The Tussle Between Fundamental Rights and Duties

The Charter of Fundamental Rights is contained in Part III (Articles 12 to 35) of the Indian constitution. The development of our constitution was inspired by historical events of huge importance such as the British Bill of Rights (1689), the US Bill of Rights  (approved September 17, 1787, final ratification December 15) and the Declaration of France.

These fundamental rights include: (i) Right to Equality[1], (Article 14 to 17) (ii) Right to Freedom[2], (including Right to Education) (article 18 to 22) (iii) Right to Freedom of Religion, Cultural and Education Rights, (Article 25 to 30) (iv) Right against Exploitation, (Article 23 and 24)and (v) Right to Constitutional Remedies. (Article 32)

Fundamental rights are of greater value than any other civil right Droits. The inclusion in Part III of the Constitution of them makes them distinct or unlike other civil rights, in the following manner:

1. Nothing else can dilute or abridge fundamental rights standard rules. It can be diluted or abbreviated only by amending their own Constitution. And as set out in several judgments by the Supreme Court, the fundamental Constitutional structure cannot be altered. In contrast, any Ordinary legislation may dilute another legal right

2. As mentioned in Article 13(2), “no law can be made which takes away or abridges any of the fundamental right guaranteed in Part III.”

Since no right can be absolute, so, reasonable constraints are to be built. However, restrictions should be imposed on the grounds set out in the constitution itself and can be enforced only by legislation and not by any executive orders.

The Indian constitution not only provides its citizen’s rights but also caters for the nation, i.e. what the people can nor should do for the nation in return. Hence, by 42nd amendment of the constitution[3] , article 51a was added which says that it shall be the duty of every citizen of India to

[4](a) “abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”.

(b)  “cherish and follow the noble ideals which inspired our national struggle for freedom;”

 (c) “uphold and protect the sovereignty, unity and integrity of India”

 (d)  “defend the country and render national service when called upon to do so”

(e) “promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;”

(f)  “value and preserve the rich heritage of our composite culture”

(g) “protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures;”

(h)  “develop the scientific temper, humanism and the spirit of inquiry and reform; (i) to safeguard public property and to abjure violence;”

 (j) “strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement”

(k) “who is a parent or guardian to provide opportunities for education to his child, or as the case may be, ward between the age of six and fourteen years.”

However, seeing the current scenario in the country, there’s an ongoing tendency to ward off the duties by the citizens on the sake of difference in political ideologies and mainly due to politics. Interestingly, over the decades, a trenchant drive to protect and enforce Fundamental Rights set out in Part III of the Constitution has matched the callousness toward Fundamental Duties. Indeed, the scope and definition of those rights have been significantly expanded by the highest court in the world, while this is welcomed, at the same time we can not ignore the fact that the public is ever willingly ready to exploit its rights but keeps mum on fulfilling its constitutional obligations.

The Constitution’s framers had not included ‘duties’ separately, possibly in the belief that citizens would not only be well aware of them but would be sufficiently aware to follow them. This was not the case and this is why the Constitution was revised in 1976. it can be argued that one of the reasons for the amendment could have been a desire by the Indira Gandhi regime to strengthen its hold amid the internal Emergency it had declared.

The new Part had been added following the recommendations of the Swaran Singh Committee, which suggested that steps needed to be taken to ensure that the individual did not overlook his duties while in the exercise of his Fundamental Rights (which at times led to agitations that resulted in wanton destruction of public property etc.). The panel had gone to the extent of recommending punishments for breach of such duties, but the suggestion was not accepted by the drafters of the amendment Bill. Whatever the intention may have been of the Government of that day, the fact of Fundamental Duties finding secondary importance in the legal scheme of things remains.

Article 51A begins by stating that “it shall be the duty of every citizen of India —” and proceeds to identify ten regions where those duties must be followed. This includes abiding by the Constitution and respecting “its ideals and institutions…”; safeguarding “public property” and abjuring “violence”; and, upholding and protecting the “sovereignty, unity and integrity of India”.

The insertion of the news article, many legal experts had claimed, brought the Constitution of India in line with the Universal Declaration of Human Rights. Nevertheless, the lack of legislative protection has fostered the well-intentioned definition of basic duties. In some ways, its fate was like that of the Directive Principles of State Policy — pious advisory pronouncements. The difference is that while the Principles of the Directive are addressed to States, the core duties are individual-centric. The commonality is that, for want of legal enforcement, both are essentially toothless entities. 

The judiciary has consistently made it clear that its hands are tied, and that the legislature must implement legislative initiatives by the passage of laws. The questions arise as to what chance fundamental duties will have to be enforced by legislation that is acceptable to every section of the Indian policy ecosystem when the fractious nature of Indian politics makes it difficult to implement the Directive Principles!

And even better-informed citizens can voluntarily set an example in the defence of fundamental tasks, given the absence of enforcement? There is no cause for optimism in a few recent incidents. Following a recent ruling by the apex court in the battle of primacy between the elected government of Delhi and the Lieutenant Governor, Rajya Sabha, a member of the ruling party in the state, lashed out at the court and said, “Can the Supreme Court not give a verdict against Modi’s will … Is it the Supreme Court or the Naib Tehsildar court? “It is a clear breach, which speaks about respect for institutions, of one of the fundamental duties listed in Article 51A.

Three years ago, the apex court had taken strong note of protests that caused damage to public property. It said:

“No one can hold the country to ransom during agitations.” It said people who indulged in acts of damage to public property should be made to pay. Recently, a year ago, the Bombay High Court observed:

“We are of the firm opinion that, if those causing destruction and damage to public property in the garb of holding peaceful agitation.. have to be proceeded against for civil wrongs together with criminal prosecution, then the law postulates a recovery… of monetary sums.”

None of these findings made the slightest difference to the guilty parties, because the basic duties are not enforceable until they are legislated. Given that in many cases the leading agitators are themselves, lawmakers of different political outfits, it is rich to assume that they would want legislation to curb such activities, which would give them the leverage to negotiate better deals for themselves.

We can easily conclude that the tussle between the fundamental rights and fundamental duties could only be ende4d when the citizens of the nation decide to do so. They should try to keep the faith upon themselves placed by the founding fathers of the constitution. Maybe, then only the nation could reach maximum heights, without the intervention of the executives and the legislative. 

[1]  State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

[2] It includes freedom of speech and expression, assembly, association or union or cooperatives, movement, and residence. It also includes the right to practice any profession or occupation.

[3] Came in 1976, also referred to as the mini-constitution.

[4] Taken from Constitution of India, 1950

Vipasha Shukla from SVKM’s Narsee Monjee Institute of Management Studies

Hello everyone! I am Vipasha Shukla, a second year law student who had fallen in love with psychology and social work but got happily married to law. I have been an orator for years maybe that’s why I prefer mooting rather than those boring lectures. Being a first generation would be lawyer is challenging as well as interesting. I feel much happier by knowing the ‘why’ of an act rather than delving into the bare acts and learning the sections! 

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