Wednesday, 6 March 2013

JUDICIAL PRONOUNCEMENTS ON FUNDAMENTAL DUTIES


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:

          General awareness and consciousness.
          Optimising benefits from existing schemes / programmes.
          Protection and improvement of environment.
          Reorienting approaches to school curriculum.
          Elimination of gender bias.
          Reorienting teacher education programmes.
          Incorporating Fundamental Duties in higher and professional education
          People’s representatives from Panchayats to Parliament.
          Public administration and civil servants.
          Administration and justice.
          Business and industry.
          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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