The Utility of Duty

IT MIGHT COME as a little bit of a surprise—because even though Indian life is governed by its Constitution, almost none have any interest in its history or particulars—that the fundamental duties Indians have been asked to etch into their national soul were a late entrant. They were not there when BR Ambedkar first presented the Constitution. The fundamental rights were. Does that indicate the state was more giving than receiving at the start? You might get the answer from knowing when exactly do fundamental duties make their entrance. It is, not coincidentally, exactly when fundamental rights, the most stellar feature of the Constitution, were under threat during the Emergency imposed by Indira Gandhi.

It is therefore with some suspiciousness that the introduction of fundamental duties must be viewed. Not because of the duties themselves—11 of them as listed in Article 51a—whose virtues are self-evident. Shouldn’t an Indian abide by the Constitution and respect its ideals? Yes. Cherish and follow the ideals of the freedom struggle? Of course. Protect sovereignty, unity and integrity? Defend the nation? Live harmoniously? Renounce practices derogatory to the dignity of women? Preserve our heritage? Develop scientific temper? Protect and improve the environment and everything it contains, including fauna and flora? Have compassion for animals? Not be violent or destroy public property? Try to be excellent in everything we do so that the nation rises with our joint endeavour? Educate our children, at least till they are 14? There is no quibble to be found with any of them. If these cannot be the items in India’s manual for a decent society, what else can be? But then why state the obvious? And that, too, at a moment when liberties that did belong to every Indian were being snatched away? Isn’t it only to emphasise the citizen’s subservience to the state? Remember that this is the state that has just introduced Emergency. Duty, it is repeatedly said, is only the mirror of rights, they go together like conjoined twins. But we did okay from 1947 to 1976 without the duties spelt out. The introduction of fundamental duties was a political tool. You don’t need to tell someone that it is good to speak the truth, unless you want him to be careful of what he says before you. It was asking Indians to put a watch on their actions lest they be swayed by their own independence.

The late Justice JS Verma, one of the great Supreme Court judges in recent memory, was asked to make a report on how fundamental duties could be inculcated into Indians. This was 1999, and by then 23 years had passed since the introduction of those duties. It is in the definition of a duty that there is an element of choice involved. If someone believed the chanting of a mantra takes the poison out of a snakebite or that homoeopathy can cure pancreatic cancer, then he doesn’t really have a scientific temper. He is not in consonance with his fundamental duty. But can you punish him for it? Fundamental duties can only be wilfully imbibed. The report thus had to suggest ways and means for the duties to become second nature to Indians, mainly targeting educational institutions. In 2017, a full 18 years later, a public interest litigation was moved in the Supreme Court for the implementation of these recommendations. What transpired, as stated in an ANI report, was this: “The PIL filed by Bharatiya Janata Party (BJP) leader Ashwini Upadhyay sought implementation of the 1999 Justice Verma Committee’s recommendations in connection with effectuation of fundamental duties. An apex court bench headed by Chief Justice of India Jagdish Singh Khehar and Justice DY Chandrachud said, ‘This report is of 1999. How can a court direct the government to implement fundamental duties?’”

Not that the Government was not trying. In 2016, for instance, it sent a letter to higher educational institutions (HEI) to focus on fundamental duties while celebrating Constitution Day that falls on November 26th. They should, as per the letter, hold these five activities for the 11 duties: “1) Debate, speeches and essays on Fundamental Duties; 2) Banners to be put up in all HEIs on Fundamental Duties; 3) One lecture in every institution on importance of Fundamental Duties; 4) Pledge taking by teachers and students on the day, i.e., 26th November, 2016 (copy enclosed); 5) Online quiz among students of HEIs on Fundamental Duties, for which Question Bank of 100 questions would be developed by NCERT.” If human beings could be changed by letters of bureaucrats, India would be the greatest country history had ever known. But the probability of anyone who memorises the 100 questions developed by NCERT and wins the online quiz becoming the perfect citizen is debatable.

Fundamental duties became the genie let out of the bottle. It wasn’t something anyone, except Indira Gandhi, saw coming but once out, it is such a virtuous list that to be not seen paying obeisance to them would be anti-nationalistic. Which politician can survive by saying these duties are impractical to do anything about? Or that policies were already existing for items in the list? Take the very first fundamental duty which says that Indians must respect the national flag and the national anthem. But in 1971, India had already passed a law that said insults to the flag and the anthem could send someone to jail. That is a surer way of making people behave. There is nothing as powerful as fear or greed, if used with skill, to shape the character of human beings and jail is a fine deterrent. If you want a current example, take the fifth fundamental duty which goes thus: “Promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities….” These duties were meant to be a constant reminder of what it means to be an Indian citizen. But, on August 8th, at Jantar Mantar in New Delhi, it didn’t serve its purpose when a gathering led by a BJP politician shouted communal slogans against Muslims, which included exhortations to kill them. He and others were arrested because there are laws in the penal code to deal with such speech. The idea of the duty is not preventive because there is no deterrence in it. There ought to be consequences that come with wrong actions. With fundamental duties, there are none. All recognise this and therefore do the only thing possible—ignore them with occasional tokenisms and statements to posture that they are not ignoring them.

Duty, it is repeatedly said, is only the mirror of rights, they go together like conjoined twins. But we did okay from 1947 to 1976 without the duties spelt out. The introduction of fundamental duties was a political tool. You don’t need to tell someone that it is good to speak the truth, unless you want him to be careful of what he says before you

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REASONABLE AND JUST laws and, more importantly, institutions that are capable of enforcing them quickly is just about all that is required for a good society that has good ends in mind. It is in the absence of those that there is a scramble around for other mechanisms to show that the state is not failing. Or even if it is failing, that it is not because of the state itself, but of its citizens—“You didn’t adhere to your duties and therefore you are responsible for what you are enduring.” These duties also have inbuilt ironies. In Maharashtra, they make people stand up before every movie in a theatre to listen to the national anthem. It is duty to be respectful to the anthem but what if it is forced on occasions not of your choosing but by the arbitrary writ of a politician out to score a quick vote? Where is the line between brainless conformism and a duty performed with integrity? Is there a point in performing duties in which there is no conviction?

It is with the 42nd Amendment that the fundamental duties were introduced into the Constitution. Consider what else came along in that Amendment. Writing in the Indian Express in 2009, journalist Inder Malhotra, who had a ringside view of Emergency and later wrote a biography of Indira Gandhi, noted: “Of the changes in the Constitution during the Emergency era, the most important and most drastic was the Forty-second Amendment. Its four main purposes can be summed up as follows. First, to further protect Indira Gandhi’s election to Parliament and future elections of her and her successors, even though her 1971 election had already been saved by earlier amendments… Secondly, the 42nd Amendment enlarged the Central Government’s powers vis-à-vis State governments thus eroding the federal structure. Thirdly, in the words of one supporter of the measure, it “trimmed the judiciary” in “many respects”. Fourthly, the amending law gave directive principles of state policy precedence over fundamental rights and made any law passed in pursuance of a directive principle immune from the Supreme Court’s scrutiny.” Fundamental duties came accompanied with distasteful company. Its own substance is, however, chaste and uplifting, perhaps by design, to sweeten the blow that had just been delivered.

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Madhavankutty Pillai

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