- The concept of “constitutional morality” and the inventory of citizens’ fundamental duties enshrined in the Constitution are fast becoming casualties after the recent amendment in Citizenship Act.
- The Supreme Court has spoken of the state’s obligation to always keep constitutional morality over and above “majoritarian morality”.
- Majoritarian morality is being conspicuously given precedence over constitutional morality.
- State dignitaries are as much bound by each of the citizens’ fundamental duties proclaimed by the Constitution as any ordinary member of the citizenry.
- All fundamental duties enshrined in the Constitution are to be diligently discharged, as citizens, first of all by those holding the reigns of the country who are citizens first and citizens last.
Resulting from the government’s controversial moves on a new citizenship law and the dreaded NRC, the social unrest pervading the length and breadth of the country has in recent days reached alarming proportions. The concept of “constitutional morality” developed by the apex court and the inventory of citizens’ fundamental duties enshrined in the Constitution both are fast becoming casualties.
On last year’s Constitution Day celebrated with great fervor, great emphasis had aptly been laid on constitutional morality by the Head of State and on reciprocity between citizens’ rights and duties by the Head of Government. But are these meant only for sermonizing by the leaders on ceremonial occasions, with no efforts worth the name in sight to translate them into ground reality?
Constitutional Morality Being Supplanted by Majoritarian Morality?
The expression “constitutional morality” does not appear in any provision of the Constitution but has been explained by jurists and courts to mean its “core principles” as spelt out in carefully selected words and phrases used in the preamble to the Constitution.
Citing these principles as ingredients of constitutional morality, the Supreme Court has spoken of the state’s obligation to always keep constitutional morality over and above “majoritarian morality” (NS Johar, 2018).
Is this judicial injunction being adhered to on the ground? Very unfortunately the situation these days is the other way round and majoritarian morality is being conspicuously given precedence over constitutional morality.
The fundamental duties of citizens were incorporated in the Constitution by its 42nd amendment made in 1976, along with the addition of the word “secular” to the prefatory description of the country in the preamble. The two additions were indeed interlinked and have to be read as parts of a compact whole—only a faithful fulfillment of the duties mandated can make the state truly secular in terms of the Constitution.
Both the Ruler and the Ruled Are Citizens of the Country
The most pertinent question in this regard is who are the “citizens” on whom the Constitution imposes specified fundamental duties? Neither the Constitution nor the Citizenship Act of 1955—whose recent amendment is reverberating all over the world—defines the words citizen and citizenship; they only determine who the citizens of India were at the advent of independence and would be in future.
Grolier’s New Book of Knowledge defines the word “citizen” as a “participatory member of a political community.” Citizenship is defined in books of jurisprudence as the “legal link between an individual and a state as a result of which the individual is entitled to certain protection, rights and privileges and subject to certain obligations and allegiance.”
Both these expressions obviously include the rulers and the ruled alike. All state dignitaries—be they in legislature, executive or judiciary and at whichever ladder of the hierarchy—are citizens of the country, over and above anything else. All of them are as much bound by each of the citizens’ fundamental duties proclaimed by the Constitution as any ordinary member of the citizenry.
Is Fundamental Duty to Abide by the Constitution Being Fulfilled by Custodians of State Authority?
On top of the list of citizens’ fundamental duties detailed in Article 51A of the Constitution is the duty to “abide by the Constitution and respect its ideals and institutions.” The ‘ideals’ of the Constitution specified in its preamble are social, economic and political justice; liberty of thought, expression, belief, faith and worship; and equality of status and opportunity—each of these absolutely equally for all citizens. And among the ‘institutions’ of the Constitution are democracy, federalism, separation of powers and independence of judiciary.
The fundamental duty to abide by the Constitution through due respect for these ideals and institutions, by its very nature, is to be discharged primarily by those citizens who at any given time may be the custodians of state authority. Are they, then, really fulfilling this duty?
Down in the list of citizens’ fundamental duties are those to “promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities” and “value and preserve the rich heritage of our composite culture.” These are also binding on the ruler-citizens, as much as on ordinary members of the citizenry. Are these constitutional duties being fulfilled by the custodians of state authority today?
State Cannot Preach Without Practising
Another important fundamental duty enjoined in the Constitution is the duty “to develop scientific temper, humanism and the spirit of inquiry and reform.” The custodians of state authority have to play a key role in respect of this duty. It is for them to lead the general citizenry on the path of shunning superstitions, myths and fictions not substantiated by historical facts and facts of science. Is this obligation being discharged to any extent?
These and indeed all fundamental duties enshrined in the Constitution are to be diligently discharged, as citizens, first of all by those holding the reigns of the country who are citizens first and citizens last. Only then can they expect the common citizens to keep away from dereliction of the said duties in their day to day life. Preaching without practice is bound to earn from critics the rebuff of physician cure thyself.
(Prof Tahir Mahmood is Professor of Eminence & Chairman, Institute of Advanced Legal Studies, Amity University. A distinguished jurist, he served as Chairman, National Minorities Commission and Member, Law Commission of India. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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