ARTICLES : on Human/Civil Rights

Morality, Legality, and Human Rights: Gandhi and Ambedkar in a Rights Framework

Munmun Jha

Introduction

Gandhi has been attributed as being the inspiration or model for various rights struggles around the world. In seeking to understand the notion of human rights in the context of the approach and ideology of Mahatma Gandhi, let us examine the notion of human rights. What are human rights? Are they moral rights, or are they legal rights? Then we focus on the Indian context, sketching the views of Gandhi, and contrasting these with those of Ambedkar, his arch-rival and the architect of the Indian constitution.

The Notion of Human Rights

The term “human rights” has been made familiar by its use in today’s international political discourse, and the prominence accorded to it by the media. However, its meaning is not always apparent or indisputable. Without going into abstract philosophical debates, it would suffice to say that a right is something to which we are entitled. This word in ordinary English usage not only means a “lawful entitlement”; it also means a “just entitlement.”1
“Human rights” is an even more complex term. The idea of human rights or the rights of the individual is commonly associated with the various forms of liberal individualism as they developed in the West.
The human rights movement, as we know it today, began in order to check state violation of constitutional rights or norms and make the state more accountable. More specifically, it is the result of the experiences of the Second World War. There seems to be international political consensus on the list of rights in Universal Declaration of Human Rights, which is explicitly endorsed by all nations. However, there is a lack of consensus among philosophers, political scientists, and rights scholars on the philosophy, origins, or justifications of the ideas of human rights. Other questions that occupy them relate to the universality of human rights and to the status of social, economic, and cultural rights.2
While most authors believe that human rights are vital, they disagree about the nature and source of authority of human rights. They argue that without a legal status, rights cannot be enforced. In this debate it is important to note that where human rights are upheld by laws, they can be both moral as well as legal rights.
In this very context, the question of the justification of human rights is perhaps more fundamental: How does being human give rise to rights? According to a moral or philosophical approach, human rights are necessary to human dignity.3 Some of the sources of legitimacy identified are religion or morality modified by medieval philosophers, and later espoused by political thinkers who saw human rights as derived from the principles of the law of nature―contending that human rights stem from a higher law than the state. The positivists, on the other hand, contend that all authority stems from what the state and officials have prescribed.4

In the modern Indian context, Mohanty contends:

Rights have been conceptualized not as claims recognized by the state but as political affirmations pursued through struggles. This is not to say that rights need no sanction of the state. It is to assert that even if they do not have the state sanction they are rights because they are accepted by the current stage of the human civilization as basic conditions deserved for every human being. The struggle for rights seeks state recognition but pursues it in society and culture to further realize it in practice.5
This is indeed how it was in the colonial period and in the 50 years after national independence.6 But this way of looking at it brings human rights closer to the notion of natural or moral rights. Or, is it, in the Gandhian perspective, imposing a duty on the state to recognize the rights of the people? Gandhi’s notion of human rights is closer to the views of the moralists. And interestingly, the view of Ambedkar, is that rights are positive rights.

Gandhi: The Moral Perspective

What was Gandhi’s ideology as far as human rights are concerned? As the leader of the national freedom movement, Gandhi’s objective was to attain independence, but his other objective was to save Indian society, and more specifically, Hinduism. He insisted that India should show her capacity to reform herself even while asking for freedom. His method of integrating nationalist aspirations within the framework of social reform explains his extraordinary tactics, for example, his manner of suddenly calling off a movement when the nature of the movement turned violent.7
An important aspect of Gandhi’s reform was that it had to take place absolutely within Hinduism. This was illustrated in Poona in 1931 when he fasted to exact from Ambedkar his withdrawal of the demand of a separate electorate for the Untouchables.8
His thrust was that of a social reformer campaigning amongst the higher castes of the Hindu community, propagating social acceptance of the Untouchables by the community. In this process, he renamed the Untouchables “Harijans” (sons of God).
Gandhi’s programme of social reform was based on duties rather than on rights. He said very clearly that he did not care for rights, but for duties:
If all simply insist on rights and no duties, there will be utter confusion and chaos. If instead of insisting on rights everyone dies his duty, there will immediately be the rule of order established among manking.9
Not only did he value duties more than rights, but went further to say that the assertion of rights might even be harmful:
While it is true that….hereditary inequalities must go as being injurious to the well-being of society, the unabashed assertion of rights of the hitherto downtrodden millions us equally injurious, if not more so, to the same well-being. The latter behaviour is probably calculated to injure the millions rather than the few claimant of divine or other rights. They could not die a brave or cowardly death but those few dead would not bring in the orderly life of blissful contenetment.10
He argued that if there were any rights at all, it could only be the result of well-performed duties:
It is therefore necessary to understand the correlation between rights and duties. I venture to suggest that rights that do not flow directly from duty well-performed are not worth having. They will be usurpations sooner discarded the better.11
When someone does not perform his duty in relation to someone else, Gandhi takes the example of the prince and the ryot (peasant). He says that if princes, whose duty is to act servants of the people, fail to perform their duty, “the ryots not only owe no return duty, but the duty devolves on them of resisting the princely usurpation. It may be otherwise said that ryots earn the right to resisting the usurpation or misrule.” This resistance must, however, be peaceful, in keeping with the doctrine of ahimsa (nonviolence): “The resistance will become a crime against man in terms of duty if it takes the form of murder, rapine, and plunder.”12
When H.G. Wells13 sought Gandhi’s opinion on the “Rights of Man” drawn up by him, Gandhi argued for a “Charter of Duties” instead. The text of the cable that Gandhi sent to Wells sets out his views regarding rights and duties in no uncertain terms.14
Received your cable. Have carefully read your five articles. You will permit me to say that you are in the wrong track. I feel sure that I can draw up a better charter of rights than you have drawn up. But what good will it be? Who will become its guardian? If you mean propaganda or popular education, you have begun at the wrong end. I suggest the right way. Begin with a charter of Duties of Man (both M and D capitals) and I promise the rights will follow as spring follows winter. I write from experience. As a young man I began life by seeking to assert my rights and I soon discovered I had none, not even over my wife. So I began by discovering and performing my duty by my wife, my children, friends, companions, and society and I find today that I have greater rights perhaps than any living man I know. If this too tall a claim, then I say I do not know anyone who possesses greater rights than I.
Gandhi takes the attitude of a social reformer calling upon the higher castes to accept the Untouchables. He does not say that the Untouchables have rights, but says that upper castes have a duty towards them. When he advocates resistance, he adds that it must be done in the manner of Satyagraha—that is, not by asking for rights, but by showing the other person what his duty is. It is obvious that Gandhian notions are not sympathetic to human rights unless they are products of duties well-performed.

Ambedkar: The Legal Perspective

Gandhi’s views can be contrasted with those of Ambedkar (1892-1956). Though both championed the cause of the Untouchables, their approaches differed widely.
The Untouchables were designated as Scheduled Castes under the Government of India Act of 1935—and this term is still in use. Gandhi had started and popularized the term Harijan for the Untouchables (though many saw it as patronizing). Ambedkar, however, continued to use the term Untouchables.15 The term now being increasingly used for them is “dalit” denoting “the oppressed.”16
Ambedkar characterized the national movement led by Gandhi as the “struggle for power distinguished from freedom” and accused all political parties of showing no concern for the cause of the Untouchables. He firmly believed that the caste Hindus would not concede any rights to the Untouchables due to the very nature of Hinduism itself: “The Hindus have an innate and inveterate conservatism and they have a religion which is incompatible with liberty, equality, and fraternity, i.e. with democracy.”17 It might be said that he simply did not trust the Hindus.
His position thus led him to assert that the Hindus and Untouchables were “not merely different by antagonistic,” and demand that the Untouchables ought to be treated as distinct from the Hindus. He advocated a separatist policy, including radical changes in the village system, that is, forming separate Scheduled Caste villages, with land and money for settlement to be provided by the government. He called this the “New Life Movement,” whose object was to “free the Untouchables from the thralldom of the Hindus.”18
Thus he advocated reservations in government and legislatures, in public services, judiciary, revenue and police services for Untouchables on the basis of “minimum qualification”—and not on the basis of “highest qualification”—for he argued that “self-government is better than good government” and that “good government based on highest qualification will be a communal government.”19
While dismissing the idea of a purely territorial constituency, which would “only enable the Hindus to collect and concentrate all political power in their hands,” and mixed electorates, where the representative would at best only be a “nominal representative” not a “real representative” of the Untouchables, Ambedkar argued that there should be separate electorates, that is, an electorate composed exclusively of Untouchable voters who would elect Untouchables as their representatives to the Legislature. His argument was that the caste basis of the Hindu society required this kind of political structure. He believed t hat only constitutional provisions could guarantee rights to the Untouchables. 20

Concluding Remarks

The wider concept of claims is still the starting point for the understanding of the term “rights.” Those claims which are in accordance of with some objective standards, whether those of a code of morality or those of a legal system—are usually and aptly called rights. Depending on the basis of recognition, they may be called moral or legal rights.21 Thus rights which are laid down in law are called legal rights. They may be defended in a national court of law. Rights arising out of general principles of fairness and justice are called moral rights. A moral right may or may not be supported by the law of the land. Moral rights are thus claimed by “people in particular situations.” They are not rights that can be claimed by all people in all situation.22
In spite of theoretical debates, any movement for social or political reform which claims to be promoting freedom in some form or other (social justice, social transformation, etc.) is guaranteed a measure of respect. Few among us would want to be identified as hostile to freedom of human rights. Rights organizations play a significant role in promoting and protecting the rights of individuals and groups, often mediating between them and the state. A large number of rights organizations in India see questions of human rights as necessarily having a moral slant; but as they seek solutions to various kinds of abuses, they are often forced to recognize the paramount importance of the role of governmental agencies.
To accept Gandhi’s notion that rights and duties are two sides of the same coin would be too simplistic. It can be valid only in an ideal world, but since we live in the grim reality of humans fighting not only for resources, but for self-respect and dignity, the notion of rights assumes added significance. The notion of duties has sadly been used by those in position of power either to deny rights to others, or to dole out peaceful favours, eroding not only the dignity of the recipients of such so-called favours, but also eroding the power of the others to work towards standing on their own feet.
Though Gandhi did not agree to becoming a part of Nehru’s civil liberties organization, he nonetheless has become a symbol for rights organizations all over the world. Similarly, Ambedkar is a symbol of dalit identity, inspiring several social and political movements with a view to restoring dignity to the so-called lower castes. Zelliot has aptly summarized the relative positions of Gandhi and Ambedkar.
Gandhi sought to change the heart of the caste Hindus by moral pressure within the framework of Hindu tradition. Ambedkar continued to work in the fields of education and politics in an attempt to gain legal rights for the Untouchables in the secular world.23
Ambedkar’s methods and solutions for the advancement of Untouchables, through legal and constitutional measures seems more in tune with the realities of Indian social order than Gandhi’s attempt “to change the caste Hindus.” It is not surprising, therefore, that the guiding ideology of the Untouchables, scheduled castes, and other backward castes in modern India is that of Ambedkar rather than that of Gandhi. It is also amply clear that the final aim of both the leaders was the same—to achieve some kind of equality among different strata of people, to end exploitation, and to ensure a life of dignity for all.
Both the leaders have thus in their own ways been responsible for the establishment and ideological sustenance of a large number of organizations that claim to work in the field of human rights.

Source: Gandhi Marg, Vol. 26, No. 3, October-December 2004

Notes and References

1. David Selby, Human Rights (Cambridge: Cambridge University Press, 1987), p.7.
2. Jack Donnelly, International Human Rights, (Colorado, Westview Press, 1993), p. 25.
3. Jack Donnelly, International Human Rights, p. 21.
4. Jerome J. Shestack, “The Jurisprudence of Human Rights,” in Theodor Meron, ed., Human Rights in International Law: Legal and Policy Issues (Oxford: Clarendon Press, 1984), Vol. 1, pp. 75-83.
5. Manoranjan Mohanty, “The Changing Definition of Rights in India,” in Sujata Patel, Jasodhara Bagchi, and Krishna Raj, eds., Thinking Social Sciences in India: Essays in Honour of Alice Thorner (New Delhi: Sage, 2002), p. 437.
6. For a brief account of the establishment of the first human rights organizations in India, see Munmum Jha, “Nehru and Civil Liberties in India,” in International Journal of Human Rights, Volume 7, Number 3, pp. 103-115
7. An excellent example is calling of the Non Co-operation movement in February 1922 after a crowd attacked a police station in Chauri Chaura, killing 22 policemen. See A.R. Social Background of Indian Nationalism (Bombay: Popular Prakashan, 1976), p. 352
8. Louis Dumont, “Nationalism and Communalism,” in Religion, Politics and History in India: Collected Papers in Indian Sociology, Paris: Mouton Publishers, 1970, p.104.
9. M.K. Gandhi, “Rights and Duties,” in Raghvan Iyer, ed., The Moral and Political Writings of Mahatma Gandhi (Oxford: Clarendon Press, 1986), Vol. 3, p. 496. (First published in Harijan, 6 July 1947).
10. Ibid.
11. Ibid.
12. Ibid., p. 498.
13. Herbert George Wells (1886-1946), English novelist and historian; author of The Time Machine, The War of the Worlds, The Shape of Things to Come, The Outline of History, The Invisible Man, and various other works.
14. Gandhi as quoted in Raghvan Iyer, The Moral and Political Writings of Mahatma Gandhi, Vol. 3, p. 492-3. (First published in The Hindustan Times, 16 April 1940).
15. B.R. Ambedkar, Emancipation of the Untouchables (Bombay: Thacker and Co. Ltd., 1972), p. 15. (First published in 1943). For a discussion of various terms for the Untouchables, see Harold R. Isaacs, “The Ex-Untouchables,” in Michael J. Mahar, ed., The Untouchables in Contemporary India, pp. 13-14
16. The term “Dalit” popularized by the protest movements since the 1970s, includes all backward sections, and at times, specifically the Untouchables. See Barbara R. Joshi, ed., Untouchable! Voices of the Dalit Liberation Movement (London: Zed Books and The Minority Rights Group, 1986), pp. 3-4
17. B.R. Ambedkar, Emancipation of the Untouchables, pp. 52-53.
18. Ibid., pp. 15-18, 32-33, 37 and 40.
19. Ibid., pp. 16 and 31
20. Ibid., pp. 15-16 and 24-30
21. F.E. Dowrick, ed., Human Rights: Problems, Perspectives and Texts, (Aldershot: Gower), p.8.
22. David Selby, Human Rights, pp. 6-8; see also Maurice Cranston, What Are Human Rights? P. 19-22
23. Eleanor Zelliot, “Gandhi and Ambedkar—A Study in Leadership,” p.86