The Constitution Day (Sambidhan Divas) commemorates the adoption of the Constitution of Nepal, which officially came into effect on Asoj 3, 2072 (September 20, 2015), through the second Constituent Assembly. Today (Asoj 3) marks the sixth anniversary of the day Nepal charted a new political course through the new national charter.
In the last six years, the discourse on the constitution has always been about rights. Many are complaining that it does not give them enough rights. This article presents a critique from the perspective of duties—which is rarely talked about in the public sphere—to explore how much or whether we have succeeded or failed to do our duties. We might know what the constitution entails but do we also realize that rights cannot exist without duties?
It’s often said that every right implies a corresponding duty but every duty does not imply a corresponding right. The constitution’s ultimate purpose to maintain the rule of law has deteriorated due to people’s disregard for fundamental duties. After all, the people of Nepal are the ultimate custodian of the constitution. It is in them that the sovereignty rests and it is in their name the constitution was adopted.
The preamble of the Constitution of Nepal affirms the sovereignty of “We the people,” who are committed “to fulfill the aspirations for perpetual peace, good governance, development and prosperity through the medium of democratic-republican system of governance” and thus “hereby promulgate this Constitution through the Constituent Assembly.” The concluding part seeks to unite the citizens in an enduring sense of duty to uphold the constitutional norms, not just loyalty of lip service. The parliamentarians, leaders at the provincial legislature, leaders at local level, or the top government officials must ask themselves whether they have stood up to the constitutional promise of maintaining the “rule of law”.
In six years of constitutional journey, Nepal has witnessed many challenges. The challenges range from instability of government to dissolution of parliament to the reinstatement of the parliament at the order of the Supreme Court. The net result is that Sher Bahadur Deuba is the eighth Prime Minister in office since the inception of the 2015 Constitution. This shows the power greed of our political class. Against this backdrop, we need to ask ourselves whether our practice of democracy and governance has been able to realize the core constitutional aims enshrined under the preamble and the fundamental duties under Article 48.
Know thy duty
Article 48 of the Constitution is about the fundamental duties of citizens. This includes duty to safeguard the nationality, sovereignty and integrity of Nepal while being loyal to the nation; duty to abide by the constitution and law and duty to protect and preserve public property.
The inclusion of the duties reminds that the constitution presents an integrated scheme of which the fundamental or any other constitutional rights are only a part. In doing so, the constitution envisages responsible citizens. “The fundamental duties have a legal value in the sense any laws which implement fundamental duties cannot be invalid on the ground of conflict with the fundamental rights unless such conflict is irreconcilable,” argues VN Shukla in his popular book, The Constitution of India. The rights must be reconciled with the duties.
In Nepal, we often talk about fundamental rights while forgetting duties, which are as fundamental for the political system to succeed.
The constitution empowers the citizens and citizens too empower the constitution by observing it, by adhering to it and protecting and promoting the constitutional ethos in the entire state and non-state affairs.
Youths are seen taking to the streets under the banner of one or another movements. But I barely find any group of prudent persons reminding their fellow citizens to observe the constitution. Let me take a couple of legislations. The Right to Compulsory and Free Education Act (2018) was enacted to enforce the right to education (Article 31 of the constitution). This provides that it is the duty of parents to admit their children to schools and ensure that they receive school education. Likewise, the Environment Protection Act (2019) (formulated as per the provision of Article 15 of the constitution) imposes a duty on every person to protect the natural environment. In this case, while the duty of the state would be to create an enabling atmosphere for every citizen to send their children to schools and protect the environment, what if, on their part, the citizens simply don’t care about sending their children to schools or keep destroying the natural environment?
Actually, the constitution empowers the citizens and citizens too empower the constitution by observing it, by adhering to it and protecting and promoting the constitutional ethos in the entire state and non-state affairs. That’s why, it is rightly said, the constitution of a country is nobody’s preserve but everybody’s preserve.
Cases of other countries
The fundamental duties were added to the Indian constitution by 42nd amendment in 1976, upon the recommendation of the Swarna Singh Committee that was constituted by the Indira Gandhi government. Article 51A of the Constitution of India hosts 11 duties which include duty to abide by the constitution; and duty to protect and improve the natural environment. The 11th duty—duty of parents to educate their children—was inserted through 86th amendment in 2002.
The constitution of Vietnam under Article 15 envisages that citizen’s rights are inseparable from citizen’s duties. Everyone has the duty to respect the rights of others. Article 45 provides that it is the duty and noble rights of citizens to defend their fatherland.
Article 59 of the Constitution of the Russian Federation says that the defense of the fatherland shall be the duty of and obligation of a citizen of the Federation. Article 58 obliges citizens to preserve nature and the environment.
Similarly, the Constitution of China also bears testimony of the fundamental duties in various Articles under the chapter of Fundamental Rights and Duties, including, the duty of the citizens of the People’s Republic of China to work (Article 42), rights and duty to receive education (Article 46), duty to safeguard national unity (Article 52) and duty to pay tax (Article 56).
Although the Universal Declaration of Human Rights (UDHR) is focused on rights of every person by virtue of being a human being, Article 29 says that the corollary of the rights is duties. It has a provision related to the duty towards the community.
Dharma and Karma
The eastern jurisprudence includes Dharma and Karma. Dharmo Rakshti Rakshta (respect Dharma, dharma will respect you), it is said. The core essence of Dharma is to do duty. In Ramayana, even the king is bound by Raj Dharma.
The Bhagvadagita explains the duties of the persons. Chapter-II, Verse 47 says: Your right is to work only and never to the fruits thereof. Do not consider yourself to be the cause of the fruit of action; nor let your attachment be to inaction. Similarly, Verse 48 says, “Arjuna, perform your duties established in Yoga, renouncing attachment and be even-minded in success and failure; evenness of mind is called Yoga.”
In Nepal, we often talk about the fundamental rights while forgetting duties, which are as fundamental for the political system to succeed.
These verses give a message that there is existence of right but that right is itself in the form of the duty to work. It means rights and duties are like the two sides of the same coin. Leon Duguit, a jurist of Sociological School of Jurisprudence and a propounder of the principle of social solidarity, concludes that no one has any other right than always to do his duty. Rousseau, a jurist of Natural Law School of Jurisprudence, based his theory of social contract on the principle of ‘man is born free, but everywhere is in chains.” These chains are, in fact, self-imposed duties of citizens towards their fellow citizens and state. It is more in the nature of restraints that favor the common cause of society.
Why duties matter
The overall purpose of the fundamental duties is to make the citizens responsible; to make democracy the way of life and to protect and promote rule of law in a democracy. The reason behind the adoption of the fundamental duties is pretty clear.
But in Nepal most people—particularly politicians—have tried to take maximum advantage of fundamental rights, but they have forgotten their duties towards the country. The fundamental duties are intended to serve as a constant reminder to every citizen that while the constitution specifically confers on them certain fundamental rights, it also requires citizens to observe certain basic norms of democratic conduct and behavior.
Mahatma Gandhi defined rights as “duty well performed”. The fundamental duties seek to limit the operation of fundamental rights—a countervailing factor and a warning of reckless citizens against anti-social activities like stalking, molesting, disrespecting senior citizens, destroying public property, burning national flags, or disregarding the rights and interests of others.
We need to develop the habit of living a duty-oriented life. After all, the fundamental duties, like duty to abide by the constitution, provide a valuable guide and aid to interpretation of the constitution and legal issues. As for the accusations that our constitution is not a broad-based document and that it has politically marginalized the Madheshi population, let us take a look at Article 48 which has a lot on proportional representation, reservation measures and fundamental rights.
The citizens need to observe the constitution and do their duty. The celebration of right without adherence to duty would be meaningless.
Jivesh Jha, formerly a Lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court, Janakpur.
Comment