Fundamental Duties

Abstract 

Fundamental duties were incorporated in Part IV-A of the Indian Constitution by the 42nd Amendment on the recommendations of Swaran Singh Committee and the eleventh duty was added to the ten fundamental duties by the 86th Amendment. The practice via which an individual has become a part of an institution like the State and the collective duty of the State towards a citizen, strengthens the notion of a responsible citizenry, ultimately to achieve progress and development of the society. The rule of jurisprudence is that every right has a corresponding duty. Gandhi, while commenting on the performance of duties had once said that:

“The true source of right is duty. If we all discharge our duties, rights will not be far to seek. If leaving duties unperformed we run after rights, they will escape us like will-o’-the-wisp, the more we pursue them, the farther they fly.”

The historical background of the evolution of rights and duties, an analysis of eastern jurisprudence and inefficacious implementation of fundamental duties advances the importance of fundamental duties. Though non-justiciable, they are rules of law.

The Supreme Court in Minerva Mills Ltd.v. Union of India recognised the proposition that although they are non-justiciable, they do hold significance –

“There may be a rule which imposes an obligation on an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a corresponding right in another person. But it would still be a legal rule because it prescribes a norm of conduct to be followed by such individual or authority. The law may provide a mechanism of enforcement. A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist despite of any problem relating to its enforcement. Otherwise the conventions of the Constitution and even rules of International law would no longer be liable to be regarded as rules of law.”

Introduction

An individual is the fundamental organ of a State and each organ is required to work unitedly to achieve the means of welfare State. An Individual plays a vital role in a State and its welfare and is entitled to exercise rights. India, the largest democracy in the world, whose Bible is the ‘Constitution’ enshrines in its Preamble for the “People of India”, the principles of Justice, Liberty, Equality and Fraternity[4]. Fundamental rights are guaranteed by the Constitution under Part III and have originated from a collective sourcing of other countries’ like USA, Britain, Australia and Canada. Pertinently, it is evident from the Preamble of the Constitution that it primarily focuses on rights in all spheres of life to shelter, protect and secure its citizens. Duties are counterparts of rights. Fundamental duties find their way into the Indian Constitution through the controversial 42nd Amendment.

In the present scenario, it is to be ascertained whether fundamental duties, although non-justiciable, can be means of achieving a responsible citizenry? Furthermore, assuming fundamental duties become justiciable, would they be the only touchstone of determining responsible citizenry?     

This article aims at presenting the antithetical aspects of the subject-matter.

Background

Jurisprudential and Mythological aspect of duties 

Duties are an ancient concept encompassed in the eastern jurisprudence as an aspect of human behavior known as “Dharma”[5], staunch admirers, of which were luminaries like Lokmanya Tilak[6] and Mohandas Gandhi. The concept of duties has its origin in the Vedas and they are in the form of religious commands. Epics like Bhagavad Geeta, Ramayana and Mahabharat, also enshrine duty as part of one’s Dharma. Thus, the eastern jurisprudence is duty oriented and right is considered as ancillary to duty or consequence of performing duty.

It is indisputable, that the framers of the Constitution did not deem it appropriate to incorporate duties in the text of the Constitution, when it was originally promulgated as there would have been several reasons for such omission in light of sufferance.

Incorporation of Article 51-A in Constitution 

These fundamental duties were introduced in Part IV-A by 42nd Amendment and after receiving recommendations from the Swaran Singh Committee. Some of the recommendations made by the Swaran Singh Committee Report[7] were rejected by the then Government like the non-compliance of the fundamental duties would be met with imposition of penalty or punishment on citizens and such punishment or law won’t be questioned in a court of law and duty to pay taxes to be included in Article 51-A.

AFTERMATH OF 42ND AMENDMENT

Whilst considering, the nature in which the fundamental duties were incorporated in the Indian Constitution during the period of Emergency with the 42nd Amendment coming into force and the majority of which was struck down by 44th Amendment[9] leaving fundamental duties untouched, thereby, indicating even then how essential fundamental duties were. The 42nd Amendment was a controversial amendment which tried to circumvent and supersede the landmark judgment of Kesavananda Bharati, and reaffirmed by Supreme Court in Minerva Mills Ltd. v. Union of India.

ARTICLE 51-A IN ACCORD WITH OTHER COUNTRIES AND LAWS

The inclusion of fundamental duties has brought our Constitution in line with Article 29(1) of the Universal Declaration of Human Rights and the same is also inspired by Article 59 of the 1977 Soviet Constitution and other Constitutions, Declarations and concepts. Thus, Article 51-A is in accord with the other countries and laws.

Further Developments 

JUSTICE VERMA COMMITTEE REPORT OF 1999

The ‘Committee to Operationalise Suggestions to Teach Fundamental Duties to the Citizens of India’ under the Chairmanship of Justice J.S. Verma recommended that “duty to vote at elections, actively participate in the democratic governance and to pay taxes should be included in Article 51-A.” This Report was directed towards the far-fetched goal of achieving responsible citizenry by emphasising on awareness regarding the provisions of fundamental duties and imparting the same through medium of education.

NATIONAL COMMISSION TO REVIEW THE WORKING OF CONSTITUTION

The National Commission to Review the Working of Constitution[15] was an advisory panel set up to pass its expert comments and suggestions on effectualisation of  fundamental duties of citizens determining the crucial question of whether Article 51-A served its purpose, and if not, where have people precisely failed in implementing Article 51-A? The Commission reiterated that “the first and foremost step required by the Union and State Governments is to sensitise the people and create a general awareness of the provisions of  fundamental duties amongst the citizens on the lines recommended by Justice Verma Committee.”

86TH AMENDMENT

The duty which was added to the Constitution after 1976, was incorporated vide 86th Amendment Act[16] is contained in Article 51-A(k) – the duty of every parent or guardian to provide opportunities for education to his child between the age of 6 and 14 years which corresponds to right to free and compulsory education in Article 21-A of the Constitution.

Importance of Fundamental Duties

Fundamental duties play an important role in India, seek to achieve set parameters of progress which cannot be achieved without citizens performing their duties. Expansion of  fundamental rights by judicial pronouncements has led to citizens only seeking enforcement of their rights without performing their duties.

“Every right has a corresponding duty” is imbibed in the very genesis of western jurisprudence in contrast with the ideology of eastern jurisprudence which can be inferred from the views of Mahatma Gandhi and Lokmanya Tilak.

In today’s world, it is particularly important that duties are practiced as a mode of civilisation and disciplined society. In line therewith, the authors now elaborate on:

How Fundamental Duties are a means of achieving responsible Citizenry? 

Before answering this question, it is important to know, who is a responsible citizen? A responsible citizen is the one who performs his social, moral, ethical obligations and his duty towards state and fellow citizens. Fundamental duties are the guiding principles for citizens to perform their duties and be responsible towards the State.

Though these duties are not themselves enforceable in courts nor their violation, as such, punishable, nevertheless, if a court, before which a fundamental right is sought to be enforced, has to read all parts of the Constitution, it may refuse to enforce a fundamental right at the instance of an individual who has patently violated any of the duties specified in Article 51-A[17]. In Javed v. State of Haryana[18], the Supreme Court held that fundamental rights have to be read with  fundamental duties and the Directive Principles of State Policy and they cannot be read in isolation.

It is pertinent to note that, merely because a rule is not backed by sanctions for disobedience, does not mean it has no importance. It is still regarded a rule of law that is expected to be followed[19]. This proposition was recognised in Minerva Mills Ltd. v. Union of India[20] –

“There may be rule which imposes obligation on an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a corresponding right in another person. But it would still be a legal rule because it prescribes a norm of conduct to be followed by such individual or authority. The law may provide a mechanism for enforcement of this obligation, but the existence of the obligation does not depend upon the creation of such mechanism. The obligation exists prior to and independent of the mechanism of enforcement. A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist despite of any problem relating to its enforcement. Otherwise the conventions of Constitution and even rules of international law would no longer be liable to be regarded as rules of law.”                

(emphasis supplied)

There are various legislations which give teeth to fundamental duties like the Prevention of Insults to National Honour Act, 1971, the Protection of Civil Rights Act, 1955, the Unlawful Activities (Prevention) Act, 1967, the Representation of the People Act, 1951, the Environment (Protection) Act, 1986, and the Forest (Conservation) Act, 1980 and indirectly impose obligations, provide for specifications, penalties and punishments and act as stringent regulations.

Thus, fundamental duties, though, non-justiciable, are in some or the other manner striving to achieve responsible citizenry and norms of a civic society.

The authors now elaborate on the aspects of enforceability of fundamental duties:

An important aspect other than enforceability is effectuation and implementation of Fundamental Duties, the effectuation is the ladder accompanied by elucidation and elaboration, awareness, inculcation, aspiration and implementation besides enforcement. All these aspects are taken into consideration for  fundamental duties to substantially help citizens to be responsible.

Elucidation and elaboration of fundamental duties will cover up for ambiguity in their description. Awareness is an aspect which requires much more attention in a country whose illiteracy rate is substantial; Inculcation can be taken care of by imparting education, organizing conferences and advocacy of these programmes via media. The fourth aspect that is aspiration, Inculcation precedes, and implementation follows aspiration, therefore, for the success of aspiration, Inculcation and Implementation are to be carried out with due diligence. Thereafter, implementation will be an easy task to follow.

In Mohan Kumar Sighnania v. Union of India , in order to uphold the constitutionality of amendment to the Services Rules of All India Services, the Supreme Court had a recourse to Article 51-A(j). Further, In Vellore Citizens’ Welfare Forum v. Union of India & Bandkhal and Surajkund Lakes matter, the Supreme Court recognised ‘the Precautionary Principle’, ‘the Polluter Pays’ principle as essential features of ‘sustainable development’ and part of environment law of the country in view of Articles 21 and 51-A(g). There are several cases, in which Supreme Court has considered the importance of  fundamental duties as a rule of law.

Now, that we have elaborated upon the need to constructively inculcate and effectuate the realisation of the significance and implementation of the fundamental duties, the authors now wish to throw light upon the constitutional and precedential significance of the fundamental duties. They have created their own unique zone/position by finding a predominant spot in plethora of case laws and have established that fundamental duties, though non-justiciable are as paramount and as relevant as the fundamental rights are under the Indian Constitution.

It is pertinent to note that, there is absolutely not even the slightest spur of a doubt that insertion of Article 51-A was much needed and that the then ruling government formed by the Congress Party headed by  Mrs Indira Gandhi took a positive step towards the overall development and progress of the nation by taking the initiative to introduce in the Constitution, ten  fundamental duties by virtue of the 42nd Amendment Act, 1976 (the eleventh duty was added later by effect of the 86th Amendment Act, 2002). The fact that the initiative pointed towards a positive direction was further strengthened by many indications which are discussed by the authors as below:

The Constitution provides for both rights and duties. The critics who say that the Constitution contains only rights and no duties have not had a close and careful look at the Constitution which also gives sanction to traditional duties;

The introduction of Article 51-A created a strong base for a concrete national character and strong harmony among all the citizens.

The enforcement of fundamental rights is, in a way, dependent on the extent or degree of care taken to follow fundamental duties. Because, if an individual has approached a court of law to seek enforcement of his fundamental right(s) then the court may reject to do so if it finds out that the individual has patently violated his fundamental duty. The case would then not lean in his favour in such a situation.

Fundamental duties, which are obligatory in nature inculcate and instill a sense of obligation and discipline amongst the citizens towards their duties. They serve as a constant reminder to the citizens that there exists a balance between rights and duties and merely assertion of rights is incorrect without being responsible for abiding by one’s duties especially when the supreme law of the nation has prescribed those duties.

They also act like a warning signal to potential criminals for preventing them from carrying out anti-national and anti-secular activities thereby simultaneously providing a platform to citizens for active participation in the society and playing a constructive role in its development.

The Court by considering fundamental duties can also save a law from being declared as unconstitutional and declare it as reasonable if the law incorporates any of the eleven duties. This is how it can be used to determine the constitutionality of a law.

The Supreme Court in AIIMS Students’ Union v. AIIMS  has held that fundamental rights and fundamental duties should be given equal importance. Furthermore, The Supreme Court in quite a few cases has been seen protecting the  fundamental duties which only goes to show that the  fundamental duties have an important status in our society and that the judicial reforms and introduction of Article 51-A via the 42nd Amendment Act and 86th Amendment Act were not bad in law or unnecessary. On the other hand, they have done something positive for the country if at all they have done something.

In M.C. Mehta v. Union of India[26], the Supreme Court made it compulsory for all educational institutes to organise a one-hour lecture on protecting and preserving the natural environment and made the Central Government duty-bound to make this a rule in all such institutes and make it a part of their curriculum and issued certain directions in general to the Central Government and citizens on maintaining a healthy ecology and preserving the natural environment;

With a view to strike a balance between  fundamental rights and  fundamental duties, the petitioner in Rangnath Mishra v. Union of India addressed a letter to the President of India to pass directions to the State Government to raise awareness by educating citizens on fundamental duties. This was taken up by the Supreme Court as a writ petition when at the same time the National Commission after reviewing the Constitution submitted its report to the Government which recommended the Government to create awareness among citizens and follow the procedure as laid down in the Justice Verma Committee Report for implementing the  fundamental duties;