Samvidhaan – Episode 3/10
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Samvidhaan – Episode 3/10

Five days after Independence, the Constituent Assembly met again. With the joy of being free, many complaints emerged. Before we begin I want to draw your attention to an important issue On Independence day, at Agra Fort, lakhs of people had gathered for the flag hoisting ceremony. A British officer said that if the Union Jack was replaced by the new flag he won’t allow any soldier to participate in the ceremony. We cannot tolerate any insult to our national flag. I would request the President to ask the leader of the house Pandit Nehru, to make a statement. Regarding the incidents of the 14th-15th August, I would now request the leader of the House to make a statement. What is being said in the house… What is being said in the house… I am trying to follow closely. But I have heard only a quarter of what has been said. Is it because the acoustics in the house have changed or has the exuberance of freedom changed our voices. Laughter and jokes apart, the Constituent Assembly faced new and serious challenges. While they were formulating new laws for a free India, outside every conceivable law was being broken. As Granville Austin rightly said: Before we start today’s proceedings, I wish to state that in view of the terrible events in West Punjab where people are being massacred. To express sympathy towards them, I suggest that the proceedings be postponed for 15 minutes, Lahore and other places were in flames, people were dying, but we were much too busy making our Constitution to care! We should not allow this to be said about us. Without doubt, the terrible tragedies which are being faced by many today… …our deepest sympathies are with them. And we will do our best to stop this tragedy. Right now if all agree we may stand up and pay our homage to those who have… …suffered death and hardship and those who are in agony. From this session work began to give written shape to the Constitution. The constitutional advisor, Sir Benegal Narsing Rau, a world renowned constitutional scholar, would collate proposals and reports presented in the House into a draft Constitution. This draft would be scrutinized by a drafting committee of 7 members. The job of revising Sir Benegal Narasing Rau’s draft was entrusted to the drafting committee whose Chairman-elect was Dr Bhimrao Ambedkar. This committee now had to deliberate on the fundamental rights of the citizens of free India- how many rights would there be, and in what form. Years ago, in the 1931 session of the Congress, Pandit Jawaharlal Nehru had clearly articulated Fundamental Rights for every Indian citizen. And Gandhiji had supported it. The Congress demands from the British government fundamental rights for every Indian. We demand for every citizen the right of free expression, free association, and free assembly. We demand for every citizen the right to profess and practice his religion. Citizens of each area and particularly minorities have the right to protect their language and culture. We demand equality before the law, in respect of religion, caste, creed or sex. No citizen by reason of religion, caste, creed or sex be debarred from public employment. We demand that no person shall be illegally arrested, searched or deprived of liberty. We demand that every citizen be free to stay and settle in any part of India, to follow any trade or calling. Until these fundamental rights are not gained by every Indian I promise that neither I, nor the Congress party shall remain silent. I have nothing more to add. But whatever Jawaharlal has spoken about Fundamental Rights is the most important resolution of this Congress session. These rights inform us of the nature of self-rule that the Congress desires. The assembly, much before Independence and Partition, in 1947, had set up a Committee for Fundamental Rights It met for the first time on 27th February In my opinion Fundamental Rights of citizens is the most important topic for any Constitution. So please put forward your frank and considered views Besides these, we must also talk of those rights, which might not be possible to endorse today but will be our dream destination for the future. Alongside rights there should be a list of duties as well. Let’s first discuss those rights which if denied, the citizens can appeal to a court of law. That’s a good gesture, Ambedkarji. Prof KT Shah has also made extensive notes. I will direct the office to send copies to all. Then let’s meet next month and resolve to keep meeting till we have formulated a basic draft of the Fundamental Rights for the citizens of a future India. The Committee met again on 24th March with some new members. It took ten sittings to shape the Fundamental Rights. So, it stands that, “Every citizen shall be free to move, reside and settle in any part of India, to acquire property, and to follow any occupation, trade, business or profession.” Dr Ambedkar is right. That is why, here…where it says, I think we should say: That is right. We can’t give different punishment just because someone is not a citizen of the Union. Another point, Article IV says that, “Hindustani, written either in Devanagari or Persian script shall, as the national language, be the first official language of the Union. I agree with Dr Ambedkar. Whatever we choose as our national language tomorrow, has no bearing on what we decide about the Fundamental Rights of the people today. The Rajkumari is right. But her being a ‘Rajkumari’ gives me a thought. In our new India where everyone will be equal would titles like Rajkumari, Rajadhiraj, Nawab bahadur, Chhatrapati, Kunwarpal be valid… Hereditary titles should have no place in new India. From today you can address me simply as Amrit Kaur. No, no! Academic degrees and professional titles will remain, but not inherited titles. And what about people like me, who have been given a title by the King of England? Firstly, we no longer have any role for the King of England. And if a foreign state wants to confer some honour on an Indian citizen, then permission of the Union legislature will be required. The most important right we can give to the citizens of a free India is the right to freedom. The British took away this right at the whim of their government. We must ensure for our citizens full and absolute liberty. I agree with you. So do I. And I too fully agree on complete independence. Within 24 hours of detention, the right to seek legal advice has to be given to every citizen. Else there will be no difference between a free and an enslaved India. How can anyone object to this provision? Didn’t Lokmanya many years ago say: 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 was unanimity, other issues were voted on, while sometimes they could reach no decision at all. Treated worse than slaves, Harijans and other poor people have been used as forced labour in our villages. We have to see that bonded labour has no place in the fields of India. Why only fields? In the factories, and mines as well slavery has to be wiped out completely. And worst is the employment of children under 14 for dangerous work in mines and factories! How can we tolerate this? This must be banned in the Constitution. Won’t that raise a question on the institution of marriage? We have agreed not to talk of marriage and such things here It’s difficult to counter Shakespeare! Let’s vote on it. Six against and three for. What can we do Ambedkarji. We lose some and win some. That’s a democracy afterall. I wish to propose again that like in America, every citizen undergo compulsory military training for a few years. This is not slavery, but service. Let’s also vote on this. Those in favour raise their hands. Only three in favour. But everyone will support my next point. I propose that I do not know about others, but I am with you Munshiji. On this point, even I am with you. And further that, “Elections shall be managed by an independent commission set up under the Union law”. Today for the first time in the history of the world, a nation at its very inception, without exception to caste, religion, gender, class or region is giving adult suffrage to all. Till that time many advanced nations of the world had excluded people of colour from voting, and at other times women, and some place else, those of a minority religion. But the framers of our Constitution, were creating history. But there was much more left to be decided. And one among them, was the right to Freedom of Expression. This could be dangerous, because it may cut both ways. A simple expression against a majority party in power may be construed as class or communal hatred and punished. But if the party in power does the same thing they will not be touched. The Right of Free Expression is now recognized all over the world. And it is being felt that speeches and writings tending towards communal or class hatred, if they do not go to the extent of causing violence and crime, may be permitted. Sir, no one knows better than you, that we cannot prevent powerful majorities from carrying on class or communal hatred. I have heard that a newspaper was prosecuted under Section 153A simply because it printed articles against the police. It was argued that the police force was a class in itself, and the newspaper was creating hatred against the police. Along with freedom of expression the proviso of Article 153A remained. Right to bear arms was hotly debated. In my opinion every citizen should have the right to bear arms. My suggestion is that this amendment be added in Clause 10. Dr Mookherjee wants the right of individuals to carry arms. I think this should be a fundamental right. Bearing of arms has nothing to do with defence of the nation. My personal view is that except for hunting the carrying of arms is dangerous to life and property and must be prohibited. I know that mine may be a lone voice but in my conception of a non-violent state and society weapons should be prohibited. Just think, if like the United States of America everyone could freely bear arms in India, where would the spiral of violence have led us? But the committee had to decide on other fundamental rights. The contradiction was that they had also to formulate when these rights could be terminated or curtailed. Dr Ambedkar argued that in times of emergency, when its existence itself was in danger, then the nation had to place itself over rights of citizens. Many constitutions have a fundamental right against preventive detention. This has been purposely omitted by us because we don’t want to fetter the right of any upcoming government. The “due process” of law is considered with regard to every legislation. The important question is, will the legislature have the special power to detain a person without trial? There is really no case for giving a carte-blanche to the government to arrest any person without recourse to law. No matter – small or big – escaped the scrutiny of our Constitution makers. Even the prevalent laws of marriage were challenged by Hansa Mehta and Rajkumari Amrit Kaur. Marriage should be by mutual consent, with equal rights for both husband and wife. This should be a fundamental right. It should be, but will men agree to it? Gandhiji even said in his prayer meeting that inter-caste and inter-religious marriages were not only good but extremely necessary. And both husband and wife should not leave their own religion. But the Special Marriage Act of 1872 forbids such marriages. If people of different faiths marry, one of them has to convert, or both have to declare themselves atheists. To save her religion, a friend got married in Switzerland! How many can afford that? We should adopt the Swiss law “religion is no constraint for those wishing to marry” Absolutely! And if this is included in the Constitution then the prevalent ancient act will be declared ultra vires. I’ll immediately send a letter to the committee. Besides the two of us, I wonder who else will agree to sign it? None of the men for sure. One man did support them – Mr M R Masani. Even then, marriage was not included in fundamental rights And so 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. 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. The third school of thought was absent, is that which wanted no police, no jail, no press restriction in free India. Everybody be free to do as they please. 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. The terms “untouchable” and “untouchability” were debated. Sardar Patel rose to clarify some other clauses. Of the 150 amendments, many were withdrawn. But some were opposed to the draft clause’s basic idea of fundamental rights. Such as the socialist leader Somnath Lahiri. In spite of the Congress majority, Sardar Patel accepted Somnath Lahiri’s amendment to remove the word “seditious” from the clause. Some members felt that any decision on minority rights should be held hostage to what was being decided in Pakistan. The guaranteeing of rights to minorities, had better be left for future governments. People here may want to know what is happening to the minorities living in Pakistan. This question is not easy to solve just now. I say that it had better be left hanging till we definitely know what is going to be the final shape of India and how these separated units treat their minorities It was said that Mahavir Tyagi thought of Ambedkar as a 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.


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