An Overwhelming Trust on the Ethical and Moral Standards of India

Aakash Laad[1]

“Everyone has duties to the community in which alone the free and full development of his personality is possible”[2]

This article was drafted long back in 1948, when the development of the legal faculties of the society was at minimal and most of the Constitutions of the World did not have the provision for the duties as a correlative to the rights provided to the citizens. In fact, till date, there are not many jurisdictions, which provide for the duties of a citizen as a correlative to their rights.[3]At the outset itself, let us clear the definition of duty. So, what does the word ‘duty’ actually mean? In my opinion, it means that there is a particular conduct or standard of procedure, which a person is bound to follow, in order to make a society liveable. You can swing a sword in your ambit, howsoever you want; this is your right, however, the moment that sword crosses your ambit and disturbs the peace of others, you must restrict and respect their freedom too; this is your duty. There are different connotations of ‘duty’ under different jurisdictions. This essay, however, shall limit itself on how the issue is placed under the Indian constitutional regime.

Under the Indian Constitution, the Part of Fundamental Duties[4] was not initially inserted and came into being by the Forty-Second and Eighty-Sixth Amendment Acts in 1976 and 2002 respectively. The idea of having the Fundamental duties was borrowed from the Constitution of USSR (now Russia), however, the importance supplied to the Fundamental Duties in India lacks somewhere as against the same being supplied to the Fundamental Rights.

The trust of the lawmakers upon the citizens of India was overwhelming, as there was no legal sanction provided to Fundamental Duties and it was inserted as a moral or rather ethical obligation of the citizens towards its Nation. Though, most of the duties are secured through an Act or regulation, however, those are applicable only in case of a person holding any public office and not to private persons. This is a huge lacuna in ensuring the compliance of the Fundamental Duties.

The Constitution of India is one of the lengthiest Constitutions of the World and therefore, comprises a very comprehensive set of guidelines and since, the purpose of the law is not only to address the concerns of the victims of injustice but also to ensure balance to the society, and thus, Constitution provides rights as well as duties of the citizens. However, such a balance can be struck only when both the things act in the same capacity and the compliance for both is being ensured by the State machineries. In the Indian scenario, Fundamental Rights are given supreme emphasis and the duties, on the other hand, are not even legally sanctioned and just like DPSPs, offer no justifiability.

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The Courts in India have taken a differential approach towards the enforceability of the Fundamental duties. They have been particularly enforced in the cases and litigation concerning the natural environment, which means that Article 51A (g) has been supplied sufficient emphasis by the legal adjudicatory authorities in India.[5] The Court has also justified the importance of Fundamental Duties by holding it as an aiding mechanism to interpret other Constitutional and Legal values and provisions of India.[6]Unlike Fundamental Rights, the Fundamental Duties are unenforceable through Writs, however, they can be used for the understanding the interpreting unambiguous statutes and can be promoted for ensuring compliance of Constitutional Regime in India.[7] Fundamental Duties have been categorised as deeds of excellent character and have been read within the ambit of Constitutional Law.[8]

The principle of Jural Relations in the jurisprudence teaches us that Rights and Duties are correlatives and every right has a duty attached to it, as no person must exercise ultimate freedom or enjoyment without any liability attached to such exercise, there would be a mayhem in such a scenario and hence, this notion of Jural correlatives came into existence. In fact, the Court has been of the view that Part III must not be read independently and must be read along-with Part IV (DPSPs) and Part IVA of the Constitution.[9]This clarifies the intent of the Court that it has been in favour of making the citizens compliant of Fundamental Duties; however, there is no legal sanction that runs parallel to this provision and can help the Courts to impose punitive measures on the citizens on being non-compliant of these duties.

The Fundamental Duties have been held as a guiding factor for the local governing bodies for taking any legislative or executive actions, which in turn, affects the citizens.[10]Though, the Court cannot direct the Government to enforce the Fundamental Duties[11], but it had directed the Central Government to make a strategic plan as to how the citizens of India must be educated on the awareness of the Fundamental Duties, to make them justifiable and to attach punitive measures on their non-compliance.[12]The Court cannot make a law, it can only help in its proper compliance and implementation, and therefore, it has urged the Government to attach significant measures to effectuate the provision of Fundamental Duties, as due to its absence, the Court cannot ensure the compliance of Fundamental Duties. The Court has also interpreted the provisions of the Constitution of India either in the light of the directive principles of State policy as contained in Part IV of the Constitution of India or fundamental duties as adumbrated in Part IV-A thereof or both and while applying that, it interpreted Article 19 with having regard to Article 51A.[13]

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Recently, there was an interim order, which made it mandatory for all the Theatres in India, to play the National Anthem before playing the movie.[14]However, in the final judgment, the bench made it directory and not mandatory after several criticisms of imposed patriotism from the supporters of ‘choiced patriotism’. The term ‘choiced patriotism’ refers to when someone can be patriotic by choice, however, one need to be respectful for the things of National origin or importance. Previously, the Supreme Court held that merely showing respect to National Anthem is good enough and forcefully singing it is the breach of your Right to Liberty.[15]This case has been talked about in this essay to show that even if the Court has made a duty mandatory, it was later made directory and the citizens are only responsible for a negative duty towards the Nation. Negative duty in the sense that a citizen has a duty NOT to disrespect any National ideal, but respecting any ideal is a complete matter of personal choice and pursuant to the case of Justice (Retd.) K.S. Puttuswamy v. Union of India[16] and the emergence of right to privacy as fundamental right, personal choices cannot be questioned unless not in contravention with any law of the land. The positive obligations must be complied with by the States to ensure a proper development of the citizens as well as the Constitutional establishment in India.

Ultimately, what I would like to propose is that if there is a provision for Fundamental Duties in the Constitution, there must be a proper mechanism for its actual implementation. The National Commission to Review the Working of the Constitution has also recommended some steps relating to Fundamental Duties.[17] What I suggest is that all those who enjoy the rights must perform Fundamental Duties without any fail and the Legislature must make comprehensive lists of new and relevant duties like duty to vote or fight corruption, etc. There must be an awareness and sensitisation drive to aware the citizens of the importance and need to abide by the duties written in the Constitution of India.

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“Moral and Ethical Duties are inseparably connected to and are supported by the legal pillars”.

[1] Student at Dr. RML National Law University, Lucknow.

[2] Universal Declaration of Human Rights, 1948, Art.29 (1).

[3] M.V. Pylee, Select Constitutions of the World (2nd edn., 2003).

[4] Indian Const., Part- IVA.

[5] Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, A.I.R. 1987 S.C. 359.

[6] A.I.I.M.S. Students’ Union v. A.I.I.M.S., A.I.R. 2001 S.C. 3262.

[7] Mumbai KamgarSabha v. Abdulbhai, A.I.R. 1976 S.C. 1455.

[8] Ram Prasad v. State of Uttar Pradesh, A.I.R. 1988 All 309.

[9] Javed v. State of Haryana, A.I.R. 2003 S.C. 3057.

[10] Om Prakash v. State of Uttar Pradesh, A.I.R. 2004 S.C. 1896.

[11] P.T.I., Court can’t direct government to implement Fundamental Duties: SC, The Indian Express, Apr. 24, 2017.

[12] Rangnath Mishra v. Union of India, (2003) 7 S.C.C. 133.

[13] Union of India v. Naveen Jindal, A.I.R. 2004 S.C. 1559.

[14] Shyam NarayanaChouksey v. Union of India, W.P. (C) 855/2016.

[15] Bijoe Emmanuel v. State of Kerala, A.I.R. 1987 S.C. 748.

[16] Justice (Retd.) K.S. Puttuswamy v. Union of India, W.P. (C) 494/2012.

[17] Tanmay Sen & Navin Sinha, Fundamental Duties: An analysis in the Indian Context 21, (Practical Lawyer September, 2001).