Recently,
CJI SA Bobde at an International Judicial Conference emphasized the importance
of Fundamental duties by saying that if each citizen fulfills his
fundamental duties, all the rights can be taken care of. On more than one
occasion PM Modi has drawn attention to this fundamental duties chapter
inscribed in Article
51(a) of the Indian
constitution. No matter how well-intentioned these people are when they remind
us of our duties, implicit here's a pernicious idea. The idea that puts duties
on a par with rights, suggesting that you shouldn't deserve your rights if you
don't care for duties.
Rights vs Duties:
The
problem with the state conflating rights and duties is that it might render the
rights of the citizens as a quid pro quo for duties to be followed. It is not
that we are completely indifferent to the concept of duties. For the smooth and
peaceful functioning of our social life, we owe, often unknowingly, a wide
range of legal duties to the state. The state protects us, enforces our
contracts, conducts welfare schemes. In return, we owe our allegiance to the
state and also the duty to pay taxes. Do we, in the same way, owe duties which
are essentially moral codes of conduct in return for the rights conferred upon
us by the state? One way to examine this question is by looking back at the
social contract theory as propounded by Locke. According to this theory, the
natural rights of man, which can be considered as a precursor to modern human
rights, existed in the state of nature itself. And when the man agreed to enter
the civil society, no rights were given up except for the right to punish
others for violating these rights which later became the state's job according
to the social contract. The point here is that the rights we enjoy don't
emanate from the state but are deeply ingrained and very integral to us, the
individuals. So, the state shouldn't use rights as a justification for imposing
duties.
Another
way of examining this question is to look at the libertarian theory of rights
and the concept of a minimal state. As we know, one idea behind the concept of
fundamental duties is to promote notions of virtues essential for a good
citizen. For a libertarian, human rights and freedom are of paramount
importance. According to libertarian philosophy, we own ourselves. And if we
own ourselves, state indulging in any type of moral legislation is unjustified.
State's job is to enforce contracts, protect individuals and properties and
maintain peace. That's all. It has no business to impose moral duties on
citizens whatsoever.
Objections to the Art. 51(a):
While
discussing the fundamental duties chapter in our constitution one can't miss
the background in which it was enacted. When the emergency was at its peak,
amid the clampdown on civil liberties, widespread abuse of human rights, the
42nd amendment to the constitution was enacted which was pejoratively called
'the constitution of Indira'. It brought sweeping changes to the constitution.
The introduction of the fundamental duties in Art 51A was one of the many. One
line in its statements of objects and reasons is worth looking at. It is
also proposed to specify the fundamental duties of the citizens and make
special provisions for dealing with anti-national activities, whether by
individuals or associations. Isn't it symptomatic of deeper malice that the
then ruling dispensation might have towards its citizenry? Putting fundamental
duties and provisions for dealing with anti-national activities in one sentence
makes it too obvious.
Even
if we consider these duties as nothing but moral guidance prescribed to
citizens with no ill-will, it is a futile exercise to compile these moral codes
of conduct as no one can come up with an exhaustive list of such duties. Some
important duties which were recommended by the Swaran Singh Committee like
paying taxes, casting votes, family planning haven't been incorporated in the
fundamental duties chapter. So why litter the constitution with an incomplete
list of inconsequential moral code of conduct?
Another
objection to the fundamental duties which are not so apparent or discernible is
the condescending attitude it evokes towards the people. Look at some of the
terms incorporated in it like "Scientific temper" or
"Humanism". Not only are these terms vague and ambiguous, but they
also provide an opportunity to scoff at the populace perceived as unscientific,
religious and conservative. The intent behind the inclusion of these terms
appears to be disingenuous to a skeptical mind. Even if we assume that the
intent was to promote science, why only the development of scientific temper
can be a fundamental duty? People use a variety of human intellectual apparatus
for problem-solving. Some people use scientific methods. Some prefer intuitive
hunches. Some rely on heuristic methods. Some depend on faith. Why not include
all of these? Why extol the virtues of science alone. This was essentially an
attempt to give a certain point of view that looked the essentially religious
character of Indian life with contempt, an unquestionable legitimacy. Since
elites with those points of view couldn't attack conservative Indians directly
in the constitution, they invented this heavily loaded jargon like
"Scientific temper". The point being made here is exemplified in this
tweet by eminent intellectual and historian Ram Chandra Guha.
Conclusion:
Historically,
the world over totalitarian regimes uses this cloak of civic duties to further
their agenda, remember the draconian duties Nazi Germany imposed on women. In
our times this is done by propagating some seemingly benign ideas around civic
duties. Everyone knows about this famous old cliche by J F Kennedy: Ask not
what your country can do for you; ask what you can do for your country.
This is nothing but a totalitarian bunk. Samuel Moyn in this Boston review
article writes: “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". Now, coming to the Indian constitution, the fact that
fundamental duties are non-enforceable is a matter of great respite for all of
us. At the very least it must remain as it is. We must resist any attempt to
conflate rights with duties.
References
Vikram Raj
B.A. LL.B (Hons.) 1st Year
Email: vibrantvikramraj@gmail.com
Well done vikram....this is one of the best critic article I have ever read....keep it up👍👍😊
ReplyDelete