Context

At an International Judicial Conference 2020 this weekend, the Chief Justice of India, S.A. Bobde, drew attention to the Constitution’s Fundamental Duties chapter.

The logic of duties

• Wide range of duties: The first thing to note is that as citizens, there exists a wide range of duties that bind us in everyday life.
  • Duties towards the state and individual: These duties are owed both to the state and to other individuals.
• Legal duties: 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.
• Following the duties is price for living in the society: 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.
• Self-contained whole: Our duties and the consequences we bear for failing to keep them, therefore, exist as a self-contained whole.
  • Co-existence and sacrifice: The 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

• Understanding the logic through history: Rights, on the other hand, follow a different logic entirely. This is a logic that is best understood through history.
  • Two concerns: At the time of the framing of the Indian Constitution and its chapter on Fundamental Rights, there were two important concerns animating the Constituent Assembly.
  • Treatment as subjects: The first was that under the colonial regime, Indians had been treated as subjects.
  • Their interests did not count, their voices were unheard, and in some cases — for example, the “Criminal Tribes”- they were treated as less than human.
  • Holocaust example: Apart from the long and brutal history of colonialism, the framers also had before them the recent example of the Holocaust, where the dignity of more than six million people had been stripped before their eventual genocide.
• The first role of fundamental rights chapter: To stand as a bulwark against dehumanisation.
  • Dignity and equality guaranteed: Every human being no matter who they were or what they did had a claim to basic dignity and equality that no state could take away, no matter what the provocation.
  • Unconditional right: One did not have to successfully perform any duty, or meet a threshold of worthiness, to qualify as a rights bearer. It was simply what it meant to be human.
• Second role of the fundamental rights: To stand against the hierarchy.
  • Removing the subordination and degradation: The axes of gender, caste and religion had all served to keep masses of individuals in permanent conditions of subordination and degradation.
  • Equalising and democratising: Through guarantees against-
  • Forced labour.
  • Against “untouchability”.
  • Against discriminatory access to public spaces, and others.
  • Fundamental rights were meant to play an equalising and democratising role throughout society, and to protect individuals against the depredations visited on them by their fellow human beings.
• Significance of the above two roles
  • Transformative purpose: 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 were protected, both from the state as well as from social majorities.
  • Rise from subject to citizen: It was only with these guarantees could an individual rise from the status of subject to that of the citizen.
  • And, as should be clear by now, it was only after that transformation had been wrought, that the question of duties could even arise.
• Importance of the language of the duty:
  • The language of duties can play an important role in a society that continues to be divided and unequal.
  • In such a society, those who possess or benefit from entrenched structural and institutional power (starting with the state, and going downwards) certainly have a “duty” not to use that power to the detriment of those upon whom they wield it.
  • That is precisely what the guarantees against “untouchability”, forced labour, and discriminatory access in the Constitution seek to accomplish.

Issue of conflating duties and rights

• The problem lies in the conflation of rights and duties.
• 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.
• Chances of duties leading to unpleasant consequences: 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 entrenching existing power structures by placing the burden of “duties” upon those that are already vulnerable and marginalised.
• The constitution is about rights: It is for this reason that, at the end of the day, the Constitution, a charter of liberation, is fundamentally about rights.

Conclusion

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 the constitutional age: “real duties are the result of the fulfilment of rights”.

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