This article was written by Monalisa Sarkar, a student of WBNUJS.
ORIGIN OF THE FUNDAMENTAL DUTIES
Even before the Fundamental Duties were injected into the Constitution of India through the 42nd Amendment, in the case of Chandra Bhawan v. State of Mysore held, it was stated by Hedge J. that –
“It is fallacy to think that under our Constitution there are only rights and no duties. Provisions of Part IV enable the legislatures and the Government to impose various duties on the citizens.”
The proposal to amend the Constitution in order to bring in the concept of Fundamental Duties was proposed during the national emergency under Indira Gandhi and subsequently a committee was formed with Sardar Swaran Singh as the Chairman, and this committee accordingly came to be known as the Sardar Swaran Singh committee (henceforth ‘the Committee’).
The 42nd Amendment to the Indian Constitution brought in the concept of Fundamental Duties, which were added as a recommendation made by the Committee. Broadly speaking, they form a part of non-justifiable duties which exempts them from being liable to be imposed by law. They primarily were implemented with the view of instilling a sense of moral responsibility among the citizens of India.
The initial amendment brought in only ten Fundamental Duties and subsequently the eleventh Fundamental Duty was introduced by the 86th Amendment in 2002 which imposed a duty on every parent or guardian to ensure the education of their children, between the age of six to fourteen years.
Theses Fundamental Duties are in consonance with the mandate laid down under the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. However, these duties are present in the form of a Code of Conduct thereby making them non-enforceable by law. Also due to the complex terminologies, this has become quite indistinct for the common Indian. One such example being the inability of a common citizen to understand the idea of ‘humanism’ – these ideas can only be communicated through simplification therefore their implementation remains equally unrealistic.
The Verma Committee, which has made recommendations to the list of the Fundamental Duties, once stated that:
“Essentially all that is contained in the fundamental duties is just a codification of tasks integral way of life.”
Being a significant part of the structure of the Indian Constitution, these reflect the ideas that form a part of the Indian heritage preached by saints and philosophers over a period of many years. The primary objective behind implementation of the same is to ensure proper behaviour by every member of the society which would further ensure societal excellence.
FACETS OF FUNDAMENTAL DUTIES
A myopic overview of this whole idea of injecting Fundamental Duties in the Indian Constitution would require a citizen to respect the ideas promoted by the Constitution, instilling a feeling of fellow brotherhood, refraining violence etc. One could say “these duties are somewhat like a prayer and a pledge in the forum of his conscience.” The idea behind making them non-justifiable was to instil a feeling of patriotism among the citizens rather than making non-compliance a punishable offence.
That being said, the role of Fundamental Duties still remains substantial since they form a part of judicial interpretation machinery. There have been previous instances where the courts have taken this approach. The courts can also direct the States to use the mandates laid down under the Fundamental Duties in order to give effect to policy implementations e.g., in the case of M. C. Mehta, the court had directed the State to introduce compulsory education pertaining to preservation of environment under Article 51A of the Constitution.
Apart from being unenforceable, there are further no provisions which prevent the violation of these duties, neither they can be enforced by issuance of writs. However, since they are mentioned in the Constitution therefore there remains a scope of further amendment of the same. With a country like India with a diverse cultural and social heritage, the integration at national level becomes pertinent. In this context, the role played by article 51A(c) becomes vital in all aspects.
Every citizen owes a duty to himself. Just because Fundamental duties are non-enforceable their importance cannot be unseen considering the fact that – the word ‘Fundamental’ has been prefixed both in Part III and Part IV of the Constitution. Moreover, the Government is under an obligation to spread awareness among citizens concerning Fundamental Duties.
In light of this, the recommendation laid down by Justice Verma Committee lays down certain compulsory obligation which states that, every citizen has a duty to vote in election thereby ensuring the proper functioning of the Indian Democratic system, duty of the State to make people aware of their Fundamental Duties, respect the rights of minorities and every fellow Indian citizen, and compulsory education of children.
Making a detailed analysis of the above discussion, it can be inferred that the State along with the citizens has an equal obligation towards ensuring the proper implementation of these Duties. Moreover, the Fundamental Duties can only be made enforceable when they are supplementing a Fundamental Right, whereas individually they cannot be enforced.
That being said, the active participation of the citizens in any democratic polity acquires paramount importance since this becomes an essential factor in giving effect to a lucid government structure. By acknowledging their responsibilities, the citizens can best contribute towards the upliftment of the society at large. The enforceability can however be brought about in an effective manner only through stringent legislations.
One of the primary functions the law aims at performing involves the balancing of various conflicting interests in the society. Albeit there are other functions as well, but in the long run all its functions converge towards one common cause which is to maintain balance in the society. While addressing this issue, one major question that needs to be answered is – how does this reconciliation of conflicting interests take place? The fact that needs to be noted here is that, the protection extends only to those laws which are concerning a citizen’s property, life, reputation etc. When any interest gets legal recognition then it takes the form of right.
A duty finds its source from an existing right. Therefore it can very well be deduced that if duties are complied with duly, then violation of duties can also be avoided. Seeking the enforcement of right without the willingness on the citizen’s part to perform their duties will make the entire social structure diluted.
From a practical viewpoint, duties are nothing but a set of moral obligations which are important to maintain proper social structure. Otherwise the very foundation of the entire democratic structure will be shaken. When the constitutionality of laws is in question then the consideration of the relevance of directive principles along with the Fundamental Rights as well as Fundamental Duties becomes equally important.
The enforcement of Fundamental Duties can be brought about only by implementing constitutional machinery. “Constitutional enactment of Fundamental Duties” should be used as an effective tool by courts to ensure proper State action in consonance with the mandate laid down under the Constitution of India. The Duties listed under Article 51A should be used as an active guide in order to bring about a well structured legislative and executive mechanism which will be applicable to both governmental and non-governmental organisation.
K. Koolwal case made a crucial observation pertaining to Fundamental Duties in which the Rajasthan High Court stated that, Fundamental Duties in effect actually confer the right upon a citizen to enforce the duty that the State is bound to perform towards him. This also extends to all forms of agencies, local or statutory bodies brought into effect by the operation of any legislation.
This observation by the Rajasthan High Court seems fallacious since, the chapter dealing with fundamental duties solely concerns the citizens and are non-enforceable to that extent. This cannot be interpreted to be equivalent to an individual’s right to seek remedy in a court of law against the State. The State cannot be asked to perform a duty with respect to what has been laid under Article 51A. Or to put it in another way, how can the State enjoying a particular right be asked to fulfil the corresponding duty?
Taking into consideration the non-enforceable nature of the fundamental duties, in my view, ideally the courts should not even be taking up matters pertaining to these issues. If any citizen at all has to move the court seeking remedy against the State then the same shall be done in pursuance of Article 32 or 226 where it would fall under the ambit of violation of their right rather than imposition of duty upon the State.
Another important question while dealing with this issues remains to be the nature of this list i.e., whether this list is exhaustive in nature? If it is exhaustive then does it mean that the citizens do not owe any other duty towards the State except for those which have been listed under Article 51A? Also, the question that whether only citizens are under an obligation to perform these duties remains unanswered.
CRITICISMS OF THE EXISTING SYSTEM
For every right duly acknowledged in the eyes of law, there always exists a reciprocal duty which lays down a particular code of conduct thereby limiting our actions within societal standards. That is to say, the concepts of right and duties go hand-in-hand. Deviance from such standards would amount to violation of a right associated with that duty. Therefore, by adhering to theses standards we essentially protect someone else’s right. Therefore whenever there is a breach of a duty and the societal balance gets disrupted, the law seeks to counterbalance the disruption since this balancing nature forms the “functional aspect” of an effective legal system.
In the ambit of “jurisprudential necessity”, it can be inferred from the above discussion that a right and its subsequent duty do not vest in the same person concerning the same subject matter. If both the right and duty was vested in the same person then, an individual’s own right will be violated by his own non-compliance with a Fundamental Duty thereby leading to a conclusion that, in case where a person’s rights get violated, then he would have to sue himself which is fallacious.
In practical essence, all the mandates which form the ingredients of the Fundamental duties is actually a reflection of the ideal code of conduct that an Indian citizen is expected to follow in his everyday life. Scrutinizing Article 51A from a close viewpoint, it can be observed that these constituents are originally derived from ancient Indian tradition, philosophy, mythology and various religious directives. Although the intent behind introduction of these Fundamental Duties are undoubtedly noble and aims at bringing about betterment of the society, but one of the significant hindrances which continue to subsist is the fact that, they cannot be given the same force of a law.
Although theses duties cannot be enforced in any court of law through Mandamus or any other writ for that matter, they however still remain effective in providing guidance for the interpretation of diverse legal and constitutional impediments.
In the absence of any effective deterrent, the responsibility remains vested with the citizens to perform their part diligently in the effective execution of theses decrees.
The importance of Fundamental Duties as has been retreated by the Supreme Court on various occasions, lies in the fact that, it imposes a duty on the State as well as the citizens. The opening lines on the chapter on Fundamental Duties states that “it shall be the duty of every citizen of India,” however in practical construction, the courts have extended this obligation to the State as well. This approach is fallacious since, the State and the citizens are different legal entities and therefore their obligations cannot be inter-linked. As discussed above in this paper, a right and its corresponding duty cannot be imposed on the same person, going by this same logic, the State does not enjoy any Fundamental Right therefore cannot be held liable for the carrying out of any Fundamental Duty.
The Court has also held on previous occasions that, the citizen’s collective duties are a reflection of the State’s duty. If this presumption is held valid then, in consonance with our discussion above, the State can also enjoy Fundamental Rights which again in the practical scenario is a logical fallacy.
Fundamental Duties help in ensuring a free and healthy society whereby the commission of any sort of non-acceptable activity can be prevented by making the citizens aware of their responsibilities towards the society.
The eleventh Fundamental Duty which ensures compulsory education of children is a massive step towards ensuring promotion of human rights thereby eradication social injustice which has been prevalent for long in the Indian society. These Duties essentially lay down ideals as to how an Indian citizen can contribute towards the betterment of society at large. The primary objective being making the citizens aware of the duties that they owe towards the country. It is very essential to promote a spirit of common brotherhood among all the citizens irrespective of their caste, creed, sex, religion or place of birth. This will be a huge step towards eradicating societal violence.
Every right has a reciprocal duty, so is to say, they are the two sides of the same coin. Although the Fundamental Duties are primarily unenforceable, however the Supreme Court in the year 1922 held that if in the process of determining the constitutional validity of any law in question, the fulfilment of any Fundamental Duty becomes an essential ingredient then the same will be considered reasonable with respect to Article 14 or 19 thereby saving the validity of such law.
Irrespective of the justification laid down in support of making Fundamental Duties non-justifiable, the pertinence of implementation of the same cannot be ignored since more than at an individual level, violation of the same leads to a disrupt in the societal level. Violation of Fundamental Duties to be performed by individuals cannot always be identified. Therefore in reality its enforcement becomes difficult since identification of every single instance when such violation takes place is not feasible.
Some of the Fundamental Duties falling within the purview of Article 51A have been incorporated within certain other statues and legislations whereby, to some extent they become mandatory to be adhered to in order to enjoy the corresponding Fundamental Right associated with the Duty under Part II of the Constitution. People should be made aware of the various Fundamental Duties which form a part of general awareness through sensitisation programs.
In my opinion, if Fundamental Duties have been explicitly drawn out then for the effective implementation of the same, there should exist some proper mechanism in the Constitution. Otherwise the purpose for which these Duties have been incorporated becomes redundant. In the present context, there exists no specific legislations guiding the proper implementation of these Fundamental Duties. However, a conjoint reading of Article 248 and Entry 97 of the Union List of the Constitution leaves the scope for the inclusion of the matter at hand since it is a residuary list.
The general view of the society reflects that people are much more aware about their rights than their duties. To be more accurate, citizens are somewhat negligent towards their duties. In this scenario the implementation of a stringent legislation becomes a matter of noteworthy pertinence in order to give desired effect to the execution of Fundamental Duties.
Chandra Bhawan v. Stat e of Mysore, (1969) 3 SCC.
Om Prakash v. State of U.P, (2004) 3 SCC 402.
Javed v. State of Haryana, (2003) 8 SCC 369.
C. Mehta v. Union f India, MANU/SC/1073/1998.
Dasarathi v. State of Andhra Pradesh, MANU/AP/0117/1985.
AIIMS Student Union v. AIIMS, (2002) 1 SCC 428.
Hon’ble Shri Rangnath Mishra vs. Union of India (UOI) and Ors., MANU/SC/0563/2003.
K. Koolwal v. State of Rajasthan, AIR 1988 Raj 2, 4.
Rural Litigation and Entitlement Kendra v. State of U.P, 1986 Supp SCC 517.
The Constitution of India, 1950.
Arvind P. Datar, Commentary on the Constitution of India (2nd ed., 2007).
Subhash C. Kashyap, Our Constitution (5th ed. 2011).
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 Pankaj Tyagi, Importance of Fundamental Duties, Slide Share, https://www.slideshare.net/thepankajtyagi/importance-of-fundamental-duties.
 Saidul Naik, Fundamental Duties – Its Significance and Drawbacks in Indian Constitution, Appsc Group (May. 25, 2014, 3:32 AM), http://appscgroup.blogspot.in/2014/05/fundamental-duties-its-significance-and-drawbacks-indian-constitution-for-bank-exams-upsc-appsc-jobs-in-andhra-pradesh.html.
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 Subhash C. Kashyap, Our Constitution 46-48(5th ed. 2011).