FUNDAMENTAL DUTIES: A NEED OF TIME:
Rights and duties are two sides of the same coin and co-relative with each other.
The fundamental duties are, therefore, intended to serve as a constant reminder to every
citizen. There are certain duties of the citizens in the Japanese Constitution, while the
American Constitution provides only for F.R.s & does not talk about duties of citizens.
This concept of Fundamental Duties has been borrowed from Irish (Ireland) Constitution.
In Indian Constitution, there are numerous fundamental rights, so it is obligatory to
observe certain basic norms of democratic conduct and democratic behavior. Since
ancient times in India, “Kartavya” i..e, performance of one’s duties towards society and
also towards parents, exists. Gita also cited about performance of duties in the following
terms:-
“Karmanya Vadhika Raste Maa Phaleshu Kada Chana”.
The preamble to the Constitution of India secures to all the citizens liberty of though,
expression, belief faith and worship, these are fundamental rights of the citizens. The rest
of the preamble emphasis on the duties of ‘justice, social economic and political”.
FUNDAMENTAL DUTIES OF THE CITIZENS
The Fundamental Duties of citizens were added to the Constitution by the 42nd
Amendment in 1976, upon the recommendations of the Swaran Singh Committee.
Originally ten in number, the Fundamental Duties were increased to eleven by the 86th
Amendment in 2002, which added a duty on every parent or guardian to ensure that
their child or ward was provided opportunities for education between the ages of six
and fourteen years. The other Fundamental Duties obligate all citizens to respect the
national symbols of India, including the Constitution, to cherish its heritage, preserve its
composite culture and assist in its defense. They also obligate all Indians to promote the
spirit of common brotherhood, protect the environment and public property, develop
scientific temper, abjure violence, and strive towards excellence in all spheres of life.
Citizens are morally obligated by the Constitution to perform these duties. However, like
the Directive Principles, these are non-justifiable, without any legal sanction in case of
their violation or non-compliance. There is reference to such duties in international
instruments such as the Universal Declaration of Human Rights and International
Covenant on Civil and Political Rights, and Article 51A brings the Indian Constitution
into conformity with these treaties.
ENFORCEMENT OF DUTIES:
The duties incorporated in the Constitution by the 42nd Amendment are statutory
duties and shall be enforceable by law. Parliament by law will provide penalties to be
imposed for failure to fulfill those duties and obligations.
National security:-The words given in the preamble to the Constitution “assuring the
dignity of the individual and the unity and integrity of the Nation” is intended to put an
end to separatist tendencies and make people feel that every part of India is their home.
Article 1 makes is clear that the States have no right to secede from the federation.
Article 19(2) empowers the State to impose reasonable restrictions on the freedom of
speech and expression in the interests of integrity of India.
Security of the state:- Article 19(2) provides that reasonable restrictions can be imposed
on freedom of speech and expression in the interest of security of the State. In Ramesh
Thappar v. State of Madras, AIR 1950 SC 124, the Supreme Court observed that the
term security of the State refers only to serious and aggravated forms of public disorder,
e.g. rebellion, waging war against the State, insurrection (rebellion/revolution) and not
ordinary breaches of public order.
CO-RELATION OF RIGHTS AND DUTIES:- Rights and duties are the very
important elements of law. The administration of justice, in most part, consists of the
enforcement of rights and the fulfillment of duties. Rights and duties are correlated to
each other in such a way that one cannot be conceived of without the other.
The Supreme Court has used the Fundamental Duties to uphold the Constitutional
validity of statutes which seeks to promote the objects laid out in the Fundamental
Duties. These Duties have also been held to be obligatory for all citizens, subject to the
State enforcing the same by means of a valid law. The Supreme Court has also issued
directions to the State in this regard, with a view towards making the provisions effective
and enabling a citizens to properly perform their duties.
Austin’s view:- The duties which are always correlated with a right are called ‘relative
duties’. Austin says that there are four kinds of ‘absolute duties’:-
i. Duties not regarding persons (e.g. those owed to God and towards the lower
animals).
ii. Duties owed to persons indefinitely (e.g. towards the community).
iii. Self-regarding duties.
iv. Duties owed to the sovereign.
On a close examination of Austin’s view it becomes clear that it is wrong. The
absolute duties enumerated by him are not duties in the legal sense, or if they are
duties at all, they are not absolute.
Positive and negative duties: A positive duty implies some act on the part of the person
on whom it is imposed,e.g., if a person owes money to another, the former is under a duty
to pay the money to the latter. This is a positive duty. While if a person owns a piece of
land, all others have a duty not to interfere with his peaceful physical possession of that
piece of land, this is called negative duty.
Primary and secondary duties:- The primary duty is that duty which exists per se and
independent of any other duty. The duty not to cause hurt to any person is a primary
duty. A secondary duty is that duty whose purpose is only to enforce some other duty.
For example, if a person causes injury to another, the former is under a duty to pay
damages to the later. This is secondary duty. The duty not to cause injury is the primary
duty. When a breach of this duty has been committed the secondary duty to pay damages
arises.
Hohfield’s Theory of Relationship:- Legal rights, in the strict sense, are correlative of
legal duties and are defined as interests which the law protects by imposing
corresponding duties on the other. But legal rights in a wider sense of the term do not
necessarily correspond with duties. The term ‘right’ in its wider sense has been identified
with powers, privileges and immunities.
Salmond says, “In this generic sense, a legal right may be defined as any
advantage or benefit conferred upon a person by a rule of law”.
Of rights, in this sense, there are four distinct kinds, viz., (1) rights; (2) liberties or
privileges; (3) Power; and (4) immunities.
Each of these kinds of rights has its correlative, namely; (1) duties; (2)No rights,
(3) liabilities; and (4) disabilities. These relationships are designated as ‘jural relations’.
American jurist Hohfield was the first jurist who elaborated this jural relation and took
the analysis of Salmond to its logical end.
Hohfield set out this table of jural relations as follows:-
Jural Right Privilege Power Immunity
Correlatives Duty No-right Liability Disability
Jural Right Privilege Power Immunity
Opposities No-right Duty Disability Liability
Prof. G.L. Wiliams explains the relations of jural correlatives (vertical arrows and
read both ways), jural opposites( diagonal arrows and read both
ways) and jural contradictions(horizontal arrows and read both ways) as under:-
claim(Right in Liberty(or Privilege)
Strieto sensu)
Duty No-claim(No right)
Power Immunity
Liability Disability
Criticism:-
1. Hohfield’s scheme of jural relations has the clarity of though but there is no
practical utility. These terms are not used in common parlance as, e.g., we always
say ‘right to vote’ and not ‘power of voting’.
2. Hohfield’s conceptions of ‘liberty’, liability’ and ‘disability’ are without juridical
significance.
3. Hohfield’s analysis was incorrect and incomplete in places.
4. The terminology is unusual and that it is unrealistic to expect the profession to
make a radical change in its vocabulary.
5. The scheme of Hohfield’s superfluous because the cases were in fact decided
without the aid of his scheme.
To sum up, the following are the four classes of rights conferred by the law as per
Salmond:-
(i) Right in the strict sense, when the law limits the liberty of others in my
behalf;
(ii) Liberty, when the law allows to my Will a sphere of unrestrained activity;
(iii) Power, when the law actively assists me in making my Will effective.
(iv) Immunity, when the law denies to others a particular power over me.
A right in the narrow sense is that which other person sought to do on my behalf;
a liberty is that which I may do innocently; a power is that which I can do effectively; an
immunity is that which other persons cannot do effectively in respect of me.
I enjoyed my rights through the control exercised by the law over the acts of
others on my behalf; I use my liberties with the acquiescence of the law; I use my powers
with its active assistance in making itself the instrument of my Will: I use my immunities
through its refusal to accord this active assistance to others.
…..
Rights and duties are two sides of the same coin and co-relative with each other.
The fundamental duties are, therefore, intended to serve as a constant reminder to every
citizen. There are certain duties of the citizens in the Japanese Constitution, while the
American Constitution provides only for F.R.s & does not talk about duties of citizens.
This concept of Fundamental Duties has been borrowed from Irish (Ireland) Constitution.
In Indian Constitution, there are numerous fundamental rights, so it is obligatory to
observe certain basic norms of democratic conduct and democratic behavior. Since
ancient times in India, “Kartavya” i..e, performance of one’s duties towards society and
also towards parents, exists. Gita also cited about performance of duties in the following
terms:-
“Karmanya Vadhika Raste Maa Phaleshu Kada Chana”.
The preamble to the Constitution of India secures to all the citizens liberty of though,
expression, belief faith and worship, these are fundamental rights of the citizens. The rest
of the preamble emphasis on the duties of ‘justice, social economic and political”.
FUNDAMENTAL DUTIES OF THE CITIZENS
The Fundamental Duties of citizens were added to the Constitution by the 42nd
Amendment in 1976, upon the recommendations of the Swaran Singh Committee.
Originally ten in number, the Fundamental Duties were increased to eleven by the 86th
Amendment in 2002, which added a duty on every parent or guardian to ensure that
their child or ward was provided opportunities for education between the ages of six
and fourteen years. The other Fundamental Duties obligate all citizens to respect the
national symbols of India, including the Constitution, to cherish its heritage, preserve its
composite culture and assist in its defense. They also obligate all Indians to promote the
spirit of common brotherhood, protect the environment and public property, develop
scientific temper, abjure violence, and strive towards excellence in all spheres of life.
Citizens are morally obligated by the Constitution to perform these duties. However, like
the Directive Principles, these are non-justifiable, without any legal sanction in case of
their violation or non-compliance. There is reference to such duties in international
instruments such as the Universal Declaration of Human Rights and International
Covenant on Civil and Political Rights, and Article 51A brings the Indian Constitution
into conformity with these treaties.
ENFORCEMENT OF DUTIES:
The duties incorporated in the Constitution by the 42nd Amendment are statutory
duties and shall be enforceable by law. Parliament by law will provide penalties to be
imposed for failure to fulfill those duties and obligations.
National security:-The words given in the preamble to the Constitution “assuring the
dignity of the individual and the unity and integrity of the Nation” is intended to put an
end to separatist tendencies and make people feel that every part of India is their home.
Article 1 makes is clear that the States have no right to secede from the federation.
Article 19(2) empowers the State to impose reasonable restrictions on the freedom of
speech and expression in the interests of integrity of India.
Security of the state:- Article 19(2) provides that reasonable restrictions can be imposed
on freedom of speech and expression in the interest of security of the State. In Ramesh
Thappar v. State of Madras, AIR 1950 SC 124, the Supreme Court observed that the
term security of the State refers only to serious and aggravated forms of public disorder,
e.g. rebellion, waging war against the State, insurrection (rebellion/revolution) and not
ordinary breaches of public order.
CO-RELATION OF RIGHTS AND DUTIES:- Rights and duties are the very
important elements of law. The administration of justice, in most part, consists of the
enforcement of rights and the fulfillment of duties. Rights and duties are correlated to
each other in such a way that one cannot be conceived of without the other.
The Supreme Court has used the Fundamental Duties to uphold the Constitutional
validity of statutes which seeks to promote the objects laid out in the Fundamental
Duties. These Duties have also been held to be obligatory for all citizens, subject to the
State enforcing the same by means of a valid law. The Supreme Court has also issued
directions to the State in this regard, with a view towards making the provisions effective
and enabling a citizens to properly perform their duties.
Austin’s view:- The duties which are always correlated with a right are called ‘relative
duties’. Austin says that there are four kinds of ‘absolute duties’:-
i. Duties not regarding persons (e.g. those owed to God and towards the lower
animals).
ii. Duties owed to persons indefinitely (e.g. towards the community).
iii. Self-regarding duties.
iv. Duties owed to the sovereign.
On a close examination of Austin’s view it becomes clear that it is wrong. The
absolute duties enumerated by him are not duties in the legal sense, or if they are
duties at all, they are not absolute.
Positive and negative duties: A positive duty implies some act on the part of the person
on whom it is imposed,e.g., if a person owes money to another, the former is under a duty
to pay the money to the latter. This is a positive duty. While if a person owns a piece of
land, all others have a duty not to interfere with his peaceful physical possession of that
piece of land, this is called negative duty.
Primary and secondary duties:- The primary duty is that duty which exists per se and
independent of any other duty. The duty not to cause hurt to any person is a primary
duty. A secondary duty is that duty whose purpose is only to enforce some other duty.
For example, if a person causes injury to another, the former is under a duty to pay
damages to the later. This is secondary duty. The duty not to cause injury is the primary
duty. When a breach of this duty has been committed the secondary duty to pay damages
arises.
Hohfield’s Theory of Relationship:- Legal rights, in the strict sense, are correlative of
legal duties and are defined as interests which the law protects by imposing
corresponding duties on the other. But legal rights in a wider sense of the term do not
necessarily correspond with duties. The term ‘right’ in its wider sense has been identified
with powers, privileges and immunities.
Salmond says, “In this generic sense, a legal right may be defined as any
advantage or benefit conferred upon a person by a rule of law”.
Of rights, in this sense, there are four distinct kinds, viz., (1) rights; (2) liberties or
privileges; (3) Power; and (4) immunities.
Each of these kinds of rights has its correlative, namely; (1) duties; (2)No rights,
(3) liabilities; and (4) disabilities. These relationships are designated as ‘jural relations’.
American jurist Hohfield was the first jurist who elaborated this jural relation and took
the analysis of Salmond to its logical end.
Hohfield set out this table of jural relations as follows:-
Jural Right Privilege Power Immunity
Correlatives Duty No-right Liability Disability
Jural Right Privilege Power Immunity
Opposities No-right Duty Disability Liability
Prof. G.L. Wiliams explains the relations of jural correlatives (vertical arrows and
read both ways), jural opposites( diagonal arrows and read both
ways) and jural contradictions(horizontal arrows and read both ways) as under:-
claim(Right in Liberty(or Privilege)
Strieto sensu)
Duty No-claim(No right)
Power Immunity
Liability Disability
Criticism:-
1. Hohfield’s scheme of jural relations has the clarity of though but there is no
practical utility. These terms are not used in common parlance as, e.g., we always
say ‘right to vote’ and not ‘power of voting’.
2. Hohfield’s conceptions of ‘liberty’, liability’ and ‘disability’ are without juridical
significance.
3. Hohfield’s analysis was incorrect and incomplete in places.
4. The terminology is unusual and that it is unrealistic to expect the profession to
make a radical change in its vocabulary.
5. The scheme of Hohfield’s superfluous because the cases were in fact decided
without the aid of his scheme.
To sum up, the following are the four classes of rights conferred by the law as per
Salmond:-
(i) Right in the strict sense, when the law limits the liberty of others in my
behalf;
(ii) Liberty, when the law allows to my Will a sphere of unrestrained activity;
(iii) Power, when the law actively assists me in making my Will effective.
(iv) Immunity, when the law denies to others a particular power over me.
A right in the narrow sense is that which other person sought to do on my behalf;
a liberty is that which I may do innocently; a power is that which I can do effectively; an
immunity is that which other persons cannot do effectively in respect of me.
I enjoyed my rights through the control exercised by the law over the acts of
others on my behalf; I use my liberties with the acquiescence of the law; I use my powers
with its active assistance in making itself the instrument of my Will: I use my immunities
through its refusal to accord this active assistance to others.
…..
