“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.”

[Excerpts of article published on the Scroll.in website in 2021]

Why Modi’s idea of linking rights to duties goes against the Constitution

By Umang Poddar

At an event celebrating the 28th foundation day of the National Human Rights Commission, Prime Minister Narendra Modi said that while the world was focusing on human rights, keeping our Indian traditions in mind, we must emphasize duties as well. This is not the first time Modi has expressed this sentiment. Nor is he the first Indian politician to do so.

However, when viewed through the lens of the Indian Constitution, the suggestion that rights and duties are interlinked is incorrect. Duties do not take primacy over rights. Rather, rights exist without any corresponding duties.

What did Modi say?
Modi interlinked the idea of human rights and duties. “Human rights should not be only about rights, but also duties,” said the prime minister. “The two should be discussed together, not separately. Other than awareness of their rights, each individual must abide by their duties.”

He added that individuals are at the centre of human rights around the world, which, he said, is legitimate – since individuals make up societies and nations. However, referring to ancient Indian texts such as the shastras, he said that the country’s heritage lays emphasis on a person’s duty towards others.

This isn’t the first time Modi has conflated rights and duties. In 2020, while addressing a group of students, he said that duties form the basis of rights and if “we uphold our duties with utmost honesty, there is no need for demanding anything else because the rights will be enshrined within”.

In 2019, he spoke of the need for a “paradigm shift” from the focus on fundamental rights to citizen’s duties. In the same year, quoting Mohandas Gandhi, he wrote in the New York Times, “the true source of rights is duty. If we all discharge our duties, rights will not be far to seek.”

Has this interlinking been done before?
These statements by Modi illustrate a line of thought that has long existed in Indian politics across the ideological spectrum.

In 1925, Mohandas Gandhi said, “The true source of rights is duty. If we all discharge our duties, rights will not be far to seek.” In his book Hind Swaraj, he wrote, “Real rights are a result of performance of duty…”

The Bharatiya Janata Party’s Ravi Shankar Prasad, who was then the Union law minister, wrote in 2020, “Let us all remember our fundamental duties in the same way as we remember our fundamental rights.”

Even judges have concurred with this idea. In 2020, for example, Sharad Bobde, who was then the chief justice of India, echoed a similar sentiment. Quoting Gandhi, Bobde said, “Real rights are a result of performance of duty”​.​

What duties does the Constitution speak of?
Fundamental duties were inserted into the Constitution only in 1976, during the Emergency. The Indira Gandhi government made sweeping changes to the Constitution through the 42nd amendment. The addition of fundamental duties was one of them.

Notably, while parts of the amendment were later struck down by the Janata Party government, which took power after defeating Gandhi in 1977, the chapter on fundamental duties was retained.

Initially, there were 10 fundamental duties. The Vajpayee government added another in 2002.

Support from political forces as diverse as the Congress, Janata Party and even the BJP show that the idea of duties has support from across the political spectrum.

Fundamental duties oblige Indian citizens to abide by the Constitution, respect the national flag and the national anthem, uphold and protect the sovereignty, unity and integrity of India, respect scientific temper, amongst other duties.

Why are Constitution’s fundamental rights special?
Fundamental rights have been a part of the Constitution since it first came into force in 1950. It is, arguable, the most important part of the Constitution. Examples of fundamental rights include the right to equality and non-discrimination, the right to life, freedom of speech and religion.

Fundamental rights are guaranteed by the Constitution. They cannot be taken away from any citizen – not even by law. In contrast to what Modi argued, the Constitution awards these in the absolute sense, without them being contingent on any duties. Gautam Bhatia, a constitutional scholar, while talking about fundamental rights in the Constitution, writes, “One did not have to successfully perform any duty…to qualify as a rights bearer.”

Fundamental rights are also justiciable. The law gives a citizen the right to approach a High Court or the Supreme Court directly if her fundamental rights are violated.

Why is it incorrect to interlink rights and duties?
While both rights and duties exist in the Constitution, the idea of connecting them does not. When the Constitution came into force in 1950, duties did not exist. “We find no evidence that remotely suggests that the framers of our Constitution seriously considered adopting something that resembled fundamental duties,” explained Vineeth Krishna from the Constitutional and Civic Citizenship at the Centre for Law and Policy Research, Bengaluru.

Samuel Moyn, a professor at Yale Law School has argued that “it would be a grievous mistake to insist” that the “enjoyment of rights ought to depend on assumption of duties first”. However, he also noted, “It is undeniable that 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.”

Modi’s conflation of rights and duties draws on India’s ancient past to justify the primacy of duties. However, it fails when tested against the Constitution.

This article was first published on Scroll.in on 14 October 2021.