Enlargement of Fundamental Rights
ARTICLE 12 OF THE CONSTITUTION
1.Constitutional guarantees for the human rights of our people was one of the persistent demands of our leaders throughout the freedom struggle. It was made as far back as in 1895 in the Constitution of India Bill, popularly called the Swaraj Bill, which was inspired by Lokmanya Tilak. The demand was repeated in Mrs. Annie Besant's Commonwealth of India Bill finalised by the National Convention of Political Parties in 1925, by the Motilal Nehru Committee in 1928 at the Karachi Session of the Indian National Congress in 1932, and by the Tej Bahadur Sapru Committee in 1944-1945.
Fundamental rights occupy a pride of place in our Constitution. According to Dr. Radhakrishnan they were a pledge to our people and a pact with the civilised world.
courts have taken wider meaning of state .
It is a matter for consideration whether the definition of "the State" should be widened to include such non-State entities and make them subject to the discipline of fundamental rights. The consequence will be not to make all actions and decisions of non-State entities subject to judicial review but only those acts or omissions which are violative of fundamental rights guaranteed in Part III of the Constitution.
Another matter for consideration is whether the judiciary should be included in the definition of “the State” in article 12.
17. Divergent views have been expressed by the Supreme Court on the question whether a judicial order can be violative of a fundamental right.[8]
18. In the UK Human Rights Act 1998 the definition of public authority includes “a court or tribunal”. The provisions of section 6(3)(a) and (b) are reproduced in Annexure-I.
19. The Bill of Rights in the South African Constitution applies to the judiciary by virtue of Article 8(1) which is reproduced in Annexure I.
20. Another strand of thought is that the inclusion of the judiciary in the definition of ‘the State’ should be confined to article 21 of the Constitution which guarantees that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. It is article 21 which is mainly invoked in the case of judicial orders. The controversy has centered round the question whether a judicial order which is without jurisdiction can be challenged as violative of article 21 of the Constitution.
PACE OF SOCIO-ECONOMIC CHANGE
UNDER THE CONSTITUTION
HISTORY:
Piracy and Plunder
q India was developed when some of the most industrialized countries of the day were forests and bogs and homes of savages.
q India was far superior to United Kingdom in the share of World Trade between 1750 AD to 1830 AD but by 1900 its share in World Trade was less than one-tenth of the share of United Kingdom.
q Dacca -Textile Center of India was in 1757 as extensive and rich as the city of London but by 1840, it was reduced to a very poor and small town.
q At independence, overwhelming majority of Indians were illiterate and abysmally poor. Life expectancy was very low and the mortality rates were amongst the highest in the world.
Constitutional Mechanism For Realization Of
Socio-Economic Goals
Constitutional Mechanism For Realization Of
Socio-Economic Goals
q The basic constitutional scheme for realization of socio-economic goal is laid in Parts III and IV of the Constitution.
q Entrenched and Justiciable Fundamental Rights enshrined in Part III provide Constitutional guarantee of these basic human rights as being inalienable and not subject to political vicissitudes.
q Directives for realization and effectuation of the ideology of Part III are contained in Part IV - The Directives though non-justiciable theoretically permeate the whole ethos of Part III.
q Synthesis and integration of Fundamental rights with Directive Principles in the judicial process of constitutionalising social and economic rights has been crucial in giving impetus to the pace of realization of the Directive Principles not only as a means to effectuate Fundamental Rights but also as a source of law for a Welfare State
Good Governance And Management Of Social Conflicts
t the apex of governance lies the role of the State as a sovereign functionary, all activities of the Government relatable to the sovereign functions of the Government represent the heart of its domain. The role of the State in maintaining law and order, as a prime regulator and the supreme instrument of enforcement of law, has an omniscient impact on the life of the citizens. The State should be capable of enabling, enhancing and deploying the power from other societal actors for sustainable human development. The State should network and dialogue with non-State actors including the public, the media, voluntary organizations, self-help groups, the private for profit sector, community organisations etc. and create conditions for the latter to contribute in achieving developmental goals. The State according to Osborne and Gaebler[1] should do ‘steering’ and not ‘rowing’.
8.1.3 Governance defies a common definition. A number of common indicators have however emerged for assessing good governance. It is essentially a reform package to strengthen the institutions of government and civil society with the objective of making government more accountable, more open and transparent, and more democratic and participatory. Good governance is also about effective and equitable government that promotes rule of law.
Strands of Good Governance*
q Participatory
q Sustainable
q Legitimate and acceptable to the people
q Transparent
q Promotes equity and equality
q Able to develop the resources and methods of governance
q Promote gender balance
q Tolerates and accepts diverse perspectives
q Able to mobilise the resources for social purposes
q Strengthens indigenous mechanisms
q Operates by rule of law
q Efficient and effective in the use of resources
q Engenders and commands respect and trust
q Accountable
q Able to define and take ownership of national solutions
q Enabling and facilitative
q Regulatory rather than controlling
q Able to deal with temporal issues
q Service oriented
(UNDP)
EFFECTUATION OF FUNDAMENTAL
DUTIES OF CITIZENS
Historical Background
1.2.1 The Swaran Singh Committee appointed by the Congress Party for a review of the Constitution had recommended that certain Fundamental Duties and obligations which every citizen owed the nation should be included in the Constitution. These recommendations were implemented with the incorporation of the new article 51A in the Constitution. Incidentally, this happened during the period of emergency aberration in our democratic history. Alongside the introduction of article 51A, several other articles of the Constitution were also amended. Some of the amendments had the effect of crippling the powers of the High Court and the Supreme Court. Soon after the emergency ended and a new Government assumed office in 1977, the Constitution (44th Amendment) Act, 1978 was passed, whereby many of the amendments brought in by the 42nd amendment were undone.
1.2.2 What is significant to note is that 44th Amendment did not disturb these provisions. Thus, article 51A commands the confidence of all the political parties and has remained on the statute book for 24 years.
1.2.3 The inclusion of Fundamental Duties brought our Constitution in line with article 29 (1) of the Universal Declaration of Human Rights and with provisions in several modern Constitutions of other countries.
1.2.5 Firstly, the framers of the Indian Constitution were such visionaries as had practiced values in life, discharging their societal and national obligations and had followed noble ideals which had inspired our national struggle for freedom and the need to defend the country, promote harmony, secularism and preserve the rich heritage of the composite Indian culture. To the framers of the Constitution, these were basic and inherent values which were being practiced by each and everyone. These were first nurtured in the home traditionally and were subsequently supplemented by education in schools and colleges. These were integral part of the way of life in India and it was taken for granted that aberrations in the practice of these will not be acceptable to the society. As such no need was felt to incorporate the Fundamental Duties specifically in the ConstitutionA.
1.2.6 Secondly, the duties were spelt out by the Preamble to the Constitution which contains the ideals and aspirations of the people of India and the dedication of Constitution for fulfilling such ideals and aspirations. We have solemnly resolved to secure to all the citizens of India justice, liberty, equality and fraternity. Whatever is needed to achieve these goals, is our obvious duty to perform – is a dictate of the Preamble.
1.2.7 Thirdly, all the rights enshrined in Part III on Fundamental Rights have inbuilt obligations therein. The need is to read them so as to spell out and understand the duties flowing therefrom.
{(2) & (3) – Mr. Justice R C Lahoti – Rastogi Memorial Lecture}
1.2.8 However, “with the lapse of time, degradation of values, particularly values in public life became blatantly evident and the nation felt the need to amend the Constitution and incorporate these values specifically as the Fundamental Duties of every citizens”.
1.2.10 This article has the potential to regenerate and reconstruct the nation. It has been on the statute book for the last 24 years.
Concept of Duty
1.3.1 There has been some rather disproportionate emphasis on the rights of citizens as against their duties even though the traditions and temper of Indian thought through the ages laid greater emphasis on duties. Actually, rights and duties are the two sides of the same coin. For every right, there is a corresponding duty. Rights flow only from duties well performed. Duty is an inalienable part of right : What is duty for one is another person’s right and respect human life and not to injure another person. If everyone performs his/her duty, everybody’s rights would be automatically protected.
Clause (a) of article 51A
2.(a)1 Clause (a) provides that it shall be the duty of every citizen of India - TO ABIDE BY THE CONSTITUTION AND RESPECT ITS IDEALS AND INSTITUTIONS, THE NATIONAL FLAG AND THE NATIONAL ANTHEM.
2(a)2 The first and the foremost duty assigned to every citizen of India is to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. These are the very physical foundations of our citizenship. All of us are supposed to maintain the dignity of the Constitution by not indulging in any activities in violation of the letter or spirit of the Constitution. Ours is a vast country with many languages, sub-cultures and religious and ethnic diversities, but the essential unit of the country is epitomized in the one Constitution, one flag, one people and one citizenship. We are all governed and guided by this Constitution irrespective of caste, religion, race, sex, etc. The Constitution is the result of the many commitments, promises and pledges made by nationalist leaders to the people of India. Also, it embodies efforts of reconciliation, accommodation and compromise. All of us and the Fundamental Rights of each of us are protected by it. Similarly, the National Flag and the National Anthem are symbols of our history, sovereignty, unity and pride. If a citizen of India by any overt or covert act shows disrespect to the Constitution, the National Anthem or the National Flag, it would be not only an anti-social and anti-national activity but it would also spell doom to all our rights and very existence as citizens of a sovereign nation. Each citizen must therefore not only refrain from any such activity but also do his best to prevent any miscreant trying to show disrespect to our national symbols. Every nation is proud of its citizens because of their dedication, sincerity and patriotism. We, the citizens of India, have to be equally proud of our nation, our Constitution, our National Flag and our National Anthem. We must put the nation above our narrow personal interests and then only we will be able to protect our hard-earned freedom and sovereignty.
2(a)3 The IDEALS of the Constitution are summed up in the Preamble:-
JUTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation
Therefore, in every word, deed and thought every citizen must remember and practise in life these ideals of the Constitution.
2(a)4 The principal INSTITUTIONS of the Constitution are the Executive, the Legislature and the Judiciary. All institutions fall under these three wings of the State. It is a duty of every citizen to respect these institutions. For instance, if a citizen or a body of citizens or a section of the citizens feels that injustice has been done or is being done to him/her or it, recourse must be taken in the Court of Law for justice as that would be to respect an institution of the Constitution. This aspect of article 51A of the Constitution and its clause (a) has not only been widely neglected and deliberately disrespected, during the last 24 years that article 51A has been on the statute book, there has been a growing tendency of seeking redress by “Hoolad”, “Hartal” and “Hinsa” (Hue and Cry, Strike and Violence) thus committing disrespect to the constitutional institution, the Judiciary.
2(a)5 In his speech at the close of the Constituent Assembly, Dr. B.R. Ambedkar said:-
“If we wish to maintain democracy not merely in form, but also in fact, what must we do? Their first thing in my judgment we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means that we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing, but the Grammar of Anarchy and the sooner they are abandoned, the better for us”.
2(a)6 “Four things are given to a judge: to hear patiently, to consider diligently, to answer wisely and to decide impartially” (Socrates). If a Judge, in the conduct of his/her judicial functions, neglects any of these four duties, it is a disrespect to the constitutional institution of Judiciary. By granting adjournments and yielding to delaying tactics, resulting in delaying disposal of cases is disregarding the Fundamental Duty of respecting the (Judicial) institution of the Constitution.
2(a)7 In his closing speech at the Constituent Assmebly on 25th November 1949, Dr. Rajendra Prasad observed :-
“We have provided in the Constitution for a judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Courts independent of the influence of the Executive. There is an attempt made in the Constitution to make even the lower judiciary independent of any outside or extraneous influence. One of our Articles makes it easy for the State Governments to introduce separation of Executive from Judicial functions and placing the magistracy which deals with criminal cases on similar footing as civil courts. I can only express the hope that this long overdue reform will soon be introduced in the States”.
2(a)8 When lawyers go on strike for redressal of their professional grievances and stall the working of the courts, it is in contradiction to and infringement of the Fundamental Duty enshrined in clause (a). In consequence, thousands of cases fixed for the day are adjourned and the entire working of the court is disrupted. It is blatant disrespect to the constitutional institution – the Judiciary. For redressal of professional grievances, representation can be made to the relevant authorities or to the legislature. Redress can be sought under the remedies provided in articles 226 and 32 of the Constitution. If at all a public demonstration is felt necessary, a silent rally before or after the court hours can serve the purpose. The effectuation of this clause has suffered tremendously because freedom is being abused as unbounded liberty.
2(a)9 Every office holder, elected or appointed, is as much bound by the provisions of article 51A as other fellow citizens. He has the added responsibility to set an example of good citizenship and to induce others within his sphere of influence to abide by the culture of the Constitution.
2(a)10 A Member of Parliament must, as a citizen, respect the ideals of the Constitution and also Parliament, the legislative institution of the Constitution. It is the first and foremost duty to respect the Judiciary and to respect the Institution to which he belongs, that is, Parliament. The conduct or behaviour which stalls the working of the House means disrespect to the constitutional institution. In case of disagreement on any point he is entitled express his opinion and he must abide by and behave within the Rules of Business. He can get his dissent recorded, but in case, he does not feel redressed, and creates “Hoolad, Hartal or Hinsa” to express his disagreement or dissent, it means infringement of his first duty under clause (a) of article 51A.
2(a)11 The following closing remarks of the President of the Constituent Assembly, Dr. Rajendra Prasad, are illuminating and thought provoking : -
Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it. It is a trite saying that a country can have only the Government it deserves. Our Constitution has provisions in it which appear to some to be objectionable from one point or another. We must admit that the defects are inherent in the situation in the country and the people at large. If the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all a Constitution like a machine is a lifeless thing. It acquire life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them. There is a fissiparous tendency arising out of various elements in our life. We have communal differences, caste differences, language differences, provincial differences and so forth. It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas and who will rise over the prejudices which are born of these differences. We can only hope that the country will throw up such men in abudance. I can say this from the experience of the struggle that we have had during the period of the freedom movement that new occasions throw up new men; not once but almost on every occasion when all leading men in the Congress were clapped into prison suddenly without having the time to leave instructions to others and even to make plans for carrying on their campaigns, people arose from amongst the masses who were able to continue and conduct the campaigns with intelligence, with initiative, with capacity for organization which nobody suspected they possessed. I have no doubt that when the country needs men of character, they will be coming up and the masses will throw them up. Let not those who have served in the past therefore rest on their oars, saying that they have done their part and now has come the time for them to enjoy the fruits of their labours. No such time comes to anyone who is really earnest about his work. In India today, I feel the work that confronts us is even more difficult than the work which we had when we were engaged in the struggle. We did not have then any conflicting claims to reconcile, no leaves and fishes to distribute, no powers to share. We have all these now, and the temptations are really great. Would to God that we shall have the wisdom and the strength to rise above them, and to serve the country which we have succeeded in liberating”.
Clause (b) of article 51A
2(b)1 Clause (b) provides that it shall be the duty of every citizen of India - TO CHERISH AND FOLLOW THE NOBLE IDEALS WHICH INSPIRED OUR NATIONAL STRUGGLE FOR FREEDOM.
2(b)2 Some of the noble ideals which inspired our national struggle for freedom were:
I. to achieve freedom from foreign rule so that the people of India have self-government which would establish a society where there will be no exploitation of man by man, no poverty, no disease, no illiteracy.
II. The above objective can be achieved only when all citizens have opportunities for all round development of their personality.
III. For all round development of personality, man-making education is required.
IV. Such education can be inculcated when precept is coupled with practice, and
V. Country is placed above self.
The citizens of India must cherish and follow the noble ideals which inspired the national struggle for freedom. The battle of freedom was a long one where thousands of people sacrificed their lives for our freedom. It becomes our duty to remember the sacrifices made by our forefathers for the cause of the country. But, what is much more important is to remember, imbibe and follow the ideals which pervaded our unique struggle. It was not a struggle merely for political freedom of India. It was for the social and economic emancipation of the people all over the world. Its ideals were those of building a just society and a united nation of freedom equality, non-violence, brotherhood and world peace. If we, the citizens of India remain conscious of and committed to these ideals, we will be able to rise above the various fissiparous tendencies raising their ugly heads now and then, here and there.
2(b)3 Parties and politicians who use religion, casteism, separatism, etc. for political ends and for capturing power are clearly violating their Fundamental Duties under the Constitution.
2(b)4 Dr. B R Amdedkar in his closing remarks said in the Constituent Assembly : -
“Will history repeat itself? It is this thought which fills me with anxiety. This anxiety is deepened by the realization of the fact that in addition to our old enemies in the form of castes and creeds we are going to have many political parties with diverse and opposing political creeds. Will Indians place the country above their creed or will they place creed above country? I do not know. But this must is certain that if the parties place creed above country, our independence will be put in jeopardy a second time and probably be lost for ever. This eventuality we must all resolutely guard against. We must be determined to defend our independence with the last drop of our blood.”.
2(b)5 The ideals envisaged in clause (b) are also the ideals of the Constitution some of which are reflected in the other clauses of article 51A itself. The promotion and harmony and spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women vide clause (e), to value and preserve the rich heritage of our composite culture vide clause (f), to develop scientific temper, humanism and the spirit of inquiry vide clause (h), to strive towards excellence vide clause (j) are also the noble ideals which inspired our national struggle for freedom.
2(b)6 The implementation of such Fundamental Duties require aspiration of the citizens rather than enforcement or sanction. When at the formative age of life such noble ideals are inculcated and hammered upon, and also practised in daily life, aspiration to practise them throughout life will be inevitable; it will become part and parcel of the nature and character of the citizen. Strong foundations of nature and character are laid during the formative period (6 to 17 years), that is when the boys and girls are at school. It is there that the personality is developed and moulded. It is there that the man is made. Therefore, in every school, private or public, and in every class, education for all round development of personality should be inculcated. The students of today are the nation builders of tomorrow. As the citizen, so the nation.
“Mahatma Gandhi laid stress on the purity of the methods which had to be pursued for attaining our ends. Let us not forget that this teaching has eternal values and was not intended only for the period of stress and struggle but has as much authority and value today as it ever had before. We have a tendency to blame others for everything that goes wrong and not to introspect and try to see if we have any share in it or not. It is very much easier to scan one’s own actions and motives if one is inclined to do so than to appraise correctly the actions and motives of others. I shall only hope that all those whose good fortune it may be to work this Constitution in future will remember that it was a unique victory which we achieved by the unique method taught to us by the Father of the Nation, and it is up to us to preserve and protect the independence that we have won to make it really bear fruit for the man in the street. Let us launch on this new enterprise of running our Independent Republic with confidence, with truth and non-violence and above all with heart within and God over head.” {Closing observations of Dr. Rajendra Prasad, President of the Constituent Assembly}
Clause (c) of article 51A
2(c)1 Clause (c) provides that it shall be the duty of every citizen of India – TO UPHOLD AND PROTECT THE SOVEREIGNTY, UNITY AND INTEGRITY OF INDIA.
2(c)2 To protect the sovereignty, unity and integrity of India is a pre-eminent national obligation of all citizens of India. In a democratic system of governance, sovereignty lies with the people. To defend our sovereignty is our own responsibility. If the freedom and unity of the country are joepardized, the nation ceases to exist and if there is no nation, who lives?
2(c)3 It may be recalled that the values of sovereignty, unity and integrity of the nation are first mentioned in the Preamble to the Constitution. Under article 19(2) of the Fundamental Rights, reasonable restrictions are permitted on freedom of speech and expression in the interests of the "sovereignty and integrity of India."
2(c)4 The Fundamental Duty enshrined in clause (c) of article 51A is essentially addressed to those citizens who belong to the defence forces or responsible for the maintenance of law and order. It can be said that this Fundamental Duty has been well effectuated. This clause, by necessary implication, imposes a Fundamental Duty on every citizen of India that he shall not do anything derogatory of upholding or protecting the sovereignty, unity or integrity of India. It is a duty prohibitory in nature addressed to traitors and spies.
2(c)5 Practically, the whole of Chapter VI of the Indian Penal Code (IPC) relating to offences against the State is relevant for protecting the sovereignty and integrity of India. If liberty resides in the minds of men and women, the same is true of unity. Any conduct which seeks to destroy or damage unity is punishable under Section 153-A of the IPC; Imputations and assertions prejudicial to national integration are punishable under Section 153-B of the IPC. Statements or reports containing alarming news which tend to promote enmity etc. are punishable under Section 505 (2) of the IPC.
Clause (d) of article 51A
2(d)1 Clause (d) provides that it shall be the duty of every citizen of India -TO DEFEND THE COUNTRY AND RENDER NATIONAL SERVICE WHEN CALLED UPON TO DO SO.
2(d)2 The primordial origins of the State are said to be in the need to defend ourselves against external enemies. In modern nation-States, it is considered axiomatic that every citizen is bound to be ready to defend the country against war or external aggression. The present day wars are not fought on the battlefield only nor are they won only by the armed forces; the citizens at large play a most vital role in a variety of ways. Sometimes, civilians may be required also to take up arms in defence of the country; the citizens are fighting only to defend their own liberty and that of their posterity.
2(d)3 Here, mention may be made of article 23(2) wherein State is allowed to impose "compulsory service for public purposes" subject to the condition that no discrimination is made on grounds of religion, race, caste or class or any of them.
2(d)4 The Fundamental Duty enshrined in clause (d) of article 51A is contingent on the citizens being called upon to defend the country and render national service. It is obviously addressed to all citizens other than those who belong to the army, the navy and the air force. It is a Fundamental Duty entrusted to the common man as indicated by the expression “when called upon to do so”. Those citizens who belong to any of the three defence forces are entrusted constantly with this Fundamental Duty. This Fundamental Duty has not so far been tested as there has been no occasion when the common man was called upon to render national service and to defend the country from any external aggression. The defence of the country may be needed against external aggression and war mongering armed rebellion within the country.
Clause (e) of article 51A
2(e)1 Clause (e) provides that it shall be the duty of every citizen of India - 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.
2(e)2 The duty to promote harmony and the spirit of common brotherhood amongst all the people of India essentially flows from the basic value of fraternity enshrined in the Preamble to the Constitution. India is a country of different castes, languages, religions and many cultural streams but we are one people with one Constitution, one flag and one citizenship. Spirit of brotherhood should come very normally among the citizens of a country like India where the norm has been to consider the entire world as one family. The Constitution also casts upon us the Fundamental Duty of ensuring that all practices derogatory to the dignity of women are renounced. This again should come normally to a country where it is an aphorism that Gods reside where women are worshipped. (yatra naryastu pujyante ramante tatra devata). It is for us to rise above the later day degenerations and aberrations which tarnished the image of our society. Incidentally, it may be noted that under article 23(1) of the Fundamental Rights, traffic in human beings is prohibited.
2(e)3 The first part of the clause (e) deals with the duty of citizens to promote harmony and spirit of common brotherhood among all the people of India. The harmony and brotherhood are to “transcend” religious, linguistic and regional or sectional diversities.
2(e)4 This part does not necessarily involve the elimination of various types of diversities. It is true that diversities will exist but they should be “transcended”. Without eliminating their existence, the citizens can still develop a mental outlook that will enable them to go beyond those diversities. They are required to rise above narrow cultural differences and to strive towards excellence in all spheres of collective activity.
2(e)5 The second part of the clause gives a mandate to remove prejudices and prejudicial or harmful concepts based on diversity on point of sex. Public opinion, in general, and even the opinion of women themselves, may fluctuate from time to time, and region to region, even from individual to individual. The central core of the concept is indignity to women. The passing of the Commission of Sati (Prevention) Act, 1987 emphasizes the importance of the duty. Many laws have been passed by the Union Government and the State Governments which punish practices derogatory to the dignity of women. The significance of clause (e) lies in its call to every citizen to renounce such practices. This clause easily lends itself to its effectuation in a concrete case because of its comparatively precise dimension.” (Vishaka vs State of Rajasthan AIR 1997 S.C.3011)
Clause (f) of article 51A
2(f)1 Clause (f) provides that it shall be the duty of every citizen of India TO VALUE AND PRESERVE THE RICH HERITAGE OF OUR COMPOSITE CULTURE.
2(f)2 To preserve the rich heritage of our composite culture is another Fundamental Duty of every Indian citizen. Our cultural heritage is one of the noblest and the richest. Also, it is part of the heritage of the earth. What we have inherited from the past, we must preserve and pass on to the future generations. In fact, each generation leaves its footprints on the sands of time. We must hold precious and dear what our fore-fathers have created and their successive generations bequeathed to us as symbols of their artistic excellence and achievements. Generations to come always draw inspiration from past history which stimulates them to aim at ever greater heights of achievement and excellence. It becomes the ardent duty of every citizen to ensure that these monuments and pieces of art are not in any way damaged, disfigured, scratched or subjected to vandalism or greed of unscrupulous traders and smugglers.
2(f)3 Every culture stands for some noble ideals. In India the foundation, the background, the life centre is spirituality – the keynote of the whole music of national life. Spirituality is a repository of noble ideals and they are essential in preserving the rich heritage of our composite culture.
2(f)4 One of the most ancient civilizations of the world, India can take legitimate pride in having been a civilizational unity without a break for more than five thousand years. We all are part of this great civilization and culture. Our contributions in the field of art, sculpture, architecture, mathematics, science, medicine, etc. are well known. Some of the oldest, deepest and most sublime philosophical thoughts and literature were born in India. We have several historical monuments of great archaeological value spread over the entire country. These include forts, palaces, temples, cave paintings, mosques, churches, etc. Also, this territory has had the honour of being the birthplace of several great religions like Hinduism, Buddhism, Jainism and Sikhism. Our past has shown us the path of peace, love, non-violence and truth. As citizens of this country, it is the responsibility of all of us to work for the preservation of this rich heritage and its cultural values and live in love and harmony.
2(f)5 The Directive Principle relating to protection of monuments and places and objects of national importance under article 49 similarly enjoins the State to protect monuments and places and objects of national, artistic or historic importance.
2(f)6 Clause (f) being the heart and soul of article 51A, requires explanation, elaboration and illustration, since the expression “rich heritage” is comprehensive. This clause requires the citizens to value and preserve the rich heritage of our composite culture. Emphasis is on two types of action viz. valuation and preservation of our heritage. The process of valuation of heritage presupposes an appreciation of the heritage. It is essentially an intellectual process but it is a necessary prelude to the preservation of heritage which is a physical activity. Nobody will be inspired to preserve the heritage unless he has an appreciation of its richness. India has a splendid culture and it requires lifetime to understand and appreciate its many facets. The culture of India is considered to be composite culture and a culture which is composite is bound to have components derived from various sources. In the words of Sri Aurobindo, the seer, the Indian culture is described as:
“More high reaching, subtle, many sided, curious and profound than the Greek, more noble and humane than the Roman, more large and spiritual than the old Egyptian, more vast and original than other Asiatic civilizations, more intellectual than the European prior to the 18th century, possessing all that these had and more, it was the most powerful, self-possessed, stimulating and wide in influence of all past human cultures.”
2(f)7 The compositeness of Indian culture is due to the wide and democratic nature of the Indian thought. Indian culture is basically spiritual. It is eternal law of life “May good thoughts come to us from the entire universe”. Our nation has a tradition of sheltering the persecuted and the refugees of all religions and all nations of the earth.
2(f)8 Under the leadership of Mahatma Gandhi, our freedom struggle received its inspiration, courage and moral strength from truth and non-violence out of the inexhaustible reservoir of the basic values of “Satyam” (Truth), “Shivam” (Goodness) and “Sundaram” (Beauty).
2(f)9 THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (Adopted by the General Assembly of the United Nations on December 10, 1948) declares in clause (1) of Article 29: “Everyone has duties to the community in which alone the free and full development of his personality is possible.”
2(f)10 All round development of personality of the citizen in all the aspects, intellectual, mental, physical and spiritual, is a rich heritage of our composite culture and is a panacea for all administrative, political and social ills. It is the Fundamental Duty of every citizen to develop his/her whole personality through education which should not be merely for the learning of certain selected subjects but also for the development of the intellect and of the mind, of the body and of the spirit. Its ultimate aim should be to improve simultaneously the standard of life and the standard of living of an individual. One of the reasons for erosion of moral values in public life and steep deterioration in work consciousness is the dilution and deviation of the spirit behind education. The need of the hour is to reverse this trend.
2(f)11 Article 28 of the Constitution prohibits imparting religious instruction in educational institutions which are run or aided by the State. This article has been grievously misrepresented so that spiritual education has been made out of bounds in educational institutions. Religious means the manifestation of the divinity inherent in man (Vivekananda). It could never have been intended by the founding fathers of the Constitution to exclude the manifestation of the divinity in students. On the contrary, manifestation of divinity and manifestation of perfection inherent in man constitute the first and foremost purpose of education. There cannot be a shred of doubt that this was not and could not be prohibited. What was prohibited was sectarian education, that is, promotion of philosophy of any particular sect or sects. Truly speaking, instruction for spiritual development is the basis and foundation of man-making education.
2(f)12 The Sri Prakash Committee (1959) defined moral value as that which guides us to behave properly with others, and spiritual value as that which takes us out of our narrow selves, and inspire us to sacrifice for the good of others or for a great cause. The Committee noted that learning of such moral and spiritual values is very essential.
2(f)13 The National Policy on Education (NPE) (1986/1992) attaches great importance to the cultural perspective of education. To quote the recommendations made in the NPE on value education:-
“The growing concern over the erosion of essential values and an increasing cynicism in society has brought to focus the need for readjustments in the curriculum in order to make education a forceful tool for the cultivation of social and moral values. …… Such value education should help eliminate obscurantism, religions fanaticism, violence, superstition and fatalism. Apart from their combative roles, value education has a profound positive content, based on our heritage, national goals universal perceptions. It should lay primary emphasis on this aspect.”
2(f)14 The highest heritage of our composite culture which engaged attention of Indian seers and sages and which they found out after a disciplined quest is that there is a divine element in human beings. The manifestation of divinity is a crucial indicator of civilization of human kind. Civilization is the manifestation of that divinity in man. To imbibe in oneself that divinity and inculcate in every citizen the urge to endeavour all-round development of his personality on that basis, is the highest heritage of our composite culture which has to be followed and preserved, as Fundamental Duty of every citizen.
2(f)15 The divine core of personality is covered by five dimensions :-
(i) Physical dimension consisting of the body and the senses;
(ii) Energy dimension which performs digestion of food, blood circulation, the respiration and every activities within the body;
(iii) Mental dimension chracterised by the activities of the mind – thinking and feeling;
(iv) Intellectual dimension chracterised by the determinative faculty and will power; and
(v) Psychic dimension experienced as bliss, e.g. during deep sleep.
2(f)16 A rich heritage of our composite culture is man-making education initiated from childhood and continued through-out life. A rich heritage of our composite culture has been the dedication of the individual and performance of higher law in day-to-day life. It must be recalled that in our culture right from the initial stage of law making, the law consisted of duty and duties only, which could broadly be divided into three aspects – sacrifice; ceremonies; and temporal duties (Shrauta, Grihya and Samayacharike), the last one being referred to as Dharma Sautras. As we became more civilized, the concept of rights became more important so much so that the rights of the citizens over shadowed the duties of the citizens.
2(f)17 Our composite culture lays greatest emphasis on higher law, which is the panacea for all political, social, economic and ethical ills in the society. Higher law means a determined resolve to a conduct and behaviour which will have the effect of rendering all penal laws redundant.
2(f)18 The foremost are five :
(i) If a citizen commits theft, he is punished with imprisonment or with fine or both; this is law. However, if the citizen takes the determined resolve within himself that he will not commit theft even if the whole world may, this is higher law (Asteya);
(ii) If a citizen causes hurt to another person, he is punished; this is law. However, if the citizen takes a determined resolve within himself that he shall not cause hurt to anyone; this is higher law (Ahimsa);
(iii) If a citizen commits cheating he is punished; this is law. However, if the citizen takes a determined resolve within himself that he shall not cheat or deceive any body; this is higher law (Satya);
(iv) If a citizen takes a bribe he is punished; this is law. However, if every citizen takes a determined resolve not to take bribe, and not to give bribe, even if the whole world may; this is higher law (Aprigraha); and
(v) If a citizen outrages the modesty of a women he is punished, this is law. However, if the citizen takes the determined resolve that (except his wife) he shall always look upon women as his mother, sister or daughter; this is higher law (Brahmacharya).
2(f)19 Thus, not to commit an offence because of prescribed punishment makes a citizen law abiding. To resolve to practise higher law and to discharge the duties called higher law, would be a process of rejuvenating and reconstructing the nation. Therefore, all-round development of personality of the citizen which is the richest heritage of our composite culture is the most significant part of article 51A.
2(f)20 The noble ideals cherished and followed [under clause (b)] and the rich heritage of our composite culture followed and preserved [under clause (f)] and the endeavour to strive towards excellence in all spheres of individual and collective activity [under clause(j)] – these combined as triveni – have the potency and potential to regenerate and reconstruct the nation.
2(f)21 To protect the rich heritage of our composite culture and to prevent it from being adversely influenced from any contradictory, derogatory or destructive culture is a significant aspect of the Fundamental Duty to value and preserve the rich heritage of our composite culture. Therefore, any warming sounded particularly to the younger generation is significantly valuable. “…… our culture, which is a composite culture of several cultures in India, is the best and yet we are aping the western methods and trying to become westernized far too rapidly. It was said of Mahatma Gandhi that he would rather have had the British stay if they become Indian…. We, who are struggling as a developing country, cannot endure because we are required to keep our culture going….” Regarding addiction to drug and liquor and fast club life, “Is it this kind of culture to which we were born and is it this kind of culture which we must ape and copy? This is not our society and I only hope that our boys and girls, even if they go abroad, will not bring back those habits to us because we on our part must preserve our culture. We as a nation have existed spiritually and have a spiritual past and a spiritual future which we cannot jeopardize by learning the absurd ways” of other countries. {Mr. Justice M Hidayatullah, former Chief Justice of India : Convocation Address, Bangalore University}
2(f)22 When we review the working of clause (f), it is striking that there has been an invasion of Western school of thoughts on India, in dress, in diet, in literature; and the Indian mind has been going under the spell of the West. Reviving of Indian heritage is most necessary. It is the only way to recultivate the social and moral values which are the pride of our composite culture. The target is to achieve the national goals of heritage and bringing home the idea of universal brotherhood.
2(f)23 Clause (f) has the potential that its implementation in daily life by each and all citizens would be the panacea for all administrative, political and social ills and will lead to all round development of personality of the citizen and will achieve the ultimate objective, viz. eradication of poverty, disease and illiteracy.
2(f)24 The display of scenes and dialogues of violence, vices and vulgarity on the TV have adverse influence on the immature mind of the young generation. This menace is growing day by day and is to be checked without further delay.
2(f)25 It is generally accepted that deterioration in the values and lack of probity in public life are the two evils which hamper the growth of our nation. In para 3.13, the Justice Verma Committee quoting from the Lord Nolan Committee of UK, has set out the following values. These values would be suitable recognized in the clause dealing with Fundamental Duties; Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty and leadership by example.
2(f)26 If these are incorporated and recognized, it can be hoped that we have none of the sins described by Mahatma Gandhi as follows :
Politics without Principle, Commerce without Morality, Wealth without Work, Education without Character, Science without Humanity, Pleasure without Conscience, Worship without Sacrifice.
Clause (g) of article 51A
2(g)1 Clause (g) provides that it shall be the duty of every citizen of India - TO PROTECT AND IMPROVE THE NATURAL ENVIRONMENT INCLUDING FORESTS, LAKES, RIVERS AND WILD LIFE, AND TO HAVE COMPASSION FOR LIVING CREATURES.
2(g)2 In the face of the menace of the increasing pollution and environmental degradation, it is the duty of every citizen to protect and improve natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. The rising air, water and noise pollution and large-scale denudation of forest are causing immense harm to all human life on earth. The mindless and wanton deforestation in the name of needs of development is causing havoc in the form of natural calamities and imbalances. By protecting our forest cover, planting new trees, cleaning rivers, conserving water resources, reforesting wastelands, hills and mountains and controlling pollution in cities, villages and industrial units, we can help save the future of our fellow citizens and of planet earth itself. What is needed is a concerted effort at, an awareness campaign and a planned strategy to move forward through voluntary citizen initiatives. Governmental steps alone cannot help bring about a pollution-free atmosphere to live now and in the future.
2(g)3 The mention of protection of environment, etc. as a duty of citizens, is intended to reinforce the other constitutional provision - article 48A under the Directive Principles of State Policy which enjoins the State to protect and improve the environment and safeguard the forests and wild life.
2(g)4 Earth is the common heritage of man and animals. We have no right to annihilate or drive away from their territory or natural habitat the wild denizens. Ancient Indian thought talks of Sarvesham Shantirbhavatu (peace unto all living beings and entire environment) or Ahimsa paramodharma. Ahimsa paramo tapah (non-violence is the greatest duty and the greatest penance).
2(g)5 This duty has received intensive and extensive, legislative and executive attention during the last few years. The Environment (Protection) Act, 1986, is an important step in that direction. The range of its provisions and the far-reaching measures that can be undertaken through statutory rules and orders that can be issued under the Act, show that the duty to protect and improve the natural environment has been spelt out quite elaborately in our law.
Clause (h) of article 51A
2(h)1 Clause (h) provides that it shall be the duty of every citizen of India - TO DEVELOP THE SCIENTIFIC TEMPER, HUMANISM AND THE SPIRIT OF INQUIRY AND REFORM.
2(h)2 One of our great founding father, Jawaharlal Nehru always laid great emphasis on the need for Indian citizens developing a scientific temper and a spirit of inquiry - an inquisitiveness for learning from developments around the world. This was particularly necessary because of the most revolutionary scientific advances during this century and in the context of our background of superstitions and obscurantism. Nehru laid the foundations of the modern industrialised India by building the necessary scientific and technological infrastructures. Now, it is the bounden duty of every citizen to preserve and promote a scientific temper and a spirit of inquiry to keep pace with the fast changing world. Also, the Constitution ordains that science and technology must be tempered with a sense of humanism because ultimately the end of all progress is the human being and the quality of life and relationships that is developed.
2(h)3 Scientific temper means outlook founded on organised knowledge and experience. Scientific temper is based on reason and rationality in contradistinction to superstition or blind faith. Scientific temper discards obsolete learning. It requires thirst for knowledge and urge for research for facts and a zeal for setting things right.
2(h)4 Humanism is primarily rational coupled with emotional quality. Every citizen has three elements inherent - animality, humanity and divinity. Caution and control are required against falling into animalism. Humanism is outstanding in man's nature. There must be its incessant manifestation in conduct and behaviour. Every citizen should strive for development or rise towards divinity - qualities higher than human. No one can aspire to be divine unless he/she strives in thought, word and deed to be first a human.
2(h)5 To cause harm in body, reputation or property to others by any word, deed or thought is animality. To advance in one's career or in any activity without causing harm to any one is humanity. To go forward taking along another towards his progress and even pushing another ahead of oneself - selfless service - is divinity. Spirit of inquiry and reform is prerequisite for every right action, progress and development.
Clause (i) of Article 51A
2(i)1 Clause (i) provides that it shall be the duty of every citizen of India - TO SAFEGUARD PUBLIC PROPERTY AND TO ABJURE VIOLENCE.
2(i)2 It is most unfortunate that in a country which preaches non-violence to the rest of the world, we see from time to time spectacles of senseless violence and destruction of public property indulged in by a few of its citizens. This is why it became necessary to prescribe the responsibility "to safeguard public property and abjure violence" as a fundamental citizenship duty.
2(i)3 The clause (i) has been invariably observed in its breach. If violation of the various Fundamental Duties under article 51A is rated, this clause is outstanding. Whenever there is a strike or bundh or rally, and mob mentality develops, public property is the first casualty. Buses and buildings are destroyed, sometimes followed by loot and arson. Where as it is the Fundamental Duty of every citizen to protect public property and abjure violence, they just remain silent spectators - miserable and helpless. What is the remedy? Answer is inculcation of human values right from the formative period of life so that strong foundation is laid for effectuation of Fundamental Duties, more particularly enshrined in clauses (b), (f), (i) and (j).
Clause (j) of article 51A
2(j)1 Clause (j) provides that it shall be the duty of every citizen of India - 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.
2(j)2 The drive for excellence in all spheres of individual and collective activity is the demand of times and a basic requirement in a highly competitive world. Nothing but the best would have survival potential in tomorrow's world. This would include respect for professional obligations and excellence. Whatever work we take up either as individual citizens or as groups, our effort should be directed to achieving the goal of excellence. Also, special emphasis is called for in the area of collective activity.
In Dr. Dasarathi Vs. State of Andhra Pradesh (AIR: 1985 AP 136), it was held that under article 51A (j) of the Constitution, we all owe a duty to ourselves to strive towards excellence in all spheres of individual and collective activity so that this nation may constantly rise to higher levels of endeavour and achievement. When the State undertakes to promote excellence, it can do so only through the methods which our Constitution permits to adopt. Rewarding of sycophancy only helps to retard the growth of efficiency and excellence.
2(j)3 The clause (j) has the potential not only to regenerate and reconstruct the country but also to raise it to the highest level. "Excellence" is the secret of all development and all success. “Excellence” brings about communion with the Divine "Yogah Karmsu Kaushalm". Japan and Singapore are living examples. It is amazing that Japan stood up head and shoulders in such a short time after the devastation in Hiroshima and Nagasaki. The open secret is "Excellence". Every single citizen, in whatever walk of life he is, endeavours and perseveres for excellence in his project because right from primary schools the word "Excellence" is inculcated in his blood, by displaying numerous mottos, maxims and quotes containing the world "Excellence".
2(j)4 Here, far from striving for excellence, it has become generally the nature and character of the citizen to find loopholes in law and flourish individually on adulteration, hoarding, black-marketing apart fromhoolad, hartal and hinsa. Steep deterioration in work consciousness, the urge for maximum wages for minimum work, sub-standard production, blackmailing, and corruption have become rampant in society and growing day by day. This has to be reversed. Those at the top must begin and strive for it.
Dr. Rajendra Prasad expressed himself in these words :
“I would have liked to have some qualifications laid down for members of the Legislatures. It is anomalous that we should insist upon high qualifications for those who administer or help in administering the law but not for those who make it except that they are elected. A law giver requires intellectual equipment but even more than that capacity to take a balanced view of things, to act independently and above all to the true to those fundamental things of life – in one word – to have character. It is not possible to devise any yard-stick for measuring the moral qualities of a man and so long as that is not possible, our Constitution will remain defective”.
PART - III
Steps Towards Effectuation of Fundamental Duties
3.1.1 Effectuation of Fundamental Duties is the ladder with elucidation and elaboration as the first step, awareness as the second; inculcation as the third; aspiration as the fourth; implementation (performance) as the fifth; besides enforcement. If colloquia and consultations on Fundamental Duties in the context of given events or situations are organized by citizens’ groups in this mode, it will be easier for them to comprehend the full import of the provisions of article 51A, add citizenship values to their inner being, and to realize their full potential.
3.2 Awareness :
3.2.1 It is axiomatic that ignorantia legis non-execusat. However, one in a thousand is aware of article 51A; the Fundamental Duties. Even highly educated citizens may not be aware of this part of the Constitution. For instance, it is the command of clause (b) that every citizen shall cherish and follow the "NOBLE IDEALS" which inspired our national struggle for freedom. What were those "Noble Ideals"? During the period of our national struggle for freedom, the population of our country was 33 crores which means that 67 crores were born post-independence, after 15th August 1947. They have to be informed what the "noble ideals" were. Article 51A does not identify them. The Constitution does not define them. Even the common man of those days would say that the object of national struggle for freedom was to redeem the country from the bondage of the British Rule and to acquire self-rule instead. And the ideals were enshrined in "Vande Matram" and "Jhanda Ooncha Rahe Hamara" or "Inqalab Zindabad."
3.2.2 Practically nothing has been done to inform and awake general public to the Fundamental Duties which are mandatory or to cause awareness for their publicity and propagation.
3.2.3 The current conjucture of socio-economic forces and the disgust aroused by falling ethical standards provide a timely opportunity to launch a nation-wide MOVEMENT to enable all citizens to become aware of their rights and responsibilities, understand their obligations to observe Constitutional Values and carry out Fundamental Duties in day to day activity.
3.2.4 The rights and responsibilities of the citizens in a democracy are immense. And yet no systematic effort was made over the years to educate the citizens in democratic governance. The State and the society have failed to provide adequate means and mechanisms for citizens to identify, imbibe and practise the “Culture of the Constitution”. This failure is mainly responsible for the low level of effectuation of Fundamental Duties.
3.2.5 The beginning has been made by the Department of Education in the Ministry of Human Resource Development in the Teaching of Values in primary and secondary schools. Similar steps have yet to be taken in the Universities and Institutes of Higher Learning. At the level of social action, several efforts have been made to generate awareness of the importance of discharging Fundamental Duties and enable citizens to imbibe and practise citizenship values.
3.2.6 For convenience of operation, the citizenry may be divided into eight groups. Every effort should be made to identify the values relevant to each Group, discuss their application in live situations, and develop strategies for their effective internalization.
3.3 Inculcation
3.3.1 It is the Fundamental Duty of every citizen to develop his whole personality and also that of his sons and daughters and of his pupils in the formative age of nature and character (6 years to 17 or 21 years). The purpose of schools should be to impart education not merely for the learning of certain selected subjects but also for the development of the intellect and of the mind, of the body and of the spirit of the pupil. Its ultimate aim should be to improve simultaneously the standard of life and the standard of living of an individual. One of the reasons for erosion of moral values in public life and steep deterioration in work culture is the dilution and deviation of the true spirit behind education. The need of the hour is to reverse this trend.
3.3.2 In his memorable letter to the Chief Justice of India, Mr. Justice Ranganath Misra said : -
“As a nation-building measure, teaching Fundamental Duties in every educational institution and as a measure of in service training everywhere”, was necessary as these “cannot be inculcated in our citizens unless these are brought into their minds and living process through teaching and education”. “It is the obligation of the State to educate the citizens in the matter of Fundamental Duties so that a right balance between Rights and Duties may emerge.”.
3.3.3 Mr. Justice Venkataramiah in his landmark judgement in M C Mehta (II) Vs. Union of India and Ors. (1998) 1 SCC 471, inter-alia, gave directions that:
(i) the Central Government shall direct to the educational institutions throughout India to teach at least for one hour in a week, lessons relating to protection and the improvement of the natural environment including forests, lakes, rivers and wild life in the first ten classes;
(ii) the Central Government shall get text books written for the said purpose and distribute them to the educational institutions free of cost;
(iii) the children shall be taught about the need for maintaining cleanliness commencing with the cleanliness of the house, both inside and the outside and with the street in which they live;
(iv) the Central Government shall consider training of teachers who teach this subject by the introduction of short-term courses for such training;
(v) the Central Government, the Governments of the States and all the Union territories shall consider desirability of organizing “keep the city/town/ village clean” week;
(vi) to create a national awareness of the problems faced by the people by the appalling all-round deterioration of the environment.
3.3.4 The most purposeful and practical part of Justice Verma Committee Report (1999) is the exposition of ways and means of generating awareness of and inculcating, Fundamental Duties in the citizens. To quote :
“Citizenship is a solemn duty which every individual must discharge with due diligence and dedication. The current conjecture of social, economic and political forces calls for a movement which captures the imagination of masses and motivates all categories of citizens to abide by the provisions of the Constitution in performing their duties and exercising their rights”.
3.3.5 Towards creating more awareness and consciousness of Fundamental Duties among citizens, the Committee recommends the following:
· Organizing advocacy and sensitization programmes.
· Preamble to the Constitution of India and the 10 clauses of article 51A on Fundamental Duties to be appropriately displayed on all government publications, diaries, calendars and at public places so that they always remain in the focus of the citizens.
· Radio and video spots, highlighting important messages related to Fundamental Duties, in the background of proper music and the National Flag, to be commissioned by All India Radio, Doordarshan, and other DD Channels. This should become a regular feature at least in all Doordarshan channels around the country, once or twice a day, to have significant impact over the years.
· January 3 to be observed as Fundamental Duties Day.
· Need to set up an autonomous body to act like ombudsman on Citizenship Values which could create a mechanism to act as catalyst towards overseeing operationalization of Fundamental Duties. The human resource of the senior citizens could be effectively utilized for discharging commitment of this nature. The financial implications for setting up this body which has also a state funding aspect will have to be taken into consideration.
· Small boo3klets on various aspects of Fundamental Duties written in a language easy to understand could also be developed for different levels of citizens. Such booklets should be particularly utilized by the citizens learning through Non-Formal Education (NFE) and Adult Education (AE) programmes run by state governments and voluntary agencies. The concept of Fundamental Duties can form a major component of NFE and AE programmes.
· The media should exercise considerable circumspection on the programmes, serials, pictures, news and advertisements affecting the morality or the decency of our people and cultural heritage of the country.
· Environment issues need to get more space in the media. The media should take the role of an activist guard. It is not that it has to be a current topic or a part of political agenda that the media will pay attention to. Media people have to remain alive to their constitutional responsibilities arising from Fundamental Duties to see that subjects like environment do not become a casualty.
· Media has a duty to avoid presenting acts of violence, armed robberies and terrorist activities in a manner that glorifies the perpetrators’ acts, declarations or death in the eyes of the public. Fundamental Duties are not only sacrosanct but also have the element of compulsion requiring obedience, provided the machinery of the state appreciates its true nature and motivates the implementation machinery towards this end. The primary need, therefore, is to ensure a faithful and effective implementation of the existing legislation in the area covered by legislation and for prompt measures to legislate in the remaining field to fill the legislative vacuum.
3.3.6 Contribution of NGOs
Non Governmental Organizations can effectively contribute to the spreading of awarenss and inculcation in the citizens as the practical aspects of effectuation of Fundamental Duties, by evolving a variety of ways and means suitable to the areas of their operation. There are NGOs which have been undertaking such projects effectively. For instance, the Citizenship Development Society
3.3.7 On 7th April, 1979, closely following the enshrinement of Fundamental Duties of Citizens in the Constitution, a group of patriotic citizens with an urge to ensure effectuation of these duties and to prompt good citizenship values set up the Citizenship Development Society (CDS), as a registered body.
3.3.8 Several efforts were made to generate awareness of the importance of practising citizenship values. The main ingredients of action programmes taken up by the CDS were:
(i) Strengthening Citizenship education at al levels of the educational ladder,
(ii) Developing training/orientation programmes for imparting Citizenship Values to persons in various walks of life,
(iii) Tuning and orienting the national ethos of good citizenship values and undertaking field work and rural development programmes.
(iv) Pressing and persuading the Planning Commission to lay stress on Citizenship Duties, Values and Citizenship Education.
3.3.9 CDS approached the Ministry of Information and Broadcasting to strengthen their programmes for fostering good citizenship on AIR and Doordarshan. The Ministry accepted their request to produce a series of films on good citizenship to promote citizenship values among masses. At the Society's instance, a documentary film entitled "Aaramb" was produced by the Ministry's Film Division, and the film was telecast in 1985.
3.3.10 A Project entitled "Production of Reading Material, Songs, Posters and Slogans", for fostering good citizenship among adult learners in the Union territory of Delhi was implemented in the 1985-86. Further reading material and visuals were prepared for use at the adult literacy and primary stages during 1986-88. Preparation and publication of Hindi booklets on citizenship duties for neo literates was also undertaken by the CDS.
3.3.11 A Centre for Research and Training in Citizenship Development (C.R.T.C) was established by the CDS with the following objects:
- Research in various aspects of citizenship development
- Designing training and orientation programmes for citizenship education
- Preparation of course materials to impart education in citizenship duties
- Providing consultation services for citizenship education
3.3.12 The CDS approached University of Mumbai to consider introducing Citizenship Development as one of the important areas of graduate studies. Their Board of Studies in Politics has accordingly drafted a syllabus of a Paper entitled "Citizens, Citizenship Awareness and Training in Citizenship". They have further informed that this Paper will be compulsory for all the students in the faculty of Arts, Commerce and Science at graduate level.
3.3.13 Taking lead from this initiative of Mumbai University, the CDS has taken up the subject of Citizenship Awareness and Training with other Universities in India. Unfortunately, University Grants Commission (UGC) have informed that they have no scheme under which funds could be provided for promoting Citizenship Awareness at the university level.
3.3.14 As a result of two Panel Discussions organised on the subject of the Citizenship Values enshrined in the Indian Constitution, it was decided to distil citizenship values enshrined in the Constitution and prepare a Book under the title "Citizens and the Constitution". At the request of the Society, the Publication Division of the Ministry of Information and Broadcasting, printed and published this path-breaking book. The book has been translated into some other Indian languages. A Symposium on this Book was organised on 2nd March, 1998 in collaboration with the India International Centre, Rashtriya Jagriti Sansthan and D.H. International Centre of Indic Research.
3.3.15 To this end, the CDS is committed to focus public attention on the following:
· Good citizenship deserves to be accorded the highest priority in national life.
· Citizenship development should be based on values of democracy, rule of law and social justice.
· Good citizenship should be founded on a civic culture of mutual consideration and accommodation between Citizens, State and Civil Society.
· Citizenship education in democratic governance is indispensable for each age group, for every vocation and for every station of life.
· Citizens who are called upon by election, nomination or appointment to fulfill public responsibilities should pledge themselves to respect the rights of fellow citizens and carry out Fundamental Duties in letter and spirit.
3.3.16 There are some other NGO’s which are endeavouring through Seminars and workshops the inclusion of education for personality development as a course subject in Schools. Information and Inculcation of Fundamental Duties has been and can be, the predominant part of their projects.
3.3.17 Inculcation in Schools
To inculcate effectively the human values constituting development of the whole personality of the student, such measures as the following are necessary :-
1. A class for about one hour duration for men making education and for imparting the Fundamental Duties enshrined in article 51A of the Constitution and also fundamental values from all faiths, on three days a week.
2. A lecture to inculcate human values and Fundamental Duties by eminent persons or spiritual luminaries (followed by questions and answers) once in three months.
3. Periodical essay and elocution competition on value based topics.
4. Yearly awards to students who stand first in translating the values into reality.
5. Active involvement of parents in the inculcation of human values.
6. Annual meet of teachers to evaluate the performance of value based education.
3.3.18 It is only when devotion, dedication and determination to duties become a habit or a part of nature and chracter of the citizen that it will be implemented in daily life. Nature and chracter are formed, and the personality is developed, during the fomative period of life that is the age of 6 to 17 years. It is at this stage of life (and that is generally the period when boys and girls are at school that their nature and chracter are made by teachers. It is the teacher, with whom boys and girls are for six hours or so physically, but more than 10 hours a day mentally, that can construct the nature and character of the citizens in the making. It is the Guru (Teacher) whose prime duty is to inculcate human values in the SHISHYA (Pupil)
3.3.19 The role of parents is first to inclulcate Sanskars in their children; not only by precept but more so by practice; and, secondly, to cooperate with the teachers through vigilance that their child practices in daily what he learns in the school, particularly the lessons in all round development of personality.
3.3.20 The role of school management is to extend necessary support to the teachers and to provide necessary facilities for inculcation of human values in the students.
“The greatest of all the means for ensuring the stability of the Constitution is the education of citizens in the spirit of the Constitution”.
Aristotle
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3.3.21 It will be only appropriate if in all forms of oaths or affirmations prescribed under the Third Schedule to the Constitution, the following words be added :
“…..and that, being fully conscious of the fact that I am first a citizen of India and then anything else, I shall sincerely discharge all the Fundamental Duties enshrined in Part-IVA of the Constitution”.
And this pledge should be renewed every year on the 3rd day of January at an assembly of all persons holding public office, in all public institutions – legislative, judicial and executive.
3.4 Aspiration
3.4.1 Sincere and effective inculcation of Fundamental Duties particularly in the younger generation will automatically give rise to aspiration to translate them into daily life. The test whether inculcation has been sincere and effective is as to whether aspiration has arisen in the minds of the students, to implement the Fundamental Duties.
3.4.2 Inculcation precedes and implementation follows aspiration.
3.4.3 To make citizens aware of and to aspire for implementation of the Fundamental Duties in daily life must be the primary concern and obligation of the State. To that end, suitable provisions could be added in due course in Part IV of the Constitution.
3.4.4 In every educational institution whether public or private, the entire teaching staff and the students of the school or college or the university, as the case may be, should take the following pledge on the opening day and the closing day of each academic session:
“I do solemnly and faithfully undertake to perform / discharge the entire Fundamental Duties enshrined in Part-IVA of the Constitution”.
3.4.5 Every holder of a public office (whether political, academic, administrative, educational or otherwise rendering public services) is first a citizen and then office-holder. Every office holder should be conscious of his added responsibility of himself setting a good example of good citizenship by translating into daily life the Fundamental Duties enshrined in article 51A and thereby induce fellow citizens particularly those within the sphere of his power and influence, to do the same thing. And all this he should do particularly in the discharge of his official duties and also in his individual personal life as a citizen. For instance, the holders of political office like Prime Minister, Chief Ministers of States, Ministers and Members of Parliament, Members of Legislative Assemblies and Members of Legislative Councils should be persons who sincerely promote harmony and the spirit of common brotherhood amongst all the people in India transcending religion, linguistic and regional or sectional diversities. Such of them who thrive on caste and community – based electoral politics, whose outlook is sectarian and who regularly espouse the cause of the community or the other or who do not show equal respect to all religions and persons belonging to different religions, cannot set an example in the matter of discharging Fundamental Duties. Similarly leaders, who in the past had organized, violent demonstrations or indulged in destruction of public property or allowed depletion of forests and pollution of lakes and rivers or responsible for destruction of wild life cannot inspire other citizens to follow the Fundamental Duties. These illustrations apply with equal force to the teaching community and other public servants.
3.4.6 Every public servant before he assumes charge of his office shall take a pledge (standing before the entire staff of the office) :
“I solemnly pledge myself to discharge, as a citizen of India, all the Fundamental Duties enshrined in Part-IVA of the Constitution”. And this shall be renewed every year on the 3rd January.
3.5 Implementation
3.5.1. The following suggestions for the amendment of the Constitution have been received to ensure the full implementation of the Fundamental Duties.
(i) The opening words of Article 51A should be reworded as follows :
“Every citizen of India shall implement in daily life the following duties”:
(ii) Article 51A should be shifted to Part II (Citizenship) of the Constitution.
(iii) Suitable changes may be carried out to make Fundamental Duties to form a compendium with the Fundamental Rights.
3.5.2 It will be premature to think of amending the Constitution without making a determined effort to educate the citizens in the spirit of the Constitution. If the suggestions made above for effectuating the Fundamental Duties are effectively carried out a responsible citizenry may be expected to tackle successfully the basic problems at home and ensure that India occupies the rightful place abroad. The discussion in Part IV on enforcement brings out the legal and legislative support which is already available for practical actions and programmes to effectuate Citizenship Value.
PART – IV
Enforcement of Fundamental Duties
4.1.1 The Fundamental Rights in Part III, the Directive Principles of State Policy in Part IV and the Fundamental Duties in Part IVA form a compendium and have to be read together.
4.1.2 It is true that there is no legal sanction provided for violation or non-performance of Fundamental Duties. There is neither specific provision for enforceability nor any specific prohibition. However, Fundamental Duties have an inherent element of compulsion regarding compliance.
4.1.3 Out of the ten clauses in article 51A, five are positive duties and the other five are negative duties. Clauses (b), (d), (f), (h) and (j) require the citizens to perform these Fundamental Duties actively.
4.1.4 It is said that by their nature, it is not practicable to enforce the Fundamental Duties and they must be left to the will and aspiration of the citizens. However, in the case of citizens holding public office, each and all Fundamental Duties can be enforced by suitable legislation and departmental rules of conduct. Appropriate sanctions can be provided for lapse in respect of each Fundamental Duty and it is quite practicable to enforce the sanction against every citizen holding a public office; for instance, departmental promotions can be deferred, increments can be withheld, etc. If an officer takes part in a strike or stalls the proceedings of his institution, he can be made to forgo the salary for that day.
4.1.5 Likewise, sanctions can be provided for professional bodies such as the Bar Council of India, the Medical Council of India, the Institute of Chartered Accountants and the Institute of Engineers, etc.
4.1.6 It is no longer correct to say that Fundamental Duties enshrined in article 51A are not enforceable to ensure their implementation and are a mere reminder. Fundamental Duties have the element of compulsion regarding compliance. What is needed is to enact suitable legislation wherever necessary to require obedience of the duties by the citizens, with legal sanctions. There is need for comprehensive legislation in this area to ensure a faithful and effective implementation of the Fundamental Duties.
4.1.7 A number of judicial decisions are available towards the enforcement of certain clauses under Article 51A. Comprehensive legislation is needed for clauses (a), (c), (e), (g) and (i). The remaining 5 clauses, which are exhortation of basic human values, have to be developed amongst citizens through the education system by creating proper and graded curricular input from primary level of education to the higher and professional levels.
4.2 Judicial pronouncements
4.2.1 In Chandra Bhavan Boarding and Lodging, Bangalore Vs. The State of Mysore and Anr., (1969) 3 SCC 84, challenge was laid to a notification fixing minimum rates of wages, the problem posed before the court was to strike a balance between two propositions: one, should not a worker be paid, by way of minimum wages, an amount which would enable the two ends meet and to survive: and on the other hand, fixing of minimum wages may result in the industry or the unit being killed taking away its right to exist. The court held that freedom of trade does not mean freedom to exploit. Nor do the provisions of the Constitution are the barriers to progress. They provide a balance for orderly progress towards the social order contemplated by the Preamble of the Constitution. The court held:
“It is a fallacy to think that under our Constitution there are only rights and no duties. While rights conferred under Part-III are fundamental, the directives given under Part-IV are fundamental in the governance of the country. We see no conflict on the whole between the provisions contained in Part-III and Part-IV. They are complimentary and supplementary to each other. The provisions of Part-IV enable the legislatures and the Government to impose various duties on the citizens. The provisions therein are deliberately made elastic because the duties to be imposed on the citizens depend on the extent to which the Directive Principles are implemented. The mandate of the Constitution is to build a welfare society in which justice – social, economic and political, shall inform all institutions of our national life. The hopes and aspirations aroused by the Constitution will be belied if the minimum needs of the lowest of our citizens are not met.”
4.2.2 Officers in All-India Services (Administrative, Forest, Police, etc.) were not taking the training seriously resulting in deterioration of the services. Service Rules were amended so as to give weightage to the training and penalize the failure. On a challenge being laid to the constitutionality of the amendment in the Rules in Mohan Kumar Singhania & Ors. Vs. Union of India & Ors., (1992) Supp.1 SCC 594, in order to uphold the validity of the amendment, Ratnavel Pandian, J. drew strength from article 51A. Referring to clause (j), which commands every citizen of India 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, it was held that the effort taken by the Government in giving utmost importance to the training programme of the selectees so that this higher civil service being the topmost service of the country is not wasted and does not become fruitless during the training period is in consonance with the provisions of article 51A (j). The constitutionality of the amendment was, thus, upheld.
4.2.3 In several cases, the Supreme Court has upheld the validity of laws relating to ecology and environment and has made directions binding the citizens and the State finding the source of power to do so in article 51A. In Rural Litigation and Entitlement Kendra & Ors. Vs. A State of Uttar Pradesh & Ors., (1986) Supp. SCC 517, Ranganath Misra, J. held.
“Preservation of the environment and keeping the ecological balance unaffected is task which not only governments but also every citizen must undertake. It is a social obligation and let us remind every Indian citizen that it is his Fundamental Duty as enshrined in Article 51A (g) of the Constitution.”
4.2.4 In Rural Litigation and Entitlement Kendra, Dehradun & Ors. Vs. State of U.P. & AIR 1985 SC 652, in order to prevent imbalance to ecology and hazard of healthy environment being created due to working of lime-stone quarries, the Supreme Court directed the quarries lessees being cancelled and lime-stone quarries being closed down permanently. The directions were issued in face of fundamental right to trade and business and the right to earn livelihood. Assigning paramount significance to Fundamental Duties and rather placing the Fundamental Duties owing to people at large above the fundamental right of a few individuals the court held that such closure would undoubtedly cause hardship, “but it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimum disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment”.
4.2.5 In Sachidanand Pandey & Anr. Vs. State of West Bengal & Ors., (1987) 2 SCC 295, the court expressed in unmistakable terms that whenever a problem of ecology is brought before the court, the court is bound to bear in mind article 48A of the Constitution and article 51A (g) which proclaims the Fundamental Duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Policy decisions taken by State are not ordinarily to be interfered with by the courts. But if it is the question of giving effect to the Directive Principle and the Fundamental Duty, the court is not to shrug its shoulders and say that priorities are a matter of policy not to be touched by court, the court may always give necessary directions so as to secure implementation of Directive Principles and Fundamental Duties.
4.2.6 In State of Punjab & Ors. Vs. G.S.Gill and Anr., (1997) 6 SCC 129, kindling the spirit of clauses (e) and (j) of article 51A and the Directive Principle contained in article 38 (1), the court reminded the administrators of the government that they too are primarily the citizens and, therefore, their vision should be of national interest. “The primary responsibility of an administrator is to perform his functions in the services of the nation as an enlightened citizen to strengthen a new democratic state. The public administrator should get rid of all mental reservations on narrow considerations of caste, religion, sectional or regional. He should have a wider concern for society as a whole. Otherwise he is not worthy to be an administrator or enlightened citizen to work for others. In public administration, responsibility is of highly personal and moral quality and is not necessarily related to formal status of power, although it is probably true that greater power brings greater responsibility.” In short, the court held that the Fundamental Duties oblige the administrators of the government to be good administrators.
4.2.7 In M.C.Mehta (II) Vs. Union of India & Ors., (1998) 1 SCC 471, article 51A containing Fundamental Duties of citizens was read casting duties on the government and for issuing certain directions consistently with article 51A. Directions were:-
(i) the Central Government shall direct to the educational institutions throughout India to teach at least for one hour in a week, lessons relating to protection and the improvement of the natural environment including forests, lakes, rivers and wild life in the first ten classes;
(ii) the Central Government shall get text books written for the said purpose and distribute them to the educational institutions free of cost;
(iii) the children shall be taught about the need for maintaining cleanliness and with the cleanliness of the house, both inside and outside and the street in which they live;
(iv) the Central Government shall consider training of teachers who teach this subject by the introduction of short-term courses for such training;
(v) the Central Government, the Government of the States and all the Union Territories shall consider desirability of organizing “Keep the city/town/village clean” week;
(vi) to create a national awareness of the problems faced by the people by the appalling all round deterioration of the environment.
4.2.8 In Vellore Citizens’ Welfare Forum Vs. Union of India, (1996) 5 SCC 647 and Bandkhal and Surajkund Lakes matter, (1997) 3 SCC 715, the Supreme Court recognized ‘The Precautionary Principle’ and the ‘The Polluter pays’ principle as essential features of ‘Sustainable Development’ and part of the environment law of the country. Article 21, Directive Principles and Fundamental Duty clause (g) of article 51A were relied on by the Supreme Court for spelling out a clear mandate to the State to protect and improve the environment and to safeguard the forests and wild life of the country. The court held it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation.
4.2.9 State of U.P. Vs. Yamuna Shanker Misra & Anr., (1997) 4 SCC 7, is an interesting case where the object of writing the confidential reports and making entries in the character rolls were read in the light of article 51(j) as giving an opportunity to a public servant to improve excellence. The net of this Fundamental Duty was spread so wide by the court as to spell out the eternal values of honesty, integrity, good conduct and efficiency getting improved in the performance of public duties and standard of excellence in services constantly rising to higher levels so as to be a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.
4.2.10 The State of A.P. appointed a person as Poet laureate in Telugu with an honorarium initially for five years and then for life accompanied by certain attractive perks. The successor government terminated the appointment. The learned poet challenged the termination. Though the High Court did not doubt the eminence and achievement of the petitioner, however, tracing the history of such appointments, the court found that it was not a recognition of merit but, in essence, a royal mirth-maker a reward for solemn flattery for the king. Referring to article 51A (j), Justice P.A.Chaudary said – “I have no hesitation in holding that the wild celestial fire that ever burns in the mortal frame of man should not be quenched either by indifference or mediocracy ………………. But when the State undertakes to promote excellence it can do so only through the methods which our Constitution permits it to adopt. Rewarding of sycophancy only helps to retard the growth of efficiency and excellence. Conferment of poet Laureateship which more of less looks life conferment of a title may be a constitutional anathema”. [Dr. Dasarathi Vs. State of Andhra Pradesh AIR 1985 AP 136].
4.2.11 Another interesting case is from Calcutta High Court. Syllabus was prescribed for readings in history in the State of West Bengal. West Bengal Head Masters’ Association laid challenge to the syllabus as violative of inter-alia article 51A (b) of the Constitution inter alia. The grievance was that the syllabus lays emphasis on studying Bolshevik, Chinese and South-East Asia Revolutions but it does not specifically mention whatsoever on the social, literary, scientific, religious or political Indian Leaders, not the requisite emphasis on different phases of freedom movement in India. The association pleaded a fundamental right to read the Indian history. A Division Bench of the Calcutta High Court in West Bengal Head Masters’ Association & Anr. Vs. Union of India & Ors., AIR 1983 Calcutta 448, held that there was no such Fundamental Right,
“Article 51A(b) imposes a duty on every citizen of India to cherish and follow the noble ideals which inspired our national struggle for freedom. The performance of the duty is quite personal to every citizen of India. No duty has been imposed on the State, but on the citizens of India. There is much deference between right and duty. While a right can be claimed against another, duty has to be performed. It is not necessary for us to consider whether the duty imposed on every citizen of India under article 51A of the Constitution can enforced against a citizen or not. A citizen cannot claim that he must be properly equipped by the State so as to enable him to perform his duties under article 51A which does not confer rights but imposes certain duties. So a student cannot claim that he must be taught the Indian history in class VIII so that he can perform his duty under clause (b) of article 51A of the Constitution.”
4.2.12 In Bijoe Emmanuel vs State of Kerala, AIR 1987 SC 8 at pp.751, 752 it has been held that there is no provision of law which obliges anyone to sing the National Anthem nor is it disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing. It is true that article 51A (a) of the Constitution enjoins a duty on every citizen of India “to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”. Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing. It was observed that there was no law enacted by Parliament making it obligatory to comply with article 51A(a). The Supreme Court allowed the petition filed by the children and directed the authorities to re-admit the children into the school. The court ended their judgment by adding – “our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it.” In another matter the correctness of this decision has been doubted. The matter has been referred to a Constitution Bench of the Supreme Court, which would examine correctness of the decision and also many a relation aspects.
4.2.13 The Supreme Court in Vishaka and others Vs. State of Rajasthan (AIR 1997 SC 3011) found it necessary for protection of working women from sexual harassment to lay and by this the classical exercise of the law making powers under article 141 of the Constitution laid:
“It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:
(1) The Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
(2) Definition:
For this purpose, sexual harassment includes such unwelcome sexually determined behaviors (whether directly or by implication) as:
(a) physical contact and advances;
(b) a demand or request for sexual favours;
(c) sexually coloured remarks;
(d) showing pornography;
(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprises such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the women has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it created a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
(3) Preventive Steps:
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The rules/regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
(4) Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
(5) Disciplinary Action:
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, the employer in accordance with those rules should initiate appropriate disciplinary action.
(6) Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
(7) Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsel or other support service, including the maintenance of confidentiality.
A woman should head the Complaints Committee and not less half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.
The employers and person on charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
(8) Workers’ Initiative:
Employees should be allowed to raise issues of sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer-employee Meetings.
(9) Awareness:
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.
(10) Third Party Harassment:
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
(11) The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private sector.
(12) These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.
Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of accordingly.”
4.2.14 It was also observed that these guidelines would not prejudice any rights available under the Protection of Human Right Act, 1993. These were the most effective measures for enforcement of the Fundamental Duties; in particular to renounce practices derogatory to the dignity of women – a Fundamental Duty enshrined in clause (e) of article 51A, in the effectuation of that duty.
4.3 Justice Verma Committee
4.3.1 The Government of India announced the setting up of a Committee under the Chairpersonship of Justice J.S Verma, former Chief justice of India, and presently Chairman, National Human Rights Commission (NHRC), vide Order No. 16-23/98 sch. 1 dated 21 July 1998 “to work out a strategy as well as methodology of operationalizing a countrywide programme for teaching fundamental Duties in every educational institution as a measure of inservice training” in accordance with the Terms of Reference stated below:
4.3.2 The Terms of Reference of the Committee were as follows:
1. To develop a package for teaching Fundamental Duties at primary secondary, senior secondary and university levels.
2. To decide the activities as part of curriculum and co-curricular activities.
3. To review the exiting programme already being implemented by the NCERT under the national Curricular Framework and the need for identifying additional inputs into it.
4. To develop programme packages for the training of citizens through non-formal education / adult education programme / media (print, electronic, etc.)
4.3.3 The Committee attempted to analyze the issue of teaching of Fundamental Duties at all levels of education through improvement of the content and process, particularly of school education and teacher education, including interventions through curricular, co-curricular and media inputs, both print and electronic.
4.3.4 In order to devote its thinking on the issue of operationalization of the teaching of Fundamental Duties, the Committee decided to study this issue in its holistic perspective and came out with a report on October, 1999. The salient recommendations made in this report are detailed in Annexure I and cover aspects such as the following:
Ø General awareness and consciousness.
Ø Optimising benefits from existing schemes / programmes.
Ø Protection and improvement of environment.
Ø Reorienting approaches to school curriculum.
Ø Elimination of gender bias.
Ø Reorienting teacher education programmes.
Ø Incorporating Fundamental Duties in higher and professional education
Ø People’s representatives from Panchayats to Parliament.
Ø Public administration and civil servants.
Ø Administration and justice.
Ø Business and industry.
Ø Media.
4.4 Available Legal Provisions
4.4.1 The Verma Committee was conscious of the fact that any non-operationalization of Fundamental Duties might not necessarily be the lack of concern or non-availability of legal and other enforceable provisions; but it was more a case of lacuna in the strategy of implementation. It, therefore, thought it appropriate to list in brief some of the legal provisions already available in regard to enforcement of Fundamental Duties. A summary of such legal provisions is given below:
i. In order to ensure that no disrespect is shown to the National Flag, Constitution of India and the National anthem, the Prevention of Insults to National Honour Act, 1971 was enacted.
ii. The Emblems and Names (Prevention of Improper Use) Act 1950 was enacted soon after independence, inter alia, to prevent improper use of the National Flag and the National Anthem.
iii. In order to ensure that the correct usage regarding the display of the National Flag is well understood, the instructions issued from time to time on the subject have been embodied in Flag Code of India, which has been made available to all the State Governments, and Union territory Administration (UTs).
iv. There are a number of provisions in the existing criminal laws to ensure that the activities which encourage enmity between different groups of people on grounds of religion, race, place of birth, residence, language, etc. are adequately punished. Writings, speeches, gestures, activities, exercise, drills, etc. aimed at creating a feeling of insecurity or ill-will among the members of other communities, etc. have been prohibited under Section 153A of the Indian Penal Code (IPC).
v. Imputations and assertions prejudicial to the national integration constitute a punishable offence under Section 153 B of the IPC.
vi. A Communal organization can be declared unlawful association under the provisions of Unlawful Activities (Prevention) Act 1967.
vii. Offences related to religion are covered in Sections 295-298 of the IPC (Chapter XV).
viii. Provisions of the Protection of Civil Rights Act, 1955 (earlier the Untouchability (Offences) Act 1955)
ix. Sections 123(3) and 123(3A) of the Representation of People Act, 1951 declares that soliciting of vote on the ground of religion and the promotion or attempt to promote feelings of enmity or hatred between different classes of citizens of India on the grounds of religion, race, caste, community or language is a corrupt practice. A person indulging in a corrupt practice can be disqualified for being a Member of Parliament or a State Legislature under Section 8A of the Representation of People Act, 1951.
4.5 Suggestions for Further Action
4.5.1 The recommendations made by Justice Verma Committee on Operationalisation of Fundamental Duties of Citizens (Annexure 1) deserve to be reiterated forcefully. In particular, it is suggested that there is imperative need for wider dissemination of information and generating greater awareness in regard to the Fundamental Duties of citizens and obligations of citizenship. This must assume the dimensions of a peaceful, nation wide, mass-based movement. This can be done through –
(a) organization of advocacy and sensitization programmes,
(b) display of the text of article 51A ‘Fundamental Duties’ prominently in government publications, diaries calendars, offices and at public places,
(c) radio and video spots highlighting important messages related to Fundamental Duties on AIR, Doordarshan and other channels,
(d) setting up an autonomous body to act like ombudsman on citizenship values and for overseeing operationalisation or effectuation of Fundamental Duties,
(e) publication of small booklets on various aspects of Fundamental Duties written in simple language and aimed at different levels of citizens through non-formal education, open schooling, adult education, and universalisation of literacy programmes
(f) circumspection by electronic media on programmes, serials, pictures, news and advertisement affecting morality, decency and cultural values and heritage of the country,
(g) activist role by electronic and print media in the matter of Fundamental Duties like protection of the environment,
(h) media avoiding the glorification of acts of violence, armed robberies, and terrorist activities, and
(i) the state machinery ensuring the effectuation of Fundamental Duties, where necessary, by prompt legislation.
4.5.2 The benefits from the already existing schemes need to be optimised by monitoring work of NGOs and other institutions operating government-funded schemes focussed on aspects of national integration, communal harmony, culture and values, and environment, in tune with the spirit of clauses (e), (f) and (g) of article 51A and making mid-course corrections where necessary.
4.5.3 The Directive Principle of State Policy in article 48A, the Fundamental Duty in article 51A (g) and the existing laws in the area need to be implemented and enforced in the light of the judgments of the Supreme Court.
4.5.4 There is need for fundamental transformation in the direction and approach to curricular and co-curricular activities for imparting education in schools and teacher training institutions. This can be done by –
(a) publishing the content of Fundamental Duties through books published by the NCERT and School Textbook Bureaus,
(b) presenting each clause of article 51A through anecdotal talks, at morning assemblies at schools,
(c) organising seminars, debates, competitions on different aspects of Fundamental Duties of citizens, and
(d) designing an instructional design for education in Fundamental Duties that fits into the present day multi-channel environment where learning accrues from a variety of sources at home, school, community, print and electronic media.
4.5.5 In order to ensure dignity of women, gender biases and sex-stereotyping must be eliminated from all textbooks both at state and national levels.
4.5.6 Programmes of education for school teachers and higher and professional courses have to be so designed as to enable communication of the content of Fundamental Duties of citizens and the value of abiding by them. What is needed is a vigorous advocacy with state educational agencies, teacher education institutions and university departments for inclusion of Fundamental Duties component in curricula. All courses in Human Rights should also include Fundamental Duties.
4.5.7 An independent comprehensive unit encompassing familiarisation with the Constitution of India and Fundamental Duties of citizens thereunder need to be incorporated in the elementary and secondary teacher education courses.
4.5.8 NCC should be made compulsory in all pre-service teacher education institutions. This would promote the values of sovereignty, unity and integrity of the nation.
4.5.9 The need to shift emphasis from rights to duties in all walks of life is indeed urgent. Undue emphasis on one's own rights without any awareness of one's duties is not a sign of good citizenship.
4.5.10 The Fundamental Duties set out in article 51A were not intended to be legally enforced by one citizen against the other. They are like the Ten Commandments which every citizen is expected to bear in mind and conduct himself towards the State and society accordingly. Therefore, the endeavour of the State should be not so much to give teeth to the Fundamental Duties but to spread awareness of the duties among the people.
4.5.11 The courts in India have been taking note of the Fundamental Duties in judicial decisions. Being provisions of the Constitution, the courts will have due regard to the Fundamental Duties in interpreting the text of the Constitution. They will also be justified in moulding relief in individual cases having regard to the antecedents of the person seeking relief, particularly judged by the yardstick of Fundamental Duties.
4.5.12 Some of the expressions used in the Fundamental Duties may be elaborated or explained to facilitate better understanding. For instance, "the noble ideals which inspired our national struggle for freedom", may be explained to include –
(a) putting an end to foreign rule,
(b) ushering in a Government of the people, by the people and for the people and
(c) securing to all citizens justice, liberty and equality, and promoting among them all fraternity and unity.
4.5.13 It is suggested that a few more Fundamental Duties, namely, duty to vote in an election, duty to pay taxes and duty to resist injustice may be added in due course to article 51A in Part IVA of the Constitution.
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