Remarks by law officers in Supreme Court raise constitutional questions about whether access to justice can depend on citizens’ discharge of fundamental duties
Will the ruling dispensation now require citizens to show that they have performed their constitutional duties before they can move the courts for the enforcement of their fundamental rights? This thought arises because of a speech of Solicitor General Tushar Mehta and a submission of the government counsel in the Sonam Wangchuk bail case which is currently before the Supreme Court.
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Additional Solicitor General KM Nataraj is defending the detention of Sonam Wangchuk under the National Security Act. During his submission in the Supreme Court before a bench of Justices Aravind Kumar and PB Varale on February 12, Nataraj, according to a national newspaper, said, “Kindly see the situation in the border areas where agitations and violence are erupting. In such a situation, ultimately it is the national interest that is the paramount consideration for everyone.
"By ignoring all these aspects, by pointing out that… I have a fundamental right… the person who comes before the court should be aware of his fundamental duties towards not only every citizen but also towards the country.”
Linking rights with duties
Nataraj’s reference to a citizen’s fundamental duties in a matter before the Supreme Court is significant. There is no law which requires a citizen to show his adherence to his fundamental duties while he or his family members are appealing against the purported violation of his fundamental or statutory rights.
A law officer of the state, especially one as senior as Nataraj, should be aware that the Supreme Court is not a forum where there should be any departure from the law. It is certainly not a forum where political points should be made. Hence, Nataraj should either clarify his position on his own accord or the bench should ask him to do so.
Perhaps Nataraj was inspired by his senior law officer Solicitor General Tushar Mehta’s views.
In a speech to the 17th National Conference of the Akhil Bharatiya Adhivakta Parishad on December 26, Mehta said, “I have a solution to bring about social harmony. People from all religions rush to the courts alleging that their constitutional rights or statutory rights have been violated, and the Constitution says that the Courts will intervene if the constitutional or fundamental rights of any person is violated; it is the duty of the Court to do so. If we can connect the fundamental rights in the Constitution or statutory rights with the fundamental duties provided in the Constitution, if any person approaches the Court that his fundamental right has been violated, he will have to show the Court that he has also discharged his fundamental duties, only then will the Court intervene.”
Constitutional basis of rights
Perhaps never has such a suggestion been made. Prima facie, the invocation of rights by a citizen flows from the doctrine that all people are equal and are imbued with rights which cannot be violated by the state or other citizens. Also, if they are violated, then the courts will intervene to redress grievance. This is independent of any other element in the Constitution. And, it is not linked with any other aspect of the Constitution. If it is linked, then the entire purpose of fundamental rights is defeated.
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Mehta would be aware of this basic legal principle. It is therefore strange that he has made this suggestion. Obviously, it was not a principle that was advanced in isolation because now Nataraj submitted Mehta’s general principle in a specific case which deals with the liberty of Sonam Wangchuk who enjoys national recognition and is widely respected.
While this may be a new development – that of taking fundamental duties into the courtroom in a specific case – the idea of duty as a political concept has a longer history than that of rights. In that respect, the idea that all human beings have inalienable rights is of relatively recent origin.
Focus on duties in monarchies
Political and philosophical texts in ancient and medieval times always emphasised duties. This was the period of monarchies, and these texts always stated that the highest duty of a subject was to obey the king. These texts also stressed that a king had a duty towards his subjects. He had to treat them justly, protect them, and look after their welfare. However, greater emphasis was placed on the duty of subjects than that of the monarchs.
Socially, too, there was a focus on duty. Thus, the duties of parents towards their children and of the children towards their parents, of wives and husbands, of employers and employees, and of friends were always emphasised. Some of these were held out as examples to be followed by individuals. In India, for instance, the story of Shravan Kumar, who had performed his duty in an exemplary manner, was handed down from generation to generation. Many were inspired by these ideas.
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In all this, the idea of rights was absent. Some thinkers now assert that the performance of duties automatically protects rights. This may be so. However, what happened when duties were neglected? There was no legal mechanism to demand that the duty be performed, especially by those in power.
Rise of natural rights
It was in Europe that the idea that all human beings have rights based on their being human arose in the 18th century. European thinkers called these “natural” rights. This meant that they could not be made dependent on any other consideration. In addition to these natural rights, there were political rights that were linked to citizenship.
The foundational document of this thinking which became a source of inspiration for future generations was the “Declaration of the Rights of Man” adopted by the French National Assembly in August 1789.
Gradually, the idea that human beings have rights spread throughout the world. This inspired the struggle against colonialism because subjugated peoples, led by Indians, began to demand the right to freedom.
This led to the great Indian freedom movement which culminated in India throwing off the British yoke and becoming independent in 1947, and in less than three years framing and adopting the Constitution which emphasised that all citizens had equal rights. The Constitution empowered the judiciary to ensure their enforcement.
Rights independent of duties
This focus on rights does not mean that the idea of political and social duties was overlooked. Indeed, the notion of duty to the country, for instance, was taught to all and was rightly considered an ideal to be always followed. That was in the realm of political thought, ideology, and society.
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What was significant was that the first time in Indian history, the idea of an equal society was adopted. And, equal citizens were given a mechanism to enable them to assert their rights and correct wrongs. This was not made contingent on duty.
The Solicitor General and Nataraj’s submission strikes discordant notes against the basic scheme of the Constitution. That is why it is worrying, and they need to clarify their positions.
(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal)
