The State fails to perform Constitutional duties: What can Republic Do?

What are those duties, and whether they were honored by the Governments? Who has to question the Governments for breaching these duties prescribed by the Constitution?

By M Sridhar Acharyulu  Published on  27 Jan 2022 4:35 AM GMT
The State fails to perform Constitutional duties: What can Republic Do?

Fundamental Duties were included in the constitution by the 42nd Amendment during the emergency in 1976. But these duties are just statements, as they were only recommendatory and not enforceable in a court of law unless a breach of those duties amounts to crimes under different penal laws of the nation. The rulers generally advise the people to adhere to their duties, whenever there is a demand for certain rights. The Fundamental Duties under Article 51-A in Part IVA of our Constitution are ethical norms or moral obligations, but their breach does not result in any penalties. But the rulers generally do not realize that the Constitution has prescribed certain mandatory duties to them, which should be implemented.

The Governments in succession have ignored these duties and that resulted in en mass violation of the rights of the people. They are in the name of Directive Principles of State policy. The Supreme Court said (in Keshavananda Bharathi case, 1973) that Directive Principles of State Policy have set forth the humanitarian social precepts that were the aims of the Indian Social Revolution. They are either ignored or deliberately not implemented or executive introduced policies exactly contradictory to these principles. Privatization is one example. These violations are not actionable because the Constitution in Article 37 says these shall not be enforceable by any court. But at the same time, that Article mandates these principles as duties. What are those duties, and whether they were honored by the Governments? Who has to question the Governments for breaching these duties prescribed by the Constitution?

The state violates Constitutional Duties

1. Article 37 says 'it shall be the duty of the State to apply these (Directive Principles of State Policies) principles in making laws". This duty is breached by both the Union and State Governments, whenever they made policies laws against these principles.

2. Article 38(2) says that the State shall, in particular, strive to minimize the inequalities in income, and endeavor inequalities in status, facilities, and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. The income gap between the top ten percent and the bottom 50 percent in India is one to 22 in 2021. The bottom 50 percent of the households own almost nothing. The middle class is relatively poor, owning 29.5% of the total wealth. The inequality in India has widened compared to British rule (since the period power was transferred from the East India Company to the British Crown till Independence). It found that Indian income inequality was very high under British colonial rule (1858-1947), with the top ten percent of the population sharing around 50 percent of the national income. Now independent India surpassed these figures and 'achieved' wider inequality than British Rule. (World Inequality Report 2022)

3. Article 39 says the state shall direct its policy towards securing (a) that the citizens, men, and women equally have the right to an adequate means of livelihood. Growing unemployment is proof of violation of this duty. The annual income of the poorest 20 percent of Indian households was Rs 1.37 lakh in 2015-16, which plunged to 0.65 lakh which means a fall of 52.6 percent in 2020-21. (World Inequality Report 2022, by France-based World Inequality Lab which does work through evidence-based research on the drivers of inequality worldwide)

4. Article 39 (b) the state shall direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good. The top one percent of total national income is held by just 1 percent rich people. This shows that Governments never bothered about this duty.

5. Article 39 (c) says the state shall direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. The annual average income of the richest 20 percent of India in 2015-16 was Rs 5. 26 lakh increased to Rs 7.31 lakh registering a growth of 39 percent. 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(World Inequality Report 2022)

6. All these three directives are violated through indiscriminate privatization of public assets, national wealth, community properties, auction of government lands, allocation of lands at low cost to Special Economic Zones, Multi-National Corporates, etc. The phenomenal growth of the wealth of the rich in recent times shows how this duty is violated.

7. The economic reforms and liberalization, so-called, adopted by India have mostly benefited the top one percent, as per World Inequality Report for 2022.

8. Article 39(d) says there shall be equal pay for equal work for both men and women. According to the Monster Salary Index (MSI) on gender for 2016, women in India earn 25% less than men. India ranks 108 in World Economic Forum's (WEF) gender gap index in 2018. Apart from the gender pay gap, India is also facing a huge pay disparity among the categories of organized and unorganized sectors, rural and urban areas, and regular and casual workers. WEF 2018 also reported that India ranks 142 out of 149 in the economic opportunity and participation sub-index.

9. Article 39(f) says the children should get an opportunity to develop in a healthy manner and in conditions of freedom and dignity. The WEF also noted that India continues to rank third-lowest in the world on health and survival, remaining the world's least improved country on this sub-index over the past decade. "In fact, India actually widens the gender gap on this sub-index this year," Report wrote.

10. Article 39 A says the state shall ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The poor cannot afford to approach High Courts and the Supreme Court because of the prohibitive costs of litigation and hiring a lawyer. Free legal aid is token support which is out of reach for many. The great right under Article 32 cannot be realized for a person who was denied his rights to approach the Supreme Court because of distance and cost of travel, in addition to the cost of litigation and lawyer. The Supreme Court sits only in Delhi and refuses to have benches in such a big country, which is a wholesale violation of Article 32 and Article 39A.

11. Article 40 talks about the organization of village panchayat and three-tier federation ensuring self-government at tier at bottom. This is another distant dream.

12. Article 46 deals with the duty of promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections. This is yet another distant dream.

13. Article 47 deals with the duty of the State to raise the level of nutrition and the standard of living and to improve public health. Despite this, 14 percent of India's population is undernourished, according to 'The State of Food Security and Nutrition in the World, 2020' report. The report states 189.2 million people are undernourished in India and 34.7 percent of the children aged below five years in India are stunted.

14. Article 48 talks about the duty of the state to organize agriculture. The hurried passage of three Farmer Legislations and their withdrawal after hundreds of farmers died in a year-long agitation against is the proof of breach of this duty.

15. Article 48 also talks about the duty of the state to prohibit the slaughter of cows and calves and other milch and draught cattle. There is much emotional talk about cow protection without any viable economic program to protect cows, calves, and cattle.

16. Article 48A imposes an obligation to protect and improve the environment and safeguard forests. The State of India's Environment Report 2021 released by the Centre for Science and Environment (CSE) in June 2021 with comprehensive data on subjects such as Forest, Climate Change, Habitat, Water, Air Pollution, Rural Development, Biodiversity, and Industry has stated that India ranked 117 out of 180. In achieving 17 SDGs (sustainable development goals) India slipped to 117 in 2021 from 115 in 2020. Challenges such as hunger, low food security, achieving gender equality, fostering innovation are the reasons why India's rank slipped in 2021. India ranks below four South Asian nations such as Bhutan, Bangladesh, Nepal, and Sri Lanka.

17. Article 49 declares it as a duty of the state to protect monuments and places and objects of national importance. Gurmeet Rai Sangha, director, Cultural Resource Conservation Initiative (CRCI) and Heritage Management Specialist, who has worked on several heritage conservation projects with the Punjab government, reacted to the renovation of Jallianwala Bagh, and said, "I would say that such places of historical and heritage importance are being reduced to theme parks. This trend has been going on for the last five to seven years. Jallianwala Bagh was the beginning of the end of British rule in India. Instead of reducing it to a theme park by putting statues, the focus should have been on things like documentation and interpretation centre."

18. Article 50 specifically states that the State shall take steps to separate the judiciary from the executive in the public service of the State. This is required for the protection of the independence of the judiciary. The measures like giving the post of Governor and Rajya Sabha membership on the nomination to those just retired from the high position of Chief Justice of India will have a fatal effect on independence and dent the credibility of this esteemed institution. The executive is luring justice with post-retirement positions.


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