Introduction to Constitution law

The Indian constitution is the supreme law of India It lays down the framework
defining fundamental political principles, establishes the structure, procedures,
powers, and duties of government institutions, and sets out fundamental rights,
directive principles and the duties of citizens.

Dr. Bhimrao Ramji Ambedkar is widely regarded as the father of the Indian
Constitution.The Constitution provides that there shall be a Council of Ministers
with the Prime Minister as its head to aid and advice the President, who shall
exercise his/her functions in accordance with the advice. The real executive
power is thus vested in the Council of Ministers with the Prime Minister as its
head.

The Constitution was adopted by the India Constituent Assembly on 26

November 1949 and came into effect on 26 January 1950. The date of 26
January was chosen to commemorate the Purna Swaraj declaration of
independence of 1930.

The Constitution declares India to be a sovereign, socialist, secular, democratic

republic, assuring its citizens of justice, equality, and liberty, and endeavors to
promote fraternity among them. The words socialist and secular were added
to the definition in 1976 by constitutional amendment (mini-constitution). India
celebrates the adoption of the constitution on 26 January each year as Republic
Day.

At the time of commencement, the constitution had 395 articles in 22 parts and 8
schedules. It consists of almost 80,000 words and took 2 years 11 months and
18 days to build.

The major portion of the Indian subcontinent was under British rule from 1857 to
1947. When the Constitution of India came into force on 26 January 1950, it
repealed the Indian Independence Act. India ceased to be a dominion of the
British Crown and became a sovereign democratic republic.
 Introduction of fundamental Duties

Fundamental duties are defined as the moral obligations of all citizens to help
promote a spirit of patriotism and to uphold the unity of India. These duties set
in part IV-A of the Constitution. They are held by the Supreme Court to be
obligatory for all citizens.

The fundamental duties were included in the constitution by the 42nd

amendment act 1976. It incorporated the fundamental duties by inserting a new
article 51A below article 51 which belongs to Part IV-A. The recommendations
were passed in 1976 and came into effect on 3rd January, 1977.

Originally ten in number, the Fundamental Duties were increased to eleven by

the 86th Amendment in 2002. These duties were meant to bring our
Constitution in line with the Universal Declaration of Human Rights and the
Constitutions of Japan, China, and USSR. It was adopted based on the
recommendations of the SWARAN SINGH Committee.

Swaran Singh Committee was constituted by the Government of India earlier

in1976. The objective of this committee was to study the questions of amending
the constitution in the light of past experiences faced by the constitution. The
committee was constituted by Indira Gandhi soon after emergency was imposed
in the country.

The 42nd amendment act which is also called Mini Constitution amended many
articles and even the Preamble was a result of the recommendations of this
committee The 10 fundamental duties in the constitution were also added as
per the recommendations of Sardar Swaran Singh committee.
 Inspiration For Fundamental Duties

The inspiration for the Part IV A was the constitution of USSR. It is because
USSR constitution directs that law, maintenance or labor discipline and honesty
should be observed in the performance of public duties and also directs to
respect the rules of the socialist community.

U.S.S.R. constitution in this way emphasizes more on the citizens duties and
imposes upon the people some definite duties towards society and state. Such
fundamental duties are not seen in the constitution of the U.S.A., Australia,
Canada and among other democratic constitution of world except for Japan
where we find mention of certain duties of the citizens similar to that present in
our constitution.

This is because, in all these countries the citizens are imbibed with a high sense
of patriotism as a result of education, training in the elementary duties and
obligations of citizenship. In contrast to this, it is generally argued that in India,
people lay emphasis only on rights and it is often criticized that the Indians know
only rights but not duties. This was primarily the reason as to why the
fundamental duties were incorporated in the constitution in 1976 as per some
experts.
 Importance/Significance of Fundamental Duties in India

The fundamental duties constitute a constant reminder to the citizens that they
have duties in building up a free, egalitarian, healthy and responsible society.
These are expected to act as damper to reckless and anti-social activities on the
part of some individuals. India being a multi-racial and muti-religious nation can
prosper only when the citizens of this country respect its integrity and promotes
cultural harmony by doing their duties as citizen of the nation.

Environmental pollution has become a great cause of concern. These duties

remind us to keep our environment free from pollutants. The inclusion of
providing opportunity for education for children as a fundamental duty is a big
step forward towards safeguard of human-rights and abolition of social injustices

Fundamental duties are non-enforceable and non-justiciable nature , As the

state offers the citizens fundamental rights, it is the fundamental duty of each
citizen of India to further national integration and contribute towards a better
society. There is a major difference between the fundamental rights and the
fundamental duties. Unlike fundamental rights, fundamental duties are non-
justifiable. This means that no one can be punished in case of their violation or
non-compliance of any fundamental duty. Similarly these duties are non-
enforceable in nature. That is no court can or any government body can directly
enforce any of these duties on any particular citizen legally. But if the State
makes a law to prohibit any act or conduct in violation of any of the duties, the
courts would uphold that as a reasonable restriction on the relevant fundamental
right. For instance, a person who burns our national flag, in violation of the duty
in Art. 51 A, cannot assert that it was burnt by way of demonstration against the
Government should be protected by the freedom of expression right.

In this respect, the Fundamental Duties are similar to that of the Directive
principles as they stood in the Constitution of 1949. The directive principles lay
down some high ideals to be followed by the state whereas the fundamental
duties lays high ideals for the citizen. Here too, in both cases, violation does not
invite any punishment.
 Fundamental Duties in India

a) It is the duty of every citizen to abide by the constitution and respect its ideal
and institutions, the National Flag and the National Anthem.

(b) It is the duty to cherish and follow the noble ideals which inspired our national
struggle for freedom.

(c) It is the duty to uphold and protect the sovereignty, unity and integrity of India.

(d) It is the duty of every citizen to defend the country and render national service
when called upon to do.

(e) It is the duty to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and regional or
sectional diversities to renounce practices derogatory to the dignity of women.

(f) It is the duty of every citizen to value and preserve the rich heritage of our
composite culture.

(g) It is the duty to protect and improve the natural environment including forests,
lakes, rivers and wild life and have compassion for living creatures.

(h) It is the duty of the citizen to develop the scientific temper, humanism and the
spirit of inquiry and reform.

(i) It is the duty of every citizen to safeguard public property and to abjure
violence.

(j) It is the duty of every citizen to strive towards excellence in all spheres of
individual and collective activity so that the nation constantly rises to higher levels
of endeavour and achievements.

(k) It is the duty of every parent or guardian to ensure that their child or ward was
provided opportunities for education between the ages of six and fourteen years.(
added by 86th Amendment in 2002)
Laws passed by Parliament for Enforcement of Fundamental Duties

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.

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.

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).

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).

Imputations and assertions prejudicial to the national integration constitute a

punishable offence under Section 153 B of the IPC.

A Communal organization can be declared unlawful association under the

provisions of Unlawful Activities (Prevention) Act 1967.

Offences related to religion are covered in Sections 295-298 of the IPC (Chapter
XV).

Provisions of the Protection of Civil Rights Act, 1955 (earlier the Untouchability
(Offences) Act 1955).

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.
 Drawbacks of Fundamental Duties in Indian Constitution

The fundamental duties are not precisely defined. Their ambiguity and
vagueness confound the citizens as to what they are supposed to do.

Most significantly. they are merely moral postulates and do not have justiciability.
They are not enforced by Law.

Place in the constitution: It has been added in the Part IVA i.e. after Part IV
(Which belongs to the Directive Principles of State Policy which are non-
enforceable even with the court of law). It has given the Fundamental Duties a
nature of non-obligation. Instead it should have been placed as the Part IIIA i.e.
after Part III (it belongs to the Fundamental Rights). It should have been given
power at par with Fundamental Rights.

Fundamental Duties prescribe duties for the citizens and not for the Government
for better life and social progress.

Another point of criticism is that some Fundamental Duties are vague and it is not
possible for an average man to understand them. For example, the duties
pertaining to upholding the noble ideals of the freedom struggle or the
development of a scientific temper and humanism and spirit of enquiry and
reform are not understood by the ordinary citizens.

Another drawback of the Fundamental Duties lies in their incorporation in Part IV

of the Constitution. Without appropriate legal sanctions, the Fundamental Duties
are mere pious wishes.

There is overlapping and repetition in description of Fundamental Duties.

Fundamental duties miss some important duties such as cast vote, pay taxes,
family planning etc.
 Judgments/Cases on Fundamental Duties

BENCH: P. N. BHAGWATI, C.J.I., RANGANATH MISRA, G. L. OZA, M. M. DUTT

AND K. N. SINGH, JJ.

FACTS:

M.C. Mehta case is the famous tort law case which brought in the principle of
absolute liability. Shriram Food and Fertilizer Industry, a subsidiary of Delhi Cloth
Mills Limited, was engaged in the manufacture of dangerous chemical. On
December 1985, large amounts of oleum gas leaked form one of the units in the
heart of Delhi which resulted in the death of several persons. The leakage,
resulted from the bursting of a tank containing oleum gas, was caused by
mechanical and human errors. It created a scare among the people residing
nearby and within two days, another leakage, a minor one, broke out as a result
of oleum gas escaping from the joints of a pipe.
On 6thDecember 1985, the District Magistrate,Delhi ordered Shriram to stop the
manufacturing and processing of hazardous chemicals and fertilizers at their
establishment in Delhi and to remove such chemicals and gases from Delhi.At
this particular point, M.C. Mehta moved to Supreme Court to file PIL and claim for
compensation for the losses caused and also demanded that the closed
establishment should not restart.

ISSUE:

Whether article 21 was available against Shriram and whether Shriram owned by
Delhi cloth Mlls ltd. Public co. Comes within the meaning of state under the
article 12?
JUDGMENT:

The Supreme Court held that Shriram is required to obtain a license under the
Factories Act and is subject to the directions and orders of the authorities under
the Act. It is also required to obtain a license for its manufacturing activities from
the Municipal authorities under the Delhi Municipal Act, 1957. It is subject to
extensive environment regulation under the Water (Prevention and Control of
Pollution) Act, 1974 and as the factory is situated in an air pollution control area,
it is also subject to the regulation of the Air (Prevention and Control of Pollution)
Act, 1981. It is true that control is not exercised by the Government in relation to
the internal management policies of the Company.
J.Bhagwati thereafter stated that, We in hold our hands back and I venture to
evolve a new principle of liability which English Courts have not done. We have
to develop our own law and if we find that it is necessary to construct a new
principle of liability to deal with an unusual situation which has arisen and which
is likely to arise in future on account of hazardous or inherently dangerous
industries which are concomitant to an industrial economy, there is no reason
why we should hesitate to evolve such principle of liability merely because it has
not been so done in England. We are of the view that an enterprise which is
engaged in a hazardous or inherently dangerous industry which poses a potential
threat to the health and safety of the persons working in the factory and residing
in the surrounding areas owes an absolute and non-delegable duty to the
community to ensure that no harm results to anyone on account of hazardous or
inherently dangerous nature of the activity which it has undertaken. The
enterprise must be held to be under an obligation to provide that the hazardous
or inherently dangerous activity in which it is engaged must be conducted with
the highest standards of safety and if any harm results on account of such
activity, the enterprise must be absolutely liable to compensate for such harm
and it should be no answer to the enterprise to say that it had taken all
reasonable care and that the harm occurred without any negligence on its part.
Since the persons harmed on account of the hazardous or inherently dangerous
activity carried on by the enterprise would not be in a position to isolate the
process of operation from the hazardous preparation of substance or any other
related element that caused the harm the enterprise must be held strictly liable
for causing such harm as a part of the social cost for carrying on the hazardous
or inherently dangerous activity.
Case CONCLUSION:

If the enterprise is permitted to carry on an hazardous or inherently dangerous

activity for its profit, the law must presume that such permission is conditional on
the enterprise absorbing the cost of any accident arising on account of such
hazardous or inherently dangerous activity as an appropriate item of its
overheads. Such hazardous or inherently dangerous activity for private profit can
be tolerated only on condition that the enterprise engaged in such hazardous or
inherently dangerous activity indemnifies all those who suffer on account of the
carrying on of such hazardous or inherently dangerous activity regardless of
whether it is carried on carefully or not. The Court also pointed out that the
measure of compensation in the kind of cases referred to must be correlated to
the magnitude and capacity of the enterprise because such compensation must
have a deterrent effect. The larger and more prosperous the enterprise, greater
must be the amount of compensation payable by it for the harm caused on
account of an accident in the carrying on of the hazardous or inherently
dangerous activity by the enterprise.
 Conclusion

These fundamental duties are not mere expressions of pious platitudes. Courts
will certainly take cognizance of laws seeking to give effect to fundamental
duties. Rights and duties are reciprocal and interdependent; they are the two
aspects of the same thing or two sides of same coin and for the enjoyment of
valuable fundamental rights, firstly we need to obey our fundamental duties
seriously, as a law-abiding citizen, and must realise that he has certain duties
towards the Nation to achieve the objective of Part IV-A that is National integrity
and respect