By Anusha Peri and Ramya Chandrasekhar 

In the second piece of this two-part post, we look at UBI as a subsistence right, and its value in a moral economy.

IV. An unconditional minimum income as a subsistence right

In light of the above, we argue that an unconditional minimum income scheme like UBI is in order. A UBI refers to an income that is universal, unconditional and free from any corresponding obligation to work or prove willingness to work. It is strictly an individual entitlement, as opposed to being linked to the household situation.[1] The authors however, go one step further, and argue that UBI should not merely be a viewed as a scheme, but as a duty in relation to an individual’s basic right of subsistence.

The most critical oppositions to awarding an unconditional income the legitimacy of a right are (i) lethargic and unproductive individuals would now be taking advantage of the State’s benevolence as they are no longer incentivized to earn a living.[2] (ii) the grant of a UBI would amount to the performance of a positive act by the State and therefore within the traditional positive or negative rights dichotomy, it would be a discretionary directive for the state to progressively realize as opposed a crystallised right for a citizen to claim.[3]

The first opposition has already been responded to by us Part I, where the traditional moral conception of having to work do deserve state aid was debunked.

The premise to the second opposition is that, a), there exist two separate kinds of rights known as positive and negative rights, and b) that only positive rights involve some form positive act that needs to be performed which will necessarily involve huge monetary costs.

Henry Shue argues that there is no such distinction between positive and negative rights, and instead, what exist are basic rights, or normative moral rights, of which the right to subsistence is one.[4] He asserts that traditional negative rights also require positive acts to be performed, and vice versa, and that therefore, there exists a false dichotomy between these two types of rights which can be seen in a plethora of international human rights legislations that differentiate between civil and political rights and socio-economic rights.[5]

As Ruth Gavison argues, for traditional negative rights, such as the right to freedom of speech and expression, there is a positive obligation upon states to ensure a basic degree of subsistence that would enable full exercise of this right.[6] Similarly, there are negative duties attached to traditional positive rights as well. The non-interference with the only means of subsistence that an individual might have is one such duty. Consider the notification issued by the Ministry of Consumer Affairs, Food and Public distribution which stated that all persons purchasing grains from ration shops must link their Aadhaar to their ration cards.[7] The Supreme Court, in its latest interim order, explicitly refused to extend the deadline for such linkage. By actively excluding the impoverished, for many of whom ration shops and LPG subsidies act as the only means of subsistence, two pillars of the government: the executive and the judiciary have failed to perform the negative obligations associated with the right to food.

Because of these overlapping duties between positive and negative rights, Henry Shue argues that the focus should not be on the nomenclature of the rights themselves, but on the duties associated with what he identifies as basic rights. In this regard, he formulates three types of duties – the duty to avoid, the duty to protect, and the duty to aid.[8]

The authors argue that providing a UBI forms part of the duty to aid associated with the right to subsistence. Therefore, the authors do not argue that the UBI should substitute existing welfare schemes, but must supplement these schemes. The existing gamut of legislations only casts upon the State the obligation to protect and avoid, but not to aid. .[9]Therefore, using Shue’s framework of rights, the authors argue that a UBI plugs a lacuna in the human rights being exercised today.

V. The value of UBI within a moral economy

At the heart of any vibrant democracy must be the protection of the rights identified as basic, particularly subsistence rights. because a person who does not have an effectively implemented right to subsistence enjoys no rights at all.[10]

But there is one school of thought that views the UBI as a purely material solution to a problem that involves complex questions of morality.[11] A matrix of power relationships, social norms, and moral codes of communities and institutions defines the lives people live within capitalist societies.[12] Any injustice therefore, such as different forms of deprivation, will require a reconfiguration of this matrix, and not a purely material solution.[13] But, as Amartya Sen argues, there is no clear separation between the material and the moral, because they constantly interact and influence one another.[14] Any solution therefore, to problems that arise out of capitalism, such as the problem of deprivation, must be both material and moral.

Consider the legislations protecting rights-at-work. The Employees’ State Insurance Act provides material remedies to workers in time of medical distress, but at the same time, it also addresses the power imbalance between workers and employers by mandating employers to contribute to the general health of the workers and display a certain degree of care. A UBI will also work in a similar manner. It will provide liquid cash to all persons, thereby vesting them with purchasing power and agency that is currently robbed away in a grossly paternalistic attempt to predetermine the common woman’s expenditure. Further, it also can be a tool to correct various other power imbalances. Providing a UBI could allow for housewives to be remunerated for the extensive amount of physical and emotional labour they undertake within their home, a space not considered as a workplace.

In acknowledgment of the risks and the perquisites of unprecedented innovation, there exists a compelling burden on the international community to recognize the importance of legitimizing UBI as a human right that is indispensable for meaningful sustenance.

(This was the winning essay of the 1st JILS Essay Competition, 2018. The authors are recent graduates of the WB National University of Juridical Sciences, Kolkata)

[1] Parijs and Vanderborght, supra note 2, at 8.

[2] Id., at 102

[3] See Cemlyn Davies, Universal basic income ‘worrying and expensive’ BBC January 29, 2017, available at http://www.bbc.com/news/uk-wales-politics-38770586; John Thornhill and Ralph Atkins, Universal basic income: Money for nothing The Financial times May 26, 2016, available at https://www.ft.com/content/7c7ba87e-229f-11e6-9d4d-c11776a5124d  

[4] Henry Shue, Basic Rights: Subsistence, Affluence and U.S Foreign Policy 16-19 (2nd edn, 1980) (Security rights, subsistence rights, and liberty rights are the three basic’ rights he identifies. The reason he selects these four is because performance of the duties attached with these four rights would allow for the exercise of all other rights as well. In other words, these four rights are fundamental, and enabling rights for the enjoyment of other rights.)

[5] Id., at 34

[6] Ruth Gavison, On the relationship between civil and political rights and social and economic rights, in The Globalisation of Human Rights 32 (2002).

[7]Ministry of Consumer Affairs, Food and Public Distribution, Notification requiring Aadhar for rations, S.O 371(E) (Notified on February 8, 2017)

[8] Shue, supra note 21, at 59-61.

[9] For example, in India, the Equal Remuneration Act, 1976, which states that there must be no wage discrimination on grounds of gender, casts on the state a duty to prevent gender-based wage discrimination in the workplace. Other legislations that protect rights-at-work, such as the Maternity Benefits Act, 1961, and the Employee State Insurance Act, 1948, to name a few, cast on the state a duty to protect, since each of these legislations seek to grant certain qualitative rights to workers within workplaces.

[10] Shue, supra note 21, at [ ]

[11] Tim Rogan, Why Amartya Sen Remains the Century’s Great Critic of Capitalism The Wire March 11, 2018, available at https://thewire.in/economy/amartya-sen-greatest-critic-capitalism

[12] Id.

[13] Id.

[14] Id.

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