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Tracing the Existence of Human Rights in the Freedom Struggle of India, and the Role of the Constituent Assembly in the Formation and Facilitation of Human Rights

Academic Paper 2018 5 Pages

Politics - International Politics - Topic: Public International Law and Human Rights

Excerpt

Tracing the Existence of Human Rights in the Freedom Struggle of India, and the Role of the Constituent Assembly in the Formation and Facilitation of Human Rights

Surender Kumar *

During the span and time of freedom struggle in India the concept of inherent rights possessed by every individual found its root. It can be categorically agreed upon that the freedom movement in India was predominantly a struggle for rights to equality, freedom and justice, which were denied to the Indian people in colonial subjectivity. The long struggle for equal rights against colonial rule was marked by slow and piecemeal reforms by the rulers. A tiny section of Indians, primarily the propertied and affluent sections, were given limited political rights viz., of voting and sitting in governing bodies. All Indians were, however, subject to innumerable restrictions on their right to freedom and equality under demeaning conditions of coloni.al rule. The struggle against colonial rule, thus, forms the context in which the language of rights developed. So, the ideas of equality and freedom as primary conditions of dignified human existence were the moving force behind the freedom struggle. And, it led to the setting up of the Constituent: Assembly. The Assembly framed the Constitution of India, which became the source of sovereignty of the people of an independent nation. The rights, which were hitherto denied by colonial rude, became the basic and fundamental rights of the people.

Both the Fundamental Rights in Part I11 and the Directive principles in Part IV of the Constitution seeks to bring into practice the principles of human rights assuring to each individual a life of dignity. The idea of rights as a claim to a life of freedom and dignity, irrespective of one's caste, race, birth, class, gender etc, became influential in the struggle against the colonial rule. The colonial rule was based on the 'rule of difference'. This meant that while the rule of law and the rights to liberty and equality were assured within Britain, the same principles did not apply in the colonies. The struggle for national liberation upheld the principles of equality, and considered it rightful to resist an 'immoral' rule which denied the life of dignity to the colonized people. The movement for national liberation sought to bring in conditions where the Indian people could be assured rights by virtue of being human. Historical Flashback of the Demands for Rights in Indian Context : The year 1857 saw the Indians lose their First War of Independence and their direct incorporation into the British Empire, as its subjects. The colonial state ruled over India as the representative of the' British Crown. The ideals of freedom and equality which were seen as essential values within Britain, were denied to the colonized Indians. In fact, colonial rule was justified on the grounds that the Indian culture, marked by caste and religious loyalties, lacked the conditions in which the\dues of individual equality and freedom could be understood or applied. Resistance against colonial rule was articulated in the form of demands for rights denied to them. Thus, a range of rights including right to freedom of the press, greater opportunity in senior government jobs including the Indian Civil Service, security of land tenure, rights of the working class etc, were demanded.

Constitutional Framework of Rights in India : The demand for framing a constitution for India was really an assertion of self- determination. The Constitution was seen as the source of sovereignty and the rights of the people of India. The British imperial practice has no tradition of a written constitution over and above the ordinary law. Rights of the British subjects are derived from royal grants, parliamentary statutes and the common law. Within the British Empire, for the first time in 1921, the Irish Free State framed a Constitution that included a list of fundamental rights. But, the Irish Constitution was a 'rebel' constitution. The British Parliament did not recognize it. Ireland left the British Empire in 1939. The idea that the Constitution was the source of people's rights and self- determination of the nation emerged in the context of the freedom struggle. The piecemeal reforms introduced by the British failed to satisfy the aspirations of the people. In its Nagpur session in 1920, the Congress adopted the goal of swaraj and launched a satyagraha in the form of the non- cooperation movement. It became the considered policy of the leaders of the movement not to participate in any reform efforts of the colonial rulers.

The Role of Cabinet Mission Plan and Constituent Assembly : Increasing demands by Indians for a greater say in their own governance led to the acknowledgement by the Viceroy in August 1940, that the framing of the Constitution for India would be 'primarily the responsibility of Indians themselves'. But this exercise, he said, had to wait till the war was over. This announcement, in what has come to be known as the 'August Offer', was followed by the Cripps Mission which promised in its declaration steps for the 'earliest possible realization of self government in India'. It also proposed the setting up of a Constituent Assembly after the war. It may be pointed out here that the freedom movement in India was composed of a variety of strands. While the Indian National Congress emerged as the dominant strand, a number of ideologically divergent strands contended Congress' vision of free India. In the matter of the institution of the Constituent Assembly as well, fears were expressed that rights of certain groups, particularly the non-Hindus and the scheduled castes, may not be adequately protected in a Constituent Assembly which was dominated by the Congress. Such fears were expressed by the Muslim League, the Scheduled Caste Federation of India and the Justice Party.

Objectives Resolution : The Cabinet Mission visited India in March 1946 and sought to make 'immediate arrangements' for Indians to decide the future constitution of India in which all such conflicts could be resolved. The Cabinet Mission Plan, issued in May 1946, offered the opportunity to Indians to make a Constituent Assembly for that purpose. In the 'Objectives Resolution' of the Constituent Assembly which is also reflected in the Preamble of the Constitution of India, the Constituent Assembly declared its resolve to constitute India into a sovereign republic. The sovereignty of the Constitution would be derived from the people, who would secure justice, equality and freedom. The Objectives Resolution showed its commitment to democratic ideals by declaring that adequate safeguards would be provided for the rights of minorities, backward and tribal areas, and the depressed and other backward classes.

Advisory Committee and its Subcommittees : The Cabinet Mission had suggested the setting up of an Advisory Committee on the 'rights of citizens, minorities and tribal and excluded areas'. Its task would be to draw a list of fundamental rights, the clauses for the protection of minorities and a scheme for the administration of the tribal and excluded areas. So, the Constituent Assembly set up -n Advisory Committee with Sardar Vallabhbhai Pate1 as the chairman.

- The Advisory Committee, in turn, set up five subcommittees:
- The Subcommittee on Fundamental Rights;
- The Subcommittee on Minority Rights;
- The Subcommittee on Tribal and Excluded Areas in Assam;
- T he Subcommittee on Tribal and Excluded Areas in the North-West Frontier; and
- The Subcommittee on Excluded and Partially Excluded areas other than Assam and North West Frontier.

Fundamental Rights and the Constituent Assembly : The freedom movement in India was predominantly a struggle for rights to equality, freedom and justice which were denied to the Indian people in colonial subjectivity. In this context, the framing of fundamental rights was a significant exercise. The rights embodied the aspirations of the people and also the democratic ideals which the Constituent Assembly set itself in the Objectives Resolution.

The Objectives Resolution moved by Jawaharlal Nehru in the Constituent Assembly on December 13, 1946 to all citizens of India:

Justice, Social, Economic and Political : Equality of status, of opportunity, and before the law; and Freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality. The assurance of such rights in a differentiated society marked by differences of caste, religion etc., was undoubtedly complex. The idea was to take into consideration these' differences while applying the ideals of equality, freedom and justice. To ensure that 'equal enjoyment of rights' was not merely a formal statement, steps were to be taken to assure rights so that the disadvantaged sections could be given protective safeguards.

Structure and Formation of Fundamental Rights : There was intense debate within the Fundamental Rights Subcommittee on the form or language of Fundamental Rights. It is important to note here that rights can be worded either negatively or positively. The manner in which rights are worded has important bearing on their legal nature and the role of the state in implementing them. A positively worded right places an obligation on the state to provide the conditions for the exercise of rights. In this case the rights are legally enforceable or justifiable. This essentially means that in case the government fails in its obligation to provide for a right, the courts can intervene and instruct the government to do so. The 1936 constitution of the USSR granted rights in a positive language. The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations also showed preference for positive formulation of rights. , A negatively worded right, on the other hand, sees rights as belonging naturally to the citizens and prohibits the state from taking away such rights. While providing for rights to the people, it does not put the state under a legal obligation to provide the conditions for their exercise. This was the practice followed by liberal democracies since the adoption of fundamental rights by the

Constitution of the U.S.A. in 1791. The dilemma was resolved by the Constituent Assembly in favor of wording the rights positively, giving the judiciary the role of an independent protector of the rights of the people. The people could turn to the courts for redemption if any of their rights was taken away. Members of the Constituent Assembly felt that a justifiable form of rights was necessary to instill a feeling of security among the minority groups and the disadvantaged sections.

Equality : The chairman of the Drafting Committee, Dr.B.R. Ambedkar was well known for his passion for social and economic equality. It is important to note that there was an almost total agreement on the right to equality in the Constituent Assembly. There was an equal amount of agreement on the need of the backward classes for special treatment in order to enable them to overcome their backwardness. Difference among members were confined to matters relating to identifying the backward classes, because of the wide variety of castes and tribes in India, and differences in their status. These problems were compounded by the fact that the British Indian provinces and the princely states followed different kinds of categorization. Eventually, the Constituent Assembly left it to the Union Government and the Parliament to identify the Scheduled Castes and the Scheduled Tribes from time to time. The states were permitted to identify other backward classes for special treatment.

Judicial Backup and Confirmation of Rights : Arising directly from the above was the dilemma over the role of the judiciary in the guarantee of rights. Those in support of positive rights, notably K.M.Munshi, were in favor of placing fundamental rights under judicial review. Munshi, therefore, made elaborate provisions for constitutional remedies through the Supreme Court. This meant that the court had the power to issue a number of writs to safeguard the rights of citizens as laid down in the Constitution.

Socio-Economic Dimension of Rights : An important aspect of the discussions within the fundamental Rights Subcommittee was the substance of the rights to be guaranteed. Would the Constitution of India, for example, give the people only political rights, as in the USA, or economic rights as well, as was the case in USSR? How would independent India deal with the problems of illiteracy, poverty and exploitation? How would India, for instance, implement land reforms or abolish untouchability? It is significant that in accepting justifiability as an essential aspect of Fundamental Rights, it was felt by members of the Subcommittee that certain rights like right to education, workers' rights, etc., could not be legally enforceable. These rights were seen as being part of social and economic planning. The Subcommittee agreed, therefore to dividing rights into two parts justifiable rights which came to be incorporated as Fundamental Rights, and non-justifiable rights which were adopted as Directive Principles of State Policy.

Conclusion : All Indians were, however, subject to innumerable restrictions on their right to freedom and equality under demeaning conditions of coloni.al rule. The struggle against colonial rule, thus, forms the context in which the language of rights developed. So, the ideas of equality and freedom as primary conditions of dignified human existence were the moving force behind the freedom struggle. And, it led to the setting up of the Constituent: Assembly. The Assembly framed the Constitution of India, which became the source of sovereignty of the people of an independent nation. Both the Fundamental Rights in Part I11 and the Directive principles in Part IV of the Constitution seeks to bring into practice the principles of human rights assuring to each individual a life of dignity. The idea of rights as a claim to a life of freedom and dignity, irrespective of one's caste, race, birth, class, gender etc, became influential in the struggle against the colonial rule. The year 1857 saw the Indians lose their First War of Independence and their direct incorporation into the British Empire, as its subjects. The colonial state ruled over India as the representative of the' British Crown. The ideals of freedom and equality which were seen as essential values within Britain, were denied to the colonized Indians. The British imperial practice has no tradition of a written constitution over and above the ordinary law. Rights of the British subjects are derived from royal grants, parliamentary statutes and the common law. Within the British Empire, for the first time in 1921, the Irish Free State framed a Constitution that included a list of fundamental rights. But, the Irish Constitution was a 'rebel' constitution. The British Parliament did not recognize it. The chairman of the Drafting Committee, Dr.B.R. Ambedkar was well known for his passion for social and economic equality. It is important to note that there was an almost total agreement on the right to equality in the Constituent Assembly. There was an equal amount of agreement on the need of the backward classes for special treatment in order to enable them to overcome their backwardness. Difference among members were confined to matters relating to identifying the backward classes, because of the wide variety of castes and tribes in India, and differences in their status.

References :

- D.D. Basu : Introduction to the Constitution of India, Wadhwa and Company, Nagpur, latest edition.
- Subhash Kashyap : Citizens and the Constitution, Publications Division, Government of India, Delhi, 1997.
- A.R. Desai : 'Empowering the Sovereign Citizens of India: Some Constitutional Obstacles' in Abha Avasthi ed. Social and Cultural Diversities, D.P. Mukerji in Memorium, Rawat Publications, Jaipur, 1997.
- M . V. Pylee : Constitutional History of India, 1600- 1950, Asia Publishing House, Bombay, 1967.
- G ranville Austin : The Indian Constitution: Cornerstone. of a Nation, Oxford University- Pre- London, latest edition.
- S. K. Chaube : Constituent Assembly of India, PPH, New Delhi, 1973.
- IGNOU Study Material CHR – 12 Unit – 6.

[...]


* Assistant Professor, H.N.B. Srinagar Garhwal (A Central University), ALA Fellowship Melbourne University, Australia.

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Pages
5
Year
2018
Language
English
Catalog Number
v459790
Institution / College
Hemvati Nandan Bahuguna Garhwal University
Grade
A
Tags
tracing existence human rights freedom struggle india role constituent assembly formation facilitation

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Title: Tracing the Existence of Human Rights in the Freedom Struggle of India, and the Role of the Constituent Assembly in the Formation and Facilitation of Human Rights