For the successful completion of this project , I would like to thank my Jurisprudence teacher Dr Asad Malik . He made the concepts of the topic so clear in my mind that it became very easy for me to work on the topic. It would not have been possible to complete the project work without his guidance. I would also like to thank my elder sisters and my elder brother who were a constant support throughout the project making. Last, but not the least I would like to thank my Parents who stood by me through every thick and thin. Thanking you Zain.A.Khan B.A. LLB.(H)
Fourth Semester. THE IMPORTANCE OF FUNDAMENTAL DUTIES Introduction
The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran Singh Committee that was constituted by the government earlier that year. Originally ten in number, the Fundamental Duties were increased to eleven by the 86th Amendment in 2002, 2002, which added a duty 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. years. The other Fundamental Duties obligate all citizens to respect the national symbols of India, including the Constitution, to cherish its heritage, heritage, preserve its composite culture and assist in its defense. defense. They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop Scientific temper abjure violence, and strive towards excellence in all spheres of life. Citizens are morally obligated by the Constitution to perform these duties. However, like the Directive Principles, these are non-justifiable, without any legal sanction in case of their violation or non-compliance. There is reference 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 conformity with these treaties.
Criticism and analysis
Fewer children are now employed in hazardous environments, but their employment in non-hazardous jobs, prevalently as domestic help, violates the spirit of the constitution in the eyes of many critics and human rights advocates. More than 16.5 million children are in employment. India was ranked 88 out of 159 countries in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians. The year 1990 – 1991 1991 was declared as the "Year of Social Justice" in the memory of B.R. Ambedkar. The government provides free textbooks to students belonging to scheduled castes and tribes pursuing medicine and engineering courses. During 2002 – 2003, 2003, a sum of Rs. 4.77 crore (47.7 million) was released for this purpose. In order to protect scheduled castes and tribes from discrimination, the government enacted the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, prescribing severe punishments for such actions. The Minimum The Minimum Wages Act of Act of 1948 empowers government to fix minimum
wages
for
people
working
across
the
economic
spectrum. The Consumer Protection Act of 1986 provides 1986 provides for the better protection of consumers. The Equal The Equal Remuneration Act of Act of 1976 provides for equal pay for equal work for both men and women. The Sampoorna Grameen Rozgar Yojna (Universal Rural
Employment Programme) was launched in 2001 to attain the objective of providing gainful employment for the rural poor. The programme programme was implemented through the the Panchayati Panchayati Raj institutions institutions.. A system of elected village councils, known as Panchayati Raj covers almost all states and territories of India. One-third of the total number of seats have been reserved for women in Panchayats at every level; and in the case of Bihar, of Bihar, half the seats have been reserved for women. The judiciary has been separated from the executive "in all the states and territories except Jammu and Kashmir and Kashmir and Nagaland." Nagaland." India's foreign policy has been influenced by the Directive Principles. India supported the United Nations in peace-keeping activities, with the Indian Army having participated in 37 UN peace-keeping operations. The implementation of a uniform civil code for all citizens has not been achieved owing to widespread opposition from various religious groups and political parties. The Shah Bano case (1985 – 86) 86) provoked a political firestorm in India when the Supreme Court ruled that Shah Bano, a Muslim woman who had been divorced by her husband in 1978 was entitled to receive alimony from alimony from her former husband under Indian law applicable for all Indian women. women. This decision evoked outrage in the Muslim community, which sought the application of the Muslim personal law and in response the Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 overturning the Supreme Court's verdict. This act provoked further outrage, as jurists, critics and politicians alleged that the fundamental
right of equality for all citizens irrespective of religion or gender was being jettisoned to preserve the interests of distinct religious communities. The verdict and the legislation remain a source of heated debate, with many citing the issue as a prime example of the poor implementation implementation of Fundamental Fundamental Rights.
Fundamental Duties of citizens serve a useful purpose. In particular, no democratic polity can ever succeed where the citizens are not willing to be active participants in the process of governance by assuming responsibilities and discharging citizenship duties and coming forward to give their best to the country. Some of the fundamental duties enshrined in article 51A have been incorporated in separate laws. For instance, the first duty includes respect for the National Flag and the National Anthem. Disrespect is punishable by law. To value and preserve the rich heritage of the mosaic that is India should help to weld our people into one nation but much more than article 51A will be needed to treat all human beings equally, to respect each religion and to confine it to the private sphere and not make it a bone of contention between different communities of this land. In sum, the Commission believes that article 51A has travelled a great distance since it was introduced in the Forty-second Amendment and further consideration should be given to ways and means to popularise the knowledge and content of the Fundamental Duties and effectuate them.
The most important task before us is to reconcile the claims of the individual citizen and those of the civic society. To achieve this, it is important to orient the individual citizen to be conscious of his social and citizenship responsibilities and so shape the society that we all become solicitous and considerate of the inalienable rights of our fellow citizens. Therefore, awareness of our citizenship duties is as important as awareness of our rights. Every right implies a corresponding duty but every duty does not imply a corresponding right . Man does not live for himself alone. He lives for the good of others as well as of himself . It is this knowledge of what is right and wrong that makes a man responsible to himself and to the society and this knowledge is inculcated by imbibing and clearly understanding one’s citizenship duties. The fundamental duties are the foundations of human dignity and national character. If every citizen performs his duties irrespective of considerations of caste, creed, colour and language, most of the malaise of the present day polity could be contained, if not eradicated, and the society as a whole uplifted. Rich or poor, in power or out of power, obedience obedience to citizenship duty, at all costs and risks, is the essence of civilized life. Spirit of Harmony and Dignity of Women Some further thought needs to be given to clauses (e) and (f) of article 51A. Article 51A(e) desires the promotion of harmony and the spirit of common brotherhood among all the people of India
transcending religious, linguistic and regional or sectional diversities and renunciation of practices derogatory to the dignity of women. It is couched in broad terms but it should be clear that attacks on minority communities or minority opinions are frowned upon. Respect for both are essential and the wording lends support to a broad humanism to cover such differences differences as may exist or better still, co-exist. Two thoughts can be distilled. The first is that the objective will not be reached unless there is a determined effort to restrict religious practices to the home on the justified premise that one’s religion is a personal matter and is not conducive to mass assertiveness. The other is the status of women. Lip service is being paid to the doctrine of gender equality. The fact remains that generally women are still regarded as inferior both home and workplace although the Commission has noticed an improvement, however dissatisfied it may be with the degree of the at improvement. It is necessary to separate religious precepts from civil law. Civil law as the name implies is a matter for society not for religious leaders and it would seem to us to be axiomatic that in matters of civil rights, laws of property and inheritance and marriage and divorce, although practices may differ, legal rights that accrue must be the same. For example, a marriage may be solemnised according to religious or social custom but the rights of a woman in the case of divorce must be the same no matter what her religion is.
Clause (e) of article 51A also seems to cover the need to regard all human beings equally. In this connection, it is necessary to consider the question of the upliftment of the Scheduled Castes and other disadvantaged sections of our society. The scourge must be eradicated. The Constitution gave us ten years to do the job; the provision has been extended to fifty years and we are in our sixth ten-year period but we are no nearer the goal. The discrimination is two-fold. It is economic-condemning whole sections of our society numbering millions to menial jobs as part of the evil of treating them as sub-human. We have provided for reservation of jobs to these people, we have even given them separate constituencies to represent them. It has created a vested interest in backwardness. The other adverse result is that it has had no effect on their status in society, which continues to be determined by birth and not human worth and human personality. It is this social stigma which still plagues our people and the struggle to restore to them basic human dignity has made no significant progress. While the Commission appreciates the context in which affirmative action became necessary, it feels that reservation of jobs and seats in the legislatures will not help this aspect of the matter. It is quite clear to the Commission that the disease of considering human beings as high or low based on the accident of birth is a disease rooted in the mind and it is in the mind that the defences of a society based on human dignity and equality must be constructed. Logically this leads directly to the conclusion that the key lies in
education. The time to begin training our young people to respect the National flag and sing the National anthem, to respect women, to hold all religions equal and deserving of as much respect as one’s own, to accept that all human beings are born equal and are entitled to equal treatment are among principles best taught by examples when the child is too young to understand but not too young to obey. The focus must, therefore, shift to education which has suffered from serious neglect. Schools restrict admissions on unacceptable criteria, teachers themselves are untrained and often politicised, as is the curriculum. Despite these hardships, many of our young people have done well. COMPOSITE CULTURE Clause (f) of article 51A requires us to value and preserve the rich heritage of our composite culture. It follows that we may not break each other’s places of worship, set fire to religious texts, or beat up one another’s priests or obstruct those who exercise their Fundamental Right under article 25 to profess, practice and propagate religion. Composite culture means culture drawn from many strands. Here again education in its broadest and best sense can provide the corrective to the aberrations that have occurred. Education is not confined only to the time spent in schools and colleges. Education begins at birth in the subconscious and continues till death. Anyone who says that he has nothing more to learn is already brain-dead.
It follows that the influences that play on a child at home are of great importance. Parents should understand that education begins at home, the examples they set, the environment of enlightenment and tolerance that is necessary to produce good citizens cannot be subcontracted to formal schooling important though this is. Schemes should, therefore, be framed that include parents in social activities that have as their objective the country’s age-old age -old traditions, its welcome to the persecuted of every faith, its virtues of tolerance of and respect for all religions and a certain pride in belonging to this land and in being considered as Indian. The highest office in our democracy is the office of citizen; this is not only a platitude, it must translate into reality. Rationale & Significance
Fundamental Duties are the modernization of the constitution. Fundamental duties have been incorporated in the Indian Constitution to remind every citizen that they should not only be conscious of their rights, but also of their duties. We have borrowed these duties from the constitution of Japan. Constitutions of Japan, Yugoslavia, and Republic of China contain them. The Constitution of Soviet Union (USSR) also contains fundamental duties. Under Indian constitution, the Constitution (42nd) Amendment Act, 1976 inserted a new part IV A consisting of Article 51A has been added to the constitution. Article 51 A lays down the following ten Fundamental Duties: It shall be the duty of every citizen of India-
a) To abide by the constitution and respect its ideals and institutions, the National Flag and the National Anthem; b) 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; d) To defend the country and render national services, when called upon to do so; e) 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 t5he dignity of women; f) To value and preserve the rich heritage of our composite culture;
g) To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; h) To develop the scientific temper, humanism and the spirit of inquiry and reform; i) To safeguard public property and to abjure violence; j) 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;
k) Who is a parent or guardian to provide opportunities for education to his child or as the case may be, ward between the age of sex to fourteen years.
The various clauses of Article 51 A express fine sentiments. Some of the above duties are already being enforced through ordinary law for example there are laws making any activity disrupting the sovereignty and territorial integrity of India illegal and penal. But some of the other duties mentioned above appear to be legally unenforceable for they are vague and imprecise. These can at best be regarded as „directory‟. As regards enforceability of these duties, it has been 1
held that these duties being duties of individual citizens cannot be enforced through mandamus as they cast no public duties. The duties can be promoted by constitutional means. Even though, the significance of the Article 51 A lies in the fact that these clauses can be taken in to consideration in relation to interpretation of statutes and Acts of the parliament or state legislature, especially an ambiguous statutes. It has been aptly 2
observed that: “Fundamental duties though not enforceable by a writ of the court, yet provide a valuable guide and aid to interpretation of constitutional and legal issues. In case of doubt or choice of people’s wish as manifested through Article 51 A can serve as a guide not only 1
Surya Narain v. Union of India, AIR 1982, Raj. 1, 2.
2
AIIMS Students Union V. AIIMS AIR 2001 SC 3262
for resolving the issues but also for constructing or moulding the relief to he given by the Courts. Constitutional enact5ment of fundamental duties if it has to have any meaning must be used by courts as a tool to tap, even a taboo, on state action drifting away from constitutional values, values, the judges declared.” The present research is going to stress on the aspect of importance of the research theme in the governance of the country, by focusing on the responsibilities given to the citizens as well as state as state to follow and implement these respectively. Here, the present Article if it has to have any meaning also needed to be seen applied by the judiciary as and when occasion demands for the purpose of interpretation of the constitutional and legal issues. The fundamental duties are not made enforceable like fundamental rights but it cannot overlook as “duties” in Part IV A is prefixed by the same word “fundamental” which was prefixed by the founding fathers of the Constitution to “right” in Part III. Though Article 51A does not cast any fundamental duty on the state, the fact remains that the duty of every citizen is the collective duty of the State. Researcher is going to concentrate on the need of the duties in the context of governance of the country. Since rights and duties are correlative, the fundamental duties, are, therefore, intended to serve as a constant reminder to every citizen that while the Constitution specifically conferred on them certain fundamental rights, it also requires citizens to observe certain basic norms of democratic conduct and democratic behaviour.
Needs for fundamental fundamental duties: Rights and duties are correlative. The fundamental duties, are therefore, intended to serve as a constant reminder to every citizen that while the constitution of our county specifically conferred on them certain fundamental rights, it also requires citizens to observe certain basic norms and rules of the democratic conduct and democratic behaviour. It was claimed by the ruling party, the Congress that what the framers of the Indian constitution failed to do was being done now. The omission is being rectified rectified by providing providing a chapter on citizen’s duties. It was argued that in India people lay emphasis only on rights and not on duties.
It is submitted, submitted, this view is wrong. The performance of one’s duties even in partial disregard of one’s rights and privileges has been traditional in this country. Since time immemorial the emphasis in Indian society in accordance with the dictates of the ancient scriptures has been on the individual’s “kartavya”, this is , performance of one’s duties towards society, the country and especially towards one’s parents. The Gita and the Ramayana enjoin people to perform their duties without caring for their rights or (fruits).
These traditional duties have been given constitutional sanction. “if one takes care to see, he will discover in the Constitution not only his rights but also his duties”. A look at the constitution will also thus answer the complaint of some persons that the constitution has
conferred rights on the individual but has not set out the duties of the 3
individuals towards the society. By the preamble of the constitution secures to all the fundamental rights of the citizens :” : ”liberty of thought,
expression,
belief,
faith
and
worship.”
These
are
fundamental rights of the citizens. The rest of the preamble emphasises only the duties, “justice, social, economic and political”. In addition to this, the fundamental rights guaranteed by the constitution are not absolute rights. The state is empowered to impose reasonable restriction and curtail these rights in the interest of the 4
society. Restrictions Restrictions may sometimes amount to prohibition.”
SOURCE OF FUNDAMENTAL DUTIES AND FUNDAMENTAL DUTIES OF INDIA COMPARED TO OTHER COUNTRIES: It is significant to note that none of the constitutions of western countries specifically provide the duties and obligations of the citizens. Among the democratic constitutions of the world, we find certain duties of the citizens in the Japanese constitution. In Britain, Canada and Australia the rights and the duties of the citizens are governed by common law and judicial decisions. The American constitution provides only for fundamental fundamental rights and does not refer to duties of the citizens. citizens.
It does not mean mean that the people people of these
countries behave in an irresponsible manner. In all these countries the citizens are imbued with a high sense of patriotism as a result of
3 4
V.s Deshpande. Narendra v. union of india, AIR 1960 sc 430.
education and training in the elementary duties and obligations of citizenship. The constitution of socialist countries, however, lay great emphasis on the citizens’ duties. Article 32 of the Yugoslavian constitution lays down: “the freedom and rights shall be achieved in solidarity among the people people by the fulfilment of their duties towards each other.” Article 36 says, “ The right to work and the freedom to work are guaranteed and whoever will not work, though he is fit to do so, shall not enjoy the rights and the social “protection that man enjoy s of the basis of work”. Article 66 lays down, “every citizen shall conscientiously discharge any public or social office vested in him and shall be personally accountable for discharging it.”
But among the Socialist countries, the Soviet constitution contains a comprehensive chapter on the citizen’s duties. Chapter 7 of the soviet constitution lays down fundamental rights and duties. Article 59 provides that every citizen of the USSR are obliged to observe the constitution of the USSR and soviet laws , comply with the standard of socialist conduct and uphold the honour of Soviet citizenship. Article 61 lays down that every citizen of USSR are obliged to preserve and protect Socialist property. Persons encroaching in any way on the socialist property shall be punished according to the law. Article 62 provides that defence of Soviet motherland is the sacred duty of the citizens of USSR. Article 63 makes military service compulsory which says military service in the armed forces of the
USSR is a honourable duty of the Soviet citizens. Betrayal of the motherland is the gravest crimes against the people.
5
Thus, the Soviet Constitution imposes upon the people definite duties towards society and towards the state. These duties can be summed up as follows; Observance of the constitution and the laws to maintain labour decipline, decipline, honest performance performance of public duties, respect for the rules of socialist society which govern the conduct of citizens in relation to society and each other safeguarding of public socialist property, universal universal military service service and defence of the country. country.
Like the soviet constitution, chapter II of the constitution of Republic of China lays down specific duties upon the people. Article 118 lays down, “citizens of China have the right to work, that is, the right to guaranteed employment and payment for the work in accordance with its quality and quantity.
It is interesting interesting to note here that while all the aforesaid constitutions constitutions specifically lay down duties of the prople, they also guarantee the “right to work” to every citizen, this is an important omission in the Indian constitution even today. Poverty is a curse. Necessity knows no law. A poor and unemployed cannot be expected to perform his duties towards the society if the society fails to discharge its obligation towards towards individuals. individuals. The right to work should, therefore, therefore, 5
According to the new constitution of USSR.
be guaranteed to every citizen citizen who are expected to do certain duties duties to the nation.
ENFORCEMENT OF FUNDAMENTAL DUTIES The duties incorporated in the constitution by the 42
nd
Amendment
are statutory duties and shall be enforceable by law. Parliament, by law will provide penalties to be imposed for failure to fullfill those duties and obligations . The success of this provision would however much depened upon upon the manner in which which and the person against whom these duties would be enforced.
For the proper enforcement of duties, it is necessary that it should be known to all. This should be done my a systematic and intensive education of the people that is by publicity or making it a prt of the syllabi and curriculum of education. The law minister has himself suggested this. Most of the people of this country are illetrate and not politically conscious of what they owe owe to the society or to the country. Homes, Universities, officers and their places of work should all be made centres for imparting in the performance of their obligations. 6
In M.C Mehta (2) v. Union of India , the supreme court has held that under article 51 A (g) it is the duty of the central government to introduce compulsory teaching of lesions atleast one hour in a week on protection and improvement of natural environment in al the educational institutions of the country. 6
(1983) 1scc 471
FUNDAMENTAL INTERPRETATION
DUTIES OF
AS
THE
AN
AID
IN
THE
PROVISIONS
OF
THE
CONSTITUTION 7
In AIIMS Students Union v. AIIMS , speaking about the importance of fundamental duties enshrined in article 51 A while stiking down the institutional reservation of 33% in AIIMS coupled with 50% reservation deciplinewise as violative of article 14 of the constitution, the supereme court said that they are equally importance as fundamental rights.. Though the fundamental duties are not made emforceable like fundamental rights but it cannot overlook as “duties” in part IV A id prefixed by the same “right” in part III . Every citizen of India is fundamentally obliged to develop the scientific temper and humanism. Though artice 51 A doesnot cast any fundamental duty on the state. Thhe fact remains that the duty of every citizen is the collective duty of the state. Any reservation apart from being substantive on the constitutional anvil must also be reasonable to be permissible. In assessing the reasonability of one of the factors to be taken into consideration would be whether character and quantum of reservation would stall or accelerate in achieving ultimate goal of excellence anabling nation constantly rising to higher level. In the Globalisation where nation as enabling whole has to compete with other nations of the world as to survive, excellence cannot be given goby and certainly not compromised in entirety. Fundamental duties 7
AIR 2001 sc 3262
though not enforceable by a writ of the court , yet provide a valuable guide and aid to interpretation of constitutional and legal issues. In case or doubt or choice of people’s wish as manifested through article 51 A can serve as a guide not only for resolving the issues but also for constructing or moulding the relief to be given by the courts. Constitutional enactment of fundamental duties if it has to have any meaning must be used by the courts as a tool to tap, even a taboo on state action drifting away from constitutional values, the judges declared. 8
In Aruna roy v. UOI , the validity of national curriculum framework for school education was challenged on the ground that it was violative of the Art 28 of the constitution and anti secular. It provies imparting of value development education related to basic of all religions. The court held that the NCFSE does not mention of imparting “ religious instructions” as prohibited under art 28. What is sought to be imparted is incorporated in article 51 (A)(e) which provides “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounces practices derogatory to the dignity of woman”. And to see that universal values such as truth related to conduct, peace, love and non-violence be the foundation of education. Accordingly, the court held that such education is neither violative of at. 28 of the Constitution nor is against the concept of secularism. 8
AIR 2002 sc 3176
In State of Gujrat v. Mirazpur Moti Kureshi Kassab Jamat
9
the
petitioners have challenged the constitutional validity of Bombay animal(preservation of Gujrat amendment Act) 1994 by which the state had prohibited the slaughter of cows and its progeny on the ground that it was violative of their right to carry on business under article 19(1) (g) of the constitution.. The supreme court held that the ban imposed by the act is a reasonable restriction with the intrest of general public. In Government of India v. George Philip
10
the respondant had
challenged his compulsory retirement from service. He was granted leave by the department to persue advance research training. He was granted leave for two years. He overstayed in a foreign country inspite of repeated reminders to come and join his duty after the research study got over. An enquiry was instituted and the charge of overstaying in a foreign country was proved. He was compulsorily retired from service. The tribunal and the High court granted him remedy of joining his service without backwages. The supreme court set aside the order of the High Court. The supreme court held that Art. 51 – 51 – A(j) A(j) imposed a duty on citizen to strive towards excellence in all aspects and it cannot be achieved unless employees maintain decipline and devotion to duty. The courts should not pass orders which instead of achieving underlaying object of part IV – A of the Constitution has tendency to destroy the same. Overstay of leave and absence from duty by a Government employee and granting him sex 9
AIR 2006 SC 212 AIR 2007 SC 705
10
months time to join his duty amount to not only giving him premium to indiscipline but wholly subversive of work cultures in organisation.
