Non-enforceable duties

THE ENFORCEABILITY OF Fundamental Duties enumerated in the Constitution, a question under the consideration of the Supreme Court, is simply untenable because the idea flows from the erroneous juxtaposition of fundamental rights enshrined in chapter three and fundamental duties in Article 51-A. It is incorrect to suppose that since the state confers fundamental rights on citizens and undertakes obligations upon itself in the form of Directive Principles, duties should likewise be imposed on citizens. The ruling of the Supreme Court in 1986 in the Bijoe Emmanuel case that singing or learning the national anthem must not be made mandatory should serve as a general guideline to decide questions on the status of Article 51-A. What is noteworthy in that judgment is that it amply reflects evolving practices in society on the manner citizens relate to national symbols. In hindsight, it would seem that not imposing the national anthem has turned out to be the most practical and commonsensical approach to the question. Hence, the current proposal of the Supreme Court Bench to reconsider its earlier judgment may not be warranted.

Fundamental Rights constitute the bedrock of modern democracies and hence are enforced by law. They are also protected from the purview of the routine legislative business of sovereign states and this is the sense in which they are fundamental. Indeed, the law that enforces rights also imposes limits on their exercise; but the arena of such curtailment is always backed by deeper considerations of public interest. This is the spirit echoed in Article 13(2) of the Constitution which debars Parliament from enacting any law that may violate Fundamental Rights. The inapplicability of this proviso in the case of Amendments to the Constitution was assumed in the first Amendment and was stated explicitly in the 24th Amendment, both of which were enacted primarily to protect land reform laws from being challenged on the ground that they were violative of fundamental rights. There are, of course, innumerable other rights that do not necessarily issue in legal claims. On the contrary, it could be argued that duties are by definition sacrosanct, whether they pertain to the discharge of parental obligations, compliance with traffic rules or the delivery of one's professional responsibilities. Adherence to them belongs to the domain of ordinary moral or social laws appropriate in the context.

Lurking beneath any attempt to enforce fundamental duties is the ludicrous suggestion that the duties cast on citizens in Article 51-A are some kind of a quid pro quofor the legal protection of Fundamental Rights; a sure sign that the arena of rights itself is not on a secure footing. It is noteworthy in this context that the duty of parents towards children has been sought to be linked to the proposal to elevate the right to education as a Fundamental Right. Implicit in such a plea is the view that ultimately people are responsible for their lot. Instructive also is the political background to the incorporation of Article 51-A as part of the infamous 42nd Amendment during the Emergency. Ironically, the Article listing the duties of citizens was incorporated into the Constitution at a time when the basic freedoms of citizens were suspended. The present times, some may argue, resonate with these same political vibrations.

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