Saranya Ravindran

This piece is an analysis of the enforcement of fundamental duties, as enumerated under Article 51-A of the Constitution of India. To that effect, it analyses the current philosophical understanding of fundamental rights and whether duties can be enforced on similar grounds, and then evaluates the impact such enforcement would have on fundamental rights enshrined in the Constitution.

Introduction and Context

In the run-up to celebrating 75 years of independence from colonial oppression, Prime Minister Narendra Modi had a rather interesting critique of Indian Constitutionalism. He claimed that the primacy accorded to rights over the last 75 years while “forgetting one’s duty has played a huge role in keeping India weak“. About a month later, advocate Durga Dutt filed a petition in the Supreme Court seeking the enforcement of fundamental duties of citizens as enshrined in Article 51A. Later, the Madras High Court observed that rights and duties should be enforced in an equal manner. Ravi Shankar Prasad, took to the Indian Express, calling for duties to be treated at par with rights. His successor Kiren Reju also called for a “balance between fundamental duties and fundamental rights”. Most recently, Justice Vikram Nath observed that fundamental rights have to be read along with fundamental duties in Part IV-A. The enforcement of fundamental duties is hardly a recent debate—as early as 1969, the Supreme Court ruled that the various duties required a greater emphasis to build a welfare society. What is new, however, is the renewed vigour with which the executive, legislative and judicial branches of the government are pursuing its enforcement.

Historical Background

Fundamental duties such as upholding the “noble ideals that inspired the national struggle for freedom”, abiding by the Indian Constitution and respecting “its ideals and institutions” were brought to India by amending the Constitution in 1976, at the height of Indira Gandhi’s Emergency. Following the Swaran Singh Committee’s report, ten duties were incorporated into Part IV-A of the Constitution, with an eleventh duty added by the Vajpayee government in 2002.

The fundamental duties are not enforceable by law but are important considerations in determining the Constitutional validity of statutes or interpreting statutes when varying constructions are presented. Over time, several statutes directly aimed at enforcing fundamental duties have been passed—the Prevention of Insults to National Honour Act 1971 to prevent “disrespect” to symbols of national importance; incendiary and hateful speech has been criminalized under Section 153A of the IPC; the Forest Conservation Act, 1980 and Wildlife Protection Act, 1972 cover environmental protections; Protection of Civil Rights Act provides punishments for discriminating on the basis of immutable characteristics. This then begs the question—what exactly does the enforcement of fundamental duties as defined and protected in the Constitution entail?

This can be answered with a two-pronged analysis—first at a more principled understanding of why fundamental rights are enforced and whether this understanding can be extended to duties, and second on the consequences that such enforcement would have on rights and duties.

The Moral Case for Enforcing Fundamental Duties

Philosophers like Joseph Raz hold that rights inherently involve claims against other individuals, implying that we are both protected by rights and subject to others’ claims of similar rights. Since we are located collectively, one person’s right has to be honoured by others for it to be substantially protected, and equally, the said person, in turn, has to honour other’s rights.

Even conceding to the argument that rights inherently have duties attached, note that “duty” is not a positive responsibility. This means that there is no positive duty on individuals to “preserve the country’s composite culture” as Part IV-A would ask; instead, there is a negative duty not to restrict a person’s right to the profession. Fundamental rights, in and of themselves, do not seek positive actions from individual citizens but only demand certain kinds of inaction from them.

There are some instances where a positive duty on individuals is invoked to safeguard fundamental rights, as was the case with Parmanand Katara, which placed an obligation on private hospitals to protect the right to life of victims in critical conditions. However, even in such cases, the yardstick to invoke such duties is not located in a distinct duty that an individual has towards the state but very much in the importance of the right (in this case, the right to life), that is to be safeguarded vis-à-vis the right that is being restricted (in this case, the right to profession or liberty). This is, in fact, what is already codified in our constitutions when states are given the power to place reasonable restrictions on Article 19. This is why enforcement of duty cannot be a separate, distinct chapter consisting of burdens like “protecting our composite culture” without locating it within the protection of the most fundamental and basic rights.

Practical Consequences of Constitutionally-Mandated Individual Duties

The Undermining of Fundamental Rights

The ability to enforce fundamental duties, and their treatment at par with fundamental rights, risks giving even more power to the state to circumvent individual liberties. The current system is one where statutes that claim to further the realization of duties like the Unlawful Activities Prevention Act, 1967 are measured against fundamental rights to determine their constitutional validity. However, a constitution that treats duties at par with rights measurably reduces the burden for when such fundamental rights could be transgressed. Since both duties and rights are deemed of equal importance, a statute seen to be furthering the enforcement of fundamental duties would be deemed constitutional even when it comes at the cost of rights. Samuel Moyn articulates this neatly when he says that the very language of “duty” subordinates the individual to the collective and, as an extension, subordinates individual liberties to societal duties. The relative emphasis on fundamental rights enables the judiciary to place restraints on state power. When the Constitution treats them at par, the burden shifts from states having to safeguard fundamental rights to states being the enforcers of individual duties, thus inevitably expanding the powers of the state to restrain civil liberties rather than hold them accountable for their protection.

Especially given the vague language that is used in Part IV-A, such as “preserving the country’s culture”, “follow the noble ideals that inspired the national struggle”, “respect its ideals”, etc., it is not too far-fetched that rights would take a back-seat with the full-fledged enforcement of duties. An analysis of reports, judgements and the discourse on duties further validates this concern. The Swaran Singh Report based on which Part IV-A was incorporated in India in the first-place states that the enforcement of such duties through sanctions by the Parliament cannot be questioned as being ultra vires the fundamental rights. The petition filed to the Supreme Court asking for enforcement of duties argues that protests that blocked roads and highways violated a citizen’s duty to the nation. In AIIMS Students Union v. AIIMS, the Supreme Court held that rights and duties should be given equal importance. In his address at the HR Khanna Memorial Symposium, Supreme Court Justice Vikram Nath went one step further observing that “Duties have forever preceded rights in any era in any society”. He also cites more cases that back this statement, such as Rural Litigation and Entitlement Kendra v. State of UP, MC Mehta v Union of India, Ramlila Maidan case, and Sachidanand Pandey v. State of WB.

A brief analysis of countries that have come closest to enforcing constitutionally mandated duties further reveals the autocratic nature of such clauses. India was introduced to fundamental duties during the Emergency when rights had been out for a toss. The Statements of Objects and Reasons to the amendment stated that the act’s purpose was not just to enumerate fundamental duties but also to “make special provisions for dealing with anti-national activities”. The UDHR (Universal Declaration of Human Rights) did not list the duties alongside rights to precisely avoid an unjust limitation on liberties. Between 2003 and 2005, when the American Declaration of Rights and Duties (an international framework similar to the UDHR, with an extensive list of individual duties) was put to the vote, the least democratic countries uniformly supported it, while countries with more democratic protections uniformly opposed it. The Soviet Union from whom our conception of duties is borrowed had in 1936 the duty to “respect” or “safeguard the interests of the Soviet state,” which served the explicit purpose of restraining the rights enumerated in Chapter X, with anyone holding dissenting opinions imprisoned for “anti-Soviet slander”. A comparative analysis of the Polish Constitution under autocratic Soviet rule in 1952 against its democratic state in 1989 shows reduced duties placed on citizens, with a commensurate increase in duties placed on the state. The 1952 constitution places a duty on citizens to defend and perform military service, “exercise vigilance against enemies of the Nation”, and “safeguard public ownership”, all of which find no mention in the 1997 document. In fact, the duty to preserve the environment under Article 74 is placed on public authorities rather than on individual citizens as was the case in 1952. The autocratic state of China is also well known for emphasizing duties, especially distinct ones such as “a duty to practice family planning” and “safeguard the honour and interests of the motherland”. Among democratic constitutions, there is a mention of duties in the Japanese Constitution, a passing reference in the French Constitution, and a complete absence of them in the American Constitution. Ultimately, as countries democratized, the reliance on individual duties reduced with a growing emphasis on civil liberties.

Flexible and Changing Interpretation of Duties

Our present system of enforcing fundamental rights comes from the peculiar nature of rights themselves. In the Kamala lectures, Srinivasa Sastri clarifies this when he says that even in the conflicts of diverse interests in public life, fundamental rights should not be violated. He claimed that rights like liberty were universal and are inherent moral goods that form the principled basis of any political action. The Sapru Committee Report of 1945 takes this further, stating that even if the enforcement of constitutionally mandated rights is at odds with the Parliament’s sovereignty to frame laws, rights must still be enforced as such, given that they form the standards by which other organs of the state must act. It is in recognition of the fundamental nature of rights that the threshold for amending them is much higher than passing ordinary legislation. Apart from needing a special majority under Article 368(2) and ratification by at least half the states, it also cannot alter the “basic structure” of the Constitution.

Duties do not have such a universal, all-encompassing conception. The duties we recognize (for instance, towards the environment, which has started gaining even more support now for increased restrictions on pollutants) constantly sway with the political will for bringing environmental change. Whether kneeling to the national anthem in protest violates the duty one owes to the nation is again subject to public perception of such values. The duties listed in Part IV-A are not inherent, universal goods but change with the shifting nature of collective will and hence raising the bar for amending them through a Constitutional mandate would be harmful.

This is especially true in India, where our current perception of individual duties is majoritarian and, as a result, discriminatory. The JS Verma Committee reports that several duties that have been incorporated are values which are “part of the Indian tradition, mythology, religions and practices”. What this religion and tradition happen to represent is, at many points, less “Indian” and more majoritarian. Duty, most clearly translated to “dharma”, is an essential element of Hinduism, with each caste having its duties and rules of code to abide by. This makes its enforcement even more vulnerable to religious interpretations, even if its original construction was not made with religious intents. Even Justice Nath, when speaking of duties, takes to such a concept of “dharma”, quoting verses from the Ramayana and Mahabharat to explain its significance. Ravi Shankar Prasad’s Indian Express column on duties feature lines from the Rig Veda, Bhagwad Gita, and Ramayana while not citing the religious text of any other faith. The petition filed in the Supreme Court by Durga Dutt most recently also began quoting verses from the Gita about the importance of duties.

Therefore, it is not surprising that even the interpretations of duties by higher courts in India are made using a religious lens. The Supreme Court has held that the duty to preserve our “composite culture” has its foundations in the Sanskrit language and literature (or in other words, Hindu texts).[1] In Aruna Roy v. Union of India, the national school curriculum was argued to be anti-secular and, therefore, against constitutional principles. Arguing that teaching students the values of every religion is not violative of Article 28, the Court ruled that the policy actually helps realize Article 51-A(e) (the duty to promote harmony amongst all religions). What this conveniently ignores is the S.B Chavan Committee’s Report based on which the curriculum was made, whose “value education” involved curriculum about virtues like Satya, Dharma, Shanti, Ahimsa and teachings of people like Swami Vivekananda, which while not being antithetical to any religion, clearly has a Hindu bias. In Gujarat v. Mirzapur Moti Kureshi Kassab Jamat the amendment to the Bombay Animal Preservation Act, which banned the slaughter of cow progeny was upheld. While the decision devotes a good deal of its length to the economic reasons for upholding the ban, on the question of fundamental rights, the Court interpreted the duty to have “compassion for living creatures” (Article 51-A(g)) as including cattle. This interpretation is arguably, religiously biased considering the host of minority religions, specific castes and indigenous communities for whom cattle is an integral part of their culture. It is then interesting that the Court promptly chose to enforce the duty to preserve living creatures rather than the protection of our “composite culture” and refrained from extending this principle to all meat products that slaughtered animals than restricting it exclusively to cattle.

This is why it is important to take cognizance of the Rajasthan High Court’s judgement in Surya Narain Choudhary v. Union of India, which places the burden on states to pass laws to enforce duties rather than making them self-executing. Statute-based enforcement of duties is vital to ensure duties are targeted at specific responsibilities of a set of individuals and not vaguely phrased, with an ability to amend and repeal them with relative ease with changing circumstances. Even more important is an ability to subject the duties states impose to the test of fundamental rights rather than using duties to subvert liberties. In other words, a ban on beef should be subject to the right to religion and profession than “compassion for living creatures” being used to subvert those rights. A restriction on blockades of protest must be subject to the rigour of free speech and association, rather than those rights being constrained under the garb of “duty to the nation”.

None of this is to say that duties exclusively drive autocratic tendencies or are the primary motivators of majoritarianism in courts. Rather, it is to acknowledge that they are more vulnerable to a biased and unjust interpretation of statutes.

Conclusion

While it might be convenient to have this be a debate about whether citizens owe duties to one another, any discussion on the enforcement of duties must take into account the practical ramifications of duties being constitutionally enforced. And if it is indeed the case that our fundamental rights are likely to be curtailed to further extents than they already are as a result of such enforcement, then it is precisely the 75-year-long struggle, that the Prime Minister invokes, which makes it important to prioritize rights.

Saranya Ravindran is a current undergraduate student pursuing a B.A., LL.B. (Hons.) at the National Academy of Legal Studies and Research (NALSAR), Hyderabad.

[1] Durga Das Basu, Introduction to the Constitution of India (20^th edn, LexisNexis 2011) 142.