Are Francis Lieber’s Ideas on Rights and Obligations Still Relevant? Indian and American Scenario

By Aditya Sharma

Introduction

In his treatise, Manual of Political Ethics, Francis Lieber dedicates an entire chapter to the topic Reciprocal Relation of Right and Obligation[1]. Rights are of no use without corresponding and parallel obligations. Interpreting Lieber’s ideas in a comparative context of Indian and American polity makes for a very interesting study.

The idea of corresponding and parallel obligations accompanying rights highlights the importance of reciprocity in the normative case for rights. Thus, a citizen of Country A must obey the laws of Country B and in reciprocation is supposed to be protected by the laws of Country B.

Comparative Study Of U.S.A And India

The principle of mutuality was gradually accepted by the American legal system. The due process and equality clauses of the American constitution protect “persons” and not just “citizens”. In Wong Wing v. United States,[2] the Bill of Rights was used to protect citizens of China from being unlawfully detained in the United States. The court held that both residents and alien nationals are entitled to the same protection under the laws that apply to citizens. This was further substantiated in Yick Wo v. Hopkins,[3] where the equal protection clause was applied to protect citizens of China living in the United States. Even though the United States has the power to expel non-citizens, it is bound to treat them in a fair and justiciable manner as long as they are in the country.[4]

The situation is modern day India is slightly more amicable. In Klaus Mittelbachert v. East India Hotels Ltd[5], a German Pilot was mortally injured after using a swimming pool whose infrastructure was poorly maintained by the hotel he was residing in. The court punished the hotel for its gross mismanagement and ordered them to pay compensation for the damage caused. This case is a simple yet shining example of how the rights of a foreign national are respected by the state.

Another example of corresponding rights and obligations would be the Articles 48-A[6] and 51-A(g)[7] of the Indian Constitution. Article 48-A of the Indian Constitution mandates that “the State shall endeavor to protect and improve the environment to safeguard the forests and wild life of the country”. Article 51-A (g) states that: “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures”. The fundamental duty imposed on every citizen is not only to “protect” the environment from any kind of pollution but also to “improve” the environment quality if it has been polluted. So in a way, there is an obligation on the citizens which goes hand in hand with the Right to Life described under Article 21[8] as the environment is a big factor in determining the quality of life.

In Rural Litigation and Entitlement Kendra v. State of UP[9], Justice R.N. Mishra opined as follows

Preservation of the environment and keeping the ecological balance unaffected is a task which not only the government but also every citizen must undertake. It is a social obligation and let us remind every Indian citizen that it is his fundamental duty as enshrined in Article 51-A(g) of the Constitution”.

The Court explained the true scope of Article 51-A in L. K. Koolwal v. State of Rajasthan and Ors[10] in the following words

We can call Article 51-A ordinarily as the duty of the citizens, but in fact it is the right of the citizens as it creates the right in favor of the citizens to move to the court to see that the State performs its duties faithfully and the obligatory and primary duties are performed in accordance with the law of the land.

In Murli S.Deora v UOI,[11] the Supreme Court held that smoking in any form in public places is a health hazard and a violation of the Right to Life under Article 21. It has been made clear by the Supreme Court that smoking in public places indirectly deprives a non-smoker of his life which amounts to a violation of Art 21. Thus the right to life has been complimented by a duty to not smoke in public places. An example of a duty overshadowing a right would be the case of Abhilash Textile v Rajkot Municipal Corporation.[12] The defendants in response to a claim of pollution took the defence of Article 19 (1) (g)[13] which confers the right upon every citizen to practice any profession or to carry on any occupation, trade, or business. The court rejected this on the ground that the duty to ensure clean water and environment was of higher priority than a purely commercial venture.

During the selection for members of the jury in the United States of America, the prosecutors often moved motions to strike down people of colour from the jury[14] which discharged them from an obligation of being a citizen and thus being deprived of a privilege of citizenship. Even as the court allowed the inclusion of coloured males in the jury system in the case of Strauder v. West Virginia,[15] it reiterated that the state had the power to exclude participation of women in the jury system. It was only later on that the women in the United States acquired the right to vote[16] and participate in the jury discussions.[17]

The framers of the Indian Constitution framed our Constitution by imbibing the best qualities from other Constitutions. Thus upon independence, Article 326 of the Indian Constitution ensured that every person who attained the age of majority is eligible to vote irrespective of their caste or sex. This made sure that the political obligation and will of a citizen is always alive and intact.

Most wings of the Indian military services still do not allow women in combat units.[18] National Security Guard inducted female commandos into the service in the year 2011.[19] Ironically enough, the first act of discrimination they faced was from two female Chief Ministers who refused to be guarded by the female commandos.[20] This is a blatant reflection of the fact that no number of rights and obligations would benefit the public unless the thought process and perception of people evolve.

Conclusion

People’s rights are still held to be directly complimentary to their obligations, as theorised by Francis Lieber. These obligations are the tools which help the state to garner public participation in its day to day functioning. The polity of the United States of America changed dramatically over the last three centuries and it took them more than 300 years to strike a balance between the rights vested in the citizens and their own will to recognise the corresponding duties and obligations. Comparatively, India has been able to avoid the historical blunders of the older democracies by safeguarding the rights of each and every individual with a solid constitution and a dynamic wave of judicial decisions. This assurance of rights warrants the participation of the Indian society in governance thus making sure that the citizens actually feel obligated to perform their duties towards the state. Even though a lot of social development is required, especially for women and the disadvantaged sections of the society, India has excelled in synchronising obligations with rights and this gets a lot less credit than it actually deserves.

(The Author is a 2nd year undergraduate student at Symbiosis Law School, Pune)

[1] Francis Lieber, Manual of Political Ethics 383-411 (Theodore D. Woolsey ed., 2d ed. rev. 1911) (1838).

[2] Wong Wing v. United States, 163 U.S. 228 (1896 , Supreme Court of the United States).

[3] Yick Wo v. Hopkins, 118 U.S. 356 (1886, Supreme Court of the United States).

[4] Fong Yue Ting v. United States, 149 U.S. 698, 724-25 (1893, Supreme Court of the United States).

[5] Klaus Mittelbachert v. East India Hotels Ltd 1999 ACJ 287.

[6] Art.48-A, the Constitution of India

[7] Art.51-A(g), the Constitution of India

[8] Art.21, the Constitution of India

[9] Rural Litigation and Entitlement Kendra v. State of UP, 1985 AIR 652

[10] L. K. Koolwal v. State of Rajasthan and Ors, AIR 1988 Raj 2

[11] Murli S.Deora v UOI, (2001) 8 SCC.

[12]Abhilash Textile v Rajkot Municipal Corp, AIR 1988 Guj. 57.

[13] Art.19(1)(g), The Constitution of India.

[14] Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy , 16 (August 2010)

[15] Strauder v. West Virginia, 100 U.S. 303, 310 (1879, Supreme Court of the United States).

[16] United States Constitution,1788, Nineteenth Amendment 1920

[17] Duncan v. Lousiana, 391 U.S. 145 (1968, Supreme Court of the United States).

[18] Mirror Now News, The number of females in the Indian Armed Forces is alarmingly low, March 2018, available at https://www.timesnownews.com/mirror-now/society/article/females-women-ratio-indian-armed-forces-navy-air-force/207181

[19] Firstpost, NSG to Induct Women ‘Black Cat’ Commandos, October 2012, available at https://www.firstpost.com/india/nsg-to-induct-women-black-cat-commandos-492889.html

[20] Deeptiman Tiwary, Jayalalitha,Mayawati Say No To Woman Commandos, Times of India , October 17,2012.

 

 

 

 

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