The Supreme Court of India on Monday, February 21, considered the possibility of enforcing the fundamental duties, in response to a PIL to convert this moral obligation into a legal commitment.
For a country ravaged by illegal and deceitful actions especially by the law makers in various forms the idea to enforce fundamental duties is a welcome move, irrespective of in whatever measure it will succeed.
A similar concern of the Supreme Court, few decades ago to enforce the Directives principles of State policy in part IV of the constitution, did result in partial success by the court devising a new technique of providing an expanded definition of fundamental rights by saying that for a realistic realisation of the fundamental the process given for such attainment through the directive principles are therefore enforceable. No doubt the power of the golden triangle i.e. Articles 14, 19 and 21 read together enabled the Supreme Court to arrive at such a conclusion.
The challenge is now again before the Supreme Court, to make enforceable the fundamental duties. True it may not be possible to enforce all the fundamental duties, that too for all citizens, it would be better to take up at least some of them and that too for some class of citizens, why not start with the law makers?
The 10 fundamental duties were added to the constitution by the 42nd Amendment in 1976 and 11th by the 86th Amendment in 2002.
It shall be the duty of every citizen of India—
1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; 2. To cherish and follow the noble ideals which inspired our national struggle for freedom; 3. To uphold and protect the sovereignty, unity, and integrity of India; 4. To defend the country and render national service when called upon to do so; 5. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities; to renounce practices derogatory to the dignity of women; 6. To value and preserve the rich heritage of our composite culture; 7. To protect and improve the natural environment including forests, lakes, rivers, wildlife and to have compassion for living creatures; 8. To develop the scientific temper, humanism, and the spirit of inquiry and reform; 9. To safeguard public property and to abjure violence; 10. 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; 11. Who is a parent or guardian, to provide opportunities for education to his child, or as the case may be, ward between the age of six and 14 years.
Though some of them are vague ideology but duties like Nos.1, 3, 5,6,7,9, could be enforced in its negative format. To begin with the simple technique is to amend, The Representation of the People Act, 1951, Part II chapter 3 by adding a Section 9B, which should call for a positive duty to respect and observe the above mentioned fundamental duties.
One may raise an objection that these are policy matters and how could the judiciary enforce them? Well how did the judiciary enforce some of the Directive principles? These are also policy matters? How did prevention of sexual harassment at work place become law?
When circumstances demand Judiciary, especially the Constitutional Courts (The Supreme Court & the High Courts) should rise to the occasion as was done in the past.
The Judiciary has an obligation to protect and enforce the Constitution, because the Constitution is an expression of the will of the people that is why it begins with “We the people of India…”
Unfortunately, at present in India there is a wide gap between the will of the people and the laws that are made, it is for this reason the recent laws, be it the CAA, or the Farm laws have resulted in bloodshed.
Until and unless the Constitution is amended the true will of the people is what is mentioned in the constitution and the judiciary as a guardian of the Constitution should insist on the government to fulfill its Constitutional obligations towards the nation.
Considering the realities of the present day situation, when politicians are instigating communal hatred and even making statements contrary to good and quality educations so that youth are not permitted to excel as required by fundamental duty No 10. (To strive to excel) and most of the ills of the Nation, be it the spread of the pandemic or large scale unemployment or communal hatred, could be either directly or indirectly attributed to politicians in power, the judiciary needs to step in and for the sake of upholding the Constitution, lay down the Laxman Rekha of the political adventurism or extremism by insisting upon the governments to enact suitable legislations to uphold those constitutional values which have been ignored but have become vital for the preservation of oneness and unity of the Nation.
Preserving the Nation’s ethos and guiding the Ruling party to steer its conduct towards fulfilling the constitutional mandate than the election mandate is what the Judiciary is expected to do.
Compelling the governments to enforce fundamental duties by suitable legislative exercise but of course starting with themselves first, will protect and preserve the Nation.
(The writer is a Prof of Law and Educational consultant)
