33 Justiciability of fundamental duties

Dr. K Sita Manikyam

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AIMS OF THE CHAPTER:

  • To learn about the concept of fundamental duties and what they try to achieve.
  • To be able to understand the legal provisions for the enforcement of fundamental duties in India.
  • To be able to understand the enforcement of fundamental duties with the help of judicial pronouncements.

1. INTRODUCTION

The Fundamental Duties of citizens were given to the Constitution by the 42nd Amendment in 1976, leading to the recommendations of the Swaran Singh Committee that was constituted next to the government prior to that year. These duties were initially ten in number, Later on effort the Fundamental Duties were increased to eleven by the 86th Amendment in 2002, which further added on a duty that imposes on every parent or guardian to ensure that their child or ward was provided opportunities for education between the ages of six and fourteen years. The other Fundamental Duties obligate all citizens to value the nationalized symbols of mother India, together with the Constitution, to relish its inheritance, safeguard its multiple culture and assist in its defence. They as well compel all Indians to endorse the spirit of universal brotherhood, look after the environment and public property, widen scientific temper, abjure cruelty, and strive towards superiority in all spheres of life. People are honorably compelled by the Constitution to carry out these duties. On the other hand, the Directive Principles, which are non-justifiable, lacking any authorized permit in case of their infringement or non-compliance. There is suggestion to such duties in international instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, and Article 51A brings the Indian Constitution into consistency with these treaties.

2. HISTORICAL BACKGROUND

A concise historical background leading to the addition of article 51A in the Constitution of India desires to be set out. The Swaran Singh Committee selected by the Government for a assessment of the Constitution had suggested that definite Fundamental Duties and obligations which every citizen owed the nation be supposed to be included in the Constitution. These recommendations were implemented with the incorporation of the Government assumed office in 1977, the Constitution (44th Amendment) Act, 1978 was approved, whereby various amendments brought in by the 42nd amendment were undone. The conceptions of Fundamental Duties were derived from Article 29 of the Universal Declaration of Human Rights and also from the provisions in several contemporary Constitutions of foreign countries.

2.1. Recommendations of Swa ran Singh Committee

  • Sardar Swaran Singh Committee was shaped in the year 1976 to make recommendations regarding Fundamental Duties.
  • Committee suggested to include Fundamental Duties as a separate section in the constitution & stressed out the want to make people conscious of the duties they have to carry out along with enjoying rights.
  • In reality, this committee had only suggested eight Fundamental Duties but the government of that instant incorporated ten Fundamental Duties.

2.2. Some provisions that were not accepted of the committee

  1. The stipul ationtoentail penaltyor punishment for non -compliance of the fundamental duties.
  2. The decree by which a person is punished can’t be taken to the court of law as a subject of infringement of certain Fundamental Right.
  3. Duty to pay taxes Smust also be a Fundamental Duty of the citizens.

3. FUNDAMENTAL DUTIES UNDER INDIAN CONSTITUTION

Article 51A, which constitutes Part IVA of the Constitution, reads as under:

  • To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
  • To cherish and follow the noble ideals which inspired our national struggle for freedom;c)To uphold and protect the sovereignty, unity and integrity of India;
  • To defend the country and render national service when called upon to do so;
  • To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
  • To value and preserve the rich heritage of our composite culture;
  • To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
  • To develop the scientific temper, humanism and the spirit of inquiry and reform;
  • To safeguard public property and to abjure violence;
  • To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement.”
  • To provide opportunities for education by the parent or the guardian, to his child or a ward between the age of 6-14 years as the case may be. (It‟s the 11th Fundamental Duty added by the 86th Constitutional Amendment Act, 2002).

4. JUSTICIABILITY OR ENFORCEMENT OF FUNDAMENTAL DUTIES

The Fundamental Rights in Part III, the Directive Principles of State Policy in Part IV and the Fundamental Duties in Part IVA form a compendium and have to be interpret mutually. It is precise that there is no authorized consent to provide for breach or non- performance of Fundamental Duties. There is neither definite prerequisite for enforceability nor any definite prohibition. However, Fundamental Duties have an intrinsic factor of obligation as regards acquiescence. Out of the ten clauses in article 51A, five are positive duties and the other five are negative duties. Clauses (b), (d), (f), (h) and (j) require the citizens to carry out these Fundamental Duties energetically. It is not feasible to implement the Fundamental Duties and they should be left to the determination and desire of the citizens. However, in the case of citizens holding public agency, each and all Fundamental Duties can be enforced by appropriate legislation and departmental regulations of conduct. Appropriate sanctions can be provided for drift in respect of each Fundamental Duty and it is rather feasible to enforce the consent to against every citizen holding a public office. Likewise, sanctions be competent to be provided for qualified bodies such as the Bar Council of India, the Medical Council of India, the Institute of Chartered Accountants and the Institute of Engineers, etc.

Keep in the view of this, it is no longer correct to say that Fundamental Duties enshrined in article 51 A are not enforceable to ensure their implementation and are a mere reminder. Fundamental Duties have the element of compulsion regarding compliance. What is needed is to enact suitable legislation wherever necessary to require obedience of thedutiesbythecitizens, with legalsanctions . There is needf or comprehensive legislation in this area to ensure a faithful and effective implementation of the Fundamental Duties.

4.1 Judicial pronouncements

A number of judicial decisions are accessible towards the enforcement of definite clauses under Article 51A. Comprehensive legislation is required for clauses (a), (c), (e), (g) and (i). The remaining 5 clauses, which are refrain of basic human values, have to be developed among citizens through the education system by creating accurate and graded curricular contribution from primary level of education to the higher and professional levels. In Bijoe Emmanuel vs State of Kerala, AIR 1987 SC 8 at pp.751, 752 it has been held that there is no provision of law which obliges any one to sing the National Anthem nor is it disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung BUT does not join the singing. It is true that article 51A (a) of the Constitution enjoins a duty on every citizen of India “to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”. Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing. It was observed that there was no law enacted by Parliament making it obligatory to comply with article 51A (a). The Supreme Court allowed the petition filed by the children and directed the authorities to re-admit the children into the school.” In another matter the correctness of this decision has been doubted. The matter has been referred to a Constitution Bench of the Supreme Court, which would examine correctness of the decision and also many related aspect.

Mohan Kumar Singhania & Ors. v. Union of India & Ors., (1992) Supp.1 SCC 594, a dispute being laid to the constitutionality of the amendment in the policy. In this case officers in All-India Services were not taking the training sincerely consequential resulting in worsening of the services. Referring to clause (j) of Article 51A, which guidelines that each citizen of India to endeavor towards quality in all spheres of individual and cooperative activity so to facilitate the nation persistently rising to higher levels of attempt and achievement, it was held that the exertion taken by the Government in giving greatest significance to the training programme of the selected entities so that this privileged civil service being the highest service of the nation state not wasted and does not turn into ineffective during the training period in consonance with the provisions of article 51A (j).

In several cases, the Supreme Court has upheld the legitimacy of laws concerning to conservationism and environment and has prepared instructions binding the society and the State relied on the resource of authority to do so in article 51A. In Rural Litigation and Entitlement Kendra & Ors. v. A State of Uttar Pradesh & Ors., (1986) Supp. SCC 517, apprehended “Preservation of the environment and keeping the ecological balance unaffected is task which not only governments 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 51A (g) of the Constitution.”

In Rural Litigation and Entitlement Kendra, Dehradun & Ors. v. State of U.P. & AIR 1985 SC 652, in order to avert disproportion to natural science and danger of healthy environment being formed due to running of lime-stone quarries, the Supreme Court directed the quarries lessening being cancelled and lime-stone quarries being stopped down permanently. The guidelines were issued in concept of fundamental right to trade and business and the right to earn livelihood. Assigning overriding connotation to Fundamental Duties and quite placing the Fundamental Duties owing to citizens at large above all the fundamental right of some persons the court held that such conclusion would be conflicting. certainly cause hardship, “but it is a price that has to be paid for protecting and safeguarding the right of the citizens to live in healthy environment with minimum trouble of ecological equilibrium and lacking avoidable danger to them and to their cattle, homes and agricultural land and unnecessary exaggeration of air, water and environment”.

In Sachidanand Pandey & Anr. v. State of West Bengal & Ors., (1987) 2 SCC 295, the court uttered in unmistakable terms that whenever a problem of ecology is brought before the court, the court is clear to abide in mind article 48A of the Constitution and article 51A (g) which proclaims the Fundamental Duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have sympathy for living creatures.

In State of Punjab & Ors. v. G.S. Gill and Anr., (1997) 6 SCC 129, kindle the spirit of clauses (e) and (j) of article 51A and the Directive Principle contained in article 38 (1), the court reminded the administrators of the administration that they also primarily the citizens and, for that reason, their idea should be of national interest. The court apprehended that the Fundamental Duties compel the administrators of the management to be superior administrators.

In M.C.Mehta (II) v. Union of India & Ors., (1998) 1 SCC 471, article 51A containing Fundamental Duties of citizens was casting duties on the government and for issuing positive instructions over and over again with article 51A

In Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647 and Bandkhal and Surajkund Lakes matter, (1997) 3 SCC 715, the Supreme Court recognized the Precautionary Principle and the the Polluter pays principle as essential features of “Sustainable Development” and fraction of the environment law of the country. Article 21, Directive Principles and Fundamental Duty clause (g) of article 51A were relied on by the Supreme Court for spelling out an apparent consent to the State to safeguard and develop the environment and to preserve the forests and wild life of the country. The court apprehended it compulsory for the State Government to foresee, avoid and attack the causes of environmental degradation.

In State of U.P. Vs. Yamuna Shanker Misra & Anr., (1997) 4 SCC 7, is an fascinating case where the purpose of writing the confidential news and making entries in the quality rolls were understand in the light of article 51(j) as giving an opportunity to a public servant to develop superiority. The network of this Fundamental Duty was extend so wide by the court as to enchantment the eternal values of honesty, integrity, good conduct and efficiency getting superior in the performance of public duties and standard of quality in services persistently growing to privileged levels so as to be a successful means to control the services with officers of integrity, honesty, efficiency and devotion.

In Vishaka and others v. State of Rajasthan (AIR 1997 SC 3011) the Supreme Court set up t h a t it i s essential for security of working women from sexual harassment. This the classical exercise of the law making powers under article 141 of the Constitution laid: It is compulsory and useful for employers in work places as well as other responsible persons or institutions to watch confident guidelines to make sure the impediment of sexual harassment of women. It shall be the responsibility of the employer or other responsible persons in work places or other institutions to check or deter the commission of acts of sexual harassment and to grant the measures for the decree, agreement or trial of acts of sexual harassment by taking all steps necessary.

5. JUSTICE VERMA COMMITTEE

The Government of India allotted a Committee under the Chairpersonship of Justice J.S Verma, former Chief justice of India. The Committee attempted to scrutinize the issue of teaching of Fundamental Duties at all levels of education through development of the content and practice, particularly of school education and teacher education, as well as interventions through curricular, co-curricular and media inputs, both publish and electronic.

5.1. The Terms of Reference of the Committee were as follow

  1. To develop a package for teaching Fundamental Duties at primary secondary, senior secondary and university levels.
  2. To make a resolution, the activities as part of curriculum and co-curricular activities.
  3. To evaluate the exiting programme already being implemented by the NCERT under the national Curricular Framework and the want for identifying additional inputs into it.
  4. To develop programme packages for the tutoring of citizens through non- formal education / adult education programme / media (print, electronic, etc.)

5.2. Legal provisions for the enforcement of Fundamental Duties

The Verma Committee was aware of the fact that any non-operationalization of Fundamental Duties may not essentially be the lack of apprehension or non- availability of lawful and other enforceable provisions, but it was further a case of lacuna in the policy of implementation. It appropriates to catalog in short several of the legal provisions already accessible in regard to enforcement of Fundamental Duties. A synopsis of such legal provisions is given below:

  1. In order to make sure that no contempt is shown to the National Flag, Constitution of India and the National anthem, the Prevention of Insults to National Honour Act, 1971 was enacted.
  2. The Emblems and Names (Prevention of Improper Use) Act 1950 was enacted soon after independence, inter alia, to avoid offensive use of the National Flag and the National Anthem.
  3. In order to guarantee that the correct practice concerning the display of the National Flag is well implicit, the directions issued from time to time on the theme have been personified in Flag Code of India, which has been made accessible to all the State Governments, and Union territory Administration (UTs).
  4. There are a quantity of provisions in the existing criminal laws to ensure that the activities which encourage enemity among different groups of people onbasis of religion, race, place of birth, residence, language, etc. are a d e q u a t e l y punished. Writings, speeches, gestures, activities, exercise, drills, etc. aimed at creating a sense of uncertainty or ill-will amongst the members of other communities, etc. have been forbidden under Section 153A of the Indian Penal Code (IPC). Imputations and assertions prejudicial to the national integration constitute punishable offence under Section 153 B of the IPC.
  5. A public organization can be confirmed illegitimate association under the provisions of Unlawful Activities (Prevention) Act 1967.
  6. Offences associated to religion are covered in Sections 295-298 of the IPC .

5. CONCLUSION

The Supreme Court has worn the Fundamental Duties to support the Constitutional legitimacy of statutes which seeks to encourage the objects laid out in the Fundamental Duties. These Duties have been seized to be mandatory for all citizens, but these duties are twisted to be mandatory possibly, t h e subject matter to the State enforcing the same by means of a legal law. The Supreme Court has also issued commands to the State in this view, with a scrutiny to making the provisions successful and enabling citizens for appropriately performing their duties.

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Reference

  • Austin, G (2001) The Indian Constitution: Cornerstone of a Nation (New Delhi: Oxford University Press).
  • Baxi, U (1987) ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’ in Thiruchelvam N and R Coomaraswamy (eds) The Judiciary in Plural Societies (London: London Frances Pinter).
  • Michelman F (2003) ‘The Constitution, Social Rights and Liberal Political Justification’ International Journal of Constitutional Law 1 (1), pp 13-34.
  • Pande, B B (1989) ‘The Constitutionality of Basic Human Needs: An Ignored Area of Legal Discourse’ Supreme Court Cases Journal 4(1).
  • Roy, D (1991) ‘Rights of Child Labourers: Ethics, Production and the Nation State’, Economic and Political Weekly, 31 January 1998, p 1345.
  • Shah S B (1999) ‘Illuminating the Possible in the Developing World: Guaranteeing the Human Right to Health in India’ Vanderbilt Journal of Transnational Law 42, p 435.