“The emergence of rights-based constitutionalism represents an historically innovative path to extend social welfare and political transparency in the Global South. Yet the growth of corruption and inequality, and worsening job’s crisis, revealed its limitations. These failures enabled the rise of autocratic populists, who increasingly delivered welfare entitlements as cash transfers and expanded biometric regimes of surveillance,” said Sanjay Ruparelia of the Department of Politics and Public Administration at Toronto Metropolitan University.
Ruparelia’s book project will reflect on these developments in India, China, South Africa and Brazil which he described as having both differences and convergences. For his seminar he focused on India and South Africa. “With the Indian election ending today and South Africa’s last week it’s an auspicious time to focus on these two great but embattled democracies of the South,” he said.
It’s a project that Ruparelia began a decade ago initially trying to understand why India after the United Progressive Alliance, a coalition government that captured office in 2004, began to legislate rights to welfare. This went hand-in-hand with a project to reform the state and to gain access to information on its citizens by the introduction of biometric-identification systems. “They were simultaneously legislating new social rights but also new powers for the state to see society and for society to see the state – a so-called politics of sight.”
This led to him delving into a broader unravelling of the differing impacts and responses to neoliberal policies affecting welfare in the Global North and South.
“Beginning in the 1980s, industrial democracies in the North Atlantic began to retrench their social-welfare regimes. Most introduced policies that reflected neoliberal ideas: privatising social entitlements, corporatising public services, and targeting welfare benefits to a greater degree. In many regions of the Global South, the rise of neoliberalism caused greater hardship: a lost decade of development,” he explained.
“Yet these years simultaneously witnessed social activists launch rights-based campaigns to expand welfare entitlements in many countries,” he continued. “They often employed the language of citizenship, and engaged the law and the courts, to extend these entitlements to the majority of their citizens.”
“What explains the expansion of social welfare in the Global South, and the historically novel role of constitutionalism, over these decades? How are rights conceptualised in the moral imaginaries, legal arguments and political strategies in such campaigns? Why have many of them demanded greater government transparency, responsiveness and accountability? What reforms have various rights campaigns won? Finally, where have such efforts been ineffective, and why?”
He provided a detailed comparison of the key events and policies in India and South Africa.
He explained that the 1950 Indian Constitution distinguished between civil liberties and political rights, which were Fundamental Rights and justiciable in the courts, and socio-economic rights, which informed the Directive Principles of State Policy, which were non-justiciable. Social security was offered to less than 10% of the labour force while social assistance was provided for the rest of society, reflecting a philosophy of welfare best described as ‘institutionalised charity’. Although there was a spike in labour militancy in the early 1980s, it quickly declined. Moreover, its leading unions primarily fought for their workers’ rights, disconnected from the majority of the workforce in the informal sector, which largely comprised women who had a little representation.
Judicial activism in the late 1970s and through the 80s led to reinterpretation of what the fundamental “right to life” incorporated. Judges began to rule that it included basic social rights like nutrition, clothing, and shelter. The Supreme Court also introduced procedural innovations, which made it easier for non-party political movements and rights-based organisations to bring public interest cases to court.
“But this had both achievements and limitations,” he said. “It created significant judicial precedents and mobilised new coalitions, but there were few significant material changes, as well as an inconsistency in activism and a lack of capacity and accountability. Courts could only take on so much (around 2005 there was an estimated 20 000 case backlog) and the judgements varied substantially with some more radical and others in line with government legislation.”
However, he explained that civil society was mobilised around many of these judgments. A key right became the right to information. Organisations like the MKSS in Rajasthan, which originally demanded rights to food and work, demanded access to information to scrutinize government records and local budgets.
The government that came to power in 2014 under Narendra Modi was critical of a rights-based welfare, which it described as entitlements, and emphasised policies that it claimed would bolster empowerment. It focused on a cash-transfer based system backed by a computerised infrastructure that incorporated biometric identification – the Aadhaar platform. Its proponents justified this infrastructure as a way to acknowledge everyone’s existence and make everyone more aware of their rights, described by the slogan ‘GPS tells you where am I. Aadhaar tells you who am I’. They also claimed that it would be more efficient and reduce corruption. The new government viewed the combination of Aadhaar, cash transfers and the expansion of rural bank accounts as a systematic public-policy reform facilitating the centralisation of services, increasing civic access and market expansion.
But the Aadhaar project had not been legislated, raising concerns over the privacy and security of their data. Although it was officially voluntary, citizens often couldn’t get access to services and entitlements unless they were in the programme. And the system had many errors. In a survey in 2019, “an estimated 4% of cards had errors” – that’s 4% of 1.3 billion people! In practice many poorer citizens encountered difficulties accessing benefits, it was hard to correct mistakes and there were no data-protection laws. This led to legal battles over Aadhaar.
“The Aadhaar system was controversial. Apart from these issues, it presented an image of government as a computerised machine with no interference, part of a technocratic vision. Aadhaar could be useful. But it was not a panacea, as many of its proponents claimed, for eradicating corruption and making sure citizens received their welfare benefits. The hyper-modernist belief was misplaced. And it created hazardous problems – people have died from lack of access.”
Different route, similar outcome
Turning to South Africa, Ruparelia pointed out that social welfare under apartheid was limited with broad exclusions and racialised differentiation. South Africa also represented the global origins of the biometric state with the Population Registration and Group Areas Acts of 1950 requiring detailed identification of citizens. The establishment of the Bewysburo in 1952 and the mass, centralised collection of fingerprints in the Civitas Building in Pretoria was “meant to be a foolproof system but in practice it was ad hoc, incomplete and full of inaccuracies, creating a Kafkaesque world”.
He noted that there was some expansion of welfare services to rural populations from the late 1970s onwards, but mainly to encourage compliance with the Bantu Homelands Citizenship Act passed in 1970. Difficulties in claiming these benefits, especially pensions for women, led to the involvement of groups like the Black Sash and others. During this time, the government contracted Cash Paymaster Services and its subsidiary Datakor to expand biometric systems and banking into rural areas.
“To the opponents of the apartheid government, social, economic and political rights were always seen as fused. This was emphasised in the rising labour and political militancy in the 1980s, including by the Communist Party, COSATU (Congress of South African Trade Unions), and the United Democratic Front. By the late 1980s, the idea of an entrenched Bill of Rights was increasingly accepted, including most importantly by the African National Congress. Work by legal non-governmental organisations including the Centre for Applied Legal Studies and Lawyers for Human Rights further promoted a vocabulary of dignity, freedom and equality. The CODESA (Convention for a Democratic South Africa) and Multi-Party Negotiating Process led to the establishment of the new constitution and Constitutional Court in 1996.”
“The South Africa Constitution is seen as one of the most progressive constitutions in the world, even a transformative constitution. It made social and economic rights justiciable from the beginning and underlined the idea of progressive realisation of these within resource availability,” explained Ruparelia. “But it received critique from the left as a betrayal and a liberal political settlement and from the right as undermining formal equality.”
There were many Constitutional Court cases challenging the implementation of a range of rights, including well-known cases like Soobramoney in 1998, Grootboom in 2001 and the Treatment Action Campaign case against the Minister of Health in 2004 regarding access to antiretrovirals.
“The early cases mostly involved individual litigants but later expanded to cases brought by civic organisations and seen as being in the broader public interest. Overall, these were seen as focusing on the rights of the poor and the links between dignity, equality and discrimination but they tended to shy away from defining minimum core rights. Some South Africa legal scholars have argued against the way the court has defined these rights saying that the constitution has more radical potential than the court has read into it.”
In the early 2000s there was also a slew of welfare-related acts, which were seen as transformative but also residual, since they still involved means-testing. This included the Social Assistance Act of 2004, which encouraged the expansion of social grants as well as biometric identification and led to the establishment of SASSA (South African Social Security Agency). The Promotion of Access to information Act of 2000 was also important, although many scholars agree that it was “over-restrictive and under-inclusive” and has been “poorly implemented”.
Ruparelia noted that social grants in South Africa have become the most important vehicle for the expansion of social and economic rights. “In real terms they have increased especially child and old-age grants. Due to the crisis in employment, grants have become more important as the main source of income for many – today 50% of households receive social grants, driven by the increase in child grants. Hunger has declined but access to nutritious diets hasn’t changed. The poverty line has also increased due to inflation. Only the old-age grant is above the upper bound of the poverty line. The child grant is below the lower band of the poverty line.”
In addition, “the biometric system is riddled with problems and in many cases has led to more insecurity. People have been enrolled into banking and loans for new financial products without their knowledge or consent, leading to high over-indebtedness. The system represents a huge commodification of welfare. Recourse for correcting mistakes is often difficult.” (For more details on this Ruparelia referred to the work of Iso Lomso fellow Natasha Vally: Exploring technopolitics and social grants in South Africa – Fellows’ seminar by Natasha Vally – Stellenbosch Institute for Advanced Study (stias.ac.za))
Explaining why all this is important, Ruparelia said: “In these Global South countries courts and constitutionalism, which were seen as obstacles in the North, were used by activists – offering important resources to seek legal redress and set judicial precedents, mobilise social action, incentivise electoral politics and shape public discourse. But there were limits, ambiguities and tensions – and over time this was eclipsed by use of biometric technology and cash transfers to deliver social welfare, which created new forms of commodification and exclusion. The language of rights-based constitutionalism has created welfare states relying on biometrics and cash-based transfers, which wasn’t intended. Mass un- and under-employment has fuelled authoritarian populism and exclusionary nationalism, whose defenders have sought to undermine rights-based constitutionalism.”
Michelle Galloway: Part-time media officer at STIAS
Photograph: Ignus Dreyer