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Listen to wise counsel

Constituent Assembly was clear: ‘right to freedom’ trumps decisions of state

Written by Peter Ronald DeSouza | Published: May 17, 2012 3:19:13 am

Constituent Assembly was clear: ‘right to freedom’ trumps decisions of state

The Parliament debates on the Ambedkar-Nehru cartoon have all the elements of a textbook controversy. When the offending object is a 63-year-old cartoon that has been republished in a textbook that has itself been subjected to peer reviews,and when the calls for the cartoon’s removal,in other words the censorship of an opinion,is made by our parliamentarians,then we have an issue that is quite complicated and requires careful analysis.

To get a better sense of what is at stake,I searched for answers in that other august chamber,the Constituent Assembly. I wanted to see what another set of honourable members dreamed for an independent India when they argued over the fine print of what was then Article 13,now Article 19,on the “right to freedom”. Since they were the makers of that founding and guiding document,our Constitution,it is appropriate that we get a sense of their minds on the norms that were to be the foundation of a free India.

On December 1 and 2,1948,the members of the Constituent Assembly debated the draft Article 13 concerning the “right to freedom”. For Shibban Lal Saksena,the right to freedom was at the core of the newly emergent constitutional order and gave it an elevated status. He said: “This article may be truly stated to be the charter of our liberties and this is probably the most important article in the whole Draft Constitution.”

Having such a charter of liberties was necessary to protect the individual from the executive and the legislature. It was essential to recognise that the rights were fundamental and that the state’s actions to restrict these rights,by invoking other concerns of public order,or public interest,or other laws,would be illegitimate.

Sardar Hukum Singh argued this forcefully: “Sir,in Article 13(1),subclauses (a),(b) and (c),they give constitutional protection to the individual against the coercive power of the state,if they stood by themselves. But subclauses (2) to (6) of Article 13 would appear to take away the very soul out of these protective clauses. These lay down that nothing in subclauses (a),(b),(c) of Article 13 shall effect the operation of any of the existing laws,that is the various laws that abrogate the rights envisaged in subclause (1) which were enacted for the suppression of human liberties,for instance,the Criminal Law Amendment Act,the Press Act and other various security acts. If they are to continue in the same way as before,then where is the change ushered in and so loudly talked of? The main purpose of declaring the rights as fundamental is to safeguard the freedom of the citizen against any interference by the ordinary legislature and the executive of the day.” He said it was against the coercive power of the state that the citizen needed to be protected by granting these fundamental rights.

Damodar Swarup Seth lamented that allowing the legislature to determine whether a speech or expression offended the decency or morality of the state,as appeared to be the case in the draft article,negated the very purpose of the right to free speech. He said,“Indeed,Sir,the guarantee of freedom of speech and expression which has been given in this article is,actually,not to affect the operation of any existing law or prevent the state from making any law relating to libel,slander,defamation,sedition and other matters which offend the decency or morality of the state or undermine the authority or foundation of the state. It is,therefore,clear,Sir,that the rights guaranteed in Article 13 are cancelled by that very section and placed at the mercy or the high-handedness of the legislature.’

The use of the word “high-handedness” is almost prophetic. It also suggests that the “right to freedom” can trump the decision of the legislature. This was echoed by Mahboob Ali Baig Sahib Bahadur who was eloquent about the sacred quality of the fundamental rights,which should not be curtailed by the executive or the legislature. He said,“Fundamental rights are fundamental,permanent,sacred and ought to be guaranteed against the coercive powers of a state by excluding the jurisdiction of the executive and the legislature. If the jurisdiction of the executive and the legislature is not excluded,these fundamental rights will be reduced to ordinary rights and cease to be fundamental.” He further said: “It is not the executive or the legislature,but it is the independent judiciary of the state that has to judge whether a certain citizen has overstepped the limits so as to endanger the safety of the state.”

The anxiety that the state would emasculate the fundamental rights by enacting other legislation was expressed by many. K.T. Shah said: “The freedoms are curtly enumerated in 5,6 or 7 items in one subclause of the article. The exceptions are all separately mentioned in separate subclauses. And their scope is so widened that I do not know what cannot be included as exception to these freedoms rather than the rule. In fact,the freedoms guaranteed or assured by this article become so elusive that one would find it necessary to have a microscope to discover where these freedoms are,whenever it suits the state or the authorities running it to deny them.”

B.R. Ambedkar,the chair of the drafting committee,set these doubts to rest when he placed on record the centrality and superiority of the Fundamental Rights articles over other laws: “Now the fundamental article is Article 8 which specifically,without any kind of reservation,says that any existing law which is inconsistent with the fundamental rights as enacted in this part of the Constitution is void.”

From these interventions,we get an idea of what the Constituent Assembly believed to be the philosophy of the Constitution. Not only did the members make the clauses more precise but they also introduced words that expanded the power of these rights. One of these keywords was “reasonable”,which was introduced before “restrictions”. Restrictions had to be reasonable,that is,reasons had to be given for any action that amounted to a restriction. These reasons had to be reasonable in that they had to be justified by reference to norms.

Let me draw out the four main concerns of the members. One,the section on the right to freedom should be treated as a charter,thereby giving it the status of a guiding document that will determine our conduct as we go about fashioning the contours of our political community. Two,these rights protected the citizen from the possible tyranny of the state. Three,the supremacy of the fundamental rights over other laws. Four,the debate specified the grounds on which such restrictions may be made when it argued for the introduction of the word “reasonable” before restriction.

Looking back on the discussions in the Constituent Assembly from the perspective of the discussions in today’s Parliament on the cartoon controversy,one cannot but be perplexed. Was the Constituent Assembly wiser? Or did it have the luxury of only debating normative issues,because they did not have to manage the turbulence of democratic politics,or did it speak from good judgment that came from the experience of the freedom movement?

The writer is director,Indian Institute of Advanced Study,Shimla. Views are personal,

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