Fundamental rights and fundamental duties not always on collision course: Senior Advocate NK Kaul

Speaking at the 2nd Justice HR Khanna Memorial Symposium on Sunday, Senior Advocates Neeraj Kishan Kaul and Sidharth Luthra discussed the complementary nature of fundamental rights and fundamental duties in the Indian context..The duo spoke on the topic Fundamental Duties vis-a-vis Fundamental Rights under Our Constitution, at the symposium organised by Dr Ram Manohar Lohiya National Law University, Lucknow and National Law University, Odisha, in partnership with Confederation of Alumni for National Law Universities (CAN Foundation)..In his address, Kaul surmised that even though fundamental duties were inserted into the Constitution at a later stage, they are guiding principles that existed even before, under the Gandhian view of the Constitution."Fundamental duties are the guiding principles for citizens to be responsible towards the State. In India, they seek to achieve certain parameters of progress which cannot be achieved without citizens performing their duties. The framers of the Constitution had not included fundamental duties in the Constitution separately perhaps under the belief that citizens would not only be well aware of it, but would also follow it. However, even at that point of time, a Gandhian view of the Constitution existed and Gandhi had said that the true source of rights is duties," he said..He opined that duties and rights can co-exist even though the former are not legally enforced in general even after the Supreme Court expanded the scope of Article 51A of the Constitution in Ashoka Kumar Thakur v. Union of India."The debate on fundamental rights v. duties always assumes that they are on a collision course, which may not be necessarily true. One of the main arguments is that fundamental duties do not have legal backing. But some duties are protected by law and already are being enforced through law. For example, some provisions in the Indian Penal Code penalise acts disrupting sovereignty and integrity of India," he said..However, the senior lawyer emphasised that India is still a rights-based society with a rights-centric Constitution and that non-fulfilment of duties must never be a test of maintainability while enforcing fundamental rights."The repercussions of not adhering to duties may be felt by the next generation which may then be faced with eventuality of curbing rights, or contracting some Constitutional principles. Having said so, the essence of the Constitution is all about rights. Dr. BR Ambedkar had said in Constituent Assembly that the fundamental unit of the Constitution is the individual. Non-fulfilment of duties cannot be a test of maintainability while enforcing fundamental rights. It may be a necessary condition in adjudicating bonafides and prejudices at a later stage," he cautioned..Kaul then traced the history of how fundamental duties came to be inserted in the Constitution, pointing out that they were indeed inserted during Emergency era.It was at around the same time that Justice HR Khanna of the Supreme Court dissented in the landmark ADM Jabalpur case, also known as the Habeas Corpus case, which set an example for the judiciary's duty to protect the rights of citizens, he added..Speaking at the event, Luthra also spoke of Justice Khanna's courageous dissent upholding citizens' right to liberty."Justice Khanna was a beacon of light during a time of darkness. We were confronted with a situation where citizens feared for their liberty and it was then one man (Justice Khanna) who stood up to uphold the Constitution. We need individuals like him to make this or any nation an far better place.".Luthra said that it was difficult to imagine the existence of rights without the corresponding existence of duties."In my view, fundamental rights are a direct or indirect consequence of fair assertion of fundamental duties...The scheme of fundamental rights and fundamental duties must be seen as one - of creating responsible citizens. Fundamental duties therefore perform an educative role. Fundamental duties do not act as a limitation, but enhance the purpose of the Constitution," he said..Echoing the views expressed by Supreme Court judge, Justice Vikram Nath at the event, Luthra too linked the concept of fundamental duties to that of 'Dharma'."The concept of fundamental duties come from the term 'dharma'. Dharma being maintenance of peace, security and law and order within the larger cosmic order," he concluded..Fundamental duties precede fundamental rights, has deep roots in concept of Dharma: Justice Vikram Nath