Modi’s push to privilege duties over rights undermines the spirit of Constitutionalism

At the launch of the Azadi ka Amrit Mahotsav year-long programme of events to celebrate 75 years of Indian Independence on January 20, Prime Minister Narendra Modi declared that the country had been weakened by citizens talking about rights while ignoring their duties.

This isn’t the first time he has talked about this idea. In 2019, he underlined the need for a “paradigm shift” from the focus on fundamental rights to citizen’s duties. The same year, quoting Mahatma Gandhi, Modi 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.”

However, this so-called Indian jurisprudence of rights and duties runs against the very spirit of constitutionalism.

Brahmanism vs constitutionalism

It has been a constant protestation of Brahmanical forces that constitutionalism is a foreign idea and that the Constitution is devoid of traditional values. On January 25, 1950, a day before India was declared a republic, a retired High Court judge Sankar Subbha Aiyar wrote an article in the Rashtriya Swayamsevak Sangh mouthpiece Organiser titled “Manu Rules Our Hearts”. In the article, Aiyar demanded the enactment of the Manumsriti as the basic law of India. The Manumsriti, the Bible of Brahmanism, espouses a society and state based on hierarchical inequality.

Brahmanism is, as chairman of the Constitution’s drafting committee BR Ambedkar pointed out, the negation of liberty, equality and fraternity. The holy trinity of liberty, equality and fraternity is the heart of the Indian Constitution enshrined in the Preamble. Hence, it is clear that Brahmanism is the arch-enemy of constitutionalism.

Constitutionalism is the soul of a Constitution. Without constitutionalism, a Constitution would be a Hamlet without the prince. Constitutionalism is an axiom that a governmental authority is to be defined and limited, and the fundamental basic rights of citizenry are to be protected and safeguarded by a body of basic laws called the Constitution.

Constitutionalism strives to prevent arbitrary government action and provide protection to fundamental rights. Constitutionalism is the antithesis to arbitrariness. Constitutionalism is the basic matrix of a constitutional government that determines who can rule, how and for what purposes. The rule of law and separation of powers, along with its natural corollary of checks and balances, are the powerful tools of constitutionalism.

Constitutionalism has evolved out of a long, chequered history, which can be traced back to the Magna Carta of 1215 CE. It was a royal charter signed by King John of England under the compulsion of his rebel barons. The charter promised the protection of church rights, protection for the barons from illegal imprisonment and access to swift justice among others.

The Magna Carta ignited the lamp of constitutionalism. English lawyer and judge Lord Denning described it as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”.

The Glorious Revolution of 1688 in England, which resulted in the deposition of King James II, is another milestone in the evolution of constitutionalism. The Bill of Rights, 1689, was a direct outcome of the Revolution. It laid down limits on the powers of the King and the ruling class, and set out the rights of Parliament, including the requirement for regular parliaments, free elections, and free speech in Parliament. It provided certain rights to common individuals, including the prohibition of cruel punishment.

The social contract

The theory of social contract provided philosophical ground to the Glorious Revolution. English philosopher John Locke is commonly known as the “Father of Liberalism’’, and constitutionalism, too, is his brainchild. Like the philosopher Thomas Hobbes, the “State of Nature” is the basic presumption of Locke’s social contract theory. But unlike Hobbes, it is a different type of place, and so his arguments concerning the social contract and the nature of men’s relationship to authority are consequently quite different from those of Hobbes.

Locke’s arguments for the social contract and for the right of citizens to revolt against their king were enormously influential on the democratic revolutions that followed, especially on the third American president Thomas Jefferson and the founders of the United States. In a state of nature, all people were equal and independent, and everyone had a natural right to defend the holy trinity of rights: “life, liberty, and property”.

A Constitution, in the modern sense, is a social contract between the citizenry and the State. In the Indian scenario, the Constitution is a social contract between “We, the People of India” on one side and the sovereign, socialist, democratic republic of India on the other side. The fundamental rights are the consideration won by the people as quid pro quo from the State for their obedience to it.

This social contract is not frozen at a point of time. A perpetual re-negotiation between the people and the State is undergoing. Rohit De, in his book A People’s Constitution: The Everyday Life of Law in the Indian Republic, demonstrates how ordinary people like Husna Bai, a sex worker, came over to the constitutional court to re-negotiate the social contract. The contours of the history and philosophy of constitutionalism underscore the fact that the protected rights of the citizenry, and defined and limited governmental power are the gist of constitutionalism.

Ambedkar emphatically stated in his final speech in the Constituent Assembly on November 25, 1949:

“…However good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot…The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depends are the people and the political parties they will set up as their instruments to carry out their wishes and their politics… Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero- worship is a sure road to degradation and to eventual dictatorship.”

Ambedkar prophesied the current sorry state of affairs at the dawn of the Republic. Indian constitutionalism is now woefully being undermined by the Brahmanical forces who hold the keys and swords of the Republic.

Ambedkar added: “…Let us not forget that this independence has thrown on us great responsibilities. By independence, we have lost the excuse of blaming the British for anything going wrong. If hereafter’ things go wrong, we will have nobody to blame. Except ourselves...’’

The citizen is a poor tortoise pitted against the leviathan called state. Constitutionalism is a common citizen’s protective shell against the leviathan. Once the shell is lost, a citizen’s life would be finished by the clutches of the leviathan. Hence, the burden of protecting constitutionalism falls on the shoulders of the common citizen.

Faisal CK is an independent researcher who specialises in constitutional law and political philosophy.