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Fundamental Duties - A silent strengthening component for Democracy

Niranjan Bhombe

Salil Ranade

25 February 2022

"Law-making is the prerogative of the Legislature....."

The Supreme Court on 21st February 2022 issued a notice to the centre and states in a writ petition filed by Advocate Durga Dutta, seeking enforcement of Fundamental Duties cherished in the Constitution of Bharat.

The Fundamental Duties enshrined in Bharat’s Constitution are derived from the Constitution of the Soviet Union. The Fundamental Duties found their place in the Constitution only in 1976 when the Congress government found itself in a rough spot during the emergency (1975-77) and felt the need and necessity of incorporating it. No democratic nation or at least those nations from whom constitutional features were borrowed by our makers gave equal importance to both Duties and Rights of the citizens that includes countries like the US, France, Canada etc. On the other hand, the erstwhile USSR, a socialist state, made rights and duties inseparable.

The PIL filed by the learned Advocate is frittering away the precious time of the Supreme Court. The Supreme Court should have set aside the PIL at the admission stage itself. The Supreme Court is meant to earn accolades in the matter of where democratic values like liberty and equality are challenged or need more interpretation or concretisation to drive away ambiguity.

The Supreme Court which declared the Right to Privacy as a fundamental right, which decriminalised section 377 of IPC, which banned triple talaq is now burdened with at least 40 constitutional cases which are in turn connected with 500 cases. Cases of Paramount importance like CAA, Article 370, and Reservations for EWS. "The Court does not concern itself about trifles" should be seen in relative form and not in absolute terms. The Supreme Court needs to come up with some mechanism that would stop trivial matters from entering the courtrooms. By delaying to address key constitutional cases the court is being made to diverge away from her "Watchful Guardian" role.

Law-making is the prerogative of the Legislature. If the Directive principle of the State Policy has worked well so far for the State, so is the FDs (Fundamental Duties) for the citizens in the similar form of general directives. Legal framework for many Fundamental Duties in the form of Standalone Acts are in place and performing. Like to achieve the objectives of Article 51A(a) - to abide by the constitution..., Prevention of Insults to National Honour Act is there which prohibits the desecration of or insult to the country's national symbols, including the national flag, national emblem, national anthem, the constitution, and map of Bharat including contempt of Bharat’s constitution. Article 51A(c) - to uphold and protect the sovereignty...Section 124A, the infamous sedition law, which is so used or rather misused (as per the context), that the political debates have gone to the extent of abolishing it altogether. Section 153a of IPC deals with promoting enmity between different groups on the ground of religion, race, place of birth, residence, language, etc. which corresponds to Article 51A (e). The Environment act corresponds with Article 51A (g). The IITs and the space program cultivated since the Nehruvian era greatly contributed to developing scientific temper and spirit of inquiry among the citizens of this country. Article 51A (k) which talks about providing educational opportunities to children is vastly covered in the Right to Education Act.

These Acts were enacted by the Parliament because the need for it was felt. The Parliament may come up with security service law like that of Israel for some sections of the citizens with an exhaustive exemption list if some compelling occasion arises. The constitution has given vast powers to the Supreme Court. It is the final interpreter and guardian of the constitution. Its primary job is to interpret the law. Never heard of any Legislative-organ burdened with too many bills. Let the Parliament and Legislative assemblies have their rightful share. The Supreme Court and the Parliament together, standing on different planes, maintaining the separation of powers, should resolve this problem and save the judiciary from peril.

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