Essay on The Indian Demand for Fundamental Rights

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The idea of incorporating a list of fundamental rights in a new Constitution of India had excited the imagination of almost all political thinkers and constitutionalists in India from the time the idea of the transfer of power from Britain to Indian hands had taken shape. The American Bill of Rights had a tremendous impact on Indian thinking on this subject.

The Indian National Congress, the Liberals, moderates of all shades and the religious minorities like the Muslims, the Christians and the Sikhs, all considered it not only desirable but essential, both for the protection of the rights of minorities and for infusing confidence in the majority community.

The British Government, however, never agreed with this idea and, therefore, none of the Constitution Acts passed by the British Parliament contained any fundamental rights.

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The absence of guaranteed fundamental rights showed how free the Government of India was to do whatever it liked however illegal it was. During the war years, civil liberties lost all their meaning in India and the Courts including the Federal Court of India found it impossible to safeguard them. A series of Ordinances by the Governor-General replaced legislative enactments in this field.

Special courts were set up to try persons for all types of political activities. Such courts ignored even the provisions of the Code of Criminal Procedure. Their decisions were placed beyond any review by High Courts.

When the Federal Court declared the Ordinance which established these courts invalid, thereby rendering the imprisonment of thousands of persons illegal, the Governor-General promulgated another Ordinance in identical terms the very next day! Hundreds of cases were brought before the various High Courts seeking protection from wanton conduct on the part of the executive, but the courts could not help, for there was no constitutional guarantee under which they could act.

A decade of the working of the Constitution Act of 1935 amply demonstrated the imperative necessity of incorporating a list of fundamental rights in the Constitution of independent India.

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As a result, the British Cabinet Mission agreed upon the necessity of the incorporation of a separate chapter of fundamental rights in the future Constitution of India.

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