December 6, 2020

CONCEPT OF DUTIES (JURISPRUDENCE)

As Birds are made to Fly and Rivers to Run, So the Soul to Follow Duty. – Ramayana

Duty, the word finds its derivation from the word “due” which means something which owed. So, Duty can be described as an obligation to perform an act or a task. This act or task can be ethical, moral, cultural etc. in nature or either a compulsion by the state, omission of which will result in punishment by law. Cicero, an early Roman philosopher who discusses duty in his work “On Duty”, suggests that duties can come from four different sources:- [1]

1. as a result of being a human

2. as a result of one’s place in life (one’s family, one’s country, one’s job)

3. as a result of one’s character

4. as a result of one’s own moral expectations for oneself.

In the legal scenario, duty means a legal obligation to do or not to do something. [2]

According to Salmond ” A duty is an obligatory act, it is an opposite of which would be wrong. Duties and wrongs are correlatives. Supporting this, Fitzgerald has said, the commission of wrong is breach of duty and performance of duty is avoidance of wrong.[3]

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 breach of which is a wrong act.[4]

According to Prof. Dicey, ” a duty is a species of obligation. People obey it due to indolence, deference, sympathy, fear and reason. And due to psychological, social and moral pressures. Most duties are supported by State. the breach of the duty is imprisonment or fine.” [5]

DUTIES IN INDIA :

In India, Fundamental Duties are enshrined under Art 51-A. Though they are not enforceable in court , but many of these duties have promoted and pushed the legislature to frame legislations taking inspiration from these duties. Thus, not enforceable constitutionally, with formulation of statutes, they get statutory backing and become enforceable. Even in cases of violations, liability in terms of either fine or imprisonment is imposed. This has been achieved because of pro-active role of judiciary of recognizing the role and importance of fundamental duties and highlighting it continuously in various judgements decided in the past years.

The trend began with introduction of P.I.L system in the country. Thus, any violation relating to environment, education, maternity benefit etc. is punishable under the respective statutes framed based on the fundamental duty. Many fundamental duties are linked with fundamental rights like fundamental duty of protecting environment has become an essential part and parcel of right to life under Art 21, similarly equal pay for equal work not only has a statute named “Equal Remuneration Act” but also gets backing from Art 14. This is how the interplay and interlink of rights and duties have shaped the present legal spectrum in the country.

Thus, fundamental duties are very relevant and so does their recognition and implementation for promoting welfare and growth of the state along with practice of fundamental rights. This complementary nature of rights and duties imposes an obligation on the individuals and the sate to follow the duties to ensure they are not held liable under specific statutes.

NATURE OF DUTIES :

Duties follow rights. The same is expressed by Mahatma Gandhiji in these words, “If we discharge our duties, rights will not be far too seek.”

Every right or duty comes with a covenant of obligation of legal nature in which two or more persons are bound together. One has an obligation to perform for the other and to ask for duty to be performed is the other person’s right. Therefore, for any obligation to exist there has to exist an entity to whom the obligation is due; similarly for a right to exist there has to be an entity who asks for the obligation to be performed to whom it is due; and for a violation to occur there has to be a person whose obligation has not been met which means his right to get the due obligation has been blocked. This is also called as vinculum juris which means “a bond of the law”. It is a tie that legally binds one person to another.[6]

Such a relationship is interpersonal in nature, rights and duties are corresponding entities. Having a right implies that the other person should respect that right by performing the corresponding duty. Right to life also comes with a duty to respect the other’s right to life that is to not disturb his life. Thus, it is this reciprocal and corollary nature of duties that enhance our rights and govern the inter-relationship between individuals in a democratic society.

When a person is required to fulfill two duties at the same time the following guideline have to be followed :- [7]

– Duties towards God must be given priority over those towards men.

– Duties that secure public order or the common good have priority over those that safeguard the individual.

– Duties towards the family and relatives take precedence over those towards strangers.

– Duties of greater importance take precedence to those of lesser importance.

– Duties based on higher laws take precedence over those coming from lower laws.

CHARACTERISTICS OF DUTIES :

A duty is a responsibility to be fulfilled. It is the guideline, a prescription to be followed which details the conduct which must be followed when fulfilling duties which are moral or social in nature. Professor Fuller states the main attributes of duty as :- [8]

1. It should be general, though limited exceptions are permissible.

2. It should be promulgated.

3. It should be prospective and intelligible.

4. It must be consistent.

5. It should be capable of fulfillment and congent with inner morality.

Other characteristics can be summed as –

1. Basic ideology is that it is an obligation for something in return.

2. It is a concept that is prescribed -to be followed but is not mandatory in nature.

3. It is a commitment which is moral towards someone and must be performed for that individual.

4. There is restriction of free will but by the operation of law.

5. Negative Duties which arise from Natural Law are not exempted.

6. Affirmative Duties which arise from the affirmative precepts of Natural Law admit exemptions only when the act is rendered impossible to be performed under certain circumstances or if it is causing excessive hardship on the person.

7. Hardships which are a part of the process of the obligation and are a part of normalcy in accordance with the nature of the duty will not result in any exemption

8. Only a strong reason can stop one from the compliance of a duty. For instance, a student must attend classes unless sickness prevents him from doing so.

CLASSIFICATION OF DUTIES :

A. LEGAL AND MORAL DUTIES :- A Legal duty is adversary of a legal wrong and it is recognized by the law for administration of justice. Similarly, Moral duty is an opposite of moral wrong, but is not recognized by law but it is followed out of human conscience and social perception. So, a duty can be legal but not moral and vice versa. So, by the operation of law it is mandatory to perform a legal duty but not a moral duty. For example – not selling adulterated milk is a legal duty and not wasting paper is a moral duty. There is punishment for former and not for latter.

B. POSITIVE AND NEGATIVE DUTIES :- When a person is enforced to perform a duty, the duty is called positive duty. Whereas, when the law asks the person from refraining in involving or undertaking a particular act, such duty is called negative duty. For example – to pay debt is a positive duty whereas, not to trespass on third person’s land is a negative duty.

C. PRIMARY AND SECONDARY DUTIES :– Primary duty is one which doesn’t need to be stated, it exists on its own. Whereas, Secondary duty is one which exists only for giving the way to other duties thus, having no independent existence. For example – Not to cause injury to another person is the primary duty, but to pay damages as a result of injury caused is the secondary duty.

D. ABSOLUTE AND RELATIVE DUTIES :- Absolute duties are the one which are not followed by a right which means a right is mot corollary of a duty in the case of an absolute duties, whereas relative duties are the duties which come with a bond and are followed by right. Thus, a relative duty cannot exist without a right.

Austin stated 4 kinds of absolute duties ;- [9]

1.Duties to those who are not human beings, such as duty towards god.

2.Duties towards indeterminate persons or public at large, such as duty not to commit nuisance.

3.Self-regarding Duties, such as duty not to commit suicide or duty not to become intoxicated.

4. Duty towards State or sovereign.

Salmond did not support this concept of absolute and relative duties. He believed there is no duty without a right.[10]

Thus,

If you salute your Duty,

You don’t need to salute Anybody,

But, if you pollute your Duty,

You have to salute Everybody.

– Dr. A.P.J. Abdul Kalam

References

[1] Cicero, Marcus T. De Officiis. Cambridge: Harvard UP, 1913. Print.
[2]https://www.merriam-webster.com/dictionary/legal%20duty
[3] Fitzgerald P.J. : Salmond on Jurisprudence (12th ed) P.217
[4] Juridical Concepts And Jural Analysis Legal Rights And Duties available at https://shodhganga.inflibnet.ac.in/bitstream/10603/71969/3/03_chapter%201.pdf pg. 623.
[5] INTRODUCTION act; (3) Powers to alter existing legal situations, Nano Andes Examples of Research Proposals, February 11 , 2019, available at https://nanoandes.org/introduction-act-3-powers-to-alter-existing-legal-situations/.
[6] Black’s Law Dictionary, Eighth Edition
[7] There is a conflict of duties when two or more of them needs to be answered, Course hero, Pg. 9-10, available at https://www.coursehero.com/file/p3gavjn/There-is-a-conflict-of-duties-when-two-or-more-of-them-needs-to-be-answered-at/
[8] Dr. N. V. Paranjape, Studies in Jurisprudence and Legal Theory, 8th Edition, Central Law Agency, Pg. 398.
[9] Dr. N. V. Paranjape, Studies in Jurisprudence and Legal Theory, 8th Edition, Central Law Agency, Pg. 397.
[10] LEGAL RIGHTS, International Journal of Law and Legal Jurisprudence Studies :ISSN:2348-8212: Volume 2 Issue 6, Pg. 179.


Author Details: KHYATI TONGIA (GOVERNMENT NEW LAW COLLEGE)

Leave a Reply