Transformative Constitutionalism and the Dialectics of Rights and Duties in India

Abstract

The concept of social justice, equality, dignity and democratic governance in the Indian Constitution is a complex one that rests on the interplay of Fundamental Rights and Fundamental Duties that have a transformative vision. There are two categories of fundamental rights: Fundamental Rights under Part III have a focus on individual rights and freedom from arbitrary action by the State; Fundamental Duties under Part IVA have a focus on civic responsibility, constitutional morality and collective welfare. The concept of ‘transformative constitutionalism’ has grown to become a very useful lens through which the judiciary has been able to add additional constitutional values to suit the changing social landscape. This article asks the dialectical question of rights and duties in the Indian constitution and analyses the nature of balancing individual freedoms and social obligations in the Indian judiciary. It discusses the history of the Fundamental Duties since the 42nd Constitutional Amendment, judicial activism and its role in embedding the duties in the constitutional adjudication and the growing dependence on duties in other fields like environmental protection, education, gender justice, national integrity, etc. The study also examines the nature of Fundamental Duties, whether they are merely moral claims or are of substantive constitutional significance which can impact upon what rights can be actually enforced. The article, drawing upon key judicial decisions and constitutional changes, contends that transformative constitutionalism in India is not only about the rights of citizens, but also about nourishing their responsibilities towards the Constitution, promoting democratic governance and social cohesion in the present India.