Wednesday, May 23, 2012

Need for enforceable “fundamental Duties “in the constitution -as coexistence to national solidarity

Need for enforceable “fundamental Duties “in the constitution -as coexistence to national solidarity
India -A country having a constitution on which galaxy of fundamental rights to its citizens is now being ruled with governance through laissez faire, a policy with political set-up having co-ordination with divisive forces for economic social and national oppression of the people at large where about 50% of the population are still illiterate after 50  years of independence. The people are enjoying the fundamental right without any enforceable fundamental duties.
There are virtually no individual fundamental right except the right conferred under article 19 of the constitution of India , rest are the fundamental duties of the state which are likely to be enforced for the protection of its citizen. By the gradual advancement of the judicial activism , the basic fundamental duties embodied in our constitution, have now been regarded as enforceable rights of the citizen without taking into consideration as to whether the person , who is coming forward for seeking the enforcement of such duties by the state , may actually deserve for such enforcement under an equitable discretionary jurisdiction of the constitutional  courts in India. This is a basic flow in the process of judicial verdict. There is the need that the impact and implementation of the law which is primarily concerned with a social science , may be able to achieve its objective the concept and the guarantees enshrined under article 14 having two connotation ,i.e equality before the law and the equal protection of the law are not the same phraseology, although  they appears to serve a common objective to eradicate the social evils of inequalities and discrimination. Thus Article 14 has a pervasive potency and a versatile quality, equilitarian in its soul, but allergic to discriminatory dictates. It is well known that equality is anti-thesis to arbitrariness. Since the licence may not be given to a blind man to drive a car, how worthwhile it may be to give the similar licence to a criminal to do every sort of atrocities being committed by indulging into the crime of the innocent people. There are inherent restrictions applicable for the enforcement of the individual personal right under article 19, which empowers the state to enforce reasonable restriction on the exercise of the right of the people in the interest of sovereignty , integrity of India security of the state, friendly relations with foreign state , public order , decency or morality etc. including the incitement to an offence pertaining to the reasonable restrictions regarding freedom of speech and expression , to assemble ,to form associations and freedom to reside and move freely throughout the territory of India. By  the constitution (first amendment ) Act 1951 ,there have been further restrictions to practice any profession , or to carry on any occupation, trade or business for professional or technical qualification as well as carrying on any occupation , trade or business by the state and its instrumentality to the exclusion , complete or partial , of citizens. Thus the question arises as to whether there may not be a valid test of classification based on qualities or characteristics necessarily coupled with the object of legislation based on intelligible differential which has certain nexus with the realities of the time to dealt with the law and order situation by  providing  necessary restriction over the unchecked liberty granted to the individual detrimental  to its integrity and sovereignty for prohibition to avail the benefit of equality clause by taking the rescue for forbid classification. . there cannot be any enforceable fundamental right to an individual for indulging in anti national activities .Thus the verdict given by the Hon’ble Supreme Court in Minerva Mills limited Vs union of India (1980  3 SCC 625 is required to be reviewed for effective enforcement of the duties caste upon the citizen by passing through the test of “Form and Object” and “Pith and Substance” to mould and replace by the test of  “Direct and Inevitable” effect.
The farmer of constitution have miserably forgotten the basic and elementary principles of jurisprudence and legal theory; that “every night implies the forbearance on the part of others to perform  his duty . Every right is correlated and coexistent with duty “The preamble of our constitution was not having the boosting prospects to its citizen of our constitution was not having the boosting prospects to its citizens for resolving India as “Sovereign democratic republic and for endeavour the unity of nation till 3rd January 1977.
These fundamental duties ten in number touch almost all important aspects of National life of an individual life of an individual as well as nation. These are true Magna Carta by adopting an adhering to which in our life. We can achieve the objective of an egalitarian society, free from corruption, oppression , favouritism  and nepotism . Each of these duties, when decoded and dilated, will go to encompass, the various facet of human activity and behaviour ; a remedy to most evils plaguing our society -an educational institution ; a public undertaking etc. The present day crisis is the result of the phenomenon where tried to achieve right while forgetting corresponding duties as reciprocal to fundamental rights . We may get rid of the despotic and corrupt tendencies of authority in politics and administration having pressure groups ever hungry and lustful for privilege and power.
The chapter of fundamental duties in part (IV A under article 51 A has been introduced by our constitution (Forty second amendment ) Act ,1976(w.e.f 3.1.1977). The insertion of new Article 31C i.e. saving of laws giving effect to certain directive principles , notwithstanding anything contained in the article 13 , no law giving effect the policy of state towards securing the principles laid down  in part IV shall be deemed to be void on the ground that it is in consistent with or takes away or abridge any of the right conferred under the Article 14 &19 of the constitution. The Supreme Court of Mineva Mills Ltd. Vs Union of India  (1980) 3 S.C.C page 625 has laid down the same as unconstitutional holding “that it virtually tears away the hearts of basic fundamental freedom without which a free democracy is impossible. This is a charter of class legislation”. The Article 31 D pertaining to “ saving of the law in respect of anti-national Activities” has already been omitted by the constitution (Forty third amendment )Act 1977 w.e.f 13.4.1978. The other Article 39(f) providing “Protection to children” by giving them opportunities and facilities in healthy manner and in conditions of freedom & dignity and that childhood and youth are protected against moral and material abandonment” has been inserted w.e.f. 3.1.1977. Equal justice and free legal aid for securing justice to economically weaker classes and other disable down trodden citizens under Article 39 A is on account of 42nd constitutional amendment . The participation o workers in the management of industries and protection and improvement of Environment and safeguarding of the forest in wild life under Article 43 A and 48 A respectively have also been inserted by virtue of 42nd constitutional amendment, Act,1977 . We could not achieve to cherish the goal enshrined under Article 44 providing uniform civil court for the citizens, Thus till the situation has not become alarming and the Govt . Was not compelled to impose the emergency, the farmer of the constitution have neither given  any heed for the insertion of the chapter of  fundamental duties and directive policies for the uplift of the poor worker ,children and other disabled person . It is certainly a matter of grade disappointment that till date these fundamental duties and directive principles of state policy have still not been enforce as that of the fundamental rights of the citizens ,The country may be ruled down by functioning anarchy and  oligarchy , but the prosperity ,integrity and solidarity ofd the nation is impossible without the enforcement of the duties assigned to its citizens.
Constitution (Forty Fourth amendment ) Act,1978 has provided another directive principle under Article 38(1)&(2) that the state shall  strive to promote the welfare of the people by securing and protecting a social order and to strive to minimise inequalities in income and endeavour to eliminate inequalities in status facilities and opportunities not  only amongst individuals , but also amongst  groups engaged in different vocations. How much reconciliation in practical implication of the ideals promulgated  through the aforesaid directive principle of state policy may be seen by a simple instance that ion the state of Uttar Pradesh according to then minister of Parliamentarian affairs Mr. Barkhoo  Ram Verma , the state government  was spending Rs 1,11,96,000/- per month on the Z-plus security of few persons .This is a single point formula of our  politician , the custodian of the public trustee that now motivated for casting the vote bank in their favour. These directive principles for welfare of the people and protecting social order to minimise inequalities in status and opportunity may be good enough for theoretical purpose , but their enforcement is still a utopian empire to achieve in our so called welfare of the state. Law must be change according  to changing circumstance is a means to an end .  Law is only a part of human conduct and its character is its purpose.  Law is required to govern the society. Its purpose is its essential mark. The purpose is to protect the interest of the society. The social impulses are the seldom to accord the selfish interest. When the selfish interest clashes with social purposes it has to be suppressed through Iron hand  .  Law is meant for our mean which is a social control , otherwise it will be lawless society. Every man is under legal obligations to impact certain duties which are coexistent for social solidarity , otherwise the idea of sovereignty  is meaningless . Thus the essences of law is duty , not only rights to its citizens. All the rights guaranteed in our constitution can very well be safeguarded and enforced automatically if there are mandatory obligation caste upon the state and its citizens to endeavour , respect and obey certain fundamental duties. The reality is not in securing the rights , but to discharge certain duties by its citizens, if the property  of the Nation is required by its citizens.
Professor Laski says  “Govt. by the judges would logically, under is system be a final safeguard, insurrection apart, of the rule of law .Judges also may have their prejudices and limitations and that may lead to judicial despotism. The centre of legal solidarity lies not in legislation, nor in jurist’s science ,  nor in jurist’s decision ,but in society itself”. The first requirement of judiciary that it should correspond with actual feeling and demand of the life . Unfortunately we are still upholding the traditions of Anglo Saxon jurisprudence and resisting radical innovation in the use of judicial power to promote social justice under our constitution. Justice which has always been the first virtue of any civilised society is still required to be traced down the beating the sticks over the impressions left behind by passing through a snake of alien power ruling over the nation . Such traditions having the glimpse of slavery was least concerned with the relief to the litigants but continued to perform the deception by making the litigant as specimen in the process of advancement of the judicial system .There are conflicting decisions which were subsequently overruled but by that  time the cause of the litigant was decided on the wrong precedents.
We , the advocate could not even  having the gut to renounce our black coat , which is reciprocal to the drudgery and a painful reminder of the traditions maintained through our slave mentality in the extremely warm environmental conditions of our country .We could not  utilise our mother tongue in the process of legal , medical and technical science as the translation to the language of understanding to our citizen is still a task assigned to the future , But sill we can demonstrate with pride our solidarity to the mother tongue . The religion which is required to be adopted for maintaining a social condition is no more serving its objective  and utility to the nation as the norms of our society have already been extinguished by our non productive activities  and thus we can never give the prosperity , integrity and solidarity top our nation. Every one should now require to act in such a manner that we may be able to coexist with perfection of general condition by endeavouring the good wishes  and brotherhood with freedom - a sum of total condition. This is required to elevate our character , integrity and solidarity to the product of human resources and thereby the growth of personality , only then the nation may survive from a complete disaster.

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