Fali Nariman recently remarked that we are fortunate to have a charter of rights in the Indian Constitution: the right to life, liberty, equality, freedom of expression, association, religion, education, and rights against various forms of exploitation. Why is this so? What is it in the discourse of rights that is absent in other constitutional moralities? The short answer is that a rights-based morality helps build a free and equal society. How so?
Underlining our moral equality
Imagine two tracts of land equal in size, bisected by a fence, one belonging to me, an ordinary man with modest means, and the other to a very rich and powerful man, say, a local politician. Over a period of time, I detect that the entire fence has shifted towards my side of the land, substantially reducing its size and, correspondingly, increasing the size of the politician’s land. To reclaim my land, I have two options. Recognising the asymmetry of power between us, the first is to plead with him to restore the status quo. I request, I urge, I implore, but I dare not challenge him. He is mighty strong, and if he resolves to usurp the entire land, nothing can stop him. So, I supplicate with folded hands, hope that out of pity he will give it back to me. The second is to demand that he returns the land to me because I have a right over it. I do not ask him for a favour nor prostrate before him. I go to him as an equal, with dignity and self-respect, and demand what is rightfully mine. Moreover, since my right over the land is justiciable, I may seek the court’s intervention in restoring the fence to its original position. So, one of the functions of rights is to underline our moral equality — that no one is intrinsically superior or more powerful than me and my moral worth is the same as that of anyone else. The discourse of rights is a part of an egalitarian ethic, substantially different from the ethics of hierarchical societies.
Another way of putting it is this: by representing their viewpoint, rights assist the vulnerable, the powerless. By empowering them, they help overcome their vulnerabilities. And not only the poor and the powerless. We live under conditions where strong emotional ties are sundered, where bonds of affection and loyalty are easily frayed, where conflict is lurking round the corner, where enough power is concentrated in states, corporations or communities to render all of us vulnerable. Rights help not only those who experience permanent vulnerability but also those who are sporadically threatened by it. Rights are protective guarantees when all else fails. They are ‘fallbacks’ which come into play when love and affection disappear (for instance, from family relations) or become impossible (as in a large society of relative strangers among whom love is inconceivable).
Interpersonal relations
Rights have another advantage: they are grounded directly in ordinary interpersonal relations. The idea that human killing is wrong is part of virtually every ethic, god-dependent or not. What then is the difference between someone refusing to kill a person because god commands him not to and someone who refuses to do so because the person has a right not to be killed? It is this: in the first ethic, we don’t kill primarily because of our obligation to god. The moral value of the demands of others is secondary. In the other, we are constrained primarily because of what we owe directly to another person. We tell ourselves that regardless of whether god exists or not, we recognise that to be alive is such a significant interest of all humans that we have a duty not to deprive them of it. No matter how strongly it is in my interest to kill someone and even if my own god commands me to do so, I will refrain from killing, because the other person’s need to live puts me directly under an obligation not to kill.
A mother does not have to be told that she needs to feed her child because god commands so, and must respond instantly to the cries of her child; analogously, humans must respond to the impersonal demands made on each other in formal settings, to each other’s rights. Once people learn the culture of rights, they understand directly, without intervention from an external force, what they owe each other. If a child has a right to education, the state must respond to this demand and fulfil it. If a person has a right to express her views, then all others must respond to her demand not to be prevented from doing so.
There is an irony in Mr. Nariman’s remark; its undertones betray a lament that currently rights talk seems ineffective, toothless. But rights are important. They give voice to the powerless, address the vulnerabilities of all, help us meet demands we legitimately make on one another — which is why we are grateful to those who bequeathed them to us.
