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Mainstream, VOL LX No 6, New Delhi, January 29, 2022

Democracy is Inconceivable Without Rights | Vijay Kumar

Friday 28 January 2022, by Vijay Kumar

The recent speech of the Prime Minister, Narendra Modi exhorting the citizens of this country to discharge their duty and his calculated attack on the assertion of their rights has grave implications for the very survival of democracy. Disregarding all the evidence, Prime Minister Modi asserted that the culture of asserting for their rights is impeding the development of the country, and a prosperous future could be secured only through the enforcement of duty. This statement has an ominous and frightening ring and sounds the death knell for Republican democracy, Constitutionalism and rule of law.

Two phenomena: Right to adult suffrage and guarantee of enforceable fundamental rights were embraced by the citizen with fullest of zeal after the promulgation of the Constitution, and that has helped democracy to take root and become robust. The demand for enforceable fundamental rights was agitated by freedom fighters, at least since the end of the 19th Century, but it gained momentum during the 1920s. In 1928, the committee headed by Motilal Nehru recommended that “our first care should be to have our fundamental right guaranteed in a manner which will not permit their withdrawal under any circumstances”. Thereafter, the Congress session in 1931 at Karachi passed a resolution in which the demand for enforceable fundamental rights was put on the forefront. The Sapru Committee carried the demand further in its 1945 reports. In Constitutional Assembly deliberation from 19th December 1946 to 26th November 1949, almost three years, the Framers laboured hard to frame the Constitution, the distinguishing feature of which was the guarantee of enforceable fundamental rights. “The framing of Indian Constitution”, according to one of the tallest constitutional scholars of the day in England, K.C. Where, “was the biggest experiment ever made by men to secure for themselves justice, equality, liberty and fraternity”. The incorporation of Articles 13 and 32 of the Constitution has made the fundamental rights heart and soul of the Constitution. The framing of the Constitution marked both the continuity of the colonial legality and de novo start. The guarantee of enforceable fundamental rights was a complete break, not only from colonial legality but also from the regressive aspects of tradition, notorious for hierarchical and patriarchal values. The guarantee of equality was made in a highly stratified society known for the most revolting kind of inequality and exploitation. The dichotomy of rights and duties created by Prime Minister Modi has repudiated the glorious struggle and sacrifice made during the freedom struggle and during the framing of the Constitution.

The guarantee of equality, freedom of speech and expression, right to life and liberty and special guarantee extended to the minority are lodestars of the Constitution. No wonder, right from the day the Constitution came into force, i.e. 26th January 1950, the citizen started taking their rights seriously by filing writ petitions in the High Courts and the Supreme Court under Articles 226 and 32 respectively. It is this assertion of the rights coupled with the right of adult suffrage that entrenched Indian democracy and made it a model worthy of emulation by countries in Asia and Africa. When democracy came under strain when emergency was imposed, and the Supreme Court in its hour of shame, ruled that very right to move the court for enforcement of the right to liberty guaranteed under Article 21 of the Constitution stood suspended, people reacted angrily and asserted their rights, and it was the assertion of democratic rights that made the Indian democracy resilient enough to overcome the blow of emergency. Same resilience came to the fore recently when farmers asserted their right to agitate through peaceful assembly and succeeded in forcing the most authoritarian Government to withdraw three infamous Farm Laws enacted in a manner that was repugnant to fair procedure and dignity of the Parliament.

Why Rights are necessary?

If I am the owner of a particular plot or house and it is encroached upon by neighbours or some other persons, I can agitate for my property only when I am having right over my property. In a situation like this, the notion of duty cannot come to my succour. On the contrary, duty is cast on my neighbour to refrain from encroaching upon my plot. Thus, the duty has always been treated as co-relative of right in all schools of jurisprudence. There cannot be duties if there are no rights in the first place. The assertion of rights operates as a limitation on the exercise of political power, and thus subserves one of the cardinal postulates of the rule of law: The grant of power is always coupled with a charter of accountability.

Rights, according to Ronald Dworkin, further equality and human dignity. For instance, the principle of one man one vote and one vote one value promotes equality. Similarly, the assertion of other guaranteed enforceable rights furthers equality. The concept of human rights and human dignity were brought on the centre stage through the Universal Declaration of Human Rights in 1948 — the most liberating document — the united nation has framed and inspired our framers at the time of framing of the Constitution. Human rights are not a gift of the State, and the Constitution merely recognised what is inherent in every human being. This notion of human rights and dignity started in the days of Thomas Aquina has now been crystallised into an enforceable Bill of rights and must trump the hoary, iniquitous and patronizing concept of duty. Thus, the concept of human dignity is inconceivable in absence of rights. Therefore, any attack on the assertion of right unmistakably amounts to denigrating the very concept of human dignity. Nothing could be more subversive for human rights, human dignity and democracy.

The Prime Minister’s advocacy for duty is equally puzzling. It is not clear what kind of duty he is emphasising. The fundamental duties, as embodied in sub-Articles (a) to (k) in Article 51A of the Constitution are out of the question for the simple reason that most, if not all the fundamental duties, enshrined in Article 51A have been deliberately breached by Modi Government and his party. Whether it is the Constitution and its ideal to follow the noble ideals which inspired our national struggle and freedom – to value and preserve the rich heritage of our composite culture – to protect the environment – to develop the scientific temper, humanism and spirit of enquiry and to strive towards excellence in all spheres of individual and collective activity --- all these fundamental Duties have been honoured more in the breach than observance by Narendra Modi Government and his party.

Regression from Citizen to Subject :

This logically means that Prime Minister Modi, being a conservative Hindu, if not a fanatic, has, in his contemplation, the regressive notion of duties associated with the old culture, notorious for the exploitation through Varna system and subjugation of women. The Prime Minister wishes to take the country to the old days of Monarchy in which a person had an only duty towards the King. The craving of Prime Minister Modi for duty associated with monarchy sits at odd with the Preamble of the Constitution which describes India as a Republican Democracy, and which has been declared as a basic feature of the Constitution by the Supreme Court. This kind of social regression would strike at the very foundation of republican values and the Constitution, and the citizen would be reduced to mere subject. In the process, the Prime Minister has demonstrated a callous disregard for Constitutional values and Constitutional morality, nay, Republican Democracy.

The Prime Minister’s diatribe against the culture of right and stress for duty has come at a time when democracy is backsliding in India --- a perception shared not only by perceptive outside observers but also by all committed democrats in the country. Since democracy is inconceivable in absence of rights, the attack on rights percolates down to an attack on democracy itself. Therefore, what is at stake is the very survival of democracy in a time when the reality of elective despotism is already upon us, and the attack on right and prescription of duty must be opposed and resisted by all the citizens in order to stem the tide towards the entrenchment of popular authoritarianism.

(Author: Vijay Kumar has recently been designated as Senior Advocate by the Full Court of the Supreme Court)

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