Constitutional Law Project

DILDHAR AHAMMED T
1431
Semester IV

Documentary Review: Samvidhaan episode 3

Independent India: Righting Fundamental wrongs wit Fundamental Rights

The documentary Samvidhaan: The Making of the Constitution of India is a ten-part

television mini-series based on the making of the Constitution of India, directed by Shyam
Benegal.

Subsequent to the Independence of the Country, Constituent Assembly had to face new and
serious challenges in drafting a grunt norm for a diverse country like India. A formulation of
new and effective laws for a free India was crucial as every conceivable law in the country
was being rampantly disregarded. Thus the Constitution of India was framed.

The constituent assembly had their first meeting 5 days after the country got Independence.
It was in this session that the constituent assembly began its work on framing the constitution
of the country.
The constitutional advisor, Sir Benegal Narsing Rau was a world renowned constitutional
scholar, who would collate proposals and reports presented in the House into a draft
Constitution. This draft would be then scrutinized by a drafting committee consisting of Sir
Alladi Krishnaswami Ayyar, N Gopalaswami Ayyangar, Dr. B R Ambedkar, K M Munshi,
Sir Syed Muhammad Saadulla, B.L. Mitter and D.P. Khaitan who’s Chairman-elect was Dr
Bhimrao Ambedkar. This committee had to deliberate on the fundamental rights of the
citizens of free India. They had to decide on the number of rights and in what form these
rights would be framed.

The constituent assembly, much before Independence and Partition, in 1947, had set up a
Committee for Fundamental Rights, this committee met for the first time on 27th February.
The committee discussed about the enforceability of fundamental rights and duties in a court
of law as found in the Irish and American Constitutions, they also considered about those
rights, which couldn’t be endorsed at that point of time but would be dream destination for
the future. It was also opined that alongside Fundamental rights a list of fundamental duties
should also be made.

In the subsequent meetings, it was decided that every citizen shall have the right to move
freely, reside and settle in any part of India, to acquire property, and to follow any
occupation, trade, business or profession, Subject to such restraints as the law may impose. It
was earlier on proposed in Article IV by the committee that, "Hindustani, written either in
Devanagari or Persian script shall, as the national language, be the first official language of
the Union, which was strongly opposed by B R Ambedkar supported by Amrit Kaur.
The decision that Hereditary titles should have no place in new India and that only Academic
degrees and professional titles will be used henceforth, and in case if a foreign state wants to
confer some honour on an Indian citizen, then permission of the Union legislature will be
required, was also made in this meeting.
The committee decided that the citizens wouldn’t be given full and absolute liberty as it is
nothing more than a utopian dream, rather a provision shall be made, that the person who is
detained should be informed the reason behind his deprivation of liberty within 24 hrs. of his
detention and the right to seek legal advice has to be given to every citizen.
Thus one by one, the rights of equality, freedom, culture, education, the right to resist
exploitation, and to seek constitutional remedies were all included in the list. And along with
positive rights there also were things to be avoided or curtailed.
Usually there would be unanimity in accepting the proposals put forth by the committee
members but some issues were voted on, while sometimes they could reach no decision at all.

The decision to practise Universal Adult Suffrage was made. The elections were to be held
fare, free and periodical and the Elections shall be managed by an independent commission
set up under the Union law.
Some Rights were very thoroughly discussed inside the committee before deciding if the
Right should be included in the draft or not, like the freedom of expression, this right was
included after a lot of discussion, that too with the proviso of Section 153A of the IPC.
Another Right which was very much discussed was the right to carry arms, after much debate
it was decided that for a country like India which preaches non-violence there is no need for a
person to carry arms.
The committee also had to formulate when these rights could be terminated or curtailed? Dr.
B R Ambedkar proposed that these rights could be terminated when the legislature feels that
the very existence of the Nation is in danger.
Some of the members of the committee found this unacceptable as the legislature would have
special powers to detain a person without trial.
Ambedkar ensured that this isn’t giving a carte-blanche to the government to arrest any
person without recourse to law.

No matters big or small escaped the scrutiny of our Constitution makers. Even the prevalent
laws of marriage were challenged by Hansa Mehta and Rajkumari Amrit Kaur. It was also
opined by Rajkumari Amrit Kaur that India should adopt the Swiss law where "religion is no
constraint for those wishing to marry" and if this law was included in the Constitution then
the prevalent ancient act will be declared ultra vires. But this proposal was not accepted and
marriage was not included in fundamental rights.
After many sittings of the committee, Sardar Patel wrote a letter to the assembly, outlining
their conclusions and detailing how the rights were divided into two sections.
On the 21st of April Sardar Patel presented the Interim report of the Fundamental Rights
Committee. According to Sardar Patel There were two schools of thought in the committee.
One wanted to include as many rights as possible-rights which could straight away be
enforceable in a court of law.
The other school of thought wanted to restrict fundamental rights to a few very essential
things.
Sardar Patel hoped to pass the Fundamental Rights clause without much discussion. But more
than 150 members wanted to change certain articles or introduce new ones in Fundamental
Rights, like inclusion of economic fundamental rights, abolition of untouchability etc.
After much debating and clarifications most of the articles were accepted by the majority of
the members and many of the 150 amendments proposed were withdrawn.
But some were opposed to the draft clause's basic idea of fundamental rights. Such as the
socialist leader Somnath Lahiri who spoke about the ambiguity of the word sedition included
in the constitution. Even though the Congress had majority, Sardar Patel accepted Somnath
Lahiri's amendment to remove the word "seditious" from the clause.

Some members felt that any decision with regard to minority rights should be held hostage to
what was being decided in Pakistan and that the guaranteeing of rights to minorities, had
better be left for future governments to which Ambedkar replied saying that “the rights of
minority should be absolute right and they should not be subject to any consideration as to
what another party may like to do to minorities within its jurisdiction, no matter what others
do that we ought to do what is right in our own judgment.”
Due to this statement of Dr. B R Ambedkar, it was said that Mahavir Tyagi thought of
Ambedkar as non-politician who did not fight for freedom or even go to jail.
But the depth of Ambedkar's constitutional acumen and farsightedness was never in doubt.
We only have to refer to his lecture on Fundamental Rights given before the students of
Siddharth College, Bombay. In which Ambedkar says that the rights are protected and
enforced not by the law but the social and moral conscience of the society. Social conscience
is the only safeguard of all rights whether fundamental or non-fundamental.