India has been witnessing a trend toward giving equal importance to Fundamental Rights of individuals (“FR”) and Fundamental Duties imposed on individuals (“FD”). Arguably, this is an adverse trend is an authoritarian, non-democratic, and discriminatory approach which would limit the exercise of fundamental rights.
In recent times, the importance of focusing on Fundamental Duties (“FD”) on par with Fundamental Rights (“FR”) has been expressed by the Government and the Judiciary. To quote few instances, the Prime Minister asserted that the country has been weakened by concentrating on rights and ignoring duties. Similar views were expressed by the Union Law Minister. The Madras High Court called for equal enforcement of rights and duties by constitutional courts. The former Chief Justice of India and an Apex Court judge also opined that FR and FD should be read together. However, it would be incorrect to view FR and FD as equally important.
Firstly, the very incorporation of FD into the Constitution is problematic. Though the FD can be justified from a political perspective that rights and duties are complementary, the prudential interpretation would reveal the real picture. Prudential reading is crucial without which the Constitution would become a suicide pact. The pragmatic approach would use the pragmatic logic in shaping the constitutional doctrine and has traction in periods of emergency and unrest. In that line, FD was incorporated through 42nd amendment during emergency period (India’s authoritarian regime) and the amendment has been criticised for introducing various ‘Constitutional Blackholes.’ Therefore, the introduction of FD in itself is an authoritarian approach which should not be equated with FR.
Secondly, the instant issue could be seen purposively through the Constituent Assembly Debates. When Prabhu Dayal Himatsingka proposed to have FD along with FR, the Constituent Assembly resolved not to have FD as a distinct chapter. Further, the object of the 42nd amendment was not to balance FR with FD but to “Make special provisions for dealing with anti-national activities.” Thus, purposive reading also does not justify asserting equal importance to FR and FD.
Thirdly, giving equal importance to both FR and FD may enable the State to offset its duties towards individuals emanating from FR, by relying on FD. It would also expand the State’s power to restrain FR rather than holding them accountable for protecting FR. In general, FD subordinate the individual to the collective and subvert individual rights to societal duties. This argument could be understood from an international context where the Universal Declaration of Human Rights (UDHR) does not impose duties on individuals duties, to avoid the unjust limitation on rights by the State. The International Covenants on Human Rights and the American and European Conventions on Human Rights adopted the same approach.
Fourthly, giving importance to FD would risk discrimination. In general, Hindu nationalism has been a great threat to secularism and inclusiveness of India. Further, the present Union Government has adopted right-wing Hindu nationalism, prescribes to Hindutuva and proclaim it as a cultural agenda to promote India’s heritage and culture. In this context, giving equal importance to FD which has duties inspired from mythologies, religions & practices, concept of ‘Dharma’ and principles enshrined in Hindu religious texts/epics would lead to anti-secular interpretations violating FR. For instance, in Aruna Roy case, the national school curricular was challenged to be anti-secular. The curricular was based on a committee report which advocated virtues with considerable Hindu bias. However, the apex court didn’t peruse the concerned report in detail and upheld the alleged curriculum to be secular by quoting FD to promote harmony amongst all religion. Further in Mizapur Kassab Jamat case, banning of cow slaughter (a Hindutva agenda) was challenged. Instead of the subjecting the ban policy to the intensive FR test, the apex court conveniently invoked FD ‘to have compassion for living creature’ and this decision has been criticised for being biased towards religious majoritarianism.
Therefore, FR ought to have priority over FD. However, the Indian judicial interpretation at times supports giving equal importance to FR and FD. This happens because of “Panchayati Eclecticism” where courts adopt result-oriented approach with fusion of interpretive approaches, at different levels of emphasis. Various literature has highlighted this issue where interpretations are driven by socio-political predilections of the judges. Thereby the present issue could be remedied by evolving a meta-rule to objectively guide interpretation. This would not be new to India, as it already has ‘Doctrine of Basic Structure’ and various principles are time and again added as an integral part of basic structure. The judiciary should evolve meta rule to assert primacy to FR over FD.