Rights & duties
In the debate over constitutional rights vs duties, the political thrust on duties is highly problematic in terms of India’s deeply intermeshed caste system that implores the individual to perform duties of the caste into which she is born. Besides, caste atrocities are an unfortunate reality
even today despite the progress of social mobility made over the decades—enabled by our egalitarian Constitution.
THE Constitution of India is a rights-based charter. In simpler terms, it is the founding principle of this republic that citizens are vested with certain inalienable rights that each one can enforce against the State. These are rights of free speech, right to life, right to practise religion, and so on. The Supreme Court has held these rights to be a part of the Constitution’s basic structure: not even Parliament in its constituent capacity can abrogate them.
It was alarming, therefore, to hear the Prime Minister observe recently that in 75 years since India's Independence the focus on rights has weakened India and the next 25 years must focus on duties. He made similar suggestions, including on the floor of Parliament, about two years ago, and his Cabinet colleagues have repeated it at various forums over the years. Innocuous as it may sound, what the suggestion effectively does is it turns the Constitution on its head: it seeks to enforce duties that are unenforceable and, under its garb, gives a lowly pass to rights that are strictly enforceable against the state.
In our legislative history, this is not a novelty though. It was last deployed by Indira Gandhi to justify constitutional excesses during the Emergency. By the notorious 42nd
Amendment in 1976, her government brought sweeping changes to the Constitution, including the insertion of a sub-chapter on Fundamental Duties of citizens. With her electoral loss and the victory of the Janata Party, several of the offending sections of the amendment were rolled back; the ones that remained were struck down by the Supreme Court in the celebrated judgment of Minerva Mills Ltd. Nani Palkhivala, the then doyen of the Bar, opened his arguments in the matter by pithily stating that the amendments under challenge effectively turned the Constitution on its head: it enforces what is mere guidance and renders unenforceable the rights that should be enforced.
At first brush, the conflation of rights with duties is reminiscent of John F. Kennedy’s friendly exhortation “ask not what your country can do for you but what you can do for your country”. History is proof that the slogan often degenerates into a catch-all phrase under which des
potic leaders usurp greater powers without accountability. The Soviet Union under Joseph Stalin is an instructive example. Among major world constitutions, duties were first conjoined with rights in the 1936 Constitution of the Soviet Union. In the intervening years, to consolidate his power, Stalin authorised the “Great Purge” to order summary executions of at least 700,000 of his own citizens who he denigrated as “internal enemies”.
In a 1965 research paper titled “Human Rights in Soviet Union”, Harold J. Berman (who was Woodruff Professor of Law at Emory University and Ames Professor of Law, Emeritus, at Harvard University) reflected on rights and duties in the Soviet context as having a “parental conception of law”. He said that the citizen, in such a conception, was like a dependent child “whose law-consciousness must be guided, trained, and disciplined by official legal rules and processes” and the Soviet lawmaker, on the other hand, was like a parent who must encourage the citizen to be loyal, hardworking, welldisciplined and virtuous. In an article in The Spectator the same year, Iain Macleod, British Member of Parliament, coined the term “nanny state” in the British context to speak of the ills of an overzealous and preachy state. In the contemporary Indian context, the political strategist Prashant Kishore has summarised it ably with the spectre that the ruling Bhartiya Janata Party wants more than just your vote.
Democracies world over have made strenuous efforts to release the state from the clutches of religious moralities. While it is true that several constitutions, including India’s, have borrowed liberally from religious treatises, that by itself does not make constitutions a subtext of prevailing religious treatise. In this sense, religious treatises and constitutional treatises are antithetical to each other: while the former lay emphasis on duties (rites, ceremonies, et al.), the latter focusses on rights (freedom, equality, et al.). It would be unthinkable for any democratic leader in a country such as India with a diversity of religions to turn the tide back and superimpose religion over Constitution.
The political thrust on duties over rights is deeply problematic on another count: India’s deeply intermeshed caste system that implores the individual to perform duties of the caste into which she is born. Despite progress of social mobility made over the decades—enabled by our egalitarian Constitution—caste atrocities are an unfortunate reality of today’s India. We abolished untouchability at Independence, but a visit to the hinterland will reveal it still exists in both subtle and explicit forms.
Treatise of Manu Smriti and the Arthashastra, which have gained renewed currency since Narendra Modi assumed office, focus on duties based on castes and gender and claim to enable effective societal administration. Apart from caste, our gendered, often patriarchal society behoves women to be duty-bound. It arises from mythical stories in most religions, both Indic and Abrahamic, and is contemporarily normalised by popular culture. In both cases, gender and caste, the enforcement of those duties often degenerates into tools of oppression.
The question we must, therefore, ask ourselves is, who amongst us needs rights the most? Certainly not those who sit on the top of the caste and gender hierarchy. As Justice D.Y. Chandrachud pointed out at the B.R. Ambedkar Memorial Lecture in January, most upper castes have already converted their historical privileges into contemporary sociopolitical capital. But it is the poorest, the underprivileged among us to whom the Constitution gives the equality that the society denies them in everyday life.
FAR-SIGHTED VISION
During the making of the Constitution, our founders were alive to this sociocultural reality. And they had a vision: that from January 26, 1950, all citizens regardless of their caste and sociopolitical status will be unified by the rights that they have against the state. It was one of the greatest political experiments of the last century, unprecedented both in terms of the population under its sway and the far-sightedness of the vision in a country that was stubbornly conservative at the time. The founders were not naive to think that the dead ink would transform India overnight, indeed the ink was to be enlivened by future generations. Ambedkar expressed the hope that with the enactment of the Constitution, while we were giving ourselves one person one vote, we would not deny the people “one person, one value” for too long.
The judiciary, the bulwark of constitutional morality, has sometimes spoken in the same grammar as the Prime Minister. At an international judicial conference in 2020, the then Chief Justice of India, S.A. Bobde, spoke about the Constitution’s Fundamental Duties chapter and quoted Mahatma Gandhi’s Hind Swaraj that “real rights are a result of performance of duty”. Incidentally, the Prime Minister had quoted those lines just a few weeks before in an
interaction with students. Suggestive, coincidental and innocuous as these statements may sound, when it comes from high offices such as the Prime Minister and the Chief Justice, law-enforcers translate it as a signal from the top that rights are junior to responsibilities. The consequences of it on those who need protection of law is disastrous to say the least. For example, women who seek redress from gender crimes get asked what kind of dress they were wearing to provoke such an attack.
Modern democracies are a social contract between adults who elect one of their own to perform certain delegated duties and retain the rights unto themselves. In monarchies, the power and identity are pyramidical, insofar as the monarch sits on top axis and the subjects derive their very identity from that axis of power. They ordinarily have no inherent rights and their life and liberty are a largesse or benevolence of the monarch, for which the subject ought to be grateful. In this context, it is well worth recollecting the “Thank You PM Modi” posters for “free” COVID-19 inoculation.
In electoral democracies, that pyramid is inverted. There are no subjects but citizens. Elected representatives derive their power and identity from citizens and not the other way around. Her rights are not subject to anyone’s benevolence but is inherent in her birth as a citizen and nothing can abrogate those inalienable rights from her. In the United States, for example, citizens retain unto themselves the right to do everything except those baskets which they delegate to their respective State governments (like law and order), and the States in turn delegate certain baskets (like foreign relations) to the federal government. By the virtue of the 10th Amendment, the residuary basket of rights is reserved unto the citizens themselves.
In contrast, in the Indian model, the specific rights of the citizens have been carved out into Chapter IV– Fundamental Rights, in abrogation of which neither the States nor the Union government can make any law. The chapter on rights takes the central place in our constitutional order because, unlike in the U.S., citizens in India have no residuary rights on which the Union cannot legislate. But even in our scheme, the individual owes nothing more to the State than abiding by the laws, paying her taxes, and refraining from committing crimes.
The Prime Minister, before asking citizens to give him more, should look inwards to see how he has discharged his oath to the Constitution from which his office derives its identity. From enabling the greatest economic bust to the meek refusal to confront China within our borders, the list is endless. m Kabeer Shrivastava is an advocate.