In the present Chapter we consider the Fundamental Rights, the Directive Principles of State Policy and the Fundamental Duties. NCWRC have described these Parts of the Constitution as “the testament of the founding fathers to the succeeding generations”. They are a kind of ‘social compact’ between the citizens and the state. (We have used the term ‘social compact’ in preference to the synonymous term ‘social contract’ used by Rousseau, as the latter term might imply a kind of exchange between two parties. [1] The people are sovereign and they voluntarily surrender some of their sovereignty for common good through the instrument of Constitution; hence the connotation of an exchange relationship is inappropriate.)

Ambedkar said: “The idea of fundamental rights has become a familiar one since their enactment in the American Constitution and in the Constitution framed by the Revolutionary France. The idea of making a gift of fundamental rights to every individual is no doubt very laudable. The question is how to make them effective? The prevalent view is that once the rights are enacted in law then they are safeguarded. This again is an unwarranted assumption. As experience proves, rights are protected not by law but by social and moral conscience of the society. If social conscience is such that it is prepared to recognise the rights which law proposes to enact, rights will be safe and secure. But if the fundamental rights are opposed by the community, no Law, no Parliament, no Judiciary can guarantee them in the real sense of the world.”

It is precisely such social and moral conscience implied in the concept of dharma that has sustained India over the millennia. In the Indian traditions, sovereignty of dharma is greater than that of the king or of the state. [2]

Dharma “includes the whole social conception of law and conduct and worship. -- It is the instinctive sense of what to do and what not to do in daily life and behaviour that is the source of liberty and ease. And it is this instinctive sense of obligation that is the chief foundation of society”, explained Sister Nivedita. [3]

Dharma supports and sustains all living beings in the entire world. [4] Dharma is enunciated for the progress of all beings and in order to prevent injury to beings. [5] Where dharma prevails success is guaranteed. [6] See Chapter Ten for further elaboration of the concept of dharma.

According to Manusmŗti, there are four different sources of dharma, namely, the Veda, the tradition, the conduct of good people, and one’s own conscience (priyam ātmanah). [7] Sarvepalli Radhakrishnan said that the former three make for social order, but the last guarantees social progress. [8] Conscience is “nothing unnatural, irrational or mysterious; it’s the mind of a man when it is passing a moral or ethical judgement.” [9] And, doubts about dharma should be settled not by blindly following the letter of the śastras but by employing logic and reasoning. [10]

The democratic nature of dharma is evident from what Manusmŗti says: “Whatever law is agreed upon by an assembly of ten people or more, or even three people or more who persevere in their proper occupations, that law should not be disputed.” [11] And, deeds that go against the current opinion should not be done, though permitted by the scriptures. [12]

Everyone, including and especially the ruler(s), is bound by dharma appropriate to his calling. At the same time, no one has any absolute authority. In the performance of his dharma everyone is accountable to everyone else. It is at once a personal duty and a societal obligation. Dharma is said to be self-sustaining in the sense that the people are expected to enforce it mutually; intervention by the ruler or the government is required only when they fail to do so. [13] The obligation of dharma is thus reciprocal, mutual and communitarian.

The concept of dharma is also dynamic and temporal. Dharma is relative to yuga (age in history) and de şa (place). Dharma of one age and place may not be applicable to another age and place. [14] In Mahābhārata, in response to a question by Yudhi śtira as to whether ‘times shape the king or the king shapes the times’, Bhi śma’s unequivocal reply was that the way the king governs determines characteristics of that age and the dharma people follow. [15]

Unfortunately, we failed to take note of this very pregnant concept at the time of framing the Constitution. It is tragic that the NCRWC have also fought shy of referring to it now.

Dharma and Fundamental Rights

According to the principles of dharma, there is nothing called a right; there is only a duty.[16] Gandhiji said: “The true source of rights is duty. If we all discharge our duties, rights will not be far to seek. If leaving duties unperformed we run after rights, they will escape us like a will-o’-the-wisp. The more we pursue them, the farther will they fly. The same teaching has been embodied by Krishna in the immortal words: ‘Action alone is thine. Leave thou the fruit severely alone.’ Action is duty; fruit is the right.” 

A true Hindu feels in the marrow of his bones that his dharma is to preserve the social order. People mutually enforce dharma (rakş anti parasparam) because they realise that by doing so they protect their own welfare (dharmo rakşati rak ş itah[17]). For true Hindus, democracy is not a form of government but a way of life governed by mutually agreed, mutually enforced and overarching dharma.[18]

In any event, mere specification of the rights without incorporating what is expected on the part of the citizens would not bring about a harmonious social order. The minimum that is expected of the conferee is that he or she would follow the common discipline laid down. Aristotle said that the virtue of a citizen lies in “how to govern like a freeman and how to obey like a freeman.” Again, Gandhiji said: “A born democrat is a born disciplinarian. Democracy comes naturally to him who is habituated normally to yield willing obedience to all laws, human or divine. Let those who are ambitious to serve democracy qualify themselves by satisfying first this acid test of democracy.” Unfortunately, the aspect of the citizen’s duties was ignored at the time of drafting the original Constitution, an omission made good later through the Forty Second Amendment though hardly ever enforced.

Moreover, duties and rights are not matters merely between the individual and the state. They impact on the social institutions into which the citizens enrol or are born. These institutions form a vital link between the citizen and the state in enforcing both the duties and the rights. Excessive individualism focusing on the individual apart from the community is quite at variance with the Indian conception of the community being the basic unit of social organisation.[19]

In the Indian tradition there was well-understood delimitation of the respective boundaries of the political and social institutions, all of which were co-operating agencies for the promotion of common weal.[20] Another important feature was that these intermediate social and political institutions were not constituted adopting a uniform pattern. This “pluralism has been the most characteristic feature of the ancient Indian polity through the ages”.[21]

Undue emphasis on individual rights and portraying the state as a kind of ‘devil’ out to frustrate these rights could become a self-fulfilling prophecy. Far too much burden would be cast on the state if it were to protect the individual rights all by itself. This might well end up making the state becoming larger and more powerful than it ought to be, trampling on the rights of the individual citizens eventually. Protection of individual rights and enforcement of individual duties must become the responsibility of every citizen and of every social institution. 

The correct approach in the Indian context, then, seems to be not to look at Fundamental Rights, Fundamental Duties, and Directive Principles of State Policy in separate compartments. Rather, the objectives sought to be achieved through the Constitution should be specified in such a manner as to cast the joint responsibility for achieving them on the individual citizens, the social institutions and the state. For example, for the materialisation of a child’s right to elementary education, the child himself has some responsibility, then the family, then the community in which the family lives, and finally the state. It is very difficult to put their respective responsibilities in watertight compartments.

There need be no fear that such a composite specification of the objectives would let the state of the hook. We can be proud of the fact that the Supreme Court in India has built up such an admirable array of case law on the Directive Principles of State Policy that what were once thought to be unenforceable have virtually become enforceable.[22]

The Social Compact

The Fundamental Rights, the Fundamental Duties, and the Directive Principles of State Policy (both existing and proposed) should thus be merged into a single Part of the Constitution with the title The Social Compact. The first Clause in that Part may enunciate the principle that the enforcement of both the rights and duties is the joint responsibility of the citizens, the social institutions comprising the citizens, as well as the state. Every other Clause should be subject to this first Clause. (We are using a different nomenclature ‘clause’ to avoid confusing it with the Article in the present Constitution.)

The suggested first Clause and some of other Clauses are listed below. The rationale behind some of the Clauses has been discussed above; in respect of others it will be evident in the following Chapters. The list includes several new Clauses relating to the social and economic rights recommended for inclusion by NCRWC. The list also includes some new Clauses related to the political economy and good governance that should form part of any modern Constitution but sadly do not.

 

    1.            The individual citizens, the various social institutions comprising the citizens, and their collective embodiment the state, shall, separately and together, enforce the duties and rights set out in the following Clauses;

         Provided that it shall be lawful for any social institution to place reasonable restrictions on the activities of its individual members so as not to impede the exercise of the duties and rights by all the members; and

         Provided further that it shall be lawful for the state to place reasonable restrictions on the activities of the individual citizens or of the social institutions, as the case may be, so as not to impede the exercise of the duties and rights by all the citizens and by all the social institutions.

Note: All the succeeding Clauses of the Social Compact shall be subject to this Clause.

    2.            The family is the natural and fundamental social institution and is entitled to protection by the society and the state. Men and women of marriageable age have a right to marry and to found a family. No marriage shall be entered into without the free and full consent of the intending spouses.

    3.            Every human being, including the foetus in the womb, has the inherent right to life. No one shall wantonly or arbitrarily extinguish any life.

    4.            Every expectant mother and every nursing mother, regardless of their social or economic status, have the right to nourishment and healthcare adequate for the healthy and full growth of the foetus and the newborn child; every such mother has also the right to leave from work with full wages.

    5.            Every child shall have, without any discrimination as to race, colour, gender, language, religion, national or social origin, property or birth, the right to such measures of nourishment and child care as are required; every child has the right to protection from all forms of neglect, harm and exploitation.

    6.            Every child has the right to free education until he completes the age of eighteen years[23]. Parents have a prior right to choose the kind of education that shall be given to their children.

    7.            Every person has the right to safe drinking water, sanitation, and an environment that is conducive to one’s heath and wellbeing.

    8.            For living in dignity as befits a civilised society, every citizen has the right to irreducible minimum standards of food, clothing, shelter, health and medical care and other social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control

         Provided that he accepts the reciprocal obligation to pay such taxes, perform such work or render such service as may be stipulated keeping in view his capabilities.

    9.            Every citizen has the right to rural wage employment for a minimum of eighty days in a year.

10.            The expenditure to be incurred by the state in pursuance of Clauses 4 to 9 shall be shared by all the persons resident in the state in proportion to their income.

11.            The Constitution and its ideals and institutions, the National Flag and the National Anthem shall be respected at all times.

12.            The sovereignty, unity and integrity of India shall be upheld and protected at all times.

13.            Every citizen shall defend the country and render national service when called upon to do so.

14.            The harmony and the spirit of common brotherhood amongst all the people of India, transcending ethnic, religious, linguistic and regional or sectional diversities, shall be promoted at all times; practices derogatory to the dignity of women shall be renounced.

15.            Every citizen shall value and preserve the rich heritage and culture of India.

16.            Subject to Clauses 1 to 10, any section of the citizens residing in the territory of India or any part thereof practising a distinct faith or having a distinct language, script or culture of its own shall have the right to conserve the same, including the setting up and administration of educational institutions.

17.            There shall be compassion for all living beings; the natural environment including forests, lakes, rivers and wild life, shall be protected and improved.

18.            Public property shall be safeguarded and violence abjured at all times.

19.            Scientific temper, humanism and the spirit of inquiry and reform shall be developed in every citizen.

20.            Every citizen shall at all times be committed to discipline in whatever he does, be unremitting in his work ethic and strive towards excellence in all spheres of individual and collective activities so that the nation constantly rises to higher and higher levels of endeavour and achievement.

21.            The state shall strive to enable every citizen to develop his full potential and give of his best.

22.            Every citizen has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

23.            The state shall ensure that there is equal pay for equal work for both men and women.

24.            The state shall so conduct its affairs that it meets the aspirations of, and is accountable to, all the citizens and not merely to particular segments thereof.

25.            Social, political and economic justice shall inform all institutions of national life.

26.            The maximum well being of all citizens shall be secured without compromising the well being of the future generations.

27.            The environment shall be protected so as to prevent pollution and ecological degradation, for the benefit of the present and future generations. And, the process of economic and social development shall be such that natural resources are conserved and the development is ecologically sustainable. 

28.            The state shall not undertake any responsibility that can be effectively discharged by a social institution or the citizens on their own.[24]

29.            Every citizen and every social institution shall have the right to practice any profession, or to carry on any occupation, trade, business, manufacture or service. Trade, commerce, and intercourse shall be free throughout the country.

30.            The state and every social institution (other than the family) shall conduct their affairs with transparency, with full participation by the citizens or the members as the case may be, and shall be fully accountable to them.

31.            The state shall help evolve suitable forms of social institutions, create an enabling environment for the institutions to perform, and ensure that there is level playing field for institutions engaged in like activities.

32.            The enabling environment to be created shall include the guarantee of autonomy in their sphere of working, the legal, social and physical infrastructure as well as a stable and predictable policy framework including the fiscal policy framework.

33.            The affairs of the social institutions shall be so conducted that they are accountable to, and meet the aspirations of, all the citizens (not merely their members or their immediate clientele), and all the future generations (not just the present generation).

34.            The social institutions (other than the family) or associations of social institutions shall achieve the objective set out in Clause 33 primarily through self-regulation. The state shall step in to regulate when such self-regulation is inadequate.

35.            The regulatory framework by the state shall promote healthy competition and shall include stricter overseeing in the case of monopolies and quasi-monopolies; the state shall also undertake policy measures to prevent their growth.

36.            The integrity of the legal system shall be ensured such that contracts are honoured and debts repaid[25].

37.            The integrity of the price system shall be ensured such that no producer or trader is compelled to sell any good or service below its cost price.[26]

38.            The integrity of the financial system shall be ensured such that no institution is compelled to lend or invest money against its best judgement.

39.            The integrity of the fiscal system shall be ensured such that public revenues raised are adequate to meet public expenditure.[27]

40.            Everyone, including every social institution, shall voluntarily pay the taxes and other charges levied by the state. The tax laws shall be simple entailing low administrative and compliance costs for the state as well as the taxpayers, the tax base as wide as possible, and the tax rates as low as possible.

41.            The effective tax rate for any tax for general purposes on any business engaged in services, trading, manufacture, imports or exports shall not exceed ten per cent of the aggregate of all incomes generated by it.

42.            The effective tax rate for any tax for general purposes on goods and services at any point shall not exceed ten per cent of the value added at that point.

43.            The effective tax rate on personal income below the income level of twenty times the average per capita income shall be uniform and shall not exceed twenty per cent,

         Provided that the contribution made under Clause 10 above shall be set off against the personal income tax payable,

         Provided further that the entire revenue from the personal income tax shall be utilised only for the purpose of redressing the inequalities, and

               Provided further that the sum may be distributed in the form of cash, food stamps or tax credits.

44.            The state shall make incidence analyses of all its tax and public expenditure programmes. The state shall follow the principle of “last man first” in arranging the priorities of public expenditure.

45.            The state shall not undertake any activity or take any policy decision that has the effect of widening the inequalities in income.

46.            The criterion to judge whether inequalities are widened at the national level shall be that the share of national income accruing to the top ten per cent of the households shall not be more than ten times the share of the bottom ten percent of the households.[28]

 

47.            The state shall endeavour to minimise inequalities among different groups of people and as between different regions in the country.

48.            No citizen or institution shall be discriminated against on grounds only of religion, race, caste, language, gender, place of birth or any of them; no citizen shall be subject to any disability, liability, restriction or condition with regard to access to any public place on grounds only of religion, race, caste, language, gender, place of birth or any of them;

Provided that nothing in this Clause shall prevent the state or any institution from making any special provision for children, women, the handicapped, the Scheduled Castes, the Scheduled Tribes, or any socially or educationally backward class of citizens.

49.            All citizens shall have equality of opportunity in all the civil, political, social and economic matters;

         Provided that nothing in this Clause shall prevent the state or any institution from prescribing for any specified purpose a requirement as to residence within a specified area;

         Provided further that nothing in this Clause shall prevent the state or any institution from prescribing for any specified purpose a requirement as to the religion, race, caste, language or gender of the person; and

Provided further that nothing in this Clause shall prevent the state or any institution from making any special provision for children, women, the handicapped, the Scheduled Castes, the Scheduled Tribes, or any socially or educationally backward class of citizens. 

50.            Every citizen has the right and the opportunity to take part in the conduct of public affairs, directly or through freely chosen representatives; every citizen has the right to vote and the right to get elected in the periodic elections.

51.            Every citizen shall have equal access to public service.

52.            Everyone has the right to liberty and security of person.

53.            Everyone has the right to liberty of movement and the freedom to choose his residence.

54.            No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honour and reputation.

 

55.            Everyone has the right to freedom of thought, conscience and religion; and, everyone has the right to hold opinions without interference.

56.            Everyone has the right to freedom of expression and freedom to seek, receive and impart information and ideas of all kinds.

57.            Every person and every institution shall have equality before the law and equal protection of the laws;

Provided that it shall be permissible to impose a higher penalty for the same offence committed by persons in responsible positions.

58.            Deprivation or acquisition of property shall be by authority of law and only for a public purpose.

59.            There shall be no arbitrary deprivation or acquisition of property,

Provided that no deprivation or acquisition of agricultural, forest and non-urban homestead land belonging to or customarily used by the Scheduled Castes and the Scheduled Tribes shall take place except by authority of law which provides for suitable rehabilitation scheme before taking possession of such land.

60.            Everyone has the right to speedy justice at affordable cost.

 

All the Clauses in the Social Compact shall be enforceable against the state, the concerned social institutions and the citizens in the same manner as the Fundamental Rights are enforceable against the state under the present Constitution.

Amendment to the Constitution

The following amendments are suggested to the Constitution.

Amendment 2

The title of Part III Fundamental Rights may be changed to Social Compact and various Clauses mentioned above incorporated therein, with such additions and alterations as considered appropriate. Parts IV and IV-A may be omitted.