Short essay on the Attitude of the Constituent Assembly of India

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When the Constituent Assembly met for the first time in 1946, no member apposed the idea of a chapter on fundamental rights as an integral part of the Constitution. In fact, it was unreservedly supported by all sections of opinion in the Assembly. Over the Special Committee appointed for the purpose, Sardar Patel presided and it included prominent members of the various minority communities.

The Committee made a detailed study of the whole problem and recommended a number of measures. On the basis of this report, the Drafting Committee of the Constituent Assembly prepared the provisions on Fundamental Rights as embodied in the Draft Constitution.

Even a rapid glance over the two chapters of the Constitution – Fundamental Rights and Directive Principles – will satisfy any impartial observer that the one desire that was dominant in the framers of the Constitution was for the rapid modernisation of the country’s political, social and economic institutions.

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That desire has found its expressions in the chapter on Fundamental Rights along with that on Directive Principles. In this regard, they were primarily guided by the ideals of the American and French Revolutions.

Intellectually, the leaders of contemporary India are the children of the West, that region of the world where modernism had its birth and growth. Hence it was no wonder that in the Constitution they framed, an important place was given to these rights with a view to modernising their political, social and economic institutions.

The rights which were thus selected fell broadly into two categories public and private but both has the same purpose in view, namely, to put an end to arbitrary rule. Among the public or political rights were the right often to choose their rulers, the right to hold them responsible for their conduct, the right to a share in law-making and the right to bear arms.

Among the private rights were the right to personal freedom, the right to freedom of religious belief, the right to thought and expression, the right to equality and to the possession and use of property. Political thinkers of the age gave al philosophical explanation for these rights being regarded as fundamental.

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Assuming that happiness is the goal of human life, they pointed out, that man had, independently of his government, a right to the enjoyment of all those conditions which are essential for the pursuit of happiness.

To such conditions, the term ‘Right’ was applied and this meaning of Right has, on the whole, come to stay although political thinkers of more recent times refer to the goal of human life as the development of personality.

From their point of view, rights are those conditions which a person should possess if he is to develop his personality and become the best that he is capable of becoming. The two views do not however make much of a difference so far as enunciation of fundamental rights is concerned.

By about the beginning of the nineteenth century, philosophers as well as statesmen were able to evolve a formula of fundamental rights and those who framed new constitutions in the subsequent period had not much difficulty in selecting the rights to be safeguarded as fundamental for incorporation in their own constitution.

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The fathers of the Indian Constitution were, therefore, in a happy position to examine the experience of a variety of constitutions from different parts of the world. Of these, the Bill of Rights of the American Constitution, the French Declaration of the Rights of Man and the Irish Constitution of 1935 all of the era preceding the Second World War were the most important which influenced them.

Among the post-war constitutions, those of Japan (which was American-inspired) and Burma Present Myanmar (which had many problems similar to those of India) were the two which attracted them most. There was also the influence of the Universal Human Rights Charter which was almost at its final stage of adoption by the United Nations.

It must be emphasised, however, that the Indian Constitution-makers were not content with merely borrowing from experience abroad. They were profoundly influenced in the selection of these rights by at least three other factors peculiar to the situation in India.

First, there were the special disabilities from which they suffered during the British rule, the disabilities which were similar to those to which the peoples of the West were subject in the days of despotism, but with the added circumstance of alien domination. The second was the institution of caste which was the dominant feature of the Indian social system as a consequence of which a large section of the people came to be treated as “Untouchables”.

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The third was the existence of a number of religious, linguistic and racial minorities in the country whose cultural rights had to be safeguarded. Some of the rights included in the Constitution, therefore, owe their origin to one or the other of these three factors.

The real problem that confronted the framers, however, was how to limit their selection of rights to certain categories only. What rights were fundamental and what were not, and why? If the rights of life, liberty and property were fundamental, what about right to employment and education? Has not the traditional concept of fundamental rights in its individualistic setting undergone a change in the modern era of the welfare State?

The framers had no doubt about the answers to these questions. They were quite conscious of the change in the character of the modern State. They knew that the age of the American Bill of Rights which believed in the “perfectibility of man and the malignancy of government” had gone for ever. And yet, it was a task of utmost difficulty.

This was because the State in India was not yet in a position to guarantee the right to employment or education. It was a matter of physical impossibility, not the lack of will. Hence, they divided these rights into two categories, justiciable and non-justiciable.

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Justiciable rights are those which can be enforced by a court of law. Part III of the Constitution which is entitled “Fundamental Rights” contains justiciable rights like the right to life, liberty and property.

Part IV, “The Directive Principles of State Policy”, contains non­justiciable rights such as right to employment and education. The citizen has no judicial remedy if he is denied the enjoyment of these rights.

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