The Attorney General for India recently submitted a written note to the Supreme Court of India in response to a notice issued to the Centre in the case of Durga Dutt v Union of India & ors, wherein the petitioners prayed for the Court to direct the Centre and states to make comprehensive laws ensuring adherence to Part IV-A of the Constitution. They sought regulations to sensitise citizens and spread awareness about the purpose and importance of Article 51A of the Constitution of India. This petition is backed by the apex court’s 2003 judgment in Ranganath Mishra v Union of India, wherein the Court observed that fundamental duties should be made enforceable, both legally and socially.
The framers of the Constitution didn’t profoundly address the requirement of fundamental duties, as their key aim was to ensure that citizens were sheltered from the State’s arbitrary power through fundamental rights. However, some members contended for the necessity of balancing citizens’ rights and their obligations towards others. Despite this, the idea was vetoed, with the notion that such civic duties would be naturally charted.
Twenty-six years later, on the recommendation of Swaran Singh Committee, the legislature appreciated the importance of explicitly listing such duties. Consequently, Part IVA (article 51A) was added by the 42nd constitutional amendment act of 1976, sculpted after the Constitution of the USSR. Currently, Article 51A enumerates eleven duties, with 51A(k) being inserted by the 86th Constitution Amendment Act of 2002.
Fundamental duties, unlike fundamental rights, are non-justiciable civic entitlements. These duties are the basic norms of democratic conduct and behavior.
The Swaran Singh Committee in its report had made certain recommendations including educating citizens, especially students, about these duties, and raising awareness about the importance of respecting the Constitution and promoting national interest. Initially, it recommended that fundamental duties be made legally enforceable through appropriate laws, as well as penalties for violation of certain duties.
However, the recommendation of penalising the violation of such duties was rejected by both the courts and Parliament due to the very nature of the duties, which deal with citizens’ moral and civic consciousness. There are concrete difficulties in legally enforcing them, and challenges in determining how a citizen can be legally penalised for failing to uphold duties like fostering scientific temper or protecting public property, or striving towards excellence in all spheres of individual and collective activity.
The petitioners in the Durga Dutt case argued that fundamental rights and duties aren’t mutually exclusive; the violation of one can lead violation of the other. For instance, when protesters block roads during protests or strikes, they violate their fundamental duty towards the nation, and, at the same time, impede the fundamental rights of others under Articles 14, 19 and 21 of the Constitution.
However, it can’t be ignored that fundamental duties, if enforced, can clash with fundamental rights as well. Here, the case of Bijoe Emmanuel v. State of Kerala (1986), in which three children belonging to the Jehovah’s Witness community were expelled from schools for refusing to sing the National Anthem, can be cited wherein the apex court protected the right to free speech over the duty to respect national symbols. The Court held that they had not committed any offence under the Prevention of Insults to National Honour Act, 1971, which essentially gives effect to Article 51A(a), because they stood up respectfully when the National Anthem was being sung. The Court held that the right to freedom of speech and expression includes the freedom to remain silent. It was in response to this ruling that the above-mentioned writ petition in Ranganath Mishra v. Union of India was filed.
Even before Ranganath ruling, the Indian government already set up a Committee in 1998 to teach fundamental duties to the citizens of the country (Justice Verma Committee). This Committee gave suggestions including developing educational packages for various levels and training programs for teachers and citizens through formal and non-formal education.
Justice Khanna in the Durga Dutt case, referring to certain legislation, mentioned that there are already laws which give effect to fundamental duties such as Section 153A of the Indian Penal Code for maintaining communal harmony.
However, it pertinent to note that all eleven fundamental duties, while legally placed on an identical footing, have varied wavelengths in spirit. These have even been used by the judiciary as guiding values for interpreting provisions or adjudicating certain cases. Some of these duties, such as those treasured in Article 51-A (a), (f), (g) and (i), advance more determinate aims and have established legislative recognition. Other duties, such as the ones under Article 51-A (b), (h) and (j), aim to instil ideals or beliefs that require multi-faceted slants.
There are laws which specifically deal with such duties. For instance, with the aim of enforcing the fundamental duty “to safeguard public property and to abjure violence”, we have the Prevention of Damage to Public Property Act, 1984.
Then, we have the Indian Treasure Trove Act, 1878; the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (AMASR Act); and the Antiquities and Art Treasures Act, 1972 which give effect to clause (f) of Article 51A.
Unnecessary legislation could overburden the legal system, leading to frivolous petitions and a waste of resources. As we saw in the Bijoe Emmanuel case, diverse interpretations of fundamental duties by individuals or groups can result in unwanted filings and conflict between fundamental rights and duties. Enforceability of fundamental duties would transfer more power to the government to standardise behaviour in areas like expression, education and public conduct. This can lead to suppression of dissent. There is a likelihood of penalisation for ordinary conduct such as failing to participate in national programs, which in turn can infringe upon citizens' personal liberties by coercing them to conform to a particular culture or nationalistic standard.
Unlike Socialist countries, none of the Western states unambiguously impose duties and onuses on citizens. We might find mention of certain duties in the Japanese Constitution, but countries like Britain, Canada and Australia typically bank on common law and judicial interpretations. This doesn’t mean that citizens in these countries are irresponsible; rather, they are imbued with high sense of patriotism through education.
In conclusion, not every fundamental duty requires enforcement. Rather than making new laws to impose them, we can sensitise and educate the public to be virtuous and responsible citizens as recommended by the Justice Verma Committee.
Mili Sahu is an advocate based in Prayagraj.