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Tuesday, December 10, 2019

Explained: What Fundamental Duties mean

Over last few days, the Prime Minister, President, Vice President and Law Minister have been stressing Fundamental Duties. A look at what these duties are, and how they were included in the Constitution.

Written by Abantika Ghosh | New Delhi | Updated: December 4, 2019 7:03:02 am
Then-Prime Minister Indira Gandhi with commemoration volumes of the 25th anniversary of the Constitution. It was her government that introduced Fundamental Duties in 1976. (R K Sharma/Express Archive)

Over the last one week, the government has been making a pitch for fundamental duties. In his Constitution Day address to a Joint Session of Parliament last week, Prime Minister Narendra Modi stressed the importance of constitutional duties, while making a distinction between seva (service) and these duties. On the same occasion, President Ram Nath stressed the difference between rights and duties, while Vice President M Venkaiah Naidu called for fundamental duties to be included in the school curriculum and the list of the duties to be displayed at educational institutions and at other public places. Also on Constitution Day, Union Law Minister Ravi Shankar Prasad, writing in The Indian Express, called for citizens to remember their fundamental duties as they remember their fundamental rights.

Fundamental Duties are described in the Constitution — an Emergency-era provision that was introduced by the Indira Gandhi government. Days before the pitches made on Constitution Day, The Indian Express had reported how the government has been dusting off this provision and asking ministries to spread awareness about Fundamental Duties.

How were Fundamental Duties incorporated in the Constitution?

The Fundamental Duties were incorporated in Part IV-A of the Constitution by the Constitution 42nd Amendment Act, 1976, during Emergency under Indira Gandhi’s government. Today, there are 11 Fundamental Duties described under Article 51-A, of which 10 were introduced by the 42nd Amendment and the 11th was added by the 86th Amendment in 2002, during Atal Bihari Vajpayee’s government.

These are statutory duties, not enforceable by law, but a court may take them into account while adjudicating on a matter. The idea behind their incorporation was to emphasise the obligation of the citizen in exchange for the Fundamental Rights that he or she enjoys. The concept of Fundamental Duties is taken from the Constitution of Russia.

What are the Fundamental Duties?

The 11 Fundamental Duties are:

* To abide by the constitution and respect its ideals and institutions, the National Flag and the National Anthem

* To cherish and follow the noble ideals which inspired our national struggle for freedom

* To uphold and protect the sovereignty, unity and integrity of India — it is one of the preeminent national obligations of all the citizens of India.

* To defend the country and render national service when called upon to do so

* 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

* To value and preserve the rich heritage of our composite culture — our cultural heritage is one of the noblest and richest, it is also part of the heritage of the Earth

* To protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures

* To develop the scientific temper, humanism and the spirit of inquiry and reform

* To safeguard public property and to abjure violence

* To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement

* Who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.

It is the one on children’s education that was added in 2002 by the 86th Amendment that provided for the Right to Free and Compulsory Education for children in the age group 6-14, with the insertion of Article 21A. It also cast an obligation on parents to provide such opportunities under Article 51A(K).

Under what circumstances was the 42nd Amendment passed?

The amendment came at a time when elections stood suspended and civil liberties curbed. The government arrested thousands under MISA (Maintenance of Internal Security Act) and carried out anti-poverty programmes, slum demolition drives, and a forced sterilisation campaign. “With the opposition MPs locked away, a series of Constitutional amendments were passed to prolong Mrs Gandhi’s rule,” writes historian Ramachandra Guha in India after Gandhi.

Apart from adding the Fundamental Duties, the 42nd Amendment also changed the Preamble to the Constitution to include the words ‘Socialist and Secular’ to describe India, in addition to its being ‘Sovereign Democratic Republic’.

New ‘Directive Principles’ were added and given precedence over Fundamental Rights. Jurisdiction of the Supreme Court and High Courts to review constitutionality of the laws was curtailed. High Courts were prohibited from deciding on the constitutional validity of central laws. A new Article 144A was inserted, prescribing a minimum of seven judges for a Constitution Bench, besides stipulating a special majority of two-thirds of a Bench for invalidating central laws.

How many of the changes made under the 42nd Amendment are still in effect?

In the 1977 elections, the manifesto of the Janata Party promised to restore the Constitution to its pre-Emergency form. However, after being voted to power, the Morarji Desai government did not have the numbers for a complete reversal. Reversal happened only in bits and pieces.

In 1977, the 43rd Amendment restored the jurisdiction of the Supreme Court and High Courts to review the constitutional validity of laws. The following year, the 44th Amendment changed the grounds for declaring Emergency under Article 352, substituting “internal disturbance” with “armed rebellion”, besides requiring of the President that he shall not do so unless the decision of the Union Cabinet is communicated in writing to him.

Right to Liberty was strengthened by stipulating that detention under the Preventive Detention Act shall not be for more than two months. Right to Property was converted from a Fundamental Right to a legal right, by amending Article 19 and deleting Article 31.

Also read | Understanding Pakistan SC ruling on Army chief, and why it matters for India

Other Key Amendments to Constitution

First Amendment, 1951

Article 15 was amended by inserting Clause 4, empowering the state to make any special provision for the advancement of any socially and educationally backward classes or categories of SCs and STs notwithstanding anything in this Article or in Clause 2 of Article 29. Article 19 was amended to secure constitutional validity of zamindari abolition laws and to provide for new grounds of restrictions to the Right of Freedom of Speech and Expression and the right to practice any profession or to carry on any trade or business. Articles 31A and 31B, and the Ninth Schedule were inserted to give protection to land reform laws from being questioned on the ground that they are not consistent with Fundamental Rights.

24th Amendment, 1971
Articles 13 and 368 amended to remove doubts about Parliament’s power to amend the Constitution including Fundamental Rights further to the judgment of the Supreme Court in the Golaknath case. The President was obligated to give assent to any Constitution Amendment Bill presented to him.

26th Amendment, 1971
It repealed Articles 291 and 362 dealing with privy purses, sums of rulers and rights and privileges of rulers of former Indian states.

52nd Amendment, 1985
Anti-Defection law was provided for in the Tenth Schedule by providing for disqualification of legislators, vacation of seats and splits and mergers.

61st Amendment, 1989
Minimum voting age reduced from 21 years to 18, by amending Article 326.

77th Amendment, 1995
Provided for reservation in promotion in services under the state for SCs and STs by inserting clause (4A) in Article 16.

91st Amendment, 2003

Put a ceiling on number of ministers at the Centre and in states as 15% of the strength of Lok Sabha or the Assembly, and not less than 12 in the states.

99th Amendment, 2014

Provided for National Judicial Commission to broad-base method of appointment of judges of the Supreme Court and High Courts. This amendment was however, declared unconstitutional by the Supreme Court in 2015.

101st Amendment, 2016
It facilitated the introduction of GST with concurrent taxing powers to the Union and the States and Union Territories with legislatures to make laws for levying GST on every transaction of goods and services.

This article originally appeared in the print edition on December 2, 2019. The article incorrectly referred to socially and educationally backward classes as “socially and economically backward classes”. It also mentioned the “64th Amendment” where it should have been the 61st Amendment, and “Article 325” where it should have been Article 352. The errors are regretted.

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