Jurisprudence – Relationship between Rights and Duties

ABSTRACT

This research considers the issue of rights and duties in the context of social relations based on persistent exchange processes. Rights and duties that acquire a functional nature in such context are characterized in a tentative formal way. A possible connection between functional rights and duties and the issue of morality as a regulation mechanism. every right has a corresponding duty. Therefore,, there can be no duty unless there is someone to whom it is due. There can be no right without a corresponding duty or a duty without a corresponding right, just as there cannot be parent without a child. . Every duty is a duty towards some person or persons in whom a corresponding right is vested

Are rights and duties correlatives?
What are the constitutional provisions given to rights and duties in India?

RELATIONSHIP BETWEEN RIGHTS AND DUTIES

It is debatable question whether rights and duties are necessarily co relative. According to one view, every right has a corresponding duty. Therefore,, there can be no duty unless there is someone to whom it is due. There can be no right without a corresponding duty or a duty without a corresponding right, just as there cannot be parent without a child. Every duty is a duty towards some person or persons in whom a corresponding right is vested. Likewise, every right is right against some person or persons upon whom a co relative duty is imposed. Every right or duty involves a vinculum juris or a of legal obligation by which two or more persons are bound together. There can be no duty unless there is someone to whom it is due. Likewise, there can be no right unless there is someone from whom it is claimed.1

According to Holland, every right implies the active or passive forbearance by others of the wishes of the party having the right. The forbearance on the part of others is called a duty. A moral duty is that which is demanded by the public opinion of society and a legal duty is that which is enforced by the power of the state.

The view of salmond is that rights and duties are co relatives. If there are are duties towards the public, there are rights as well. There can be no duty unless there is some person to whom that duty is due. Every right or duty involves a bond of obligation.
Minerva mills ltd v. union of India

The Supreme Court observed that there may be a rule which imposes an obligation on an individual or authority, and yet it may not be enforceable in court of law, and therefore not give rise to a corresponding enforceable right in another person. But it would still be a legal rule because it prescribes a norm of conduct to be followed by such individual or authority. The law may provide a mechanism for enforcement of this obligation, but the existence of the obligation does not depend upon the creation of such mechanism. The obligation exists prior to and independent of, the mechanism of enforcement. A rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist despite any problem relating to its enforcement.2

Rights and duties are two phases of the same thing. Rights are considered to be essential for the expansion of human personality. They offer to the individual a sufficient scope for free action and thus prepare ground for self-development.

Although rights arc of great significance in a democratic stale yet they become meaningless in the absence of duties. Rights involve obligations as well.

An individual has rights so that he may make his contribution to the social good. One has no right to act unsocially, man’s rights imply his claims on society and duties indicate the claim of society on the individual. This means that an individual owes to the society certain duties as he obtains rights.

According to Prof. Laski there is a four-fold connection between rights and duties.

1. My Right implies Your Duty:

Every right of an individual involves a corresponding duty of others. For example, my right to life implies that others should give protection and security to my life.

My right to move about freely implies a corresponding duty resting on others that they should not interfere with my free movement.

2. My Rights imply My Duty to admit a similar Right of others:

The conditions of life which I need for myself arc also needed by others. This indicates that every right is a duty in itself. If an individual exercises a right, he must bear in mind that the same right belongs to others as well.

If I have the right to freedom of speech, it is my duty to see that I may not be a hindrance in the free exercise of this right by others.

3.I should exercise My Right to promote Social Good:

A person He guarantees the rights to the majority in the society to remove the should not abuse the right given to him by the State.

For example, if he uses the right to freedom of speech for spreading communal bitterness or society cannot deprive man of these rights; these are inherent and to preach violence and anarchy, it becomes an act counter to the social alienable rights, good. The state will then be justified in depriving the person of his right if he has abused it.

4. Since the State guarantees and maintains My Rights, I have the Duty to support the State:

The state is the agency for social good and it is the duty of an individual to perform ones duties honestly.

The above-mentioned relations between rights and duties, there for clearly prove that rights and duties go hand in hand. A healthy civic li] is impossible without the co-existence of rights and duties. Rights without duties have no meaning and duties without rights have no sense.3

CONSTITUTIONAL PROVISIONS

The Indian Constitution is one of the largest written Constitutions, drafted after the path breaking and epoch-making French Revolution, American Revolution and Russian Revolution. It also came after Industrial revolution in Europe, the Liberal Thinkers and their Ideas. And it had been framed long after the Unification of the German and Italian Nations by Bismarck and Garibaldi. Therefore, every Progressive and Noble Thoughts of the World have been adopted and built into Indian Constitution. And in the words of Baba Saheb, framer of the Constitution – not to do so would have only been irrational. The Indian Constitution, naturally had derived a lot from the unwritten British Constitution. It had adopted the British Parliamentary System, British Legal System and Principles of Administration. And it had also incorporated many main Provisions drawn from various Govt of India Acts made by the Imperial British for India and Indian People, and to the British Colonial Govt in India for its Governance. Those were only to be expected.

The Rights Freedoms and Duties of the Individuals, as Citizens of the Country, had been built into the Constitution in various Parts Chapters and Articles. It will be a Study of the whole Constitution, all the Parts, Articles and Schedules, if we are to talk of all the Rights and Duties. For almost all the Articles and Provisions such as the Preamble and Schedule hold many promises and hopes to the Citizens, and even to other Individuals. Some of the Rights are specific and special for specified segments of the Society, otherwise marginalised discriminated exploited and suppressed. These are specifically in addition, and apart from those clearly laid out, as the Rights and Duties of all Citizens.

The Rights one can derive, depends upon the way the People or Individual agitate demand legislate and govern themselves, before the authorities, the political parties, elected peoples representatives, in the Legislatives and Parliament, before the political executives in the Government, and ultimately before the Government and Courts. However, the significant and apparently clear Rights and Duties are, specifically discussed below.

Fundamental rights

The Constitution has been made by Indians for Indians and their Government. Sovereignty of the Nation lies with the People. In fact it is the People, who give the Rights to others, to all Institutions public and private, every individual in the Country – Citizens or not, and to themselves. The People also provide the Directions to the Government, the Political Parties and their Members, who come forward to represent them, and help Govern the Nation.

The Rights start from the Right to –

1. Citizenship of the Country

2. The hopes and expectations that flow from Part IV DIRECTIVE PRINCIPLES OF STATE POLICY

However, the Constitution Part IV on Directive Principles of State Policy, is only a Directive and guideline for the State, Parliament and Legislatives, Political Executives, government, the bureaucracy and planners, and to the people. The directive principles of state policy, do not give any direct rights and powers to the individuals. People cannot, in the normal circumstances go to courts to demand any of the directive principles of state policy, as their Rights or Dues, or ask the Courts to enforce them.

Apart from these there are specific Fundamental Rights. They are large, specific, significant, essential and important to any Citizen in any part of the Country. In fact, most of these are needed by any Citizen of any Nation living in any part of the World.

The Fundamental Rights are contained in exclusive Part III of the Constitution. They are the –

1. Right to Equality – Articles 14, 15, 16, 17 and 18

2. Right to Freedom – Articles 19 to 22

3. Right against Exploitation – Articles 23 and 24

4. Right to Freedom of Religion – Articles 25 to 28

5. Cultural and Educational Rights – Articles 29 and 30

6. Right to Constitutional Remedies – Articles 32 to 35

Right to Property and the concerned Article 31 relating to Compulsory acquisition of property was omitted and repealed by the Constitution (Forty-fourth Amendment) Act 1978.

Saving of Certain Laws, with related Articles 31A to 31 D were added by various Constitutional Amendments. However, Article 31 D Saving of Laws in respect of Anti-National Activities was subsequently repealed by the Constitutional (Forty-third Amendment) Act of 1977.

Rights have no meaning at all, unless one can force those others, or authorities or the Government to give the Rights being denied, withheld or delayed, deliberately or otherwise, to yield and give the rights. Or one should be able ask or force the Govt and other authorities to intervene, and ensure or force those who are denying, withholding or standing in the way of the Rights, discipline them, and get the Rights. Hence, the Constitution provides, vide Article 32, remedies for enforcement of Rights conferred by this Part. This Article 32, in fact is the most important provision of the Constitution, forming part of Part III on Fundamental Rights. It provides every Citizen and every individual, the Right to move the Supreme Court by appropriate proceedings for the enforcement of the Rights.

Others are –

1. under the Right to Equality,

a) Article 14 provides the Right of EQUALITY BEFORE LAW

b) Article 15 provides rights for prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

C) Article 16 gives the right to equality of opportunity in matters of public employment

D) Article 17 deals with rights associated with the abolition of untouchability, and

E) Article 18 deals with rights associated with the abolition of titles

2. under the Right to Freedom,

a) Article 19 on PROTECTION OF CERTAIN RIGHTS REGARDING FREEDOM OF SPEECH etc, it is said that,

(1) All citizens shall have the right –

(a) To freedom of speech and expression

(b) To assemble peaceably and without arms

(c) To form association or unions

(d) To move freely throughout the territory of India

(e) To reside and settle in any part of the territory of,

(f) To practice any profession, or to carry on any occupation, trade or business

At the same-time vide part (2) of the same Article 19, the Constitution allows the Operation of any existing law, permits the States to make any law to impose restrictions on the above rights, that can be considered as reasonable.

b) Article 20 gives the Rights of PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES, in some unfair or unjust manner

c) Article 21 gives the Rights of PROTECTION OF LIFE AND PERSONAL LIBERTY

d) Article 22 gives the Rights for PROTECTION AGAINST ARREST AND DETENTION IN CERTAIN CASES, in some unfair and unjust manner

3. under the Rights against Exploitation,

a) Article 23 deals with PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED LABOUR

b) Article 24 deals with PROHIBITION OF EMPLOYMENT OF CHILDREN IN FACTORIES, etc

4. Right to Freedom of Religion – Articles 25 to 28

5. Cultural and Educational Rights – Articles 29 and 30

6. Right to Constitutional Remedies – Articles 32 to 35

DUTIES OF INDIVIDUALS

The Duties of individual Citizens of India have been laid out in Article 51A, Part IVA of the Constitution, as Fundamental Duties. These were not there in the Original version of the Constitution framed and adopted by the Constituent Assembly. These were inserted by the Constitution (Forty-second Amendment) Act passed by the Parliament in 1976. –

FUNDAMENTAL DUTIES

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 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.

All Rights and Duties always remain as silent Provisions interned in the Constitution. It is unto the People to realise them. They have to make the Government to work, and ensure that they do their Duties and they get their Rights. Where necessary they have to fight for them, go to the Courts to agitate for them, and struggle in the Society to retain them. As Baba Saheb said, in his last speech in the Constituent assembly on 25thNovember 1949, while moving the Draft Constitution for adoption, the success or effectiveness of any Law and Constitution depends upon those who work them.4

CONCLUSION

Thus, rights and duties are correlatives and there can be no right without a duty like there can be no parent without a child. And in Indian constitution there are many provisions for rights and duties of the individuals as fundamental rights and fundamental duties.

BIBILOGRAPHY

1 V.D. Mahajan’s jurisprudence & legal theory, eastern book company, pg

2 (1980)3 SCC 625

3 http://www.preservearticles.com

4 http://www.dalitindia.com

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