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Tag Archives | Constituent Assembly debate

The Prophecies of Reason

Why the constitutional justification for the ban on cow slaughter needs to be revisited

By Madhav Chandavarkar

The Maharashtra Animal Preservation (Amendment) Bill, 1995 was recently passed by President Pranab Mukherjee. It amended the Maharashtra Animal Preservation Act, 1976 to ban the possession and selling of beef. It also extended the ban on cattle slaughter to bulls, bullocks and unproductive cows that could previously be declared fit-for-slaughter. The amendment has resulted in a wide outcry by many against what they perceive to be a majoritarian imposition of Hinduism. They call the amendment an unjust restriction of rights and say it is unconstitutional. This is however, not technically accurate; Article 48 of the Constitution of India, a part of the Directive Principles of State Policy, provides that the “State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.” It is probably surprising to most that the legitimacy of anti-cattle slaughter laws is ostensibly drawn from “modern and scientific lines” but the Constituent Assembly debates on the introduction of Article 48 throw light on this dichotomy.

Article 48 was originally tabled by Seth Govind Das, who intended it to be a part of the Fundamental Rights chapter rather than the Directive Principles. This was however, rejected by the Assembly as fundamental rights were intended to protect the rights of humans rather than animals. Pandit Thakur Dass Bhargava then proposed that it be included in the Directive Principles of State Policy (the Articles in this chapter, though un-enforceable, place a duty on the government to achieve its objectives). Bhargava, Das, and many other speakers justify the inclusion of the Article during the debate but they largely relied on poor reasoning and the religious zealotry of most of the speakers is easily apparent. The dissenting opinions given by the two Muslim speakers stand out in contrast; their pleas that the ambiguity about the religious nature of the Article be removed are grounded in reason and are eerily prescient when read today. I urge all interested parties to themselves read the full debate; it is not overly lengthy and the interjections by the Vice-President, who is the convener of the debate, will elicit smiles from some readers.

The rationale behind Article 48, as provided by Bhargava and his colleagues, is ostensibly economic. Bhargava begins by describing how agricultural production can be increased by measures such as the construction of dams, the usage of machines, and the proper utilization of water. While these seem in line with modern thinking he goes on to state that the most important measure is improving the health of cattle but fails to provide any reason why this is the case. Then, seemingly forgetting his earlier suggestions, Bhargava comes to the conclusion that “the whole agricultural and food problem of this country is nothing but the problem of the improvement of [the] cow and her breed.” He justifies the necessity of the Article by citing statistics about how the cattle population fell drastically between 1940 and 1945 but neglects to mention that this can be attributed to the need for army rations during World War II.

Seth Govind Das, the next speaker, is unapologetic in his primary motivation for tabling the Article; he readily admits that he is a “religious minded person” and has “no respect for those people of the present day society whose attitude towards religion and religious minded people is one of contempt.” However, he does attempt to also justify the Article on cultural and economic grounds. Das argues that India’s ancient history has endowed it with a culture that is impervious to the imposition of new cultures only to contradict himself by stating how this culture is in need of protection. His economic justification mirrors that of Bhargava’s but with slight alterations; Das says that cow milk is essential to removing infant mortality but only substantiates this claim with the unanswered question: “How can they [children] be saved without milk?”

Das and Bhargava were both aware that this amendment would have religious repercussions, and they both resorted to the same argument to circumnavigate them. This was to cite how the ban of cow slaughter by Mughal emperors was an example of how the Muslim community also recognised the necessity of preserving cows. This argument fails to take into account the political expediency of minority rulers acquiescing to the customs of the majority of their populace. Das, in fact, quotes Babur’s instruction to Humayun to “refrain from cow-slaughter to win the hearts of the people of Hindustan” without recognising this expediency.

The speeches of the rest of the supporters of Article 48 degenerate further into impassioned pleas and obvious zealotry, and away from reasoned arguments and logic. Only Professor Saxena acquits himself favourably in this regard, but his argument that Article 48 is needed because half of India’s national income is derived from cattle wealth is woefully outdated.

It is at this stage that the Vice-President allowed dissenting opinions to be voiced, the first of which was that of Mr. Z.H. Lari. Mr. Lari makes it clear that he neither supports nor opposes the Article, and readily admits that Islam only permits the slaughter of cows and does not necessarily require it. His primary concern is the possibility that Bakrid celebrations will be marred by arrests made as a result of this Article. In fact, Lari states that he is in favour of the Article being included as a fundamental right as that would make it clear that the Hindu majority wished to preserve cattle for religious reasons. He makes the valid point that modern and scientific agriculture would mean mechanisation, and not a blanket ban on cattle slaughter. Lari is extremely conciliatory in his language, stating that his motivations are not “anger, malice or resentment” but a “regard for cordial relations between the communities” and a desire to avoid “any misunderstanding between the two communities on this issue”

Syed Muhammad Saiadulla is the last speaker. He begins his stance by accepting and honouring Hindu sentiments regarding the slaughter of cows and states that he would not object if Hindus want to “place this matter in our Constitution from the religious point of view.” However he is wary of an economic justification and predicts that it would “create a suspicion in the minds of many that the ingrained Hindu feeling against cow slaughter is being satisfied by the backdoor.” It is safe to say that this prediction has come true, as many people, wisely or unwisely, have gone past the point of suspicion. Saiadulla then used examples from his home state of Assam to prove that “in order to improve the economic condition of the people…useless cattle should be done away with and better breeds introduced.”

Both Lari and Saiadulla’s requests to clearly state the religious motivations in Article 48 were rejected on the grounds of secularism. It seems that the Assembly’s efforts to avoid favouring one religion have been counterproductive. There is now a Constitutional justification for Hindu fundamentalists to enforce their beliefs on the population that has the cloak of economic reasoning. The Indian economy is now drastically different that the one in 1948 and the need for the prohibition of cattle slaughter must be re-examined. This revision must also include a debate about the liberties of non-Hindus and non-religious Hindus to eat and sell beef or enjoy economic activities of their choice. Bhargava mentions in his speech that he does “not want that due to its [the Article] inclusion in the Fundamental Rights, non-Hindus should complain that they have been forced to accept a certain thing against their will.” However, he follows this by opining that “there will be absolutely no difference if the spirit of the amendment is worked out faithfully, wheresoever this amendment is placed.” It is unclear as to what the spirit of Article 48 actually was and whether it was worked out faithfully, but it is clear that non-Hindus are now complaining that they have been forced to accept a certain thing against their will.

Madhav Chandavarkar is a Research Associate with Takshashila Institution. His Twitter handle is @MadChap88

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Constituent assembly debate on reservation

By Apoorva Tadepalli

The concept of reservation, which was discussed in great detail during the Constituent Assembly debates, is much older than the drafting of the Constitution. The Members of the Assembly, along with many of the minority groups that they represented, were wary of the implications of reserving seats in the Legislative Assembly, claiming that it would serve to exacerbate differences that people felt with one another and increase separatist tendencies. They also identified that promoting reservations, ironically, came with a certain degree of exclusion.

There was exclusion of religion. The motion originally did not apply to many Christian, Sikh or other non-Hindu groups. Lower or backward castes of different religions had to institutionalise themselves into the group “Scheduled Castes” just to be able to express that they had been oppressed and needed representation. There was exclusion of lower caste communities that were less populated than others and had less probability of representation. And finally, there was exclusion of poor people of upper castes.

With this, most Members of the Assembly expressed worry that reservation was not the ideal way of achieving true representation. Even Muslim and Sikh Members knew that it would create a series of sub-castes that would further worsen the relations between and within the existing communities, making it difficult to achieve adequate representation. Further, many believed that trusting the elected representatives, even if they were part of majority communities, was a part of democracy.

The Members of the Assembly also believed that a fundamental part of democracy was the changing nature of the public. This comes through in Vallabhai Patel’s certainty that social justice would be seen in democracy’s natural course, without the need for political intervention, which is apparent when he says, “What brought about the abolition of slavery? Was it safeguards granted to them by anyone? No, it was the awakened conscience of the various countries.” As with other social evils worldwide, he believed that caste discrimination would eventually become unacceptable in Indian society.

The Members talked about uplifting the backward classes. But the fact that identifying these people was a point of contention shows the ambiguity of the term. Mahavir Tyagi said, “The term Scheduled Castes is a fiction…there are some castes who are depressed, some castes who are poor, some who are untouchables…How is Dr Ambedkar a member of the Scheduled Castes? Is he illiterate? Is he an untouchable? Is he lacking in anything?…I do not believe in the minorities on community basis, but minorities must exist on economic basis.”

This identified the final goal of reservations, which was and is to provide equal opportunities and representation to everyone, irrespective of social status. As Brajeshwar Prasad said, the Scheduled Castes’ “downtrodden nature is not political, it is cultural and economic and educational.” Clearly this is an economic problem in our country, as shown by Tyagi’s further assertion: that it was not the scheduled castes that needed special provisions “but “cobblers, washermen, and similar classes,” along with farmers, who did not enjoy this very urban provision. Many identified it as an economic problem in our country, including Dr P S Deshmukh, who said, “there are millions of people in our country whose obstacles are in no way different from those of the Scheduled Castes; and I wish to leave room for such people.”

Reservations were finally agreed upon even by those who were uncomfortable with it, because it was initially only supposed to be in place for ten years, and because the reasons expressed for the need for them could not be disputed – it could not be denied that lower castes and minorities had faced appalling atrocities from other communities in their history, and needed justice. However, no distinction was made between social and economic backwardness in the drafting of the articles. It may have just been easier to distinguish the latter from the former because of the significant overlap. It is also important to note that the Poona Pact had already taken place by this point and that reservations in the Assembly had been acknowledged as preferable to separate electorates, which would have been even more dangerous for the notion of equality.

Interestingly, it was also brought up during the debates that the sense of justice with which Indians were judging caste discrimination, was a product of British rule, and that the myriad of communities and their relations had been reduced to the British-introduced majority-minority binary. This binary made the extent of discrimination all the more apparent.

The fact that reserving seats in the Legislature has not eradicated the social evil that is the caste system supports the contention that social evils and economic inequality cannot be solved with political changes. What the Members of the Assembly fundamentally wanted was to provide some form of equality. There are more appropriate ways to achieve the same goals as political representation without the use of political representation. This is particularly desirable in the current context, wherein placements in government enterprises are less valuable than they were fifty years ago. Identifying people on the basis of income level or standard of living, and providing them with education, land, employment or subsidies, as many contemporary programs do, offers more empowerment to individuals than does political representation. Providing backward castes with “functional capabilities”, as Amartya Sen defines them, brings about a more sustainable approach to real progress and equality.

Apoorva Tadepalli is an intern at the Takshashila Institution. 

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Constituent assembly debate on Directive Principles of State Policy

by Surabhi Rao

Why were directives that were not enforceable included in the Constitution? Do these continue to remain mere ideals without form?

We do not want merely to lay down a mechanism to enable people to come and capture power.  The Constitution also wishes to lay down an ideal before those who would be forming the government.  That ideal is of economic democracy. – B.R. Ambedkar

India is at a point where she has to achieve economic development, to be at par with the rest of the world, and at the same time, ensure that social and economic justice is also achieved in the country. Thus it is relevant to discuss the Directive Principles of State Policy (DPSPs) provided for in the Indian Constitution in Part IV (Articles 36-51) which lay down principles for the achievement of this social and economic justice. The DPSPs along with the Preamble and the Fundamental Rights can be said to be the soul of the Indian Constitution.

The DPSPs are merely guidelines for the establishment of a social order guided by social and economic justice, freedom, and liberty. The Articles include matters relating to right to work, right to education, the uniform civil code, and other principles of good governance that the State must take note of.

The august Constituent Assembly recognised the distinction between government and politics, and principles of good governance, even as far back as the 1940s while drafting the Constitution. Article 37 specifically mentions that DPSPs, though not enforceable through any court of law are “fundamental” to the governance of the country. It is interesting to see why the drafters would include something in the Constitution that is not enforceable.

There were apprehensions even at the time of drafting about how useful the DPSPs would actually be. Prof. K. T. Shah felt that by not making the Directive Principles justiciable, they were making merely pious wishes, and the intention of the Directives would never come into force.

But Dr. B.R. Ambedkar called the DPSPs ‘Instruments of Instructions’.  He referred to them as policies and principles to achieve economic democracy, which is an ever changing concept and is dependent on the times and circumstances, how it is achieved, and it would be wrong to lay down a fixed concept of it. Further, the State would have to answer to the people, and thus these Directive Principles would not be mere pious declarations.

Another reason, scholars say, why the Directive Principles were made unenforceable was because India did not possess the adequate resources to enforce all the DPSPs, and thus, it was left to the future Governments to follow them voluntarily.

Legally speaking, when the issue of the DPSPs has come up before the courts, the courts have stressed upon the importance of them time and again.

They have repeatedly read the DPSPs with the Fundamental Rights. Thus, the right to education mentioned in Article 41 has been held to be a part of Article 21, in turn making it a fundamental right. In a few cases, the Courts have even issued directives to the government to implement the DPSPs.

This leads to the question if this indeed was the intention of the Constitutional framers? If the DPSPs are being enforced by the Courts through Directives, could they still be said to be voluntary?  In today’s context, the implementation of the DPSPs should impose a financial burden on the government, and on the finite resources of the nation. For example, in many states the Right to Education was imposed mandatorily, even though the state lacked the resources leading to the result that the initiative did not succeed.

It is also to be noted that it has been 64 years since the adoption of the Constitution, and the relevance of the implementation of the DPSPs then was not the same as it is now. The ideals of the welfare state cannot be an unfulfilled principle.

Article 41 directs the State to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. This Article is an exemplification of social policy and security that every person ought to have. There have been various schemes by the government like the NREGA, integrated rural development schemes that have been enacted for the purpose of social and economic justice. However, the success of these schemes is dismal. The actual benefits derived to the people are marginal. Other initiatives taken like the Public Distribution System (PDS) have also not borne the desired fruits. The right to health under Article 46 has also not received the required attention. But there also exist Articles which exist merely because they have been there since time immemorial. Among these include the State’s duty to protect animal husbandry, and participation of workers in the management of industries.

A review of the DPSPs might be of use to organize, and to segregate them. Priority should be accorded to which Directive Principle is of greater importance. Moreover, the decision of prioritizing these principles should explicitly be decided by the Union and State governments. In 2002, it was recommended by the National Commission on the Working of the Constitution to reword Part IV to “Directive Principles of State Policy and Action”, to ensure that the DPSPs are implemented, and not remain a mere letter of the law.

The main problem with the Directive Principles is that even if were to be justiciable, who would it be enforced against? It cannot be against any individual, or even the State. The NCRWC has recommended the setting up of a body to oversee the schemes and the initiatives undertaken for social and economic welfare.

Making the DPSPs justiciable would result in complete restriction of the government’s freedom to legislate, and it would be a scenario of ‘one size fits all’ which is not what the drafters intended. The driving force behind the DPSPs is public opinion, and the necessity of the measure. Thus, middle ground can be found wherein welfare schemes are introduced voluntarily by the government, but a body set up oversees the successful implementation of these schemes, which ensures greater social and economic justice.

Surabhi Rao 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.

Ruchita Sharma, Apoorva Tadepalli and Surabhi Rao are the contributors for this series.

The previous posts are here: Post1Post2, Post3.

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Constituent Assembly debate on Freedom of Religion

By Apoorva Tadepalli

The fears of the constituent assembly members regarding politicisation of religion have come true.

In its young life, India has broken the norms of democracy in many ways; its “secularism” is just one of them. In studying the debates of the Constituent Assembly around the freedom of expression of religion, it is useful to go back to what the framers of our Constitution meant when they defined it, as well as appreciate how accurately they predicted the current complex state of secularism in India.

The most important point that every member of the Constituent Assembly stressed on was that secularism to India must mean a separation of government and religion, but not an absence of spirituality. H V Kamat said, “a secular state [was] neither a godless state nor an anti-religious state”. While they acknowledged the danger of allowing religion to be a part of governance, they also recognized the need all communities in their newfound republic would have for representation.

Two details were debated in the process of putting this broad-minded proposition of secularism into the Constitution. The first was whether the government should be allowed to “prevent” secular activity done in the name of religion, in addition to “restrict” it. The second was whether citizens should have a right to “propagate” their religion in addition to practicing it.

As pointed out in the debate, temples and churches were known even at the time to have ways of collecting large sums of money, getting tax exemptions by identity of being religious institutions, and showing the potential for corruption. The speakers who argued for the State’s right to “prevent” secular activity done in the name of religion were afraid that religion would become politicized and have more of a role to play in propaganda than in inward spiritualism. This dichotomy between a more communal, institutionalized religion and an inward, personal religion, which is a prominent narrative even today, was identified then and debated upon in great detail.

One point that arose from the appeal to prevent secular activity was the possibility that it could restrict citizens from following the personal laws of their religion. These personal laws are very much community based and deal with issues like property distribution, which is not spiritual, but are nevertheless deeply rooted cultural practices.

The worry that was constantly repeated in the court was that allowing some communities to operate with laws of their own would exacerbate differences between people who were supposed to identify as citizens of the same country. This is the real value of the personal laws over civil code discussion, and the reason it is still relevant after sixty years. The process of drafting our Constitution brought out the same regional-national identity crises we face today as Indian citizens, members of communities and practitioners of faith.

In discussing whether the right to “propagation” of religion should be included in the Constitution, K T Shah and others implored that the word be removed because it implied external motives, unlike the practicing of “religion in the widest sense…as the highest value of spirit”. L. Krishnaswami Bharati’s response to that, however, was that, “all religions have one objective and if it is properly understood by the masses, they will come to know that all religions are one and the same. It is all God, though under different names. Therefore this word ought to be there.” Mohammad Ismail Sahib agreed, saying that problems between religions did not arise because of practice or propagation, but of misunderstanding, and only when people were allowed to practice and propagate would there be a chance for others to understand them.

All these points show the members to be incredibly broad-minded and far ahead of their time. However, the one unarguable point in this whole debate was that propagation of one’s religion had been a basic right of every human being “from the beginning of time”. Clearly, for the writers of a Constitution for a country which was younger than all its cultures and values, deciding the “rights” of citizens who already identified with other, older communities, was not an easy task. Still, it is remarkable to note the intimate yet communal construct of religion these people were trying to create for future generations.

The important corollary to the right to propagate was also brought up – that propagation should not mean the decrying of other religions. Shri K. Santhanam suggested that “the article [was] not so much an article on religious freedom, but an article on religious toleration.” Today’s Vishwa Hindu Parishad’s teachings, which are disseminated to thousands of youth and include whole modules focused solely on the dangers of Islam, are only one example of what the framers of the Constitution were clearly afraid of.

The important undercurrent in these lengthy debates was the danger that protecting one community’s freedom of religion might violate other freedoms of another community or the general public. This was why, towards the end of the debate, K. Santhanam reminded the court that whatever rights were granted or not granted to the citizens of India, they would at the end of the day be determined by what was best for “public order, morality and health”, and that social practices would change over time, changing public interest also. “The full implications of [public order, health and morality]…will grow with the growing social and moral conscience of the people. I do not know if for a considerable period of time the people of India will think that purdah is consistent with the health of the people. Similarly, there are many institutions of Hindu religion which the future conscience of the Hindu community will consider as inconsistent with morality.”

Once again, Indian society has shown its “public health” to depend on exactly the kind of things the Assembly hoped would not define us. As we can see by the ban on Wendy Doniger’s book “The Hindus: An Alternative History”, which was taken to court by the Shiksha Bachao Aandolan Samiti, what some members of the Hindu community argue is their right to freedom of religion blatantly violates another basic fundamental right. The change that K. Santhanam assumed would happen is not doing so to the extent we would hope. The politicization of religion they so idealistically denounced is strong and particularly relevant today.

Apoorva Tadepalli 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.

Ruchita Sharma and Apoorva Tadepalli are the contributors for this series.

The previous posts are here: Post1, Post2.

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Constituent Assembly debate on Fundamental Rights

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.

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Constituent Assembly debate on alcohol consumption

The principles of liberty dictate that a man, in his capacity, without hurting the rights of other, is privileged to make his choices himself, without any outside coercion.

Consumption of alcohol was as debateable while forming the constitution as it is now. People drink to celebrate, to relax, to repress their thoughts and so on. Although it has its pros and cons, alcohol is still looked down upon in the country. The matter of whether ban of “alcohol and other drugs” should be a part of Constitution was discussed, in what can be called a rather heated debate, on November 24, 1948.

It was fascinating to note that the members disapproved of alcohol for the cause of effects it has on individuals themselves. Although Shri B. G. Kher (then Bombay General) while speaking for ban of alcohol, mentioned the gratitude of families whose members before the ban ‘used to drink them to death’, the spotlight maintained on the long term affects of alcohol on the consumer himself.

The motion was to amend Art 38 of draft Constitution which read, “shall endeavour to bring about prohibition of the consumption of intoxicating drinks and drugs which are injurious to health except for medicinal purposes”. Shri BH Khardekar (Kolhapur) introduced the motion stating that the arguments put forth to pass the ban were rather flimsy. He explained in great detail how Gandhism would treat this issue and that it’s about hating the sin and not the sinner. Khardekar was attempting to draw the distinction between the inward and outward approach of Gandhism and called prohibition as the outward approach. He said Gandhi being a Gita-student professed that although there is one truth it is of grave importance that everyone shapes their own path to it. It can be deduced that he proposed that it’s up to the will of people to decide. The government cannot spoon feed its way to public welfare.

The principles of liberty dictate that a man, in his capacity, without hurting the rights of other, is privileged to make his choices himself, without any outside coercion. In the wider sense Khardekar was pointing at the welfare nature of state and believed it created unnecessary restriction on free will and liberties. He quoted GB Shaw, “examine, test and then accept” and criticised the ban saying that citizens are not cattle to be hoarded around. The welfare state looks for an overall development of the citizens and increasing the number of restriction and limiting the scope of free will hinder that development.

No matter how strong and ‘futuristic’ his views were, Khardekar failed to make a mark on the assembly. His point was singlehandedly flogged by Shri Jaipal Singh (then Bihar General) who called alcohol to be a vicious element. He contended that alcohol is neither required for religious purpose nor is it the only mean of recreation. He further added that government sometimes, on the course to protect the welfare of individual, has to limit their rights so that the code of civil society is maintained.

A very intriguing point was that before the British invasion these so called vicious-elements were alien to the population and so it only seemed fair that with the departure of British, these things should also leave the country. Again, intriguing but futile. The argument was based on the notion that items like whiskey, beer, wine-the bottled liquour- was introduced by British; the assembly did not consider materials like bhang that prevailed in the country as “intoxicating drink which are injurious to health”.

Further, economically the country was at such a point that giving absolute liberties on certain issues will only result in the downfall of the societical order. Not to ignore the crimes that follow after indulging in such activities. Although, it was marked out that only a minuscule of the entire drinking community indulges in such activities.

It was observed that while imposing the ban might be seen to be a little authoritarian but the consequences of not taking any action appeared far abhorrent. The motion was hence passed. Presently it is part of DPSPs under article 47.

Now the fact that ban on alcohol consumption was introduced as a part of Directive Principle of State Policy speaks a lot about the intention of the legislature. Article 37 clearly states that though DPSP cannot be enforced in the court of law, they are, nonetheless, fundamental in governance. It means although the constitution imposes a ban on alcohol consumption, its implementation is such that one cannot enforce it in the court of law. Following which the government took various steps to clearly state its intention; the Karnataka Prohibition Act 1962, Bombay Prohibition Act 1949 and other such acts are individually introduced by respective state governments. These acts not only define the age limit but also the consumption limits of alcohol. They also state the procedure of acquiring liquor licence, it shall be noted that no person can sell, import or manufacture alcohol without the prior permission on concerned authority. And to show its concern on the matter, the Government via the Cable Television Network (Regulation) Amendment Bill, 2000, completely prohibits cigarette and alcohol advertisements.

While few states like Gujarat, Manipur, Mizoram and Nagaland have a complete ban on consumption altogether, some States interpret Article 47 in the manner to not ban the but merely regulate it; The Tamil Nadu State Marketing Corporation (TASMAC) is owned and operated by the Government of Tamil Nadu, which has a monopoly over wholesale and retail vending of alcoholic beverages in the state.

It appears to be a “safe-step” on the part of the legislature to incorporate these provisions. Merely to avoid handling the negative consequence that maybe created by a very small percentage, this provision ceases the right of choice altogether. And the fact that alcohol is still present in the country, available at the mercy of Government, it can very well be questioned that whether the intention of legislature was truly public good? As rightly put by Benjamin Franklin, “any society that gives up a little liberty to gain a little security deserves nothing and will end up losing both” and the more liberties are scarified, the less would be the development of society.

Ruchita Sharma is an intern at the Takshashila Institution.

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