Written by Neetu Jain
Advocate, Supreme Court of India
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INTRODUCTION
The Preamble of our Constitution says, WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a [SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation].
The preamble can be referred to as the preface which highlights the entire Constitution, makes it very clear that the ideals of the Constitution have to percolate to every citizen of India.
India has a glorious history of democracy since ancient times. Eminent historian, Shri K P Jayaswal stated that the concept of the republic system in ancient India is older than the Roman or Greek republican system. The ancient republics or Janpadas such as Vaishali, Kapilavastu and Mithila etc. and their constitutions are older than 600 BC, and are the foundation of constitutional democracy of India.
Since ancient times, people in India have followed the tradition of performing their duties without questioning about their rights and privileges. Since time immemorial, an individual’s “kartavya” — the performance of one’s duties towards society, his/her country and his/her parents was emphasized. Describing the role of a king, at one place the greatest King Chandra Gupta Maurya’s Guru Chanakya, had stated that “It is a king’s utmost duty to look after the progress and welfare of the people of his country”.
Since time immemorial people in India has believed in the concept that Work is worship, thus emphasizing on one’s duty which means that if every individual performs their duties with sincerity, then it amounts to a worship mechanism. Here it is important to mention that Rig Veda talks about fundamental values which include harmony, tolerance, righteousness, respect for nature, and respect for the (unseen) supreme.
Bhagwad Gita and Ramayana also speak that an individual should perform their duties. In the Bhagwad Gita, Lord Krishna said that everyone should do their duties without expecting anything. Mahatma Gandhi once said that “I have learnt my duties in my mother’s lap, she was an illiterate woman but knew what was my dharma”. The beauty of this ancient thought is that the performance of duty protects our right and rights cannot be divorced from duties. Swami Vivekananda once rightly said, “it is the duty of every citizen to contribute and participate in the development and progress of India”.
RIGHTS OF PERSONS
In accordance with the ideals of the Preamble, the Fundamental Rights of Person have been ensured in Part III (Article 14- 32) of the constitution. These rights are applied irrespective of race, place of birth, religion, caste, creed, or gender. They are enforceable by the courts, subject to specific restrictions. They can broadly be classified as:
-Right to Equality (Article 14 – Article 18)
-Right to Freedom (Articles 19 – Article 22)
-Right to Education (Article 21A).
-Right against Exploitation (Articles 23 – Article 24)
-Right to Religion (Articles 25 – Article 28)
-Right to Culture and Education (Articles 29 – Article 30)
-Right to Constitutional Remedies (Article 32): In order to ensure that the Rights of Persons are protected, any person who believes that his rights have been affected by the actions of State has the right to move to the Supreme Court or High Court for enforcement of his rights and the Supreme Court and High Courts have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
DUTIES AND RESPONSIBILITIES OF INDIAN CITIZEN
PART IVA FUNDAMENTAL DUTIES 51A. It shall be the duty of every citizen of India— (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (b) to cherish and follow the noble ideals which inspired our national struggle for freedom; (c) to uphold and protect the sovereignty, unity and integrity of India; (d) to defend the country and render national service when called upon to do so; (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; (f) to value and preserve the rich heritage of our composite culture; (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; (h) to develop the scientific temper, humanism and the spirit of inquiry and reform; (i) to safeguard public property and to abjure violence; (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement; (k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.
If we minutely study all the provisions of our Constitution, we find that very significant feature of our Constitution is that it balances citizens’ rights and duties. These are some social factors which have been grown with time, tradition and usage. The citizen’s duties as are enshrined with Constitution are important as a codification of such duties are an integral part of every citizen of India, which focus on tolerance, peace and communal harmony. A close look of the provision of Article 51A of the Constitution, indicate that a number of provisions refer to human values, which have been part of Indian tradition, mythology, religion and practices.
The chapter on Fundamental Rights in the Constitution itself recognizes the essence of duties. If we look at Article 19 which pertains to freedom of speech, we find that Clause 2 to 6 of the same article put some reasonable restrictions on the exercise of such rights in the interest of the sovereignty and integrity of India, and the security of the state, public order, decency and morality. Similarly, w.r.t other articles of part III of our Constitution. This implies that while exercising rights one must remember one’s duties towards these constitutional Rights.
No democratic polity can ever succeed where the citizens are concerned only about their rights and are not willing to actively participate in the process of assuming responsibilities, discharging their duties and strive to give their best in the interest of their nation. There are three things which build a nation. The first is noble ideals. The second is the capability of the citizens for achieving these ideals. The third and very important is that the constant and intense effort made by each and every Indian citizen to strive for excellence and take his country forward and foremost and make proud in the world.
Mahatma Gandhi, while commenting on the performance of duties had once said that the true source of right is a duty. While emphasizing on duties he meant that if we perform our duties than rights will not be far, however, If we leave the duty unperformed, and run after rights, we will not be able to get the rights.
It can be undoubtedly stated that the rights flow from duties when well performed. Harold Laski, the great political philosopher once said that the rights are related to functions and are given only in return for some duties to be performed. Rights are conferred on the individuals not for their individual up-liftmen but also for social and collective good.
Citizen is one of the foundations of the country. They are entitled to enjoy all the legal rights and privileges granted by a state to the people encompassing its constituency and are obligated to obey its laws and to attain his or her duties as called upon.
A responsible citizen abides by all the laws of the country, in return they get rights. However, rights come with duties such as casting a vote, paying government taxes and protecting the country from any foreign invasion. Being a good and responsible citizen of the country, one must engage in activities or assist in tackling issues such as keeping the environment clean, raising money for charities, conserving electricity, water, and natural resources, or protecting public properties, etc.
CAN THE LEGISLATION AMEND/ ALTER THE FUNDAMENTAL RIGHTS OF AN INDIVIDUAL PROVIDED BY THE CONSTITUTION OF INDIA.?
Here it is important to sum-up by mentioning three important Judgments of the Supreme Court on the issue of Fundamental Rights and power of Parliament to amend the Constitution. They are Golaknath Vs State of Punjab (1967AIR 1643), Additional District Magistrate (ADM), Jabalpur vs Shivakant Shukla (1976 2 SCC 521, and Kesavananda Bharati State of Kerala (1973 4 SCC 225).
The Golaknath Case (1967AIR 1643) pertained to challenging acquisition of farmlands in Punjab under land ceiling laws and the petitioner therein contended attachment of lands denied them equality and equal protection as constitutionally guaranteed. In this matter, the 11-judge bench examined its own five-judge verdict in a previous case (Sankari Prasad vs Union of India) when the court ruled that parliament has the right to amend any part of the constitution.
The Hon’ble Apex court in Golaknath Case reversed its previous verdict of Sankari Prasad vs Union of India, however with the rider of the doctrine of “prospective overruling”, and declared that parliament did not have the power to amend fundamental rights, in part or in whole. The court also ruled that despite it being the parliament’s duty to enforce the directive principles of state policy, this could not be done by altering fundamental rights.
In Additional District Magistrate (ADM), Jabalpur vs Shivakant Shukla(1976 2 SCC 521), popularly known as the Habeas Corpus case, which was decided by the Supreme Court on April 28, 1976, by a bench of five judges, wherein the Hon’ble Supreme Court by majority held that “In view of the Presidential Order dated 27th June 1975 no person has any locus to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations.” The presidential order referred to in the conclusion of the judgment had declared that any right under Article 14,21, & 22 of the constitution of any person and all proceedings pending in any court for the enforcement of those rights would remain suspended during the Emergency was in force.
However, Justice Khanna, (one of the Judges of the Bench) in his dissent, held that “Article 21 cannot be considered to be the sole repository of the right to life and personal liberty. Sanctity of life and liberty was not something new when the constitution was drafted, and the principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the constitution, Justice Khanna declared.” Therefore, he reasoned that even in the absence of Article 21 in the constitution, the state has got no power to deprive a person of his life or liberty without the authority of law. It is important to note here that the later pronouncements of Supreme Court, on Article 21, of makes it clear that the dissenting opinion of the minority Judge, Justice Khanna is the way forward.
Kesavananda Bharati v State of Kerala (1973 4 SCC 225), Judgment wherein one main question: was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?
On April 24, 1973, Chief Justice Sikri and 12 judges of the Supreme Court assembled to deliver the most important judgment in its history. Article 368(pertaining to the power of the Parliament to amend provisions of Constitution), on a plain reading, did not contain any limitation on the power of Parliament to amend any part of the Constitution. There was nothing that prevented the Parliament from taking away a citizen’s right to freedom of speech or his religious freedom. However, on account of Article 32, Supreme Court of India rose to the occasion and though 703-page judgment revealed a sharply divided court and, by a wafer-thin majority of 7:6, overruled the Golaknath verdict and gave back to the parliament the right to amend the Constitution. It was held that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution.” This was the inherent and implied limitation on the amending power of Parliament. Thus, the Judgment ensured that the Parliament can amend any part of the Constitution or impose any reasonable restriction on the rights of the people so long as it does not alter or amend the basic structure or essential feature of the Construction.
