The concept of duties is not alien to India. In fact, the Indian tradition through the ages has laid greater emphasis on duties than on the rights of citizens. Even so, the framers of the Indian Constitution did not think it necessary to incorporate the fundamental duties specifically in the Constitution. To them, these were basic and inherent values which were being practised by each and everyone. They were an integral part of the Indian ethos and it was taken for granted that they would be observed tenaciously. Moreover, the existence of such duties was implied in the Preamble to the Constitution which contains the aspirations and ideals of our founding fathers and the commitment of the Constitution towards realising them.
However, with the lapse of time, degradation of values became blatantly evident leading to the proliferation of rights and dilution of corresponding duties. The legislature felt the need to amend the Constitution and incorporate these values as fundamental duties. Ironically, the fundamental duties were introduced during the period of national Emergency. These duties were incorporated in Part IV A of the Constitution consisting of the sole article 51-A. Article 51-A lists eleven fundamental duties. Significantly, such duties were not part of the original Constitution but were introduced through the 42nd Amendment Act 1976. Over the years, these duties have faced criticism from several eminent jurists, including Homi Seervai, who have termed them to be both “innocuous” and “ludicrous”. These duties have no legal form or sanction. Furthermore, the Constitution is silent on its enforceability and it is debatable whether the fundamental duties by themselves are justiceable and can be directly enforced in a court of law. Perhaps, the Supreme Court may, by innovative interpretation, make certain duties partly justiceable.
Even before the fundamental duties were incorporated in our Constitution, the apex court had observed that the concept of duties is implicit in the Constitution. In Chandra Bhavan Boarding and lodging, Bangalore v. State of Mysore, it was held, “It is a fallacy to think that under our Constitution there are only rights and no duties. While rights conferred under Part III are fundamental, the directives given under Part IV are fundamental in the governance of the country.”
In Sachidanand Pandey v. State of West Bengal the Government of West Bengal, the court expressed that whenever a problem of ecology is brought before the court, the court is bound to bear in mind Article 48A of the Constitution and Article 51A(g) which proclaims the fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. Policy decisions taken by the courts are not ordinarily to be interfered with by the courts. But if it is a question of giving effect to the Directive Principles and the fundamental duty, the court is not to shrug its shoulders and say that priorities are a matter of policy and are not to be touched by the court, the court may always give necessary directions so as to secure implementation of directive principles and fundamental duties.
In the Kanpur tanneries’ case, the Supreme Court outlined the importance of the fundamental duty of protecting the environment when it came to cases involving environmental harm. This was followed by the second MC Mehta case where Venkataramiah, J. held that there was a duty cast upon the Government to issue directions consistently with Article 51-A. Consequently, he issued directions to the state at Para 24 of the judgment.
Thus, the Supreme Court on a number of occasions, particularly in those cases dealing with the ecology and environment, has issued directions binding the state as well as the citizens under Article 51-A.
The relationship between fundamental rights and fundamental duties was first considered, though very indirectly, in the case of Balaji Raghavan v. Union of India, where the court held, “The theory of equality does not mandate that merit should not be recognised. Article 51-A speaks of the fundamental duties of every citizen of India. In this context, we may refer to the various clauses of Article 51-A and specifically clause (j) which exhorts every citizen “to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement”. It is, therefore, necessary that there should be a system of awards and decorations to recognise excellence in the performance of these duties.”
The apex court over the years seems to have given increasing importance to the fundamental duties, initially resorting to it only in cases of environmental violations whereas today the duties along with the directives are ‘kept in mind’ while assessing legal restrictions placed on the fundamental rights.
The National Commission to Review the Working of Constitution has prepared a consultation paper dealing with the steps towards effectuation of fundamental duties and points out that awareness, inculcation, implementation and enforcement are the steps by which the fundamental duties can be effectuated. The commission has observed that both the state and the society have failed to provide adequate means and mechanisms for citizens to identify, imbibe and practise the culture of the constitution. This failure has been mainly responsible for the low level of effectuation of the fundamental duties. The commission also outlined the importance of inculcating Constitutional values among youths through teaching programmes both in primary and secondary schools as well as universities and institutes of higher learning. To this end, the commission recommended that schools conduct one-hour classes for imparting the fundamental duties enshrined in Article 51-A three days a week, conduct periodical essay and elocution competitions on value-based topics and also annually award students who stand first in translating the values into reality. Also, the commission has recommended for legislations to bind citizens holding public offices with justiceable fundamental duties with appropriate sanctions to enforce them. It has also called for the extension of such sanctions to professional bodies such as Bar Council of India, Medical Council of India, Institute of Chartered Accountants and Institute of Engineers. As for the implementation of the duties, the commission has recommended a number of substantive amendments to Article 51-A such as:
(i) The opening words of Article 51-A should be reworded as follows: “Every citizen of India shall implement in daily life the following duties”
(ii) Article 51-A should be shifted to Part II (citizenship) of the constitution of India
(iii) Suitable changes may be carried out to make fundamental duties form a compendium with the fundamental rights.
However, the commission has called for first educating the citizens regarding the spirit of the Constitution and then think of amending it.
(The writer is an Additional Central Government Standing Counsel, Central Administrative Tribunal and a Distinguished Adjunct Professor of Law and Media Studies, School of Mass Communication, KIIT University. Views are personal)
