Anurag deep, Prof, Faculty of Law, Delhi University

Abstract

[In this article the author proposes to discuss that duty jurisprudence is not only restricted to our ancient Indian philosophy but the framers of the constitution had in mind this ancient thought of duty first and right next. Duty in its typical Indian transcendental sense is a promise to do something [unconditionally]. The preamble itself is an embodiment of various duties. Part III invokes duty on State in the form of various restrictions, negative and positive obligations to ensure human rights in the form of fundamental rights is enforced unconditionally. With reasonable restrictions duty is also imposed on citizens to honour restrictions. Moreover, a few fundamental rights like article 15(2), 17, 23, impose duty not only on the State but also on Citizens which shall be punishable under article 35 to insist how significant and inviolable this duty is. They indeed are exceptional legal instruments to enforce basic human rights . Now Kaushal Kishore case[2023] makes article 19 also a duty on citizens. Human rights are also enforced through Part IV, which makes it a "duty of the State to apply" even if it is not independently enforceable by court. Part IVA is the express embodiment of this duty jurisprudence. This research paper explores the idea of duty jurisprudence in the Constitution and also evaluates to what extent the stakeholders were able to realise the dream of architects of the constitution in enforcing human rights through duty jurisprudence.]

Perspective

It is often said that “rights and duties are two sides of a coin” because the observance of the duties “creates the proper environment for enjoyment of rights”. The ‘duty jurisprudence’ is a term which is not frequently used in the academic discourse. Among the western legal thinkers and schools, there are only a few like the French jurist Leon Duguit who advances the concept of duty. “His objective was to supplant the traditional system of legal rights by a system which would recognise only legal duties. The only right which any man might be said to possess under this theory is the right always to do his duty.” Duty jurisprudence is often understood as if it is about the duties of citizens only and in this sense it has a limited meaning. In Indian context the year of 1976 is said to be the launching pad for duty jurisprudence when the constitution of India recognised fundamental duties under article 51A. However, it will be an unfair assessment because the constitutional architecture has recognised the duties of citizens under various provisions since the beginning of 1950. These duties can be traced in the “solemn resolve” under the Preamble, horizontal approach under the express provisions of fundamental rights and the recent judicial pronouncement by the constitution bench in Kaushal Kishore case. Classical approach of duty imposed on States and new approach of duty on the individual can ensure a welfare state. It is rightly said that the “advancement and protection of human rights is our pious duty.” This terminology (duty jurisprudence) has further liberal meaning and scope for this paper. It includes the duty of State and non-state actors ( like private sectors, groups and individuals). However, it is desirable to begin with conceptual understanding of human rights.

Human Rights

Human rights literally mean the rights of human beings. Basic human rights are inherent, inalienable, innate rights which are co-existent with the life and liberty of a person. They are essential for human dignity. Jurisprudentially speaking they owe their origin to natural law and therefore are called as natural rights. As natural law has devine origin, they are the mandates of superior order and therefore also termed as rights recognised by higher law. Universality of nature makes human rights universal in nature. At the same time they are interdependent as well as interrelated. Origin of human rights may be traced in the philosophy of treating people good or bad.

Human Rights as Positive Rights

People may treat each other ‘well’ or ‘badly’. If they are motivated by love, generosity, gratitude, co-operation, and creativity they treat others ‘well’. On the contrary if they are driven by hatred, greed, envy, competitiveness, and destructiveness they will treat others ‘badly’. Deeply buried somewhere in that observation are the origins of what are today called ‘human rights’. In the beginning these rights were mere moral precepts without positive contents, in the sense that they could not be enforced as legal rights. This is why the term Human Right was not known to the legal world prior to the 20th century. Western thinkers trace the origin of human rights in the Magna Carta, 1215. “By declaring the sovereign to be subject to the rule of law and documenting the liberties held by “free men,” the Magna Carta provided the foundation for individual rights in Anglo-American jurisprudence.” King John “had a basic desire to give good government to his subjects”. Such desire was the recognition that the sovereign had certain “duties” though not mandatory and individuals could claim certain rights, subject to the desire of the king. In the process of the development of the concept of Human Rights the first stage was the inclusion or recognition of these rights in various national documents/constitutions. The ground, therefore, was prepared for the launching of an international movement for the development of norms and standards for universal recognition. First came the fundamental freedom for which the constraints and limitations were on the State authority like non infringement of liberty without authorities of law. Such limitations conceive the idea of duty of states. Afterwards the concept of positive rights under the name of Human Rights matured. For example, provision for food so that no one dies because of hunger. Such positive rights inaugurated the idea of positive duties. As a later development the rights came to be classified with ‘generational approach’. First generation rights are civil and political rights. The State has a binding duty to fulfil it and the State cannot argue lack of resources. For example primary education is free of cost. They were followed by second generation rights as social, economic, and cultural rights. Many of these rights imposed duties on states which are non-binding in nature. State can argue lack of funds. Like higher education to all free of cost or covid19 test of anyone free of cost. Subsequently, the third generation of human rights, variously termed as solidarity rights and collective rights has emerged. They include the right to development, right to the environment. The duties of the State are hybrid in nature because they are a blend of binding and non binding duties. This generational approach is useful only as a broad classification and not straight jacket pigeon holes.

One of the challenges with human rights discourse is the definitional dilemmas. There are hardly any international instruments which define human rights precisely. India has taken a lead by providing a statutory definition of human rights under the Protection of Human Rights Act, 1993. It is as under:

“human rights” means the rights relating to life, liberty, equality, and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.

This description is unique because even the fundamental documents like UDHR, ICCPR, etc do not dare to define human rights though they provide some idea of what they meant by human rights and further enumerate it under various provisions. Before 1993 India recognised human rights in the form of guaranteed and unguaranteed rights in the constitution of India. Part third of the constitution contains fundamental rights and part four contains directive principles of the state policies. The human rights in the Indian constitution extends to various other provisions of the constitution of India like Right to Property under article 300A, rights under article 301-308. There are a number of statutes that also recognise and enforce human rights, like the Right to Information Act, 2005I, Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), Protection of Children from Sexual Offences Act, 2012 etc. Hundreds of State and Union enactments impose duties and confer rights on individuals and States. The rights duty discourse in modern India is influenced by the western theories.

Western Philosophy

In the western philosophy States led by Kings were presumed to be above any duty. The King was supposed to be the representative of God. His command was the law. The reason, reasonableness, necessity, proportionality or morality of his command was out of question. Among the analytical positivists, one of the most influential thinkers, John Austin advocated the “imperative character of law”, which is conceived as “command of the sovereign.” “The correspondence ascertained, his duty is to obey.” Whatever he did for his subjects, was not because of any obligation but a type of mercy bestowed on the subjects. The concept of rule of law was hardly known. The idea of “King can do no wrong” is a later reflection of this very philosophy. In other words the King was above law, indeed he was the law. His decisions used to be arbitrary and therefore atrocious. Welfare of the people and fairness was the no or low priority. The protection, preservation and promotion of the interest of the King was the top priority. The rights of people were at the mercy of the State functionaries. They were trampled and violated aggressively. Therefore, in the later period the thinkers and architects of the constitution were focussed on rights. The ‘rights jurisprudence’ caught the attention of scholars and volumes have been devoted by various experts which pushed it at the centre of intellectual discourse. The international instruments also advanced this rights regime for individuals. Rights discourse led to the obligation of the State which was debated and determined at various levels. However, the idea of ‘duty of individuals’ remained peripheral in the western thought process. Western thinkers trace the origin of rights in the Magna Carta, 1215. “By declaring the sovereign to be subject to the rule of law and documenting the liberties held by “free men,” the Magna Carta provided the foundation for individual rights in Anglo-American jurisprudence.” King John “had a basic desire to give good government to his subjects”. Such desire was the recognition that the sovereign had certain “duties” though not mandatory and individuals could claim certain rights, subject to the desire of the king. The regime of the Kings and colonial rulers which were devoid of any mandatory duty towards individuals were oppressive and suppressive in nature. This has developed a great desire for rights. As the State was almost restrictionless and the rights of individuals were the casualty the constitutional development insisted on rights of individuals and restrictions on States only. The US constitution is the pioneer in the constitutionalisation of rights duty dynamics being the oldest known written constitution. The first ten amendments of the US Constitution, often called the Bill of Rights of 1781 comprised only rights of individuals and restrictions on States. The State was made duty bound not to infringe or abridge the fundamental rights. The duty jurisprudence is expressly limited to imposing obligations on States only. The constitution of the USA does not contain any express restrictions on the rights of people. Restrictions on rights of individuals are a form of duty on the individuals. In other words the constitutional jurisprudence does not include the citizen in its duty regime. It is why the fundamental rights in the USA is said to be a “near absolute” model of the rights regime. The duty is for the States only and not for the individuals. The restrictions on individuals means duties of individuals. Such restriction was invented by the Supreme Court of the USA through various judicial pronouncements. For example,in Schenck (1919) the Supreme Court propounded the theory of "clear and present danger". In other words an individual is obliged not to create clear and present danger against the state interest. It was the beginning of an implied duty which attracted various criticism as well as celebrations. If this implied duty is breached, that conduct could attract criminal action besides civil remedies. The rights regime was restored to considerable extent in the case of Brandenburg. One can do whatever s/he likes pleasant or unpleasant but s/he has the duty to see that the conduct does not sleep into “imminent lawless action.” There was again a shift in Holder v. Humanitarian Law project. The fundamental right to join an organisation comes with the duty not to join a terrorist organisation. It shall attract penal consequences.

Rights Regime : The Initial Bottlenecks

However, the journey of the “rights regime” in the west was not a journey of fairness and equality because the right seekers never wanted the right for all. The Magna Carta was worried for “free men” and not all human beings. The French Declaration of Rights of Man,1789, intended to consider Man as more deserving of protection. The US constitution of 1787 did not propose fundamental rights because they were uncomfortable with the notion that 'women' can also get rights similar to a 'man'. It was more troublesome for them to think that even 'blacks and slaves' will have similar rights vis a vis those of whites and masters. Under the pressure of the agrarian States the USA passed the first ten amendments in 1791. But even then it did not contain the right to equality. The reason was the hard and ugly fact that the drafters of the Bill of Rights had reservations for women, blacks and slaves. If rights are provided to them equally, it would impose duty on States and other powerful bodies which were dominated by whites. In 1868 the fourteenth amendment of the US constitution incorporated the equal protection clause. The State has a duty to treat everyone equally. However, the duty to treat black and white equal was understood as formal and not substantive. In Plessy v. Ferguson, the US Supreme Court held that if fares of trains, other facilities are the same, it does not amount to violation of equality. This is known as “separate but equal” doctrine. If we contextualise it with duties, the black passengers had the duty not to occupy the seats made for whites (and vice versa). Ultimately in Brown v. Board of Education of Topeka, the aberration was rectified. Such separate and exclusive seat arrangement was declared violative of the principle of equal protection clause. The constitution of India makes elaborate provisions of right to equality under article 14 to 18, right against exploitation (article 23-24) as the architects of the constitution were very well aware of the problem because of the Dred Scott case, Plessy v. Ferguson etc. Our constitution declared in 1949 what Brown had achieved in 1954. Indian wisdom has been more conscious of duties and rights since ages.

Duty under Indian Philosophy

The ancient Indian philosophy centered around the idea of duty and the rights of individuals did not get wide recognition. The Indian norm of a duty oriented society automates the fulfillment of rights of others. It is argued that there is no need to enforce rights once duties are taken care of. Ancient Indian wisdom was more advanced. The Indian system was regulated by dharma. यतो धर्मस्ततो जयः [where there is dharma, there is jaya] was the controlling idea of governance. The meaning was that wherever there is righteousness, there is victory. The concept of dharma was more basic than that of law because law was made by human beings but dharma was the command of almighty. There were scriptures and statements which mandated that the King is duty bound in various respects. He was also bound by law. Brihadaranyaka Upanishad states that “Law is the King of Kings, far more powerful and rigid than they; nothing can be mightier than Law, by whose aid, as by that of the highest monarch, even the weak may prevail over the strong.” The wisdom of Gita कर्मण्येवाधिकारस्ते मा फलेषु कदाचन। is a spiritual inspirational mandate for the Kings and their subjects. In other words, unlike ancient western philosophy, in India the ruler as well as the ruled both were bound by duties. Both were treated equally before law, and both were bound by law. Though India had the established concept of “dharma and duty” the architects of the constitution did not follow the ancient roots but relied more on modern development of the rights regime. Initially the interim report on the fundamental rights presented by Sardar Patel contained a very broad collection of civil, political, economic, cultural, educational rights. However, it was finally divided into fundamental rights and directive principles of the state policies. Fundamental rights imposed binding and enforceable restrictions on states. The state is duty bound not to infringe fundamental rights subject to the reasonable restrictions provided in the constitution itself. On the other hand, directive principles of the state policies expressly imposes that “it shall be the duty of the State to apply these principles in making laws.” The rights duty dynamics has been condensed in the case of Supriyo @ Supriya Chakraborty v. Union of India(2023) popularly known as Homosexual Marriage judgement as under:

Fundamental rights are characterized as positive rights and negative rights. In fact, some draw a distinction between fundamental rights (Part III) and the Directive Principles of State Policy (Part IV) by arguing that the former consists of negative rights and the latter of positive rights. In constitutional theory, negative rights are understood to involve freedom from governmental action whereas, positive rights place a duty on the State to provide an individual or a group with benefits which they would not be able to access by themselves.

In case the fundamental rights are violated by States, article 32 and article 226 imposes a duty on the Supreme Court and the high courts to protect fundamental rights. In case of directive principles of the state policies section 37 imposes a duty on judiciary not to enforce it through writ independently.

Constitution of India : A blend of Rights Duties Dynamics

The inclusion of Part III in the constitution of India demonstrates the western idea of rights based model led by the US constitution. However, there was a crucial difference. The Indian model of rights regime has not followed the US model blindly. It has learnt from the experiences of the jurisprudential developments of the US. While the express provisions of the US constitution presents a "near absolute" model of rights the constitution of India does not copy it. The architects of the constitution led by Dr Ambedkar designed a model which can be termed as the "Rights with Restrictions" model. Restrictions on the fundamental rights of individuals which can be imposed by the State under the umbrella of the constitution of India. Whenever restrictions are expressly imposed, it is the duty of the citizen to honour the restrictions. Article 19(1) recognises six basic human rights in the form of fundamental rights. At the same time it prescribes restrictions on the citizen under article 19(2-6). In other words the right to freedom of speech and expression comes with duties not to speak in an irresponsible manner because it may lead to legal consequences. The consequences of not observing these duties are not limited to civil consequences only. They can lead to penal consequences under statutes like the offence of defamation under section 499 or the Contempt of Court Act, 1971. Indeed with the passage of time the fundamental rights were further restricted and duties in the form of restrictions were enhanced in the constitution. The very first amendment of the constitution in 1951 placed two more restrictions under article 19(2). After 12 years of the republic, article 19(1)(a) was further restricted through the sixteenth amendment of the constitution in 1963. Not only the restrictions were increased, the right was also reduced. In 1978 right to property was taken out of part III (fundamental rights) and placed in another part of the constitution. This has diminished the value of the right to property as human rights. Such dilution was essential as the States experienced various obstacles in the discharge of their obligations under part four of the constitution of India. Rights model in India was different from the USA and was further restricted because the fundamental rights can be suspended during Emergency except article 20 and 21. Freedom of speech and expression is automatically suspended.

Horizontal presence of duty

The constitution of India contains duties through its horizontal presence in the fundamental right part. In order to understand it, it is pertinent to reproduce from another constitution bench pronouncement ie Kaushal Kishore v. State of UP which is as under:

Wherever Constitutional rights regulate and impact only the conduct of the Government and Governmental actors, in their dealings with private individuals, they are said to have “a vertical effect”. But wherever Constitutional rights impact even the relations between private individuals, they are said to have “a horizontal effect”.

The concept of fundamental rights emerged and was concretised to impose restrictions or duties on States, which is called vertical application as above, like right to equality under article 14. The state is duty bound to ensure “equality before the law or the equal protection of the laws”. However, the constitution of India has been amended to ensure that the private educational institutions are also duty bound to make arrangements for “the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes, ” or “any economically weaker sections of citizens” while taking admission of the students. It was a duty of the State only but the same has been extended to private sectors. The duty jurisprudence has received expansion.

The original constitution of 1950 was also conscious that a duty to ensure non violation of fundamental rights is not restricted to the State only. Article 15(2), 17, 23, of the constitution of India is speaking illustrations of recognition of duty jurisprudence when an individual can also be held responsible and a writ can also be issued against him under article 32 or 226. A brief description of these articles are desirable to appreciate the rights duty dynamis which is as under:

Article 15 : Duty of Individuals

Article 15 (2) -No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

If A1 is denied access to shops, hotels etc because of his faith or caste the shopkeeper, the hotel manager shall be responsible under this provision. Article 15(2) imposes an enforceable constitutional duty on them that no one is denied the use of services. These days there are social media posts which provoke people of one faith to deny access to services to people of other faiths. It is not only a violation of human rights but also a breach of fundamental rights. It is also noticeable to note that any breach of duty by any individual under article 15(2) can be remedied by following means. :

the aggrieved can go to the Supreme Court under article 32 or high court under article 226 for declaration of his fundamental right and human rights and the courts will be duty bound to issue suitable writs,
the aggrieved can also get compensation under constitutional tort which can be granted by the Supreme Court and the high courts,
the aggrieved can also get compensation under the law of tort through civil procedure,
the aggrieved can proceed in criminal court also against the individual violator of fundamental rights under suitable provisions of IPC or special legislation.

Similarly, people from LGBTQ+ cannot be denied access to shops, public restaurants, hotels and places of public entertainment because such would amount to discrimination on the basis of sex. In NALSA v. Union of India the Supreme Court has declared that Trans Gender (TG) can also claim rights under article 14 and 15.

Article 17

This provision is also applicable against individual ie non state actors. The words “practice in any form is forbidden” indicate that it is the duty of everyone not to practice untouchability. What is a unique feature of article 17 is that it criminalises the conduct of untouchability in the provision itself. The architects of the constitution did not leave it to the discretion of legislature (Parliament or State legislature) to enforce any breach of duty. This may be noticed that caste based remarks are already addressed under various provisions of IPC, viz section 153A, 153B, 499, 505. Under article 35 the Parliament is duty bound to make special penal law to punish the conduct of untouchability. It is also noticeable that criminal law is in concurrent list where Union Parliament and State legislature both can make legislation. However, article 35 takes out the jurisdiction of the State legislature and exclusively mandates that the “Parliament shall have, and the Legislature of a State shall not have, power to make laws … for prescribing punishment for those acts which are declared to be offences under this Part.” Indeed such provision is not in conformity with the rules of federalism but the makers of the constitution were more worried for uniformity and seriousness in the enforcement of the duty not to practice untouchability. It is further corroborated by the fact that the Parliament was asked to pass legislation “as soon as may be ”. This leads to the inferences that for the enforcement of certain rights and breach of duties the framers of the constitution did not want to put off the matter for the future legislature to decide. In pursuance of this mandate the Parliament passed the Untouchability (Offences) Act, 1955 which became the Protection of Civil Rights Act, 1955 through amendment in 1976. The Scheduled Tribes (Prevention of Atrocities) Act, 1989 is also passed.

Article 23-24

Article 23 and 24 come under the sub head “Right against Exploitation” which is also a horizontal application of fundamental right. It is available against State or non State actors. Article 23 also criminalises the conduct and mandates the Parliament to make suitable laws as discussed above in context of article 17. Trafficking in human being, forced labour was already punishable under various provisions of IPC like section 370. However, to fulfil the constitutional mandate the Parliament passed The Immoral Traffic (Prevention) Act, 1956 (ITPA). Article 23(2) presents a unique reflection of duty jurisprudence because it permits “compulsory service for public purposes”. Article 24 is also applicable against individuals, factory owners, mine managers etc.

New Dimension of Article 19 : Emergence of Duty

Unlike article 15(2), 17, 23 and 24, article 19 is never considered as a fundamental right against individuals. It was always thought that freedom of speech and expression is available only against State and not against non State actors. However, Kaushal Kishore v. State of UP held that “A fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities.” This is a further and horizontal extension of article 19. Freedom of speech and expression is one of the most important fundamental rights. It is also a human right under various international institutions like UDHR and ICCPR. The internet revolution has transformed this human right. Social media has given this right to all rich and poor. It has given a new description to creativity. At the same time it has reduced the difference between responsible and irresponsible speech. Social media is being used to protect human rights as well as to violate human rights. It has put pressure on powerful bodies to protect human rights. Aggrieved persons take to twitter when FIR is not registered or investigation is not conducted properly. At the same time rumours and fake news have led to killing of innocent people, riots, people taking law in their hand. Youtube is being used for radicalisation against caste or religion or race etc. This is a gross violation of human rights. After Kaushal Kishore judgement this human right can be enforced against individuals also. This will make individuals more responsible. Now the eight restrictions under article 19(2) can be applicable against individuals also. A defamation by A1 against A2 will also cause a constitutional wrong besides civil and criminal wrong. In many cases criminal law cannot give remedy because it is applicable only in more serious cases. Now constitutional remedies may be sought in these cases. It may be a new beginning of enforcement of duties of individuals.

VI. Absence of Fundamental Duties in Original Constitution : Possible Reasons

Despite the awareness about the significance of duties and the duty oriented ancient Indian foundation, the architects of the constitution did not provide space for fundamental duties of citizens in the original constitution. Such absence was also noticeable because the constitution is detailed enough to cover various aspects. It could have easily incorporated one more page. Following reasons may be attributed for this absence:

Moral reason: The makers of the Constitution were freedom fighters. They spent several years in jail. They performed their duties towards the nation, towards society They forgo their personal amenities, sacrificed their family life and pleasure. According to them, duties are something which are inherent in a human being. They need not be written. If someone comes at home, we ask our children to do pranam (a form of greetings). We do not write a charter of duties at our home. These things are something which travels from generation to generation and flows automatically. These moral duties are part of human civilisation. they are universal in nature. Indians are more passionate about moral duties which are cultivated because of a joint family system. Therefore, they thought these are inherent amongst us and will come from the values given at home.
Education - They also thought that the education imparted at school will also inculcate duties. In other words informal education at home and formal education at schools will impart this value called duties. Such values are also widely acknowledged and not likely to be controversial. Therefore, there was no need to write this.
Constitution as basic norm only--Third reason may be the idea that a Constitution is something which involves only essential, important aspects of the life of a country which may create some disputes. In order to reduce disputes the provisions are required to be written. The constitution is not made to write everything.
Horizontal application--The makers of the constitution were aware that Part III of the constitution ie fundamental rights do contain duties of citizens. Article 15(2), 17, 23,24 etc which are horizontal applications as discussed above include mandatory duties of citizens.
Reasonable restriction as Duties-The express restrictions under article 19 or article 25 also impose duties on the individuals. In the original constitution article 19(2) contained six limitations on individuals. Article 25 contains around ten restrictions. Every such limitation or restriction is a duty on the individuals.
Preambular promises as implied duties- In the Preamble ‘we solemnly resolve’. When we resolve, it means we make a promise. Every such promise is as good as a duty. Ramcharitmanas says “ रघुकुल रीत सदा चली आई, प्राण जाई पर वचन न जाई”. (Promises are made to be kept, even at the cost of life. Promises are meant not to be broken). We have given our promise at the very first page itself. We have promised to the entire nation. The promise is not to the government. It is not by the government. It is by “we the people”. We solemnly resolve “secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity;” It is written. we the people have given it to ourselves. The responsibility is not of the government. The responsibility of the government is in Part III and other parts. Preamble talks about our own responsibilities. It is our responsibility that we fulfil the promise we have made. We promised to each other justice, liberty and equality. To fulfil our promise is nothing, but our duty. National Commission To Review The Working Of The Constitution (NCRWC) Report(2002) also suggests:

1.2.6 Secondly, the duties were spelt out by the Preamble to the Constitution which contains the ideals and aspirations of the people of India and the dedication of Constitution for fulfilling such ideals and aspirations. We have solemnly resolved to secure to all the citizens of India justice, liberty, equality and fraternity. Whatever is needed to achieve these goals, is our obvious duty to perform – is a dictate of the Preamble.

Therefore, maybe, this was the reason there was no need of mentioning Fundamental Duty when the constitution was drafted.

VII. Fundamental duties under the Constitution : Background

Then why were fundamental duties provided if the framers of the constitution thought it is not desirable? The answer rests in the context and history. As the background has a direct nexus with rights duty dynamics, a brief elaboration is desirable.

Emergency: The Decline of Moral and Constitutional Duties

The High Court of Allahabad through Jagmohan Lal Sinha, J. has declared the election of Indira Gandhi, as Member of Parliament as illegal and void because of corrupt practices on June 12, 1975. She was the Prime Minister ofIndia. Justice Sinha has demonstrated the highest level of courage and his commitment to its constitutional duty. He indeed sacrificed his career also. Had he delivered a verdict in favour of Indira Gandhi, he must have been elevated to the Supreme Court. This path breaking judgement led to three significant but sad developments to establish that during hours of crisis how does the three wings of the State discharge their duties. Firstly, To secure her post of the Prime Ministership the Government of India declared emergency under article 352 on the ground of internal emergency on June 25, 1975. The union executive issued this proclamation breaching the procedure provided in the constitution. Another proclamation of emergency was already continuing since 1971 on the ground of war. On behalf of the political executives the opposition leaders, activists and even innocent people were stuffed in jail. Some of them were tortured and killed. Secondly, to legitimise the position as Prime Ministership the power of Parliament under article 368 was abused when 39th Amendment of the constitution was passed on August 10, 1975. This amendment had set aside the judgement of the Allahabad High Court and declared the election as valid. Indeed this was the beginning of the old idea “King can do no wrong” where the King was above rule of law. Thirdly, on April 28, 1976 the constitution bench of the Supreme Court delivered its infamous verdict of Additional District Magistrate,Jabalpur v. S. S. Shukla which held that the citizens have no fundamental right under article 21 and a writ of habeas corpus cannot be issued. There is no hesitation in stating that the Supreme judiciary failed miserably to perform its duties in the constitution. Indeed in this testing time, the high courts were more duty conscious than the Supreme Court of India. The high court Allahabad declared the election of Indira Gandhi as illegal. The Delhi High Court, Gujarat High Court, Bombay High Court declared that fundamental rights are not suspended for all purposes. A habeas corpus can be issued. Bombay High court has gone to the extent of permitting a gathering of lawyers to discuss civil liberties. However, the Supreme Court demolished all this effort to protect, preserve and promote human rights. These three incidents of executive, legislature and judiciary are interconnected and have a common thread. They all show the weakness of the democratic institutions. If the institutions of democracy are weak, human rights can never be protected. All three wings of the State abused Human rights, civil liberties and fundamental freedom were crushed by the executive.

Swaran Singh Committee

Due to the emergency there was demand for restoration of democracy, democratic values, rights, freedom and liberty of individuals. There was pressure on the State to perform their constitutional duties. The regime thought to counter the clamour for “rights” of individuals and “duties” of the State. Therefore, they came with the idea of duties of citizens. On February 26, 1976 All India Congress Committee constituted a twelve member committee headed by Swaran Singh to formulate a list of fundamental duties. The Committee took note of the fact that foreign jurisdictions do have the provisions of fundamental duties. In Japan the constitution states that the freedom and rights guaranteed to the people under the constitution shall be maintained by the constant endeavour of the people who shall refrain from any abuse of these freedoms and will be responsible for utilizing them for public welfare. The constitution of Finland, (as amended in 1957) imposes a duty on the citizens to take part in the defence of the country. Vietnam also imposes various duties on its citizens, viz the duty of every citizen to respect and protect public property.

In August 1976 the Swaran Singh Committee proposed eight duties including duty to pay taxes. He also proposed radical provisions for enforcement of fundamental duties. The Committee empowered the Parliament to enact law to penalise non performance of duties. Moreover, it debarred the jurisdiction of the courts in these cases on the ground of violation of fundamental rights or repugnancy with other provisions. However, on the point of fundamental duties the 42nd Amendment Act passed with three changes. The penal sanction, the exclusion of the judiciary, was dropped. The content of fundamental duties were changed. Some were dropped and some were added. Finally ten fundamental duties were incorporated under Part IVA, article 51A of the constitution. The 43rd and 44th Amendment of the Constitution brought during the Janata Party regime had undone many changes made in the 42nd Amendment but 51A remained untouched which can be said to be deemed approval. In other words, article 51A has the unique distinction that it had the support of almost all the political parties. It was an express support during the 42nd amendment and implied support by 44th amendment. The eleventh fundamental duty was added through the 86th constitutional amendment in the year 2002, which made a citizen duty bound to provide opportunity of education to their children between the age of six to fourteen. In 2002 itself the Justice Venkatachaliah Committee also recommended two more duties to add. The foundation of fundamental duties was suspicious. But it was good work done because for a big country like India the mention of fundamental duties is essential to create a persuasive value of a legal system.

VIII. Fundamental duties : An Internal Aid to Interpretation

The provisions under article 51A have also been used by the judiciary in the interpretation of the constitution and other laws. Rural Litigation & Entitlement Kendra v State of Uttar Pradesh and M.C. Mehta v. Kamal Nath has relied upon the article 51A(g). Chameli Singh v. State of UP, used article 51A (j). Balaji Raghavan v Union of India held that national awards do not violate the article 14. Rather they motivate the citizens to achieve excellence and rise to higher levels, a fundamental duty under article 51A (j). Bijoe Emmanuel v. State of Kerala has expended the doctrine of liberty by upholding the right of students who are followers of Jehovah's Witnesses not to sing the song. The Court noted that article 51-A(a) of the Constitution which enjoins a duty on every citizen of India "to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem." However, the court held that if the students have respect for the national anthem, there is no need to sing it. Vishaka v. State of Rajasthan can be seen in the light of 51A (e) “…to renounce practices derogatory to the dignity of women”. In Hon'Ble Shri Ranganath Mishra v. Union of India a letter was written by the former Chief Jurisprudence of India to highlight the importance of fundamental duties and to pass necessary directions to the government. The Supreme Court took note of the reports of two expert bodies, viz Justice J.S. Verma Committee on operationalization of fundamental duties of citizens (1999) and Justice MN Venkatachaliah Report of the National Commission to Review the Working of the Constitution(2002). The Supreme Court agreed with the report of Justice Venkatachaliah and Verma Committee that awareness and social sanction is more useful to enforce duties.

IX. Concluding Remarks: Enforcement of Fundamental duties

If a law cannot be enforced, it is mere moral precept. The life in law comes with its enforcement. Regarding enforcement of fundamental duties there are three questions. Is it desirable to enforce fundamental duties? Is it constitutionally permissible to enforce fundamental duties? And is it possible to enforce fundamental duties?

The issue of desirability of enforcement of fundamental duties has been addressed by the Justice Verma Committee, Justice Venkatachaliah Commission, PIL of Justice Rang Nath Mishra etc. The year 2019 was marked by the Government of India with “Nagrik Kartavya Palan Abhiyan from 26th November 2019 to 26th November 2020, to create mass awareness about the Fundamental Duties as enshrined in our Constitution.” In 2023 the Government opined that "Amrit Kaal has been named as Kartavya Kaal". These indicate that desirability of enforcement of fundamental duties is well established.
The second question is regarding its legal enforceability. Are the courts empowered to enforce it? This is a pure legal question. Enforceability of a law has three classifications in the constitution of India.

Certain provisions are declared as enforceable. For example fundamental rights. Article 32 and article 226 expressly mandate that writs can be issued (and has to be issued in appropriate cases) for the enforcement of Part III.
Certain provisions are declared as non enforceable by courts. The directive principles of the state policies under article 37 states that “The provisions contained in this Part shall not be enforceable by any court.” However, the judiciary has made it enforceable with Part III but not independently.
For certain provisions there are neither mandate to enforce by the courts nor express prohibition for the enforcement by the courts. Part IVA, fundamental duties is one such illustration. Can the silence of the constitution as to enforceability by the court be treated as an area of discretion for the court whether to enforce or not enforce. When fundamental duties were incorporated the Parliament had both the models. One expressly states enforcement and other expressly states prohibition on enforcement by judiciary. Is it a chance omission in Part IVA or a deliberate omission? This is also to note (as discussed in previous pages) that the Swaran Singh Committee had proposed that penal sanction has to be imposed for non enforcement for which the Parliament was required to make a law. However, the final provision dropped that provision for penal sanction. What was the intention of the Parliament? It seems the Parliament was not sure about the enforcement through an enactment and it left the question open either for the future Parliament or for the judiciary to dilate on it. Can the judiciary enforce it? To deal with such situations there are two distinguished authorities with two contrary approaches. Justice Cardozo observes that :

It is true that codes and statutes do not render the judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are doubts and ambiguities to be cleared. There are hardships and wrongs to be mitigated if not avoided. [[emphasis added]

On the other hand Jeremy Waldron insists that the gap or ambiguity plays differently for State and non State actors. If there is a gap, the benefit will go to non State actors. If a law is silent on a certain thing, the individual (non state actor) can successfully argue that his conduct is permissible under law and he need not look for an express authority under law. On the other hand if a law is silent a state actor (here judiciary) ought to look for authority and cannot argue that law does not prohibit which means law permits or authorises it. This author feels that the approach of Justice Cardozo is the correct approach because enforcement of duty assigned to a citizen has great potential to promote human rights. To enforce human rights the judiciary can and has to walk an additional mile. It has to dilute the idea of separation of power to a limited extent. If the Parliament has not expressly prohibited the enforcement of fundamental duties, this authorises the judiciary to enforce it in suitable cases.

C. The issue of feasibility is the most complex question. There are various laws to enforce fundamental duties. First four provisions of article 51A may be considered. The Emblems and Names (Prevention of Improper Use) Act, 1950; The Prevention of Insults to National Honour Act, 1971; Unlawful Activities Prevention Act, 1967, section 124A etc are laws to enforce it. Article 51A (e) can be enforced by the National Service Act, 1972. Article 51A (f) can be enforced by section 153A, 153B, 295A etc of IPC. For the protection of the dignity of women there are various laws. The difficulty is that the provisions of fundamental rights cannot be enforced through a comprehensive enactment. The Protection of Human Rights Act, 1993 contains a provision for human rights courts under section 30. It has been thirty years that human rights courts are not notified or working well. The reason is not only infrastructural but also overlapping of jurisdiction. Which types of cases the Human rights court will examine. The States already have SCST court, Mahila court, Juvenile Boards, etc. Is it possible to merge them to human rights courts? Another issue is the reluctance of the State governments as to the creation of the State Human Rights Commission. Section 21 of the PHRA, 1993 gives discretion to the State government to set up a human rights commission as section 21 uses the words “a state government may constitute a body…”. The Supreme Court has to interfere and interpret “may” as “shall” in the case of Shri Dilip K. Basu v. State of West Bengal. When the discretionary duty is changed into mandatory duty States have started implementing the provisions of the PHRA, 1993. In such a scenario it seems a pipe dream that the enforcement of fundamental duties through courts can be a strong possibility.

Six Ways to Enforce Fundamental duties

There may be six ways to enforce the PHRA, 1993 or fundamental duties. First is educative means. As submitted earlier, education at home and schools can be helpful. Second is persuasive means. This may be done by using medium of mass communications, social media, conferences etc. Third is an incentive way of enforcement. To encourage people through incentives, rewards and recognition if they do good work. An informer of FIR, an eye witness of an incident, a whistleblower, a samaritan etc has to be recognised and rewarded. Fourth is compulsive. The environment is created in such a fashion that the parties are required or compelled to follow a human rights approach. This can be done by use of technology and monitoring etc. The digitalisation and link of AADHAAR with bank accounts has helped millions to get subsidies and other benefits. It is compulsory to have an account which has checked leakage. Fifth is coercive. If duty is not performed or performed well, civil action or administrative action shall be taken, like show cause, inquiry, suspension. Sixth is punitive measures,like those under criminal laws. But this measure should be the last measure.

anurag deep

Sunday, 31 August 2025

Enforcement of Human Rights Through Duty Jurisprudence: A Perspective

Perspective

Human Rights