" What comes first- the right or the duty?

Sub : - Law and Justice

Introduction :-

1.1 Rights and Duties go hand in hand

The fruits of rights enshrined upon the individual can only be enjoyed by performance of one’s
duty. Rights and duties are the two sides of the same coin. For every right there is a
corresponding duty. The state has empowered its citizen with many rights with an assurance
from the Citizen that the individual will perform its duties towards the state.

If Article 21 of the constitution guarantee’s the right to life and right to livelihood it also imposes
upon the citizen an obligation to not to be a threat to life and liberty of others.

1.2 Rights and Duties originate from different premise.

Rights are mentioned in part III of the Constitution and Fundamental Duties mentioned in part
IV A of the Constitution. Duties towards the state binds oneself to Legally pay our taxes, refrain
form committing violence or other unlawful activities. Duties are derived from the premise that
if an individual wishes to live peacefully that he/she must be prepared to sacrifice certain acts.
Rights are enshrined with a view that every human being has the right to human dignity and
equality which the state cannot take away from him. Fundamental Rights in the Constitution are
framed by the framers of the Constitution due to the past experience and history of Colonization.
To remove the divide between the society based on caste, gender, faith etc. example Art 17
abolishing untouchability.

1. In the case of State of Rajasthan vs Union of India, 1977 AIR 1361, 1978 SCR (1) 1 the
Supreme Court stated that “Legal rights in the strict sense are correlatives of legal duties and
legal rights are defined as the interests which the law protects by imposing duties on other
persons. But the legal right in the strict sense means right is the immunity from the legal power
of another. Immunity is no subjection at all”.

pg. 1
By Kawaljeet Katija
 " What comes first- the right or the duty?
Sub : - Law and Justice

2.0 Fundamental Rights enjoyed by an individual and its reasonable restriction.

The four main rights enjoyed by individual will be the fundamental rights enshrined by the
Constitution mentioned in Chapter III. Article 19(1)

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

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

We shall discuss the four main Freedom for this essay.

 Right to freedom of speech and expression;

 Right to form associations or unions;
 Right to practise any profession, or to carry on any occupation, trade or business
 Right to privacy

pg. 2
By Kawaljeet Katija
 " What comes first- the right or the duty?
Sub : - Law and Justice

2.1 Art 19 (1) (a) to freedom of speech and expression;

Article 19(1) (a) of the Constitution of India gives the citizens right to freedom of speech
and expression. The preamble of the Constitution makes a solemn resolve to secure to all
its citizens the liberty of thought and expression. However, this right is subject to
reasonable restrictions.
This is further explained in the following case laws

1. In Sakal Papers Ltd. v. Union of India,[AIR 1962 SC 305]the Daily Newspapers (Price
and Page) Order, 1960, which fixed the number of pages and size which a newspaper
could publish at a price and in Bennett Coleman and Co. v. Union of India,[AIR 1973 SC
106; (1972) 2 SCC 788],the validity of the Newsprint Control Order, which fixed the
maximum number of pages, was struck down by the Supreme Court of India holding it to
be violative of provision of Article 19(1)(a) and not to be reasonable restriction under
Article 19(2). The Court struck down the Government’s stand that it would help small
newspapers to grow.

2. In Tata Press Ltd. Vs. Mahanagar Telephone Nigam Ltd., the Supreme Court held that a
commercial advertisement or commercial speech was also a part of the freedom of
speech and expression, which would be restricted only within the limitation of Article
19(2). Supreme Court held that advertising, which is no more than a commercial
transaction, is nonetheless dissemination of information regarding the product-
advertised. Public at large are benefited by the information made available through the
advertisements. In a democratic economy, free flow of commercial information is
indispensable.

pg. 3
By Kawaljeet Katija
 " What comes first- the right or the duty?
Sub : - Law and Justice

2.2 Article 19 (1) (g)

Article 19(6), of the Constitution of India gives right to do business however, the State
may Impose reasonable restrictions upon the freedom of trade, business, occupation or
profession in the interest of the general public.

Instances of reasonable restrictions

1) There is no right to carry on business at a particular place. The State has the power to
impose reasonable restrictions for the betterment of the general public. Thus, a competent
authority has the right to fix a proper place be it for a bus stop, a cinema house, or a
liquor shop.

(2) In Luxmi Khandsari .v . State of Uttar Pradesh, a Notification issued under Sugar Cane
( Control) Order stopping crushers from producing khandsari so that production of white sugar
could be increased and thereby making the sugar available to consumers at a reasonable price
was held to be imposing restriction in the interest of the public on the right of persons using
crushers and therefore valid.

pg. 4
By Kawaljeet Katija
 " What comes first- the right or the duty?
Sub : - Law and Justice

2.3 Art 19(c) to form associations or unions;

The right to form associations indicates that several individuals get together and form voluntarily
an association with a common aim, legitimate purpose and having a community of interest. It is
not an absolute Right rather it has certain Reasonable Restrictions.

It can be explained through the following case laws.

1. U. P. Shramik Maha Sangh v. State of Uttar Pradesh4 A rule provided that a union could
not represent the parties in an industrial dispute unless it had been approved by the
Labour Commissioner for this purpose. The application for approval could be made only
two years after its formation and the Labour Commissioner had absolute discretion to
accept or reject the application. These conditions for recognition were held to contravene
Art.19 (1) (c) i.e. right to association.
2. Asom Rastrasabha Prachar Samity v. State of Assam12
The management of the Asom Rastrasabha Prachar Samity was taken over by the
Government of Assam under the Act enacted by the State Legislature. The Supreme
Court quashed the notification as illegal and unconstitutional being violative of Art.19 (1)
(c) of the Constitution.

pg. 5
By Kawaljeet Katija
 " What comes first- the right or the duty?
Sub : - Law and Justice

2.4 Right To Privacy

Article 21 of the Constitution of India states that “No person shall be deprived of his life or
personal liberty except according to procedure established by law. A nine-judge bench of the
Supreme Court in the case of Puttuswamy v. Union of India has declared that the right to
privacy is a fundamental right protected under Part III of the Constitution of India.

Thus, On 24 August 2017, the Supreme Court of India in a historic judgement declared the right
to privacy as a fundamental right protected under the Indian Constitution. In declaring that this
right stems from the fundamental right to life and liberty, the Court's decision has far-reaching
consequences.

People’s Union for Civil Liberties v. Union of India (1996). This case before the Supreme
Court extended the right to privacy to communications. The court laid down regulations in
interception provisions in the country like such orders were to be issued by the home secretaries
only, necessity of the information was the considered, etc. Further it capped two months onto the
life of an interception order.

Unique Identification Authority of India & Anr. v. Central Bureau of Investigation

(2014). The Central Bureau of Investigation sought access to the huge database complied by the
Unique Identity Authority of India for the purposes of investigating a criminal offence. The SC,
however, said that the UIDAI was not to transfer any biometrics without the consent of the
person.

pg. 6
By Kawaljeet Katija
 " What comes first- the right or the duty?
Sub : - Law and Justice

3.0 CONCLUSION

Basically, it is the individual or the Fundamental unit of the Constitution who executes and
enjoys duties and rights. However, it is evident from the past event that those in power generally
exercise unchecked powers in the name of forcing the citizen to follow the duties. Thus, those in
power should refrain from exploiting those below them. It is the duty of the one in power to
protect the rights of the individual. The basics of humanity, dignity, equality and freedom for all
should be next to nature and preached and practiced by the society and by every individual of the
society, It cannot be left the whims and fancy of the legislatures and the interpreters to derive
what suits them from the language of duties and rights mentioned in the Constitution. It is our
Dharma to treat everyone equally with respect and humility and perform the duties towards the
society, environment and the Nation.

pg. 7
By Kawaljeet Katija