Rights and responsibilities: the common good and national security

Detail

1. Why rights bring responsibilities

• A right is a claim that society accepts and the state protects. It works only if others hold back from violating it.
• So every right also places a duty (an obligation) on the person who holds it, on other people and on the state.
• NCERT lists four duties that come with rights:

#	Duty	Core idea	Indian legal anchor
1	Protect the common good	Shared resources must last for future generations too	Art. 48A; Art. 51A(g)
2	Respect others' equal rights	My right ends where yours begins	Reasonable limits in Art. 19(2)
3	Balance rights that clash	Weigh one right against another	Puttaswamy (2017); IT Act s. 66E; BNS s. 77
4	Stay alert to curbs	No right is absolute, so watch how the state limits it	Art. 22; judicial review

2. Duty 1: protect the common good

• Common good means shared things that benefit everyone and belong to no one person. NCERT's examples are:
• the ozone layer;
• clean air and water;
• green cover (forests);

• ecological balance (the balance of nature).

• These must be protected for future generations as well as for us. This links to the idea of inter-generational equity (fairness between today's people and those not yet born).

• Constitutional anchors:
• Art. 48A is a Directive Principle (a guideline the state must try to follow, though courts cannot enforce it). It asks the state to protect and improve the environment, forests and wildlife.
• Art. 51A(g) is a Fundamental Duty of every citizen: protect and improve the natural environment (forests, lakes, rivers and wildlife) and have compassion for living creatures.
• Both were added by the 42nd Amendment (1976).

3. Duty 2: respect others' equal rights

• If I claim a right, I must accept that others have the same right.
• Example: free speech does not let me incite a crowd to kill my neighbour.
• The saying "one man's rights end where the other man's nose begins" sums up this idea.
• This is close to J.S. Mill's harm principle: the state may limit a person's freedom only to stop harm to others.

4. Duty 3: balance rights that clash

• Two valid rights can pull in opposite directions. Then one must be weighed against the other.
• Example: privacy versus expression.
• Suppose someone photographs a person bathing and posts the photo online.
• Freedom of expression does not cover this. It violates the right to privacy.
• Privacy is a Fundamental Right under Art. 21, as held in K.S. Puttaswamy v. Union of India (2017, nine judges).
• IT Act 2000, s. 66E punishes capturing or sharing images of a person's private area without consent.

• Bharatiya Nyaya Sanhita (BNS) 2023, s. 77 punishes voyeurism (watching or recording a woman in a private act). This was earlier IPC s. 354C.

• Example: expression versus reputation.

• In Subramanian Swamy v. Union of India (2016), the Court upheld criminal defamation (IPC ss. 499-500).
• It treated reputation as part of Art. 21, and held it can reasonably limit free speech under Art. 19(2).

5. Duty 4: stay alert to curbs

• No right is absolute. The state may limit rights for public order, security or morality.
• Citizens must watch whether a limit is reasonable or whether it quietly takes the right away.
• This duty links directly to the national-security debate in section 7 below.

6. Fundamental Duties: the constitutional counterpart

• Art. 51A (Part IVA) lists the Fundamental Duties.
• They were added by the 42nd Amendment (1976), on the advice of the Swaran Singh Committee.
• There are now 11 duties.
• Courts cannot directly enforce them. They still help courts judge whether a law is reasonable.

• (Pointer: dpsp-fundamental-duties.)

• Gandhi's 1947 letter to UNESCO: he wrote that his mother, though not educated, taught him that all rights worth having come from duty well done.

• In Gandhi's view, rights come from doing your duties. They are not separate claims against society.

7. National security versus civil liberties

• Civil liberties are the basic freedoms that protect a person from the state, such as speech, movement, privacy, fair trial and freedom from torture.
• NCERT's question: a state faces terrorist bombings. May it:
• curtail liberty;
• intercept mail or tap phones;

• use torture to get confessions?

• NCERT's test: does the person pose an imminent threat (a danger that is real and close at hand)? If not, such measures are hard to justify.

• Why caution is needed:
• Security powers are easy to misuse.
• Governments can turn authoritarian (rule by force, without answering to the people).
• Measures meant for terrorists can end up used against ordinary citizens.

8. Article 22: protection even after arrest

• Ordinary arrest (Art. 22(1)-(2)):
• The arrested person must be told the grounds of arrest.
• The person has the right to consult and be defended by a lawyer of their choice.
• The person must be produced before the nearest magistrate within 24 hours, not counting travel time.

• No further detention is allowed without the magistrate's order.

• Preventive detention (Art. 22(3)-(7)) is the exception.

• Preventive detention means jailing someone to stop a future offence, not to punish a past one.
• The rights in Art. 22(1)-(2) do not apply to it.
• Detention beyond 3 months needs the approval of an Advisory Board (a panel of persons qualified to be High Court judges).
• The detainee must be told the grounds as soon as possible and allowed to make a representation (a written objection).

9. Indian security laws and the safeguards on them

(a) National Security Act (NSA), 1980

• This is a preventive detention law.
• It allows detention to stop actions harmful to the security of India, public order or essential supplies.
• It works within Art. 22(4)-(7), with Advisory Board review.

(b) Unlawful Activities (Prevention) Act (UAPA), 1967

• 2019 amendment, passed in August 2019:
• Before 2019, only organisations could be named "terrorist organisations".
• After 2019, the Centre can also designate individuals as terrorists [6].

• The grounds are the same as for organisations: committing, preparing for, promoting or being otherwise involved in terrorism [11].

• Designations so far:

• September 2019: the first four individuals were designated: Masood Azhar, Hafiz Saeed, Zaki-ur-Rehman Lakhvi and Dawood Ibrahim [6].
• July 2020: nine more [7].
• October 2020: eighteen more [8].

• Their names go into the Fourth Schedule of UAPA [7][8].

• Bail bar, s. 43D(5):

• Bail must be refused if the court finds the accusation "prima facie true" (true at first sight, before a full trial).

• This makes bail very hard to get.

• Union of India v. K.A. Najeeb (2021):

• The Supreme Court held that s. 43D(5) does not stop a constitutional court from granting bail.
• This applies when the accused has spent a long time in jail and the trial is unlikely to finish soon.

• The reason is that Art. 21 includes the right to a speedy trial.

• Criticism: UAPA has low conviction rates compared with the number of arrests (verify with the latest NCRB "Crime in India" data).

(c) Armed Forces (Special Powers) Act (AFSPA), 1958

• What it does: in an area declared "disturbed", the armed forces get special powers.
• They can search and arrest without a warrant.
• They can use force, even fatal force.

• They are protected from prosecution unless the Centre gives prior sanction (permission).

• Jeevan Reddy Committee (2005): it recommended repeal.

• Areas where AFSPA has been fully withdrawn:
• Tripura: from 27 May 2015 [2].

• Meghalaya: from 1 April 2018 [2].

• Areas where AFSPA has been reduced:

• 1 April 2022: "disturbed areas" were cut in Nagaland, Assam and Manipur [3].
  • In Nagaland, the notification was withdrawn from 15 police stations in 7 districts.
  • In Manipur, 15 police stations in 6 districts were taken out [2][3].
• 1 April 2023: a further cut in all three states. In Manipur this covered 4 more police stations [4].
• Assam: withdrawn from all districts except a few [12].

• Arunachal Pradesh: reduced to Tirap, Changlang and Longding districts and some police stations in Namsai [2][12].

• Government's reason: security in the North-East has improved. It reports a 64% fall in insurgency incidents (2024) compared with 2014 [5]. The current list of covered areas should be checked.

(d) Interception (phone tapping)

• PUCL v. Union of India (1997):
• Phone tapping violates privacy under Art. 21 unless it follows a fair procedure.
• The Court laid down safeguards for tapping under s. 5(2) of the Indian Telegraph Act, 1885. These were later written into the Telegraph Rules.

• Under those Rules, tapping orders were reviewed by a review committee made up only of senior government officials [9].

• Telecommunications Act, 2023:

• It replaces the Telegraph Act framework.
• Parliament passed it in December 2023: the Lok Sabha on 20 December and the Rajya Sabha on 21 December [9].
• Grounds for interception: security of the state, friendly relations with foreign countries, public order, and preventing incitement to offences [9].

• Suspension of services: the Act also allows telecom services to be suspended on similar grounds, which includes internet shutdowns [9].

• Safeguards are left to rules:

• The procedure, safeguards and time limits for interception are to be prescribed by the Central Government through rules. They are not written into the Act itself [9].
• Concern: safeguards that protect Fundamental Rights are left to the executive (the government) [9].
• In August 2024, the Department of Telecommunications released draft rules on interception, temporary suspension of services and cyber security [10].

(e) Surveillance and internet shutdowns

• Manohar Lal Sharma v. Union of India (2021), the Pegasus case:
• The case was about alleged spyware surveillance.
• The Court held that national security is not a "free pass" that lets the state escape judicial review (the courts' power to check whether government action is lawful).

• It appointed an expert technical committee under Justice R.V. Raveendran (retd.).

• Anuradha Bhasin v. Union of India (2020), the Jammu and Kashmir internet shutdown:

• Free speech and trade carried out over the internet are protected under Arts. 19(1)(a) and 19(1)(g).
• An indefinite shutdown is not allowed.
• Suspension orders must be published and reviewed, and must pass the proportionality test.

(f) Torture

• India signed the UN Convention against Torture (UNCAT) in 1997 but has not ratified it.

• Ratify means formally agreeing to be legally bound by a treaty. Signing alone does not do this.

• India still has no stand-alone anti-torture law.

• Under Art. 20(3), no accused person can be forced to be a witness against themselves. This bars confessions taken by force.

10. The Emergency lesson

• ADM Jabalpur v. Shivkant Shukla (1976), the "habeas corpus case":
• During the 1975-77 Emergency, the Supreme Court ruled 4-1 that no one could go to court to enforce Art. 21 while it was suspended.
• Justice H.R. Khanna dissented (disagreed with the majority).

• Habeas corpus is a court order to produce a detained person, so the court can check whether the detention is lawful.

• Overruled: Puttaswamy (2017) expressly overruled ADM Jabalpur. It held that life and liberty are inherent rights that the state does not grant.

• 44th Amendment (1978):
• Under the amended Art. 359, even during a National Emergency the President cannot suspend the enforcement of Arts. 20 and 21.

• It also replaced "internal disturbance" with "armed rebellion" as a ground for a National Emergency (Art. 352).

• (Pointers: emergency-1975, emergency-provisions.)

• The lasting safeguards:
• Proportionality: a limit on a right must have a legitimate aim, must actually help reach that aim, must be the least harmful option available, and must balance its harm against its benefit (Puttaswamy, Anuradha Bhasin).
• Judicial oversight: courts review security measures.

Prelims Hooks

• Art. 48A (DPSP: environment, forests, wildlife) and Art. 51A(g) (citizen's duty to protect the environment) were both added by the 42nd Amendment, 1976.
• Art. 22(1)-(2) (lawyer of choice, magistrate within 24 hours) does not apply to preventive detention. An Advisory Board is needed for detention beyond 3 months.
• UAPA 2019 amendment: allowed individuals to be designated as terrorists. The first four were designated in September 2019. Names go into the Fourth Schedule [6][7].
• AFSPA: fully withdrawn from Tripura (2015) and Meghalaya (2018) [2]. The Jeevan Reddy Committee (2005) recommended repeal.
• Case–principle pairs:
• PUCL (1997): safeguards for phone tapping.
• Anuradha Bhasin (2020): internet shutdowns must be proportionate and reviewable.
• Manohar Lal Sharma (2021): national security is no "free pass".
• K.A. Najeeb (2021): UAPA bail after long jail time.

• Subramanian Swamy (2016): criminal defamation upheld.

• Trap: India signed UNCAT in 1997 but has not ratified it.

• Trap: ADM Jabalpur (1976) was overruled by Puttaswamy (2017), not by Maneka Gandhi (1978).
• 44th Amendment (1978): Arts. 20 and 21 cannot be suspended even during an Emergency (Art. 359).
• Voyeurism is now BNS 2023 s. 77 (formerly IPC s. 354C). Privacy-violating images are covered by IT Act s. 66E.
• Telecommunications Act 2023: grounds for interception include security of the state and public order. Safeguards are to be prescribed by rules [9].

Mains Points

• Liberty versus security:
• Security laws such as UAPA, AFSPA and the NSA respond to real threats.
• But long detention without trial, the s. 43D(5) bail bar and AFSPA's sanction-based immunity can make the process itself the punishment.

• Way forward: time-bound trials (K.A. Najeeb), independent review of designations, and phased withdrawal of AFSPA as violence falls (the 2022-23 reductions [3][4]).

• Surveillance and the rule of law:

• The Telecommunications Act 2023 leaves interception safeguards to executive rules [9][10].
• Review is done by a committee made up only of officials [9].

• Reform proposals: prior judicial or parliamentary authorisation, a data-protection-style oversight body, and publishing shutdown orders as Anuradha Bhasin requires.

• Torture and accountability:

• Not ratifying UNCAT weakens India's human-rights record and makes it harder to get fugitives extradited from abroad.

• A stand-alone anti-torture law and ratification would make Art. 20(3) and Art. 21 real in practice.

• Rights and duties balance:

• Gandhi held that rights come from duty well done. Art. 51A reflects this idea, especially duties toward the common good such as the environment and future generations.
• But duties should not become a reason to dilute rights. The Emergency (ADM Jabalpur) shows why proportionality and judicial oversight must stay as safeguards.