not provide the inaugural point of public policy discourse.

The dominant policy and social science discourse is thus not overly human rights friendly. Yet it is also the case that the Indian state participates in the international discourse on reproductive human rights, even to the point of sculpting, or accepting, international declarations such as the Final Document of the Tehran and Bucharest Conferences, the Cairo and the Beijing Programmes. Not merely this, India also assumes a regime of binding obligations by ratifying the Convention on Elimination of Discrimination Against Women (the Women’s Convention.) It also adopts and participates in the United Nations Population Fund programmes. However, India’s policies translate all this, including binding treaty obligations, merely in terms of policy. Very few reproductive human rights translate into constitutional and legal human rights. State policies, overall, remain human rights allergic. How is one to understand this, apart from the mindsets so far described? One reason, I think, is the ‘lobotomy’ of the bureaucratic and political mind performed by the practices of Indian federalism. Treaties and declaration of human rights are an aspect of the executive and legislative power of the Union (federal) governance. State legislators and bureaucrats are not involved in the process, and often choose to remain ignorant of India’s human rights obligations under contemporary international law. No one reading the spate of population policies in various Indian states, especially in 2001

(which we study below) can honestly entertain a contrary view.1

A brief rejoinder to anti-reproductive rights position: The threshold difficulty then is one of education of epistemic communities (policy makers and social theorists). They need to be persuaded that making effective place for human rights is both necessary and desirable. This at least entails two tasks: first, a critique of the above positions and second, a new approach to thinking about rights.2 I can here respond only skeletally to these tasks. The Malthusian and neo-Malthusian approaches manifestly violate the notion of equal worth and dignity of all human beings; in so far as they deny these values, these are not worthy of ethical analysis. Implicit in their approach is the notion that those human beings who ‘over breed’ ought to be treated with hostile discrimination; they forfeit their right to be human and to remain human. Such people belong to the unregulated realms of discipline and punishment. This is a ‘virtue’ easy of practice when the brunt of errant population planning policies is shifted exclusively to the Other, who do not belong to the epistemic communities of power and knowledge. Advocacy of criminalization of human fertility is also class and race based, and it is, with overwhelming clarity, brutally patriarchal. Such approaches, in turn, also render barbaric the exercise of power in state and civil society.

The argument from the ‘carrying capacity’ of human rights is somewhat attractive at first sight. Effective enjoyment and exercise of human rights (food, clothing, shelter, health, education, for example) is to a considerable extent a matter of matching resources to needs. When needs, normatively enshrined in human rights logics and languages, exceed resources, they remain unmet. The ‘carrying capacity’ argument then can be presented as a human rights reinforcing argument; population policies are desirable and necessary because these constitute a response to just anxieties concerning the enjoyment and exercise of human rights for future generations.

Expressed thus, with extravagant simplicity, the idea appears fairly persuasive, indeed to the point of justifying notions concerning ‘sustainable’ populations. Thus, a two child family norm, now vigorously espoused by Indian population policies, stands self-evidently justified by models of sustainable development. Difficulties, however, arise when we consider the question of exercise and enjoyment of human rights of the here and now human beings. These come to the fore rather acutely in the choice of means adopted to achieve this end. We consider these later in some detail. The means become morally repugnant when these elevate the politics of cruelty in population planning programmes beyond the reach of redress, rehabilitation and restitution, thus investing freely with impunity civic and political cultures the power to determine the human rights of the

existing, and membership of future, generations. The second and third arguments of the ‘humane’ folks must also be rebutted skeletally. The second argument makes the point that reproductive human rights romanticism overlooks the need for other inputs for the success of projects of population planning. If human rights strategists ignore the value of these inputs (education, economic development, gender equality, and medical technology), they invite the indictment of romanticism. However, responsible and responsive human rights communities also maintain that these inputs need to be rights-oriented.

It is only now being recognized, in the proposed fractured right to education (The Constitution 93rd Amendment Bill), that recognition of a constitutional, fundamental right to education is a historic necessity, as mere statements of national education policy have failed to achieve their purpose. Much the same can be said of the conversion of a pro-women policy into the language of enforceable rights. And we must not overlook, in a TRIPS dominated India, that advances in contraceptive and medical technology remain anchored in the trade-related, market-friendly human rights paradigm, where global corporations claim the very same order of human rights protection as hitherto available to individuals and associations of human beings.3 These other ‘inputs’ are also thus rights-based. The third objection also does not carry conviction. True, legal regimes for the

protection and promotion of human rights are shot through with the problem of bureaucratisation of rights; human rights are not always ‘delivered’ by legal administration and adjudication. This is an argument for effective law reform, not against enunciation of reproductive rights. The related argument from legal paternalism also fails in that rights-oriented and sensitive administration (good governance) presupposes the existence of regimes of rights in the first place!

What are reproductive rights? Human reproductive rights are best expressed in terms of ‘right to reproductive selfdetermination.’4 The range of interests to be protected by this right extend to reproductive security and sexuality, health, equality, and autonomous decision-making.5 I have elsewhere reviewed in some detail6 the existing international law enunciations of reproductive human rights. For the present it is sufficient to note that these entail respect for the right to reproductive self-determination; maternal health; elimination of gender-based discrimination in provision of health care; special protection of women from harmful conditions of work during pregnancy; child care, and related assistance to working parents; free nutrition, where necessary; maternity relief; and special provision of health care to rural women. These rights are guaranteed specifically by Article 3 of the CEDAW and also find a place in Cairo and Beijing Programmes of Action, as well as many prior international declarations.

I have explored in my UNFPA Lecture the lack of fit between these international human rights obligations and the National Population Policy, 2000 (pp. 19-22), which does not even once mention these rights! The Union Secretary of the Department of Family Welfare, Government of India, in his Presidential speech, assured us all (amidst just ovation) that the government will redress this lack either by a revised policy statement or through the work of the National Population Commission. Nothing seems to have happened in this direction (as far as I know) and the declarations of national and state policies have been, in the meantime, translated into veritable encyclopaedias of coercive population planning strategies. These strategies are not reproductive rights affirming. No fundamental right to maternal health care is affirmed or acknowledged in Indian law and jurisprudence. Provisions for maternity relief did not extend in any case to disorganized labour (the comforting class euphemism for this being unorganised labour). And now the structurally adjusted judicial activism of the Supreme Court gnaws at whatever little rights disorganized workers had under, for example, the contract labour law.

No legislative provisions exist for childcare and assistance to working parents. There is no principled recognition of the ‘elimination of gender based discrimination’ in provision of health care (as the excessive percentages of tubectomy, frequently reported, for example discloses). And less said the better when it comes to the question of protection of maternal health of rural women. ‘Free nutrition’, where necessary, is a far cry,

when even the incumbent prime minister of India finds it necessary to assert that the perennially starving in Kalahandi have assets, which media expose intentionally does not disclose! The legalization of abortion and partial prohibition of sex-based amniocentesis are perhaps the only legislative measures that approach respect for women’s reproductive rights; even here just anxieties remain concerning policy respect for women’s rights as human rights. The programme of disincentives: The National Population Policy, and its state cohorts or counterparts, remain suffused with important policy goals, without any articulation of responsibility for failure or malfeasance in implementation. These enunicatory regimes, however, impose a number of duties and (penal) sanctions on individuals for their failure to comply with the objectives of the policies. This asymmetrical distribution of responsibilities arises, I believe, because the policies have no place for human rights.

Let us first map out the regime of legal duties and responsibilities cast on individuals by these various policies: * The Uttar Pradesh policy states: ‘Those marrying before the legal age of marriage will not be eligible for any government job or for any job in government-managed organization.7 * The Madhya Pradesh policy, in addition to the Maharashtra type embargo on employment, also prohibits such people from contesting panchayat elections.8

* The Maharashtra policy has been backed by an executive order providing two-child norm as a criterion of eligibility for public welfare access, including programmes for the weaker sections, public distribution system, and government school education.9 * So does the Andhra Pradesh policy even on a wider scale.10 * All policies, almost uniformly subject allocation of financial resources to panchayti raj institutions to efforts at the achievement of two-child family norm. * All policies envisage more stringent legislation concerning registration of marriages and child marriages.11 * The Uttar Pradesh policy goes the farthest in encouraging and commending invasive contraceptive technologies, including injectible/implantable techniques.

Clearly, the notion that rights may set constraints on public policy such that derogations from them require the strongest justification is altogether absent from the ‘minds’ of our policy-makers. Deprivation of access to government jobs and offices and to panchayti raj institutions for those marrying before the legal age assumes capabilities in them than do otherwise; thus, the already rightless persons in civil society now become dvija (the twice-born) in the realm of state-based opportunities for survival and development. That such hapless persons may have Article 21 based rights to livelihood (in terms of judicial activist expansion of the right to life) and equality under Article 14 of the

Indian Constitution is of little or no pertinence to the framing of public policy. Much the same may be said were this prohibition to extend to parents or guardians participating in child marriages. To render them liable to dismissal from government employment, or to disentitle them from poverty alleviation programme benefits, may destroy whatever life chances they have of dignified livelihood. The impoverishing sequences of this policy, were it to be further extended cooperatively, or by legislation, to economic enterprises are indeed too catastrophic to warrant an imaginative excursus. The real life achievement of such a policy prescription would be to swell the ranks of the industrial reserve army, where casual labour stands condemned to contingent and cruel patterns of livelihood (without a semblance of secure entitlement of fair wage or welfare entitlements). This achievement relates more to the needs of the agents and managers of the current Indian globalization than to any human rights responsive and just population planning policy.

Much the same may be said concerning proposals or provisions that disentitle persons in violation of two-child norm from participation in grassroots governance through the panchayti raj institutions. It may be argued that this disqualification derives legitimacy from the constitutional ‘freezing’ of representation, now renewed till 2026, by the 91st Constitution Amendment. We know, or should know, that the connection between the implementation of family planning strategy and the allocation of seats to the national Parliament is too tenuous to be

taken other than as a smokescreen for meaningful political considerations that address not fears about ‘population’ but ‘political’ control.12 Moreover, if institutions of grassroots governance have value as forums of public pedagogy, such disenfranchisement is counter productive. Policy enunciations on this count simply shun reasoned discourse, installing in its place manufactured selfevident political truths. The linking of financial resources of panchayti raj institutions to the effective promotion of the family norm is no doubt an exercise in installing ‘community motivation’. But resourcing these is now a constitutional obligation and it remains to be seen how far this may be said to amount to the imposition of unconstitutional conditions on their constitutionally enshrined autonomy. The Uttar Pradesh type free for all induction of deleterious medical technology is, hopefully, an exception to the otherwise noble rhetoric concerning maternal and reproductive health. But this state of hope needs to be more non-contingently articulated in terms of human rights. A ‘progressive’ population policy regime ought not to cast on human rights communities and activist adjudication the aggravated burden of redressing manifestly human rights violative executive policies. Finally (without being exhaustive) then, the ‘threat’ of ‘stringent’ legislation ought to acquire a human rights visage. What stringent pena order may be envisaged for the enforcement of legal age of marriage or two-child norm? What human rights costs may be incurred by such regimes of penality? What may be defences at prosecution? What guidelines for sentencing

ought to be in place? How do we in India feminize administration of ‘due process’?

Developmentalism versus development: A close reading of the national and state polices is wearisome in the extreme and should, indeed, be accompanied by a health warning: ‘such readings are dangerous for human rights cultures.’ Everything is in place here; yet everything is out of joint! All the right incantations and vibrations are duly installed and ‘run’ (to mimic our cyber dependence!) The state is, at last, seized with all the right concerns: the prose is there for all to see and share. Neither the national, nor the state, policy articulation can be faulted for failure of manifest concern with the ‘virtues’ of a just population policy. Here, we have a riot of exuberance of legal paternalism. Everything that is wrong is acknowledged in fullness; everything that is right stands solemnly affirmed. It is almost impossible to fault the prose of concern for maternal mortality rates;13 infant mortality rates;14 availability and recourse to contraceptive technology;15 increasing the age of marriage;16 provision for safe abortion services;17 regional disparities;18 literacy and education; administrative decentralization; women’s empowerment;19 effective communication of policy objectives; and production of forms of social cooperation between the state and civil society, especially business and industry and the activist communities.

Like the National Population Policy, 2000, the state policies remain suffused with ‘target free’ population policy implementation, too wearisome to deserve even the dignity of footnote citation. But in reality targets dominate state policy enunciations. These, expressed variously, become less visible as they are transferred to the level of grassroots governance, the panchayti raj institutions. Targets for ‘voluntary’ sterilization are now to be achieved not by highhanded bureaucratic regimes but through participatory grassroots governance. The aspiration may not be wholly faulted but just anxieties concerning coercion remain alive, given the past experience and lack of any effective rights of redress. And even the aspiration remains clouded by the auspices of the policy formation; people still remain recipients, not the authors or coauthors of population polices. The top-down mode of enunciation is most egregiously articulated in the Madhya Pradesh policy. The Chief Minister, Digvijay Singh, in his Preface to the Policy mentions the factors that ‘motivated me to provide a population policy that is effective...’20

In the main, the policies smack of the ideology of ‘developmentalism’ where epistemic communities of knowledge and power construct public policies, without much regard for the life experiences and organic knowledges of people for whose benefit the discourse is ostensibly constructed.21 The various policies contain no acknowledgement of real life experience of the ‘targets’ of population policies. Their voice is conspicuous by its absence.

Contrary to the leitmotiv of the United Nations Declaration on the Right to Development, individual human beings remain objects, not subjects, of development.22 Even if we were to regard governmental monopolies over construction of public interest and common good as a brute institutional fact of political life, and top heavy implementation administrative structures as a necessary evil, the near total absence of codes of state responsibility in these population policies remain a cause for anxious citizen concern. Nowhere do these policies state who, and in what manner, and to what social effect, is to be held responsible, in politics and administration, for non-performance or malfeascence. No enforceable obligations whatsoever attach to the top echelon policy as well as administrative actors. In contrast, ‘lesser’ levels of governance, the panchayti raj institutions, remain subject to depletion of meagre resources for failure to implement the targets.23 Similarly, individuals, held in violation of the policies, are to be subjected to a regime of stringent disincentives and even penal sanctions. This asymmetry is the kiss of death for population policies. Individuals have legal duties; the administration has none. It remains a realm of pure discretion and impunity, a regime (to borrow the phrase-regime of Nicolas Luhmann) of pure ‘positivization of arbitrariness.’ This need not be so. At last, postcolonial India has come of age in terms of legislative modelling. The Bonded Labour Act and the Environment Protection Act now provide penal sanctions for wilful administrative default in implementation, thus marking an inaugural space for rights in public policy performances. Is there any justification for a

differential treatment of welfarist population planning measures?

Why should manifest state failure to realize the population policy aims escape civil and criminal liability? May women deprived of safe abortion facilities, assurances of protection of maternal health, safe contraceptives, for example, remain bereft of civil remedies (compensation, restitution, rehabilitation)? May not they, or their next of kin (the activist communities), have a legal standing to prosecute negligent performance or wilful non-performance of the duties enjoined by the population policies? Should social activist actors mobilizing the vaunted objectives of women’s empowerment be condemned to the fate of a Bhanwari Devi? Should there be one law for social activists and another for state managers? These interrogations suggest, at the very least, the need to encase population polices in a rule of law framework. Public policies serve their purpose of empowering people best or most when they ameliorate the asymmetry of obligations between those who govern and those who stand ruled. The present population policies, national and state, fail to achieve this. Indeed, these achieve the enhancement of ‘democratization of disempowerment.’ Mere Directive Principles of State Policy genre policy enunciations, as half a century of cruel experience teaches us, only result in the expansion of rightless peoples.

Any serious regard for human rights in population polices entails a non-negotiable prohibition: population policies may not create or augment the number of rightless human beings. Population policies in a republican democratic India may not penalize people who violate the two-child norm in the absence of a total commitment, mandated both by the Indian Constitution and India’s international human rights law obligations, to reproductive rights as an integral aspect of protection and promotion of women’s rights as human rights.24 Should activist discourse fail to move towards this agendum of just and humane population policies, these will meet, with tragic impact for the Indian future, their early amniocentesis.

Footnotes 1. To be fair, a couple of state policy declarations (e.g. Madhya Pradesh, Andhra Pradesh) do passingly mention the Cairo and the Beijing Programme of Action. 2. See, Amartya Sen, ‘Fertility and Coercion’, 63, Chicago University Law Review 1035 (1996) who maintains that a ‘goal-rights’ approach is more preferable than approaches that endow rights with a lexical priority or endow them with a ‘trumping’ feature in relation to ‘policy.’ He suggests that this ‘integrated’ approach allows us to ‘attach importance simultaneously (i) to the fulfilment and realization of rights (including reproductive freedom) and also (ii) to the other consequences of these rights (including welfare consequences’ (at p. 1041.) He, rightly, urges then that engaging ‘advocates of coercion on their own terms’ requires us to attend to the ‘consequences’ of rights. ‘The real issue,’ Sen insists, ‘lies in our ability to distinguish between (i) big doses of governmental bullying to make people do what they are unwilling to do, and (ii) leaving matters to the responsible reflection of the people themselves, helped by the process of economic and social development’ (at p. 1044).

It is, however, not self-evident that limits to reproductive rights may not be derived from the logic of rights themselves and may depend on consequentialist/policy arguments. For example, Alan Gewirth, The Community of Rights (Chicago University Press, 1996) richly draws our attention to the ways in which rights entail mutuality of obligations such that foster ‘the conciliation of rights with community.’ At another level, Sen’s conclusion, based on empirical analysis, leading him to the conclusion that nothing ‘justifies transgressing basic reproductive rights for the sake of achieving other positive consequences’ (p. 1061), suggests that the goal-rights approach performs the same function (of protecting rights), perhaps even better, than insistence on the priority of rights. If so, the case remains yet to be fully made for our migration from the rights based approach to Sen’s. 3. See, Upendra Baxi, The Future of Human Rights, Oxford University Press, Delhi, 2002. 4. Rebecca J. Cook, ‘Human Rights and Reproductive Self-determination,’ 44 American University Law Review 975 (1995). 5. Id. at 979. 6. Upendra Baxi, ‘Gender and Reproductive Rights: Problems and Prospects in the New Millennium’, pp. 4-14 (The Sixth Anniversary of ICPD Public Lecture, UNFPA, Delhi; 6 September 2000). 7. See Uttar Pradesh Population Policy, p.13 (Lucknow, July 2000). 8. See Madhya Pradesh Population Policy, January 2000. 9. I do not, at the moment of writing, have direct recall of the title and date of this order as notified in the Government Gazette. 10. See Andhra Pradesh State Population Policy, pp. 19-20, Hyderabad, 1997. 11. The Population Policy of Rajasthan (Jaipur,1999) is perhaps the most explicit when it urges ‘stiff penal policies for the violation of the legal age to marriage’ and an omnibus indication that observance of ‘the minimum age of marriage’ be ‘made compulsory for availing government facilities and services’ (p. 19).

12. See Alistair McMillan, ‘Constitutional 91st Amendment Bill: A Constitutional Fraud?’ Economic and Political Weekly, 14 April 2001. 13. Highest in Madhya Pradesh (498 mothers dying for 100,000 live births): see Madhya Pradesh Policy at p. 7. The correlation between this and ‘institutional deliveries’ does not seem clear but the presumption is that maternal health is endangered in home-based, traditional deliveries. In Madhya Pradesh, only 22% deliveries (as of 1998-1999) were institutional; the corresponding figure for Andhra Pradesh is 33%. Andhra Pradesh planned to secure 100% institutional deliveries by the year 2000, this in unlikely to have been achieved. 14. Highest in Orrisa (103 per 1000 live births), Madhya Pradesh ranks second with 94 infant deaths. 15. Uttar Pradesh plans increase in availability and recourse from 26% at present to 34% by 2006, 46% by 2011, and 52% by 2016 (Policy, at p.21.) Madhya Pradesh aims to escalate contraceptive prevention from the present 42% to ‘around 65% in 2011’ (Policy, at 9). 16. This is the universal refrain of all policies. So is the notion of stringent law enforcement. There is little analysis of the problem, though at least one policy statement recognizes that changes ‘in the value system’ are needed, followed by the brash assertion that the ‘State will bring about such a social change’ (Madhya Pradesh Policy, p. 15). 17. Illegal abortions are ten times higher, nationwide, than legal abortions (Madhya Pradesh Policy, p. 14.) Andhra Pradesh policy (p. 14) attributes 15% maternal mortality to unsafe abortions. 18. The Uttar Pradesh and the Madhya Pradesh policies remain extraordinarily sensitive to this dimension. 19. This is a welcome theme common to all policy statements. The emphasis here swings from specific programmes (such as prevention of femicide, female literacy, reduction of school drop out rates for girls, vocational training) to larger concerns for gender equality, political participation, and prevention of violence against women. On this last, the Rajasthan policy is perhaps most explicit (p. 20) in referring to specific forms of violence, which include dowry deaths and misuse of pre-natal diagnosis to abort female foetuses.

20. Madhya Pradesh Policy (emphasis added). 21. See, Arturo Escobar, Encountering Development: The Making and the Unmaking of the Third World, Princeton University Press, Princeton, 1995. 22. See, Upendra Baxi, ‘The Development of the Right to Development’, in Mambrino’s Helmet: Human Rights For a Changing World, Har Anand, Delhi, 1994, 18-32. 23. This, in turn, raises the issue of ‘unconstitutional conditions.’ The panchayti raj institutions are now constitutionally enshrined structures and states may not impinge on their financial base just as they please. 24. I have been made aware that the presentation of my paper disappointed the votaries of disincentives. Questions were raised whether my human rights oriented approach prohibits sanctions for individuals who intentionally violate the norm. This misreads altogether the central thrust of my presentation, which is that sanctions attain legitimacy only when states fully adopt and implement a charter of reproductive rights. As fully discussed in the preceding two sections of this presentation, present policies never reach this issue, excepting in terms of the political impiety of a ‘pious’ rhetoric.