Fundamental Rights, yes. What about Fundamental Duties?

Roughly two years ago, the Supreme Court dismissed a petition that sought the implementation of Justice JS Verma Committee’s recommendations for the legal enforcement of Fundamental Duties as enshrined in Part IV (A) of the Constitution of India. A two-judge apex court Bench had wondered how it could “direct the Government to implement Fundamental Duties”. Addressing the petitioner, a member of the ruling BJP, the Bench suggested that the Government could take the initiative in the enforcement. “You are the Government. You are so powerful that you can get this done.”

The matter rests there. Meanwhile, there have been cases where Fundamental Duties have been brazenly flouted by people — and not just lay persons but also at times by officers of the law — without attracting any retribution save stern words of condemnation from the courts. Interestingly, over the decades, the callousness towards Fundamental Duties has been matched by a trenchant drive to protect and enforce Fundamental Rights which have been laid down in Part III of the Constitution. Indeed, the scope and interpretation of these rights have been enlarged by the country’s highest court to an enormous extent. While this is welcome, the failure to simultaneously enforce Fundamental Duties has created a lopsided situation where the public is ever ready to exploit the rights it has but is lackadaisical in adhering to its duties under the Constitution.

The framers of the Constitution had not included ‘duties’ separately, perhaps in the belief that citizens would not only be well aware of them but would be conscious enough to follow them. That clearly did not happen, which is why the Constitution was amended in 1976, and Part IV (A) was inserted pursuant to the Constitution (42nd) Amendment Act, 1976. This Part came after the existing Part IV which deals with Directive Principles of State Policy. Article 51A, which too came in the wake of the constitutional amendment, set in clear terms the ‘duties’ of every citizen towards the country.

It can be argued that one of the reasons for the amendment could have been a desire by the Indira Gandhi regime to strengthen its hold in the midst of the internal Emergency it had declared. The new Part had been added following the recommendations of the Swaran Singh Committee, which suggested that steps needed to be taken to ensure that the individual did not overlook his duties while in exercise of his Fundamental Rights (which at times led to agitations that resulted in wanton destruction of public property etc.). The panel had gone to the extent of recommending punishments for breach of such duties, but the suggestion was not accepted by the drafters of the amendment Bill. Whatever the intention may have been of the Government of that day, the fact of Fundamental Duties finding secondary importance in the legal scheme of things remains.

Article 51A begins by stating that “it shall be the duty of every citizen of India —” and proceeds to identify ten areas where such duties must be followed. This includes abiding by the Constitution and respecting “its ideals and institutions…”; safeguarding “public property” and abjuring “violence”; and, upholding and protecting the “sovereignty, unity and integrity of India”. The insertion of the new Article, many legal experts had claimed, had brought the Constitution of India in line with the Universal Declaration of Human Rights.

But the well-intentioned concept of Fundamental Duties has been fettered by the lack of legal backing. In some ways its fate has been like that of the Directive Principles of State Policy — pious pronouncements of an advisory nature. The difference is that, while the Directive Principles are addressed to the States, the Fundamental Duties are individual-centric. The commonality is that both are essentially toothless entities for want of legal enforcement. It has been made clear by the judiciary time and again that its hands are tied and that the Legislature must initiate measures for enforcement through the enactment of laws. In fact, even prior to the insertion of Article 51A and the amendment which introduced Part IV (A) to the constitution, the Supreme Court had observed: “It is a fallacy to think that under our Constitution there are only rights and no duties. The provision in Part IV (relating to Directive Principles) enable the Legislatures to impose various duties on the citizens.” The court also remarked that the mandate of the Constitution was to build a “welfare society” and that this objective may be achieved “to the extent that the Directive Principles are implemented by legislation.”

What is true of Directive Principles is also true of Fundamental Duties. The question that arises is: When there has been difficulty, given the fractious nature of Indian politics, in implementing the Directive Principles, what chance does Fundamental Duties have in being enforced through a legislation that is acceptable to all section of the Indian political ecosystem? And, in the absence of enforcement, can even the better-informed citizens voluntarily set an example in upholding Fundamental Duties? A few recent incidents do not give cause for optimism. After a recent ruling of the apex court in the battle of primacy between the elected Government of Delhi and the Lieutenant Governor, a Rajya Sabha member of the ruling party in the State lashed out at the court and said: “Can the Supreme Court not give a verdict against Modi’s will… Is it Supreme Court or Naib Tehsildar court?” This is a clear violation of one of the Fundamental Duties enumerated in Article 51A, which speaks of respecting institutions.

On another occasion, a sitting judge of the Supreme Court, Justice Arun Mishra, lamented about the conduct of certain lawyers. “They discuss court proceedings on television. We are abused like nothing.” The manner in which Deepak Misra was sought to be hounded when he was the Chief Justice of India, is still fresh in the mind. Then too, the lobby which led the campaign had thrown Fundamental Duties to the wind by irresponsibly questioning the judiciary’s integrity. Yet other instance, but different from the ones above, highlights the general disregard for Fundamental Duties. One of the areas which Article 51A identified was the destruction of public property in the name of agitations (which are considered part of one’s Fundamental Rights — the right to freedom of expression, etc.). Three years ago, the apex court had taken strong note of protests that caused damage to public property. It said: “No one can hold the country to ransom during agitations.” It said that people who indulged in acts of damage to public property should be made to pay. More recently, an year ago, the Bombay High Court observed: “We are of the firm opinion that, if those causing destruction and damage to public property in the garb of holding peaceful agitation.. have to be proceeded against for civil wrongs together with criminal prosecution, then the law postulates a recovery… of monetary sums.”

None of these observations has made the slightest difference to the offending parties because Fundamental Duties are not enforceable unless they are legislated. Given that in many cases the leading agitators are lawmakers themselves from various political outfits, it is rich to assume that they would want a legislation to curb such activities which give them the leverage to bargain better deals for themselves.

(The writer is an author, senior political commentator and public affairs analyst.)