Constitutional Journey of the Fundamental Rights
As we celebrate the 70th Republic day, let us remind ourselves that the constitution of India went beyond the pledge to create a sovereign and democratic republic. The framers of the Indian constitution had a larger goal of ushering a social revolution and creating a fundamental change in the structure of Indian society. The core commitment to social revolution lies in Part III and Part IV of the constitution dealing with fundamental rights and directive principles of state policy. The biographer of the Indian constitution, Granville Austin calls them the ‘Conscience of the Constitution.’
The roots of the Fundamental rights and the directive principles lie in the Freedom Struggle. The earliest attempt by Indians to draft the constitution was the ‘Constitution of India Bill-1895’ or the Swaraj Bill (author unknown). The bill defined the territorial applicability to entire British India, Princely states, and Burma. Although there was no separate section on the fundamental rights, the bill included the right to speech, freedom of expression, equality before the law, right to vote, right to property, and right to education (free education, compulsory at the primary level).
During the early phase of the freedom movement in the 20th century, demands were made for granting civil, political, and socio-economic rights to Indians. But British efforts were limited to administrative reforms and giving greater political representations to Indians. The Congress resolution of 1917 demanded civil rights and equality of status with Englishmen in India. In 1925, `The Commonwealth of India Bill’ was drafted by the members of the National Convention-1924 (Mrs. Annie Besent as Chairperson). It was a major improvement from the 1895 Bill, with a separate section on the fundamental rights including the right to life, property, free elementary education (enforceable as soon as necessary arrangements are made), freedom of assembly, equality before the law, and gender equality. Most of these rights were not absolute but came with riders like the right to education. The bill was presented to the British parliament but was never passed.
The most significant document which paved the way for the future Indian constitution was the Nehru Report (Anti Separatist Manifesto), written by a committee chaired by Motilal Nehru as a protest against the Simon Commission. Its chapter on fundamental rights has continuity with the Commonwealth of India Bill, with some additions like- nondiscriminatory clause in matters of admission into any educational institutions, strict religious neutrality by the state, right to not participate in religious affairs, and the right to bear arms. For the first time, Nehru Report called for Universal adult suffrage to all citizens above age 21. The report attached primacy to these rights so that it will not be withdrawn under any circumstances. Austin identifies Nehru Report as a precursor to the final Indian constitution, with ten subclauses of the report included in the fundamental rights and three in the directive principles.
At the end of the World War-II, it was evident that India may be given dominion status or independence soon. The work on the Constitution was revived by many individuals. The Communist Party of India (CPI) founder M N Roy wrote a ‘Constitution of Free India’ in 1944. In the first chapter on the declaration of rights and fundamental principles has an uncanny resemblance to the declaration of independence of USA. Regarding government, he states that the ‘sovereignty of the nation is derived from the people and people have the inalienable right to overthrow the political organizations.’ Along with civil rights, Roy emphasized collective ownership of the state and its assets by the people, and state control of Industries. A year later, in 1945, Tej Bahadur Sapru (who was also in drafting the Commonwealth of India Bill), wrote the Sapru Committee Report. Apart from the fundamental rights mentioned earlier, Sapru Report made special emphasis on the minority rights and called for the creation of minority commission to protect their interests. It was also the first one distinguish between justiciable and nonjusticiable rights.
When the Constituent Assembly was being formed, Prof. Benegal Narasing Rau was appointed as constitutional advisor to the Assembly. Rau, the forgotten architect of the Indian constitution, did the primary thinking and writing of several drafts of the constitution. He prepared two notes on the subject of fundamental rights in Sept 1946. In these notes, he reviews the fundamental rights in the major countries like USA, USSR, Swiss, and German, and the different challenges they faced in protecting them. He divides the rights into justiciable and non-justiciable rights and calls the latter as Fundamental Principles of State Policy (FPSP), which is a precursor to the directive principles of state policy. In the FPSP, the Right to work, Right to education, and Social security, Protection of educational and economic interests of the weaker sections, the rising level of nutrition and public health, and protection of language, culture, and scripts of local communities were included.
In Dec 1946, Prof. K T Shah sent a comprehensive note to the President of the Assembly on the fundamental rights and obligations of the state. Shah’s notes were also inspired by the world constitutions and Indians attempts at writing the constitution. He divides the rights into three parts — (i) Civil rights applicable to all residents enforceable by courts (ii) Political rights exclusive to the citizens of India, and (iii) economic and social rights. Civil rights included right to right to life, right to equality, freedom of movement, Among political rights are right to vote, right to participate in government, along with Freedom of Assembly, of Speech — written or by means of the Press, of Association, Movement etc. These rights were not absolute or unconditional. Among the economic and social right comes the right to work, good education, good health care etc which are indispensable for the full development of human personality.
The Constituent Assembly comprising of an eclectic mix of people from all walks of society met for the first time on Dec 9, 1946. In the first session, Nehru outlined the objective resolutions, which envisaged a constitution wherein justice, equality and freedom would be guaranteed to all people and adequate safeguards provided for the minorities and backward classes. The assembly resolved to create an Advisory Committee, under which five subcommittees including Fundamental Rights and Minorities were formed in Feb 1947. It had eminent members like Acharya J B Kripalni, Prof. K T Shah, K M Munshi, Minoo Masani, Rajkumar Amrit Kaur, Alladi Krishnaswami Ayyar, Maulana Azad, and Dr. B R Ambedkar. Smt. Hansa Mehta was added at a later stage. Acharya J B Kripalani- headed this sub-committee.
The members of the sub-committee formulated and came with their proposals, and deliberated on the details, arrived at a consensus on different clauses through voting. There was broad agreement on rights to equality, freedom, culture, education, right to resist exploitation and seek constitutional remedies. Abolition of untouchability, bonded labor, and slavery was specially made to address India’s social realities. Dr. Ambedkar championed minority rights and affirmative action; Rajkumari Amrit Kaur and Hasa Mehta advocated gender equality, women and child rights; and K M Munshi pitched for universal adult suffrage. Eminent lawyer — Alladi Krishnaswamy Iyer cautioned that absolute liberty is a utopian dream, and there is a need for reasonable restrictions on freedoms. It was decided that non-justiciable rights should be moved to the (Directive) principles of state policy. The sub-committee submitted its final report to the Advisory Committee on April 16. The Constituent Assembly discussed on the subcommittee report over several sessions. Different clauses were voted upon, revised or shot down. The drafting of the rights was completed by mid-Dec 1948 and was adopted by the Assembly on Nov 26, 1949.
A day before the adoption of the constitution by the assembly, Ambedkar’s final speech warned of the contradiction between social inequality and political equality: “On the 26th of January 1950, we are going to enter into a life of contradictions. In politics, we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value… We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which is Assembly has to laboriously built up.” If we do not achieve the social revolution envisioned by the framers of the constitution, our social inequality will put our political democracy in peril.
Shivakumar Jolad
With Inputs from:
- The Indian Constitution, Cornerstone of a Nation (1966), Granville Austin, Oxford University Press,
- Historical Constitutions, CADS- Constituent Assembly Debates, Center for Law and Policy Research, Bengaluru, https://cadindia.clpr.org.in/historical_constitutions
- The Framing of India’s Constitution- Select Documents, Vol-II (1967), B Shiva Rao, V. K. N. Menon J. N. Khosla, K V Padmanabha, C, Ganeshan, P N Krishna Mani, The Indian Institute of Public Administration.