Authored by Aadithya J Nair, 3rd-Year Law Student at The National University of Advanced Legal Studies
“Ask not what your country can do for you; ask what you can do for your country,”
said John F. Kennedy, the former President of the United States of America, espousing the obligation an individual owed to the State.
A petition had been filed in the Supreme Court in February 2022, duties based on the need to enforce fundamental duties due to misuse of fundamental rights. The matter was, however, unresolved and hopefully will be at some point clearly confronted by the judiciary. This is even more important, especially in the political scenario of today, where law and order have been threatened by anti-secessionist strikes, for instance, the Khalistan movements, which have caused significant tensions between India and Canada in recent times.
Theories of Rights and Duties
In his book, ‘Two Treatises of Government,’ English philosopher John Locke discusses individualism and the liberty of individual conscience and the magistrate’s role in maintaining public tranquillity and defending individual rights, thus placing more emphasis on individualism. Locke went on to explain how, otherwise, the majority might tyrannically impose laws on a minority. Such a deduction though focuses purely on rights and ignores the need for duties.
English Political Theorist Leonard Hobhouse, in his book ‘Liberalism’ famously stated that “as all social liberty rests upon restraint, (the) restraint of one-man in one respect is the condition of the freedom of other men in that respect” and emphasized that an individual’s share of rights obligates him to follow duties.
The most important theory regarding this is that of Professor Wesley Newcomb Hohfeld, a graduate of the University of California. A ‘right’, according to Hohfeld, is a legal interest that imposes a correlative duty, and how perfect liberty is a condition where no one has any exclusive right to restrain the act of another. Hohfeld’s theory talks about unrestrained rights at the cost of others and emphasizes the need for duties.
Importance of Duties
When a discussion arises as to why duties are essential, the individual vs. State relationship assumes great importance. It’s true that the State is obligated towards the individual in ensuring benefits are accrued according to clear and transparent eligibility criteria and administrating various institutions and services. However, there cannot be a valid agreement without both sides responding positively to the common cause. A system of both rights and duties allows for a stable social order that promotes progress and development.
Besides, a society that exists without them slowly gets polarised with anarchy and chaos as citizens take rights for granted to the extent of undermining the authority of the State.
The Indian Scenario
Fundamental duties were initially not a part of the Indian Constitution. However, 10 fundamental duties were added under Article 51A of the Indian Constitution under the 42nd Amendment in 1976, and an eleventh one was added by the Vajpayee government in 2002 through the 86th Amendment.
These duties are non-justiciable and possess only a persuasive value. The fundamental duties include respecting the country’s sovereignty, respecting the country’s culture, remembering the nation’s rich heritage, having a scientific temperament etc.
Why Should Duties be Made Enforceable
Often one comes across signboards stating rules like “don’t litter” or “don’t paint on walls,” yet most people would never take these seriously until punishment is imposed. Thus, fear of punishment is a deterrent to such violations of law.
Fundamental duties are meant to be a continual reminder to citizens that besides their n fundamental rights, they have duties to adhere to democratic standards of behaviour and conduct. Therefore, to bring these to practice, they need to be enforced with the fear of punishment.
Besides, the spirit of democracy involves active citizen participation, which cannot though be restricted to elections. A citizen should know that liberty is not a license to litter public places or harm the environment. Thus, there is a strong case for why even fundamental duties need to be enforced legally and not just act as guidelines.
Cases such as M.C. Mehta vs. Union of India, where the court directed the closure of Tanneries close to the river Ganges near Kanpur to prevent pollution, or the M.C. Mehta vs. Union of India (Taj Trapezium Case) case, where the court banned the usage of coal and cake and directed the industries to use compressed natural gas (CNG) instead as the toxic pollutants from the Mathura refineries were harming the historical Taj Mahal are examples where the Supreme Court was influenced by the fundamental duty that insisted on the preservation of the environment and put it to practice. Even if this case involves engaging rights, ultimately, it translates to understating the significance of protecting the environment, thus implying a clear duty to preserve the natural environment.
Further, legislations such as the Environment (Protection) Act, of 1986, Prevention of Insults to National Honour Act of 1971, and Protection of Civil Rights Act, 1955 are inspired by the fundamental duty to preserve the environment and respect national ideals and institutions.
Thus, fundamental duties have already been the basis for many important court decisions and national legislation. Therefore, a strong case exists for the enforcement of duties in such a scenario, as it is certainly better than keeping them in a legally dead format in the Constitution.
The Supreme Court in the A.I.I.M.S. Students Union vs. A.I.I.M.S. & Ors case stated, “In case of doubt or choice, peoples wish as manifested through Article 51A, can serve as a guide for constructing or moulding the relief to be given by the courts. Constitutional enactment of fundamental duties must be used by courts as a tool to tab on State action drifting away from constitutional values.”
The Supreme Court has basically recognized in the case the need for fundamental duties as a method of also checking the objectives of the state and ensuring the same doesn’t stray from the principles of the constitution. Enforcement of these duties would allow for a much easier mechanism for courts to question and review state policies.
Enforcement of duties will give states a legitimate legal tool to track out anti-national elements and effectively weed them out to ensure stability in a mutual system of checks and balances between rights and duties and allow the state to enforce and maintain its objectives.
Conclusion
This blog recommends that Article 51A of the Indian constitution be made binding and something that can be enforced in courts. Additional aspects deemed reasonable must be brought in through amendments by legislation and judicial review based on the basic structure doctrine as mentioned in the Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. There is a need for these duties to be obligatory for all citizens, subject to the state enforcing the same using a valid law, or else the law stands in a very disadvantageous position.
By making Article 51A justiciable, the state can use its contents, such as upholding of cultural values and development of scientific temper, in a more viable manner under the umbrella of enforceable rights. Besides, the judiciary too can use the provisions as enforceable duties to hold the state true to constitutional objectives. Overall, enforcement will allow for the creation of a much more stable social order.