CAN Foundation | 2nd Justice H R Khanna Memorial National Symposium

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“It has always been my firm view that duties have forever preceded the existence of rights in any civilisational setup”: Justice Vikram Nath at the ‘2nd Justice HR Khanna Memorial National Symposium’

Dr. Ram Manohar Lohiya National Law University, Lucknow, National Law University Odisha, Cuttack in collaboration with CAN Foundation hosted the ‘2nd Justice HR Khanna Memorial National Symposium’ to commemorate the august persona of Late Justice HR Khanna, on the fortuitous date of 3rd July 2022, marking the 110th birth anniversary of the legal luminary. The Symposium featured an enthralling discussion on two of the most contemporary legal issues and the pertinent questions of justice. The 1st session was on the theme “Fundamental Duties vis-à-vis Fundamental Rights under Our Constitution”.

The 1st (Pre-Lunch) Session of the Symposium was graced by the presence of Justice Vikram Nath (Judge, Supreme Court), who was the Chief Guest at the Symposium, Mr. Neeraj Kishan Kaul (Senior Advocate Supreme Court) and Mr. Sidharth Luthra (Senior Advocate Supreme Court).

Session was moderated by Mr. Siddharth R. Gupta, CEO CAN Foundation; Mr. Aditya Khandekar, Advocate; Mr. Ankit Swarup, Advocate; Mr. Tariq Khan, Registrar, IAMC and the Vote of Thanks was delivered by Ms. Bhavana Chandak, Sr. Associate with Kachwaha and Partners.

Welcome Introductory address was delivered by Prof. Mr. Subir Bhartanagar, Vice Chancellor Ram Manohar Lohiya National Law University, Lucknow and by Prof. Ms. Ved Kumari, Vice Chancellor National Law University, Odisha, Cuttack.

Justice Vikram Nath commenced his address by greeting the audience. He began by remembering one of the initial days after he was elevated as the judge of the Allahabad High Court, when Shri Ravi Kishan Jain one of the senior advocates who came for a courtesy call, presented Justice Nath with the autobiography of Late Justice Khanna, Neither Roses Nor Thorns, and wished him to be a judge like late Mr. HR Khanna.

Justice Nath paid tribute to Justice HR Khanna’s legacy by underlining his important rulings during the emergency period, one of the darkest periods in the Indian history, which have had a lasting influence on our constitutional jurisprudence. In his thoughtfully prepared dissent, Justice Khanna argued that the constitution’s provisions only serve as safeguards for already-existing basic rights and that the right to life and liberty comes before the constitution as a whole. He urged everyone to remember Justice HR Khanna’s unwavering bravery and dedication to the concept of the rule of law.

Justice Nath remembered Justice Khanna by praising him in the following words:

“I had an occasion to have a sitting in Court 2, one of these days post my elevation to the Supreme Court. When I looked at the portrait of Justice Khanna, I felt dwarfed by what he had contributed by the sheer dint of his promise to the Constitution as a Judge of the Supreme Court of India.”

Moving onto the topic of discussion, he highlighted on the jurisprudence of duties and how duties and rights are the building blocks of society. Justice Nath remarked that it is not the gift of language or invention that sets us apart from the rest of the living beings, but the gift of conscious and cognitive capacity, which empowers us to distinguish between right and wrong. And that it is this conscious and cognitive capacity that has been the starting point of the great civilisations of mankind, the cradle of many of which has been our nation, India.

He went on to elucidate on the decisions of the Supreme Court recognising that the fundamental duties have always preceded rights and that they have to be seen in their entirety.

Justice Vikram Nath was of the opinion that the duties of one citizen towards the other from which the rights emanate and that the very existence of rights is a sequitur to the acknowledgments and performance of duties by others. Justice Nath expressed that

“It has always been my firm view that duties have forever preceded the existence of rights in any civilisational setup.”

Justice Nath then deliberated on the prevalence of Dharma and the origin of duties in India. Quoting the then Law Minister, HR Gokhale, Justice Nath stated that

“The Fundamental Duties were meant to have a sobering effect on the restless spirits who have had a host of anti-national, subversive and unconstitutional agitations.”

Justice Nath also shared his experience during Covid-19 Pandemic when the government was trying its best to impose the lockdown on account of the Standard Operating Procedure (SOP). He stated that the Courts all over the Country took up the discourse to appeal to the State and also to the citizenry to adhere to the SOPs. The Courts also requested to fulfill their obligation of adhering to the fundamental duties so as to strike a balance between rights and duties.

Justice Nath concluded his speech with a celebrated quote, by famous American Historian Russel Kirk,

“Every right is married to a duty, every freedom owes a corresponding responsibility.”

Subsequent thereto, Mr. Neeraj Kishan Kaul, Senior Advocate, Supreme Court of India, took to the stage and commenced his address by touching upon the life of the Hon’ble Late Justice HR Khanna and eulogized Justice Khanna as the ‘Man of Stellar Character‘ and talked about how his contribution to strengthening the rule of law in India is unparalleled.

Moving to the topic of discussion he elucidated that the Fundamental duties are the guiding principles of citizens to perform their duties and be responsible towards the state they play a significant role in India’s seeking to achieve a set of parameters of progress that cannot be achieved without citizens performing their duties. He expressed that the Gandhian Constitution coupled Fundamental Rights and Fundamental Duties. Mr. Kaul highlighted the Gandhian view of the Constitution by quoting Mahatma Gandhi:

“The true source of rights is the duty if we all discharge our duties rights will not be far to seek.”

Mr. Kaul then talked about how the Supreme Court of India recognized the concept of Fundamental Duties in 1969 in Chandra Bhawan Case much before they were formally added. The Supreme Court observed and he quoted:

“It is a fallacy to think that under our constitution, there are only rights and no duties.”

Mr. Kaul then highlighted the recent discourse of the fundamental rights with the fundamental duties by discussing the popular jurisprudence which provides that the two components are inseparable, and mentioned the thought of two schools:

  1. Rights can be enjoyed in the world of duties. When people fail to discharge duties properly, their rights also become meaningless.

  2. Though the two components may be inseparable they are not conditioned upon each other.

Mr. Kaul referred to the opinion in the case of State of Rajasthan vs Union of India wherein the Supreme Court stated:

Legal Rights in the strict sense are correlators of Legal Duties and Legal Rights are defined as the interests which the law protects by imposing duties on the other person 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.”

He further, referred to the case of Javed v State of Haryana, wherein it was held that “right, duties cannot be read separately” and in Ramlila Maidan Case that “balance between rights and duties is essential.”

By mentioning all these cases Mr. Kaul concluded that the judiciary has attempted to balance the equation between rights and duties, however, the importance of rights has not been diluted at all.

He highlighted that

“Citizens enjoy rights and perform their duties. To my mind, they are the two sides of the same coin. In this sense, the citizen is expected to be his own monitor. While exercising his fundamental rights, remembering he owes duties to the Self-contained code.”

Mr. Kaul concluded his speech with the famous Hoeflein analysis, “a right in a legal interest that imposes a correlative duty. And if each one of us including the State respects the correlative duty in respect of other’s rights, I think a fine balance shall continue to benefit us.”

Thereafter, Mr. Sidharth Luthra took to the stage and addressed the participants. He began his address by remembering Justice Khanna in the following words,

Justice Khanna was a beacon of light at a time of darkness when we were confronted in a situation where our rights were being subrogated and where citizens feared for their liberty. At that point in time there was one man who stood up to uphold and protect our Constitution.”

He, just like Justice Nath, commended all young legal professionals to read his autobiography. He commemorated the time when he was delivering a memorial lecture a few years ago and read Justice Khanna’s autobiography. He stated it as a “fascinating story of how he knew the fate that would befall and yet, Justice Khanna remained true to his conviction and, therefore, it proves that we need individuals like him to make our country or even any nation a far better place.”

Moving to the topic, he began by stating how the whole concept of Fundamental Rights was introduced in the Constitution based on the philosophy that every right has a corresponding duty appended to it. Referring to the Ramlila case, he elucidated that it is difficult to anticipate a right to freedom without reasonable restrictions and equally difficult to imagine the existence of a right coupled with a duty.

Professor KT Shah wrote a dissent and he quoted,

“Lest the tale of obligations sounds one-sided, I would add that corresponding to the rights of the citizens, there are also implied and declared obligations. There is too much torque of rights everywhere and distressing silence in regard to duties. In a modern society where there is a division of labor and specialization of functions is so widespread, and where every individual is necessarily dependent upon the cooperation of his fellows, there cannot be rights only without mention or thought or duties. The Rights and duties must go hand in hand if we are to progress on the right lines.”

He then went on to elaborate that our Constitution has been called a Cosmopolitan Constitution because it has fidelity to the universal principles of liberty, equality and fraternity. The Amendment that was brought in to introduce the Fundamental Duties, comes in line with Article 29(1) of the UDHR and the constitutions of Japan, China and the USSR.

Mr. Luthra expressed that

“Fundamental rights are a direct or indirect consequence of fair assertion of Fundamental Duties. Part 3 confers rights and yet, duties and restrictions are contained thereunder. These rights are basic in nature, recognized as natural rights, inherent in individuals as citizens of the free country but not absolute in operation. It is important to regulate these rights to a certain extent made by laws and parliamentary duties.”

He then highlighted Justice Venkatramayya, who in 1988 while delivering a lecture, stated that “by way of broad classification, it may be seen that duties mentioned in clauses a and b of Article 51A have a nationalistic fervor, ensuring that this spirit is not forgotten in lieu of partisanship and controversies.”

He concluded his address by quoting Landon William and his work on Indian Constitution,

The desire for rights was reinforced by the suspicion of the government engendered by colonial rule. Suspicion not diminished by the scoffing attitude of the imperial government towards rights. The party leadership was eager to demonstrate their intention and that is where the chapter of FR was paid great attention to. Unfortunately, at that time, they forgot to add the need for Fundamental Duties. Fortunately, that terror has been corrected.”

The Entire Session can be viewed at:

https://www.youtube.com/watch?v=aosXZA6cpcc

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