Why Linking Fundamental Rights To Duties Is An Extra-Constitutional Argument

^[1] S.A.Bobde, too observing that "real rights are a result of the performance of duty."

This inclination to conflate Part III and Part IV-A of the Constitution is not a recent phenomenon. As far as back in the 1960s, Indologist P.V.Kane in History of the Dharmashastra had been critical of the Constitution on this front and had argued that the Constitution ignored the Indian tradition of duties and spoke only of rights. In his opinion, while the Dharmashastras reflected a traditional value system in which people were driven by a sense of responsibility and duty, the Constitution recommended and pushed a value system where most individuals were driven by a sense of grievance of not having their rights and a "narrative of victimhood."

This idea that the Constitution emphasizes on rights without delineating duties, although not entirely absent from the debates in the Constituent Assembly, had remained at the margins of constitutional thought at the time of its framing. The Gandhian Constitution of Free India 1946, introduced by Narayana Agarwal, made the enjoyment of rights contingent on the performance of fundamental duties. While not drafted by M.K,Gandhi himself, the Constitution reflected his views on the subject. In Hind Swaraj, M.KGandhi had expressed the view that rights arise out of duties. Despite these slivers of thought being expressed by Gandhian philosophers, this approach of conditioning the enjoyment of rights to the performance of duties remained alien to the formal Constitution-making process.

In the Constitution that was adopted on 26th November, 1949, there was no mention of duties-fundamental or otherwise- and 'duties' found no mention until 30 years later. Fundamental Duties came to be incorporated in Part IV-A of the Constitution by the Constitution 42nd Amendment Act, 1976, during Emergency under Indira Gandhi's government- a time when public discussion and debate were stifled and basic rights curtailed. The same amendment which was meant to entrench the supremacy of the government, permanently muzzle the courts, and weaken the constitutional system of checks and balances also introduced the chapter on Fundamental Duties. The amendment, based on the recommendations of the Swaran Singh Committee, introduced 10 duties as Article 51-A of the Constitution. Today, there are 11 Fundamental Duties described under Article 51-A, of which 10 were introduced by the 42nd Amendment and the 11th was added by the 86th Amendment in 2002, during Atal Bihari Vajpayee's government.

Despite the presence of Fundamental Duties and Fundamental Rights in the Constitution, can the two be conflated? Does the Constitution envisage that the enjoyment of Fundamental Rights be made conditional on the fulfilment of duties? While the conflation of Fundamental Rights and Duties might have an intuitive appeal, when examined within the Constitutional schemes of things, it has no basis at all. One must look at the purpose behind having Part III of the Constitution expressly spell out the Fundamental rights in order to examine the argument that the enjoyment of rights be made contingent on duties.

An Extra-Constitutional argument

^[2] Even the 42nd Amendment which introduced Fundamental Duties made them non-enforceable, i.e something which cannot be enforced in a court of law. In fact, the Swaran Singh Committee's recommendation that citizens be penalized by the Parliament for non-compliance with the duties was rejected by the All India Congress Committee and did not make it to the 42nd Amendment. Further, in Surya Narain Choudhary v Union of India^[3] the Court explained that Fundamental duties are not self-executing in nature and that the State must make laws for their implementation. The Court also explained that in the absence of such laws, mandamus cannot be sought against an individual who does not observe his duties.

That fundamental duties do not act upon as a limitation on Fundamental Rights can be understood if one looks at the purpose being having Fundamental Rights expressly spelt out in the Constitution.

The Fundamental-ness of Fundamental Rights

The conditions which existed prior to Independence are illuminative in understanding why Fundamental Rights have been expressly spelt out by the Constitution. As Gautam Bhatia explains succinctly, India inherited a deeply stratified and riven society where not only the State but also gender, caste, religion had served to keep individuals and entire groups in conditions of subordination and degradation. Given this historical backdrop, Fundamental Rights were meant to act as a bulwark against discrimination by State and social majorities. Granville Austin, a constitutional historian further explains the rationale behind express recognition of fundamental rights:

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Given this historical backdrop, the Fundamental Rights laying down the negative obligations of the State not to interfere with the liberty of the individuals have been expressly spelt out so as to act as a check on the power of the State and prejudicial action of other private citizens too. This is in stark contrast to the Gandhian idea that "the true source of rights is duty, if we all discharge our duties, rights will not be far to seek." The Constitution traces the origin of Fundamental Rights to the nature of the underlying relationship between Individual on one end and the State and social majorities on another. The existence and recognition of Fundamental Rights is guaranteed by the inherent imbalance in power that exists between State and Individual-and not because of performance of any duties. Fundamental Rights are meant to remedy the balance of power that leans heavily in favour of powerful institutions like State, caste, gender, class, among others and do not owe their existence to the duty owed to fellow citizens and society at large.

Secondly, Fundamental Rights do not grant anything, they only expressly recognise what rights that already exist by virtue of one's birth. This semantic difference in the nature of Part III of the Constitution, in other words, means that Fundamental rights are not the end result of a bargain with the State in exchange for certain obligations to be undertaken by citizens. Rights are inherent in nature which citizens, enjoy by virtue of their birth. As Bhatia puts it, one does not have to successfully perform any duty to qualify as a rights bearer. Individuals, irrespective of their age, gender, religion, sexuality, economic status, criminal antecedents are bearers of rights and not qualifiers of rights. The nature of fundamental rights and the text of the Constitution makes it abundantly clear that its enjoyment is not conditional on the performance of duties. The Constitution, especially, Art.21 ensures that every individual, even if the person in question is a criminal convicted for the most heinous crimes, is entitled to the due process of law.

Fundamental unit of the Constitution: Individual or Society?

^[6] This translates into the greater emphasis on rights in western democracies and the insistence on duties in Asian and African nations. This 'clash of values' played out well, points out Samuel Moyn, a Professor of Law and History at Harvard University, in the "Asian values" debate of the 1990s, which saw Singaporean Prime Minister Lee Kuan Yew and others contend that Western norms ran afoul of local visions, promoting duties as a surreptitious means of scanting rights.^[7] Curiously, former Law Minister too had cited the example of Singapore and argued that its "growth story has been fuelled by its emphasis on the relentless pursuit of duties by its citizens." This lends credence to the view that duties are promoted as a surreptitious means of chipping away at rights.

^[8] The former Law Minister had argued that: "Since ancient times, people in India have had a tradition of performing their duties — even in partial disregard of their rights and privileges." But such abstract and rhetorical statements forget that the Constitution, with its promise of individual liberty and equality, seeks to disrupt existing power hierarchies and establish a new egalitarian social order.  Dr. B.R. Ambedkar, in a speech given in the Constituent Assembly had reminded that the fundamental unit of the Constitution remains the individual. Dr.Ambedkar had added:

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 The Problematic Conflation of Rights and Duties

Fundamental Duties are laudable goals. Fundamental Duties serve an educative role and also have a legal value in so far as any laws which implement fundamental duties cannot be invalidated on the ground of conflict with the fundamental rights unless such conflict is irreconcilable. Fostering a scientific temperament, protecting the environment, abjuring communalism are worthy ideals that citizens must strive to emulate in their daily lives- the problem lies when the enjoyment of rights are conflated with or made conditional to the fulfilment of duties.

By way of conflation of the two, the duty "owed" becomes a ruse to shoot down any claim for the enforcement of Fundamental Rights. As Sameul Moen explains, the "rhetoric of duties has often been deployed euphemistically by those whose true purpose is a return to tradition won by limiting the rights of others." The conflation of rights and duties, in a cruel twist to Kennedy's words- Ask not what the country has done for you, ask what you have done for the country- is a pretext to chip away at the bulwark that is Part III of the Constitution. For example, recall how questions at the rationale of the demonetization decision were shot down with the narrative that it is a citizen's "duty" to suffer a bit for the country's progress.

Fundamental duties are ideals worthy of emulating but one must not forget that the purpose of the Constitution is not to build character but to protect individuals against the might of the State. Therefore, every time such extra-constitutional arguments are made to conflate duties and rights and use them as a smokescreen to chip away at the enjoyment of fundamental rights they must be clearly, logically and patiently refuted.