The constitution duties or the fundamental duties have their roots in the true sense, not in the Constitution of India or the Government of Indian Act 1935. You can even hardly find any record of discussion over it in the constituent assembly. Infact it is just a side product of the culmination of decades-long power tussle between the Judiciary and the Legislative. In the winters of 1976, the then Prime Minister, Mrs Indira Gandhi’s quest for unfettered power brought dark gloomy clouds all over India. She proclaimed National Emergency to keep at bay all the dissenting voices starting to stand against her. It was around this turmoil when the parliament introduced the 42nd Constitution Amendment which promised to amend so many provisions of the constitution that it itself was called Mini-Constitution. One such provision was the introduction of Fundamental Duties. It is anybody’s guess that what could have been the reason for introducing fundamental duties to our constitution when just 30 years before our forefathers hardly discussed such an idea while framing the Constitution.
What are Fundamental Duties?
The 42nd Constitutional Amendment Act, 1976, included Article 51-A into the Indian Constitution, establishing Fundamental Duties. Originally there were 10 Fundamental Duties, namely- Abide by the Constitution and respect national flag & National Anthem; Follow ideals of the freedom struggle; Protect sovereignty & integrity of India; Defend the country and render national services when called upon; Sprit of common brotherhood; Preserve composite culture; Preserve natural environment; Develop scientific temper; Safeguard public property; Strive for excellence.
The inclusion of Fundamental Duties in the Constitution was the direct result of the criticism of Indira Gandhi’s suppression of Fundamental Rights. She strived to develop nationalism feeling through these Fundamental Duties. To make it feasible, the government set up Swaran Singh Committee which recommended the Fundamental Duties’ addition in the Constitution. The committee proposed 8 fundamental duties to be added in the Constitution but the government added 10 and even ignored 3 duties recommended by the committee. Those duties ignored by the legislature were: The parliament may provide for the imposition of such penalty or punishment as may be considered appropriate for any non-compliance with or refusal to observe any of the duties; No law imposing such penalty or punishment shall be called in question in any court on the ground of infringement of any of Fundamental Rights or on the ground of repugnance to any other provision of the Constitution; Duty to pay taxes should also be a fundamental duty of the citizens. The addition of these duties would have meant that the Fundamental Duties would have been justiciable. But the government, already facing criticism on all fronts could not have afforded this. In effect, the fundamental duties are non-justiciable, i.e., the non-compliance of these provisions can’t be challenged in any court.
At that time, the majority voices were against such a provision in the Constitution. But to the surprise, when Janta Government took to power they did repeal a number of provisions of the 42 Constitution Amendment Act but left the Fundamental Duties unvisited.
Subsequently, the Atal Bihari Vajpayee government came to power and added another duty to the list through the 86th Constitution Amendment Act, 2002. This duty, ‘to provide opportunities for education to his child or ward between the age of six and fourteen years,’ is a precursor to Article 21A, which talks about ‘Right to Education. The addition of these duties also meant that India came in line with Article 29(1) of the Universal Declaration of Human Rights.
Constituent assembly and Fundamental Duties
The fundamental duties could be traced back to the socialist constitution of the erstwhile USSR. All around the globe, the socialist governments, in order to establish a welfare state felt the need for some provision that could remind their citizens about their duties towards their state. However, the capitalist governments were well ahead in terms of development and their citizens were aware of their duties. Duties and rights go hand in hand. A state can’t progress without focusing on both. India has always been a mixture of both, socialist as well as capitalist.
As a result, Constitution Assembly didn’t consider it to be incorporated into our Constitution. Today except for India, Japan is the only democratic nation to have fundamental duties in its Constitution.
Are Fundamental Duties really non justiciable?
Even though the fundamental duties are non-justiciable on the face of it but some of the duties do have backing up by-laws consistent in the country. The Prevention of insult to National Honor Act, 1971, prevents disrespect to the Constitution of India. Further, the Indian Penal Code, 1860, Representation of People Act, 1951, the Wildlife (Protection) Act of 1972, the Forest (Conservation) Act of 1972 and the Right to Education are some of the provisions of law that do back up a number of Fundamental Duties enshrined in the Constitution.
The Hon’ble Karnataka High Court in Grahaka Jagruti v. the State of Karnataka has observed that the fundamental duties can’t be enforced by any court of law. It further observed that if the legislature makes a law to render the non-performance of any of these duties punishable, such a law can therefore make the duty justifiable. Therefore, although the Fundamental Duties are supposed to be non-justiciable, the government has, from time to time introduced laws to back the duties which grow necessary for the welfare of the State.
CONCLUDING REMARKS: Why DOES no one talk about their Duties?
Let’s change this question. Why should one talk about their duty? Mahatma Gandhi once said, “No people have risen who thought only of rights. Only those did so who thought of duties.” Our duty is the rights of the other. What is our duty is the right of someone? Duties and Rights are complementary to each other. They must go hand in hand. So why is it that we are aware of our rights but oblivious of our duties? Because even in 2021 we, as a society, don’t understand our duties towards the nation.
We are so self-centred with our rights that we have never bothered to talk about our duties. It is quite rare for an individual who is a fundamental unit of society to be pushed and inspired to actually participate and be a part of creating a positive difference in society. Fundamental duties are our obligations to the State. Unfortunately, the duties are deep buried in our Constitution.
We have social activists and non-governmental organizations to report fundamental rights violations done by the state but no such measures are taken to make people aware of our moral responsibility embedded in our Constitution as our duties. One prime reason which can be understood is the non-enforceability of fundamental duties. While some violations of duties like scratching our names on National monuments can be punished others like not developing scientific temper or not striving for excellence can’t be challenged before any court of law.
Author(s) Name: Anmol Yadav (Banaras Hindu University, Banaras)