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Prime Minister Narendra Modi, a recent speech remarked:
“Friends …. We (also) have to admit that in the 75 years after Independence, a malaise has afflicted our society, our nation and all of us. It is that we turned away from our duties and did not give them primacy. In the last 75 years, we only kept talking about rights, fighting for rights and wasting our time. The issue of rights may be right to some extent in certain circumstances, but neglecting one’s duties completely has played a huge role in keeping India vulnerable.”
The Prime Minister’s observation on “talking about rights, fighting for rights and wasting our time” made me revisit an essay written by acclaimed philosopher and jurist Thomas Michael Scanlon, titled, Rights and Interests. In the essay, Scanlon offers a balanced understanding of the ‘misconceptions associated around the normative and substantive value of rights’ or claims for rights in correspondence to their correlative relationship with ‘duties’.
In the context of this conflation of rights and duties – a subject much debated and critiqued in moral philosophy too – it is important to make note of Scanlon’s advice, centred on a need to better understand and study the role of ‘interests’ safeguarding both rights and duties and therefore ascertain the ‘interests’ of those who critique either’s (rights’ or duties’) normative significance.
According to Scanlon, scepticism about rights can take several different forms.
One form is a more general scepticism about all moral claims. Scepticism of this kind would be one way of arriving at the view that the only rights are legal rights (or those constitutionally recognised).
More commonly, scepticism about rights flows from a ‘consequentialist moral outlook’. In such a view, there are moral truths, but no moral rights: all true moral claims are claims about what leads to the best consequences. This could lead to a different version – perhaps Jeremy Bentham’s version – of the idea that the only ‘rights are legal rights’. The Prime Minister’s appears to sound more Benthamite.
There is also a wide agreement among those writing about rights that claims about rights involve, on the one hand, claims about duties that particular agents have and, on the other, claims about the values that these duties protect or promote, which ground the claim that there are such duties.
Joseph Raz, for example, writes that “X has a right if and only if X can have rights and, other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty.” Similarly, Judith Thomson holds that rights in the strict sense are claims that have duties as correlates and that we have such claims on others just as we are subject to moral law and have inherently individual interests – those interests that, in her view, play a crucial role.
They, therefore, identify two elements in claims about rights: ‘duties’ that constrain certain agents or individuals and ‘interests’ or values in terms of which these duties are justified.
In Scanlon’s own view, too, a claim that there is a right therefore involves two claims. The first is that certain interests are of great importance; the second is that duties imposing limits on the discretion of individuals or institutional agents to act in certain ways are necessary to protect these interests and that there are such constraints which are feasible – that is to say, which provide this protection at an acceptable cost to other interests.
It is, therefore, vital to note that ‘duties’ (which a right involves) are held to be justified by the fact that if they are enshrined in law or otherwise recognised; they serve to protect certain important ‘interests’.
This is where one needs to ask Prime Minister Modi a question: In his reliance on duties, which ‘interests’ do the fulfilment of those ‘duties’ likely protect for Indian citizens? Are there any ‘fundamental rights’ that need to be protected at all?
The Indian constitution
As Gautam Bhatia has eloquently illustrated in his book, The Transformative Constitution, at the time of framing India’s constitution, while writing its chapter on fundamental rights, there were two important concerns for Constituent Assembly:
The first was that under the colonial regime, Indians were treated as ‘subjects’. Their interests did not count, their voices were unheard and in some cases, they were treated as less than human.
The first role of the fundamental rights charter, was, in Bhatia’s words, “to stand as a bulwark against dehumanisation”. “Every human being, no matter who they were or what they did, had a claim to ‘basic dignity’ and ‘equality’ that no state could take away, no matter what the provocation.” One needn’t perform any ‘duty’ to qualify to be a rights bearer.
The second role of rights, as Bhatia argues, was to stand against hierarchy. Fundamental rights were meant to serve as guarantees against ‘forced labour’, against ‘untouchability’, against ‘discriminatory access to public spaces’ and others; they were meant to “play an equalising and democratising role throughout society and to protect individuals against the depredations visited on them by their fellow human-beings”.
Without the moral compass of rights, as enshrined in India’s constitutional charter, any language emphasising the role of ‘duties’ in a solitary tone (as the Prime Minister’s speech does) will consequentially be harmful or would fail to protect the ‘interests’ of the claims that a rights-based discourse represents in India’s constitution: to treat everyone, with dignity, as ‘human’ and treat everyone ‘equally’.
There are essential duties that citizens have and are cognisant of. Paying taxes and fines, following laws, not committing violence against others and so on are part of a citizen’s responsibility, termed as ‘duties’. But citizens can only commit to these duties when their basic rights are reciprocally safeguarded and protected.
Rights and their corresponding duties remain two sides of the same coin. Giving one more weight or importance over the other, or pitting one side against the other, reflects badly on the moral significance both.