Fundamental Duties: Enforceable or Not?

B. Pragash[1]

Topics Covered in this article

Introduction

The constitution is like Amoeba; it is the most primitive but advanced among all written constitutions in the world. Our Indian constitution serves as the perfect example to adopt and adapt the necessitated changes as we humans change our lifestyle in tide of time. Our constitution has incorporated several amendments within it and jelled with every transformation it obtained. This essay will be concentrating on a small part of it; fundamental duties. In this submission, I would like to showcase the importance of fundamental duties, the object of the amendment and the try to answer the question whether the duties are really unaccountable.

Fundamental duties

Fundamental duties are incorporated into the Constitution of India[2] through 42nd amendment in 1976.  Fundamental duties are created to improve patriotism among the citizens of India and to ignite a sense of leading a moral and ethical living. The objective is to bring the diversified Indian population under a single umbrella of nation and to promote the aims mentioned in the preamble of the constitution. With the sense of collective being, it is an indirect step to promote equality and fraternity which will reduce the need for regulations. Initially the fundamental duties are ten in number (as mentioned by Swaran Singh Committee), but later the number was increased to eleven through an amendment.[3]

Enforceability of fundamental duties

It has been widely accepted that the fundamental duties are unenforceable by the Parliament of India or any State legislature but the constant supervisory function is being performed by the Judiciary of India for a long time. Before the said amendments there existed an act which prevents the misuse of the emblem and name of the country which was enacted by the Parliament of India and has a penal flavour.[4] There exists another act which will provide penalty for insulting national flag or Constitution of India.[5] Similarly, on the microscopic analysis of each and every duty we can see each duty is lying in par with the reasonable restrictions mentioned for every fundamental right under Article 19 of the Constitution of India. Article 51A reproduces the need for equality by eliminating the varied distinction factors and promotes unity making us reiterate to fundamental rights in Part III of the constitution of India. 

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Moreover, we are provided with a bunch of precedents which emphasize the necessity to follow the fundamental duties and proved that legal actions can be made for violation of the fundamental duties. Even for mass agitations, the regulatory forces are provided power to take necessary action against the alleged group to maintain peace, public order, decency and morality. All duties though not enforceable, they are actionable under various acts and penal codes like Indian Penal Code, 1860 (Sedition and Nuisance), Criminal Procedure Code, 1973 (Nuisance), Prevention of Cruelty to Animals Act, 1960, Wildlife protection Act, 1972 and Forest Conservation Act, 1980, (Wildlife and Environment Protection).

Judiciary and fundamental duties

The judiciary started dealing with the fundamental duties from Bijoe Emmanuel Case,[6] which dealt with the tug of war between the fundamental rights and fundamental duties. Here, the appellants, three children belonging to the Jehova community refused to sing the national anthem during assembly. The Supreme Court held that the children standing for the National Anthem is a sign of giving respect to the National Anthem. This two judge bench case highlighted the need to preserve a balance between right to religion and adherence to the fundamental duties.

It is followed by the Naveen Jindal case[7], here the question arose whether the hoisting of flag in the factory premises is dishonoring the national flag? The Delhi High Court came to the conclusion that hoisting the national flag is against the Flag Code (Using the National Flag for Commercial purposes), The Emblems and Names (Prevention of Improper Use) Act, 1950 and The Prevention of Insults to National Honor Act. 1971. The Delhi High Court refused to accept the hoisting the flag as a part of freedom of speech and expression.

The above case was appealed to the Supreme Court and brought to the nation the National Anthem Case.[8] The Apex Court through its two-judge bench has accepted the view that hoisting the national flag is a part of Freedom of Speech and Expression under Article 19 of the Constitution of India. Lively comparisons have been made regarding the use of the national flags by the children and various diverse individuals to show their patriotism and love towards the nation.

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The present Chief Justice of India in his order on Shyam Narayan Chouksey v. Union of India case ordered that it is mandatory for the Cinema theatres to play national anthem before the screening of the film. This created a mixed opinion in the minds of the public. Recently in the judgment of the above mentioned case, the Honourable Chief Justice of India has deferred from his opinion and expressed that it is optional or directory for the theatres to play national anthem. The said Judgment also specified that the citizens are bound to show respect to the national anthem when it is sung or played in specified occasions and the disabled persons are given exemption.

These golden engraved cases show the nature of the Fundamental Duties and prescribe the extent to which they are enforceable. We can see in the course the shift from strict enforceability to liberal interpretation, but we can see the disputes being settled by the Apex Court.

Conclusion

From the above discussion, I would like to conclude that the unenforceability unaccountability of the Fundamental Duties is justified. Since all the duties are already a part of reasonable restrictions and penalizing offences under Constitution of India and various enactments made by the Parliament and State Legislature, it would be repetition of laws when the fundamental duties are made enforceable. In addition, the judiciary through its judicial review has discussed the nature, scope and extent of enforceability of the fundamental duties. Thus creation of laws on fundamental duties will give chances of double jeopardy and ample chances for being used against the vulnerable sect. Finally, I would like to conclude by saying that it is a myth to believe that Fundamental Duties are unenforceable and unaccountable as through careful reading of laws and constitution of India, we can precisely see the camouflaged penal favour emanating through various other laws. Henceforth, Fundamental Duties are already enforced in an indirect manner.

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[1] Student, Sastra Deemed To Be University.

[2] Indian Const. Art. 51a.

[3] Indian Const. Art. 51a.

[4] The Emblems and Names (Prevention of Improper Use) Act 1950.

[5] The Prevention of Insults to National Honor Act 1971.

[6] Bijoe Emmanuel and Others v. State of Kerala and Others, AIR 1987 SC 748.

[7] Naveen Jindal v. Union of India, 1995 IVAD Delhi 27.

[8] Union of India v. Naveen Jindal and Another, AIR 2004 SC 1559.