Fundamental Duties

They are used in construction. Where an article is capable of two meanings, a construction that furthers a fundamental duty is preferred.

They may be enforced by a statute, and this is the point students miss. The duties themselves are not enforceable, but nothing prevents a legislature from making a duty a legal obligation. The Prevention of Insults to National Honour Act 1971, which predates article 51A, penalises disrespect to the National Flag and the Constitution, and clause (a) now supports it.

And they may be the foundation of a direction under article 32 or 226. Courts have relied on clause (g) in environmental litigation, where the duty of the citizen is read alongside article 48A's directive to the State.

A worked example

A State enacts a law making it an offence, punishable with a fine, for any person to fail to sing the National Anthem when it is played at a public function. A citizen who stands respectfully but does not sing is prosecuted. Is the law valid?

The State will point at clause (a) and it is entitled to. Respect for the National Anthem is a fundamental duty, so the object is a constitutional one, and the Prevention of Insults to National Honour Act shows that Parliament may legislate in this field.

But the citizen's answer is the whole of the chapter. A fundamental duty is not an exception to a fundamental right. Article 19(1)(a) includes the freedom not to speak, and article 25 protects a conscientiously held religious belief. A duty in article 51A does not by itself authorise a restriction; the restriction must still find a ground in article 19(2) and must still be reasonable.

And the case has actually been decided. In Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748; (1986) 3 SCC 615, decided on 11 August 1986. Facts. Three children of Jehovah's Witnesses in a Kerala school stood respectfully when the anthem was sung but did not join in, because their faith forbade them to sing any anthem, and they were expelled. Held. The expulsion violated articles 19(1)(a) and 25: the question is not whether a belief appeals to the court's reason or sentiment but whether it is genuinely and conscientiously held as part of the profession or practice of religion; the children had not been disrespectful, and no provision of law obliged anyone to sing. Why it matters here is that it is the clearest statement that a duty in article 51A cannot be used to cut down a right in Part III.

The cases

A duty may support a curriculum choice. In Aruna Roy v. Union of India, AIR 2002 SC 3176; (2002) 7 SCC 368, decided on 12 September 2002. Facts. A challenge under article 32 to the National Curriculum Framework for School Education, mainly on the ground that it introduced religious instruction into State schools contrary to article 28. Held. The study of religions for the purpose of value education is distinct from religious instruction in a particular religion, and dismissed the petition; and it reasoned in part from the fundamental duties, clause (e) on harmony and common brotherhood and clause (f) on the composite culture, as supporting an education that teaches children about the religions of their fellow citizens. Why it matters here is that it shows the duties operating as an aid to construction rather than as a command.

And a duty may reinforce a public trust. In M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388. Facts. A private company with which a Minister's family was connected had been granted forest land on the bank of the Beas and had used earth-moving machinery to divert the river's course to protect a motel from flooding. Held. The State is the trustee of natural resources such as rivers, forests, air and the sea, which are meant for public use, and that the public trust doctrine is part of Indian law; the lease was quashed and the motel was directed to restore the environment and pay compensation. Why it matters here is that the reasoning treats the protection of the environment as a shared obligation, and article 51A(g) makes it a duty of every citizen while article 48A makes it a directive to the State.

Distinctions

What it does NOT mean

It does not mean a citizen can be punished under article 51A. The article creates no offence. Punishment requires a statute, and the statute must independently survive Part III.

It does not mean a duty overrides a right. Bijoe Emmanuel is the answer, and it is the point examiners look for.

It does not mean the duties are meaningless. They support legislation, guide construction and have been relied on in environmental and public-property litigation.

And it does not mean there are ten of them. There are eleven, and the eleventh arrived in 2002 with article 21A as part of the same amendment.

Quick revision

Part IVA, article 51A alone, inserted by the Forty-second Amendment 1976 on the Swaran Singh Committee's recommendation, with ten clauses; clause (k), the parent's or guardian's duty to provide education to a child of six to fourteen, added by the Eighty-sixth Amendment 2002, making eleven. Not enforceable against a citizen and creating no offence. Their legal uses: they support a statute enforcing them, they guide construction, and they may found a direction in public interest litigation. Clause (c), sovereignty, unity and integrity, and clause (e), harmony transcending religious, linguistic and regional diversities, are the two this paper uses most. Bijoe Emmanuel: a duty cannot cut down articles 19(1)(a) and 25. Aruna Roy: clauses (e) and (f) support teaching about religions as value education. M.C. Mehta v. Kamal Nath: the public trust doctrine, alongside article 48A and clause (g).

Test yourself

1. How many fundamental duties are there, and when did the last one arrive? Eleven. Ten were inserted by the Forty-second Amendment 1976; clause (k), the duty of a parent or guardian to provide educational opportunities to a child between six and fourteen, was added by the Eighty-sixth Amendment 2002.

2. Are the duties enforceable, and what follows? No court enforces them against a citizen and article 51A creates no offence. A legislature may enact a law giving effect to a duty, and that law is more readily found to be a reasonable restriction, but it must still satisfy Part III on its own.

3. Which case shows that a duty cannot override a right? Bijoe Emmanuel v. State of Kerala, where children who stood respectfully but did not sing the National Anthem were held protected by articles 19(1)(a) and 25 despite the duty in clause (a).

4. Name the two clauses most relevant to this paper and say why. Clause (c), to uphold and protect the sovereignty, unity and integrity of India, which is the "integrity" of the Preamble question; and clause (e), to promote harmony transcending religious, linguistic and regional diversities and to renounce practices derogatory to the dignity of women, which is pluralism stated as a citizen's duty.

5. Give one example of a statute that enforces a fundamental duty. The Prevention of Insults to National Honour Act 1971, which penalises disrespect to the National Flag and the Constitution and is supported by clause (a), although it predates article 51A.

6. How were the duties used in Aruna Roy? As an aid to construction: clauses (e) and (f), on harmony and on the composite culture, supported the view that teaching children about the religions of their fellow citizens is value education rather than the religious instruction article 28 forbids.