SPECIAL ASSIGNMENT OF CRITICAL ESSAYS :

CONSTITUTIONAL GOVERNANCE-I

SUBMITTED BY :

Simran Toppo
ID No. 016/2016/1454
Semester III, B.A. L.L.B (Hons.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

ATAL NAGAR, CHHATTISGARH
 2

SACE – I

India is a welfare State and not a police State and the welfare of individuals is of utmost priority.
The Directive Principles of State Policy (DPSP) is nothing but the strongest pillar in the
Constitution which acts as a guiding light to check if the working of the State is truly resulting in
welfare of its individuals.

The Judiciary, by its creativity has even made most of the DPSP ‘indirectly enforceable’ by
connecting them with fundamental rights.

The Parliament and Executive, both have taken various steps in pursuance of DPSPs and it is
extremely appreciable but because of faulty implementation, the situation on ground remains
extremely miserable.

So here, I would try to highlight the situation on paper and on ground and also, some reforms and
mechanisms for the successful incorporation of DPSP.

 THE PURPOSE OF INCORPORATING DIRECTIVE PRINCIPLES OF STATE

POLICY UNDER THE CONSTITUTION OF INDIA

There were various reasons for incorporating DPSP in the Constitution. These are as follows –

1. Pt. Nehru’s fascination for Socialism

Our first Prime Minister was influenced by Socialist Ideology. That is why, he was keen to
incorporate various provisions which will reflect socialist ideology.

For e.g. Article 38 (securing a just social order); Article 39(b) – “ownership and control of the
material resources of the community are so distributed as best to subserve the common good”..

Also, the five year plan was adopted by Pt. Nehru by taking inspiration from Lenin.

Also, the credit for the existence of Preamble goes to Pt. Nehru who formulated the Objective
Resolution. All the visions which he made for India are well reflected in the Preamble and in
 3

turn, in DPSP also. For e.g. – Social, Economic, Political Justice; Equality of Status; Dignity
etc., everything is reflected in Part IV, in one way or the other.

Talking about Socialism, the Supreme Court in DS Nakara V. UOI1 said – “democratic
socialism achieves socio-economic revolution to end poverty, ignorance, disease and inequality
of opportunity”.

2. Backwardness and Inequality Prevailing in the Indian Society

Our Constitutional makers had realized the poverty and backwardness is prevalent in the
Indian society. Hence, they incorporated various provisions to ensure socio-economic condition
of people. 2 These were nothing but DPSP.

In Pathumma V. State of Kerala3, the court clearly said – “the very purpose of the constitutional
directives under Part IV is to fix certain socio-economic goals for immediate attainment by
bringing about a non-social revolution”.

In Sanjeev Coke Manufacturing Company V. Bharat Coal Limited4, the court said – “the
broad egalitarian principle is implicit in every directive principle”.

3. Commitment to the concept of Welfare State

In Lala Ram V. Union of India5, the Supreme Court beautifully explained the purpose of DPSP
as – “Welfare State refers to greatest good of greatest number and the benefit of all and the
happiness of all…the optimal and desirable levels of social service are to be provided by the
welfare state”.

4. Influence of Gandhian Ideology

Gandhi ji is called the ‘Father of the Nation’ for a reason. His ideologies have created a huge
impact on our country. His ideologies can be reflected in DPSP also.

For e.g. –

1
AIR 1983 SC 130
2
MP Jain, Indian Constitutional Law, Lexis Nexis (2019), pg. 1465
3
(1978) 2 SCC 1
4
AIR 1983 SC 239
5
(2015) 5 SCC 813
 4

He talked about rejecting English institutions and promoting swadeshi institutions like –
Arbitration in panchayats etc. He talked about ‘stateless society with village republics’ i.e.
complete decentralization of power. And, we can see that this is well reflected in Article 40
(Organization of village panchayats).

He also was also against ‘liquor consumption’. It is well reflected under Article 47.

5. To act as a guiding light in the policy making process

Article 37 says – “The DPSP shall not be enforceable by any court, but the principles laid down
are nevertheless fundamental in the governance of the country and it shall be the duty of the
State to apply these principles in making laws”.

Therefore, almost all the policies of State revolve around achievement of DPSPs. For e.g. to give
effect to Article 42, the State came up with Maternity Benefit Act, 1961; Pradhan Mantri
Matru Vandana Yojana etc.

6. To provide a yardstick to the people to measure the success/failure/legality/illegality of

policies

DPSP also seeks to provide the citizens a yardstick to keep an eye on the policies of the State.
We can see the success/failure of the policies and working of the State based on these DPSPs.

Dr. B.R. Ambedkar had clearly pointed out that – “a party, which failed to implement these
principle, would stand to lose in next elections”.

 EVOLUTION OF JUDICIARY’S APPROACH WITH RESPECT TO DPSP OVER

TIME

Strictly speaking, DPSP are non-enforceable in the Court of Law. This was made non-
enforceable because these are positive obligations which very much depend upon the financial
resources of the State.

However, over time, when the State started ignoring even the most basic things such as –
Food Security, Minimum Standards of Health, Equal pay for equal work etc., the court
 5

started connecting it with Fundamental Rights mostly, Article 21 and 14 and in a way,
indirectly made DPSPs enforceable.

The evolution can be broadly categorized into three phases –

 Phase 1 : Keeping DPSP Subservient to Fundamental Rights

Earlier, the position of DPSP was subservient to Fundamental Rights. It is evident in the case of
State of Madras V. Champakam Dorairajan6, where the Supreme Court declared a government
order, made in pursuance of Art. 46, invalid because it came in conflict with Art. 29(2).

 Phase 2 : Debate of Superiority Between DPSP V. Fundamental Rights

The most iconic judgments like Shankari Prasad7; Sajjan Singh8; Golaknath9 etc., were mainly
regarding this debate only.
Finally, it was settled in Kesavananda Bharti V. State of Kerala10, that it the Constitution which
is superior. Its Basic Structure cannot be amended by any institution be it Parliament, Executive
or Judiciary.

 Phase 3 : Rule of Harmonious Construction - Giving equal importance to DPSP and

Fundamental Rights
In due course of time, the court started giving equal importance to the two and emphasized on
adopting the Rule of Harmonious Construction in a lot of landmark judgments like –
Kesavananda Bharti V. State of Kerala11; Re Kerala Education Bill12, State of Kerala V. NM
Thomas13etc.

6
AIR 1951 SC 226
7
AIR 1951 SC 458
8
AIR 1965 SC 845
9
Supra
10
AIR 1973 SC 1461
11
AIR 1973 SC 1461
12
AIR 1958 SC 956
13
AIR 1976 SC 490
 6

It is because of this Rule of Harmonious Construction, the Apex Court in Chandra Bhavan
Boarding and Lodging, Bangalore V. State of Mysore 14 said – “There is no conflict between
the Fundamental Rights and DPSP, They are complementary and Supplementary to each other”.
The Apex Court in Minerva Mills V. UOI15said that the balance between the two is also a part
of Basic Structure of the Constitution.

 Phase 4 : Judicial Creativity – Riding DPSPs on the back of Fundamental Rights,

making them “indirectly enforceable”
The biggest game changer was Article 21. Ever since the Maneka Gandhi V. Union of India16,
Article 21 got a whole new dimension.
After this, the Supreme Court incorporated so many rights under it by reading it together with
DPSPs.
For e.g. Right to live with human dignity was breathed into Art. 21 in Bandhua Mukti Morch
V. UOI17 by reading Art. 21, 23, 39(e), 39(f), 41 and 41 together.
Right to Livelihood in Olga Tellis V. BMC18by reading Art. 39(a), 37 and 41 together

 THE EXTENT TO WHICH WE HAVE BEEN ABLE TO ACHIEVE THE GOALS

ENSHRINED IN DPSP : A CRITICAL ANALYSIS

1. Social Order Based on Justice [Art. 38(1)]

The preamble talks about not only legal justice but also – social, economic and political
justice.

In Kasturi Lal V. State of J&K, the SC said – “If a law is made to further socio-economic
justice, it is prima facie reasonable and in public interest”.

2. Right to Livelihood to men and women equally [Art. 39(a)]

In Olga Tellis V. BMC19 , the SC said that Right to Livelihood is a part of Art. 21.

14
AIR 1970 SC 2042
15
AIR 1980 SC 1789
16
AIR 1978 SC 597
17
AIR 1984 SC 802
18
AIR 1986 SC 180
 7

For this, the State has taken various initiatives such as – National Rural Employment Guarantee
Act, 2005; MGNREGA; DAY-NRLM (National Rural Livelihood Mission); DAY-
NULM(National Urban Livelihood Mission) etc.

However, the rate of unemployment remains miserable. It is clear from the data released by
Ministry of Statistics and Program Implementation(MOSPI)20 –

And, majority of those who are employed are not in formal sector either but are in informal
sector. As per MOSPI, the informal sector employed around 87% of total labor force21.

3. Distributive and Economic Justice [Art. 39(b) and (c)]

In State of Karnataka V. Raghunatha Reddy22, the Supreme Court said that – “Everything of
value or use in the material world is material resource and the individual being a member of the
community, his resources are part of the community”.

19
AIR 1986 SC 180
20
Sanjeeb Mukherjee & Associates, Unemployment Rate at 9.4% in January-March 2021: NSO Survey, BUSINESS
STANDARD, (December 10, 2021, 6:23pm)
https://www.business-standard.com/article/economy-policy/unemployment-rate-at-9-3-in-january-march-2021-
nso-survey-121120100045_1.html
21
Pranjul Bhandari, What India’s informal sector needs right now, INDIAN EXPRESS, (December 10, 2021, 4:21pm)
https://indianexpress.com/article/opinion/columns/india-informal-sector-economy-gdp-covid-7461928/
22
AIR 1978 SC 215
 8

Justifying Nationalisation, the Court, in Sanjeev Coke Manufacturing Company V. Bharat

Coking Company Ltd.23 said – “Nationalization is also a distributive process as it prevents
concentration of wealth in the hands of a few and thus, benefits the society at large”.

There have been various initiatives to further the objective of distributive justice. For e.g. The
Abolition of Zamindari (1948); Land Ceiling (1960s) etc. were all steps towards distributive
justice.

However, according to the World Inequality Report, 2021 – “India stands out as a “poor and
very unequal country, with an affluent elite”, where the top 10% holds 57% of the total national
income, including 22% held by the top 1%, while the bottom 50% holds just 13% in 2021”.

4. Equal Pay for Equal Work [Art. 39(d)]

In Grih Kalyan Kendra V. Union of India24, the SC associated this with Art. 14 and 16.

In State of Kerala V. B Renjith Kumar25, the SC even went to the extent of saying that – “..in
service jurisprudence, the doctrine of equal pay for equal work has assumed the status of
fundamental right”.

The State has also taken various initiatives such as – Equal Remuneration Act, 1976 etc.

However, as per the Global Gender Gap Report, 201826, released by the World Economic
Forum, India stood at 72nd out of 149, in terms of wage equality. This shows we still have a long
way to go.

5. Welfare of Children [Art. 39(f)]

This Article provides for various things such as – opportunities and facilities for their
development; freedom and dignity; protection against exploitation, moral and material
abandonment.

23
AIR 1983 SC 239
24
AIR 1991 SC 1173
25
(2008) 12 SCC 219
26
Nilanjana Chakraborty, What is Gender pay gap and why is it so wide in India, LIVE MINT, (December 11, 2021,
4:34pm)
https://www.livemint.com/money/personal-finance/what-is-gender-pay-gap-and-why-is-it-so-wide-in-india-
11575356633900.html
 9

There have been various important judgments for them For e.g. –

In Sheela Barse V. UOI27, the SC said – “A child is a national asset and it is the duty of the
State to look after the child with a view to ensuring full development of its personality”.

In Gaurav Jain V. Union of India28, the SC said – “The children of prostitutes have the right to
equality of opportunity, dignity, care, protection and rehabilitation so as to be a part of the
mainstream of social life without any pre-stigma attached to them”.

In In S.P.S. Balasubramanyam V. Suruttayan29, the SC said that children born to people living
in live-in relationships will not be illegitimate.

In Bachpan Bachao Andolan V. UOI30, the SC banned recruitment of children in circuses.

Various initiatives have been taken for children such as – Juvenile Justice Act, 2015; Immoral
Traffic (Prevention) Act, 1956; The Child Labour (Prohibition and Regulation) Act, 1986 etc.

However, as per ILO data31, 10.1 million are working, either as a main worker’ or as ‘marginal
worker’, of which 5.6 million are boys and 4.5 million are girls!

As per the NCRB data 2018, 180 children went missing every hour in India 32.

6. Free Legal Aid [Art. 39A]

In Khatri (2) V. State of Bihar33, the SC held that this constitutional obligation to provide legal
aid does not arise only when the trial starts but also attaches when the person is for the first time
produced before the magistrate and after that.
In Suk Das V. Union Territory of Arunachal Pradesh34, to effectuate this Right, the SC put the
onus on the Magistrate to inform the accused of this Right.

27
AIR 1986 SC 1773
28
(1997) 8 SCC 114
29
AIR 1994 SC 133
30
WRIT PETITION (C) No.51 OF 2006
31
ILO, https://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---sro-
new_delhi/documents/publication/wcms_557089.pdf, (December 11, 2021)
32
Rahul Tripathi, Mumbai, Kolkata see highest women, child trafficking cases: NCRB study, ECONOMIC TIMES,
(December 12, 2021, 2:09pm)
https://economictimes.indiatimes.com/news/politics-and-nation/mumbai-kolkata-see-highest-women-child-
trafficking-cases-ncrb-study/articleshow/74053964.cms?from=mdr
33
(1981) I SCC 627
 10

For this, the State has taken various initiatives such as – The Legal Services Authorities Act,
1987 etc.
However, as per the India Justice Report, 201935, Only 15 million out of 1 billion eligible
Indians provided legal aid services in last 14 years! This exposes the faulty implementation at
ground.
7. Organisation of Village Panchayats [Art. 40]

This is inspired from Gandhian ideology. Art. 243 to 243O relate to this.

For this, 73rd Constitutional Amendment was brought by the Constitution. PESA Act, 1996 was
also a step in this direction.

8. Social Services [Art. 41]

It is subject to economic capabilities of the State. It directs the State to take measures regarding
– education, unemployment, old age, sickness, disablement etc.

For this, the State has taken initiatives such as – The Right of Persons With Disabilities Act,
2016; Vayo Naman Programme; DigiSaksham etc.

Still, majority of places are inaccessible for persons with disabilities. And, old age people do not
pension easily, they have to make multiple rounds of government offices to complete formalities.

9. Conditions of Work and Maternity Benefit [Art. 42]

In DBM Patnaik V. State of AP36, the SC suggested that Art. 42 may benevolently be extended
to living conditions in jails.

The State has taken various initiatives in this regard such as - Occupational Safety, Health and
Working Conditions Code (2020); Maternity Benefit Act, 1961; Sexual Harassment of Women
at Workplace Act, 2013 etc.

34
AIR 1986 SC 991
35
Ritu Mariam Biju, India Justice Report 2019: Only 15 million out of 1 billion eligible Indians provided legal aid
services in last 14 years, BAR& BENCH, (December 11, 2021, 3:28pm)
https://www.barandbench.com/columns/india-justice-report-2019-15-million-out-of-1-billion-eligible-indians-
provided-legal-aid-services
36
AIR 1974 SC 2092
 11

However, we still get news reports of blatant Human Rights violations at workplaces. I was
especially shocked to hear about the Assam Tea Plantations37. In this shocking news report, it
was revealed that Miscarriage has become very common amongst women working in tea
gardens because of - No leave during pregnancy; no washroom in their workplace; no Nursing
Breaks etc.

10. Living Wage [Art. 43]

In Edward Mills Company V. Ajmer38, the SC explained the meaning of living wage as – “wage
that enables for the family, not merely the bare essentials of food, clothing and shelter, but a
measure of frugal comfort including education, protection against ill-health etc”.

Expanding the ambit of Art.43, the SC in MRF Ltd. V. Inspector, Kerala Govt.39 said – “It is
not the philosophy of Art. 43 that industrial or agricultural workers should work on all days. It is
necessary that they also enjoy some holidays”.

However, Living Wage has still not been recognized as a fundamental right but ‘Minimum
Wage’ has been recognized as one. For this, the Code on Wages(2019) has also been passed.

11. Promotion of Co-operative Societies [Art. 43B]

The 97th Amendment to the Constitution in 2011 was done to add this Article.

Recently in 2021, the Government also created a Ministry of Co-operation.

12. Uniform Civil Code [Art. 44]

UCC requires that social conducts like Marriage, Inheritance etc. should be secular in character
and should not depend on religion.

This is advocated especially by women because various practices of almost all religions are
unequal and discriminatory to women.

37
Sadhika Tiwari, पश्चिम बंगाल के चाय बागान ं में अपने बच् ं क ख ती माएं , INDIA SPEND(December 09, 2021,
12:21pm)
https://indiaspendhindi.com/cover-story/mothers-losing-their-children-to-the-tea-gardens-of-west-bengal-742334
38
AIR 1955 SC 25
39
AIR 1999 SC 188
 12

In many cases like, Sarla Mudgal V. UOI40, Lily Thomas V. UOI41, Danial Latifi V. UOI42 etc.,
the SC has time and again emphasized the government to come up with a UCC.

Currently, it has been successfully implemented in Goa and talks have been going on for the
same in whole India.

13. Promotion of Educational and Economic Interests of Weaker Sections[Art. 46]

In Society for Un-aided Private Schools for Rajasthan V. UOI43, the SC clarified that the term
‘weaker sections’ is wider than ‘backward class’.

A lot of times, the Court has justified preferential treatment of Scheduled Tribes under this
Article. For e.g. – in Bhanu Ram V. Commr, Hills Division44 (while granting liquor licence).

The State has also taken various initiatives such as – Stand up India scheme; Shrestha Yojana;
Scholarship Schemes; Forest Rights Act, 2005etc.

However, as per the Multi Dimensional Poverty Index (2021), the STs accounted for about 1/6
of all people living in Multidimensional Poverty in India. And approximately 33% SCs are
living in Multidimensional poverty.

14. Raising Standard of Living [Art. 47]

Under this, the State is obligated to raise the level of nutrition, standard of living and improving
public health in particular, consumption of intoxicating drinks.

In Nashirwar V. State of MP45, the SC quoted Art. 47 to exclude liquor trade from the purview
of Art. 19(1)(g).

In CERC V. Union of India46and Paschim Banga Khet Mazdoor Samiti V. State of WB47 , the
Supreme Court recognized Right to Health as an integral part of Art 21.

40
AIR 1995 SC 1531
41
AIR 2000 SC 1650
42
AIR 2001 SC 3958
43
AIR 2012 SC 3445
44
AIR 1957 Ass. 182
45
AIR 1975 SC 360
46
(1995) 3 SCC 42
 13

In Kishen Pattnayak V. State of Orissa48 and PUCL V. Union of India49, the Supreme Court
held ‘Right to Food’ to be a part of Article 21.

The State also has taken various initiatives such as – PM POSHAN Abhiyan; Mid Day Meal
Scheme; Ayushman Bharat Yojana; Ujjawala Yojana etc. Various states like – Bihar etc. have
even banned liquor.

However, as per the recently released National Multidimensional Poverty Index by NITI
Aayog, at least 52% households are with unimproved or no sanitation facility or are sharing
resources with other households50.

As per the recently released National Family Health Survery-5, more than 30% children under
5 years were stunted and/or underweight! Also, around 57% women (15-49 yrs) are anaemic.

15. Organization of Agriculture and Animal Husbandry[Art. 48]

In previous cases such as State of Gujarat V. Mirzapur Moti Kureshi Kassab Jamat51, the
Supreme Court has even upheld total ban on cow slaughter by referring to this Article.

To further the goals in this Article, the State has taken various initiatives such as – Rashtriya
Gokul Mission; PM Fasal Bima Yojana; Agricultural Market Reforms etc.

However, as per 20th Livestock Census, except for Uttar Pradesh, the number of cattle
decreased in the Country. 52

As per NCRB report(2020), every day, 28 people dependant on farming died by suicide in India
in 201953.

47
Supra
48
AIR 1989 SC 677
49
W.P. (Civil) No. 196(2001)
50
ENS Economic Bureau, Over 50% Bihar poor in new index based on health, education, standard of living, INDIAN
EXPRESS, (December 11, 2021, 3:45pm)
https://indianexpress.com/article/india/bihar-poor-nfh-survey-mpi-niti-aayog-7643708/
51
AIR 2006 SC 212
52
Harikishan Sharma, Livestock Census: No. of stray cattle down in country, up in UP, INDIAN EXPRESS, (December
11, 2021, 5:11pm)
https://indianexpress.com/article/india/livestock-census-no-of-stray-cattle-down-in-country-up-in-up-6243490/
53
Rajit Sengupta, Every day, 28 people dependent on farming die by suicide in India, DOWN TO EARTH, (December
12, 2021, 10:24am)
 14

16. Protection of Environment [Art. 48A]

In M.C. Mehta V. UOI54, the court connected Right to environment with Right to health by
reading together Articles 21, 39(e), 47 and 48A.
The Apex court has also evolved various fundamental principles of environmental jurisprudence
such as – ‘precautionary pays principle’, ‘polluter pays principle’ etc. in various judgments
such as – Indian Council for Enviro-Legal Action V. UOI55, RLEK V. State of UP56 etc.
The State has taken various initiatives such as – The Environment Protection Act, 1986;
Biomedical Waste Management Rules, 2016; Ban on Single use plastic etc.

However, the prevailing pollution in India especially Delhi’s Air Pollution shows the true
picture.

17. Protection of Monuments[Art. 49]

The SC read this provision in MC Mehta V. UOI57, to prevent the ‘Taj Heritage Corridor
Project’.

The State has taken various initiatives for this such as – Swachh Bharat-Swachh Smarak etc.

18. Separation of Judiciary[Art. 50]

This flows directly from the ‘doctrine of Separation of Power’.

In Indira Gandhi V. Raj Narain58 the SC said that doctrine of Separation of Powers is a part of
the basic structure of the Constitution.

In Ram Jawaya Kapur V. State of Punjab59, the court clarified that a distinction is to made
between ‘essential’ and ‘incidental’ functions and it is only the former which is immune from
encroachments, usurpations, interferences etc. of other organs.

https://www.downtoearth.org.in/news/agriculture/every-day-28-people-dependent-on-farming-die-by-suicide-in-
india-73194
54
JT 2002 (3) SC 527
55
(1996) 2 JT (SC) 196
56
AIR 1987 SC 359
57
AIR 2007 SC 1087
58
AIR 1975 SC 2299
59
AIR 1955 SC 549
 15

In 2015, in a landmark judgment, Supreme Court Advocates-on-Record Association V. Union

of India60, the Apex court declared the National Judicial Appointment Act, 2014 and the 99th
Constitutional Amendment Act as unconstitutional. The main reason was that it violated
Judicial Independence.

Hence, in all of the above situations, we can see that the problem is not on paper. The
Judiciary, Legislature and the Executive have done excellent job on their part. However,
the problem is with the implementation. We can see that in almost all the DPSP, despite
having laws, constitutional backing etc., the situation on ground is miserable.

 SOME REFORMS AND MEASURES THAT CAN BE ADOPTED FOR

SUCCESSFUL INCORPORATION OF DPSP

Following measures can be adopted for successful incorporation of DPSP in the country –

a) Raising awareness about DPSP will give us better election results and where people will vote
on real issues not on the basis of religion, caste etc. and consequently, we will get better
policies and better implementation.
b) Very basic DPSPs like – Equal pay for equal work; Right to basic levels of health, food,
shelter etc. must be made enforceable. This will ensure basic human rights of people and will
make the government accountable.
c) Various people have also argued that DPSP in some provisions imposes unnecessary moral
standards. For e.g. prohibition on intoxicating drinks. These kind of provisions may be
given a second thought according to the social changes.
 CONCLUSION

DPSPs are not decorative pieces in the Constitution. They are matters of substance and have
done a lot for the welfare of people of India. Almost all the policies of the government revolve
around one or more DPSP.

60
Supra
 16

However, because of loopholes and faulty implementation, despite having everything, the
situation on ground is entirely different and that is why, we have not achieved many goals of
Part IV.

Also, there is a need for various reforms and measures to ensure better incorporation of DPSP.
 17

SACE – II

“Ask not what your country can do for you, ask what you can do for your country”. These iconic
lines by the former US President J.F. Kennedy tells us about the importance of duties and
responsibilities of citizens towards the country.

Even Mahatma Gandhi had said – “Rights that do not flow from duty well performed are not
worth having”. On the similar lines, Hohfeld had also propounded his theory of ‘jural
correlatives’ and ‘jural opposites’. In his theory, the jural correlative of Right is Duty.

However, in India, Part IVA was incorporated because of peculiar circumstances.

Also, while the enforcement of some Fundamental Duties have been secured by enacting
legislations, some fundamental duties are too philosophical and vague to be enforced by a
legislation. Also, even after judicial decisions and legislations, we see that people do not
follow fundamental duties and this calls for change in strategy.

 THE PURPOSE OF INCORPORATING FUNDAMENTAL DUTIES IN THE

CONSTITUTION OF INDIA

The fundamental duties were incorporated via 42nd Amendment in 1976. As a consequence
Part IVA was added consisting of Art. 51A. It was inspired from the USSR. The reasons for its
incorporation are as follows –

1. Main Reason : People did not fulfill their duty to respect the established legal order on
the eve of Emergency (June, 1975)

The then Law Minister H.R. Gokhale said to justify the inclusion of Fundamental Duties -
“particularly on the eve of emergency in June 1975, a section of people showed no anxiety to
fulfill their fundamental obligations of respecting the established legal order”.

2. To sensitize people against Anti-National Activities

 18

It was also clarified by the Government that - “Fundamental Duties was meant to have a
sobering effect on these restless spirits who have had a host of anti--national, subversive and
unconstitutional agitations”.

3. To maintain democratic balance

Talking about Fundamental Duties, the then Prime Minister Indira Gandhi had said – “instead
of smothering rights, inclusion of fundamental duties would help to establish a democratic
balance by making the people conscious of their duties equally as they are conscious of their
rights”.

4. Recommendations of the Swaran Singh Committee

The committee suggested that – “steps are needed to be taken to ensure that the individual did
not overlook his duties while in exercise of his Fundamental Rights”.

5. To give effect to Article 29(1) of Universal Declaration of Human Rights

Art. 29(1) states that – “Everyone has duties to the community in which alone the free and full
development of his personality is possible”.

6. Reiteration of ancient Indian Culture

Ancient Indian Culture laid too much emphasis on – ‘kartavya’; ‘dharma’ etc.

In Bhagvada Gita, Lord Krishna had talked about ‘Nishkama Karma’ – doing duty without
thinking about the fruits/benefits.

 ARE FUNDAMENTAL DUTIES REALLY NON-ENFORCEABLE?

Technically speaking, Fundamental Duties are non-enforceable. However, the Parliament and
Judiciary have enforced few fundamental duties. So, directly, these are not enforceable but
indirectly, these have been made enforceable by the Judiciary and the Parliament.

There are various examples –

 19

 Efforts by the Judiciary

In Mumbai Kamgar Sabha V. Abdulbhai61, the SC said that fundamental duties can be used to
interpret ambiguous statutes.

In Re Ramlila Maidan Incident62, the SC used it to ascertain ‘reasonableness’ of legislative

restriction on Art. 19(1)(a).

In Union of India V. Naveen Jindal63, the SC said that the fundamental duties are implicit in
the fundamental rights and therefore, the question of ‘enforceability’ becomes irrelevant.

In Government of India V. George Philip64, the SC said that – “the Courts should not pass such
orders, which instead of achieving the underlying spirit and objects of Part IVA f the
Constitution, have the tendency to negate or destroy the same”.

In Sarbananda Sonowal V. UOI65, the SC relied on Art. 51A(d) [to defend the country…], to
say that – “any citizen is entitled to bring an Act made by the legislature which gives shelter and
protection to illegal foreign nationals to the notice of the Court”.

In UOI V. Naveen Jindal66, the SC invoked Art. 51A(c) to put reasonable restrictions on Right
to Fly National Flag.

Taking reference to Part IVA, the Supreme Court has time and again laid down directions etc.
with respect to National Anthem. In Shyam Narayan Chouksey V. UOI67, the SS laid issued
clarifications regarding what would constitute disrespect and abuse to the National Anthem and
directions to avoid such disrespect and abuse. In Bijoe Emmanuel V. State of Kerala68, the SC
clarified that there is no disrespect to National Anthem if someone stands up but does not sing.

61
AIR 1976 SC 1455
62
(2012) 5 SCC 1
63
AIR 2004 SC 1559
64
AIR 2007 SC 705
65
AIR 2005 SC 2920
66
Supra
67
(2017) 1 SCC 421
68
AIR 1987 SC 748
 20

- Gradual Evolution of Fundamental Duties of the State

Gradually, the Supreme Court managed to extend the scope of fundamental duties by saying that
these are also the duties of the State.

In AIIMS Students’ Union V. AIIMS69, the Apex Court said that – “though Article 51A does
not expressly cast any fundamental duty on the State, the duty of every citizen of India is the
collective duty of the State, its de facto enforceability in the sense that Article 51A is a yardstick
against which the action of the State may be assessed”. In this case, while determining the
question on reservation of seats, it took into account Art. 51A(j) of the constitution(striving for
excellence).

In Ashok Kumar Thakur V. UOI70, Justice Bhandari said – “State is all the citizens placed
together and hence, even though Art. 51A does not expressly cast any fundamental duty on the
State, the fact remains that the duty of every citizen of India is the collective duty of the State”.

The Court also said that – “Read with Article 21A, Article 51A(k) distributes an obligation
amongst the State and Parents…Notwithstanding the parental duty, the State also has a role to
play in ensuring that compulsory education is feasible”.

 Efforts by the Parliament

Like the Judiciary, the Parliament has also laid down various laws to secure enforcement of these
Fundamental Duties. Some are as follows –

The Emblems and Names(Prevention of Improper Use) Act, 1950; The Prevention of Insults
to National Honor Act, 1971; Unlawful Activities (Prevention) Act, 1967; Offences Relating to
Religion(Sections 295-298) etc. have been enacted to give teeth to various fundamental duties.

69
AIR 2001 SC 3262
70
(2008) 6 SCC 1
 21

 CAN INCORPORATING LEGAL AND JUDICIAL DIRECTION INSPIRE

CITIZENS TO FOLLOW THEIR DUTIES?

We saw in the previous section that the Parliament, the Executive and the Judiciary have put in a
lot of efforts to ensure enforceability of fundamental duties but still, we see that majority of
citizens of our country do not fulfill some or all of their fundamental duties.

For e.g.-

a) In complete violation of Art. 51A(h), people were shamelessly promoting unscientific

misinformation during COVID-19 especially on WhatsApp
b) We see instances of communalism, caste discrimination etc. on a daily basis, which is
totally against Art. 51A(e).
Recently, a news came from Bihar that two Dalit men were forced to lick spit for not voting
in Panchayat election71.
c) Against the spirit of Art. 51A(f), people litter monuments and public places; spit tobacco in
the walls etc.

There are endless examples.

The root causes are –

a) Lack of sensitization about the Constitution and Fundamental Duties in particular.

b) Lack of patriotism towards the country and citizens.
c) Ignorance of people when someone acts against the fundamental duties.

These are the root causes and these need to be addressed first.

71
Scroll Staff, Bihar: Two Dalit men allegedly beaten up, forced to lick spit for not voting for Balwant Singh,
SCROLL, (December 12, 2021, 3:11pm)
https://scroll.in/latest/1012743/bihar-two-dalit-men-allegedly-beaten-up-forced-to-lick-spit-for-not-voting-for-
balwant-singh
 22

 SUGGESTIONS FOR THE PROPER IMPLEMENTATION OF FUNDAMENTAL

DUTIES

For a better implementation of Fundamental Duties, following measures can be adopted –

1. Suggestion of Justice Varma Committee (1998)

It recommended for teaching fundamental duties in every educational institution as a measure of

in-service training.

2. Addition of few more fundamental duties

More duties such as – Duty to pay tax; duty to vote in election; duty to resist injustice etc. can be
included.

3. In 2019, the Prime Minister stressed on the need to teach Constitution to children.
4. Awareness drives, Sensitization programs etc. at the grass root level

 CONCLUSION

Hence, we can see that the efforts of Judiciary, Parliament and the Executive have reaped
benefits only partially, not fully. That is why, there is a need to change the approach and
strategy. For that, we need to go at the grass root and start from the basics. Awareness
campaigns, sensitization programs, workshops etc. are the need of the hour.
 23

REFERENCES

 Textbook
1. M.P JAIN, INDIAN CONSTITUTIONAL LAW, (Lexis Nexis 2019)

 Articles

1. Sanjeeb Mukherjee & Associates, Unemployment Rate at 9.4% in January-March 2021:

NSO Survey, BUSINESS STANDARD, (December 10, 2021, 6:23pm)
https://www.business-standard.com/article/economy-policy/unemployment-rate-at-9-3-in-
january-march-2021-nso-survey-121120100045_1.html
2. Pranjul Bhandari, What India’s informal sector needs right now, INDIAN EXPRESS,
(December 10, 2021, 4:21pm)
https://indianexpress.com/article/opinion/columns/india-informal-sector-economy-gdp-
covid-7461928/
3. Nilanjana Chakraborty, What is Gender pay gap and why is it so wide in India, LIVE MINT,
(December 11, 2021, 4:34pm)
https://www.livemint.com/money/personal-finance/what-is-gender-pay-gap-and-why-is-it-
so-wide-in-india-11575356633900.html
4. Rahul Tripathi, Mumbai, Kolkata see highest women, child trafficking cases: NCRB study,
ECONOMIC TIMES, (December 12, 2021, 2:09pm)
https://economictimes.indiatimes.com/news/politics-and-nation/mumbai-kolkata-see-highest-
women-child-trafficking-cases-ncrb-study/articleshow/74053964.cms?from=mdr
5. Ritu Mariam Biju, India Justice Report 2019: Only 15 million out of 1 billion eligible Indians
provided legal aid services in last 14 years, BAR& BENCH, (December 11, 2021, 3:28pm)
https://www.barandbench.com/columns/india-justice-report-2019-15-million-out-of-1-
billion-eligible-indians-provided-legal-aid-services
6. Sadhika Tiwari, पश्चिम बंगाल के चाय बागान ं में अपने बच् ं क ख ती माएं , INDIA
SPEND(December 09, 2021, 12:21pm)
https://indiaspendhindi.com/cover-story/mothers-losing-their-children-to-the-tea-gardens-of-
west-bengal-742334
 24

7. ENS Economic Bureau, Over 50% Bihar poor in new index based on health, education,
standard of living, INDIAN EXPRESS, (December 11, 2021, 3:45pm)
https://indianexpress.com/article/india/bihar-poor-nfh-survey-mpi-niti-aayog-7643708/
8. Harikishan Sharma, Livestock Census: No. of stray cattle down in country, up in UP,
INDIAN EXPRESS, (December 11, 2021, 5:11pm)
https://indianexpress.com/article/india/livestock-census-no-of-stray-cattle-down-in-country-
up-in-up-6243490/
9. Rajit Sengupta, Every day, 28 people dependent on farming die by suicide in India, DOWN
TO EARTH, (December 12, 2021, 10:24am)
https://www.downtoearth.org.in/news/agriculture/every-day-28-people-dependent-on-
farming-die-by-suicide-in-india-73194
10. Scroll Staff, Bihar: Two Dalit men allegedly beaten up, forced to lick spit for not voting for
Balwant Singh, SCROLL, (December 12, 2021, 3:11pm)
https://scroll.in/latest/1012743/bihar-two-dalit-men-allegedly-beaten-up-forced-to-lick-spit-
for-not-voting-for-balwant-singh