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On rights vs. duties: A South Asian Constitutional perspective

Jivesh Jha

jivesh-jha

Jivesh Jha

It’s often said that every Fundamental Right (FR) implies a corresponding duty, but every duty does not imply a corresponding right. Commentators argue that the states’ dream of maintaining “Rule of Law” have deteriorated due to the disregard of fundamental duties.

Like the Constitutional Acts’ Directive Principles of State Policy (DPSP) lay down aims and objectives to be taken up by the state to govern the country, fundamental duties draw the attention of every citizen to fulfill duties to their nation and to one another.

Member states of South Asian Association for Regional Cooperation (SAARC) share unanimity of opinion by failing to enact any express provision in their respective Constitutions for the direct enforcement of any of the fundamental duties enshrined in their charter. The statutes contain neither any provision for a sanction to prevent violation of duties, nor any provision to enforce fundamental duties by issuing writs.

What has constrained and qualified those rights and duties, by way of law, religion and politics in Constitutions of South Asia merits an analysis.

Calling for better enforcement of the “Rule of Law” at the cutting edge level, the Constitutions are command that every citizen should exercise his/her freedom without infringing upon the rights of their fellow citizens.

In its Article 48 (a), the Constitution of Nepal which was enforced on September 20 last year provides that it shall be the duty of every citizen to “Protect nationality, sovereignty and integrity of Nepal by pledging allegiance to the nation.” The charter clearly casts an obligation on the citizen to abide by the provisions of the Constitution and other laws prevailing in the country. The charter also renders a duty to protect and conserve public property.

Like Nepali charter, the Constitution of Afghanistan also imposes a duty on citizen to observe the provisions of the charter by being obedient to laws and respecting the public order. While imposing a duty on the citizen to defend the country, Article 55 foresees enactment of a particular law which could pave the ways for the compulsory military service to every citizen. The succeeding clause also clarifies that ‘ignorance of the laws shall not be considered an excuse’ [Article 56].

Over and above upholding and defending the Constitution and the prevailing laws of the land, the Constitution of Sri Lanka imposes an obligation on the citizen to protect the nature and conserve its riches. Like other charters, Article 28 begins with a marginal note of ‘Fundamental Duties’ that embodies as many as six duties that commands a person to respect the rights of others, and to further the national interest and to foster national sovereignty and integrity.

Meanwhile, the Constitution of Pakistan provides that the loyalty to the state is the basic duty of every citizen. Maintaining that a non-citizen should also uphold the laws of Pakistan, Article 5(2) legislates, “Obedience to Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.”

While rolling out that rights and duties are inseparable from each other and like two sides of the same coin, the Maldivian Constitution in its Article 67 clarifies that “the exercise and enjoyment of fundamental rights and freedoms is inseparable from the performance of responsibilities and duties, and it is the responsibility of every citizen to respect the Constitution and the rule of law.”

Exploring a matchless Constitutional provision in South Asia, the Maldivian charter also imposes an obligation on citizen “to promote democratic values and practices in a manner that is not inconsistent with any tenet of Islam.” Laying an extraordinary emphasis on Islam, Article 67 (g) instructs the citizens to preserve and protect the ‘State religion of Islam, culture, language and heritage of the country.’

Talking about Bhutan, in an endeavour to strengthen brotherhood and mutual respect amongst all Bhutanese, the Constitution has made a deliberate and conscious departure from the other charters of SAARC region by imposing a task on every person to hold responsibility of providing help, to the greatest possible extent, to victims of accidents and in times of natural calamity. Incorporating a long list of (11) duties under Article 8, the fundamental document also renders a duty on citizen to create conducive environments for fostering tolerance, mutual respect and spirit of brotherhood amongst all the people of Bhutan, transcending religious, linguistic, regional or sectional diversities.

Like Indian and Bhutanese Constitution, the Maldivian charter also stipulates that the citizen is required to abide by the Constitution and respect its ideals and institutions, the National Flag, National Emblem and the National Anthem.

Meanwhile, the Constitution of Bangladesh in its Article 21 simply provides, “It is the duty of every citizen to observe the Constitution and the laws, to maintain discipline.” The provision begins with a marginal note of “Duties of citizens and of public servants” containing a couple of clauses.

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Likewise, the Indian Constitution maintains that rights and duties are correlative. “The fundamental duties are, therefore, intended to serve as a constant reminder to every citizen that while the Constitution specifically conferred on them certain fundamental rights, it also requires citizen to observe basic norms of democratic conduct and democratic behaviour,” argues much-acclaimed commentator of Constitutional Law Dr JN Pandey while interpreting Article 51A of Indian Constitution dealing with fundamental duties.

Like other charters, the Constitution solicits the protection and improvement of the natural environment, including forests, lakes, rivers and wild life, and to have compassion for living creatures. Similar to other charters, the statute imposes an obligation on citizen to defend the country and render national service when called upon to do so. Further, it shall be the duty of every Indian “to uphold and protect the sovereignty, unity and integrity of India,” says Article 51A.

The architects of the Constitution of India had not incorporated Article 51A in original copy at the time of its commencement in 1950; as a result no duties of the citizen were laid down initially. The duties as enshrined under Article 51A were inserted with an amendment Act of 1976 (i.e., 42nd Amendment Act).

It is always argued in South Asia that people lay emphasis on rights and not on duties. The political classes focus on rights but show little regards towards the duties they owe to the nation and to one another. Had they been smart enough to respect the fundamental duties, they would not have made inflammatory statements or they would not have gone contrary to established democratic norms. Their words and actions have the potential to violate words of Holy Scriptures.

Since time immemorial, emphasis in our society in accordance with the dictates of ancient scriptures has been on individuals’ “Kartavya”, performance of one’s duties towards society and the state. The holy scriptures like Gita, Ramayan and Quran enjoin people to perform their duties without caring for their rights (or fruits).

For instance, leaders across the region raise the issues of rights at national or international stages but they don’t bother to educate the people about their duties towards the state. As a part of fundamental right guaranteed under Article 30 of the Constitution of Nepal (Right to clean environment), every person has a right to live in a pollution-free environment. But the charter, in one way or the other, suggests that there is a corresponding duty for the people to protect and improve the natural environment.

South Asian states are comprised of people of different races, castes, religious, languages, communities, etc. and the need for maintaining national unity and integrity is of principal importance. It is in this context, the fundamental duty to abide by the Constitution and uphold and protect the sovereignty, and integrity of the country assumes paramount importance. The Constitutional arrangement of fundamental duties reminds the citizens that the rights cannot exist without duties. It should be borne in mind that one cannot ask for unless one fails to perform one’s duties.

The author is a law student, pursuing Bachelor of Laws in Dehradun, India

 

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