Article 51A: the Fundamental Duties

They pair with directives. Article 51A(g) pairs with article 48A; article 51A(k) pairs with article 45 and article 21A. That pairing of State duty with citizen duty is a deliberate drafting technique, as [The Directives Added Later] records.

And they can be given effect by legislation. Parliament may enact a law to enforce a duty, and where it does so the duty supplies the constitutional justification for the law.

Article 51A(g), which carries the weight

Of the eleven, clause (g) is the one that has done real work.

It is the citizen half of the environmental pair. Article 48A directs the State to protect and improve the environment and to safeguard forests and wild life; article 51A(g) places the same obligation on the citizen and adds compassion for living creatures.

Read with article 21 the two produce the enforceable right to a clean environment, and every major decision in Indian environmental law cites them together.

That is the answer to the objection that article 51A is decorative: one clause of it is the foundation of an entire branch of Indian constitutional law. [The Supreme Court and Environmental Jurisprudence] takes it, and MU asks about it on Set 2 Q7(c).

Where the duties came from

The Forty-second Amendment of 1976 inserted Part IVA on the recommendation of a committee constituted to consider constitutional amendment, and the model was the socialist constitutions, which characteristically paired rights with duties.

The idea is not only socialist, however, and an answer that says so has missed the international point. Article 29(1) of the Universal Declaration provides that everyone has duties to the community in which alone the free and full development of his personality is possible, and it was adopted in 1948 with India voting in favour.

The Covenants say the same. The preamble to each of the two Covenants of 1966 recites that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognised in the Covenant.

So the duties are not an Emergency-era intrusion into a purely rights-based scheme; they are the Indian statement of a proposition the international instruments had already made.

Worked example

A question on the Fundamental Duties, or on the balance between rights and obligations.

Give the eleven clauses, or at least (a), (e), (g), (i) and (k), with their actual words.

Say when they arrived: Part IVA, Forty-second Amendment 1976, ten clauses; clause (k) by the Eighty-sixth Amendment 2002.

Say plainly what they are not: not enforceable against a citizen, not addressed to the State, confined to citizens.

Give the four uses.

Give article 51A(g) as the answer to the charge that they are decorative.

Close on article 29(1) of the Declaration and the Covenant preambles, because that is what stops the answer reading as a defence of the Emergency amendment.

What it does NOT mean

It does not mean a citizen can be prosecuted under article 51A. It creates no offence.

It does not mean the duties are conditions of the rights. A person who fails a duty does not thereby lose a fundamental right.

And it does not mean they are legally worthless. Clause (g) is the foundation of Indian environmental law.

Quick revision

• Part IVA, article 51A, inserted by the Forty-second Amendment 1976 with clauses (a) to (j); clause (k) added by the Eighty-sixth Amendment 2002 alongside article 21A.
• The eleven: (a) Constitution, Flag, Anthem; (b) ideals of the freedom struggle; (c) sovereignty, unity and integrity; (d) defend the country and render national service; (e) harmony and common brotherhood, and renounce practices derogatory to the dignity of women; (f) composite culture; (g) natural environment including forests, lakes, rivers and wild life, and compassion for living creatures; (h) scientific temper, humanism and the spirit of inquiry and reform; (i) safeguard public property and abjure violence; (j) strive towards excellence; (k) parent or guardian, education six to fourteen.
• Three things they are not: not enforceable against a citizen, not addressed to the State, citizens only.
• Four uses: construe rights; support the reasonableness of a restriction; pair with directives, (g) with 48A and (k) with 45 and 21A; and be given effect by legislation.
• Clause (g) carries the weight: with article 48A and article 21 it is the foundation of Indian environmental law.
• Origin: article 29(1) of the Declaration, duties to the community; and the preambles to both Covenants.

Test yourself

1. What is article 51A, and what is it not? Article 51A constitutes Part IVA of the Constitution and lists the fundamental duties of every citizen of India: to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; to cherish and follow the noble ideals which inspired the national struggle for freedom; to uphold and protect the sovereignty, unity and integrity of India; to defend the country and render national service when called upon; to promote harmony and the spirit of common brotherhood transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women; to value and preserve the rich heritage of the composite culture; to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures; to develop the scientific temper, humanism and the spirit of inquiry and reform; to safeguard public property and to abjure violence; to strive towards excellence in all spheres of individual and collective activity; and, for a parent or guardian, to provide opportunities for education to a child or ward between six and fourteen. The first ten were inserted by the Forty-second Amendment in 1976 and clause (k) by the Eighty-sixth Amendment in 2002.

It is not three things. It is not enforceable against a citizen: the article creates no offence, imposes no penalty and confers no cause of action, and nobody has been punished for failing to develop a scientific temper. It is not addressed to the State, which is the structural difference from Part IV, since Part IV directs the State and Part IVA directs the citizen. And it is confined to citizens, so a foreigner in India owes none of these duties.

2. What work do the duties actually do? Four things. They construe fundamental rights: where the scope of a right is in issue, a corresponding duty informs it, so clause (e) has featured in argument about practices derogatory to the dignity of women and clause (a) in argument about respect for the national symbols. They support the reasonableness of a restriction: a limitation on a freedom that promotes the discharge of a fundamental duty is more readily upheld under article 19, because the object it serves is one the Constitution itself names. They pair with directives, clause (g) with article 48A and clause (k) with article 45 and article 21A, a deliberate drafting technique in which the State's obligation and the citizen's are enacted together. And they can be given effect by legislation, Parliament being free to enact a law enforcing a duty, in which case the duty supplies the constitutional justification for the law.

Of the eleven, clause (g) has done more work than the other ten together. It is the citizen half of the environmental pair: article 48A directs the State to protect and improve the environment and to safeguard forests and wild life, and clause (g) places the same obligation on the citizen with the addition of compassion for living creatures. Read with article 21, the two produce the enforceable right to a clean environment on which the whole of Indian environmental jurisprudence rests. That single clause is the answer to the charge that Part IVA is decorative.

3. Where do the duties come from, and why does the answer matter? The immediate source is the Forty-second Amendment of 1976, which inserted Part IVA on the recommendation of a committee constituted to consider constitutional amendment, and the acknowledged model was the socialist constitutions, which characteristically paired rights with duties. That provenance is often used to dismiss the duties as an Emergency-era intrusion into a scheme otherwise built on rights alone.

The dismissal is too quick, and the reason matters. Article 29(1) of the Universal Declaration provides that everyone has duties to the community in which alone the free and full development of his personality is possible, and it was adopted in 1948 with India voting in favour. The preamble to each of the two Covenants of 1966 recites that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognised in the Covenant. So the proposition that rights are exercised within a community that makes claims in return is not a socialist import but a feature of the principal international instruments themselves. An answer that makes that point can criticise the timing and the drafting of Part IVA without having to argue the untenable position that a constitution should contain no statement of duties at all.