This article is written by Sambit Rath, a B.A. LL.B. student of Dr. Ram Manohar Lohiya National Law University, Lucknow. In this article, the author aims to differentiate between Fundamental Rights and Fundamental Duties.
It has been published by Rachit Garg.
Table of Contents
Introduction
The Indian Constitution is the supreme law of the country. It contains within it the Fundamental Rights, Duties, Directive Principles, and Duties of the government. It was drafted by the Constituent Assembly chaired by Dr. B.R. Ambedkar in the year 1947, and it came into force on 26th January 1950. Since then, there have been various amendments to the Constitution, among which were the additions of Fundamental Duties by the 42nd and 86th Constitutional Amendments. The existence of two “fundamentals” raises the question as to what is the difference between the two? Are both legally enforceable? What is the need of either of the two? In this article, we’ll endeavour to answer these and a few other questions.
What are Fundamental Rights
As the name suggests, fundamental means something that is necessary in order for something else to function. Thus, Fundamental Rights are basic human rights that are available to the citizens of India irrespective of place of birth, religion, or gender. They are the foundation of any democracy as it enables the people living in a democratic society to achieve their potential without fearing suppression. These rights ensure individual liberty. In India, these rights are provided in Part III of the Indian Constitution, from Article 14 to Article 35. The Indian Constitution guarantees and protects these Fundamental Rights. Let’s look at each one of these rights:
- Right to Equality
- Right to Freedom
- Right against Exploitation
- Right to Freedom of Religion
- Culture and Educational Rights
- Right to Constitutional Remedies
Right to Equality (Articles 14-18)
- Article 14 – Equality before the law
This Article states that all individuals are equal in the eyes of the law and are treated equally. It also states that individuals enjoy equal protection of the law. This means that in similar situations, individuals will be treated in the same manner.
- Article 15 – Prohibition from Discrimination
This Article prohibits discrimination of any kind. No individual can be discriminated against based on religion, race, sex, caste, or place of birth. This Article is further divided into 4 parts:
- Article 15 (1) – This Article prohibits the state from discriminating against any individual.
- Article 15 (2) – This Article states that no person shall be denied access to any public place like railway stations or use public facilities like wells, roads, etc.
- Article 15 (3) – This Article provides that the State shall make special provisions for women and children.
- Article 15 (4) – This Article allows the state to make special provisions for weaker sections of the society like the scheduled caste, scheduled tribe, and other weaker sections recognized by the government.
- Article 16 – Equality of opportunity and matters of public employment
This article aims to provide equal opportunity to the citizens in employment provided by the State. This Article is further divided into 5 parts:
- Article 16 (1) – This Article states that all citizens should be given equal opportunity in matters of employment.
- Article 16 (2) – This Article prohibits discrimination in matters of employment provided by the State.
- Article 16 (3) – This Article allows the parliament to make laws that require residential requirements for public employment.
- Article 16 (4) – This Article allows the parliament to make special provisions for weaker sections of the society in matters related to public employment.
- Article 16 (5) – This Article permits the parliament to make laws that require a person belonging to a particular religion to be appointed in an institution of that religion.
- Article 17- Abolition of Untouchability
This Article prohibits the practice of untouchability. Practising untouchability in any form is a punishable offence.
- Article 18 – Abolition of Titles
This Article prohibits the State from conferring titles. However, the State is not prohibited from conferring titles that are academic or military in nature.
Right to Freedom (Articles 19-22)
- Article 19
This Article guarantees 6 freedoms to the citizens of India.
- Freedom of speech and expression
- Freedom of peaceful assembly without arms
- Freedom of forming associations or unions
- Freedom of movement throughout the territory of India
- Freedom of residence and settlement in any part of the territory of India
- Freedom of profession, occupation, trade, or business
- Article 20
Protection in respect of conviction for offences
This Article provides protection to individuals accused of crimes. It has 3 sub-clauses:
- Article 20 (1)- this Article provides that no person shall be punished for acts that were not punishable at the time of commission.
- Article 20 (2)- this Article states that a person cannot be prosecuted and punished for the same offence more than once.
- Article 20 (3)- this Article states that no person accused of a crime can be compelled to be a witness against himself.
- Article 21
Protection of life and personal liberty
This Article provides the right to life and personal liberty. No person can be deprived of this right except according to the procedure established by law.
- Article 22
Protection against arrest and detention in certain cases
This Article provides procedural safeguards to individuals in case of arrests like the right to be informed of the grounds of arrest and the duty of the police authorities to produce the arrested individual before a magistrate within 24 hours.
Right against Exploitation (Articles 23-24)
- Article 23
Prohibition of traffic in human beings and forced labour
This Article prohibits human trafficking and any kind of forced labour.
- Article 24
Prohibition of employment of children
This Article prohibits children below the age of 14 years to be employed in hazardous places like factories or mines.
Right to freedom of religion (Articles 25-28)
- Article 25
Freedom of conscience and religion
This Article ensures freedom of religion for every citizen of the country.
- Article 26
Freedom to manage religious affairs
This Article gives every religious order the right to establish and maintain religious institutions and manage their affairs.
- Article 27
Freedom as to payment of taxes for promotion of any particular religion
This Article provides that no taxes shall be imposed by the state for the promotion and maintenance of a particular religion.
- Article 28
Freedom as to attendance at religious instruction or religious worship in certain educational institutions
This Article provides that religious groups can establish educational institutions to disseminate religious instruction.
Cultural and Educational Rights (Articles 29-30)
- Article 29
Protection of interest of minorities
This Article provides that a community of people has the right to conserve their language, script, or culture.
- Article 30
Right of minorities to establish and administer educational institutions
This Article permits religious and linguistic minorities to establish educational institutions.
Right to Constitutional Remedies (Article 32)
- Article 32
This Article guarantees remedies in cases of violation of the fundamental rights of citizens. This permits citizens to approach the Supreme Court if their fundamental rights are violated.
It is to be noted that the Right to Property was initially a fundamental right. At present, it is a legal right under Article 300A.
What are Fundamental Duties
Fundamental Duties are moral obligations of the citizens towards the country. They are provided in Article 51A, Part IVA of the Indian Constitution. Originally, these weren’t a part of the Constitution. They were added by the 42nd and 86th Constitutional Amendment Acts, which were recommended by the Swaran Singh Committee. The concept of Fundamental Duties was borrowed from the USSR. These duties were drafted to prepare an ethical, moral, and cultural code of conduct. These are to be followed by citizens to protect the sovereignty, unity, and integrity of the country.
At first, there were 10 Fundamental Duties that were added by the 42nd Amendment, and later on, one more was added by the 86th Amendment. The 11 Fundamental Duties are as follows:
- To abide by the Constitution and respect the Indian flag and the National Anthem.
- To follow the ideas that inspired the freedom struggle.
- To uphold and protect the sovereignty, unity, and integrity of India.
- To defend the country and serve the nation when called upon.
- To promote harmony and brotherhood among the people of India; to renounce derogatory practices that demean women.
- To value and preserve the rich heritage of our culture.
- To protect and improve the natural environment and have compassion for living creatures.
- To develop scientific temper, humanism, and spirit of inquiry.
- To protect public property.
- To strive towards excellence in all spheres of individual and collective activities.
- To provide educational opportunities to children between 6-14 years of age and the duty of parents to ensure the same.
Enforcement of Fundamental Rights
We have seen that there are certain fundamental rights available to the citizens of this country. Now the question that arises is how are these rights enforced? What gives these rights the power to eclipse a proposed law?
The answer lies in Article 13 of the Indian Constitution. This Article empowers the Fundamental Rights that are available to citizens. Basically, Article 13 shields these Fundamental Rights from infringement by the government. Article 13(1) states that any law in force before the commencement of the Constitution, as far as they are inconsistent with any Fundamental Right, will be void. This means that any pre-Constitution era law, that is in force but has some part of it that is infringing these Fundamental Rights, that part of the law will become void from the date on which the Constitution of India came into effect, which is 26th January 1950. Article 13(2) declares that the State shall not make any law that takes away or alters Fundamental Rights. Also any such law, to the extent of the infringement, shall be void. This means that the State cannot abuse its powers and meddle with the Fundamental Rights of the citizens.
Now, there needs to be a remedy if there is a right, or else it will be just words on a paper and nothing more. For this, the Constitution-makers have provided the ultimate defence. Article 32 of the Indian Constitution is this ultimate defence. It states that infringement of the Fundamental Rights of a citizen would allow them to approach the highest court of the country, the Supreme Court. So when the State deprives the individual of his fundamental right, he can approach the Supreme Court for legal remedy. It is important to note that Article 32 is itself a Fundamental Right, thereby ensuring that the state cannot take away this power from the citizens. Article 226 also allows the citizens to approach the High Courts for the same. Some key differences to note here are that Article 32 is a Fundamental Right and Article 226 is a legal right. The scope of the High Courts is wider as they can issue writs for infringement of legal rights in addition to fundamental rights unlike the Supreme Court, which can only issue writs in cases of violation of fundamental rights.
How is the performance of Fundamental Duties ensured
If Fundamental Duties are moral obligations towards the country, then how is the performance of these duties ensured? It is important to note that Fundamental Duties are non-justiciable. This means a person cannot be punished for not performing his fundamental duties. The reasons for this are discussed in the next section below. It is also important to note that there is nothing in the Constitution that provides for direct enforcement of these duties by the courts. That means no one can approach the court to seek a remedy if there is a non-performance of these duties by someone else.
However, the Parliament can enforce these duties indirectly by making suitable legislation. Nothing stops the Parliament from making a law that prohibits any act which is in violation of the duties. This is how the Fundamental Duties can be made indirectly enforceable. Let’s look at some examples:
- To ensure the performance of the duty given in Article 51A (g), which is the duty to protect the environment, the Supreme Court held that it is the duty of the government to take steps to make this provision effective. It also issued some directions to the government:
- To direct educational institutions throughout the country to impart lessons in the first ten classes relating to the protection and improvement of the environment.
- To produce textbooks written on this topic and distribute them for free.
- To introduce short-term courses to train teachers.
- All government employees and authorities are to introduce cleanliness weeks and take measures to keep their surroundings clean.
- Prevention of Insults to National Honour Act, 1971 – This Act prohibits the destruction or insult of National Symbols, which include the National Flag, National Emblem, National Anthem, the Constitution, and the map of India. It includes punishment with imprisonment which may extend to three years or a fine or both, for the disruption of the National Anthem.
- Protection of Civil Rights Act, 1955 – An Act to prescribe punishment for the preaching and practice of untouchability.
- Environment (Protection) Act, 1986 – This Act allows the government to protect and improve the environment and also restricts anyone from operating or setting up industries on environmental grounds.
- Forest (Conservation) Act, 1980 – This Act of the Parliament of India provides for the conservation of forests and matters connected therewith or ancillary or incidental thereto.
Can one be punished if they do not perform their Fundamental Duties
Fundamental duties by their nature are not enforceable or justiciable, i.e., no person can be held liable for non-performance of fundamental duties. The Swaran Singh Committee had proposed penal actions for non-performance of these duties, but these were rejected later. The reason is that the majority of the Indian population was illiterate at that time, and the language used to define the duties makes it tougher for someone with limited knowledge to grasp the message. In such a scenario, making these duties justiciable would have led to a lot of commotion as every other person would have violated these duties unknowingly. As we have seen in the above section, no one can be punished if they do not perform their fundamental duties. But one can be punished if they perform a prohibited act that violates the fundamental duties. Hence, there is no punishment for non-performance, but there is punishment for acts that violate fundamental duties.
Difference between Fundamental Rights and Fundamental Duties
| Basis | Fundamental Rights | Fundamental Duties |
| Definition | Basic human rights are available to every citizen, irrespective of race, place of birth, religion, caste, creed, or gender. | Moral obligation of the citizens towards the country to protect the sovereignty, unity, and integrity of the country. |
| Part of Constitution | Present in Part III of the Constitution. | Present in Part IV A of the Constitution. |
| Borrowed from | The concept of Fundamental Rights is borrowed from the United States of America. | The Concept is borrowed from the USSR. |
| Availability | Is Available to citizens only while some of them are available to foreigners too. | Available to and binding on citizens only. |
| Nature | Political and Social in nature. | Political, Social, and economic in nature. |
| Justiciability | Justiciable | Non-Justiciable |
| Articles | Articles 12 to 35 deal with Fundamental Rights. | Article 51A deals with Fundamental Duties. |
| Enforceability | They are directly enforceable. | No provision for direct enforcement by the courts. Parliament can enforce them through suitable legislation. |
Conclusion
Both Fundamental Rights and Fundamental Duties are important as they complement each other. There can be no demand for rights if the duties bestowed are neglected. Even though only Fundamental Rights are enforceable and justiciable, Fundamental Duties are equally important. By performing moral obligations, we make efforts to create a better society, as was envisioned by the Constitution makers. These duties were not made justiciable because not everyone would grasp this concept and understand what these terms mean. India having its majority population uneducated played a huge role in this decision. But people like us who are capable of understanding these should follow and promote these ideas for the betterment of this country.
Frequently Asked Questions (FAQs)
Are Fundamental Rights absolute or qualified?
Fundamental Rights are qualified but not absolute. This is because the State has the power to impose reasonable restrictions on these rights. For example, freedom of speech and expression is not absolute. The State can hold a person liable if his speech damages the reputation of another.
What is the difference between Fundamental Rights and Duties?
Fundamental Rights are basic human rights given to citizens of a country. They are justiciable. Fundamental Duties are moral obligations of the citizens towards the country. These duties are not justiciable.
What is the relationship between Fundamental Rights and Fundamental Duties?
The relationship between Fundamental Rights and Duties is that for every right there is a corresponding duty. One’s rights are another’s duty. If people don’t perform their duties, the rights of others would be affected.
References
- https://www.jagranjosh.com/general-knowledge/difference-between-fundamental-rights-and-fundamental-duties-1625575305-1
- https://www.scconline.com/blog/post/2020/07/01/fundamental-duties-as-a-mean-to-achieve-responsible-citizenry/
- https://www.lawnn.com/right-to-constitutional-remedies/#:~:text=Article%2032(2)%20vests%20the,directly%20at%20the%20Supreme%20Court.
- http://www.legalservicesindia.com/article/1778/Fundamental-Duties-under-the-Constitution-as-Legally-Enforceable-Duties-under-Different-Statutes.html#:~:text=It%20is%20true%20that%20there%20is%20no%20legal,have%20an%20inherent%20element%20of%20compulsion%20regarding%20compliance.
- https://www.myadvo.in/blog/10-fundamental-duties-you-need-to-know-about/
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