Context

There has been growing advocacy for the integration of duty with rights. On Constitution Day last month, many Union Ministers used the occasion to underline this proposal.

What do rights come with duty mean?

• It is a basic proposition that all rights come with duties.
• But those duties are quite distinct from the meaning ascribed to them in the popular discourse.
• When a person holds a right, she is owed an obligation by a duty-bearer.
• For example, when citizens are promised a right against discrimination, the government is obliged to ensure that it treats everybody with equal care and concern.
• Similarly, the guarantee of a right to freedom of speech enjoins the state to refrain from interfering with that liberty.

Integrating rights with duties

• Proponents of integration of duty with rights aim to treat otherwise non-binding obligations — the “fundamental duties” as Article 51A describes them on a par with, if not superior to, the various fundamental rights that the Constitution guarantees.
• In an inversion of the well-known dictum, they see duties, and not rights, as trumps.
• On Constitution Day last month, many Union Ministers used the occasion to underline this proposal.
• The government puts forward an idea that our rights ought to be made conditional on the performance of a set of extraneous obligations.

Issues with the proposal

• This suggestion is plainly in the teeth of the Constitution’s text, language, and history.
• To the framers of the Constitution, the very idea of deliberating over whether these rights ought to be provisional, and on whether these rights ought to be made subject to the performance of some alien duty, was against the republic’s vision.
• Imposing duties a legislative prerogative: The Constitution’s framers saw the placing of mandates on individual responsibilities as nothing more than a legislative prerogative.
• For example, the legislature could impose a duty on individuals to pay a tax on their income, and this duty could be enforced in a variety of ways.
• If the tax imposed and the sanctions prescribed were reasonable, the obligations placed on the citizen will be constitutionally valid.
• In this manner, Parliament and the State legislatures have imposed a plethora of duties — duties to care for the elderly and for children; duties to pay tolls and levies; duties against causing harm to others; duties to treat the environment with care, the list is endless.
• Against Constitution: What is critical, though, is that these laws cannot make a person’s fundamental right contingent on the performance of a duty that they impose.
• A legislation that does so will violate the Constitution.

Background

• The fundamental duties that are now contained in Article 51A were introduced through the 42nd constitutional amendment.
• The Swaran Singh Committee, which was set up during the Emergency, and which recommended the insertion of the clause, also suggested that a failure to comply with a duty ought to result in punishment.
• Ultimately, the amendment was introduced after the binding nature of the clause was removed.
• In its finally adopted form, Article 51A encouraged citizens to perform several duties.

Way forward

• Know the precise nature of duties the rights create: The philosopher Onora O’Neill has argued with some force that we would do well to discuss the precise nature of duties that rights create.
• Unless we do so, our charters of human rights may not by themselves be enough.
• For example, we may want to ask ourselves if the promise of a right to free expression imposes on the state something more than a duty to forebear from making an unwarranted restriction on that liberty.
•  Does it require the state to also work towards creating an equal society where each person finds herself in a position to express herself freely?

Consider the question “How fundamental duties are related to the fundamental rights in the context of the Indian Constitution? What are the issues with making the enforcement of rights contingent on adhering to the duties?”

Conclusion

When we speak about the importance of obligations, it is these questions that must animate our discussions. Should we instead allow the language of fundamental duties to subsume our political debates, we would only be placing in jeopardy the moral principles at the heart of India’s republic.

UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)

Get an IAS/IPS ranker as your 1: 1 personal mentor for UPSC 2024

Attend Now