Unravelling the mystery of India’s Founding Fathers opting to guarantee Fundamental Rights is important to understand how tyrants emerge, writes PARSA VENKATESHWAR RAO JR.
THE debate between rights and duties is a long one in political theory and philosophy, but not very familiar to political scholars in this country. It has never been a subject of study or debate in political science departments in Indian universities. Rather the debate turned around as to what the state should be doing for the poor and dispossessed so that they can live a life of dignity in a traditionally hierarchical society like India. The emphasis if there was one was on the rights of deprived groups, not individuals. It can well be argued that in an underdeveloped country like India where the majority of the people are poor and uneducated, talk of fundamental rights of individuals is an unaffordable luxury. It is surprising then as to how the Fundamental Rights has even found a place in the Indian Constitution. The Founding Fathers were far from liberals. Neither the conservatives nor the socialists, including the communists, cared much for individual rights. They were focused on making India a democratic country where equality was of greater importance. Also read: An officer of the court – all duties, no rights The famed French aristocrat, Alexis de Tocqueville, in his 1835 work, ‘Democracy in America’ had observed that between liberty and equality, people prefer equality. And a century later, German psychoanalyst Erich Fromm told us in his 1941 book, ‘Fear of Freedom’, that people are afraid of freedom because it implies responsibility to decide on one’s own and accept the consequences of one’s own action. Of course, he was speaking in the context of Nazi Germany, and why decent people surrendered their good sense to a diabolical leader like Adolf Hitler.
The famed French aristocrat, Alexis de Tocqueville, in his 1835 work, ‘Democracy in America’ had observed that between liberty and equality, people prefer equality.
It is not surprising then that many leaders since independence, and it included the much celebrated liberal, Nehru, lectured about duties to make the country strong, and did not talk about individual rights. The task was to make India a safe and strong independent nation. It was an understandable sentiment at the time of independence. It is indeed a mystery that the people who wanted a strong nation in the aftermath of the traumatic partition of the country should have written a generally liberal Constitution with Fundamental Rights chapter of Part III as the cornerstone and made the Directive Principles of State Policy of Part IV non-justiciable. They did not say individual freedoms should be sacrificed for the welfare of the nation but that was what they had in mind. If they had said so openly, India would have become a people’s democracy like in the old communist states, and not a liberal democratic polity where individual rights and freedoms are supreme. But over the years, starting with the First Amendment curtailing the right to freedom of speech by placing ‘reasonable restrictions’ on it, the attempt has been to prune the Fundamental Rights for the greater good of the largest number. Also read: A proding judiciary in times of emergencies It looks like that the learned greybeards of the Constituent Assembly entertained the naïve belief that in a country where there are free elections, the elected rulers would be answerable to the people, and that an elected government would reflect the aspirations and demands of the people. They did not consider the possibility that once elected, governments with majority can misuse their power, that they could become tyrants. Though most of the members of the Constituent Assembly were well-read in constitutional history, they did not realise the question of the tyranny of the majority so well stated by the 19th century English liberal, John Stuart Mill, in his 1859 essay, On Liberty. When the Indira Gandhi government brought in the 42nd Amendment during the Emergency, based on the Swaran Singh Committee report, and as she pointed out during the debate in Parliament when the bill was introduced, the bill was also the demand of many opposition parties. In the debate on the bill in a session devoted to the amendment in November 1976, no one objected to the insertion of the Fundamental Duties. It is a stroke of luck that in their enthusiasm, the government of the day and parliament, kept it in the section on the non-justiciable Directive Principles of State Policy. Not one member had raised the liberal argument that the state cannot impose fundamental duties even as the state is not the giver of Fundamental Rights. The state is a mere guarantor of Fundamental Rights. Also read: Accountability and abdication of constitutional duties
Need for debate
The idea of fundamental duties was to be found only in the Basic Law of West Germany of 1949, and the 1972 Constitution of the Soviet Union introduced by then President Leonid Brezhnev. The German constitution was made in the wake of Nazi Germany and a defeated Germany. Brezhnev replaced the 1936 constitution of Joseph Stalin, and it was an apology for a democratic constitution of one-party state.
It looks like that the learned greybeards of the Constituent Assembly entertained the naïve belief that in a country where there are free elections, the elected rulers would be answerable to the people, and that an elected government would reflect the aspirations and demands of the people.
Indira Gandhi in her own cynical way said on the occasion that some unknown person came to her in one of her morning meetings with the people at her residence and gave her a paper saying that India was the only country with a constitution that does not mention duties. She even asked why it was not incorporated in the Constitution when it was framed. She said, “In my own view this bringing in of duties should have been done when the Constitution was drawn up. Other countries have realised the importance of not permitting liberties to be turned into licence. For example, the Constitution of the Federal Republic of Germany contains a provision to prevent the misuse of constitutional freedoms. Article 18 reads as follows: “Whoever abuses the freedom of expression, in particular the freedom of the press, the freedom of teaching, the freedom of assembly, the freedom of association, the secrecy of mail, post and telecommunications, property, or the right to asylum, in order to attack the free democratic basic order, shall forfeit these basic rights.” But her Emergency vindicated that the Framers were right in not incorporating duties in the Constitution. Prime Minister Narendra Modi has been speaking against rights for duties after he won the 2019 general election, and he became prime minister for the second time. He said that there was not enough emphasis on duties while speaking at the National Human Rights Commission’s 28th Foundation Day last October. He was much more strident in his tone against rights and asserted the priority of duties over rights when he spoke at the Brahma Kumaris meeting on January 20 to mark the celebration of the 75th year of Indian independence. He went to the extent of saying that all these years since independence have been wasted in fights over rights and it is time to think of duties for the next quarter century to make India a developed country.
Though most of the members of the Constituent Assembly were well-read in constitutional history, they did not realise the question of the tyranny of the majority so well stated by the 19th century English liberal, John Stuart Mill, in his 1859 essay, ‘On Liberty’.
Is it time then to talk about the Fundamental Rights and how they are essential for a democracy to survive, and how duties sound so dutiful and could lead to blind obedience to the state and the whims and fancies of those in power? Is it time to state that prescription of duties is an insidious way of turning the elected rulers into infallible authorities? Is it time for all Indians to assert that the state cannot impose duties, and that civic obligations are written into the laws of the land? If there is no clear debate about this issue of rights vs duties –though it is axiomatic that rights are the foundation of a democratic polity and not duties – authoritarian leaders and their parties will trample upon the constitutional freedoms and rights, and demolish democracy through false propaganda. (Parsa Venkateshwar Rao Jr. is a senior journalist and political commentator. He is the author of several books on Indian politics. The views expressed are personal.)