History of introduction of Fundamental Rights in Indian Constitution
The Fundamental Rights are considered as one of the integral part of Indian Constitution. The Fundamental Rights are defined as the basic human freedoms which every individual has a right to enjoy for a proper and harmonious development of personality. Although many rights are considered as human rights a specific legal test is used by courts to determine the limitations which can be imposed on them. These rights find their origin in many places such as England Bill of Rights, United States Bill of Rights and France Declaration of Bill of Rights of Man.
The framing of Indian Constitution can be best known by browsing transcripts of Constituent Assembly debate. The Constituent Assembly was composed of members elected from various British Indian Provinces and nominated by the princely states.
The framers if Indian Constitution had three things in mind – ensuring unity, democracy and creating social revolution. The Constitution of India took nearly three years in its formation and finally came into force on 26th January 1950.
The biggest challenge before the Constituent Assembly was to evolve a document that would address the diversity amongst the population, create accountable governance and an independent republic. The development of fundamental human rights in India was due to exposure of students to the ideas of democracy, working of parliamentary democracy and British political parties and was also inspired by the:-
• England Bill of Rights
• Us Bill of Rights
• France Declaration of the Rights of Man and
• Development of Irish Constitution.
The inclusion of a set of Fundamental Rights had its genesis in the forces that operated in the national struggle during British rule. Ms. Annie Besant described the Constitution of India Bill as ‘home rule bill’ in 1985. This bill envisaged for India a constitution guaranteeing to every of her citizen freedom of expression , inviolability of ones house, right to property, quality before law and in regard to public offences right to present claims, petition and complains and rights to personal liberty. The Indian National Congress at its Bombay session in August 1918 demanded the inclusion of declaration of rights of the people of India as the British citizens in the new Government of India Act. The Declaration Included amongst other things guarantees in regard to equality before the law, protection in respect to liberty, life and property, freedom of speech and press and right of association. In its December 1918 session the Indian National Congress passed another resolution demanding for immediate repeal of all the laws, regulations and ordinances restricting all the laws, regulations and ordinances restricting the free discussion of political questions and conferring to the executive the power to arrest, detain or arrest any British subject in India outside the process o f ordinary civil or criminal law. The Common Wealth of India Bill finalized by the National Convention of 1925 embodied a specific declaration of rights. The resolution passed by Indian National Congress in 1927 at its Madras Session lay down that the declaration of Fundamental Rights should be the basis of future Constitution of India. The problems faced by the minorities in India further strengthened the argument.
The Nehru Committee observed that the first care should be to have Fundamental Rights guaranteed in such a manner which will not permit its withdrawal under any circumstances. The Indian Statutory Commission refused to enumerate and guarantee the demand of Fundamental Rights in the Constitution Act. Their refusal was based on Simons Commission argument that abstract definition of such rights is useless unless there existed the will and means to make them effective. The Indian National Congress at its Karachi session in 1931 again demanded for a written guarantee for Fundamental Rights in any future Constitutional setup in India. This demand was also emphasized at the round table conference at London. A memorandum circulated by the Mahatma Gandhi at the second session of round table conference demanded that the new constitution should include a guarantee to the communities concerned to the protection of their cultures, language, scripts, profession, education and practice of religion and religious endowments and protect personal laws and protection of other rights of minority communities. The Joint Select Committee of the British Parliament did not accept the demand for the constitutional guarantee of Fundamental Rights to British subjects in India. The Committee observed that:-
….there are also strong practical arguments against the proposal which may be put in the form of a dilemma: for either the declaration of rights is of so abstract a nature that it has no legal effect of any kind or its legal effect will be to impose an embarrassing restrictions on the powers of the legislatures and to create a grave risk that a large number of laws will be declared invalid or inconsistent with one or other of the rights so declared….There is this further objection that the state has made it abundantly clear that no declaration of fundamental rights is to apply to state territories and it would be anomalous if such a declaration had legal force in part only of the area of the federation.
The committee conceded that there were some legal principles which could approximately be incorporated in the new constitution. Accordingly sections 295, 297-300 of Government of India Act 1935 conferred certain rights and forms of protection on British subjects in India.
By the Objective Resolution adopted on January 22, 1947 the constituent assembly solemnly pledged itself to draw up for future governance a constitution wherein “shall be guaranteed and secure to all the people of India justice, social, economical and political, equality of status, of opportunity and before the law : freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality” and wherein adequate safeguards would be provided for minorities, backward and tribal areas and depressed and other classes. Two days after the adoption of the resolution the assembly elected Advisory Committee for reporting on minorities fundamental rights and on the tribal and excluded areas. The advisory committee in turn constituted on Feb27, 1947 five sub-committees which would deal with fundamental rights.
The sub committee on Fundamental Rights at its first meeting on February 27, 1942 had before it proposal of B.N.Rau to divide Fundamental Rights into two classes i.e. justifiable and non justifiable.
An important question that faced the sub committee was that of distributing such rights between the Provincial, the Group and the Union Constitution. In the early sdtages of its deliberation the sub committee proceeded on the assumption of this distribution and adopted certain rights as having reference only to union and certain rights as having reference both to the union and to the constitutional units. However later it was felt that if Fundamental Rights differed from group to group and from unit to unit or were for that reason not uniformly enforceable, it was felt the Fundamental Rights of citizens of the union had no value. This reorganization leads to the realization that certain Fundamental Rights must be guaranteed to every resident. The sub committee recommended that all the rights incorporated must be binding upon all the authorities whether of the union or of the units. This was thought to be achieved by providing definition in the first clause. The expression the state included the legislature, the government of the union and the units of all local or other authorities within the territories of the union that the law of union included any law made by the union legislature and any existing Indian law as in force within the union or any part thereof.
The sub committee fully discussed various drafts submitted by its members and others before formulating the list of Fundamental Rights. Dr. Ambedkar pointed out that the rights incorporated in the draft were borrowed from constitution of various countries where the conditions are more or less analogous to those existing in India.
The draft submitted on April 3, 1947 was circulated to its members with the explanatory notes on various clauses. The clauses contained in the draft report were thereafter discussed in the sub committee in the light of the comments offered by the members and the final report was submitted to the chairman of the advisory committee on April 16, 1947. Three days later the sub committee on the minority examined the draft clauses prepared by the fundamental rights sub committee and reported on the subject of such rights from the point of view of the minorities. The advisory committee deliberated on the recommendations made by the two sub committee and accepted the recommendations for
(1) Classification of rights into justifiable or non justifiable.
(2) Certain rights being guaranteed to all persons and certain other only to citizens
(3) All such rights being made uniformly applicable to the union and the units.
The committee also accepted the drafts of clauses 1 and 2 – the former providing the definition of the state, the unit and the law of the union and latter for the laws or usages inconsistent with the fundamental rights being void in the form recommended by the sub committee also the word constitution was replaced by the word this part of the constitution. The advisory committee incorporated these recommendations in its interim report to the constituent assembly submitted on April 23, 1947. The interim report dealt only with justifiable rights i.e fundamental rights. Later on August 25, 1947 the advisory committee submitted a supplementary report mainly dealing with non-justifiable rights i.e. the Directive Principles of State Policy or the Fundamental Principles of Governance. A notable development took place on 10 December 1948 when the United Nations General Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions.
The various stages through which the various clauses on fundamental rights passed were similar to other parts of the constitution. Firstly- the constitutional adviser prepared a draft embodying a decision of the constituent assembly. This draft was considered exhaustively and in detail by the drafting committee, which prepared a revised draft and published it in February 1948. The revised draft was then widely circulated. The comments and suggestions received from all quarters were again considered by the drafting committee and in light of these the committee proposed certain amendments. Discussions in constituent assembly of the draft provisions took place in November and December 1948 and August, September and October 1949. During these meetings the committee considered the various suggestions for amendment made on behalf of Drafting Committee as well as those proposed by the individual members of the assembly. The provisions as passed by the assembly were again scrutinized by the Drafting Committee and incorporated by the drafting changes wherever necessary in the revised draft constitution. The revised draft was again placed before the assembly at its final session held in November 1949.
The fundamental rights were included in the First Draft Constitution (February 1948), the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November 1949) prepared by the Drafting Committee.
The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognized and protected by the State. Some commentators consider the Indian Constitution to be an extremely lengthy document that goes into excessive details about the structure and working of the government machinery. Most of these rights are enforceable against the State by way of their language, while some others are directed both against the State and private actors. The most important feature however is that the fundamental rights gave the higher judiciary a clear set of criteria to regulate relations between citizens and the government (i.e. ‘vertical application of rights’) as well as among citizens themselves (i.e. ‘horizontal application of rights’). Furthermore, Indian Courts have interpreted these rights not only in a ‘negative’ dimension (i.e. in terms of protection against violations) but also in a ‘positive’ dimension (i.e. in terms of entitlements to benefits).
The right to freedom and personal liberty has a number of limiting clauses, and thus has been criticized for failing to check the sanctioning of powers often deemed "excessive" The phrases "security of State", "public order" and "morality" are of wide implication. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation. Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the constitution.
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