By Ruchita Sharma
The fundamental rights were framed against the carnage of fundamental wrongs
The responsibility of drafting the Fundamental Rights was on an Advisory committee to the Constituent Assembly, comprising of members like B.R. Ambedkar, Diwan Bahadur, Acharya J. B. Kripalani, Rajkumari Amrit Kaur, K.M. Panikkar, Dr. S. P. Mookerjee, and V. B. Patel.
The committee began discussions while keeping in reference the constitution of Ireland and USA. The biggest issue was dividing the Rights in two groups – justiciable and non-justiciable which was later taken up by the Constituent Assembly itself. Justiciable rights are those which can be enforced in the court of law. It was understood that these rights applied not just to the prevalent scenario but were guidelines to a position where the country as a whole hopes to reach. Right to property, movement and profession throughout the country where the first few rights unanimously accepted by the Advisory Committee.
To stress on importance on each and every word of the constitution, the word ‘citizen’ was changed to ‘person’ with respect to equality of law. The reasoning was simple – a court of law must not differentiate between individual on the basis on their nationality or citizenship.
Reminiscing on the callousness of British Government, the gravity of Right to Freedom was stressed. To this Diwan Bahadur expounded that an independence of nation does directly connote independence of society from untoward activities, because of which even a concept as crucial as freedom must be limited to certain restriction, keeping in mind the welfare of society. But to ensure that this provision doesn’t meddle with the right to livelihood of an individual, the concept of ‘illegal detention’ was introduced.
The intent of the Advisory committee was to provide as much freedom to individuals as it was possible in the light of circumstance of the country. In doing so, they limited a few rights to a certain extent. For instance right of freedom of expression, given its wide ambit, was one of the most controversial rights. To ensure its applicability in positive direction, Dr. Ambedkar explicitly stated that any publication or utterance of slanderous, seditious, obscene or defamatory matter shall be against the law and the Right shall issue no defence.
This clause of preventing sedition is a powerful tool in the hands of government and the points that opposed Dr. Ambedkar have turned out to be a real threat. In March, 2014 a group of students cheering for Pakistan during something as trivial as a cricket match was charged to be seditious. The point here to note, is not what happened but the power given to the authorities to do so. Reckless usage of the sedition clause leads to undermining the State authority.
But what was commendable was that even 60 years ago, the members were such visionaries that they provided freedom to press. This was not only uncommon at that age but also fearless.
However, it was despairing that the issue of rights of women in matters like marriage was initiated by the females in committee. For men who claim reinforce the nation for future, this was a rather lax slip.
The importance of these provisions can be seen by observing that some of these were actually against the law in force but the foundation of Fundamental Rights is so strong that the laws were changed to ensure Fundamental Rights of individuals is upheld.
After discussions in the Advisory Committee, these proposals were then deliberated in the Constituent assembly. The biggest test in front of the committee was defining the borders of Fundamental Rights between justiciable & non-justiciable and the most controversial amongst them were economic rights such as freedom of trade which was proposed to be included as a justiciable fundamental right. The constituent assembly wished to nationalise the key and basic industries. The committee later concluded that free trade directly impinges the rights of various provinces to make laws. Every law needs some safe guard and absolute freedom is not right. Reasonable restrictions as may be necessary in the interest of public must be imposed.
Another controversy arose with Freedom of movement. Though this was granted as a fundamental right, a clause that allowed reasonable restrictions of movement in the interest of general public was inserted. Many provincial representatives urged that each Indian province (state) was like a mini nation and every head must have the power to choose the welfare of its own people before that of another.
Another heated discussion centred on untouchability. Mentioning in the Fundamental Right that untouchability is abolished wouldn’t make it so. Mr Rajan Thakur said that untouchability was a direct consequence of the repulsive caste system and cannot be dealt with unless the caste system is done away with. It was like treating one symptom of a disease and for complete cure the disease must be dealt as a whole.
To ensure that minority is properly looked upon, the rights against discrimination were adopted. The Minorities’ Rights were absolute in nature, these included religion, education and special grants.
Dr Ambedkar said that the responsibility of the legislature is not just to provide fundamental rights but also and rather more importantly ,to safeguard them.
It can be contemplated that the reasoning behind these rights seemed more to differentiate between the governance of India under British rule and as an independent nation-state. Somnath Lahiri was of a peculiar opinion. He voiced that these rights seemed more from the point of view of the policemen than people.
With time these rights have evolved to become the heart of the Constitution. In the Kesavananda Bharati vs State of Kerala Supreme Court recognised this bundle of rights to be the Basic Structure of Indian Constitution. Further it was declared that Parliament via Art 368 was powerless to abrogate these rights in any form.
Fundamental Rights are indeed essential for the growth and development of individual and thus the nation. Following which the Constituent committee and Advisory committee outdid itself in forming a bundle of rights that one way or another reinforces every other right that the constitution confers. These rights have acted as a guarantor of justice, equity and civil freedom. From a broader perspective, fundamental rights are the cornerstone on which the civil society is established.
Ruchita Sharma is an intern at the Takshashila Institution.
This article is part of a series of posts on the constituent assembly debates, meant to highlight the various points of views and negotiations that went into the creation of the Indian Constitution. Each post analyzes the debates on a particular issue.
The previous posts are here: Post1.