Duties Before Rights or Rights Before Duties?

fundamental rights versus fundamental duties

As India’s 73rd Republic Day approaches, I want to commemorate this event with thoughts and callings that address important issues do due justice to the theme of the Republic Day—celebrating the day the Indian constitution came into effect. My series will consist of 4 blog posts and 4 Instagram posts running from today to the 27th of January.

A basic yet essential discussion around the constitution involves some of its most basic provisions. These are, rights, that the government guarantees to its citizens, and duties, that citizens are expected to follow to be good citizens. The lingering question though, has been if rights precede duties or if duties precede rights, or do neither precede either, or should both be unconditional? In this post, I explore these concepts and this golden question.

What Are Our Fundamental Rights?

Our “fundamental rights” are outlined in Part III of the Constitution through Articles 12-35. If you are already well-versed with our rights and duties, click here to skip to the commentary section of this post.

Right to Equality

In this right, the constitution guarantees equality before law, prohibition of discrimination based on religion, race, caste, sex, or place of birth, equality of opportunities, and abolishes untouchability and titles. I know, these rainbows on paper are barely seen in the skies of India, but that’s a different (although very valid!) story.

Right to Freedom

In this right, citizens are first guaranteed the right to freedom of speech, peaceful assembly, forming associations and unions, moving and residing freely throughout India, and professing any occupation. However, paragraph 2 of this article (19) also reserves the state’s right to impose “reasonable restrictions” on this right based on the “interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

This right also offers a couple other technical provisions on employment and conviction that I will skip. Next, the right to freedom includes protection of life and personal liberty, a right to elementary education, and a right against arbitrary arrest and detention.

Right against Exploitation

The constitution outlines rights against human trafficking, forced labor, and child labor in Articles 23 and 24.

Right to Freedom of Religion

Perhaps this is our favorite right in these trying times, the constitution also extends us the freedom of religion. The constitution guarantees citizens the freedom of conscience and free profession, practice, and propagation of religion and the creation of religious and charitable institutions. Reasonably, it does have limits in the interest of “public order, morality, and health.”

Cultural and Educational Rights

The constitution grants minorities the right to protect/preserve their language, script, or culture. Subsequently, it also offers the right to establish and administer educational institutions, even if they are religion or language based. This right is further explained in detail that I will skip for this post due to technicality.

Right to Constitutional Remedies

 Article 32 offers citizens the right to move the Supreme Court to enforce the rights provided in the constitution. To close this section, the constitution discusses legislative principles surrounding the fundamental rights.

What Are Our Duties?

Our “fundamental duties” are outlined in Part IVA of the Constitution in Article 51A.

They are to:

  1. Respect the constitution, its ideals, the National Flag, and the National Anthem.
  2. Cherish and follow the noble ideals which inspired our national struggle for freedom.
  3. Uphold and protect the sovereignty, unity, and integrity of India.
  4. To defend the country and render national service when called upon to do so.
  5. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities.
  6. To value and preserve the rich heritage.
  7. To protect and improve the natural environment and to have compassion for living creatures.
  8. To develop the scientific temper, humanism, and the spirit of inquiry and reform.
  9. To safeguard public property and to abjure (renounce) violence.
  10. To strive towards excellence in all spheres of individual and collective activity …
  11. A responsibility for parents to send their children to school between the age of 6 and 14.

Should Rights and Duties Be Held equally important?

Legally speaking, rights are unconditional, and duties are non-enforceable. The state must guarantee its citizens the fundamental rights, irrespective of them following the fundamental duties.

However, Prime Minister Modi advocated, in the name of Gandhi, that “we can only expect all rights when we perform our duties to perfection,” he added, “we cannot preserve our rights without fulfilling our responsibilities.” Mahatma Gandhi is quoted to have said that “real rights are a result of the performance of duty.”

Many ministers and supporters echoed the equation of rights with duties last year after the Constitution Day on November 26. The Minister of Law and Justice went on to say that India can be made great only “if we create a balance between fundamental duties and fundamental rights.” The Minister of Culture echoed the importance of contributing to the growth and progress of the nation.

However, there are two factors that we must explore to assess these claims better. First, what were the “duties” that Gandhi believed in?

Gandhi’s Concept of Duties

“The crux of Satyagraha (nonviolent resistance), for Gandhi, is in deciphering what one’s duty is” (Source). The cited chapter explains that the concept of Gandhi comes from “dispassionate action” which calls for confidence in the “purity” of the means we employ to confidently achieve its ends, “without offering inducements or threats or theological (religious) sanctions.” Yet, in terms of contemporary political thought, Gandhi still accepts the core idea of individualism that rests in the basis of fundamental rights. Essentially, Gandhi considered duties primary in the sense that one must act morally regardless of its consequences, and not in the sense that we see in the Constitution’s Article 51A.

When we turn to philosophers in general, we will see the same trend, that rights have not been expressed exclusive of duty and vice-versa. However, I must reaffirm, the duties were not what we see in Article 51A or most of what the government is trying to draw our attention to. Reverberating Gandhi’s words, “one has to lose oneself in continuous and continuing service to all life.”

When we turn to scholars, we shall see that the constitutional versions of rights and duties are directly borrowed from Western thought, American to be more specific (also explains why we lack many rights other good democracies guarantee such as the rights to privacy, property, education, good health, etc.). In contrast, Gandhi’s conceptions are Dharmic, where the union of rights and duties does not mean the combination or precedence of constitutional provisions. Essentially, Gandhi’s duties are the direct fulfillment of others’ rights but the same cannot be said for those listed in the constitution or in Western thought.

As we study Gandhi’s concept of duties further, we shall see that it even starts to contradict the statements made by today’s Indian leaders. As a researcher notes in the Indian Journal of Political Science, the duties of Satyagraha involve non-violence, truth, non-stealing, non-accumulation, and celibacy. We know that Indian economics is leaning towards neoliberalism and privatization, and as we lose roots in socialist values, we begin to contradict the ‘non-accumulation’ principle easily. We see many elected officials condone violence against peaceful protestors, and that is another contradiction. I can go on to outline examples, but I have adequately made my point.

Even this article by the Gandhi Book Centre in India outlines how Gandhi’s concept of duties is not the same as the duties or constitutional provisions that we think of today.

A Critique of Constitutional Duties

Coming to my second question, even if these heralded duties were the same as the constitutionally endorsed duties, is it still worth it? If I had lawmaking power, I would replace these abstract nationalistic provisions with tangible, productive, growth-oriented, and socially conducive and cohesive provisions.

If this were the case, we would finally have people productively defending peaceful protestors from arbitrary detention, state violence, and nationalist rage, instead of suck-up rhetoric that seeks to bring to light minority cases of how “the National flag fell down” rather than respond to systemic state and “nationalist” oppression. We would have people who value good education, personal and social development, and other things that make us want to live in the society that springs out of this culture, rather than what is becoming an aggressive playground of nationalist performances.

Don’t get me wrong, I am not against the state. Am I against the prevailing concept of nationalism, though? For sure. If we can redefine what nationalism means and how it’s manifested, I don’t want to scrap it. But if that’s not possible, then calling anyone “anti-national” will be a compliment, and “nationalist” will become a slur.

Before you get mad at me, note that I am exercising my duty to “develop the scientific temper, humanism, and the spirit of inquiry and reform.” Do you see the word “humanism” in there? Trust me, if we brought humanist scholars (aiming for the emancipation and development of humankind) and philosophers alive and together to see what Indian “duties” and “nationalism” is, they’d take the word “humanism” away from us.

“Political democracy cannot last unless there lies at the base of…social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life…” – B.R. Ambedkar

A successful democracy and society requires effort and proactive citizens. Don’t just read and forget this, but take action or plan to at whatever level you can, even if it just means to reshare this post. Also, commit to stay vigilant and read my next posts on the Republic Day Series for content that will help strengthen us and our democracy. Do your duty of being the citizen that upholds society and democracy.

References

  1. https://www.hindustantimes.com/india-news/time-now-to-focus-on-our-duties-pm-modi-on-constitution-day/story-2PO9Av8PmLfpxu3abImenO.html
  2. https://legislative.gov.in/sites/default/files/COI…pdf
  3. https://www.insightsonindia.com/2021/12/18/insights-into-editorial-a-false-conflation-between-duties-and-rights/
  4. https://egyankosh.ac.in/bitstream/123456789/63591/4/Unit-5.pdf
  5. https://www.jstor.org/stable/pdf/41855023.pdf?casa_token=a_qUiSq0tpMAAAAA:MzXP2unDMxQPAiYxBW10PLa0G2ku_Hr_-9-MuWnibYxVVqtrNQgIAwOi1zg6MPJ3_4SGq15FbiLGrqMT5PMuzYXQ-ceKQL1fIqRjrTANhsdHj6azOEY

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