A false confluence between duties and rights

Should our rights be mixed with our duties? In recent times, it has been a matter of constant refrain of the ruling class to advocate the integration of duty with right. Here by duty he does not mean the concomitant obligations that emanated from constitutional promises, but a set of ideals that were enshrined in the Constitution during the Emergency imposed by Indira Gandhi. In his belief, these otherwise non-binding obligations – “fundamental duties” as Article 51A describes them – should be treated on par, if not superior to the various fundamental rights guaranteed by the Constitution. Unlike the famous dictatorship, they see duties, not rights, as Trump does.

voice and opinion

On the occasion of Constitution Day last month, several Union ministers outlined the proposal. Law and Justice Minister, Kiren Rijiju claimed that our country can be made great only when “we strike a balance between Fundamental Duties and Fundamental Rights”. Culture Minister G. Kishan Reddy took this idea even further. “Today, on Constitution Day, it is important that we emphasize our fundamental duties for the growth and progress of our country,” he wrote Hindustan Times, “If a diverse and democratic country like India is to have deep roots, then citizens have to combine their fundamental rights with their fundamental duties.” Moreover, the link between fundamental rights and duties, according to him, was not just a constitutional debate, but a “civilizational discussion” – whatever that meant.

To be sure, it is a basic proposition that all rights come with duties. But those duties are quite different from the meanings they convey in popular discourse. When a person has a right, he has the obligation of a dutiful. For example, when citizens are promised a right against discrimination, the government is bound to ensure that it treats all with equal care and concern. Similarly, a guarantee of the right to freedom of expression mandates the state to refrain from interfering with that freedom.

It is in this sense that rights and duties go hand in hand. But the government’s position proposes something far more ominous. It puts forward a view that our rights should be made conditional on the performance of a set of external obligations. This suggestion is clearly enshrined in the original text, language and history of the Constitution.

rights, limits

The Constituent Assembly was clear in its belief that the emphasis of the Constitution should always be on individual dignity. That is, the main objective of the Constitution should be to protect and guarantee, among others, basic human rights, equality, autonomy and liberty. For the framers, the idea of ​​deliberating whether these rights should be provisional, and whether these rights should be made subject to the performance of a foreign duty, was contrary to the vision of the Republic.

But the importance of moral liberty of each individual did not mean that rights were seen as absolute warrants. After all, Part III of the Constitution, in which our Fundamental Rights are enshrined, has certain limitations within it. However, none of these restrictions impose a burden on citizens to perform duties as a condition for enforcement of rights.

The framers of the Constitution saw the placing of a mandate on individual responsibilities as nothing more than a legislative prerogative. Any such imposition would have to be in line with the language of the Fundamental Rights, but Parliament was otherwise free to dictate individual behavior. For example, the legislature may impose a duty on individuals to pay tax on their income, and this duty can be enforced in a variety of ways. If the tax imposed and the prescribed restrictions were justified, the obligations imposed on the citizen would be constitutionally valid.

many duties

In this way, Parliament and state legislatures have imposed a number of duties – the duty to look after the elderly and children; Duty to pay tolls and levies; Duty against harming others; The list of duties to take care of the environment is endless. However, what is important is that these laws cannot make a fundamental right of a person contingent on the performance of the duty imposed on him. Doing so would violate the Constitution.

Now, no sane person is arguing that such duties are insignificant. To maintain our society, to live together in peace, we must take our civic responsibilities seriously. But anything aimed at centralizing these obligations and merging our rights with duties is only aimed at undermining the Constitution. This is evident from the history of Fundamental Duties in India.

In its original form, the Constitution did not list any obligations a person was bound to perform. Fundamental duties which are now covered under Article 51A were introduced through the infamous 42nd Constitutional Amendment. The Swaran Singh Committee, which was set up during the Emergency, and recommended the inclusion of the clause, also suggested that failure to perform duty should result in punishment. Ultimately, the amendment was introduced after the clause’s binding nature was removed, but its intent was clearly expressed in the then Law Minister HR Gokhale’s claim that the provision was “anti-national” and “subversive”. but would have “a serious impact”. “Classes of Society.

In its final adopted form, Article 51A encouraged citizens to perform a number of duties: to cherish and follow the noble ideals that inspired the national struggle for independence, among others; To uphold and protect the sovereignty, unity and integrity of India; To render national service to the defense of the country and when called upon to do so; To protect and improve the natural environment; and for the protection of public property.

When the Emergency came into force, these directives were largely seen as innocuous—for one, they were considered too vague to make any meaningful difference. But today, when our popular discourse emphasizes the need to emphasize duty over right, the basic ethos of the Constitution is once again in jeopardy. What is overlooked by these demands is that the social revolution that the Constitution initiated was based on the belief that it was only a guarantee of rights – unaffected by duty – that would help lead India towards a free and egalitarian future. can.

questions to ask

This does not mean that human rights are sufficient by themselves. Philosopher Onora O’Neill has argued with some force that it would be good to discuss the precise nature of duties that constitute rights. Unless we do so, our Human Rights Charter by itself cannot be sufficient.

For example, we might want to ask ourselves whether the promise of the right to free expression imposes something other than a duty on the state to avoid imposing unreasonable restrictions on that freedom. Does the state need to work towards creating an equal society where every individual finds himself in a position to express himself freely? Similarly, does the right to life include an affirmative obligation on the state to provide shelter, livelihood and health care?

When we talk about the importance of obligations, it is these questions that animate our discussions. Should we instead allow the language of Fundamental Duties – as enshrined in Article 51A – to feature in our political debates, we will only endanger the moral principles at the heart of the Republic of India.

Suhrith Parthasarathy is an Advocate practicing in Madras High Court.