Enforcement of Fundamental Duties Required

indian national flag

Instances of disrespect shown to the national flag, constitution and the National Anthem, prompted parliament to enact prevention of insults to the National Honour Act, 1971. The said Act stipulates that whoever in public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt whether by words either spoken or written or by acts the Indian National flag or the constitution of India or any part thereof shall be punished with imprisonment for a term which shall extends to three years or with fine or both.

The said enactment is confined to the acts relating to exhibiting disrespect to the National flag and the constitution. Forty-Second amendment of the constitution made in the year 1976 incorporates Part IV – A in the constitution which contemplates fundamental duties. The said amendment was brought in pursuant to the recommendations of Swaran Singh committee and in the backdrop of Article 29(1) of Universal declaration of Human rights. One of the major recommendations of the committee that non-compliance of fundamental duties would be met with imposition of penalty or punishment on citizens and such punishment or law would not be questioned in any court of law was not accepted. Article 51A(b) stipulates that it shall be the duty of every citizen of India to cherish and to follow the noble ideals which inspired our national struggle for freedom. A constitutional obligation is created on the citizens to follow the noble ideals which inspired our national struggle for freedom. Though forty fourth amendment made in the year 1978 had nullified the major amendments made under forty second amendment, fundamental duties were untouched.

The Hon’ble Supreme court in Minerva Mills case in the year 1980 held that “there may be a rule which imposes an obligation on an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a corresponding right in another person. But it would still be a legal rule because it prescribes a norm of conduct to be followed by such individual or authority. The law may provide a mechanism of enforcement. A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist despite of any problem relating to its enforcement. Otherwise the conventions of the Constitution and even rules of International law would no longer be liable to be regarded as rules of law.”  It was further held that it is beyond doubt that merely because the directive principles are not enforceable in court of law, it does not mean that they cannot create obligations or duties binding on the state. The same principle is also applicable in case of fundamental duties vis-vis the citizens.

The government of India had setup a committee under the Chairmanship of Justice J.S.Varma former Chief Justice in the year 1998 to work out a methodology for operationalizing fundamental duties. Justice Varma’s committee recommended that the state can enact a law for ensuring the effectuation of the fundamental duties.

The Hon’ble Supreme Court in AIIMS students Union’s case has held that the fundamental duties are considered as equal importance with fundamental rights and play a crucial role in the claim of fundamental rights. It was also held that the fundamental duties provide valuable guidance and aid in interpretation and resolution of constitutional legal issues and that the duty of every citizen of India is, collectively speaking, the duty of the state.

The fundamental duties are not enforceable in courts nor breach of duty is punishable. However the court can refuse to enforce a fundamental right at the instance of a person who has violated any of the fundamental duties. The Hon’ble Supreme court held that Fundamental duties play significant role while testing the constitutional validity of any statutory provision or any executive Act. The reasonableness of any restriction that is cast by the law on the fundamental rights in the form of regulation, control or prohibition can be tested by taking fundamental duties and the directive principles of state policy into account. Though there is no specific legislation vis-vis the obligations created on the citizens by the constitution under Chapter – IV – A, certain existing legislations viz. the Prevention of Insults to National Honour Act, 1971; the Protection of Civil Rights Act, 1955; the Environment (Protection) Act, 1956 etc., indirectly impose obligations and provide for penalties. There is no specific legislation in the context of Article 51A (b) of the constitution. Kangana Ranaut a Padmashree awardee posted a series of controversial questions on Instagram relating to the freedom struggle. The freedom movement underwent ideological evolution from its inception from 1857 to 1947. During the course of freedom struggle spectrum of ideologies were adopted. However the objective was to attain freedom. Initially it was a revolutionary movement. Thereafter a radical approach towards political self rule was also adopted. In later stages it took strong socialist orientation and adopted non-violent methods. By incorporation of Article 51A(b) in the constitution, the courses adopted for attaining freedom, though consisted of different ideologies, cannot be subjected to criticism.  The posts admittedly constitute breach of constitutional duty cast upon her under Article 51A(b) of the constitution. Exploring ways and means of generating awareness of and inculcating fundamental duties in the citizen is not sufficient.

There is no specific legislation unlike “The Prevention of Insults to National Honour Act, 1971 vis-vis the obligation created under Article 51A(b) of the constitution. It’s time that the recommendations made by Swaran Singh’s committee and Justice Varma’s committee should be accepted and an appropriate law may be enacted stipulating stringent action in case there is a breach of the constitutional duty as enshrined in the constitution. In order to cherish and follow the noble ideals which inspired our national struggle for freedom, the proposed legislation may stipulate various noble ideals practiced by the freedom fighters which lead to freedom. Freedom struggle is not confined to one event.

Chittarvu Raghu, Advocate, High Court’s of A.P. & T.S.

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