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Published : March 22, 2015 | Author : Mohit.Daulatani
Category : Constitutional Law | Total Views : 14776 | Rating :

  
Mohit.Daulatani
3rd year Law student from National Law University, Assam
 

A Critical Study of the Fundamental Duties under the Constitution of India as Legally Enforceable Duties under Different Statutes

Constitution is the supreme law of India. It is the longest written constitution of any sovereign country in the world, containing 448 articles in 25 parts, 12 schedules and 97 amendments. Besides the English version, there is an official Hindi translation. B. R. Ambedkar is the Chief Architect of Indian Constitution. Constitution was enacted by the Constituent Assembly on 26 November 1949, and came into effect on 26 January 1950. Date 26 January was chosen to commemorate the Purna Swaraj declaration of independence of 1930.

It declares India to be a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, and liberty, and endeavours to promote fraternity among them. Constitution was formed on the 26th of November in 1949 by the Constituent Assembly and came into force on the 26th of January 1950. Fundamental Duties of the citizens of India mentioned in Article 51A of the Indian Constitution. By the 42nd Amendment of the Constitution, adopted in 1976, Fundamental Duties of the citizens have also been enumerated.

The Fundamental duties have been incorporated in the constitution to remind every citizen that they should not only be conscious of their rights but also of their duties. The concept of Fundamental Duties was taken from the constitution of USSR along with the concept of Five Year Plan.

The Fundamental Rights in Part III, the Directive Principles of State Policy in Part IV and the Fundamental Duties in Part IVA forms a compendium and have to be read together. It is true that there is no legal sanction provided for violation or non-performance of Fundamental Duties. There is neither specific provision for enforceability nor any specific prohibition. However, Fundamental Duties have an inherent element of compulsion regarding compliance. 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 perform these Fundamental Duties actively. It is said that by their nature, it is not practicable to enforce the Fundamental Duties and they must be left to the will and aspiration of the citizens. However, in the case of citizens holding public office, each and all Fundamental Duties can be enforced by suitable legislation and departmental rules of conduct. Appropriate sanctions can be provided for lapse in respect of each Fundamental Duty and it is quite practicable to enforce the sanction against every citizen holding a public office; for instance, departmental promotions can be deferred, increments can be withheld, etc. If an officer takes part in a strike or stalls the proceedings of his institution, he can be made to forgo the salary for that day.

For the proper enforcement of duties, it is necessary that it should be known to all. This should be done by a systematic and intensive education of people that is by publicity or by making it a part of education. The Law minister has himself suggested it.

In M.C. Mehta (2) v. Union of India, the Supreme Court has held that under Art. 51-A (g) it is the duty of the Central Government to introduce compulsory teaching of lessons at least for one hour in a week on protection and improvement of natural environment in all the educational institution of the country.

In AIIMS Students Union v. AIIMS, speaking about the importance of Fundamental Duties enriched in Article 51-A while striking down the institutional reservation of 33% in AIIMS coupled with 50% reservation discipline wise as violative of Article 14 of the Constitution, the Supreme Court said that they are equally important like fundamental rights.

2. Inception of the Indian Constitution

The Constitution of India came into force on 26 January 1950. Since then, the day is celebrated as Republic Day. However, before 1950, 26 January was called Independence Day. Since 26 January 1930, it was the day on which thousands of people, in villages, in mohallas, in towns, in small and big groups would take the independence pledge, committing them to the complete independence of India from British rule. It was only fitting that the new republic should come into being on that day, marking from its very inception the continuity between the struggle for independence and the adoption of the Constitution that made India a Republic.

The process of the evolution of the Constitution began many decades before 26 January 1950 and has continued unabated since. Its origins lie deeply embedded in the struggle for independence from Britain and in the movements for responsible and constitutional government in the princely states. Constitution is the supreme law of India. It is the longest written constitution of any sovereign country in the world, containing 448 articles in 25 parts, 12 schedules and 97 amendments. Besides the English version, there is an official Hindi translation. B. R. Ambedkar is the Chief Architect of Indian Constitution. Constitution was enacted by the Constituent Assembly on 26 November 1949, and came into effect on 26 January 1950.[5]

It declares India to be a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, and liberty, and endeavours to promote fraternity among them. Constitution was formed on the 26th of November in 1949 by the Constituent Assembly and came into force on the 26th of January 1950. Fundamental Duties of the citizens of India mentioned in Article 51A of the Indian Constitution. By the 42nd Amendment of the Constitution, adopted in 1976, Fundamental Duties of the citizens have also been enumerated.

In 1946, the British decided to examine the possibility of granting independence to India. As a result, a British cabinet mission was despatched to India to hold discussions with the representatives of British India and the Indian States in order to agree on the framework for writing a constitution, and, to set up a constituent body and an executive council. Following this mission and the ensuing negotiations, a Constituent Assembly was indirectly elected by the provincial legislatures comprising 278 representatives and 15 women. Parties represented in the CA were the Congress Party which had a majority, Muslim League, Scheduled Caste Federation, the Indian Communist Party and the Union Party. The CA met for the first time in December 1946 and by November 1949 the draft constitution was approved. The constitution went into effect in January 1950 and the CA was transformed into a Provisional Parliament.

The Constitution which is still in force has been amended over 90 times making it one of the most frequently amended constitutions in the world. It is also known to be one of the longest and most detailed in the world with 395 articles and 10 appendixes called schedules.

Key timelines in the 1948 constitutional process

1946 Britain decides on to grant independence to India and cabinet mission is dispatched to India to discuss modalities for transfer of power
14 August 1947 Proposal for creation of committees is tabled
29 August 1947 Drafting committee is established
6 December 1947 Constituent Assembly formally convenes for the first time, following elections, to start the process of writing a constitution.
4 November 1947 Draft is finalized and submitted
1948 – 1949 Constituent Assembly meets in sessions open to the public
26 November 1949 Constituent Assembly adopts final draft making it official
26 January 1950 Entry into force of the new constitution

 

3. Fundamental Duties

Fundamental Duties of the citizens of India mentioned in Article 51A of the Indian Constitution. By the 42nd Amendment of the Constitution, adopted in 1976, Fundamental Duties of the citizens have also been enumerated.

Following are the Fundamental Duties under the Constitution of India which is given in Part IV-A of the Constitution of India which was inserted by the (42nd Amendment) Act, 1976.
It shall be the duty of every citizens 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 service 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 the 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 endeavour 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 six and fourteen years.]

The Fundamental duties have been incorporated in the constitution to remind every citizen that they should not only be conscious of their rights but also of their duties. The concept of Fundamental Duties was taken from the constitution of USSR along with the concept of Five Year Plan.

Part IV-A of the Constitution (Forty-second Amendment) Act, 1976, in accordance with the recommendations of the Swaran Singh Committee in order to bring out Constitution in line with Article 29 (1) of the Universal Declaration of Human Rights, 1948 and the Constitutions of countries like Japan, China, U.S.S.R. etc.

Article 29 (1) of the Universal Declaration of Human rights, 1948, states:

“Everyone has duties to the community in which alone the free and full development of his personality is possible.”

It is the basic principle of jurisprudence that every right has a correlative duty and every duty has a correlative Right. But the rule is not absolute. It is subject to certain exceptions in the sense that a person may have a right, but there may not be a correlative duty.

In Chandra Bhawan Boarding v. State of Mysore, the Supreme court made the following observation prior to the insertion of Article 51-A:

“It is a fallacy to think that our Constitution, there are only rights and no duties. The provisions in Part IV enables the legislature to build a welfare society and that object may be achieved to the extent the Directive Principles are implemented by legislation.”

The Supreme Court has referred to these duties in the context of clause (g)--pollution matters and Clause (j)--excellence in the civil service.

In A.I.I.M.S. Student’s Union v. A.I.I.M.S., a three-Judge Bench of the Supreme Court made it clear that fundamental duties, though not enforceable by a writ of the court, yet provide valuable guidance and aid to interpretation and resolution of constitutional and legal issues. In case of doubt, peoples’ wish as expressed through Article 51-A can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the courts. The fundamental duties must be given their full meaning as expected by the enactment of the Forty-second Amendment.

In Mohan Kumar Singhania v. Union of India, a governmental decision to give utmost importance to the training programme of the indian Administrative Service selectees was upheld by deriving support from Article 51-A (i) of the Constitution, holding that the governmental decision was in consonance with one of the fundamental duties.

In Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, a complete ban and closing of mining operation carried on in Mussoorie hills was held to be sustainable by deriving support from the fundamental duty as enshrined in Article 51-A (g) 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. Enforceability of Fundamental Duties

The fundamental duties enjoined on citizen under Article 51-A should also guide the legislative and executive actions of elected or non-elected institutions and organisations of the citizens including the municipal bodies.

Duties are observed by individuals as a result of dictates of the social system the environment in which one lives, under the influence of role models, or on account of punitive provisions of law. It may be necessary to enact suitable legislation wherever necessary to require obedience of obligations by the citizens. If the existing laws are inadequate to enforce the needed discipline, the legislative vacuum needs to be filled. If legislation and judicial directions are available and still there are violations of duties by the citizens, this would call for other strategies for making them operational.

The legal utility of fundamental duties is similar to that of the directives; while the Directives are addressed to the state, so are the duties addressed to the citizens, without any legal sanction for their violation. The citizen, it is expected, should be his own monitor while exercising and enforcing his Fundamental rights. He should keep in mind that he owes the duties specified in Article 51-A to the State and if he does not care for the duties, he does not deserve the rights.

of course, the duties as such are not legally enforceable in the Courts of law, but if a law has been made to prohibit any act or conduct in violation of the duties, it would be reasonable restriction on the relevant Fundamental Rights.

However, the fundamental Duties are not enforceable by mandamus or any other legal remedy

Directions to State/Central Government.—Since the Fundamental Duties are not addressed to the State, a citizen cannot claim that he must be properly equipped by the state so that he may perform his duties under Article 51-A. However, the Supreme Court has issued directions to the States, having regard to Article 51-A (g).

Protection of environmental—Duty of.—In view of the duty to protect and improve the natural environment including forests, lakes, rivers and wild-life and to have compassion for living creatures imposed on the citizens under Article 51-A (g) of the Constitution, the Supreme Court has held that it is a duty of the Central Government to take a number of steps in order to make this provision effective, and issued the following directions to the Central Government—

a) To direct all educational institutions throughout India to give weekly lessons in the first ten classes, relating to the protection and improvement of the natural environment including forest, lake, rivers and wild life.

b) To get text books written for the said purpose and to distribute them free of cost.

c) To introduce short term courses for training of teachers who teach this subject.

d) Not only the Central Government but also the State Government and local authorities are to introduce cleanliness weeks when all citizens including member of Executive, the Legislature and the judiciary should render free personal service to keep their local areas free from pollution of land, water and air.

5. Conclusion
The Directive Principles of State Policy and Fundamental Duties are sections of the Constitution of India that prescribe the fundamental obligations of the State to its citizens and the duties of the citizens to the State. The Fundamental Duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. These duties, set out in Part IV–A of the Constitution concern individuals and the nation. Citizens are morally obligated by the Constitution to perform these duties. The Fundamental Duties are however, not legally enforceable, i.e. without any legal sanction in case of their violation or non-compliance.

There is a need for these duties to be obligatory for all citizens, subject to the State enforcing the same by means of a valid law, or else the law stands in a very disadvantageous position. The Supreme Court has finally, issued directions to the State in this regard, with a view towards making the provisions effective and enabling a citizens to properly perform their duties properly. This project was an attempt to check the enforceability of the fundamental duties under the different statutes, which have been references to the Indian Constitution.

BIBLIOGRAPHY
Secondary Sources
Books
· Pandey J.N., The Constitutional Law of India, $9th Edition, Central Law Agency, Allahabad
· Bakshi P.M., The Constitution of India, 12th Edition, Universal Law Publishing Co. Ltd., New Delhi
· Dr. Singhvi L.M., Constitution of India, Vol. II (Art. 23-239), Thomson Reuters
· Basu Durga Das; Commentary on the Constitution of India, 8th edn. 2011, Vol. 9 (HB), 9788180387043, Published 2011
· ARVIND P DATAR; Datar Commentary On Constitution Of India (3 Vols.); 9788180382482, Published Year 2007 (Rerpint 2010)
· Jain M P; Outlines of Indian Legal and Constitutional History; 9788180382642; Published Year : 2009 (Reprint 2010)

Case Laws
· M.C. Mehta (2) v. Union of India, (1983) 1 SCC 471
· AIIMS Students Union v. AIIMS, AIR 2001 SC 3262
· Aruna Roy v. Union of India, AIR 2002 SC 3176
· State of Gujarat v. Mirazpur Moti kureshi Kassab Jamat, AIR 2006 SC 212
· Mr. X v. Hospital Z, AIR 1999 SC 495 (499)
· Chandra Bhawan Boarding v. State of Mysore AIR 1970 SC 2042
· Mohan Kumar Singhania v. Union of India AIR 1992 SC 1
· Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh AIR 1987 SC 359
· Government of India v. George Philip AIR 2007 SC 705

# Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, Allahabad, p.433
# (1983) 1 SCC 471
# AIR 2001 SC 3262
# Pandey J.N., The Constitutional Law of India, $9th Edition, Central Law Agency, Allahabad, pg. no. 431-435
# Bakshi P.M., The Constitution of India, 12th Edition, Universal Law Publishing Co. Ltd., New Delhi, pg. no. 110
# Pandey J.N., The Constitutional Law of India, $9th Edition, Central Law Agency, Allahabad, pg. no. 431-435
# Inserted by the Constitution (Eighty-sixth Amendment) Act, 2002
# Dr. Singhvi L.M., Constitution of India, Vol. II (Art. 23-239), Thomson Reuters, Pg. 1934
# Mr. X v. Hospital Z, AIR 1999 SC 495 (499)
# AIR 1970 SC 2042
# Ibid
# AIR 2001 SC 3262
# AIR 1992 SC 1
# AIR 1987 SC 359
# Government of India v. George Philip AIR 2007 SC 705 p.712
# Dr. Singhvi L.M., Constitution of India, Vol. II (Art. 23-239), Thomson Reuters, Pg. 1934
# Rural Litigation v. State of U.P. AIR 1987 SC 359
# M.C. Mehta v. Union of India AIR 1988 SC 1115

 




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