Assamese people are lucky. Now they have the right to health. On March 31, the state assembly passed a “historic” Assam Public Health Bill 2010 which seeks to guarantee the  right to health and well-being to the citizens. State health minister Himanta Biswa Sarma explained that the statute sought to “bind” the state health and family welfare department “legally” to meet its obligations, which, apart from ensuring good health services, involved coordinating with other departments to ensure people got “nutritionally adequate food, adequate supply of safe drinking water, sanitation through appropriate and effective sewerage and drainage systems and access to basic housing facilities”.

One may wonder why a government needs a law to do what it should be doing anyway. Hasn’t there been a health and family welfare department, for example, to take care of the health needs? Or a department each for food, drinking water, housing and sanitation? Why, there is even a section in the constitution, called the Directive Principles of State Policies, which seeks to establish social, economic and political equity that is considered fundamental to governance, and talks of right to education, right to work, right to equal opportunity, right to healthy living conditions, free legal aid, local self-government etc.

The ground reality, however, is different and so the government is adopting a rights-based approach and converting the Directive Principles into Fundamental Rights, which are enforceable in the court of law. That is why we have seen a plethora of rights-based laws recently – right to education, right to employment, right to forest, right to information and, now, right to food. But do we really need the judiciary to ensure what is essentially the job of the executive or can there be a better way of bringing accountability into the system of governance? Before we seek to answer that, let’s see how the system has worked so far.

Take the education sector. Referring to education, the Directive Principles say: “The state shall endeavour to provide, within a period of ten years from the commencement of this constitution, for free and compulsory education for all children until they complete the age of 14 years.” That was in 1950. Some of the states woke up after the deadline had long passed and made laws guaranteeing “free and compulsory primary education.” Which is why several new laws came into being – Kerala Education Act of 1959, Punjab Primary Education Act of 1960, Gujarat Compulsory Primary Education Act of 1961, UP Basic Education Act of 1972 and Rajasthan Primary Education Act of 1964.

By 1999, 15 states and four union territories had such laws. They were: Assam, Andhra Pradesh, Bihar, Goa, Gujarat, Haryana, Jammu and Kashmir, Karnataka, Madhya Pradesh, Maharashtra, Punjab, Rajasthan, Tamil Nadu, Kerala and West Bengal among states and Chandigarh, Delhi, Puducherry and Andaman and Nicobar Islands among the UTs. Did these laws help? To an extent, yes, but not sufficiently. Dismayed at the bleak situation, the Supreme Court was forced to remind in 1992 (in the Unnikrishnan, JP vs Andhra Pradesh case) that “the citizens of this country have a fundamental right to education”. But nobody really bothered about it for the next 10 years, and then, in 2002, the central government amended constitution to provide for “free and compulsory education” to all children between the age of six and 14 years.

This was followed up with what was billed as the flagship scheme of the NDA regime, the Sarva Shiksha Abhiyan (SSA). No effort was spared. A special education cess was imposed to collect sufficient funds. An assessment done by Pratham, a leading non-government agency working in the field of education, gave a thumbs-up to the scheme  in its report released in January this year. The report said the number of kids brought into the education system has gone up substantially (in rural areas only four percent kids are out of schools), the number of schools and teachers too has improved. Attendance and quality of learning though continue to be worrisome. Instead of improving on it, the UPA brought in a new law, the Right of Children to Free and Compulsory Education Act, 2009, which again focuses on the very same target group – six- to 14-year-old kids and has come into effect from this April. This law spares no thought for the huge adult illiteracy in the country – 25.95 crore as per the 2001 Census. Not even a fresh headcount has been done in the past 10 years.

Many civil society activists are, however, all for this rights-based approach. Food right activist Biraj Patnaik says that is because it makes the rights “justiciable”, which means the citizen can approach a court of law to enforce this right, unlike in the case of a scheme, like SSA. Secondly, he says, a legal right provides for a “redressal mechanism” not available otherwise.

Having fought by the side of Magsaysay awardee Aruna Roy for minimum wages in Rajasthan that eventually grew into a movement for the Right to Information, Nikhil Dey concurs. He says such a law provides a “structure” that brings accountability and transparency to governance. It binds everyone, from a sarpanch to the BDO and the commissioner and it is not easy for these officials to then wriggle out of their responsibilities. One may not actually go to the court to enforce the law, but the mere fact that it is there is enough to get the desired result, he asserts. He cites the case of NREGA to drive home his point. RTI, of course, has proved to be a game changer.

Pause for a moment. The right to employment, or the National Rural Employment Guarantee Act became a necessity because a host of employment schemes – Pradhan Mantri Gramin Sadak Yojna, Jawahar Rozgar Yojana, National Food For Work Programme etc. – had failed to produce the desired result. And the RTI Act came in because the government forgot to amend the colonial law, the Official Secrets Act of 1923, which the bureaucracy had used to deny even harmless information.

Just as a host of employment schemes existed before NREGA came into being, a host of food schemes exists at present – Integrated Child Development Services (ICDS), Mid-Day Meal, Targeted PDS, Antyodaya, Annapurna Anna Yojana and so on – which are being monitored by the apex court (it has passed a series of interim orders since 2001 in what is known as the PUCL vs Union of India case to ensure that people have access to food) but as recent starvation deaths in Orissa show, none of these came to the help of the hapless family that lost five members to hunger. The government is now busy framing a right-to-food law.

Then there is the right to forest land, called the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, which is in the process of being implemented. This law was brought in after decades of systematic undermining of the rights of the tribals living in forests by declaring forests ‘reserved’ without verifying human habitations. Thus, the tribals became ‘encroachers’ of their own homes. This is being sought to be corrected now. Had the governments been sensible in the past, there would have been no need for this law.

All these details reflect that it is the failure of the executive, rather than absence of a law or policy framework which is to be blamed for all that ails the system. And that is why many don’t attach much importance to this attempt at making laws for everything. Subhash Kashyap, former secretary-general of Lok Sabha and an expert on constitutional law, says it is essentially a question of “bad governance”, not of lack of laws or policies. “The government is bound to provide basic services like education, healthcare, employment and so on. The laws, like welfare schemes, are nothing if not implemented and this can be done only by improving the quality of governance.”

What he means will be clear if we take a re-look at the Assam situation. Consider how things will pan out following implementation of the right to health. Assuming that the health department works as desired, other departments handling food supply, drinking water, sanitation, housing are bound to fail – for the very same reason that the health department failed without a right to health law. So, what will happen next? The state will be making more rights-based laws: right to safe drinking water, right to sanitation, right to housing, right to power/energy (Nepal has a right-to-energy law), right to roads and so on. It is difficult to say where it will end and also, if these laws wouldn’t meet the fate of the welfare schemes that they are replacing.

What is the answer then? Dr Alok Shukla, deputy election commissioner and former secretary of the Chhattisgarh government, has an idea: The day the citizens are so aware and able to demand and claim their rights, law or no law, the government will perform. So folks, rise and claim what’s yours!