Category Archives: Jurisprudence – II



Define ‘Right’ and discuss the essential elements of legal right.

OR
What is a ‘Legal Right’? Discuss the characteristics of a legal right.

Right generally means an interest or facility or a privilege or immunity or a freedom. In this way right for the purpose of jurisprudence is called legal right.  Austin in his theory has separated the subject matter of jurisprudence from morality or materiality.  He gave the concept of positive law. So here also right means positive law right only, which is term of legal right.  Legal right is recognised by law. It  is different from moral right.  Moral right if violated is called moral wrong. The violatin of natural right is called natural wrong.  But these wrongs are not remedial under law while if a legal right is violated then it will be legal wrong which is remedial under law. The different jurists have defined legal right in different ways:-

According to Austin : “  Right is a faculty which resides in a determinate party or parties by virtue of a given law and which avails against a party or parties other than the party or parties in whom it resides.”

According to Salmond :–  “ Right is an interest recognised and protected by the rule of right.” Here rule of right means rule of law or law of country. When an interest of a person is protected by the rule of law then it is called right. Salmond definition involves two points, firstly that right is an interest and secondly it is protected by rule of right. It means that it relates to his (person) interest i.e., life liberty, heath and reputation etc. Grey has criticised the interest theory propounded by Salmond, Ihering and Heck and he has supported the view that right is not an interest but that means by which the interest is secured.

According to Holland, “  right is as a capacity residing in one man of controlling, with the assent and assistance of the state the action of others.”

According to Paton : “ That legal right is that it should be enforceable by the legal process of the state.” He however says that there are three exceptions to this rule :-

  1. It is not necessary that the state should always necessarily enforce all the legal rights.
  2. There are certain rights which recognised by law but not enforced by it for example : In a time barred debt, the right of the creditor to recover the debt is an “ imperfect right”
  3. There are certain laws which do not confer right of enforcement to the courts, for example : International Court of Justice has no power to compel enforcement of its decrees under International Law.

THEORIS OF RIGHT :- There are two theories of right :

  1. WILL THEORY : This theory is based upon the will of human beings. It says that a right reflects the inner will of a human being. Austin, Holland, Halmes and Dovrecognised this theory of right.  According to them a person wants o remain in the world freely and according to his own choice because a man is born free.
  2. Interest Theory:- This theory says that interest is the base of the right. It is only interest which is recognised by law. This theory reflects the external nature of the human beings. Supporter of this theory say that there are many interests in the world.  These interest which are protected and recognised by law are called right.

ELEMENTS OF LEGAL RIGHT:- Following are the elements of Rights :-

  1. Subject: here means a person who has right.  So there must be a person for rights
  2. Act of Forbearance :-  Right means some standard of action permitted by law. In a right either an act is done or an act is forbidden. This is also called as content of right.
  3. Object:- There must be a object upon which the right is exercised. Mainly there are three essential elements of right e.g. Lives in a house.  Here : (i) A has the right to live in the house. (ii) A is subject, house is object and (iii) His living in the house is act content.  But some writers give some more elements of right.
  4. Correlative duty: For right there must be a correlative duty.  In the above example ‘A’ has the right to live in the house but other persons have correlative duty not to disturb him. Almost all jurists agree on the point because one cannot exists without the other. Here Austin is not agree to this He says that the duty may be divided into two kinds i.e. (1) Absolute and (ii) Relative.
  5. Title: Salmond gives one more element of rights in the form of title. He says that a right has got also a title. Title may be in the form of the owner or co-owner or mortgager or leaser or buyer etc.

ILLUSTRATION: If, ‘A’ buys a piece of land from ’B’. A is the subject or owner of the right so required. The person bound by the co-relative duty is persons in general because a right of this kind avails against the world at large. The right consists in non-interference with the purchaser’s exclusive use of the land.

KINDS OF RIGHTS :- The following are the kinds of rights :-

  1. Primary right and secondary right : Primary right is an independent right while secondary right means dependent right. They are also called as principal right and helping right or remedial right. ILLUSTRATION:- ‘A’ has right of reputation which is his primary and independent right. If any person defames A then A has the right of damages against the defamer. This right of damages is called secondary right or remedial right.
  2. Positive and Negative Right:- Positive right is linked with negative and negative right is linked with duty.  Positive right permits to do an act while negative right prohibit doing an act.

ILLUSTRATION:- ‘ A ‘ has the right of reputation. This is his positive right and any person should not defame him.  The defaming his reputation called negative right.

  1. Right Rem and Personam:- Right in Rem means right against the whole world while right in persosnam means right against a definite person.

ILLUSTRATION: ‘A’ has not to be harmed by any person. This is right in rem. On the other hand, ‘A’ has entered into a contract with ‘B’ and ‘B’ has broken +ve contract. ‘ A “ can enforce this right against ‘B’.  This is known as right in personam.

  1. LEGAL AND EUITABLE RIGHT (NATUAL JUSTICE):- The division of right has its origin in England. Legal ight is recognised by Law. While equitable right has been recognised by natural justice. In England there were two types of courts: (i) Legal courts    (ii) Chancery courts

Chancery Courts recognised the conquerable rights on the basis of justice, equity and good conscience.

  1. Vested & Contingents Right:-  These rights is of permanent nature that depends upon the happening of an uncertain event. Thus contingents right becomes full right only when such uncertain events happen according to the condition.
  2. Proprietary and Personal Right:-  Proprietary rights which are concerned with property. A person possessing any property has the proprietary right over it, and personal right means the right related with a person or a body. Every person has a status. He should not be injured or defamed. If any person injures or defames another person then the wrong doer infringes the personal right of a person.
  3. Perfect or Imperfect Right:- These rights which are enforceable by law are perfect and which law does not enforceable are imperfect rights.
  4. Right of Re-propia and Right in re-alena:- Right in re-propia means the right in one’s own thing whereas right in re-aliena means the right in the things of others.

Rights and duties are co-relative ? (2017)

Rights and duties are two sides of the same coin. One does not exist without the other.

Right-Duty Relationship: Rights and duties are the very important element of law. The administration of justice, in most part, consists of the enforcement of rights and the fulfillment of duties. Rights and duties are correlated to each other in such a way that one cannot be conceived of without the other. In other words, the existence of the one depends on the existence of the other,

Definition of Rights:

According to AUSTIN, right is a “faculty which resides in a determinate party or parties by virtue of a given law and which avails against a party or parties ‘or answers to a duty lying on a party or parties’ other than the party or parties in whom it resides”. According to him, a person can be said to have a right only when another or others are bound or obliged by law to do something or forbear in regard to him. It means that a right has always a corresponding duty.

SALMOND defines   “a right is an interest recognized and protected by a rule of right. It is an interest respect for which is a duty, and disregard of which is a wrong”. The main elements in this definition as two: First, “a rule of right” means a rule of law, or, in others words, that which is judicially enforceable. Thus, according to SALMOND, a right must be judicially enforceable

Definition of Duty:

According to Salmond, “A duty is an obligatory act”. This is to say, it is an act opposite of which would be a wrong.

According to Gray, Duty is the act of or forbearance which an organized society used to impose on people through state in order to protect the legal right of other.

According to Rose Duty is the Pre-dicament of person whose act are liable to be control with the assistance of the State.

As per Hoffield The duty is the correlative of Right.

 

1 (1964) 73 Mind 374

Duty can be divided into four classes:-

(i) Legal and moral duty.

(ii) Positive and negative duty.

(iii) Primary and secondary duty

(iv) Absolute and relative duty.

 

 

(I) Legal Duty:- It is an act recognized as a duty by law and treated as such for the administration of justice. A legal duty is an act and the opposite of which is a legal wrong.

(II) Moral Duty:- An act which ought to be done according to the dictates of morality. It can also be defined as an act the opposite of which is a moral or natural wrong.

 

Example:- If a person is in problem at the time of swimming then the person stands nearby, has a moral duty to rescue him if he knows swimming.

(III) Positive Duty:- When the law obliges us to do an act, the duty is called positive duty.

(IV) Negative duty:- When the law obliges us to forbear from doing an act, the duty is negative.

POSITIVE AND NEGATIVE DUTIES

A duty may either be positive or negative. When law obliges us to do an act, the duty is

called positive. When the law obliges us to refrain from doing an act, it is negative duty.

If a person owes a debt to another, he is under a duty to pay-off the amount of debt. This

is his positive duty. The performance of a positive duty extinguishes both duty and right.

The illustration of a negative duty is that if a man has a right to a land, others are under a

corresponding duty not to interfere with that man’s exclusive use of land. Thus, a

negative duty is not capable of being extinguished by fulfillment.

PRIMARY AND SECONDARY DUTIES

Again, a duty may be primary or secondary. A primary duty is one which exists “per se”

and is independent of any other duty. For instance, to forbear from causing personal

injury to another is a primary duty.

A secondary duty, on the other hand, is one which has no independent existence of other

duties. For example, a duty to pay damages for the injury already done to a person, is a

secondary duty. A secondary duty is also called sanctioning or a remedial duty.

ABSOLUTE AND RELATIVE DUTIES

According to Prof. KEETON, a duty is “an act or forbearance compelled by the state in

respect of a right vested in another and the breach of which is wrong.

HIBBERT refers to absolute and relative duties. According to him absolute duties are

owed only to the state, breach of which is generally called a crime and the remedy

therefore is punishment. Relative duties are owed to any person other than the one who

627

is imposing them, the breach of which is called a civil injury which is redressible by

compensation or restitution to the injured party.

AUSTIN also supports the view that certain duties are absolute, that is, they do not have a

corresponding right. For instance, duty towards God or state or a duty not to commit

suicide is absolute. A duty of kindness towards animals is also an absolute duty.

Classification of Duties

Positive Duty: A positive duty implies some act on the part of the person on whom it is imposed. If a person

owes money to another, the former is under a duty to pay the money to the latter. This is a positive duty.

Negative Duty: A negative duty implies forbearance on the part of the person on whom it is imposed. For

example, if a person owns lands, others are under a duty not to make any interference with that person’s

use of the land. This is a negative duty.

Primary and Secondary Duties: Primary and secondary duties: A primary duty is that duty which exists

per se and independent of any other duty. The duty not to cause hurt to any person is a primary duty. A

secondary duty is that duty whose purpose is only to enforce some other duty. If a person causes injury to

another, the former is under a duty to pay damages to the latter. This is a secondary duty. The duty not to

cause injury is the primary duty. When a breach of this duty has been committed, the secondary duty to pay

damages arises

Right and Duty

It has been generally accepted that every legal right is attended with a co-relative

duty. Therefore, there is no disagreement on the point that rights and duties are

co-existent. As already stated, a duty is roughly speaking an act which one ought

to do, an act the opposite of which would be a wrong. The authorities, however,

differ in their opinion whether with each duty there must be a co-relative right.

According to AUSTIN, duties may be both, relative and absolute. By relative

duties he means such duties which have corresponding rights. Relative duties are

owed to a person other than the one imposing them and breach of them is called a

civil injury remedy for which is compensation “damages” or restitution to the

injury party.

There are, however, certain duties which are absolute that is, those duties do not

have a corresponding right. The breach of an absolute duty is generally treated as

an offence for which wrongdoer is punished. AUSTIN mentions four kinds of

absolute duties:-

  1. a) Self-regarding duties such as a duty not to commit suicide or not to

consume drugs or liquor, etc.

  1. b) Duties towards indeterminate persons or public at large, e.g. a duty not to

. commit a nuisance.

  1. c) Duties to those who are not human beings such as duty towards God or

animals, birds, etc.

  1. d) A duty towards the sovereign or the state.

According to Austin, some duties are absolute. Those duties do not have a corresponding right. Examples of absolute duties are self-regarding duties such as a duty not to commit suicide or become intoxicated, a duty to intermediate persons or the Public such as a duty not to commit a nuisance, a duty to one not a human being such as a duty towards God or animals and a duty to sovereign or state.

Austin’s View: The duties which are always correlated with a right are called relative duties. Austin who

supports the above says that there are four kinds of ‘absolute duties’-

  1. Duties not regarding persons (e.g. those owed to God and the lower animals).
  2. Duties owed to persons indefinitely (e.g. towards the community)

The two terms ‘right and its correlative duty’ are inseparable from each other. So, to understand the difference between them, we differentiate the two terms.

Comparison between Rights and Duties:

 RightsDuties
DefinitionIt is the privilege granted to the people by a governing body.It is responsibilities or obligations of an individual, by the governing body, that are required to done by the said individual.
LawIt can be defended or challenged by the court of law.The duties of a citizen cannot be challenged by the court.
BasisIt is based on privilege granted to an individual.It is based on accountability of performing duties by an individual.

 

RELATION BETWEEN RIGHTS & DUTIES:-

It is debatable question whether rights & Duties are necessarily correlative. According to one view, every right has a corresponding duly. Therefor, there can be no duty unless there is someone to whom it is due. There can be no right without a corresponding right, just as there cannot be a husband without a wife, or a father without child . Every Duty is a duty towards some person or persons in whom a corresponding right is vested. Likewise, every right is a right against some person or persons upon who a correlative duty is imposed. Every right or duty involves a vinculum juris or a bond 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.

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 parts of others is called a duty. A moral duty is that which is demanded by the public opinion of society and legal duty is that which is enforced by the power of the state .

According to keeton:, A duty is an act of forbearance which is enforced by the state in respect of a right vested in another and the breach of which is wrong. Every right implies a co-relative and vice versa.

The views of salmond is that rights and duties are co-relative . If there 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.8

8 (1980) 3 scc 625

In Minerva Mills Ltd. V. Union of India, the Supreme Court observed: There may be a rule which imposes an obligation on an individual or authority, and yet it may not be enforceable in a 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 such authority. The law may provide a mechanism for enforcement of this obligation, but the existence of obligation does not depend upon the creation of such mechanism. The obligation exists prior to and independent of, the mechanism of enforcement. A rule imposing an obligation would not there for cease to be 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.”

The other school is represented by Austin. According to him, Duties are of two kinds :- (1) Absolute Duties &

Relative duties.

Relative duty corresponds to a right. It is a duty to be fulfilled towards a determinate superior. All absolute duties are enforced criminally. They don‟t correspond with rights in the sovereign. There is an absolute duty in certain cases. Those are duties not regarding persons e.g. Those owed to god and lower animals, duties owed to persons indefinitely e.g. towards the community, self-regarding duties and duties owed to the sovereign. In case of an absolute duty, it is commanded that an act shall be done or forbidden towards or in respect of the party to whom the command is directed.

Duties towards the public at large or towards intermediate portions of the public have no co-relative rights. The duty to refrain from committing a public nuisance has no co-relative rights. Where trustees held property on trust for religious purposes, even though there is no ascertained beneficiary, the trustees are under a

duty not to use the property for a purpose pother then religious purpose. The question is to whom the duty is due.

  1. Art. 51-A of the Indian Constitution deals with ‘Fundamental Duties’, which are absolute

duties _ duties not accompanied by claims. Although it is a duty of every citizen to respect national

protect culture and environment, etc., yet the State cannot have any claim in respect of such duties.

Thus, fundamental duties are not Hohfeldian ones.

INDIAN SUPREME COURT

The supreme court of India has defined legal right in State of Rajasthan V. Union of

India” wherein it is observed:

“In a strict sense, legal rights are correlative of legal duties and are defined as interests

which the law protects by imposing corresponding duties on others. But in a generic

sense, the word right is used to mean an immunity from the legal power of another,

immunity is exemption from the power of another in the same way as liberty is exemption

from the right of another. Immunity, in short, is no subjection”.

In conclusion, the difference between rights and responsibilities is that rights are given to people to protect their basic freedoms, whereas responsibility is given to those in charge to uphold those rights. People take on responsibilities in exchange for the rights they get. Though, any abuse of the duties can lead to unwanted problems.

 

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,
  2. a) Article 14 provides the Right of EQUALITY BEFORE LAW
  3. b) Article 15 provides rights for prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
  4. C) Article 16 gives the right to equality of opportunity in matters of public employment
  5. D) Article 17 deals with rights associated with the abolition of untouchability, and
  6. E) Article 18 deals with rights associated with the abolition of titles
  7. under the Right to Freedom,
  8. 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.

  1. b) Article 20 gives the Rights of PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES, in some unfair or unjust manner
  2. c) Article 21 gives the Rights of PROTECTION OF LIFE AND PERSONAL LIBERTY
  3. d) Article 22 gives the Rights for PROTECTION AGAINST ARREST AND DETENTION IN CERTAIN CASES, in some unfair and unjust manner
  4. under the Rights against Exploitation,
  5. a) Article 23 deals with PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED LABOUR
  6. b) Article 24 deals with PROHIBITION OF EMPLOYMENT OF CHILDREN IN FACTORIES, etc
  7. Right to Freedom of Religion – Articles 25 to 28
  8. Cultural and Educational Rights – Articles 29 and 30
  9. 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 –

  1. a) To abide by the Constitution and respect its ideals and institutions, the National Flag and National Anthem;
  2. b) To cherish and follow the noble ideals which inspired our National Struggle for Freedom;
  3. c) To uphold and protect the sovereignty, unity and integrity of India;
  4. d) To defend the Country and render National Service when called upon to do so;
  5. 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;
  6. f) To value and preserve the rich heritage of our composite culture;
  7. g) To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
  8. h) To develop the scientific temper, humanism and the spirit of inquiry and reform;
  9. i) To safeguard public property and to abjure violence;
  10. 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.

Duty is what one expects from others.

The concept of duty is not a new one, specially, when it comes to Indian society. Since time immemorial there has been a stress on performing one’s “Kartavya” towards the society, parents and the country. Where there is right there exists a corresponding underlying duty and therefore rights and duties are correlative. The Fundamental duties, nudge every citizen of the country, time and again to ensure that they do acknowledge the fact that while the Constitution specifically confers upon them certain fundamental rights but, however it also requires them to observe certain rudimentary norms of democratic conduct and behaviour.

The chapter pertaining to the fundamental duties of citizens was incorporated in the Constitution by the 42nd Amendment in 1976, as ushered by the The Swaran Singh Committee that was constituted by the government earlier that year. Article 51-A of the Constitution lays down the various fundamental duties of the citizens of India, which were originally ten in number, but later the Fundamental Duties were further increased to eleven by the 86th Amendment in 2002, which imposed a duty on every parent/guardian to ensure that their child/ ward between the age of six and fourteen years are provided with adequate opportunity for education. Whereas, the other Fundamental Duties obligate all citizens to respect the national symbols of India, The Constitution of India, to cherish its heritage, preserve its composite culture and assist in its defence. They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop Scientific temper abjure violence, and strive towards excellence in all spheres of life. Nevertheless, citizens are under a moral obligated as per the provisions of the Constitution to perform these duties. However, like the Directive Principles, there exists no legal sanction in case of violation or non-compliance of these duties.

Duties similar to those mentioned under the Article 51-A are generally not found in the Constitutions based on the western liberal traditions as none of the constitution of the western countries specifically provide the duties and obligations of its citizens for example the American Constitution provides for the fundamental rights of the citizens whereas the fundamental duties of the citizens are way beyond its gamut. The Constitution of Socialist countries, however, lay great emphasis on the duties of the citizens for example Chapter 7 Article 59 of the Soviet Constitution lays down that it is the duty of the citizens of USSR to uphold the honour and dignity of Soviet citizenship and observe the various proviso of the Constitution and the Soviet laws. Among the democratic constitutions of the world, we do find mention of Fundamental Duties of the citizens in Japanese Constitution, whereas in countries like Britain, Canada, and Australia the duties of citizens are largely governed by the Common Law principles and judicial pronouncement. Before the inclusion of Fundamental duties, P.V. Kane was critical of the Constitution that it ignored the Indian tradition of Kartavya (Duties) and spoke only of the Rights1.

Part IV of the constitution which consists of one Article i.e. Article 51-A was added to the constitution by the 42nd Amendment, 1976. Article 51-A lays down a list of duties of every citizen of India to:

  1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
  2. To cherish and follow the noble ideals which inspired our national struggle for freedom;
  3. To uphold and protect the sovereignty, unity and integrity of India;
  4. To defend the country and render national service when called upon to do so;
  5. 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;
  6. To value and preserve the rich heritage of our composite culture;
  7. To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
  8. To develop the scientific temper, humanism and the spirit of inquiry and reform;
  9. To safeguard public property and to abjure violence;
  10. 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

The Constitution (86thAmendment) Act,2002 added a new clause (k) to Article 51-A which provides that it is duty which vests in any person “who is a parent or a guardian to provide opportunity to education to his child or as the case be, ward between the age of six and fourteen years”

Nevertheless it interesting to note that while many Constitutions law down duties of the people it also guarantees “Right to Work” also; like the Constitution of Republic of China which under Article 118 lays down that “Citizens of China have the Right to work, the right to guaranteed employment and payment for the work in accordance with its quality and quantity.” This is an important omission in the Indian constitution even today. As we know that poverty is a curse and there exists no contradicting force to the principle of “Necessity knows no Law” so to avoid imperilling our country any further there is a dire need of such provision as it palpable that a poor and unemployed person cannot be expected to perform his duties towards the society.

The Fundamental duties incorporated in the Constitution are statutory duties and shall be enforceable by law. Parliament, by law will provide for the penalties to be inflicted for the failure to fulfil those duties. However the success of this proviso would, rely much upon the manner in which and the person against whom these duties would be enforced2. Therefore it can be clearly derived from the above arguments that duties are not self-executing and therefore just as person with an injured leg needs a shoulder to walk similarly fundamental duties need the support of the State for its proper implementation by enacting laws for the same. This can be understood easily with the help of an illustration, mandamus cannot be sought against an individual who does not observe his duties under the Article 51-A3. Further in Vishaka V. State of Rajasthan4, the court laid down that if non observance of duty by one citizen can be established as violation of the right of another, appropriate remedy may be provided by the courts.Further awareness about Fundamental duties is also of the most important apparatus for the proper enforcement of the Fundamental duties and this can be only achieved by spreading awareness through a systematic and planned process.

In M.C. Mehta V. Union of India5, the Hon’ble Supreme court lad down that under Article 51-A, the Central government is under an obligation to introduce compulsory teaching of lessons for a minimum of sixty minutes a week on protection and improvement of environment in all the educational institutions across the country. The Government of India announced the setting up of a Committee under the Chairpersonship of Justice J.S Verma, former Chief justice of India, and presently Chairman, National Human Rights Commission (NHRC), “to work out a strategy as well as methodology of operationalizing a countrywide programme for teaching fundamental Duties in every educational institution as a measure of in service training” in accordance with the Terms of Reference stated below:

  • To develop a package for teaching Fundamental Duties at primary secondary, senior secondary and university levels.
  • To decide the activities as part of curriculum and co-curricular activities.
  • To review the exiting programme already being implemented by the NCERT under the national Curricular Framework and the need for identifying additional inputs into it.
  • To develop programme packages for the training of citizens through non-formal education / adult education programme / media (print, electronic, etc.)

The Committee attempted to analyse the issue of teaching of Fundamental Duties at all levels of education through improvement of the content and process, particularly of school education and teacher education, including interventions through curricular, co-curricular and media inputs, both print and electronic.

The recommendations made by Justice Verma Committee on Operationalization of Fundamental Duties must be reiterated forcefully. Moreover, it is solicited that there is no reason to impede wider dissemination of information and generating greater awareness in regard to the Fundamental Duties of citizens and obligations of citizenship. This can be done through –

  • organization of advocacy and sensitization programmes,
  • display of the text of article 51A ‘Fundamental Duties’ prominently in government publications, diaries calendars, offices and at public places,
  • radio and video spots highlighting important messages related to Fundamental Duties on AIR, Doordarshan and other channels,
  • setting up an autonomous body to act like ombudsman on citizenship values and for overseeing operationalization or effectuation of Fundamental Duties,
  • publication of small booklets on various aspects of Fundamental Duties written in simple language and aimed at different levels of citizens through non-formal education, open schooling, adult education, and universalisation of literacy programmes
  • circumspection by electronic media on programmes, serials, pictures, news and advertisement affecting morality, decency and cultural values and heritage of the country,
  • activist role by electronic and print media in the matter of Fundamental Duties like protection of the environment,
  • Media avoiding the glorification of acts of violence, armed robberies, and terrorist activities, and the state machinery ensuring the effectuation of Fundamental Duties, where necessary, by prompt legislation.

The benefits from the already existing schemes need to be optimised by monitoring work of NGOs and other institutions operating government-funded schemes focussed on aspects of national integration, communal harmony, culture and values, and environment, in tune with the spirit of clauses (e), (f) and (g) of article 51A and making mid-course corrections where necessary. The Directive Principle of State Policy in article 48A, the Fundamental Duty in article 51A (g) and the existing laws in the area need to be implemented and enforced in the light of the judgments of the Supreme Court. There is need for fundamental transformation in the direction and approach to curricular and co-curricular activities for imparting education in schools and teacher training institutions. This can be done by –

  • publishing the content of Fundamental Duties through books published by the NCERT and School Textbook Bureaus,
  • presenting each clause of article 51A through anecdotal talks, at morning assemblies at schools,
  • organising seminars, debates, competitions on different aspects of Fundamental Duties of citizens, and
  • designing an instructional design for education in Fundamental Duties that fits into the present day multi-channel environment where learning accrues from a variety of sources at home, school, community, print and electronic media.

In order to ensure dignity of women, gender biases and sex-stereotyping must be eliminated from all textbooks both at state and national levels. Programmes of education for school teachers and higher and professional courses have to be so designed as to enable communication of the content of Fundamental Duties of citizens and the value of abiding by them. What is needed is a vigorous advocacy with state educational agencies, teacher education institutions and university departments for inclusion of Fundamental Duties component in curricula. All courses in Human Rights should also include Fundamental Duties. An independent comprehensive unit encompassing familiarisation with the Constitution of India and Fundamental Duties of citizens thereunder need to be incorporated in the elementary and secondary teacher education courses. NCC should be made compulsory in all pre-service teacher education institutions. This would promote the values of sovereignty, unity and integrity of the nation.

The need to shift emphasis from rights to duties in all walks of life is indeed urgent. Undue emphasis on one’s own rights without any awareness of one’s duties is not a sign of good citizenship. The Fundamental Duties set out in article 51A were not intended to be legally enforced by one citizen against the other. They are like the Ten Commandments which every citizen is expected to bear in mind and conduct himself towards the State and society accordingly. Therefore, the endeavour of the State should be not so much to give teeth to the Fundamental Duties but to spread awareness of the duties among the people6.

In the end it can be epitomized, that the picture of India at the time of independence has been morphed to a one which is way better than what it used to be, now a fewer children are employed in hazardous environments, but their employment in non-hazardous jobs, prevalently as domestic help, violates the spirit of the constitution in the eyes of many critics and human rights advocates which owes its origin to a fiendish problem of over-population and poverty. Nevertheless there is a long way to go yet and one of the primary tasks to be undertaken by the central and the state government is to sensitize the people of India about their duties and their obligations7. Further the powerful impact of media including electronic and print media has to be fully exploited to transmit messages on Fundamental Duties to all levels of citizenry. Media should constantly educate people that Constitution and the symbols of sovereignty could only be preserved by the public spirit and vigilance of its citizens and these could also be destroyed by its citizens also in order to spread awareness various program should be conducted both at national and regional level by the concerned authorities which may include observance of a “Fundamental Duty week” so as to create awareness and a positive attitude for inculcating the duties laid down by Article 51-A of the Constitution of India.

A Judicial Academy should be instituted so as to provide necessary infrastructure and to promote the judges to continue their education, so as to focus their attention on Constitutional Values and Fundamental duties, moreover Bar councils and their affiliated Bar Associations must also share responsibility to ensure and promote their members not only appreciate the value of Fundamental duties rather take necessary steps for their implementation while pursuing their profession. It is also suggested that a few more Fundamental Duties, namely, duty to vote in an election, duty to pay taxes and duty to resist injustice may be added in due course to article 51A in Part IVA of the Constitution.The only impediment in protecting and maintaining women dignity is gender biases and sex-stereotyping and misogynistic and the same must be eliminated from all school and colleges and this should be given as a mandate to all curriculum development agencies, both at national and state levels.

 


RELATIONSHIP BETWEEN LAW & MORALS ? (2017)

Meaning of law

Law is also defined as a set of rules and principles which enforce particular types of behaviour.
Law means justice ,Statutes, Acts, rules, regulations, orders, ordinances, etc. from the point of view of society;

  1. The laws are mainly concerned with the society as a whole and lay down the rules for relationship of individual with each other and with the state.
  2. Law is concerned with the external conduct of the individuals.
  3.  Laws are meant by which the evils ends. The justice is achieved.

According to Salmondthe law may be defined as the body of the principles recognized and applied by the State in the administration of justice”.

According to Austin, “law is the aggregate of rules set by men as politically superior or sovereign to men as politically subject”.

Meaning of moral

morality may be defined as a set of beliefs, values,

principles and standards of behavior

Morality refers to as what is good or bad. Morality speaks of a system of behavior in regards to standards of right or wrong behaviour.

or one who is capable of right or wrong action. It designates the customary values and standards embedded in a particular way of life.

 

1.The morals are concerned with individual and are the laid down rules for the moulding of his character.

2.Morals are mainly concerned with the internal conduct of the nature of a person.

3.The morals are an end in themselves.

  1. The observance of morals is a matter of individuals conscience.
  2.  Morals are considered to be universal in nature and value.

 

The relationship between law and morality is complex.

The relation between law to morals is sometimes describe as two intersecting circles, the part inside the intersection representing the common ground between law and moral. • The part outside representing the distinctive realms that each other holds (exclusive sway). By having moral code human are ought to refrain themselves from doing something that is against the code – supplement with law. Morality is the basis of law – In a primitive society, there was no difference between law and moral rules as they share the same sources (custom, religion).

RELATIONSHIP BETWEEN LAW & MORALS

In the ancient society there was no difference between laws and morals, but in modern times various theories of law separate morals from laws so many differences as pointed out above came into picture. In spite of these differences there is a clear relationship between law and morals. For this purpose it can be noticed from the following three points :-

  1. Morals as the basis of law:- In the ancient society morals were the basis of all laws. All the rules originate from the common sources i.e. morals. The reason behind them was in the form of supernatural or divine fear.  The state picked up those rules which were necessary for the society of the state.

The state put its own sanctions behind their rules and enforced them and these rules were called laws. The rules for which the state could not ensure their observance were known as morals.  Thus laws and morals have common origin.  We cannot totally separate law from morals. Queen v/s Dudley:  It was held that moral are the basis of law on the ground of morality,

  1. Morals as the list of law:- It has been argued that the law must conform to morals. It means the law must be based upon morals and it should not be against morals. The Roman law was based upon natural law and Christian morals and principles say that any law that is against morals is invalid.  The natural law theories were enforcing which were also according to morals.

In the modern times the laws which are not in conformity with morals are not good laws.  However in practice to a great extent law conforms to morals. Laws cannot depart from morals due to many reasons.  The conformity of law with morals is a very important factor even in the modern times.

  1. Morals as the end of Law:- Sometimes morals are considered as the end f law. Justice in its popular sense is based upon morals. The word used for law conveys an idea of justice and morals in the same area of law. Sociological school says that law always has a purpose.  Law is a means to get the end. This aim of law is to secure social test of law. This can be done properly in the contest of socially recognize values which are closely related to morals.  Thus ultimately morals become the end of law.  In India the legal system is engaged from the personal laws and local customs.

 

There are three main theories which deal with law and morality. 

Firstly the liberal view known as the Harm to others; principle expounded by John Stuart Mill in 1859.fn3 Mill thinks that the only purpose for which power can be rightfully exercised over any member of a civilised society against his will is to prevent harm to others. Mill believed that the law should not be used to enforce moral principles on society but to protect harm to its citizens. Preventing someone from harming himself is excluded by this harm to others principle. Criminal offences such as murder, murder and non fatal offences against the person are examples of the type of harm which Mills thinks the law should enforce.

The second theory is known as the Moralistic view, harm to society principle which was put forth by Lord Devlin  His view is that a recognised morality is essential to the very essence and being of society. He thought that individual liberty and freedom should be curtailed in order to protect the   society. Devlin said that society may use the law to preserve morality in the same way that it uses the law to safeguard anything that is essential to its existence.

The final theory is the most modern and is the Paternalistic view, harm to self and others view as put forward by Professor Hart   His theory is that the law should only intervene in the private lives of citizens to prevent harm to others and harm to oneself. He did acknowledge that there was a difficulty in defining harm but did acknowledge that it did not include moral harm to oneself. An existing law illustrating this theory is the law which prevent methods of prostitution. The Paternalistic view focuses very much on the individual.

Conclusion

CONCUSION:- So morals also have influence to a great extent in the development of law.  Morals also check the arbitrary powers of the legislature.  All human conduct and social relations cannot be regulated and governed only by law.  A considerable number of them are regulated by morals. Thus we can say that the morals are the very important factor in the development of law. Morals are basis of law.

 

CONCLUSION

It can be concluded in the end that law are made keeping in context of morality or ethics.

Example is that the reservation was passed keeping in mind the religious and social sentiments of the people otherwise it would be tedious task while keeping in mind the one factor and neglecting the others. Law and morality are intimately related to each other. Laws are generally based on the moral principles of society. Both regulate the conduct of the individual in society.

Laws regarding prohibition and spread of primary education are examples of this nature.

Morality cannot, as a matter of fact, be divorced from politics. The ultimate end of a state is the promotion of general welfare and moral perfection of man.

In the case of homosexuality, many believe it is morally wrong, yet some of the same people also believe it is unethical to discriminate legally against a group of people by disallowing them the same rights afforded heterosexuals. This is a plain example of ethics and morals at battle. Ethics and morals are central issues as the world strives to overcome current challenges and international crossroads. Hopefully, in the coming years, a growing understanding will lead to peaceful and productive solutions.