Constitutional Duties may not be enforceable, yet they cannot be ignored, Madras HC

Meera Emmanuel February 16 2019

The Madras High Court recently had occasion to reiterate that Constitutional rights must necessarily be accompanied by respect for Constitutional duties. In this regard, Justice N Seshasayee observed that though Constitutional Duties may not be enforceable, they cannot be ignored.

The Constitutional rights find its pair in the Constitutional duties or responsibilities. And, he who is conscious of his Constitutionally guaranteed rights and demands it, should also be prepared to submit to performing the Constitutional duties that goes with it. 

Time has come for the Courts not just to be a sentinel on the qui vive against State's attempts to invade the Constitutional rights of the citizens, but also against flirting tendencies of the citizens not to abide by their Constitutional responsibilities or duties. The latter may not be enforceable, yet they cannot be ignored.” 

To this end, the Court has issued a direction that before permission is granted for the conduct of any public event, the event organisers must provide an undertaking to ensure that public order, religious harmony etc. would not be disturbed during its conduct. The order states,

“… every authority who henceforth grants permission for any meetings or other functions shall obtain a written undertaking from its organisers that he will take responsibility that none of the speakers, while they exercise their right to free speech and expression, will violate any of those aspects/heads on which the State has power to make laws under Article 19(2) of the Constitution, that he would abide by the Constitutional values, and that no picture, cartoons or caricature, poster and every form of visual depiction, depicting any religious symbols or images be used as to hurt the religious sentiments of any religious group, nor shall be put on display anything banned under the laws of India. 

The Court passed the order in a petition challenging the denial of permission to hold a conference on the theme, “Repression is the Democracy?” at Trichy by a social organisation, Makkal Athikaram.

The organisation had previously approached the High Court with the same plea last year. Whereas a single judge dismissed the petition, a Division Bench directed the State authorities to reconsider the application on appeal. 

However, even after fresh permission was made to conduct the conference, the State authorities rejected the same citing that the organisation had previously misused permission. A fresh petition seeking the conduct of the event on February 23 this year was thus filed before the Madurai Bench of the High Court.

The State defended its decision to deny permission for the event’s conduct, contending that the organisation’s ideologies posed a threat to public order. It was argued further that the organisation had issued pamphlets and made social media posts which were likely to hurt religious sentiments. 

Still can free speech be denied, even though it can be regulated?” queried the Court.

The Court answered its query by emphasising that a balance needs to be struck between exercising the freedom of speech and expression and adhering to the reasonable restrictions under Article 19 (2) of the Constitution. The Court emphasised, 

There cannot be freedom of speech if there is no freedom of thought and conscience, and they do not thrive where equality does not prevail.

The Court also pointed out that both fundamental rights and duties are sourced from the Constitution itself, rather than their being implemented by State regulation. 

If We, the People, have given unto ourselves  the Constitution, then it becomes the responsibility of every citizen to protect the Constitution not in fear of any State regulations, but in respect for the Constitution, and in their realisation of this responsibility.

Therefore, as noted in the order, citizens are not at the mercy of the State to claim their Constitutional rights. Similarly, citizens are expected to respect Constitutional duties even without the threat of State sanction. As noted in the order,

In a democracy, the line dividing the State and the collective of its citizens is faint. For a citizen to exercise his rights under the Constitution responsibly, he need not look to the State, for he owes his existence not to the mercy of the State, but to the might of the Constitution… 

It therefore, does not require a State intervention to regulate it. It might be that Article 19(2) of the Constitution has empowered the State to make laws to impose reasonable restrictions on the fundamental right to free speech, yet personal responsibility expected of a citizen that he will exercise it within reasonable bounds goes with the very right, even if one were to presume that Article 19(2) does not exist. 

The Court ultimately allowed the petition with a direction that the State authorities reconsider the petitioner’s application to conduct the event, subject to the following conditions i.e.

(a) That the petitioner takes responsibility that none of the speakers, while they exercise their right to free speech and expression, will violate or infringe any of those heads (on which State has made laws or has power to make laws) under Article 19(2) of the Constitution (each of them should be specifically stated) and that he would abide by the Constitutional values, and that he takes responsibility, for peaceful conduct of the meeting. 

(b) That no picture, cartoons, caricatures, posters, and every form of visual depiction, depicting any religious symbols or other images be used in any form as to hurt the religious sentiments of any religious group, nor shall display anything banned under the laws of India.”

Read the order:

Cheziyan @ Sakthivel v Commissioner of Police - Madras HC - Feb 2019