To Sanction Or Not To Sanction- The Fundamental Duties Debate

It was by the 42^nd amendment in 1976 that the 'Fundamental Duties' part was incorporated in our Constitution. The concept of fundamental duties was taken from the 1936 USSR Constitution, following the recommendations of the Swaran Singh Committee. The new Part IV-A consisted of a single Article i.e. 51-A and laid down ten fundamental duties for citizens. Later, by the 86th Constitutional amendment of 2002, an eleventh duty was added.

From a jurisprudential perspective, most contemporary liberal political theorists focus on rights and not duties. Duty is often spoken of in a negative sense: that is, the obligation not to violate the law. For example, to Salmond, a duty is an obligatory act, it is the opposite of that which would be wrong. Duties and wrongs are correlatives. Prof Dicey defines a "duty as a species of obligations. People obey it due to indolence, deference, sympathy, fear and reason, due to psychological, social and moral pressures." Some egalitarian liberals go further and discuss positive obligations. At various places in his book 'A Theory of Justice' John Rawls refers to 'natural duties' which includes the duty to promote and preserve just institutions.

In 2003, the former Chief Justice Ranganath Mishra wrote to the then CJI Justice VN Khare saying: "As a nation-building measure, teaching Fundamental duties in every educational institution and as a measure of in-service training everywhere," was necessary as these "cannot be inculcated in our citizens unless these are brought into their minds and living process through teaching and education". "It is the obligation of the State to educate the citizens in the matter of Fundamental duties so that a right balance between Rights and Duties may emerge." This letter was converted into a writ Petition. A three Judge bench of The Supreme Court disposed of this writ petition by taking note of the suggestions of the 1999 Justice JS Verma Committee Report^[1] and the report of the National Commission to Review the Working of the Constitution 2001, which recommended spreading awareness about the Fundamental duties etc. The Supreme Court directed the Central Government to take "appropriate steps for their implementation as expeditiously as possible."

Last week, the Supreme Court issued notice in a writ petition that inter-alia sought a direction to the Union of India "to make comprehensive well-defined laws/rules ensuring the adherence to the provisions of Part IV-A of the Constitution…" so that the directions in the Justice Ranganath Mishra matter are implemented and "for providing incentives to citizens for operationalization, enforcement and sensitization with respect to the implementation of fundamental duties."^[3] The Court has sought the Unions response on whether any steps have been taken or are proposed to be taken in pursuance of the decision in Justice Ranganath Mishra matter.

At the outset, there is unanimity of judicial opinion that Courts do not issue mandamus directing the legislature to enact laws (AK Roy^[4], SC Employees Welfare Association^[5], AR Zakki^[6]). The Supreme Court nevertheless is not powerless. In addition to reiterating the directions it has issued earlier in the Justice Ranganath Mishra matter, in the absence of an enacted law it could invoke Article 142 and lay down guidelines itself. In Vineet Narain's^[7] case the Supreme Court held that the judiciary must step in, in its exercise of Constitutional obligation to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field.

The Justice JS Verma Committee Report contains a robust exposition of ways and means to create awareness of and to inculcate fundamental duties amongst citizens. The Committees report, inter-alia recommends that:

"there is an imperative need for wider dissemination of information and generating greater awareness in regard to the Fundamental duties of citizens and obligations of citizenship." It was recommended that this could be done through organization of advocacy and sensitization programmes; display of the text of article 51A 'Fundamental Duties' prominently in government publications, diaries calendars, offices and at public places; radio and video spots highlighting important messages related to Fundamental duties on AIR, Doordarshan and other channels; setting up an autonomous body to act like ombudsman on citizenship values and for overseeing operationalisation or effectuation of Fundamental Duties; publication of small booklets on various aspects of Fundamental duties written in simple language and aimed at different levels of citizens through non-formal education, open schooling, adult education, and universalisation of literacy programmes; circumspection by electronic media on programmes, serials, pictures, news and advertisement affecting morality, decency and cultural values and heritage of the country; activist role by electronic and print media in the matter of Fundamental duties like protection of the environment; media avoiding the glorification of acts of violence, armed robberies, and terrorist activities, and the state machinery ensuring the effectuation of Fundamental Duties, where necessary, by prompt legislation."

It was further recommended that:

"It may be necessary to enact suitable legislation wherever necessary to require obedience of obligations by the citizens. If the existing laws are inadequate to enforce the needed discipline, the legislative vacuum needs to be filled. If legislation and judicial directions are available and still there are violations of Fundamental duties by the citizens, this would call for other strategies for making them operational. The desired enforceability can be better achieved by providing not merely for legal sanctions but also combining it with social sanctions and to facilitate the performance of the task through exemplar role models. The element of compulsion in legal sanction when combined with the natural urge for obedience of the norms to attract social approbation would make the citizens willing participants in the exercise. The real task, therefore, is to devise methods which are a combination of these aspects to ensure a ready acceptance of the programme by the general citizenry and the youth, in particular."

The Committee also recommended the addition of certain other duties in Part IV-A for example, the duty to vote in an election, the duty to pay taxes and the duty to resist injustice etc.

Thereafter, in 2001, The National Commission to Review the Working of the Constitution in its report reiterated the recommendations of the Verma Committee and further added that:

"The Fundamental duties set out in article 51A were not intended to be legally enforced by one citizen against the other. They are like the Ten Commandments which every citizen is expected to bear in mind and conduct himself towards the State and society accordingly. Therefore, the endeavour of the State should be not so much to give teeth to the Fundamental duties but to spread awareness of the duties among the people." (Emphasis Supplied)

The enforceability of fundamental duties has posed a persistent legal dilemma. As already mentioned, the constitution itself does not prescribe a legal sanction against the breach or the non-performance of a Fundamental Duty in Part IV-A of the constitution. It doesn't even ask the state to make laws in conformity of the fundamental duties. Under the Constitution, neither is there a provision that enforces fundamental duties nor is there any specific prohibition to their enforcement. Nevertheless, the legislature has incorporated some fundamental duties in certain statutes. These statutes lay down frameworks for enforcement of duties and set sanctions in the event of a failure to adhere with the prescription of the law. A table of some fundamental duties which are backed by statutory frameworks is given hereunder:

Constitutional Courts regularly rely on Part IV-A duties to adjudicate issues of general public importance. On various occasions, especially in the field of environment litigation, the Supreme Court has highlighted the significance of Fundamental Duties. In Rural Litigation and Entitlement Kendra & Ors. Vs. State of Uttar Pradesh^[8], A bench comprising Ranganath Mishra. J held:

"Preservation of the environment and keeping the ecological balance unaffected is task which not only governments but also every citizen must undertake. It is a social obligation and let us remind every Indian Citizen that it is his Fundamental Duty as enshrined in Article 51 A(g)of the Constitution." (Emphasis Added)

Similarly, in Sachidanand Pandey v State of West Bengal^[9], the Supreme Court observed that whenever an ecological issue is brought before the court, the court must bear in mind the provisions of Article 48 A of the Constitution and Article 51 A(g) which makes it the Fundamental Duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.

In M C Mehta (II) Vs. Union of India and Ors.^[10] the Apex Court passed various directions to the central government requiring educational institutions throughout India to impart lessons relating to protection and improvement of the environment including forests, lakes, rivers and wildlife. Issue text books to educational institutions free of cost and teach children the need maintain cleanliness etc. A similar emphasis was placed by the Supreme Court in Vellore Citizens Welfare Forum v Union Of India^[11].

Apart from environmental matters, reliance has also been placed on Part IV-A to decide matters in the field of labour law and minimum wages. The Supreme Court in the matter of Chandra Bhavan Boarding and Lodging, Bangalore Vs. The State of Mysore and Anr.^[12] held as under:

"It is a fallacy to think that under our Constitution there are only rights and no duties. While rights conferred under Part-III are fundamental, the directives given under Part-IV are fundamental in the governance of the country. We see no conflict on the whole between the provisions contained in Part-III and Part-IV. They are complimentary and supplementary to each other. The provisions of Part-IV enable the legislatures and the Government to impose various duties on the citizens. The provisions therein are deliberately made elastic because the duties to be imposed on the citizens depend on the extent to which the Directive Principles are implemented. The mandate of the Constitution is to build a welfare society in which justice – social, economic and political, shall inform all institutions of our national life. The hopes and aspirations aroused by the Constitution will be belied if the minimum needs of the lowest of our citizens are not met."

In service litigation, too, Article 51-A has been a guiding force for adjudication by Courts. In a matter pertaining to the officers in All-India Services, the service Rules were amended to give weightage to training with a corresponding penalty on officers who did not undergo training. The constitutionality of the amendment was challenged, in the matter of Mohan Kumar Singhania & Ors. Vs. Union of India & Ors.^[13] The Supreme Court upheld the amendment by relying upon Article 51A. Referring to clause (j), which commands every citizen of India to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement, it was held that the efforts of the Government to focussing on the training programme of the selectees, so that higher civil service- being the topmost service of the country is not wasted and does not become fruitless during the training period, is in consonance with the provisions of article 51A (j).

In 1987 in the matter of Bijoe Emmanuel v State of Kerala^[14], it was held by the Supreme Court that there is no provision of law which obliges anyone to sing the National Anthem. Nor was it disrespectful to the National Anthem if a person who, although, stands up respectfully when the National Anthem is sung, does not join in the singing. There was compliance of duty under Article 51-A (a) of the Constitution by standing up to the National Anthem when it is sung.

More recently, in Shyam Narayan Chouksey v. Union of India^[15], a petition was filed by a public spirited person commanding the Union to specify what would amount to showing disrespect and abuse of the National Anthem. The Supreme Court relied on 51 A (a) and observed that:

"It is clear as crystal that it is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution. And one such ideal is to show respect for the National Anthem and the National Flag. Be it stated, a time has come, the citizens of the country must realise that they live in a nation and are duty-bound to show respect to National Anthem which is the symbol of the constitutional patriotism and inherent national quality."

The Court further directed that:

"9.4 All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem."

Subsequently, in Shyam Narayan Chouksey v. Union of India II , this direction was modified on an application moved by the Union of India and the playing of the National Anthem prior to the screening of films was made optional. It was also added that persons who were differently abled were exempt from standing when the National Anthem was played.

While Constitutional Courts regularly decide matters by relying upon fundamental duties enshrined in Article 51-A and lay down best practices and guidelines, in the absence of a mechanism to enforce duties, much remains to be done to make the provisions effective. It is notable that there is consensus in both the Justice JS Verma Committee Report of 1999 and the report of The National Commission to Review the Working of the Constitution, 2001, that enforcement should be awareness based. While there is no major dichotomy in the two reports, the Justice Verma Commission report does talk about sanctions coupled with awareness, the Review Committee recommendations on the other hand suggests that the "endeavour of the State should be not so much to give teeth to the Fundamental duties but to spread awareness of the duties among the people." Further, the Supreme Court directions in the Justice Ranganath Mishra case qua fundamental duties are also to take "appropriate steps for their implementation as expeditiously as possible," or more specifically to implement the recommendations made by both, i.e. the 1999 Commission as well as the 2001 Committee.

Under the circumstances, the state is faced with the quandary of what model to embrace? The 'to be or not to be' decision is between adopting an awareness-based model simpliciter or an awareness-based model backed by legal and social sanctions.

The author is of the view that the widespread and effective dissemination of duties by encouraging the citizenry to embrace the golden principles of Part IV-A instead of introducing further laws to enforce under threat of sanction should be the way forward. The recent Supreme Court Judgment of Shyam Narayan Chouksey and the modification of the directions therein, at the instance of the Central Government itself, highlights the concerns and feasibility of a mandatory regime to enforce a fundamental duty, the compulsory playing of National Anthem in cinemas in that case.

In the current atmosphere of heightened insecurities, with a frequenting pandemic that has ravaged lives and left our economy strained and yet to recover, with increasing political hyperbole pandering to social fault lines, with a real raging war that portends grim global repercussions etc., the salutary virtues of brotherhood and harmony found in our constitution assume centre stage. Clearly, the duties mentioned in part IV-A in the Constitution could become the guiding light that clears the way ahead and therefore the need for fostering a duty-based temperament cannot be overemphasized. In order to propagate the virtues of the fundamental duties part, it is therefore best to gravitate to an awareness model that is based on incentivizing adherence.

The author practises at the Supreme Court. Views are personal.