Fundamental Duties: Is the unaccountability justified?

By Mohammad Adil Ansari 11 Minutes Read

With the surge of nationalist rhetorics in recent times, a call has been made by the Indian state against its citizens to reaffirm their allegiance as citizens of the state by following state dictated duties. Such a demand is based on the presumption that rights for citizens are to be earned rather then they being inherently granted to citizens ( as a part and parcel of their existence as citizens of the country). The narrative projected has been to outlaw such inherent rights and replace them with a system, wherein rights are to be bartered against duties imposed by the Indian state. Such a call, therefore, does call for scrutiny of such prescribed duties, their ambit, and enforceability in the light of the Indian Constitution and judicial ethos.

It is to be understood that the chapter on Fundamental Duties was added under Article 51A by the Constitution (Forty-Second Amendment) Act, 1976, to complement the Directive Principles of the State Policy under Part IV of the Constitution. All these duties are of constitutional consequence and legal significance. By its bare reading, they do not sanction direct enforceability upon its citizens, rather they are more in the domain of moral obligations expected by the Indian Constitution from its citizens. They can only be enforced through the channel of a parliamentary law or direction of the court. One might often raise a question regarding the relevance of Fundamental Duties if they do not attach autonomous enforceability to themselves.

 In the Indian court jurisprudence, they have acquired the status of a touchstone along with the Directive Principles of the State Policy by the Courts to examine the validity and constitutionality of any restriction as well as the liability of the citizen. In Re-Ramlila Maidan Incident Dt v. Home Secretary[1], the Supreme Court remarked,

“The restriction placed on a fundamental right would have to be examined with reference to the concept of fundamental duties and non-interference with liberty of others.”

But beyond that, direct enforceability of the Fundamental duties would conflict with the individual liberty of the citizen. The Hohfeldian analysis has clearly established that ‘Duty’ is a jural opposite to ‘Liberty’, i.e, Duty and Liberty always share an antagonist and conflicting relation. It is, therefore, both practically and theoretically impossible to harmonise the Fundamental Freedoms or Liberties granted under Part III of the Constitution with Fundamental Duties under Part IVA.

Duty always requires a Penal Sanction of the State for its enforceability. Fundamental duties, with their vague language and unexhaustive boundaries, if given direct enforceability, would offer a direct inroad to the State to curtail the liberty of its citizens in the garb of enforcement of such duties. A line of separating their free operation therefore, between the two, where duty can serve as a limitation to the freedom, is untenable.

In Shyam Narayan Chouksey v. Union of India[2], where the petitioner, Shyam Narayan Chouksey filed a PIL in the Supreme Court of India under Article 32 to issue appropriate writ and direction for the compulsory playing of National Anthem in theatres and impose an obligation upon all present to stand up to show respect, best illustrated the inherent contradiction between Fundamental Duties and Freedoms. The petitioner based his argument on Article 51A (a) of the Constitution which makes it a fundamental duty of all citizens

“to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem.”

The interim order of November 30^th ,2016 issued by the Supreme Court mandated the plea of the petitioner and gave the direction that proper action to be taken against people under The Prevention of Insults to National Honour Act, 1971, who fail to conform with the directive. The order was received with widespread resentment and was labelled as ‘Forced/Coercive Patriotism’ and a dent on the individual liberty. The Supreme Court was ultimately forced to modify the interim order in its final order by making the playing of national anthem in cinema as not compulsory and subject to the discretion of the cinema hall owner. The case best illustrated as to how a Fundamental Duty, if it was made directly accountable could serve as a detriment and inconvenience to Individual liberty.

It is necessary that any duty if it is made directly accountable be as specific as it can be. Fundamental Duties provides the genus from which species of such specific enforceable duties can be derived through parliamentary law. Any law enforcing any specific duty deriving its validity from Article 51A is valid, and at the same time, any law which imposes a duty falling outside the ambit of Article 51A cannot claim legitimacy. While examining the reasonableness of a legislative restriction on the exercise of freedom, the fundamental duties of the citizens of the country enunciated under Article 51A are therefore of relevant consideration. We can, therefore, conclude that they are of latent enforceability.

An inherent fallacy which further circumvents the argument for accountability of Fundamental Duties is ‘Capability of Citizens’. A citizen can only perform a duty which he/she is capable of. A set of conditions precedent must be fulfilled before a duty can be expected from a citizen. For example, Article 51A (h) makes it a fundamental duty of every citizen

“to develop the scientific temper, humanism and the spirit of inquiry and reform.”

A citizen can only fulfil this duty if he has the ‘Right to Know’ and ‘Right to Free Education’. In the absence of such rights or their proper implementation, it is fallacious and unfounded on part of the State to expect the citizen to fulfil his Fundamental Duty. The implementation of such rights, which is a positive obligation on part of the State, if suffers from poor execution, makes the performance of the duty by the citizen impossible. In such a case, the state cannot initiate an action against the citizen for nonfulfillment, as it itself is at fault. Again, if a citizen radically supports and participates in ‘Socialist’ and ‘Communist’ movements (such as Naxalite Movement), which were the primary driving ideological weapon of Indian freedom fighters against British Imperialism, against the post-modern 1991 ‘Liberalization’ and ‘Capitalism’ model, should he be offered immunity under the pretext that he was performing his fundamental duty under Article 51A (b) which mandates him

‘to cherish and follow the noble ideals which inspired our national struggle for freedom’?

Apart there is a conflict and mutual abhorrence between fundamental duties also, for example a harmonious construction between Article 51A (f) which obligates one

‘to value and preserve the rich heritage of our composite culture’

and Article 51A (h) which obliges one

‘to develop the scientific temper, humanism and the spirit of inquiry and reform’,

produces anxiety and dilemma over whether a citizen should pursue a scientific investigation into previously held religious and cultural dogmas or rather abstain from such an inquiry in order to value and preserve them.

Direct accountability of the Fundamental Duties, therefore is unsustainable and unfeasible, both for citizens and the State. It would give the State inroad to encroach democratic liberties and at the same time render it impotent to deal with radical challenges. The Indian State is not at such a stage to afford a sustained environment where it can demand compliance to all the Fundamental Duties nor were the Fundamental Duties, in their vague language, drafted to be subject to direct accountability. The original position relegated to them, as touchstones for the implementation and validity of mandated specific restriction, is, therefore, their rightful place.

Any encroachment therefore by the Indian State to alter such a position must be examined critically for they run antithetical to the established Constitutional jurisprudence as well as the ambit of the statement and purpose as to why such duties were brought in, in the first place.

[1] (2012) 5 S.C.C. 1

[2] Writ Petition (Civil) No. 855 of 2016

Mohammad Adil Ansari

Founding Member & Editor in Chief @LegalWires.