Editorial Notes

[Editorial Notes] Rights, duties and the Constitution

It is only after a guarantee of the sum of all promised by the Constitution that citizens can be asked to do their duty.
By IASToppers
February 28, 2020

Contents

  • Introduction
  • Fundamental Duties and Anti- national activities
  • Duties…. Duties and Duties
  • The logic of rights
  • The role of the fundamental Rights
  • Importance of Duties
  • Issue lies in conflation or merging
  • Conclusion

Rights, duties and the Constitution

For IASToppers’ Editorial Simplified Archive, click here

Introduction

The “Fundamental duties” and “anti-national activities” came into the world at the same time fused at the hip. While the Emergency regime has long been left behind, its legacies still continues.

Fundamental Duties and Anti- national activities

  • The 42nd Amendment brought sweeping changes to the constitution. The amendments also proposed to specify the fundamental duties of the citizens and make special provisions for dealing with anti-national activities.
  •  “Anti-national” has become a boundlessly manipulable word, that it can mean whatever those in power want it to mean.
  • “Fundamental duties” have been making a comeback as well. Recently, at an International Judicial Conference 2020, the Chief Justice of India drew attention to the Constitution’s Fundamental Duties chapter and cited Gandhi’s Hind Swaraj, observed that “real rights are a result of [the] performance of duty.”
  • There is, of course, an intuitive reasonability to the CJI’s words. They bring up the image of the ungrateful and selfish citizen who are happy to pluck the fruits of civilisation, but unwilling to do their bit to water the tree.
  • Nonetheless, despite its plausibility or reasonability, this merging of rights and duties ought to be resisted.

Duties…. Duties and Duties

  • The first thing to note is that as citizens, there exists a wide range of duties that bind us in everyday life. These duties are owed both to the state and to other individuals.
  • We have a legal duty to pay our taxes, to refrain from committing violence against our fellow-citizens, and to follow other laws that Parliament has enacted. Breach of these legal duties triggers financial consequences (fines), or even time in jail.
  • At any given time, therefore, we are already following a host of duties, which guide and constrain how we may behave. This is the price that must be paid for living in society, and it is a price that nobody, at least, in principle, objects to paying.
  • Our duties and the consequences we bear for failing to keep them therefore exist as a self-contained whole. They follow a simple logic: that peaceful co-existence requires a degree of self-sacrifice, and that if necessary, this must be enforced through the set of sanctions.

The logic of rights

  • Fundamental Rights follow a different logic entirely. This is a logic that is best understood through history.
  • At the time of the framing of the Indian Constitution and its chapter on Fundamental Rights, there were two important concerns struck the Constituent Assembly.
  • Indians had been treated as subjects under the colonial regime. In some cases — for example, the “Criminal Tribes” were treated as less than human.
  • The framers also had before them the example of the Holocaust, where the dignity of more than six million people had been stripped before their eventual genocide.

The role of the fundamental Rights

There are basically two roles of the Fundamental Rights:

  • The twin principles of anti-dehumanisation and anti-hierarchy reveal the transformative purpose of the fundamental rights chapter: the recognition that true democracy could not exist without ensuring that at a basic level, the dignity and equality of individuals was protected, both from the state as well as from social majorities.
  • It was only with these guarantees could an individual rise from the status of subject to that of citizen. It was only after that transformation had been wrought, that the question of duties could even arise.

Importance of Duties

  • This is not to suggest that duties are unimportant. As indicated above, duties exist in every sphere of society. Moreover, the language of duties can play an important role in a society that continues to be divided and unequal.
  • In such kind of society those who possess or benefit from entrenched structural and institutional power (could be state, and going downwards) certainly have a “duty” not to use that power to the detriment of those upon whom they wield it.

Issue lies in conflation or merging

  • The problem lies in the conflation of rights and duties.
  • As Samuel Moyn points out in an article in The Boston Review, “the rhetoric of duties has often been deployed euphemistically by those whose true purpose is a return to tradition won by limiting the rights of others”.
  • Moyn’s target here are traditions that invoke the language of duty in order to subordinate or efface the individual in the face of the collective (whether state or community).
  • In that context, it is always critical to remember Dr. B.R. Ambedkar’s words in the Constituent Assembly (which were also cited by the CJI in his speech): that the fundamental unit of the Constitution remains the individual.
  • If the position of the individual and the Constitution’s commitment to combating hierarchy is kept in mind, then the language of duties can be understood in its proper context. Without that we risk going away from the correct path.
  • A good example of this is a Supreme Court judgment from the early 1980s, which upheld the differential treatment of male and female flight attendants on the ground that women had a “duty” to ensure the “good upbringing of children” and to ensure the success of the “family planning program” for the country.
  • The judgment is a stark reminder that without the moral compass of rights and their place in the transformative Constitutional scheme the language of duties can lead to unpleasant consequences.
  • It can end up strongly establishing existing power structures by placing the burden of “duties” upon those that are already vulnerable and marginalised.

Conclusion

It is for this reason that the Constitution which is a charter of liberation is fundamentally about rights. It is only after guarantee to all the full sum of humanity, dignity, equality, and freedom promised by the Constitution, that we can ask of them to do their duty.

Perhaps, then, it is time to update Hind Swaraj for today’s constitutional age: “real duties are the result of the fulfillment of rights”.

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