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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