If Rights Are Enforceable, Why Aren’t Duties? Rethinking The Constitutional Balance

Article 29(1), Universal Declaration of Human Rights On a busy street, a man throws a plastic bottle on the road without a second thought. Nearby, another citizen complains about pollution and demands clean air from the government. This is the irony of modern citizenship: we ask for rights, but ignore the duties that make those rights possible. The Constitution of India starts with the Preamble, which can be said as a summary to it. Preamble explains the concept, values and principles as enshrined in the Constitution and starts with the terms, “WE The People of India”, reflecting the source of the power of the Constitution. Also the preamble ends with the terms, “Gives to Ourselves this Constitution”, signifying that Constitution is made for us the People of India. Constitution of India, is the supreme text for the country, the source and guardian of our rights. It gives a structure to our country, the form of Government, the law making process, checks and balances on the pillars of democracy. Fundamental rights, a concept adopted from the United States of America, was embedded in the Constitution since its inception. These fundamental rights are a pack of six basic rights available to the citizens and some are guaranteed to the non-citizens also. The fundamental rights are given under Part III of the Constitution of India, and are enforceable generally against the State. Here the term generally is used as some fundamental rights are even enforceable against private individuals. Article 12 of the Constitution, describes the term State. If any fundamental right is violated, the Constitution itself provides the remedy under Article 32 and 226, that is, the writ jurisdiction of the Supreme Court and the High Court respectively, to safeguard these rights. While, Fundamental Duties are enshrined under Article 51-A, Part IV-A of the Constitution of India. These duties were not there at the time of the enactment of the Constitution, but were added by the Forty Second Constitutional Amendment Act, 1976. These duties were added to the Constitution on the recommendation of Swaran Singh Committee, while the concept was adopted from USSR. Currently the Constitution of India has eleven duties of which ten were added by the Forty Second Constitutional Amendment Act, 1976, while the eleventh duty was added by the Eighty Sixth Constitutional Amendment Act, 2002. These duties are applicable only to the citizens of India and are non-justiciable, that is, the doors of the Court cannot be knocked if a citizen is violating the fundamental duties. There are a bundle of rights which the Constitution provides for a person and are available against the State, but a handle full of duties which the State may expect from the citizens to follow. Though it is also true, since this part of the Constitution has been less debated, there may be some amendments which may be required to Part IV-A, before starting a discussion on making it enforceable. However, there can be questions while making fundamental duties enforceable, that it may give more powers to the State or may hamper certain rights or that some words in Part IV-A may need more clarity or that the Courts may get overburdened. But with over 78 years of independence and more than 75 years of making of the Constitution of India, it is time that we should start thinking on the lines that though the State is providing us with numerous things, it is now our turn to return the efforts by following the fundamental duties wisely. In the wise words of Mahatma Gandhi, “The true source of rights is duty. If we all discharge our duties, right will not be far to seek. If leaving duties unperformed we run after rights, they will escape us like a will-o’- the-wisp. The more we pursue them, the farther they fly”. These lines are thought provoking at this stage. As citizens, we are quick to assert our rights, but far less willing to accept responsibility for public order, social harmony, or the environment. When duties remain optional, rights risk becoming demands without discipline. Rethinking the constitutional balance between rights and duties, therefore, is not about curbing freedom, but about preserving it. Here are some interesting instances which we should consider now in thinking towards making the fundamental duties justiciable. Article 21-A of the Constitution of India, guarantees right to education to every child in the age bracket of six to fourteen years. Since this is a fundamental right, a child who is not able to get an admission in a school can approach even to the Supreme Court of India, against the State as his fundamental right is being violated. But there is a co-relative, fundamental duty under Article 51(A)(k), on every parent of the above age to send their child to the School. Now how can the State be blamed if the child is not allowed by the parents to go the School. Similarly, we can blame the State for not providing a clean environment, or for unclean public places, but, why can’t State blame us for throwing garbage on public places or for contributing in making the environment unclean. If Fundamental Rights are enforceable and citizens can approach the courts to protect them, it is only fair to ask why Fundamental Duties remain merely moral advice. Rights are not gifts given by the State; they are the guarantees of a constitutional order. But no order can survive when citizens treat their duties as optional. A republic is not merely a system of rights; it is a community of responsibility. When duties are ignored, the public space becomes chaotic, public property is destroyed, the environment is damaged, and social harmony is weakened. In such a situation, rights begin to lose their meaning, because rights without responsibility turn into claims without conscience. The Swaran Singh Committee, which first proposed the idea of Fundamental Duties, believed that duties should have teeth that citizens should be held accountable. Parliament chose a different path, and for nearly five decades duties have remained a list of noble expectations rather than enforceable obligations. The question is not whether the State should become a strict disciplinarian, but whether citizens should be allowed to enjoy constitutional privileges without accepting constitutional responsibilities. A mature democracy must be able to answer this: If we demand rights, can we refuse duties? If we want a nation of rights, we must also build a nation of duty. Otherwise, the Constitution will continue to remain a promise that many can claim, but few are willing to live by.The author is a Post Graduate in Law (LL.M.) from NLSIU, Bangalore and pursuing Phd in Cyber Law from RGNUL, Patiala.



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