November 27, 2020

Fundamental Duties as a Means to Achieve Responsible Citizen

Fundamental Duties have importance, concern and challenges to societies and states at local and international levels. Those are, however, more in developing states and democracies. The study used secondary sources of data. The topic is basically about being a responsible citizen; it’s about deserving first and demanding later. The selection of this topic is slightly influenced by the speech made by our former president Mr. Abdul kalam Azad – “YOU say that our government is inefficient. You say that our laws are too old. You say that the municipality does not pick up the garbage. You say that the phones don’t work, the railways are a joke, the airline is the worst in the world, mails never reach their destination. You say that our country has been fed to the dogs and is the absolute pits. You say, say and say.” “As a nation-building measure, teaching Fundamental Duties in every educational institution and as a measure of in service training everywhere”, was necessary as these “cannot be inculcated in our citizens unless these are bought into their minds and living process through teaching and education”. “It is the obligation of the State to educate the citizens in the matter of Fundamental Duties so that a right balance between Rights and Duties may emerge “by Chief Justice of India, Mr. Justice Ranganath Misra.

Keywords: Fundamental duties in India Constitutional History, , Jurisprudential Aspects of Fundamental Duties, Right & Duties, Duties without Right and vice-versa, Criticism of Fundamental Duties, Conclusion & Suggestions

FUNDAMENTAL DUTIES IN INDIA CONSTITUTIONAL HISTORY

The Gandhian Constitution conjoined fundamental rights and fundamental duties. After laying down fundamental rights, it goes on to say that ‘all these rights shall be contingent on the performance of the following fundamental duties. This approach of conditioning of rights on the performance of duties is quite rare in Indian constitutional thinking including the formal constitution-making process.

Apart from one or two instances where members of the Constituent Assembly echoed Gandhi n’s idea on rights and duties, we find no evidence that suggests that the framers of our Constitution seriously considered adopting something that resembled fundamental duties in the Constitution even if had moral and political convictions about the importance of duties.

In contrast, we find that fundamental rights are given immense constitutional importance in both the historical constitutions and the constituent assembly debates.

So how did fundamental duties become part of the Constitution?

They were added through the 42nd amendment in 1976 in the middle of Emergency as Part – 4A by Gandhi. She set up a committee chaired by then-External Affairs Minister Swaran Singh ‘to study the question of amendment of the Constitution in the light of experience…’ The All India Congress Committee (AICC) suggested to the Swaran Singh Committee to ‘formulate some proposals for inclusion in the Constitution certain fundamental duties and obligations which every citizen owes to the nation…’

The committee then drew up a list of fundamental duties, which included the duty to adhere to the Constitution, uphold India’s sovereignty, and contribute with national service among other things, which the Congress party tweaked. Interestingly, the Congress rejected the committee’s proposal to give Parliament the power, by law, to impose punishment and penalties on citizens who didn’t adhere to the fundamental duties.

By November 1976, both Houses of Parliament passed the 42nd amendment, which included a new fundamental duties chapter to the Constitution containing 10 duties. In 2002, one more duty was added to the list. It said that every citizen ‘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 six and fourteen year’.

FUNDAMENTAL DUTIES

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.[1]

List of Fundamental Duties

1. Abide by the Constitution and respect national flag & National Anthem

2. Follow ideals of the freedom struggle

3. Protect sovereignty & integrity of India

4. Defend the country and render national services when called upon

5. Sprit of common brotherhood

6. Preserve composite culture

7. Preserve natural environment

8. Develop scientific temper

9. Safeguard public property

10. Strive for excellence

11. Duty of all parents/guardians to send their children in the age group of 6-14 years to school.

Prevention of Insults to National Honour Act, 1971

The Prevention of Insults to National Honour Act, 1971 is an Act of the Parliament of Indiawhich prohibits the desecration of or insult to the country’s national symbols, including the National Flag, the constitution, the National Anthem and map of Indiaincluding contempt of Indian constitution.

National anthem

As provided in Section 3 of the Act, whoever intentionally prevents the singing of the Jana Gana Mana or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.[2]

Article 51-A(7) of the Constitution of India imposes one of the fundamental duties to protect and improve the natural environment by stating “ It shall be the duty of every citizens to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.”

In Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh[3], a complete band & closing of mining operation carried on Mussoorie hills was held to be sustainable by deriving support from the fundamental duty as enshrined in Article 51-A{7} of the Constitution. The court held that preservation of the environment and keeping the ecological balance unaffected in a task which not only government but also every citizen must undertake. It is a social obligation of the state as well as of the individuals.[4]

In M.C Mehta vs. Union of India[5] the Supreme Court held the following:

1. It is compulsory for all the educational institutions to organize a teaching lesson of at least one hour a week on the protection and improvement of the natural environment.

2. It is the duty of the Central Government under Article 51-A (7) to introduce this lesson in all the educational institutions.

3. The Central Government should also distribute books free of cost on the same subject in all the institutes.

4. To give rise to the consciousness among the people towards a clean environment, the government should organize ‘keep the city clean’ week at least once in a year.

Fundamental Duty is the Responsibility of the Citizens

There was a judgment by the Supreme Court which said that if someone had genuine religious obligations, that can be placed above patriotism, then no one can force them to sing the National Anthem.

It is a citizen’s responsibility to realize that it is in their own interest to perform their duties and discharge their 134 legal and constitutional obligations whole-heartedly because only by doing so, individually, can they help the growth of the democratic republic collectively.

Citizens are expected to behave in accordance with the ideal code of conduct parallel to the 11 fundamental duties and no legal action can be initiated for non-performance. With the independence of India, dawned the “Ganatantra Raj”, which made each of us responsible for the happiness and welfare of our people.

We always harp on our rights where ever we can and neglect the duties we generally have. As a citizen of our country we enjoy the rights of a privileged citizen and often we complain of the government’s inability to provide services. Similarly, in an organization, as an employee or a student in an institute we complain about the inadequacies of the system. But when it comes to our duty for the nation or institute, most of the times we are not aware at all. For instance, as a responsible citizen, we have the duty of protecting the public properties, which we do not hesitate to destroy while protesting or demanding our rights. Destroying street lamps, burning tires and vehicles, disrupting traffic are the common phenomena seen at the protest sites. Do we really need to do this? Have we ever realized the losses we cause to our country or organization in this manner? Do we ponder for a moment, how much effort it takes to build those structures?

As countrymen we also have a duty to be patriotic towards the country and be humanitarian towards our country men. We also have a social responsibility as a good citizen. But do we perform all these duties? The answer is either a clear No, or partial Yes. We do not pay taxes in time and some of us also try to avoid taxes by questioning its worthiness while being more selfish. We expect government to do everything, without us contributing anything. Most of the unpaid electricity and telephone bills even by people who can well afford to pay those few bucks are a bit astonishing. When we feel our values to be endangered, we draw in the attention by retaliating in a particular way.

YOU say that our government is inefficient. You say that our laws are too old. You say that the municipality does not pick up the garbage. You say that the phones don’t work, the railways are a joke, the airline is the worst in the world, mails never reach their destination. You say that our country has been fed to the dogs and is the absolute pits. You say, say and say.

Concept of Duties in India

Since time immemorial, an individual’s “kartavya” — the performance of one’s duties towards society, his/her country and his/her parents, was emphasized.

The Bhagwat Gita and Ramayana also ask people to perform their duties. In the Gita, Lord Krishna ordains, “One should do one’s duties without expectation of any fruits”.

According to Mahatma Gandhi the very performance of a duty secures us our right. Rights cannot be divorced from duties.

Mahatma Gandhi held that “Satyagraha was born, for I was always striving to decide what my duty was.”

Also, Swami Vivekananda observed, “it is the duty of every person to contribute in the development and progress of India”.

A very significant feature of the Indian Constitution is that it balances citizens’ rights and duties.

RESPONSIBLE CITIZEN

Being a responsible citizen covers many areas – some of them legal obligations, some social and some moral. So of course, because not all of them are legal obligations, being a responsible citizen is not as easy as staying within the law. In fact, to be a truly responsible citizen, we sometimes must go out of our way to do things which help our society – give a little of our time and effort for the greater good.

Legal Obligations: No one can be a responsible citizen without staying within the law. It is as simple as that. Criminals, by their very nature, are not behaving as responsible citizens. Laws exist to protect citizens, the communities they live in and their property. So to be a responsible citizen, we must respect these laws and abide by them. Harming others or others’ property does not equate to being a good citizen.

Social Obligations: Social obligations really form the bulk of being a responsible citizen and what this means. To be a responsible citizen, we should help our communities and those who live in them. So, being a responsible citizen can encompass things such as volunteering.

BEYOND FUNDAMENTALS

VOTING:India as we know is one of the youngest country of the world. More than 50% of its total population is between 20 – 30 age group, so it has immense probabilities of becoming a global powerhouse. As a country of energy, a country of youthfulness as a country of vibrant young engineers, dynamic technocrats, promising scientists, enthusiastic sportspersons, India has become the cynosure of world.

But this country of youths has another face as well. Imagine a case where we are sitting in our drawing room and watching the morning news ..the media persons showing some of our well known leaders taking money for supporting other party or for any other malicious reason. The first thing we do is we start blaming our political system, we never think even for a while that have we played any role in strengthening this system? Have we not contributed in establishing this system of power politics? Have we not chosen these cunning politicians? Weren’t we influenced by the inflammatory speeches that were deliberately made to create some fire? The modern political system is all about power and money. If we see the profile of a recently elected MPs we will find that almost 300 members are billionaires. Do they really represent the India who’s 22% of population is still below poverty line? Aren’t they the product of this power politics? Isn’t the modern Indian politics driven by selfishness instead of the interest of social service? Don’t we prefer going according our interest in spite of national interest?? According to a recent survey majority of the Indian youth especially those living in cities don’t go for voting. They prefer going to cinema or watching television. instead of going to polling booths. This is certainly not going to change the scenario. If we really want to change the country, If we really want the tradition to change we have to participate in the elections or at least we have to make sure the person we are going to chose as our representative should be a person of will and a person having an intension to work for the society, for the country. So the youth of the country and the rich class need to show interest in voting and deciding the future of the country.

RESPECTING NATINAL EMBLEMS:

Bertrand Russell once said, “Love for your country should be of an extreme nature.”

Modern era is the era of cut throat competition, an era of hectic schedule, a lifestyle of burgers and pizzas, an age of pubs and discos. The young India is lost somewhere in this euphoric illusion. We hardly remember the martyrs, the independence or republic day is like a holiday for us, we don’t even bother to stand up in respect of our national anthem. Our national tricolour doesn’t make us feel proud any more. We boastfully talk about patriotism but when it comes to show it we deliver a little. Our attitude comes in between !!!

WAY FORWARD

§ Recently, Prime Minister of India has rightly said that our children should be taught the Constitution.

§ Incorporating the essential aspects of fundamental duties in all oaths and pledges.

§ The Supreme Court has said that since duties are obligatory for citizens, the state should strive to achieve the same goal.

Rights and duties have to exist together. Rights without duties will lead to anarchy. In this context, the Fundamental Duties serve as a constant reminder of national goals as well as inculcate a profound sense of social responsibility

Jurisprudential Aspects of Fundamental Duties

The subject matter of the right is Article 51-A (a) to (k) of the constitution of India. The act or forbearance is the conduct of citizen while the beneficiary in whom right vests is debatable. For some of the duties and their breach remedy is prescribed in laws like Indian Penal Code, the Environmental Protection Act, 1986 Emblem and Names (prevention of improper use) Act, 1950 read with the Prevention of Insult to National Honour Act ,1971 etc. There seems no remedy for the breach under Article 51-A(b), (d), (f), (h) & (j), so need for adopting curative measures for inculcating duties arises.

The fundamental Duties are the latest addition to the constitution, making such duties explicit. In the Constitution of China, the duties on citizens are dealt among others in a distinct chapter deliberated herein after[6].Among the various constitutions in Indian Sub-Continent some duties on citizens are inbuilt in the constitution while in others they are by law, custom and/ or precedent. However, it is perceived that duties are imposed on citizens under the Indian Constitution but there seems least guiding factors for the remedy of breach. As such the study assumes importance from various angles especially from jurisprudential point of view… Jurisprudence as per dictionary[7]means ‘. . . Knowledge of law; the science or philosophy of law; a body or branch of law . . .’ It has its origin in Latin word ‘jurisprudentia ’ meaning the knowledge of law. Different writers have dealt it differently keeping in view the school of thought to which they belong. To quote few, Salmond[8]defines jurisprudence as ‘the science of law’. Under this definition Jurisprudence can be dealt in generic and specific sense.

Eastern jurisprudence encompasses all the aspects of human behaviour within ‘Dharma’ for which it is said ‘Dharmo Rakshti Rakshta’ (respect dharma dharma will respect you) Dharma in its core involves duties as its subject matter.

In Bhagwat Geeta[9]following verses among others have relevance which say:

‘Your right is to work only, but never to the fruit thereof. Let not the fruit of action be your object, nor let your attachment be to inaction.’

Though the message apparently says about the right but here the right is itself in the form of duty to work. In subsequent verse it unequivocally speaks about duty, where the message says:

‘Arjuna, perform your duties dwelling Yoga, relinquishing attachment, and indifferent to success and failure; equanimity is called Yoga’

Right & Duties:

In the case of Ramlila Maidan Incident, the court held that the word “fundamental” is used in two separate senses in our Indian Constitution. When this word is used for rights then it means that these rights are very essential and any law which will violate the fundamental rights will be declared as void. But when this word is used for the duties then it is used in a normative sense as it set certain goals before the state which the state should try to achieve.

Law is interplay of rights and duties. Salmond[10]defines it as ‘A right is an interest recognized and protected by a rule of right. It is an interest respect for which is duty, and disregard of which is a wrong.’ Breach of duty or the disregard has to be actionable except in few situations falling under general exceptions[11]. On the other Duguit[12]arrives at a finding that ‘no one has any other right than always to do his duty’. In his view Law is only an embodiment of duties which an individual is supposed to perform as a part and parcel of the social organization for furtherance of social solidarity. There are number of jurists who say that there is no such conception as a right in law and Prof. Kelson[13]the pro-pounder of Pure Theory of Law being one among them. A balanced view seems to be that of Roseau who says that men were born free but everywhere they are in chains.

In view of the west, if law creates a right then there has to be a corresponding duty but on whom. For this one need to study the characteristics of right which different writers have dealt differently? In brief for this study the main characteristics can be the i) beneficiary in whom right vests ii) the person burdened with corresponding duty iii) the subject matter of the right iv) the act or forbearance giving rise to breach.

Duties without Right and vice-versa:

However, exceptions to rule exist. Say for that matter the Directive Principles under the Constitution of India. They do carry directives on the state in the nature of duties without any corresponding right. Still the courts in India under some circumstances enforce them whether under PIL or otherwise[14].The situation also exists where a right may emerge without corresponding duty or a duty without a corresponding right what may be termed as imperfect obligation. In Minerva Mills Ltd[15]Supreme Court observed: ‘. . . It is the function of the Judges, may their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled. .’

There are jurists who say that there can be duties without corresponding right. Under such circumstances the duties are labelled as Absolute Duties while the duties which are correlated to corresponding right are called as Relative Duties. If one considers Austin[16]supported by CK Allen[17]on the subject, he clarifies the absolute duties as duties not regarding persons, duties owed to persons indefinitely, self-regarding duties and duties owed to the sovereign. On the other the duties can be classified into positive & negative duties, besides, primary & secondary duties.

The fundamental duties are reflection of the ancient developed concepts of east but least adhered in modern era. This apart on analysis of fundamental duties as contained in the constitution of India, it can be gathered that some are mere declaratory, while few can be treated as remedial duties and some others as hybrid of declaratory and remedial duties. The declaratory duties declare the right without providing any remedy for its breach. The remedial duties create the duties and/or affirm the duties with remedy for the breach either in same statute or in already existing statute. For hybrid duties remedy may address only to part of breach and not whole of the duties. Applying this criteria, the declaratory duties fall under Article 51-A (b), (d), (f), (h) & (j) while remedial duties seem to be covered by Article 51-A(c), (e) & (g). The duties referred to as hybrid are the amalgam of both the declaratory and remedial duties falling under 51-A (a) & (i). The analysis is inter-alia based on the fact that some of the duties and their breach do create a statutory offence for prosecution.

Criticism of Fundamental Duties:

• Some of them are difficult to be understood by common people

• Criticized for being moral precepts, pious platitudes, vague and repetitive

• No need to be implemented as they all are performed by the people even if not included

• Their inclusion in Part IV-A after fundamental rights has reduced their value and significance.

• Some of the important points which were recommended by Swaran Singh committee were not included, such as

1. Parliament should impose penalty or punishment in case of non-compliance of duties.

2. If punishment is imposed according to above clause, it cannot be called in question in any court on any ground.

3. Duty to pay taxes to be incorporated as fundamental duty.

• Other important duties like family planning, voting etc should be included.

Conclusion & Suggestions

The non-enforceability of the fundamental duties won’t affect its importance. Fundamental duties are an important aspect of a democratic state because it not only allows people to enjoy their rights but also reminds them to perform their duties which they have towards the nation. The word ‘fundamental’ which is attached to the duties makes them utmost important and thus it is required that they are to be followed by everyone. Many duties have also been set up as a separate law and are made enforceable by the law but this does not reduce the value of other duties that are provided in Article 51A. It is not only the duty of the government to provide everything in the Constitution; it is the people who should also be conscious about their role in the society. Even duties like paying taxes, right to vote must be performed by each and every citizen of the nation. These duties inculcate a sense of social responsibility in everyone. While interpreting the fundamental rights these fundamental duties are always taken into account.

For breach, statutes in themselves create the remedy. However, for constitutional wrong the constitution itself provides the remedy of writ or order. In some matters subsidiary remedy through statute is prescribed. In broader perspective, the wrong may be civil or criminal or taxation etc as the case may be for which respective regulatory mechanism exists. But a wrong under fundamental duties, if not of gravity lacks statutory remedy for breach. From the study it is gathered that most of the fundamental duties seem to be with no remedy for their breach. Accordingly, there is emergent requirement for statutory protection and prevention of breach of fundamental duties as a medicine and not by way of punishment. The remedies suggested being counselling or admonition or obtaining bond and finally if all the measures fail, then fine or imprisonment as a punishment.

The duties ought to be respected otherwise Law becomes paper tiger when it loses the sanction and enforcement.

To make India great must inculcate obedience to duty. Tree must love the ground on which it stands[18]is the thought and ideal of East for adherence to nationalism, social solidarity and mutual co-existence.

BIBLIOGRAPHY

WEBSITE:

1. www.legalserviceindia.com

2. www.manupatrafast.com

3. www.indinkanoon.org.

BOOKS:

1.. SALMOND ON JURISPRUDENCE, by P J Fitzgerald, Twelfth Edition.

2.. INDIAN CONSTITUTIONAL LAW, by M. P. JAIN, Eighth edition, LexisNexis

3. Durga Das Basu’s Commentary on the Constitution of India , 9th edition, LexisNexis

4. V. N. SHUKLA’S CONSTITUTION OF INDIA, by Mahindra Pal Singh, thirteenth edition.

[1]https://www.bankexamstoday.com/2016/03/11-fundamental-duties-of-indian-citizens.html
[2]https://en.wikipedia.org/wiki/Prevention_of_Insults_to_National_Honour_Act,_1971
[3] 1985 AIR 652
[4] http://www.legalservicesindia.com/article/1778/Fundamental-Duties-under-the-Constitution-as-Legally-Enforceable-Duties-under-Different-Statutes.html
[5] 1987 SCR (1) 819
[6] Chapter titled as ‘Fundamental Rights and Duties’ under the Constitution of the Peoples Republic of China
[7] The Chambers Dictionary, New Edition Published by Allied Chambers (India) Ltd
[8] Salmond on Jurisprudence by P.J. Fizgetald ,1966 (Salmond was a judge of the New Zealand Supreme court. He Published his Jurisprudence in 1902)
[9] Bhagwat Geeta, verse 47 &48
[10]Ibid at 4
[11] Sections 76 to 106, Chapter IV of the Indian Penal Code and under other like laws.
[12] Leon Duguit , Law & State (1917) 31 Har. Law Review
[13] Pure Theory of Law (1934) revised Version 1960
[14] Vellore Citizens Welfare Forum Vs Union of India, AIR 1996 Sc2715
[15] Minerva Mills Ltd V Union of India & others; AIR 1980Sc1789
[16] The Province of Jurisprudence Determined by John Austin
[17] Infra 5
[18][‘Hindu America’ by Chaman Lal, Published by Bhartiya Vidya Bhavan, 1960, Bombay.]

Author Details: ASHUTOSH SINGH SENGAR ( K.L.E Society’s Law College, Bengaluru)

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