Fundamental duties: is the unaccountability justified?

Shivangi Mishra[1]

In a civilized modern democratic country, a citizen is endowed with certain basic rights which adumbrate the route to the ultimate stage of self-actualisation. Concomitantly existent with the idea of these rights is the concept of duties. Axiomatic it is, that the concept of rights and duties are so inextricably linked that it would not be legally possible to define one without taking recourse to another. In line with the aforesaid statement, it can be safely deduced that the doctrine of ‘duties’ highlights the fact that while gleefully exercising their own rights, individual entities of the state ought to realize that they are under an entailing obligation to let other entities enjoy their respective rights. Duties, hence denote the ethical considerations that binds an individual towards the society. The vibrancy of the enormous sky of moral duties would be sapped without the aspect of the ‘nation’. The concept of ‘duties’ is touted as a cohesive force that binds the disparate elements of a country to form a united nation that thrives on the spirit of fraternity and togetherness. The drive to discharge such duties must come from within. National obligations are intangible thought-processes that cannot be cultivated, for God has provided unabashed liberty of emotions to mankind. It is only when the inner firmament of each individual strikes, that duties come to be defined. If enforceability of duties would bank solely on the instruments of sanction and policing wielded by the State, it would lead to the commission of the fiasco of mechanically extracting the natural nectar from the flower of nationhood. Such an overblown image of a disciplinarian State makes one envision an individual held at gunpoint and being asked to display unconditional love for the country lest he be shot point blank. Contrariwise, the cluster of rights are not mere jardinières where emotions grow as is the case in the realm of duties, rights can function without the glint of fluid sentiments, rights can be asserted because they are concrete entitlements that have been bestowed upon human beings by God and the State simply acts as an intermediary to ensure that citizens enjoy these rights. In the Indian landscape, where the spirit of pluralism emboldens the democracy, the plant of duties has to be tenderly nurtured and judiciously watered. And therefore it has to be carefully deliberated upon whether the duties that citizens owe towards the country should be circumscribed within the frontiers of strict legal enforceability or the countrymen should be accorded creative space and considerable autonomy while fulfilling duties towards the nation.

Also Read  Access to Justice for Victims of Trafficking and Prostitution: A Compilation of Laws in India

The cliché, ‘Rights and duties are two sides of the same coin’, is now merely suggestive of unmindful repetition. This is because ‘Rights’ are placed rungs above the ‘duties’ in the constitutional ladder of enforceability and applicability. Palpably so, the Indian Constitution gives primacy to fundamental rights over the fundamental duties. 

About the relevance of duties, Russ Shafer scathingly highlights the theory of ethical intuitionism which underscores the idea of giving primacy to a multitude of pluralistic moral duties,

“First, intuitionism is held to be unsystematic, offering us merely a ‘heap of unconnected duties’ with no unifying rationale. Thus D.D. Raphael complains that, while intuitionism ‘gives a reasonably accurate picture of everyday moral judgment… it does not meet the needs of a philosophical theory, which should try to show connections and tie things up in a coherent system. Second, intuitionism can give nothing in the way of general guidance to the agent who is faced with a conflict of duties, because it refuses to rank duties in order of importance or stringency. In fact, Ross, who offers the most fully worked-out version of intuitionism, does offer a systematic justification for the list of fundamental duties he puts forward, and does claim that some duties are more stringent than others.”[2]

The unaccountability of Fundamental Duties has been resented by an appreciable section of national fundamentalists, they advocate that a set of firmly structured deontic principles shall be brought within the protective sphere of enforceability. The aforementioned excerpt by Shafer makes it clear that while pressing for ‘enforceable duties’, it has to be borne in mind that those set of obligations make a coherent and well- knitted composition. Further, Shafer remarks that the duties have to be ordered and ranked by taking recourse to a hierarchical pattern so that the relevance of these duties can be reasonably ascertained. In the Indian context too, this process of ranking the deontic moral obligations plays a vital role as the huge spectrum of moral obligations differ in terms of relevance and applicability. Hence, in order to champion the authority commanded by Fundamental Rights, the Fundamental Duties have to be stratified in terms of legal rectitude and moral exactitude and not with regard to legal exactitude and moral rectitude. The principles of the Constitution didactically declare that the jurists and lawmakers should not be entrapped in the labyrinth of delicate sentiments and moral cushions.

Also Read  The Malediction of Juvenile Delinquency

The three ideals of gratitude, fidelity and beneficence govern the rules concerning the enforceability of duties. Russ Shafer’s viewpoint adduces the aforesaid statement, “That duty ‘arises from’ (at least in the ideal case) three basic duties: gratitude, fidelity, and beneficence. We should be grateful for the benefits we have received from the state; we have made an implicit promise to obey by retaining permanent residence in a country whose laws we know we are expected to obey; beneficence also requires us to obey the laws because they are ‘a potent instrument for the general good’.”[3]

We are now equipped with three indicators that will help us in measuring and determining the importance of duties to bring it within the protective fold of enforceability. We may, hence, order these indicators in terms of hierarchical primacy. The elements of ‘gratitude and fidelity’ occupy the highest pedestal because these are interlinked concepts central to the functioning of the State machinery and sans them the nation would become a bunch of ungrateful opportunists. If not for these supreme duties as provided below, the nation would become prone to secessionist tendencies,

  1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;[4]
  2. To cherish and follow the noble ideals which inspired our national struggle for freedom[5];
  3. To uphold and protect the sovereignty, unity and integrity of India.[6]

The remaining eight fundamental duties[7]fall within the ambit of the measure of beneficence which despite having enormous significance as guiding principles, should not be made enforceable as that would lead to the State asking its citizens to forcibly develop affection regardless of their creative freedom. The instrument of enforceability should not strike these duties unless major disruptions be caused.

As regards the first three duties in Part IVA of the Indian Constitution, it is imperative to state that in spite of the fact that they be made enforceable, it is essential to shield them from the vice of misinterpretation. A finely judged and balanced view has to be adopted in order to avert explosive jingoism. The Bijoe Immanuel[8] verdict exemplifies the art of sensitively and sensibly balancing the twin concepts of gratitude and fidelity. When three students belonging to the Jehovah sect stood respectfully while the National Anthem was being played but refused to sing the same, the Court wisely opined that the children showed proper respect while standing up and did nothing to destroy the tapestry of Article 51A (a).

Also Read  Fiscal Policy vis-à-vis Goods and Services Tax regime in India

It is true that the duties comprising the aspect of gratitude and fidelity must be made enforceable but a despotic interpretation of these duties without applying the principles of sound reasoning and considerate accommodation would only lead to blind and callous reverence of the deontic principles. When the Supreme Court revised its judgment in Shyam Narayan Chouksey[9] declaring that it would be tyrannical to compel people to stand up and extremely barbaric to shut the entry and exit doors of the cinema halls while the National Anthem is being played, it orchestrated the victory of the ideals of gratitude, fidelity and beneficence.

As we conclude, we have gathered that it is the crying need of the hour to bring certain basic duties within the parameters of enforceability but at the same time we need to be conscious of the fact that every legal matter attracting fundamental duties has to be decided considering the prevailing Indian scenario in a holistic and all-embracing manner since our Constitution is a living document that grows and evolves with changes in time and tide.

[1] Student, B.A. L.L.B. (Hons.), Iv Semester, Faculty Of Law, Jamia Millia Islamia, New Delhi.

[2] Ethical Theory: An Anthology, (2nd ed. Russ Shafer- Landau, 2007).

[3] Landau, Supra Note 763.

[4] INDIAN CONST. art. 51A, Cl. (a).

[5] INDIAN CONST. art. 51A, Cl. (b).

[6] INDIAN CONST. art. 51A, Cl. (c).

[7] INDIAN CONST. art. 51A, Cl. (d) – (k).

[8] Bijoe Immanuel v. State of Kerala, 3 SCC 615(1986).

[9] Shyam Narayan Chouksey v. Union of India, 2 SCC574 (2018).