Fundamental Duty: A Flawed Concept | By Vikram Raj

Recently, CJI SA Bobde at an International Judicial Conference emphasized the importance of Fundamental duties by saying that if each citizen fulfills his fundamental duties, all the rights can be taken care of. On more than one occasion PM Modi has drawn attention to this fundamental duties chapter inscribed in Article 51(a) of the Indian constitution. No matter how well-intentioned these people are when they remind us of our duties, implicit here's a pernicious idea. The idea that puts duties on a par with rights, suggesting that you shouldn't deserve your rights if you don't care for duties.

Rights vs Duties:

The problem with the state conflating rights and duties is that it might render the rights of the citizens as a quid pro quo for duties to be followed. It is not that we are completely indifferent to the concept of duties. For the smooth and peaceful functioning of our social life, we owe, often unknowingly, a wide range of legal duties to the state. The state protects us, enforces our contracts, conducts welfare schemes. In return, we owe our allegiance to the state and also the duty to pay taxes. Do we, in the same way, owe duties which are essentially moral codes of conduct in return for the rights conferred upon us by the state? One way to examine this question is by looking back at the social contract theory as propounded by Locke. According to this theory, the natural rights of man, which can be considered as a precursor to modern human rights, existed in the state of nature itself. And when the man agreed to enter the civil society, no rights were given up except for the right to punish others for violating these rights which later became the state's job according to the social contract. The point here is that the rights we enjoy don't emanate from the state but are deeply ingrained and very integral to us, the individuals. So, the state shouldn't use rights as a justification for imposing duties.

Another way of examining this question is to look at the libertarian theory of rights and the concept of a minimal state. As we know, one idea behind the concept of fundamental duties is to promote notions of virtues essential for a good citizen. For a libertarian, human rights and freedom are of paramount importance. According to libertarian philosophy, we own ourselves. And if we own ourselves, state indulging in any type of moral legislation is unjustified. State's job is to enforce contracts, protect individuals and properties and maintain peace. That's all. It has no business to impose moral duties on citizens whatsoever.

Objections to the Art. 51(a):

While discussing the fundamental duties chapter in our constitution one can't miss the background in which it was enacted. When the emergency was at its peak, amid the clampdown on civil liberties, widespread abuse of human rights, the 42nd amendment to the constitution was enacted which was pejoratively called 'the constitution of Indira'. It brought sweeping changes to the constitution. The introduction of the fundamental duties in Art 51A was one of the many. One line in its statements of objects and reasons is worth looking at. It is also proposed to specify the fundamental duties of the citizens and make special provisions for dealing with anti-national activities, whether by individuals or associations. Isn't it symptomatic of deeper malice that the then ruling dispensation might have towards its citizenry? Putting fundamental duties and provisions for dealing with anti-national activities in one sentence makes it too obvious.

Even if we consider these duties as nothing but moral guidance prescribed to citizens with no ill-will, it is a futile exercise to compile these moral codes of conduct as no one can come up with an exhaustive list of such duties. Some important duties which were recommended by the Swaran Singh Committee like paying taxes, casting votes, family planning haven't been incorporated in the fundamental duties chapter. So why litter the constitution with an incomplete list of inconsequential moral code of conduct?

Another objection to the fundamental duties which are not so apparent or discernible is the condescending attitude it evokes towards the people. Look at some of the terms incorporated in it like "Scientific temper" or "Humanism". Not only are these terms vague and ambiguous, but they also provide an opportunity to scoff at the populace perceived as unscientific, religious and conservative. The intent behind the inclusion of these terms appears to be disingenuous to a skeptical mind. Even if we assume that the intent was to promote science, why only the development of scientific temper can be a fundamental duty? People use a variety of human intellectual apparatus for problem-solving. Some people use scientific methods. Some prefer intuitive hunches. Some rely on heuristic methods. Some depend on faith. Why not include all of these? Why extol the virtues of science alone. This was essentially an attempt to give a certain point of view that looked the essentially religious character of Indian life with contempt, an unquestionable legitimacy. Since elites with those points of view couldn't attack conservative Indians directly in the constitution, they invented this heavily loaded jargon like "Scientific temper". The point being made here is exemplified in this tweet by eminent intellectual and historian Ram Chandra Guha.

Conclusion:

Historically, the world over totalitarian regimes uses this cloak of civic duties to further their agenda, remember the draconian duties Nazi Germany imposed on women. In our times this is done by propagating some seemingly benign ideas around civic duties. Everyone knows about this famous old cliche by J F Kennedy: Ask not what your country can do for you; ask what you can do for your country. This is nothing but a totalitarian bunk. Samuel Moyn in this Boston review article writes: “the rhetoric of duties has often been deployed euphemistically by those whose true purpose is a return to tradition won by limiting the rights of others". Now, coming to the Indian constitution, the fact that fundamental duties are non-enforceable is a matter of great respite for all of us. At the very least it must remain as it is. We must resist any attempt to conflate rights with duties.

References

1.https://www.business-standard.com/article/news-ani/feature-often-neglected-in-our-constitution-is-fundamental-duties-cji-bobde-120022200335_1.html

2.http://legislative.gov.in/constitution-forty-second-amendment-act-1976

3.http://bostonreview.net/books-ideas/samuel-moyn-rights-duties

Vikram Raj

B.A. LL.B (Hons.) 1st Year

Email: vibrantvikramraj@gmail.com