Remember, a question of "breach of duty" arises if and only if some duty is statutorily defined in the first place. In the absence legal definition, duty is a delightfully vague idea. No wonder in our system Somebody, Nobody, Everybody and Anybody continue to proliferate leading to deep freeze in governance.
Deep freeze in governance
This deep-freeze is one of the most disturbing development in recent times. What is agitating the collective conscience of some well-meaning citizens of this country is that there is a complete failure of our public servants to discharge their "duties."
And this abdication of responsibility by public servants has been, in my considered opinion, the reason for the 2G spectrum scam. Let me elaborate through something that relates to me professionally.
Sections 224-231 of the Companies Act, 1956 deals with the appointment, qualifications, rights, duties, responsibilities and disqualifications of an Auditor of a company. Simultaneously, section 233 of the Companies Act deals with penalty to an auditor for non-compliance of his duties prescribed under the Companies Act.
Further, The Chartered Accountants' Act 1949 deals with the manner in which an Auditor can be hauled by the Institute of Chartered Accountants of India for violating the code of professional ethics or failing to meet the professional standards expected of them.
All this may be rarely done but the fact of the matter is that a legal benchmark exists. Similarly, The Companies Act is peppered with several provisions prescribing in liberal doses the duties, responsibilities, qualifications and disqualifications to directors of a company along with penal consequences for not discharging the same.
Simultaneously, the revenue or labour laws casts responsibilities on the directors or on specific officers, employers, owners, partners or any such persons to carry out certain duties and prescribes punishment should they fail to do so. In short, most modern statutes are all about rights, duties and responsibilities of various parties.
But is there any duties prescribed by any law or for that matter the Constitution for our ministers including the PM? What are the duties prescribed for our public servants? Crucially what is the punishment for their failure to carry out their duty or responsibilities?
Fatal flaw in our Constitution
The Indian Constitution is considered to be a sublime by experts. Several countries grappling with their internal plurality or diversity have often looked to our Constitution for inspiration.
But decades later there seems to be a fundamental flaw in the design of our Constitution. The words duty and responsibility are conspicuous by their absence. The first instance of prescribing duties to its citizens was in 1976 through Article 51A.
Accordingly, it shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (Note that the National Song is not mentioned for obvious reasons!); to cherish and follow the noble ideals which inspired our national struggle for freedom; to uphold and protect the sovereignty, unity and integrity of India; to defend the country and render national service when called upon to do so and the list goes on with high utopian ideals with no direct penal consequences.
All that is stated under Article 51A is merely a "vision statement" and should there be a violation of say the National Flag one may be held guilty and punished by a separate legislation - the Prevention of Insults to National Honour Act, 1971- but not by the Constitution. Interestingly even this vaguely worded "vision statement" was inserted by the forty-second amendment in 1976 during emergency.
Further according to Article 78, it shall be the duty of the PM to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union. Similarly Article 167 deals with the duty of the chief minister and his duty to communicate to the Governor.
But what about specific duties for a minister? Where are his responsibilities? One is afraid that there is no constitutional obligation specifically cast on any Ministers on these lines.
Of course there is a oath of office for a Minister for the Union who before taking office affirms that he will bear true faith and allegiance to the Constitution of India as by law established, that he will uphold the sovereignty and integrity of India, that he will faithfully and conscientiously discharge his duties as a Minister for the Union and that he will do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will.
Conscientiously discharge his duties? Exactly, but where is the duty prescribed, listed or sequenced for ministers in the first place? Students of law know that a legal position is violated if and only if the legal benchmark is established in the first place. And in the absence of the legal benchmark, whatever may be morally repugnant to us, one cannot be accountable legally.
Consequently, most students of law have come to a conclusion that duties for our public servants is a constitutional imperative at best, poor drafting at worst. The reason for the same is not far to seek. The Constitution of India, let us not forget is a mere rehash of a Government of India Act of 1935, drafted by the British during colonial times.
Being drafted by the British, it obviously did not contain the idea of "Duty" or "Responsibilitiy" for our colonial masters towards us. But what about "Duties" for our elected representatives once we attained independence and declared ourselves as a Sovereign Republic? No wonder, for many, independence represents a transfer of power from White Sahibs to the Brown ones!
At the core of this conundrum is that our Constitution is structured on Social Contract theory that suggests individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the rule of law or to the decision of a majority, in exchange for protection of their fundamental and inalienable rights.
This idea of rights is fundamentally rooted in Greek Philosophy and Roman Law - not on Duty or Dharma which is traditionally an Indian concept. That explains substantially if not wholly why India at 65 has become a country where everyone has well-defined rights but most of us do not have any duty or wherever prescribed it can be held in breach.
This logjam in our functioning - I owe you nothing except that I need to take care that I do not violate your fundamental rights - stems from the lack of a sense of duty. No wonder, the PM and FM have every "Right" to be in power but no "Duty" in preventing the loot of the exchequer in 2G scam.
For some time now civil society has been demanding a Judges Accountability Act. The 2G saga clearly points out that we also need press for another one too - The Public Servants Accountability Act. In the alternative we need to specifically state in our Constitution what we need to expect of our public servants.
In short, civil society may need to legislate Dharma. Not a bad idea after sixty-five years of independence I guess.
As we pay our taxes, the least we need to know is whether the FM is duty bound to protect the revenue, the Defence Minister to defend us and public servants to serve us. And should they fail, how do we punish them.
The experiences of 2G scam have demonstrated that at 65, India can be best described as a Republic without Responsibility; a Democracy without any Duty. In this diffused scenario Everybody, Somebody, Anybody and Nobody with thrive, not you and me.