The Constituent Assembly Debates and Fundamental Rights

A purposeful discussion with regard to the rights of the people engaged the attention of the framers of the Constitution. What concerned them the most was the fact that while providing rights to the people, the unity of the nation, the democratic ethos and the social revolution and the like are not to be compromised at any cost. To their benefits, the framers had with them the adequate idea of the British bill of rights, the American fundamental rights, the French declaration of rights of man and citizen and also the provisions of rights in the Irish constitution.

The debates with regard to the rights of the people in the Constituent Assembly centered around (a) classicat ion of rights into justiable and non-justiable rights; (b ) negative and positive rights; (c) certain rights being guaranteed to all persons, and certain others, only to the citizens; (d) minority rights have to be taken note of. To these aspects of the rights of the people, there came up a liberal school (K.M. Munshi, A.K. Ayyar, and akurdas Bhargava) on the one hand, and the democratic le school (K. T. Shah, Damodar Swarup, and V. P. Tripathi) on the other. The liberal school sought negative rights (especially the provision of the individual liberties and their protection from the possible onslaughts of the government) with an assurance that the state would enforce such rights, i.e., such rights would be made justificable.

The democratic le school sought the provision for positive rights, (especially socio-economic rights which may be made non-justificable). With regard to the minority rights, the Constituent Assembly, instead of making provisions of the reservation for the minorities, thought of ensuring them the protection of their culture through providing particular cultural and educational rights.

The sub-committee headed by Vallabhai Patel, therefore, recommended the merging of the ideas of the two schools, as stated above, into two parts:

  • Part III and
  • Part IV

Part III dealing with (i) the Fundamental Rights (which incorporated the use of ‘persons’ in some rights—meant for all, and of ‘citizens’ in some other rights meant for the citizens only); negative in nature, were made justiciable and (ii) the Directive Principles of State Policy, positive rights, socio-economic in nature, non-justicibale, respectively.

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