We the People

As the Indian republic turns 60, Open digs out excerpts from Constituent Assembly debates that laid the foundation of the nation we are today.

Vice-President: We shall now take up Article 13 for consideration.

Shri Damodar Swarup Seth (United Provinces: General): Sir, I beg to move: That for article 13, the following be substituted: ‘13. Subject to public order or morality the citizens are guaranteed— (a) freedom of speech and expression; (b) freedom of the press; (c) freedom to form association or unions; (d) freedom to  assemble peaceably and without arms; (e) secrecy of postal, telegraphic and telephonic communications.’

Sir, Article 13, as at present worded, appears to have been clumsily drafted. It makes one significant omission and that is about the freedom of the press. I think, sir, it will be argued that the freedom is implicit in clause (a), that is, in the freedom of speech and expression. But, sir, I submit that the present is the age of the Press, and the Press is getting more and more powerful today. It seems desirable and proper, therefore, that the freedom of the Press should be mentioned separately and explicitly.

Now, sir, this Article 13 guarantees freedom of speech and expression, freedom to assemble peaceably and without arms, to form associations and unions, to move freely throughout the territory of India, to sojourn and settle in any territory, to acquire and hold and dispose of property, and to practise any profession or trade or business. While the article guarantees all these freedoms, the guarantee is not to affect the operation of any existing law or prevent the State from making any law in the general interests of the public… [such as 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. These guarantees are also cancelled, sir, when it is stated that, to safeguard against the offences relating to decency and morality and the undermining of the authority or foundation of the State, the existing law shall operate.

This is provided for in very wide terms. So, while certain kinds of freedom have been allowed on the one hand, on the other hand, they have been taken away by the same article. To safeguard against ‘undermining the authority or foundation of the State’ is a tall order and makes the fundamental right with regard to freedom of speech and expression virtually ineffectual. It is therefore clear that under the Draft Constitution we will not have any greater freedom of the Press than we enjoyed under the cursed foreign regime and citizens will have no means of getting a sedition law invalidated, however flagrantly such a law may violate their civil rights.

Then, sir, the expression ‘in the interests of the general public’ is also very wide and will enable the legislative and the executive authority to act in their own way. …the Draft Constitution further empowers the President, sir, to issue proclamations of ‘emergency’ whenever he thinks that the security of India is in danger or is threatened by an apprehension of war or domestic violence. The President under such circumstances has the power to suspend civil liberties. Now, sir, to suspend civil liberties is tantamount to a declaration of martial law.

Even in the United States, civil liberties are never suspended. What is suspended there, in cases of invasion or rebellion, is only the habeas corpus writ. Though individual freedom is secured in this article, it is at the same time restricted by the will of the Legislature and the Executive which has powers to issue ordinances between sessions of the Legislature almost freely, unrestricted by any constitutional provision. Fundamental rights, therefore, ought to be placed absolutely outside the jurisdiction, not only of the Legislature but also of the Executive.

If whatever fundamental rights we get from this Draft Constitution are tempered here and there, and if full civil liberties are not allowed to the people, then I submit, sir, that the boon of fundamental rights is still beyond our reach and the making of this Constitution will prove to be of little value to this country.

Vice-President: Then we come to Amendment No 416, in the name of Professor KT Shah.

Professor KT Shah (Bihar: General): Mr Vice-President, sir, I beg to move: That in clause (1) of Article 13, for the words ‘the other provisions of this article’, the words ‘this Constitution and the laws there under or in accord there without any time in force’ be substituted, and after the words ‘all citizens shall have’, the words ‘and are guaranteed’ be added.

The article, as amended, would read: ‘Subject to this Constitution and the laws there under or in accord there with at any time in force, all citizens shall have and are guaranteed the right…’ etcetera.

Sir, my purpose in bringing forward this amendment is to point out that, if all the freedoms enumerated in this article are to be in accordance with only the provisions of this article, or are to be guaranteed subject to the provisions of this article only, then they would amount more to a negation of freedom than the promise or assurance of freedom, because in every one of these clauses the exceptions are much more emphasised than the positive provision.

I suggest therefore that instead of making it subject to the provisions of this article, we should make it subject to the provisions of this Constitution. That is to say, in this Constitution this article will remain. Therefore, if you want to insist upon these exceptions, the exceptions will also remain.

The exceptions are all separately mentioned in separate sub-clauses. And their scope is so widened that I do not know what cannot be included as an exception to these freedoms rather than the rule. In fact, the freedoms guaranteed or assured by this article become so elusive that we 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. I would, therefore, repeat that you should bring in the provisions of the whole Constitution, including its preamble, and including all other articles and chapters where the spirit of the Constitution should be more easily and fully gathered than merely in this article, which, in my judgment, runs counter to the spirit of the Constitution. Somebody described yesterday the Constitution as ‘a paradise for lawyers’. All written Constitutions, and even unwritten ones, do admit themselves to legal chicanery of a very interesting type. Constitutions of Federal States are generally more so. But whether or not it was deliberately intended to be so, this particular draft seems to be a very fertile ground for legal ingenuity to exercise. And that will, of course, be at the expense of the Community. Whether the State wins or loses, the public, the country in any case, will lose to one small section—that of legal practitioners.

I also suggest that it would not be enough to enumerate these freedoms, and say the citizen shall have them. I would like to add the words also that ‘by this Constitution these freedoms are guaranteed’. That is to say, any exception which is made, unless justified by the spirit of the Constitution… would be a violation of the freedoms guaranteed hereby.

Honourable Dr BR Ambedkar: …Now, the only point which I had noted down to which Ihad thought of making some reference in the course of my reply was the point made by my friend Professor KT Shah, that the fundamental rights do not speak of freedom of Press…The Press is merely another way of stating an individual or a citizen. The Press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity. Editors or press managers are all citizens and therefore when they choose to write in newspapers, they are merely exercising their right of expression, and in my judgment therefore no special mention is necessary of freedom of the Press at all.

Vice-President: We now come to Article 11. The motion before the House is that Article 11 form part of the Constitution. No 372. Mr Naziruddin Ahmad.

Mr Naziruddin Ahmad (West Bengal: Muslim): Sir, I move: That for article 11, the following article be substituted: ‘No one shall on account of his religion or caste be treated or regarded as an ‘untouchable’; and its observance in any form may be made punishable by law.’

I submit that the original Article 11 is a little vague. The word ‘untouchability’ has no legal meaning, although politically we are all well aware of it; but it may lead to a considerable amount of misunderstanding as in a legal expression. The word ‘untouchable’ can be applied to [such a] variety of things that we cannot leave it at that. It may be that a man suffering from an epidemic or contagious disease is an ‘untouchable’; then certain kinds of food are ‘untouchable’ to Hindus and Muslims. According to certain ideas, women of other families are ‘untouchable’.

Then, according to Pandit Thakurdas Bhargava, a wife below 15 would be ‘untouchable’ to her loving husband on the ground that it would be ‘marital misbehaviour’.

I beg to submit, sir, that the word ‘untouchable’ is rather loose. That is why I have attempted to give it better shape; that no one on account of his religion or caste be regarded as untouchable. Untouchability on the ground of religion or caste is what is prohibited.

Shri VI Muniswamy Pillai (Madras: General): Mr Vice-President, it is a matter of great satisfaction that this Constitution has brought out a very important item and thereby untouchability is to be abolished in this great land of ours… I am sure, sir, by the adoption of this clause many a Hindu who is Harijan, who is a Scheduled Class man, will feel that he has been elevated in society and he has now got a place in society. I am sure that the whole country will welcome the inclusion of Article 11 in this Constitution.

Dr Monomohon Das (West Bengal: General): … I think, sir, that today the 29th November 1948 is a great and memorable day for us, the untouchables. This day will go down in history as the day of deliverance, as the day of resurrection of five crore Indian people who live [across] the length and breadth of this country.

Standing on the threshold of this new era, at least for us, the untouchables, I hear distinctly the words of Mahatma Gandhi, the father of our nation, words that came out from an agonised heart, full of love and full of sympathy for these downtrodden masses. Gandhiji said: “I do not want to be reborn, but if I am reborn, I wish that I should be born as a Harijan, as an untouchable, so that I may lead a continuous struggle, a life-long struggle against the oppressions and indignities that have been heaped upon these classes of people.” The word Swaraj will be meaningless to us if one-fifth of India’s population is kept under perpetual subjugation….

Last of all, I cannot resist the temptation of saying a few words about our great and eminent Law Minister and Chairman of the Drafting Committee, Dr Ambedkar. It is an irony of fate that the man who was driven from one school to another, who was forced to take his lessons outside the classroom, has been entrusted with this great job of framing the Constitution of free and independent India, and it is he who has finally dealt the death blow to this custom of untouchability, of which he was himself a victim in his younger days.

Shri Santanu Kumar Das (Orissa: General): …When everybody desires that this practice should be abolished, I fail to see why so much time should be wasted in a long discussion over it. The fact is that we merely want to enact laws about it and expect the rural people to observe these laws. We must ourselves first observe the law, for otherwise there would be no sense in asking others to act upon it. If we fail to observe it, it would be impossible to root out this evil…

Professor KT Shah: Mr Vice-President, sir, lest I be misunderstood on the remarks that will follow, may I say at the very outset that I am not against the spirit of this article, or even its actual wording. I think, however, that the wording is open to some correction…. In the first place, I would like to point out that the term ‘untouchability’ is nowhere defined. This Constitution lacks very much in a definition clause; and consequently we are at a great loss in understanding what is meant by a given clause and how it is going to be given effect to. You follow up the general proposition about abolishing untouchability, by saying that it will be in any form an offence and will be punished at law.

Now I want to give the House some instances of recognised and permitted untouchability whereby particular communities or individuals are for a time placed under disability which is actually untouchability. We all know that at certain periods women are regarded as ‘untouchables’. Is that supposed to be… will it be regarded as an offence under this article?

I think if I am not mistaken, I am speaking from memory, but I believe I am right that in the Quran, in a certain Sura, this is mentioned specifically and categorically. Will you make the practice of their religion by followers of the Prophet an offence? Again, there are many ceremonies in connection with funerals [etcetera] which make those who have taken part in them untouchables for a while…

Again, if a municipality, for instance, makes a temporary regulation about quarantine, and makes it necessary that people suffering from communicable diseases or infectious or contagious diseases shall be segregated for a while until they are cured, and shall be regarded as ‘untouchables’, will it be an offence under this article? Surely, it ought not to be possible for anybody to say that the action of that particular municipality is ‘unconstitutional’, and so an offence at law.

I trust the Chairman of the Drafting Committee will find that there is some sense in the suggestion I have put forward; and that he will not deal with it as a common opposition.

Honourable Dr B R Ambedkar: I cannot accept the amendment of Mr Naziruddin Ahmad.

Vice-President: Dr Ambedkar, do you wish to reply to Mr Shah’s suggestion?

Honourable Dr BR Ambedkar: No.

Vice-President: I now put Amendment No 372 to vote. The question is: That for article 11, the following article be substituted: ‘11. No one shall on account of his religion or caste be treated or regarded as an ‘untouchable’; and its observance in any form may be made punishable by law.’

The amendment was rejected.

Vice-President: I now put Article No 11. The question is: That Article 11 be part of the Constitution.

The motion was adopted.

Article 11 was added to the Constitution, amidst cheers and Members of the Assembly shouting, “Mahatma Gandhi ki Jai!”

Honourable Sardar Vallabhbhai J Patel (Bombay: General): … Sir, the first time when in the Minorities Committee we came to the decisions giving certain political safeguards by way of reservations and when those proposals were put before the House, I had brought them with a very great degree of consent or concurrence of minority communities. There was a difference of opinion from some progressive nationalist-minded leaders, such as Dr (Shyama Prasad) Mookherjee who from the beginning opposed any kind of reservation or safeguards. I am sure he will be happy today to find that his ambition is being fulfilled.

Well, when I brought those proposals and placed them before this House, there was another group of people who had found it difficult to get out of the mire into which they had gone very deep. Here a proposal was brought forward by one friend from Madras, for reservation and for communal electorates.

Now, when the separate communal electorate motion was moved, it was supported by the great Muslim leader [Mohammed Ali Jinnah], who swore loyalty to the Constitution in this House, and immediately after, packed off to Karachi. He is now carrying on the work of the Muslim League on that side.

He has left a legacy here, a residual legacy perhaps in Madras…

Those who claim that in this country there are two nations and that there is nothing common between the two, and “that we must have our homeland where we can breathe freely”, let them do so. I do not blame them. But those who still have that idea that they have worked [towards], that they have got it and therefore they should follow the same path here, to them I respectfully appeal—go and enjoy the fruits of that freedom and leave us in peace.

There is no place here for those who claim separate representation. Separate representation, when it was introduced in this unfortunate country, was introduced not by the demand of those who claim to have made those demands, but as Maulana Muhammad Ali once said, it was a “command performance” that has fulfilled its task and we have all enjoyed the fruits of it.

Let us now for the first time have a change of chapter in the history of this country, and have a ‘consent performance’. I want the consent of this House and the consent of all minorities to a change of chapter in history. You have the privilege and honour to do it.

The future generations will record in golden letters the performance that you are doing today. I hope and trust that the step that we are taking today is the step which will change the face, the history and the character of our country…

This is a place today to act on your conscience and to act for the good of the country. For a community to think that its interests are different from that of the country in which it lives is a great mistake… It is a wrong idea. That conception in your mind which has worked for many years must be washed off altogether. Here we are a free country; here we are a sovereign State; here we are a sovereign Assembly; here we are moulding our future according to our own free will. Therefore, please forget the past; try to forget it. If it is impossible, then the best place is where your thoughts and ideas suit you. I do not want to harm the poor common masses of Muslims who have suffered much, and whatever may be your claim or credit for having [secured] a separate State and a separate homeland—God bless you for what you have got—please do not forget what Muslims have suffered, poor Muslims. Leave them in peace to enjoy the fruits of their hard labour and sweat.

I remember that the gentleman who moved the motion here last time, in August 1947, when asking for separate electorates, I believe said that Muslims today were a very strong, well-knit and well-organised minority.

Very good. A minority that could force the partition of the country is not a minority at all. Why do you think that you are a minority? If you are a strong, well-knit and well-organised minority, why do you want to claim safeguards? Why do you want to claim privileges?

It was all right when there was a third party; but that is all over. That dream is a mad dream and it should be forgotten altogether. Never think about that, do not imagine that anybody will come here to hold the scales and manipulate them continuously. All that is gone…

We are playing with very high stakes and we are changing the course of history. It is a very heavy responsibility that is on us, and therefore I appeal to every one of you to think before you vote, to search your conscience and to think what is going to happen in the future of this country. The future shape of this country as a free country is different from the future that was contemplated by those who worked for Partition.

Maulana Hasrat Mohani (United Provinces: Muslim): Sir, I have come forward today to give my entire support to the motion of Sardar Patel. I am really glad to do so, because recently I have had occasions to differ from him, though very reluctantly.

Sir, I opposed the principle of reservation of seats at a time when the Congress Party was in its favour. At that time, the excuse put forward by the Congress Party was this—‘We do not like this method of reservation of seats, but we have to show some concessions to Muslims, and, therefore, we want to retain it for at least ten years.’ Even then I said—I am reading from the Official Report of the proceedings of 4th January 1949—“We refuse to accept any concession. In case the majority party, or the Congress Party, accepts reservation of seats, its claim of creating a secular State and of putting an end to communalism would be falsified.”

… I am very much surprised to see Mr Saadullah, with all his experience as Prime Minister of a Province, saying that the matter should be decided by the votes of Muslims in the House. I think that this proposition is ridiculously absurd. We have before the House the proposition of Sardar Patel and the House has got the right to vote on it. In the circumstances I am surprised to see Mr Saadullah making a suggestion of that kind.

I know that some of the Muslim Members of this House are for reservation of seats. I say it does not matter. I do not care if the majority is for or against it. But if we allow this question to be decided by the exclusive votes of Muslims, then it will be on the face of it ridiculously absurd. It will mean that we are not going to make an end of this communalism. It will mean also that we will have to decide the other questions also by separate vote. This is surely absurd.

I do not know how a man of his experience has managed the courage to propose such an absurd thing. With these few words, I entirely support the motion of Sardar Patel.

Jawaharlal Nehru (United Provinces: General): Mr President, it is my proud privilege to move the following resolution: ‘Resolved that the National Flag of India shall be a horizontal tricolour of deep Saffron (Kesari), white and dark green in equal proportion. In the centre of the white band, there shall be a Wheel in navy blue to represent the Charkha. The design of the Wheel shall be that of the Wheel (Chakra) which appears in the abacuse (slab of marble on top of column) of the Sarnath Lion Capital of Ashoka. The diameter of the Wheel shall approximate to the width of the white band, the ratio of the width to the length of the Flag shall ordinarily be 2:3.’

…This Resolution defines the Flag which I trust you will adopt. In a sense this Flag was adopted, not by a formal resolution, but by popular acclaim and usage, adopted much more by the sacrifice that surrounded it in the past few decades. We are in a sense only ratifying that popular adoption. It is a Flag which has been variously described. Some people, having misunderstood its significance, have thought of it in communal terms and believe that some part of it represents this community or that. But I may say that when this Flag was devised, there was no communal significance attached to it. We thought of a design for a Flag which was beautiful, because the symbol of a nation must be beautiful to look at. We thought of a Flag which would in its combination and in its separate parts somehow represent the spirit of the nation, the tradition of the nation, that mixed spirit and tradition which has grown up through thousands of years in India…

Therefore this Flag that I have the honour to present to you is not, I hope and trust, a Flag of Empire, a Flag of Imperialism, a Flag of domination over anybody, but a Flag of freedom not only for ourselves but a symbol of freedom to all people who may see it…

I beg to move this resolution.

Cheers in the House.

Mr HV Kamath (CP and Berar: General): Mr President, sir, my amendment reads as follows. That the following new paragraph be inserted in the motion: ‘That inside the Chakra in the centre of the white band, the Swastika, the ancient Indian symbol of Shantam, Shivam, Sundaram, be inscribed’.

…Mr President, sir, after having seen the design of this Flag, I do see that it is difficult to fit the Swastika in, much as I would like to see it fitted in. It would make it rather clumsy and cumbersome. In these circumstances, I do not press this amendment and beg leave of the House to withdraw it.

Dr PS Deshmukh (CP and Berar: General): Mr President, sir, after such an impressive and emotional speech by Pandit Nehru, one hesitates to say or add anything that may be interpreted or considered to take away from its effect. We always respect his words and on a somewhat sentimental question like this, our respect approaches adoration.

I have some very strong grounds on which my amendment was based. It is not in any way or sense discordant with the speech to which we have just listened. My idea was essentially based on the retention of the tricolour absolutely intact with the Charkha retained, as it is the Charkha which is the emblem of Ahimsa and the common toiling man associated so inseparably with the acquisition of our political freedom, and the name of Mahatma Gandhi. But in view of the fact that the House would rather stick to the Flag that has been proposed, I do not wish to move the amendment, although I still feel that my idea has much in it to commend itself.

Mrs Sarojini Naidu (Bihar: General): …Many of my friends have spoken of this Flag with the poetry of their own hearts. As a poet and as a woman, I am speaking prose to you when I say that we women stand for the unity of India. Remember this Flag. There is no prince and there is no peasant, there is no rich and there is no poor…

Whether we be Hindus or Muslims, Christians, Sikhs or Zoroastrians and others, our Mother India has one undivided heart and one indivisible spirit. Men and women of reborn India rise and salute this Flag, I bid you, rise and salute the Flag. (Loud cheers).

President: I would ask Members to express their assent to the resolution which has been placed before them and show their respect to the Flag by getting up and standing in their places for half a minute.

The motion was adopted with the entire Assembly on its feet.

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