07 - Chapter 2

CHAPTER-2
INTENTION OF THE FRAMERS REGARDING BASIC

STRUCTURE
The Constituent Assembly performed the task of framing the Constitution of

independent and sovereign India. The members of the Constituent Assembly were
aware of the fact that situation will never remain same. In order to cope up with the
changing needs, demands and situations, it may become necessary to amend the
Constitution in future. So, Constitutional amendments were permitted by keeping a
bar over it. The bar was regarding the maintenance of the basic structure of the Indian
Constitution. It means, the basic structure i.e., the basic elements of the Constitution
were not permitted to be altered through the provision of constitutional amendments.
But what comprises of the basic structure is nowhere specifically mentioned in

the original Indian Constitution. But at the same time, the intention of the framers of
the Indian Constitution specifically reveal about the basic or essential elements for
which status quo must be maintained throughout. The said entire issue is based on the
interpretation about the intention of the framers of the Constitution. Basic structure of
the Indian Constitution includes various basic features like fundamental rights,
sovereignty, democracy, dignity, tolerance, separation of powers, separation of
judiciary from legislature and bureaucracy, federalism, judicial review, constitutional
remedy, human dignity, etc.
The framing of India‟s Constitution was not at all an easy task. India is
considered as sub-continent because of diversity in religion, culture, language, etc.
The task was regarding consideration and recognition of rights of multi-culture. The
framers of the Indian Constitution clearly revealed in the debate regarding their
intention about certain aspects to be specific. These aspects were not permitted even
due to the changing situations. It means that they assigned the duty of the up coming
generations to maintain status quo regarding the governance of the country.
The framers of the Indian Constitution had guaranteed many aspects. These
aspects are revealed in the Constituent Assembly Debates. Their determinations were
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firm. They wanted that the Constitutional Guarantees granted to the people of India
must not change in any circumstance.
2.1) Duration73
The Constituent Assembly took 2 years 11 months and 17 days to draft the
Constitution of independent India. Previously there were 389 members in the
Constituent Assembly. But after the separation of Pakistan from India there were in
all 299 members in the Constituent Assembly. The Constituent Assembly held 11
sessions within a period of 165 days. Out of these 165 days, 114 days were spent on
the consideration of the drafted Constitution.
The summary of the sessions of the Constituent Assembly are as under:
Sessions Duration
1st Session 9th December to 23rd December, 1946
2nd Session 20th January to 25th January, 1947
3rd Session 28th April, 1947 and 2nd May, 1947
4th Session 14th July to 31st July, 1947
5th Session 14th August to 30th August, 1947
6th Session 27th January, 1948
7th Session 4th November, 1948 and 8th January 1949
8th Session 16th May to 16th June, 1949
9th Session 30th July to 18th September, 1949
10th Session 6th October to 17th October, 1949
11th Session 14th November to 26th November, 1949
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Parliamentofindia.nic.in
72
The Indian Constitution was adopted by the Constituent Assembly on 26th
November, 1949. Different articles of the Constitution of India were discussed in the
aforesaid sessions. Different motions regarding various articles were put for voting
and all those articles were adopted that gained majority of votes. For the signature of
the members, the Constituent Assembly again met on 24th January, 1950.
2.2) Composition of the Constituent Assembly74
Sr. Name Designation

No.
1. The Hon‟ble Dr. Rajendra Prasad President
2. Dr. Sachchidanand Sinha Temporary Chairman
3. Sir B.N. Rau Constitutional Advisor
4. Shri H.V.R. Iengar Secretary
5. Mr. B.F.H.B. Tyabji Deputy Secretary
6. Khan Bahadur S.G. Husnain Under Secretary
7. Mr. K.V. Padmanabhan Assistant Secretary
8. Subedar Major Harbans Lal Jaitka Marshal
The Constitution of India was drafted by the Drafting Committee which was
headed by Dr. B.R. Ambedkar. Most of the drafting regarding different articles of the
Indian Constitution was done by Dr. B.R. Ambedkar alone because other members of
the drafting committee were not able to remain present due to one or the other reason
in the Constituent Assembly Debates.
Dr. B.R. Ambedkar took into consideration not only the fundamental aspect
needed for guaranteeing survival of dignified life but he also took into consideration
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Pg. no. v.
73
the conscience for humanity. Due to this reason, the Constitution of India is also well
known as „The Humanitarian Document‟.
2.3) Important Committees of the Constituent Assembly & their

Chairman75
Sr. Name of Committees Chairman

No.
1 Committee on the Rules of Procedure Dr. Rajendra Prasad
2. Steering Committee Dr. Rajendra Prasad
3. Finance & Staff Committee Dr. Rajendra Prasad
4. Credential Committee Alladi Krishnaswami Ayyar
5. House Committee B. Pattabhi Sitaramaya
6. Order of Business Committee K.M. Mushi
7. Ad. hoc Committee on National Flag Dr. Rajendra Prasad
8. Committee on the Functions of the G.V. Mavalankar

Constituent Assembly
9. States Committee Jawaharlal Nehru
10. Advisory Committee on Fundamental Sardar Vallabhbhai Patel

Rights, Minorities & Tribal & Excluded
Areas
11. Minorities Sub-committee H.C. Mookherjee
12. North East Frontier Tribal Areas & Gopinath Bardoloi

Assam Excluded & Partially Excluded
Areas Sub-committee
13. Excluded & Partially Excluded Areas A.V. Thakker
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Pg. no. vii.
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(other than those in Assam) Sub-
committee
14. Union Power‟s Committee Jawaharlal Nehru
15. Union Constitution Committee Jawaharlal Nehru
16. Drafting Committee Dr. B.R. Ambedkar
2.4) Preliminary Notes regarding Fundamental Rights76
The preliminary notes regarding fundamental rights was first issued by the
Constitutional Advisor Mr. B.N. Rao on 2nd September, 1946. In the said notes, he
stated that in the history of the world, the great countries expressed citizens‟ rights as
„fundamental rights‟. For this purpose, the referenced various articles of the American
Constitution, Swiss Constitution, German Constitution, Constitution of Ireland,
Constitution of U.S.S.R. He also referred the importance of great Charters like Magna
Carta, the Petition of Rights and the Bill of Rights in this regard. He also drew
attention on the following rights as the citizens‟ rights-
i) equality before law
ii) freedom of press
iii) freedom of assembly
iv) freedom of speech
v) freedom of religion
vi) security of person
vii) freedom of association
viii) social security
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The Framing of India’s Constitution, Select Documents, B.Shiva Rao, Universal Law Publishing Co.
Pvt. Ltd., Delhi, 2004 edition, Vol-2, Part-II, Pg. no. 21 to 55
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He stated about the difficulty in defining the precise limits of all the aforesaid
rights. He expressed his will that these rights must be enumerated and their prescribed
limits must be worked out for the Indian Constitution. He expressed his viewpoint by
giving examples of the different constitutions of the world.
He expressed another problem that the rights indicated above if provided in

broad terms then there shall be difficulty in enforcement of such rights by ordinary
courts. It is because ordinary courts do not know about the depth and intensity of the
broadness of aforesaid rights. Thus, it gives rise to the problem of interpretation. For
this purpose, he had given the example of the American Constitution. In America, the
state is empowered to curtail or deny any person the rights available pertaining to
equal protection of the laws, through constitutional amendments. Such denial is
literally taken into consideration because at the same time, the State has granted
special protection to women, children, etc.
According to him, the Supreme Court of the United States has given more
priority and importance to the dignity of man. For this purpose, the U.S. Supreme
Court prefers constitutional protection. He expressed his will that the same must be
done in case of Indian Constitution and the same shall not wither away by the erosion
of time.
He stated about the two broad classes of rights, through his second note.
According to him, there are certain rights for which positive action by the State is
necessary. The State guarantees these rights until positive action is practicable. The
State can take away, curtail or deny these rights by due process of law. Moreover, the
aforesaid rights are provided in different manners through different constitutions of
the world. Thus, we find differences in imparting these rights. Due to such
differences, if the State guarantees the aforesaid rights then they fall under the
fundamental rights. If such rights are embodied in the State policy then they cannot be
enforced in court of law. They fall under the directive principles of the State policy.
In democratic and capitalists economies of the world these rights are granted
to the citizen at their own liberty. The same rights can be curtailed or denied by
undergoing due process of law. Moreover, in such a set up, such rights becomes
enforceable in court of law. They acquire fundamental character.
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Further he quotes the example of Dr. Lauterpacht‟s International Bill of Rights
of Man (1945). He expressed that the said bill was divided into two parts viz., part-I
of the said Bill dealt with those rights that can be enforced in the ordinary courts and
part-II dealt with those rights that cannot be enforced in ordinary courts. He wanted to
adopt the same scheme for framing rights of citizens‟ in India‟s Constitution. Further
he expressed that part-A may deal with „Fundamental Principles of State Policy‟ and
part-B may deal with „Fundamental Rights.‟
According to him, the rights enumerated in part-A must include the following:
i) the right to work
ii) the right to maintenance in old age, sickness, etc.
iii) the right to education
iv) the right to rest and leisure
v) the right to free and compulsory primary education
vi) protection of culture, language and script
vii) promotion of international peace and security
viii) protection of special care and economic interest of people of weaker sections
of the society and of people in particular of scheduled castes, aboriginal tribes,
etc.
The above list of rights suggested by him was illustrative in nature. He didn‟t
wanted these rights to be exhaustive in nature. When these rights are kept in directive
principles of the state policy, the state can perform the functions of socialism but
when they are made absolute and exhaustive they generate capitalism under the name
of equitable balancing.
In part-B rights, he wanted „fundamental rights strictly‟. It means that these

rights bear the characteristics of enforceability in court of law. He also admitted that
very few countries in the world have adopted the system of judicial review of
fundamental rights as guaranteed right by the Constitution. He admitted that in
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countries like Canada, Australia and Germany, the judicial review is limited to the
questions relating to legislative competence of the federation.
He expressed his viewpoint by giving examples of France and Russia.

According to him, in France judicial review of legislation is not permitted. But at the
same time the Supreme Court of Soviet Russia is empowered to give decisions
regarding constitutionality of any regulation. But it can do so at the request of the
Central Executive Committee. He gave another example of Mr. J.B. Thayer (the great
teacher of constitutional law). He told that according to J.B. Thayer, there are many
dangers involved when judicial review is done by the Supreme Court. He also
expressed that many French jurists have found the absence of effective guarantee
regarding fundamental rights in their own constitution. Finally, he was of the opinion
that in rare cases, the judicial review of protection of the rights of individual must be
done. Lastly, he also felt the need for the preparation of the Bill of Rights for India.
The note on fundamental rights by Shri K.T. Shah was written on the
President of the Constituent Assembly on 23rd December, 1946. He considered that
whatever mentioned in the Declaration of the Rights of Man and of Citizen, the Bill of
Rights and the French Revolution, indicates the faith for liberalism. He admitted that
the rights embodied in the aforesaid documents were nothing but essential claims for
humanity that forms the primary function of each and every civilized government.
According to him, the rights of man mean the rights of minorities. „Minorities‟ means
not political minorities but minorities based on religion, nationality, culture, language,
etc. He considered these rights as group rights and not as individual rights. He
considered that the nature of such rights must be mere than positive privileges.
Further, he admits that abovementioned category of rights shall disappear when
everyone will enjoy same rights and liberties.
He took into consideration the miserable conditions and situations of

minorities in India since ages. Therefore, he made a special reference of rights of
minorities in Fundamental Rights. He considered capitalists and land owners as
privileged groups.
He also referred to the categories of rights mentioned into the UN Charter viz.,
i) Civil rights
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ii) Political rights
iii) Economic and social rights
According to him, the above classification was not quite exhaustive. It is

because, among all these rights, the right to life requires special protection, guarantee,
safeguard, etc. He considered right to life as the most prominent and top level right in
the hierarchy of rights. Besides aforesaid right, he considered other rights to be of
prime importance. These were-
i) right to equality
ii) freedom of conscience
iii) freedom of association
iv) freedom of expression
v) opportunity of self-expression
vi) opportunity of self-realization
He considered that fundamental rights may be claimed. These rights must not
be outcome of any particular or peculiar conditions. He further stated the nature of
fundamental rights. According to him, human life and conditions of human life are
constantly changing because of advancement of sciences and technology. He didn‟t
wanted that such aspects must impose limitations on fundamental rights. For example,
limitations are imposed on fundamental rights because of rapid changes in the
standard of living of the people.
Further he stated that civil rights have become more standardized in last 200
years. He was of the opinion that civil rights are not confined to citizens but they are
confined to humanity in general. The state has to promote necessary facilities because
of which the people are able to enjoy these rights in fullest possible manner. The
rights provided to citizens in form of civil rights forms an obligation on the part of the
State. Thus, according to him, civil rights are group of political rights that primarily
belong to citizen. For this purpose, he invoked dual aspects viz., principle of
ministerial responsibility and the fulfilment of wishes of the ultimate sovereign i.e.
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people. He also talked about free and fair elections through which people must be
given right to select their representatives.
According to him civil rights are conditional rights. Political rights include
democratic freedom. He admitted that democratic freedom can be sustained through
trial by jury. If political privileges and other inequalities are abolished among citizen
then only trial by jury works as the foundation of civil liberties. He suggested that
consent of people must be expressed through free elections. He considered free and
fair elections as an important civil right. The party in power can take decisions but the
veto on certain aspects shall lie on the executive.
He also stressed for the following sets of rights:-
i) right to freedom of assembly
ii) right to freedom of speech
iii) right to freedom of association
iv) right to freedom of movement
v) right to freedom of communication by words or symbols
He considered these rights as basic rights. He considered them as

constitutional guarantees. Most of these rights come under civil rights. These rights
contain obligations; therefore they are not absolute in nature. He suggested that public
decency, morality, feelings for other individuals, etc. cannot be harmed through
enjoyment in toto.
He suggested for protection against abuse of these rights. He suggested for

safeguards against anti-social activities, unlawful activities, etc. He considered that
Trial by Jury is not only important for democratic freedom but it is also important for
civil liberties. He added that no rights shall be used for destructive purposes.
Under the category of economic and social rights, he considered right to life as
indispensible one. He considered that the said right becomes meaningless without
right to free election. According to him, Rights of Individuals must be treated as if
obligation by the State. Such obligation must not be restricted. He considered these
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rights as conditions precedent for full development of human personality. For this
purpose, he quoted the words of the President Roosevelt-
“We have come to the clear realization of the fact that true individual freedom
cannot exist without economic security and independence. Necessitous men are not
free men. People who are out of a job are the stuff out of which dictators are made. In
our day these economic truths have become accepted as self-evident. We have
accepted, so to speak, a second Bill of Rights, under which a new basis of security
and prosperity can be established for all regardless of station, race of creed. Among
these are:
i) The right to earn enough to provide adequate food and clothing and recreation.
ii) The right to every farmer to raise and sell his product at a return which will
give him and his family a decent living.
iii) The right to every businessman, large and small, to trade in an atmosphere of
freedom from unfair competition and domination by monopolies at home or
abroad.
iv) The right to every family to a decent home.
v) The right to adequate medical care, and the opportunity to achieve and enjoy
good health.
vi) The right to adequate protection from the economic fears of old age, sickness,
accident and unemployment.
vii) The right to a good education.”
According to the President Roosevelt, if abovementioned conditions prevail

then only there shall be peace all over the world. The perfect attainment of these
rights is only feasible in a classless society.
According to Mr. K.T. Thomas, the obligation of the State must be regarding
protection of basic rights such as right to life or liberty. Besides this, right to work,
right to health, right to education must be protected by constructing sufficient
numbers of schools, colleges, hospitals, etc. He suggested that besides protection of
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these rights, the State must provide institutional conditions through which these rights
shall be enjoyed completely. Through freedom of expression, it is the duty of the State
to enforce such laws through which the freedom of others must not be jeopardized.
According to him, the fundamental rights in the civilized society must be

unconditional. According to him, freedoms are granted for the purpose of expression
of these rights. He agreed that absolute freedom is not available. He suggested for
providing fundamental rights without the distinction of race, caste, creed, sex, etc. he
stated as many as 59 types of rights to be included in the list of fundamental rights in
the Constitution for the Union of India. The summations of these rights are as under:
i) right to equality by birth for public life, social activity and economic
opportunity
ii) equal rights and opportunities in education, health, training, employment, etc.
iii) abolition of titles, honours, privileges, etc. except in case of degrees, official
posts, etc.
iv) titles to be accepted by the permission of the Head of the State
v) abolition of existing titles
vi) non-recognition of inheritable titles, dignities, honours, etc.
vii) citizenship must be as prescribed by law
viii) freedom of thought and expression of opinion (including non-citizens) as per

the laws of the land
ix) equal accessibility of all means of communication for all
x) freedom of speech through censorship by public authority
xi) freedom of association for lawful purposes and for the interest of the society
xii) right to peaceful assembly for all purposes except otherwise opposed by law
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xiii) right to freedom of conscience including freedom of belief, worship, religion,
faith, doctrine, etc. subjected to public peace, tranquillity, etc.
xiv) absolute neutrality on the part of the State in religious matter i.e. state to be a
secular institution.
xv) public employment not to be based on religion, sex, creed, etc. It does not
include office of profit, honour in case of trade, profession, etc.
xvi) preservation of culture, language and script including development of a single

national language for official or public purposes.
xvii) non-permission of usage of public utility services like school, college,

hospital, etc. on the ground of caste, creed, colour, sex, etc.
xviii) equal right of access for public utilities like schools, colleges, hospitals, etc.
xix) right of acquiring, owing, holding, selling or mortgaging property in any part
of union as per the provisions of the laws
xx) religious bodies, corporations, temples, mosque, church, durgah or any other
religious institutions were given right to property in land or other form
acquired by way of gift.
xxi) the state through its sovereign power and authority may at anytime takeover
property dues or privileges held by a religious institution
xxii) the duty of the Indian citizen to maintain public peace and tranquillity.
xxiii) every citizen is guaranteed right to free movement and settlement in any part
of the Union, subjected to prevailing laws
xxiv) no proprietary rights shall be allowed for giving recognition to any private
individuals or corporations whether citizen of India or others in supply of
arms, armament, etc. soil or sub-soil of the country, mines, forests, rivers,
waterfalls and other forms of natural wealth.
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xxv) the right to employment shall be with adequate remuneration and it must
include comforts and amenities like housing shall be guaranteed to every
citizen of India
xxvi) all work shall be regarded equally honourable and productive
xxvii) the obligation is put on the State to provide work and employment to all its
citizens
xxviii) all kinds of forced labour or beggar of any kind shall be forbidden
xxix) every citizen of India is guaranteed the right to free education upto a minimum
standard prescribed by the union legislature
xxx) every citizen of India is guaranteed the right to maintenance at public expenses
during the period of illness, temporary disability, old age, maternity, etc.
xxxi) right to form trade union, join trade union by workers or peasants shall be
guaranteed
xxxii) every citizen shall be granted right to vote or to contest elections of over 18
years of age
xxxiii) no accused in custody shall be convicted for unreasonable period without trial
or due process of law
xxxiv) no accused shall be charged or tried of any offence under any law for which
the law is not in existence
xxxv) capital punishment shall be abolished
xxxvi) no one shall be liable for the same offence twice
xxxvii) no one shall be put in jeopardy of life and limb
xxxviii) the accused arrested of crime of bailable offence shall be released on bail
xxxix) the offender convicted shall not be punished excessive, cruel or vindicative
punishment, crime shall be treated as a symptom of disease. Punishment given
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to the accused shall be regarded as a cure of disease and not as a mode of
revenge
xl) no one shall be compelled to be a witness against himself in criminal cases
xli) no one shall be deprived of his life, limb or property without adopting due
process of law
xlii) general search warrants shall be considered illegal and shall be forbidden
xliii) no search warrants shall be issued on general grounds. It shall be issued on

reasonable grounds. It should be supported by oath or affirmation. The place
to be searched must be specifically mentioned
xliv) excessive fines must not be imposed
xlv) the right of trial by jury shall be preserved in claims exceeding Rs. 100 in civil
suits
2.5) Constituent Assembly Debates on Article 177 (Debate regarding

Preamble)
The Constituent Assembly Debate on Article 1 was held on 15th November,

1948. It was regarding usage of specific set of words in the Preamble of the
Constitution. For this purpose, Mr. Maulana Hasrat Mohani proposed the following
sets of words-
“Sovereign Independent Republic,
Sovereign Democratic Republic,
Sovereign Democratic State.”
Mr. K.T. Shah proposed for inserting the words like „Secular, Federal,
Socialist‟ after the words shall be in the preamble. His abovementioned words to be
read as, “India shall be a Secular, Federal, Socialist Union of States.” He was of the
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Pg. no. 397 to 432.
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opinion that by using such words in the Preamble, it will give an idea about governing
ideals of the Constitution. His words pinpoint about India to be a State or Union. India
must be a Federal, Secular, Socialist Union of States. Further he suggested to used the
word „Union‟ in place of „States‟, because the word „States‟ is used in conflicting
sense in different articles. He also suggested that if any new state is formed in the
Union then it must be Federal, Secular, Socialist State.
He proposed the word „Federal‟ because he wanted Indian Union not be a

Unitary State. According to him the word „Federal‟ implies to agreed association. The
States in India must be „States forming part of the Federation‟. He wanted India to be
a Secular State. He believed in clear and emphatic description of the State. He
stressed on the secular character of the State by realising the bitter experiences of the
past. According to him this would be an assurance to the people for matters pertaining
to the governance of the country pertaining to injustice or inequality among citizens.
He proposed for the word socialist because the word socialist is the synonym of
curbing social abuses. It provides equal justice and equal opportunity to everybody.
He believed that if this is not done then in future it may lead to violent revolution as
well as disestablishments of vested interests.
The said amendment of Mr. K.T. Shah was opposed by hon‟ble Dr. B.R.
Ambedkar. It was opposed for two reasons viz., if social obligation of the state is
stated in the Constitution, then it will take away the liberty of the people; secondly, he
emphasized on the obligation created on legislature and the executive through
fundamental rights and the directive principles. Mr. H.V. Kamath also opposed the
amendment proposed by Mr. K.T. Shah.
Shri K. Hanumanthaiya and Mr. Mahbood Ali Biag Sahib proposed for federal
government and not unitary government. Dr. B.R. Ambedkar used the word „Union‟
but in form of „Federation‟. They proposed that the word „Union‟ must be substituted
and word „Federation‟ must be used. Mr. H.V. Kamath proposed for substituting the
word „Pradeshas‟ in place of „States‟. The said amendment was adopted.
The Drafting Committee advised that India shall be the Union of States. Pandit
Lakshmi Kanta Mishra held that, in the Constitutional literature of the world „State‟
includes the idea of sovereignty and absolute independence. He expressed his
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ambiguity regarding connotation of the meaning of State for three words viz.,
provinces, Pradesh and the nation. He supported Mr. Kamath‟s amendment. Shri
Rohini Kumar Chaudhri opposed the amendment brought by Mr. Kamath.
Pandit Jawaharlal Nehru suggested that word State should be applied to

Pradesh as well as Provinces. The motion for inserting the word „Federal‟ before the
word „Union‟ and the motion for substituting the word „States‟ for „Pradeshas‟ was
negatived.
Thereafter, the motion for substituting the word „States‟ for „Provinces‟ was
discussed. Mr. H.V. Kamath suggested that the word „State‟, word „Province‟ be
substituted. He suggested that if word „Pradesh‟ is not used then word „Province‟
must be used. Dr. B.R. Ambedkar did not accept the amendment. The said aspect was
kept for voting. This motion was negatived.
Thereafter, Shri Mahavir Tyagi moved the amendment that: for the word
„State‟ the words „Republican States and the Sovereignty of the Union shall reside in
the whole body of the people‟ be substituted. He wanted that the word „Sovereignty‟
must on record. For this purpose, Mr. Vice President pointed out that the proper place
for the word Sovereignty is the Preamble. Mr. Tyagi wanted that the word
„Sovereignty‟ must be defined in any one of the article of the Constitution.
Shri Gopikrishna Vijayavargiya told that Sovereignty is specifically

mentioned in the Chinese Constitution as it is an important power. He considered this
amendment as important one. Professor Shibban Lal Saksena also considered it as an
important amendment.
Thereafter another amendment was brought. The following aspects were

decided through this amendment.
(i) the Union was named as BHARAT
(ii) the character of Bharat is sovereign, independent, democratic, socialist

republic
(iii) the government must be established by the Constitution
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(iv) the powers of the government, legislature, executive and judiciary shall be
derived from the people
The above amendment was supported by Maualna Hasrat Mohani and

objected by Shri Prabhudayal Himat Singka, Shri M. Ananthasayanam Ayyangar and
Shri Loknath Mishra. Dr. B.R. Ambedkar was of the opinion that sovereignty vests
with the people. The said amendment was withdrawn by the leave of the assembly.
Thereafter, Professor K.T. Shah moved an amendment that in Article 1, the

words „equal inter se’ be added after the word „State‟. According to him, equality
means those who have lagged behind and remained backward must be given some
advantage over others and they must be moved forward as compared to others.
The aforesaid amendment was supported by Mr. H.V. Kamath and opposed by
Shri M. Ananthasayanam Ayyangar, Dr. B.R. Ambedkar, Mr. Naziruddin Ahmad
suggested that for Article 1 India shall be the „United States of India‟ unlike „United
States of America‟. This was opposed by Mr. H.V. Kamath. He suggested that India
shall be known as „the Union of India‟. He did not want any „hybrid development‟ by
merely copying the Constitution of either USA or USSR. Dr. B.R. Ambedkar
favoured Mr. Kamath and suggested that words „Indian Union or Union of India‟ shall
be used instead of words „Federation of India‟.
Thereafter, the debate regarding the usage of word „the‟ before the States was
conducted. According to Mr. B.R. Ambedkar, word „the‟ is a definite article and
usage of the word „the‟ before the states was borrowed from the Australian
Constitution. Thereafter, voting was done for the said amendment and the same was
negatived.
On 17th November, 1948, Wednesday Professor K.T. Shah moved an

amendment that „such other territories as may be required or as may agree to join or
accede to or merge with the union‟. It was regarding joining of Princely States with
the Indian Union. He wanted that words join, accede or merge shall be used instead of
„acquired‟. According to him „acquired‟ means „conquest‟. By removing the word
„acquired‟ his intention is cleared that there is no use of coercion or conquest or force
or aggressiveness is done by the Indian Union. There were three possibilities for
joining the Indian Union viz.,-
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(i) voluntarily joining
(ii) joining by way of acceding
(iii) joining by way of merger
Dr. B.R. Ambedkar opposed the said amendment. Against this Mr. Vice
President suggested for the motion that words „or as may agree to join or accede to or
merge with the union‟, must be added. The said motion was negatived.
Thereafter, Professor K.T. Shah moved another amendment to be added as

provisio to article-1. It was, „provided that within a period not exceeding ten years of
the date when this Constitution comes into operation, the distinction or difference
embodied in the several schedules to this Constitution and in the various articles that
follow shall be abolished, and the member States of the Union of India shall be
organized on a uniform basis of groups of Village Panchayats Co-operatively
organized inter se, and functioning as democratic units within the Union.‟ The main
reason for bringing the said amendment was that, each and every State of India must
be considered as equal in long run. No state must be given the special status in long
run. The period of ten years was granted because during that time there were many
difficulties and differences due to which uniformity in jurisdiction cannot be
ascertained. He was sure that lack of uniformity may hinderge the development of the
nation. So, it became necessary to remove inequalities among the states. The
existence of differences among the then states was only ad hoc creations of Princely
States. The said amendment was an attempt to reconstruct, readjust and reorganize
various units in order to achieve the principle of democratic self-government.
The above amendment was supported by Mr. Ananthasayanam Ayyangar.

According to him, the Constitution does not provide for any inequality or distinction.
He admitted that, the attempt made by Sardar Patel for abolishing the distinction
between the States and Provinces shall be disappeared automatically. Professor
Shibban Lal Saksena supported the said amendment and agreed to the point that the
law is not uniform due to such indifferences. He admitted that by doing so, the
distinction prevalent in various schedules shall be abolished. Moreover, the Gandhian
principle of village republics can also be fulfilled. Mr. Maulana Hasrat Mohani
supported the said amendment and told that the concept of village panchayat is similar
89
to that of village Soviet in Soviet Union. According to him, the Constitution of Soviet
was quite similar to the Constitution of the All-India Congress Committee.
On 17th September, 1949, Saturday, Dr. B.R. Ambedkar moved an amendment

for inserting clauses in article 1. These were-
i) India, that is, Bharat shall be a Union of States
ii) The States and the territories thereof shall be the States and their territories for
the time being specified in parts I, II and III of the First Schedule.
No unanimous decision was drawn for this amendment.
On 18th September, 1949, Sunday, the above debate was continued and the
motion regarding above debate was accepted. Thereafter, Mr. H.V. Kamath bought
another amendment regarding territories of India. According to him, the territories of
India must be as specified in parts II and III of the First Schedule for the time being.
Against this, Dr. B.R. Ambedkar suggested that the territories of India must be as
specified in parts I, II and III of the First Schedule. Mr. H.V. Kamath pointed that the
territories means those territories that were known immediately before the
commencement of this Constitution i.e. the Governor‟s Provinces. Dr. B.R. Ambedkar
was of the opinion that territories means those territories that were known
immediately before the commencement of the Constitution as well as that were
known during the time of framing of India‟s Constitution.
Thereafter, Mr. Maulana Hasrat Mohani stated in the Objectives Resolution

that, “The Constituent Assembly declares its firm and solemn resolution to proclaim
India as an Independent, Sovereign Republic and to draw up for her future governance
a Constitution.” Mr. Mahavir Tyagi clarified that the States of India are Sovereign
States in the form of republics.
According to Mr. Maulana Hasrat Mohani Union of India shall be the Union
of Sovereign States. He affirmed that the Union of India shall include completely
autonomous Provinces and groups of States in which each state shall contain smaller
states merged in form of Districts and Provinces. According to him, India shall be the
federation of independent units. By doing so, provincial autonomy shall be gained to
90
each unit under federation. He opposed the move of Dr. B. R. Ambedkar because Dr.
Ambedkar used the words „Union of States‟ instead of „Federal Republic‟. He
clarified the differences in meaning of the words Union and Federation. According to
him, the word Union means as that proposed by Prince Bismark of Germany, Kaiser
William and Adolf Hitler. So, under the Union, the States come under the rule. There
is no place for Provincial Autonomy. Provincial Autonomy is found under Federation.
By using the word Union, India is made a Unitary Government or Unity empire. He
didn‟t want to promote imperialism in any manner.
Shri B.M. Gupte clarified the intention of Dr. B.R. Ambedkar for using the
word „Union‟ that Dr. Ambedkar wanted to negative the right of succession. If the
word „Union‟ is not used then there remain the chances that the right of succession
may remain open for the Provinces. According to him, the Indian States that have
signed the First Instrument of Accession get the chance to secede (withdraw from the
membership) after they appear once in the Constitution. By using the word „Union‟ of
those Indian States accede after the commencement of the Constitution then their right
of secedes extinguishes. Thus, in the form of Union, India can remain a decentralized
unitary government. According to him, apart from Union, India is a federation
because it bears one characteristic of federation because it bears one characteristic of
federation i.e. provinces have jurisdiction over large number of subjects.
Mr. T.T. Krishnamachari objected that federal character or characteristics are

missing in the federal constitution. In such a situation, the Constitution of the States
cannot be provided. Against this Mr. B.M. Gupte was of the opinion that in federal or
semi-federal constitutions word „State‟ cannot be used for a unit. Unit has not got any
residuary powers. So, no sovereignty lies in units. But in case of India, word „State‟ is
used for Commissioner‟s Provinces. There is absence of legislation in
Commissioner‟s Provinces. He had given an example of Canada. In Canada, there are
no residuary powers vested in the units, so they are called Provinces. Similarly, the
residuary powers are vested in the units, so they are called „States‟. The situations
prevailing in USA and USSR are similar. Further, he gave an example of South Africa
wherein altogether different situation is found. In South Africa units are called
„States‟. They are of unitary type. These „States‟ can also be called „Provinces‟ if
91
consented. The word „State‟ is used in a particular meaning in many federal and semi-
federal constitutions of the world.
According to Shri Ram Sahai, the state enjoys the same rights in the same
manner as enjoyed by the provinces under the constitutional framework. The
President of the Constituent Assembly suggested for using the following set of words-
„India shall be a Union of Indian Socialistic Republics-U.I.S.R‟. He suggested

this on the basis of U.S.S.R. model. The above mentioned amendment was not
adopted. The amendment that was adopted for article 1 of the Constitution was-
“That for clauses (1) and (2) of article 1 the following clauses be substituted:
1) India i.e., Bharat shall be a Union States.
2) The States and the territories thereof shall be the States and their territories for
the time being specified in parts I, II and III of the First Schedule.
From the very beginning the framers of the Indian Constitution wanted India
sovereign, independent and democratic republic apart from secular, federal and
socialistic country. They wanted that India should be completely democratic republic
and it must cherish all essential qualities, characteristics and ingredients of the
democratic republic. They have specifically mentioned about the essential qualities of
democratic republic. They wanted that the distribution of material resources must be
made for common good. They didn‟t want any sort of concentration of wealth. They
desired for equitable distribution of means of production.
The word „State‟ is used for group of provinces, pradeshas, etc. State means
all states forming the Union of India. They have used the word union instead of the
word federation. This shows that they wanted to keep India united forever. Moreover,
they did not favoured further partition or assignment of special status to any particular
state or states in long run. Due to this reason word „Union‟ is used. The characteristics
of „federal nature‟ are found in slight proportion in the constitution. It pertains to
Provincial Autonomy regarding jurisdiction over many subjects. Republican character
of the state is maintained.
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2.6) Constituent Assembly Debates on Article 978 (Articles 14 & 15
of the present Constitution)
The debate regarding Article 9 was conducted on 29th November, 1948. The
Article 9 is-
„The State shall not discriminate against any citizen only of race, religion,
caste, sex or any of them.‟
The then Article 9 is the Article 14 as well as Article 15 of the present

Constitution. Article 14 of the Indian Constitution is- equality before law and Article
15 is- prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth. Article 9 further states that-
„In particular, no citizen shall, on grounds only of religion, race, caste, sex or
any of them, be subjected to any disability, liability, restriction or condition with
regard to- assess to shops, public restaurants, hotels and places of public
entertainments.‟
For this purpose, Mr. C. Subramaniam suggested that the State has no power
to discriminate in above mentioned matters. He proposed to remove the words „In
particular‟ and also suggested to use a separate clause i.e. 9(1a). It must be read as,
“No citizen shall, on grounds only of religion, race, caste, sex or any of them be
subjected to any disability.”
Thereafter Mr. Syed Abdur Rouf suggested for inserting the words „place of
birth‟ instead of the word „sex‟. He was afraid that there may remain chances of
discrimination to be done on the basis of place of birth. The said amendment was
adopted. He also explained that the word „race‟ is used in a very comprehensive
manner. He explained his point of view that if anybody wants to discriminate with a
person belonging to a particular province then such discrimination is not done on the
basis of race but it is done on the basis of place of birth. The discussion on the said
amendment was postponed.
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Constituent Assembly Debates, Lok Sabha Secretariat, New Delhi, 2009 Edition, Book no.-2, Vol-VII,
Pg. no. 650 to 664
93
Thereafter Prof. K.T. Shah suggested through an amendment to use the word
„religion‟ in place of the word „creed‟. He further suggested that there is no need to
give or mention the list of different kinds of public places. He connoted the word
„public place‟ in a wide sense. He admitted that in the past the discrimination was
done with certain communities and castes regarding their entry at different public
places. He admitted that the Constitution of India is based on principle of democratic
equality. So, he considered useless to mention the names of each and every public
places in the said article.
He further admitted that due to the introduction of certain exceptions in the

said article, there are chances of flourishing of denominational, sectarian, and
communal institutions. He was feared that it may finish the real democracy. He
further specifically insisted that in order to stop sectarian or denominational
exclusiveness then schools, hospitals, asylums, etc. shall not be reserved for any
reason and for any given sect or community. All public places must be made open
and accessible to all citizens of the country. This shows that he wanted to promote
perfect and real equality among the citizens of India. It shows that if any social
institution is founded by a particular community but its beneficiaries must be the
society at large.
He then adhered that opening up of any institution that benefits only a given
community or given members or fund providers is in reality lacks civic sense.
According to him such concept or idea is against the equality of citizenship. He told
that the Constitution of India has expressively made clear that all citizens of India are
equal. For this purpose, he gave an example that- if any institution is founded and
maintained exclusively by any particular person and at that same time it receives any
public recognition, protection, safeguard, etc. from any public authority then such
institutions are covered under the said article. He was of the view that there shall not
be any sort of vested interest in application as well as in interpretation of the said
article. The said amendment was later on negatived.
Mr. H.V. Kamath, proposed to substitute words „State Funds‟ for the
„revenues of the state‟. Dr. B.R. Ambedkar agreed with it. Thereafter, Mr. Mohd.
Tahir proposed through an amendment that, for the words „state or dedicated to the
use of the general public‟ the words „state or any legal authority or dedicated to the
94
use of the general public and any contravention of this provision shall be an offence
punishable in accordance with the law‟ be substituted. He proposed so, for the
complete realization of equality of human beings. He felt necessity of bringing some
penal clause in the said article. He told so because of miserable condition of many
scheduled castes and low castes people in India. The said amendment was adopted.
Professor K.T. Shah moved another amendment-
“That at the end of clause (2) of article 9, the following be added:-
„or for scheduled castes or backward tribes, for their advantage, safeguard or
betterment‟.”
After the above amendment, the said amendment to be read in form of clause
as-
“Nothing in this article shall prevent the State from making any special
provisions for women and children.” The aspect is envisaged in article 15(3) of the
present Indian Constitution. Professor K.T. Shah‟s intention behind this amendment
was to stop discrimination against women and children. He also focused on women
and children of scheduled castes. He explained that unless and until real equality is
not established among the citizens of India, such special treatment should be given to
women and children. He accepted the truth that the people of scheduled castes and
backward tribes of India have been suffering in various ways. According to him, if
this is done then they will not have to undergo any sort of struggle for their rights.
Thus, according to him, people of scheduled castes and backward tribes, especially
women and children must be given special treatment pertaining to education,
opportunities for employment, etc. He was hopeful that this may lead to the
development of the nation. After general discussion, voting was done. The said
amendment was negatived.
For the debate regarding the use of words „place of „ before the word „birth‟,
Mr. Raj Bahadur was of the view that it gives restricted meaning to the entire
amendment. He was of the opinion that the word „birth‟ is not only applied to
„residence‟ but also to „descent‟. According to him if the word „descent‟ is only taken
into consideration then it may lead to more discriminations in future. He wanted to
95
remove all sorts of discriminations through the Constitution. He wished that not only,
the distinction regarding religion, caste, sex, etc. be abolished but discrimination
based on the basis of family, descent, etc. must be abolished through the constitution.
He wished that not only distinction should be removed but all possibilities of chances
of discrimination, favouritism or nepotism on the basis of birth or descent be
removed.
Shri S. Nagappa was of the opinion that it is necessary for the population of
India to be politically free as well as socially free. According to him, freedom means
political, social and economic freedom. He wished that social rights must be given to
a particular community under the present article. He admitted that obtaining social
rights are more expensive and explanatory. He wanted to focus on the issue of
economic evaluation of the downtrodden classes of Indians. He admitted that, “Most
of our courts are courts of law and not justice.” He meant that if economic rights are
given to downtrodden people then they have not to approach courts frequently for
accessing justice.
Sardar Bhopinder Singh Man suggested that “at the time of deciding about the
fundamental rights, it would be incomplete if places of worship are not included in the
list of such rights.” According to him places of worship must be kept open for all and
such places must be in custody of ultimate custodians or pujaris. He wanted that the
barriers of religion must be removed permanently.
Professor Shibban Lal Saksena proposed for placing the entire article 9 under
the head of the Directive Principles of the State Policy. Shri S.K. Sidhwa proposed for
using the words „places of public resort‟ for all public places instead of mentioning
each and every public places separately. He further proposed for including the words
„place of worship‟ in the said article. He explained that the definition of the word
„public‟ is given in section 12 of the IPC. The said definition is in a very restricted
sense. According to him, „public‟ means everyone irrespective of caste or creed.
Mr. Mohd. Tahir was of the opinion that the controversial application of
article 9 must be considered a crime. Against which Dr. B.R. Ambedkar was of the
opinion that infringement of or interference in or with fundamental rights is itself a
crime and such an offence is punishable under the law. He rejected the aspect of
96
dealing with penal provisions separately. Dr. B. R. Ambedkar also commented on
Professor K.T. Shah‟s amendment regarding usage of words „Scheduled Castes‟ and
„Scheduled Tribes‟ along with women and children. Dr. B.R. Ambedkar suggested
that scheduled castes and scheduled tribes must not be segregated from the general
public. Dr. B.R. Ambedkar also suggested that as public places are maintained by
public funds, there is no need to make any sort of further distinction for this purpose.
Moreover, he admitted that there is no need to claim about entry or exit regarding
public places.
The question regarding the interpretation of the word „public‟ was raised by
Mr. R.K. Sidhwa. Dr. Ambedkar answered the question and stated that the word
„public‟ shall bear the same meaning as enumerated within the Indian Penal Code.
Shri C. Subramaniam proposed an amendment for insertion of the words

„discrimination‟ and „public worship‟ after the words „liability‟ and „public resort‟.
The said amendment was adopted. Thereafter, the amendment regarding usage of
words „State Funds‟ for the words „the revenues of the state‟ were adopted.
Thereafter, entire article 9 was adopted and added to the Constitution.
The framers of the Indian Constitution aimed at non-discrimination by the

state against any citizen on grounds of race, religion, caste, sex or any of them. The
said article is framed for the citizens of India. The protection of the said article is
given only to the citizens. They have specifically mentioned that there must be no
chances of flourishment of denominational, sectarian and communal institutions.
They wanted flourishment of real democracy. They wanted that any social institution
founded by any particular community must benefit to the entire society and not only
to the particular community at large. In other words, the beneficiary of the social
institutions must be the society at large. Moreover, they wanted to bring complete
equality for women and children. For this, they wanted that nothing should prevent
the state in making any special provisions for women and children. They wanted to
promote and implement the concept of equal citizenship. They didn‟t want to create
special class of scheduled castes and backward tribes. They covered all under the one
head i.e. „citizen‟. They wanted that the policy of the state must be non-
discriminatory. They have extended the scope of the said article by non-
discrimination policy. The said policy is to be adopted by hotels, dharmasalas,
97
musafirkhanas though managed or not managed by public funds. The word „public‟
used in the said article is used in a generic sense i.e. it is restricted only to citizens of
India. They have treated all public places uniformly including hospitals, educational
institutions, etc. They wanted that no special status to be accorded to any person
including royal families, dynasties, rich persons, etc. They wanted non-existence of
financial inequality, social inequality, economic inequality and religious inequality.
They also intended for equality before law.
2.7) Constituent Assembly Debates on Article 1179 (Article 17 of the

present Constitution)
The Constituent Assembly Debate on Article 11 was started on 29th

November, 1948. The article 11 deals with removal of untouchability. The then article
11 is article 17 of the present Indian Constitution.
Mr. Naziruddin Ahmad moved an amendment that-
“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.”
He moved the above amendment because the word, „untouchability‟ has not
legal meaning. He clarified that the word „untouchability‟ is not only applied for
human beings but it is applied for a variety of things. The said amendment was
negatived because framers were not interested in substituting the above aspects. Mr.
Muniswamy Pillai wanted the abolition of untouchability. He wanted that abolition of
untouchability must be included in article 11 of the Constitution.
Dr. Manomohan Das was of the opinion that removal of untouchability is an

important fundamental right. At the same time, he explained that any sort of special
privileges and safeguards must not be given to minority communities. According to
him, the said article was to save most of the people from humiliation and disgrace.
Unlike other countries, he wanted that practice of untouchability must be made a
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Pg. no. 664 to 672.
98
punishable crime under the Constitution. He explained his point of view by quoting
the words of Mahatma Gandhi i.e.- “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 lifelong struggle against the oppressions and indignities that
have been heaped upon these classes of people.” He further added that the word
„Swaraj‟ will become meaningless until and unless untouchability is not abolished.
Mr. Santanu Kumar Das proposed for removal of social inequality. He

demanded for framing laws in this direction. Smt. Dakshyani Velayudhan demanded
for removal of untouchability. She expressed about the works of Mahatma Gandhiji
regarding struggle over abolition of untouchability. She admitted that she cannot
expect a Constitution with a clause pertaining to untouchability because; the
Chairman of the Drafting Committee belongs to the community of untouchables.
Further she expressed that by abolition of untouchability, there will be no community
as „untouchables‟ in future.
Professor K.T. Shah made a suggestion that the definition of untouchability is

nowhere given in the Constitution. Thus, a question arises that what constitutes
untouchability? He was doubted that there may be problem in future for
understanding the term untouchability. He suggested for making corrections i.e. to use
some different word instead of using the word „untouchability‟. According to him, if a
person is placed under disability for a period of time, he is treated as untouchable. His
suggestion was not accepted by Dr. B.R. Ambedkar. Thereafter, motion regarding
article 11 was adopted and it was added to the Constitution.
Thereafter, Mr. Z.H. Lari proposed for insertion of article 11-B in which he
proposed for abolition of capital punishment except for sedition involving use of
violence. He stated that capital punishment is abolished from various countries of the
world. He proposed so, because, once the said punishment is pronounced, the offender
remains no more alive. Later on if the court or tribunal comes to know that it had
committed the mistake i.e. the person on whom such sentence is pronounced is not
guilty then such mistake cannot be rectified.
He was of the opinion that human life is sacred. The life of a man can be taken
unless and until such a man is harmful for the lives of others in the society. He gave
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an example of thirty countries of the world were society is protected at large without
such punishment. He further admitted that the said punishment is abolished from
abovementioned countries since one or two decades. He also admitted that capital
punishment is brutal in nature and sentiments of brutality do not prevail in the present
century. He quoted the example of Dickens that- many decades ago Dickens stated
that capital punishment encourages that part of the population that is determined in
committing murders. He then proposed that for habitual murderers, capital
punishment is proper but for those murderers that have committed the crime
occasionally, for them life imprisonment is proper instead of capital punishment. He
then proposed for introduction of reformative element in the punishment. He
demanded to give prime consideration to reformation in punishment. He demanded
for the abolition of capital punishment under three grounds viz.,- human judgement,
sanctity of human life and the purpose of punishment. He also admitted that if there
exists a situation in which the state is put into danger and where there is a risk of loss
of lives of many people then such punishment may be inflicted. He also expected
from the Parliament to abolish the said punishment permanently within two or three
years.
Thereafter Shri Amiyo Kumar Ghosh expressed his views. According to him,
the said punishment is inhuman and there are probable chances for judges to make
mistakes. He admitted that society is not made only of good elements. He was of the
opinion that the state may impose penalties on such persons who become dangerous
for the society. He further stated that the same punishment must be given the status of
unconstitutional with the development of the society. He admitted that our society is
passing through the transitional period and it has become necessary for the state to
impose grave penalties for the offences endangering the society. He suggested that
capital punishment should be abolished. He proposed that such abolition must be done
by providing a clause in the Constitution. If it is done so, then the hands of the State
shall be tied. If should be done so by making necessary amendments in the Indian
Penal Code. He further expressed that capital punishment shall be abolished without
amending the Constitution.
Thereafter, Shri. K. Hanumanthaiya expressed that instead of capital

punishment, life imprisonment must be given to the convict. He admitted that from
100
the State‟s point of view, fear principle is necessary. He informed that if reformation
is practised then naturally, deterrent will loose its value. Under reformation a person
of life convict is released soon by giving him various concessions. If the convicts
assured that if he takes away the life of anybody then for a long time he has to remain
in a prison, he will not do so. Therefore, he recommended that for the safety of the
State, the said punishment must not be abolished. The said suggestion regarding
article 11-B was negatived.
The framers of the Constitution wanted to abolish untouchability on account

of religion or caste. They wanted that untouchability on grounds of religion or caste
must be totally prohibited. The framers revealed their faiths in the great reforms
carried by Mahatma Gandhiji, Raja Ram Mohan Roy, Swami Vivekananda, etc. Dr.
B.R. Ambedkar also showed his faith in abolition of untouchability in a complete
manner. They wanted that the said social inequality to be removed completely. They
wanted that the untouchability in any form must be made punishable by law.
The intention of the framers behind moving article 11-B was to partly abolish
the capital punishment. They wanted that the State must not be put into helpless
condition by completely abolishing capital punishment. They wanted that only
reformation cannot serve the purpose. According to them, deterrence was necessary.
They also expressed their views that the capital punishment can be removed after the
development of the society upto a certain extent. Most of the framers were against the
complete abolition of capital punishment. Article 11-B didn‟t become the part of the
Indian Constitution as the motion regarding it was negatived. But their intention
regarding abolition of death sentence has become very must cleared.

The then article 10 is article 16 of the present Indian Constitution. Article 16

of the present Indian Constitution is- „Equality of opportunity in matters of public
employment.‟
80
Pg. no. 672 to 704.
101
For article 10(2), Mr Naziruddin proposed that- for the words „on grounds
only‟ the words „on grounds‟ be substituted. He wanted the word „only‟ to be
removed because it appeared to him as redundant.
Shri Loknath Mishra proposed that the state employment is not a fundamental
right but it can be obtained on merits.
Thereafter Mr. Naziruddin Ahmad proposed for amendment regarding

substitution of the following from clause (2) of article 10 that- “Every citizen shall be
eligible for office under the state irrespective of his religion, caste, sex, descent or
place of birth.” The said amendment was negatived through voting.
Professor K.T. Shah proposed for insertion in clause (2) of article 10 that- “No
citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth in
India or any of them be ineligible for any office under the state.” Through the said
amendment, he didn‟t want any sort of reservations in posts, offices and employment.
Moreover, he also wanted that no discrimination shall be made on the grounds of
place of birth. He also insisted that no categorical discrimination must be made
against the citizens of other nations. Further, he added that no one (foreigner) in India
shall hold the office of profit, office or place of trust, etc. He said so, on the basis of
past experiences.
Mr. Ananthasayanam Ayyangar moved an amendment regarding clause (1)

and (2) of article 10 that- “for the words „in matters of employment‟, the words „in
matters relating to employment or appointment of office‟, be substituted and for
clause (2), after the words „ineligible for any‟ the words „employment or‟ be
inserted.”
Regarding the above amendment, Mr. Ayyangar opted for preciseness.

Besides employment, he covered the aspect of appointment too for sub-clause (1) of
article 10. The said amendment was adopted through voting.
Shri Jaspat Roy Kapoor wanted that citizens of India must be granted equal
opportunity in maters of employment carried under the state. Further, he stated that
citizen residing in any part of India must be liable for employment in any other part of
India. He wanted that citizen must be treated as a whole and not of any particular
102
region or province. He wanted that there shall be no such rule that a person residing in
a particular region or province must be eligible for employment for a certain number
of years only. He considered the knowledge and language of a particular region or
province as a sine qua non for obtaining employment in particular region or province.
Shri Alladi Krishnaswami Ayyar moved an amendment regarding insertion of

sub clause 2a to sub-clause (2) of article 10. It was- “Nothing in this article shall
prevent Parliament from making any law prescribing in regard to a class or classes of
employment or appointment to an office under any state for the time being specified
in the First Schedule or any local or other authority within its territory, any
requirement as to residence within that State prior to such employment or
appointment.” He wanted that equal opportunity must prevail in matters of
employment carried under the state. He put forth an idea of „Universality of Indian
Citizenship,‟ Further he added that residence within the state is pre-condition for
obtaining employment within the state. He kept open the jurisdiction of Parliament
regarding making of general rule for employment in all states. The said amendment
was adopted through voting.
Mr. H.V. Kamath was confused and in order to clear confusion, he asked to
Mr. Ayyar that what did Mr. Ayyar mean by „any state for the time being specified in
the First Schedule,‟ According to Mr. Kamath, the First Schedule includes Part I, Part
II and Part III. All the three parts include state. Mr. Ayyar answered that, “State
means the area covered under Parts I, II and III of the First Schedule.
Pandit Hirday Nath Kunzra moved an amendment that-“Nothing in this article

shall, during a period of ten years after the commencement of this Constitution,
prevent the State from making any reservation of appointments of posts in favour of
any backward class of citizens who........... etc.”
He explained that the abovementioned article was for the protection of

backward class regarding appointments in employment under the state. He expressed
that the word or term „backward‟ is nowhere defined in the Constitution. He wanted
that the word „backward‟ must be defined in order to avoid further encumbrances.
He was of the opinion that the special provision made for backward classes
regarding reservation in state employment must be reviewed by the state from time to
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time. If development of such classes has taken place then such special provision must
be lifted.
He then opined that the reservation of seats for depressed classes in

legislatures must be for limited period of time. He considered that reservation of
representation in the legislature is of more importance than reservation of
representation in services. He further stated that reservation of seats for minorities is
limited to 10 years. If provision for reservation of seats for minorities is to be
continued after the expiry of the term of 10 years then it shall be done every time by
amending the Constitution.
Further, he distinguished the differences between articles 10(3) and 296.

According to him, in article 296, the word „minority‟ is used and in article 10(3) word
„backward classes‟ are used. So, minorities cannot get the protection of article 10(3)
in matters of employment on grounds of backwardness. He insisted that if protection
is granted to any particular class then it shall be granted for limited period only. If it is
not done so, then there are chances of encouragement of fissiparous tendencies by a
particular class. He further stated that the Report of the Minorities Committee was
accepted by the House but the entire House was anxious to remove reservation policy
as quickly as possible. All were of the opinion that for the time being or temporary
reservation policy is proper. The said amendment was negatived through voting.
Mr. Azir Ahmad Khan moved an amendment to omit the word „backward‟
from article 10(3). He was of the opinion that only educationally and culturally
backward class requires protection, but minorities do not require any protection. If
protection is given to others then there are chances of state services to become
monopolised. According to him, if the word „backward‟ is deleted from the said
article then it shall strengthen the government and the present day differences shall
not be continued further. The said amendment was negatived through voting.
Professor K.T. Shah moved an amendment regarding article 10(4). It was-

“Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with managing the affairs of any religious
institutions or any member of the Governing Body thereof shall be a person
professing a particular religion”, shall be deleted.
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He explained that the words „in connection with‟ mean „any person holding
any office in connection with.‟ He explained about the two rival ideas prevailing in
the Constitution. One idea is that, India is a secular state. Another idea is that civil life
is wholly based on religion. According to him clause (4) is an exception to the main
principle embodied in article 10. It provides for securing immunity for the
management of the institutions of particular denominations viz., educational
institutions, hospitals, universities, etc. The person who is not professing a particular
religion must be not associated with the management of affairs of the particular
institution. The said amendment was negatived through voting.
Shri Ghanshyam Singh Gupta read the amendment that- “Nothing in the
article shall prevent Parliament from making any law prescribing in regard to a class
or classes of employment or appointment to an office under the state for the time
being specified in the First Schedule or any local or other authority within its territory
any requirement as to the residence within that state prior to such employment or
appointment.” The said amendment was adopted through voting.
Shri Ari Bahadur Gurung expressed his views that, the State has exclusive
right for making reservation of appointments in service under the State in favour of
backward class of citizen. He explained that the word „backward‟ include three
categories of people viz., scheduled castes, scheduled tribes and educationally and
economically backward. The word „backward‟ seemed vague to him. He then
demanded that the Gurkhas Community must be given the privilege of „other
backward communities‟, because Gurkhas have played an important role in
preservation of independence.
Mr. R. M. Nalavade expressed his views. He explained that the words

„backward classes‟ is a vague term because it also includes many classes of people. It
also includes educationally advanced classes. He insisted for using the words
„Scheduled Castes‟.
Dr. Dharam Prakash opined that the word „backward‟ class is not defined
anywhere in the Constitution. He was feared that there shall be no community in India
where particular section is backward. According to him, the backwardness found in
India is of three types viz., religious, economic and social. The word backward
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attracts individual interest in making appointments. He expressed that the merits of
the candidate will be overlooked. He insisted that there is no necessity for reservation.
He expressed that in near future there shall be no necessity for reservation. Therefore,
he suggested to replace the words „backward class‟ and to use the words „depressed
classes‟ or „scheduled classes. He expressed that reservation in service is necessary
for such class of people for some time.
Shri Chandrika Ram expressed his views. He insisted on inserting the words
„Scheduled Castes‟ after the words „Backward Classes‟. He mentioned that in the
Census Report of 1921 and 1931 respectively, the words „Backward Class‟ is defined.
He supported reservations for backward classes because the Constitution provides for
social, economic and political justice.
Shri P. Kakkan favoured reservation for backward classes in matters relating

to employment under the State. Shri V.I. Muniswamy Pillay insisted on giving chance
to scheduled castes in matters of employment by the State through reservations. He
was of such an opinion because people belonging to scheduled classes was socially,
economically and educationally backward.
Shri. T. Channian expressed that the word „backward‟ is not defined in the
Constitution. According to him, in South India, people are educationally and socially
backward. He demanded their representation in services. Further, he demanded their
representation for backward classes of people because they were denied from various
opportunities for almost 150 years. He demanded reservation for upcoming 150 years.
Mr. Santanu Kumar Dass demanded to continue reservation in employment by

the State till the evil effects of foreign rule continues. He demanded the need for
reservations in public services and elections. Further, he added that though it has been
said that reservations should be kept for ten years but if equal rights are given to
backward classes within two years then there is no need for reservations.
Mr. H.J. Khandekar expressed his views. He told that besides backward
classes, the condition of Scheduled Caste people is also deplorable. He told that
instead of word „backward‟, „Scheduled Caste‟ must be used. He expressed that
Scheduled Caste people are economically, socially, politically, educationally and
religiously backward. He demanded for relaxing the qualification of Scheduled Caste
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people in public services. By quoting an example of services of Thakkar Bapa as a
General Secretary of Harijan Sewak Sangh for sixteen years, the Government of India
had kept 12.5% seats reserved in higher services and 16.5% seats reserved in lower
services for scheduled castes.
Mr. Mohamad Ismail Sahib expressed that the word „backward‟ is not defined
anywhere in the Constitution. He clarified that in Madras word „backward‟ is used in
technical sense. Further he stated that in Madras alone there were more than 150 sub-
castes as backward castes. But these castes were not included in the list of scheduled
castes. He stated that the 10 years period fixed for reservation must not be the exact
yardstick for measuring backwardness. The exact yardstick according to him is the
measures taken to remove backwardness. According to him, such period must be less
than 10 years. He was in favour of eliminating communication from the society.
Sardar Hukam Singh expressed that many contradictory views prevail

regarding article 10 and article 296 and 297. According to him, article 10 includes
that, “there shall be equality of opportunity for all citizens in matters of employment
under the State.” It means that there shall be open competition for filling up
government posts. Then he explained the combined meaning of articles 296 and 297
as, “the claims of all minority communities shall be taken into consideration,
consistently with the maintenance of efficiency of administration, in making of
appointments”. He explained that on one hand there is a provision for equal
opportunity and on the other side there is a provision for special consideration for
minority communities in appointments in public services. He stated that any one
should prevail. He stated that the words „backward castes‟ are not found in any of the
statutes. He demanded that expression backward castes must include depressed
classes, scheduled castes and minorities.
Shri K. M. Munshi expressed his views. He quoted the words of Dr. B.R.
Ambedkar. According to Dr. B.R. Ambedkar, the words „backward class‟ do not
include „Scheduled Castes‟. He stated that words „backward class‟ means the class of
people who are really backward. It includes both touchables as well as untouchables.
He mentioned about the definition of the words „backward class‟ that was prevalent in
the Bombay Province before several years ago. The said definition was-“backward
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classes includes not only Scheduled Castes and Scheduled Tribes but also other
backward classes who are economically, educationally and socially backward.”
Mr. T.T. Krishnamachari expressed his views. He expressed that, the division
between backward and non-backward must be done on the basis of literacy level. He
expressed that in future if the Supreme Court wants to ascertain the intention of the
framers of the Constitution then it must be clear that our intention is focused on
„backward classes‟ and not the „caste‟. He further added that the class must be based
on what? Say grounds of economic status, literacy, birth.
The Hon‟ble Dr. B.R. Ambedkar expressed his views. He was against the
views of Mr. Lokanath Mishra and therefore he objected the amendment moved by
Shri Mishra (Supra). Mr. Mishra wanted article 10 as unitary article. He didn‟t wanted
its sub-clauses. On the other hand, Dr. B.R. Ambedkar was in favour of sub-clauses
associated with article 10. Dr. B.R. Ambedkar was in favour of accepting aforesaid
two amendments moved by Mr. Naziruddin Ahmad (Supra). Dr. B.R. Ambedkar was
in favour of the amendment moved by Mr. Ananthasayanam Ayyangar (Supra).
Dr. Ambedkar wanted that the concept of common citizenship must prevail in
India. The question of State was debated a lot. According to him, many Provinces
have adopted the concept of domicile. It varies from 7 to 10 years. He insisted on
keeping the uniform period throughout India and such period shall be decided by the
Parliament. For the term „backward‟ used in clause (3) of article 10, he insisted on
formula to be adopted by the Drafting Committee. According to him, such formula
shall include equality of opportunity and reservations in favour of certain
communities. It was because equality of opportunity is embodied in clause (1) of
article 10. According to him, for the words „backward community‟ the language
adopted by the Drafting Committee must be taken into consideration by the local
government. In other words, backward community means the community that is
backward in the opinion of the government. The reservations made by the government
shall be on the basis of equality of opportunity. After voting, article 10 was added to
the Constitution.
The framers in the real sense wanted to justify the situation of reservation in
matters of public employment. They were of the opinion that for public employment.
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They were of the opinion that for public employment there shall be no discrimination
on grounds of race, religion, sex, place of birth, descent, etc. They clarified that the
State means those aspects that are embodied in the parts I to IV of the First Schedule
attached to the Constitution. According to them, backward class means and include
the people of minorities tribe, scheduled castes and scheduled tribes. Their
backwardness includes educational, social and economic backwardness. They
justified the contradiction prevailing between clause (1) of article 10 and clause (3) of
article 10. Clause (1) of article 10 provides for equality in matters of public
employment and clause (3) of article 10 provides for protection of backward classes
in matters of public employment by providing them the protection of reservation.
They were against the motion that for providing reservation for ten years from the
commencement of the Constitution. They were of the opinion that as soon as the
equality prevails in the society, the protection of reservation must be removed. They
do not want to promote communalism in the society. They wanted complete equality
based society. They were keenly interested in removing the provision of reservation
as soon as the education, economic and social backwardness is removed.

Article 13 deals with certain kinds of fundamental freedoms viz., freedom of

speech, expression, press, associations, unions, assembly, etc. The then article 13 is
article 19 of the present Indian Constitution i.e. „protection of certain rights regarding
freedom of speech, etc.‟
Shri Damodar Swarup Seth demanded for the substitution of the following
from article 13-
“Subject to public order or morality the citizens are guaranteed-
i) freedom of speech and expression;
ii) freedom of press;
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Constituent Assembly Debates, Lok Sabha Secretariat, New Delhi, 2009 Edition, Book no.-2, Vol-VIII,
Pg. no.-711 to 789 & Book no.-5, Vol.-X, Pg. no. 394 to 402
109
iii) freedom to form association or unions;
iv) freedom to assemble peaceably and without arms;
v) secrecy of postal, telegraphic and telephonic communications.”
He also demanded for the substitution of the following from article 13A- “All
citizens of the Republic shall enjoy freedom of movement throughout the whole of the
Republic. Every citizen shall have the right to sojourn and settle in any place he
pleases. Restrictions may, however, be imposed by or under a Federal Law for the
protection of aboriginal tribes and backward classes and the preservation of public
safety and peace.”
He admitted that the article 13 was drafted clumsily. He argued that freedom
of press must be mentioned separately and explicitly. He admitted that article 13
guarantees following types of freedom-
i) Freedom of speech and expression

ii) Freedom to assemble peaceably without any arms
iii) Freedom to form association and unions
iv) Freedom to move freely throughout the territory of India
v) Freedom to sojourn and settle in any territory of India
vi) Freedom to acquire and hold and dispose off property
vii) Freedom to practise any profession or trade or business
He also admitted that the State can make any law pertaining to defamation,
libel, slander, sedition, etc. The necessity for such law is to maintain decency or
morality in the society. He expressed that on one hand number of freedoms are
granted to the citizens through the said article and on the other hand all these
freedoms are kept at the mercy of legislature through the same article. He expressed
that if government frame laws „in the interest of general public‟ with the intention of
curtailing or restricting such freedoms then such intention of the government cannot
be proved. The President has the power to suspend civil liberty at the time of issuing
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proclamation of emergency when there is a threat of security of India. He considered
that suspension of civil liberties is nothing but declaration of martial law. He told that,
in United States civil liberties are not suspended. He demanded that the fundamental
rights must be placed absolutely outside the jurisdictions of the legislature and the
executive. He blamed Dr. B.R. Ambedkar that he has not provided civil liberties on
absolute terms. Dr. B.R. Ambedkar has not kept open for the Supreme Court to invent
doctrine or theory regarding police powers. Dr. Ambedkar has permitted the State to
control civil liberties. Therefore, he demanded radical alteration in the said article.
The said amendment was not put for voting.
Thereafter, Professor K.T. Shah moved an amendment regarding substitution

of the words „the other provisions of this article‟ and insisted to use the words „this
Constitution and the laws thereunder or in accord therewith at any time in force‟. He
also insisted to use the words „and are guaranteed‟ after the words „all citizens shall
have‟. After these alterations clause (1) of article 13 can be read as- “subject to this
Constitution and the laws thereunder or in accord therewith at any time in force, all
citizens shall have and are guaranteed the right.”
The main reason for bringing the said amendment was that the more emphasis
was laid on exceptions as compared to the positive provisions. He considered the said
article as negative article. He was of the opinion that as far as interpretation of the
Constitution is concerned then it becomes necessary to read the whole Constitution
and not only one clause of a particular article. He wanted that all the freedoms granted
under the said article must be fully protected by the existing laws as well as the laws
that are to be framed in future. He further added that the freedoms granted under the
said article are exclusive in nature and if anybody wants to discover the freedom
under the said article then a person needs a microscope. He recommended that
preamble and the entire Constitution must be read for understanding the said article.
He wanted that the freedoms enumerated in the said article must be enjoyed
completely by the citizens. The said amendment was not put for voting.
Mr. K.T. Shah then moved another amendment. It was- “Subject to the other
provisions of article 13 all citizens shall have the right- (a) to freedom of speech and
expression; of thought and worship; of press and publication.”
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He considered above freedoms as essential civil liberties. He was of the
opinion that freedom of speech and expression goes parallel. He said that freedom of
worship should not be excluded. He added that the freedom of press and freedom of
publication prevails in the liberal constitutions of the world. For freedom of press and
publication, he gave an example of the oral Constitution of Great Britain where such
freedoms are permitted. He also added that in the United Nations Charter, the same
freedoms are permitted. According to him, the curtailment of the liberty of press is
„Black Act‟. The said amendment was not put for voting.
Mr. Naziruddin Ahmad moved an amendment which was read as- “That at the
end of sub-clause (c) of clause (1) of article 13, the words „for any lawful purpose‟ be
inserted.” The reason behind doing so was to generate the condition of lawful purpose
subjected to people‟s freedom of association, freedom of speech, freedom of residing
anywhere in the country and freedom to move freely throughout the country. He
wanted that the abovementioned freedom must be provided to the people for lawful
purpose. The said lawful purpose forms the fundamental rights. The said amendment
was not put for voting.
Mr. H.V. Kamath moved an amendment for substitution of the following-

„That after sub-clause (g) of clause (1) of article 13, the following new sub-clause be
added:
(h) to keep and bear arms;
and the following new clause be added after clause (6):
(7) Nothing in sub-clause (h) of the said clause shall affect the operation of any
existing law, or prevent the state from making any law, imposing, in the interests of
public order, peace and tranquillity, restrictions on the exercise of the rights conferred
by the said sub-clause.‟
He brought this amendment because he mentioned that, at the Karachi session

of the Congress the right to bear arms for self defence was considered as Fundamental
Right. He admitted that he has demanded the same through the said amendment. He
demanded to make the said right as absolute right. He also admitted that bearing arms
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for the purpose of self-defence is an age old Indian tradition. The said amendment
was not put for voting.
Mr. Mohamed Ismail Sahib moved an amendment which was- “That after sub-
clause (g) of clause (1) of article 13, the following new sub-clause be added.
(h) to follow the personal law of the group or community to which he belongs or
professes to belong.
(i) to enjoy personal liberty and to be tried by a competent court of law in case such
liberty is curtailed.”
The main reason behind bringing the said amendment was to give place to the
personal law in the fundamental rights. According to him, the personal law is a part of
the religion and religion is a part of the community. If fundamental rights are granted
to the community then they cannot be imagined in absence of their respective
personal laws. According to him, many problems can be solved by following the
personal law.
He stated that personal law must be guaranteed by fundamental rights. He

stated that, it has nothing to do with majority or minority. He stated that the entire
concept of freedom is based on personal liberty. He considered personal liberty as the
most fundamental of all the fundamental rights. He was exclaimed whether the aspect
of personal liberty be dealt with „due process of law‟ or „by the procedure established
by law.‟ He expressed that citizens are granted various freedoms but these freedoms
are meaningless unless and until personal liberty is not granted. He gave an example
of the Constitution of Yugoslavia where personal liberty is granted to its citizens. In
Yugoslavia personal liberty is granted to the citizens to the extent that person arrested
of an offence must be informed the reasons of his arrest at the time of his arrest. At
the time of his arrest, it is necessary that his order of arrest must state the charge in
writing. Such order must be communicated within 24 hours of the arrest. Appeal
against such arrest must be made within 3 days before the competent court. If no
appeal is made within the aforesaid period then the police authorities have to
communicate the order of arrest before the competent court within 24 hours. Then the
court has to confirm or annual arrest with 2 days from the date of communication of
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arrest. According to him, if personal liberty is not granted to such an extent, the
fundamental freedoms granted by the said article become meaningless.
He further stated that various enacted Public Safety Acts make mockery of
personal liberty. He demanded suitable protection of personal liberty from the
executive. The said amendment was not put for voting.
Mr. K.T. Shah moved an amendment, which was read as- “That the following
new clause be added after clause (1) of article 13:
Liberty of person is guaranteed. No person shall be deprived of his life, nor be

arrested or detained in custody, or imprisoned, except according to due process of
law, nor shall any person be denied equality before the law or equal protection of the
laws within the territory of India.” He wanted to implement the „elementary principles
of modern liberal constitutions.‟ He gave an example of the growth of the English
Constitution and the French Constitution where fight and struggle was done for the
liberty of person against arbitrary arrest without due process of law. He stated that
liberty of person is guaranteed in modern Constitution of the world.
The said amendment was not put for voting as it was relating to personal
liberties and not pertaining to due process clause.
Mr. Mahboob Ali Baig Sahib demanded that citizen must not endanger the
security of the State, they must not promote ill will between the communities, they
must not do anything for the purpose of disturbing peace and tranquillity of the
country in order to enjoy the said article. He expressed that in past there were laws
which were similar to law-less laws. Such laws used to deprive human rights of the
citizen. If restrictions imposed on the fundamental freedoms that are guaranteed under
the said article are based on law-less laws then there shall be no use of granting such
freedom. He gave an example of the American that neither legislature nor executive
can put restrictions on fundamental rights. It is the judiciary that put restrictions on
fundamental freedoms. For putting his point of view, he quoted the words of the then
Prime Minister of India- “A fundamental right should be looked upon, not from the
point of view of any particular difficulty of the moment, but as something that you
want to make permanent in the Constitution.” Thus, he didn‟t wanted that the
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restrictions on the fundamental rights to be implemented or put forth by the legislature
or the executive.
A joint amendment was brought in names of Shri M. Ananthasayanam

Ayyangar and Shri H.V. Kamath. The said amendment was read by Mr. Vice
President. It was- “Nothing in sub-clause (a) of clause (1) of this article shall affect
the operation of any existing law, or prevent the State from making any law relating to
libel, slander, defamation, offences relating to decency or morality or sedition or other
matters which undermine the security of the State.” The said amendment was adopted
in voting. The security of the State is given prime importance besides granting
fundamental freedoms to the citizen. In other words, the citizens cannot misuse their
fundamental freedoms by making libel, slander, defamation, etc. that may undermine
the security of the State.
Sardar Hukum Singh was of the opinion that article 13(1) gives constitutional
protection to the citizen against the coercive powers exercised by the State. He didn‟t
want any interference from the legislature and the executive on fundamental freedoms
of the citizen. According to him, individual liberties must not be transgressed by the
legislature and the executive under the head of framing of laws for libel, slander,
defamation, etc. These freedoms cannot be snatched away from the citizen under the
head of public order.
Mr. Mahbood Ali Baig Sahib Bahadur suggested that before the word
„liberty‟ word „personal‟ shall be added. He questioned that, „what is the measure of
fundamental rights available to the people of India under Parliamentary Democracy?‟
He also questioned that, “what would happen if the legislature or the executive will
become absolutely corrupt?”
Pandit Thakur Das Bhargava moved an amendment which was- “Nothing in

sub-clause (b) of the said clause shall prevent the state from making any law,
imposing in the interests of public order reasonable restrictions on the exercise of the
right conferred by the said sub-clause.” He insisted that the present laws that are
inconsistent with the fundamental rights must be made inoperative. According to him,
article 13 will become lifeless unless and until fundamental freedoms are given to the
citizen without personal liberty. The said amendment was adopted in voting.
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Dr. B.R. Ambedkar moved an amendment that- “With reference to the above
amendment-
(i) in clauses (3), (4), (5) and (6) of article 13, after the words „any existing law‟
the words „in so far as it imposes‟ be inserted, and
(ii) in clause (6) of article 13, after the words „in particular‟ the words „nothing in
the said clause shall affect the operation of any existing law in so far as it
prescribes or empowers any authority to prescribe, or prevent the State from
making any law‟ be inserted”. He clarified that the words „existing law‟ used
in article 13 means the laws that are not inconsistent with the fundamental
rights. The said amendment was adopted in voting as it was in relation with
the previous amendment of Mr. Bhargava as mentioned above.
Mr. Mohd. Tahir moved an amendment that, “in clause (2) of article 13 the
words „Communal Passion‟ be inserted after the word „Sedition‟. He recommended
for using the words Communal Passion after the word sedition. He explained the
meaning of the word „Sedition‟. According to him, sedition means exciting the minds
of one community against the other. So, he proposed for using these words. The said
amendment was not put for voting.
Shri Syamanandan Sahay proposed for replacing the word „restrictions‟ and
using the words „for a defined period‟. He was of the opinion that the freed of right to
assemble peacefully without arms is granted wherein maintenance of peace is a pre-
condition. He objected that besides such a condition, the State still grants the
restricting power. He was of the opinion that any law restricting this power must be
further restricted.
Sardar Bhopinder Singh Man considered Civil liberties as essential for

freedom of speech and expression. He demanded that existing law must not be applied
for providing freedom of speech and expression.
Seth Govind Das objected that on one hand the government gives these rights
and on the other hand it retains the same. He admitted that, the similar situation
prevails in Burma and China. He gave an example of Lokamanya Bal Gangadhar
Tilak. He was convicted as per section 124-A of IPC that deals with sedition. The said
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section was specifically framed for convicting Mr. Tilak. He was feared that by
granting restrictions powered to the government, the same repetition may be done.
Then he drew the attention of the assembly on sub-clauses (f) and (g) which
were- “to acquire, hold and dispose off property, to practise any profession or to carry
on any occupation, trade or business.”
He was of the opinion that true socialist state can be established through the
Constitution. He was sure that in future, the articles concerning property will not find
place in the Constitution.
Shri Jaipal Singh expressed that the word „aboriginal‟ is not discussed at
length on the floor of the house. He objected for using the word „tribal‟ as the sub-
committees have not completed the work of scheduling. He stated that there are
millions of Adibasis residing outside the scheduled areas. He showed his
dissatisfaction with the tribes‟ inventory used in the Draft for demanding concessions
for those areas that were not specified within the scheduled areas.
Shri K. Hanumanthaiya was in dilemma that who will be the limiting authority
on fundamental rights, legislature or court? He was of the opinion that society
changes and the government changes but the courts do not change. He mentioned that
right to acquire, hold and dispose property do not bear the character of fundamental
rights. According to him, they are based on legislations. He told that the right to
acquire, hold and dispose property will generate frequent litigation and every time it
shall remain the issue of litigation.
Mr. Kazi Sayed Karimuddin considered the words used in article 13 i.e.
„subject to operation of existing laws‟ as very unjust. He explained his point of view
by giving an example of Goonda Public Safety Act. The said act did not provide for
appeal, warrant, arrest, etc. He further explained that, if legislature is allowed to bar
limitation on fundamental rights then the true spirit of fundamental rights will be
defeated. He explained that in state legislature most of the people are in a position to
suppress the minorities. He quoted the line of the book „States and Minorities‟ written
by Dr. B.R. Ambedkar- “No law shall be made abridging the freedom of press, of
association and of assembly except for consideration of public order and morality.” In
this way, he demanded for deleting clauses (2) to (6) from article 13.
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Shri Brajeshwar Prasad expressed his views that personal freedom is always
curtailed when there is a menace of capitalism. He explained that in modern
progressive state we find less conflict and collectivism can be fulfilled only if the state
has ample powers. He further insisted that individual freedom is risky in a society
where most of the people are living in poverty, illiteracy, communalism and
provincialism. He insisted on laying down personal liberty on secured basis.
Professor Yashwant Rai supported article 13(f) i.e. right to property. He said
so because apart from Harijans there were many other communities in Punjab who
were not permitted to acquire or purchase land.
Shri Rohini Kumar Chaudhari considered the word „Sedition‟ as unhappy

word. According to him, the said word has created lots of misery in the nation.
Further he added that for the fundamental rights, the word „guarantee‟ is used.
According to him, the word guarantee is a precious word. He insisted for not using the
word „guarantee‟ in the Constitution.
Professor Shibban Lal Saksena expressed that in America, the Supreme Court
is given absolute powers to limit the fundamental rights. But in India, Indians are
limiting them. He insisted to use the words „freedom of press‟. He also recommended
for adding the word „reasonable‟ before the word „restriction‟. The reasonable
restrictions must be in the interests of public order and morality. Then he
recommended for using the word „reasonable‟ before the word „protection‟ i.e. „or for
the reasonable protection of the interests of the Scheduled Castes.‟
Mr. H.J. Khandekar expressed that India has not yet attained swaraj in the
correct sense. He did not like any sort of restrictions on freedom of speech and
expression. There are many chances of repressive laws to be enacted in future as they
were prevailing then. For the right „to assemble peacefully and without arms‟ he was
fearful that in future there shall be such laws that may not allow to hold any public
meeting. He expressed that the „right to acquire, hold and dispose property‟ is granted
on the one hand and at the same time it is taken back through legislation.
According to Shri Algu Rai Shastri good citizenship always implies

restrictions. According to him, real swaraj will prevail only when individual
ownership will yield collective ownership. Such collective ownership shall be the
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state ownership. For right to property, he said that in future there shall be
transformation of individualistic capitalism into state capitalism. He showed the way
to positively interpret the restrictive provisions of the said article.
Shri Amiyo Kumar Ghosh expressed that the rights of the people must be
expressed in clear, straight and simple language. According to him, if a common man
reads the Constitution he/she can precisely and exactly understand the rights given to
him/her and the checks about his/her rights.
The amendment moved by Professor Shibban Lal Saksena- “That in clause (4)
of article 13, for the words „the general public‟ the words „public order or morality‟ be
substituted,” was adopted.
The amendment moved by Shri Jaipal Singh- “That in clause (5) of article 13,
for the word, „aboriginal‟ the word „scheduled‟ be substituted,” was adopted.
The amendment- “that in clause (6) of article 13, for the words „morality or
health‟ the words „the general public‟ be substituted,” was adopted.
After the above amendments, the amended article 13 was added to the
constitution. Later on, on 17th October, 1949 other amendments were adopted for
article 13.
Shri T.T. Krishnamachari moved an amendment- “That in clause (2) of article

13, after the word „defamation‟ the word „contempt of court‟ be inserted,” was
adopted. The reason behind moving the aforesaid amendment was that the legal
advisors spoke to the members of the Drafting Committee that there were lacuna in
sub-clause (2) of article 13 regarding implementation. They objected the words
„public order‟, as they were inclusive in article 13(2). Due to these words, the
situation was that if a person speaks on subjudice matter then such person interferes
with the administration of justice. In such a case, his freedom of expression and
speech lapses. Further, the situation was that if article 13(1) is exercised, it curtails
article 13(2). They considered it as an offence. For such offence they demanded for
the contempt of court.
119
The framers of the Indian Constitution framed article 13 for the purpose of
providing multiple freedoms to the citizen. These freedoms include freedom of speech
and expression, association, assembly, property, secrecy of postal, telegraphic and
telephonic communication, etc. These freedoms are not granted in absolute forms. It
means they suffer from several restrictions.
Many framers were of the view that the freedom of speech and expression
must be granted in absolute form. They wanted that the restrictive power on such
freedom must be granted to the Supreme Court as it is in America. They did not want
that the restrictive power to be granted to the legislative and the executive. According
to them, if restrictive powers are granted to the legislature and the executive then the
situation shall be people controlling or restricting the people. Framers wanted that the
right regarding freedom of press must be enumerated separately and not under the
head of freedom of speech and expression. They wanted that reasonable restrictions
must be put on these freedoms. They wanted that these freedoms must not be above
the unity and integrity of the scheduled castes people.
Regarding right to property, many framers were of the opinion that on one
hand right to property is granted on absolute basis and on the other hand it looses its
absoluteness because of state intervention. They were feared that in future the said
right shall loose its place from the said article and from the said categorization of
rights. They were feared that amongst these rights, the situation will be faced in future
wherein everything shall be permissible under the name of reasonable restrictions.
They were of the opinion that when these rights will loose their absoluteness they will
become meaningless.

The Constituent Assembly Debates on article 15 was started from 6th

December, 1948 onwards. It was regarding right to life or personal liberty. The then
article 15 is article 21 of the present Constitution.
82
Constituent Assembly Debates, Lok Sabha Secretariat, New Delhi, 2009 Edition, Book no.-2, Vol-III,
Pg. no.-842 to 859 & Pg. no. 999 to 1001
120
Mr. Kazi Sayed Karimuddin asked the Vice-President that if article 15 as
amended by the Drafting Committee is accepted and allowed then it shall not serve
the purpose. The Drafting Committee amended the article 15 as “No person shall be
deprived of his life or personal liberty except according to procedure established by
law........” He considered the said amendment as the sad chapter in the history of
Indian Constitutional Law. According to him, the Advisory Committee on
Fundamental Rights has suggested that, “no person shall be deprived of his life or
liberty without due process of law.” He was amazed that despite of the
recommendations of the said committee, the Constituent Assembly had added the
words like „personal‟ and “according to procedure established by law.‟ In order to
remove the above technicalities, Mr. Kazi moved an amendment as-
“That in article 15, for the word „No person shall be deprived of his life or
personal liberty except according to procedure established by law‟, the words „No
person shall be deprived of his life or liberty without due process of law‟ be
substituted.”
According to him, if words „according to procedure established by law‟ are

kept in the said article then it will create great injustice to courts of law. Once the
procedure according to the law is completed then judges cannot interfere in matters
pertaining to unjust and capricious laws. He considered the words „according to the
procedure established by law‟ as mischief. He further added that due to these words,
the judges will become mere spectators. The said amendment was negatived in voting.
Mr. Mahboob Ali Baig moved an amendment, which was- “That in article 15
for the words „except according to procedure established by law‟ the words, „save in
accordance with law‟ be substituted.” He mentioned that if the word „personal‟ is not
added before the word „liberty‟ then the meaning construed would be very wide. In
order to explain his point, he gave an example of article 32, 34 and 35 of the Japanese
Constitution. Article 32 of the Japanese Constitution provides right to the person to
access to court. Article 34 of the Japanese Constitution provides the right of personal
liberty in case of arrest and detention. Article 35 of the Japanese Constitution provides
for the right to privacy and right against unlawful search, seizure, etc.
121
He was of the opinion that as the Article 15 has imported the provision of the
articles 32, 34 and 35of the Japanese Constitution, it becomes necessary to safeguard
the personal liberty of the honest citizen. But according to him, if words „except
according to procedure laid down by law‟ are added then in future the legislature
remains in a position to pass such law(s) by which the right of a citizen to be tried by
a court ceases away. He admitted that the executive and the legislature have powers to
pass a law curtailing the liberty of a person then such person shall be provided the
right to go to the court of law. But due to addition of abovementioned words, there
shall be deprivation for the person to approach the court for enforcement of his/her
fundamental rights/personal liberties. So, he suggested for deleting the
abovementioned words and for inserting the expression either „without due process of
law‟ or „save in accordance with law.‟ The said amendment was negatived in voting.
A similar kind of amendment was moved by Pandit Thakur Das. He stated that
judiciary must win over the autocracy of legislature. Liberty is granted to person by
judiciary and legislature. If legislature becomes autocratic then judiciary provides
liberty to people. He considered that in a democratic set up courts are the ultimate
shelters for the citizens. The said amendment was not adopted in voting.
Shri Chimanlal Chakkubhai Shah supported the above amendments. He said

that by the words „due process of law‟, judiciary is given the power to review
legislation. The words „due process of law‟ are imported from the American
Constitution. He admitted that in American Constitution, these words are used for life,
liberty and property whereas in India these words are used for life and liberty. Due to
this, the spirit of Indian judiciary shall be more and more conservative. But it is not so
in America. By adding the word „personal‟ before the word „liberty‟ the judiciary
cannot create unnecessary interference in reviewing legislations. According to him, in
Federal Constitution, the judiciary has the power to say that particular law enacted by
the legislature is unconstitutional. In England, Constitution is not federal.
He admitted that under extraordinary situations, the executive passes

emergency laws. Thus, it becomes necessary to give right to the judiciary to review
legislation. He demanded that the full import of the Japanese Constitution shall not
serve the purpose. The said amendment was not adopted in voting.
122
Shri Krishna Chandra Sharma brought an amendment which was similar to
above amendments. He admitted that in a democratic set up life and liberty are
guaranteed through law. He told that the words, „due process of law‟ have its origin in
Magna Carta. In Magna Carta, the expression „Per Legum Terrea‟ means „without due
process of law‟. Further, he mentioned that chapter 39 of Magna Carta reveals that-
“No free man shall be taken, or imprisoned, disseised, outlawed, exiled, or in any way
destroyed; nor shall we go upon him, nor send upon him, but by the lawful judgment
of his peers or by the law of the land.” Thereafter these words were again used in
1331 A.D., 1351 A.D. and 1355 A.D. The King Edward III said-
“No man of what state or condition so ever he be, shall be put out of his lands
or tenements, nor take, nor imprisoned, nor indicated, nor put to death, without he be
brought to answer by due process of law.”
Thereafter in 1791 A.D., the words used in the American Constitution were-
“Nor shall any person....... be deprived of life, liberty or property, without due process
of law.” In this way, he justified his point by stating about the origin of the „due
process‟ clause found in the great documents of the world. The said amendment was
not adopted in voting.
Mr. H.V. Pataskar expressed his views on the above aspect. He stated that in
India, implementation of democracy is done through party government. The concept
of party government is new in India. He expressed his fear that there are all chances
of nullification of fundamental rights by the party government. So, he insisted for
using the words „due process of law‟.
Shri K.M. Munshi supported the above amendment. He expressed that Indian
democracy aims at balancing between individual liberty and social control. He stated
that if words „due process of law‟ are used then only Indian courts will be in a
position to examine that the conviction was according to the law as well as the
justness of laws. He expressed his fear that most of the legislatures establish social
control and forget about individual liberty. With regard to the application of „due
process‟ clause, he mentioned that by this clause, the Indian courts will be in a
position to examine the procedure, the jurisdiction of the court, the jurisdiction of the
legislature and the justness of laws. Moreover, the courts will be in a position to
123
justify the acts of the legislature carried forward by the executive by passing and
implementing laws during exigencies, emergencies, etc. If this clause is not added
then Indian courts will not be in a position to upheld the notorious acts of the
legislatures.
Shri Alladi Krishnaswami Ayyar expressed his fear regarding usage of words
„due process of law‟. He stated that the Drafting Committee has used the word
„procedure‟. If words „due process of law‟ are used then there are chances of differing
judicial decisions. He stated that some judges are lenient on social control and
remaining are lenient on personal liberty. According to him, the due process clause
will create great insurgency for social legislations viz., legislations relating to
employer and labour, protection of women and children, etc. He wanted that harmony
between individual liberty and the security of the state must be maintained.
Mr. Z.H. Lari supported the using of words „due process of law‟. He was of
the opinion that personal liberty and life must be above the executive. According to
him, „due process of law‟ means judgement after the trail and it must be based on
enquiries and not arbitraryness. Then he reminded the house about the question of
drafting human rights. One aspect of human rights fall in the said clause and that is
protection from arbitrary detention. He said that for preventing arbitrary detention,
legislature is not at all powerful in laying down the procedure. The inherent rights of
the man must not be infringed by the legislature under the name of the procedure. The
legislature is controlled by the executive, in a parliamentary system of government. If
acts of legislature are justified by using the word „procedure‟ then the question still
remains open for ordinances. Ordinance is also a law. It is passed by the cabinet. The
legislature has to approve the ordinance. Thus, by giving such rights to the legislature
and the executive, it infringes the elementary rights of a person including elementary
personal liberty.
He expressed his fear that the British Government is liable to curtail basic
rights of the people and the same thing is kept open for the legislature as well as the
executive. He informed that if the recommendation of the Drafting Committee
regarding usage of word „procedure‟ is used then it will make the entire article
lifeless. Due to this, entire constitution will become lifeless. Thus, he demanded for
accepting „due process of law‟ clause.
124
Thereafter, the remaining debate on article 15 was conducted on 13th
December, 1948. Dr. B.R. Ambedkar explained the meaning of the word „due process
of law‟. He stated that the abovementioned words explain the relationship between the
judiciary and the legislative. The judiciary acquires the power to judge whether the
law passed by the legislature is ultra vires or intra vires. The law passed in the federal
constitution is judged by the judiciary. The judiciary acquires power to judge the law
on grounds that the particular law passed by the legislature is correct on the basis of
fundamental principles. He stated that there were two different and opposite situations
before him. Both these situations beared equal weightage. First situation was that if
we do not trust legislature in passing good laws then there remains a need for „due
process of law‟. Second situation was that if we trust legislature in passing good laws
then there remains no need for „due process of law‟. As the future is uncertain, he
went for the decision of the house regarding the said article.
Due process clause was not accepted by the house in voting. The questions
raised by different members of the constituent assembly reveals about a different
approach and the situation after voting reveals altogether a different picture. Debate
reveals that the words „due process of law‟ must be used and the words „except
according the procedure established by law‟ must be struck out from the article 15. By
using the words „due process of law‟, the judiciary gains more power as compared to
the legislature and the executive. The judiciary has to conduct fair trial, it has to
pronounce valid and justifiable judgements, it has to check the procedures, justness of
laws and acts passed by the legislature. The judiciary becomes empowered to check
the justness of laws and acts passed by the legislature of its own. If, in the
Parliamentary form of federal government, the legislature or the executive acts
arbitrarily then the judiciary can declare any procedure or law as just or unjust of its
own. Through this way, it can protect the fundamental rights, personal liberty and
human rights of the persons.
Actually, the words „except according to the procedure established by law‟ are
used in article 15. By such words, the legislature and the executive are given more
powers over the judiciary. The power of judiciary to act of its own for declaring any
procedure or law as unjust was taken away. The situation is that, none of the courts in
India can decide of its own about the justness of procedure or laws unless otherwise
125
questioned to it in form of case, appeal, writ, etc. by whatsoever named called. None
of the courts in India can expand or contract the scope of the constitution, its any
article, etc. of its own unless otherwise questioned or demanded before it. None of the
courts in India can give new principles or add new dimensions on the basis of the
intention of the framers of the constitution unless otherwise specifically declared by
the legislature or the executive and the same is being questioned by the person, the
organization or the institution, etc. None of the courts in India can make interpretation
of the constitution unless made by the executive or the legislature and the same is
being questioned before the respective court in the form of writ, appeal, review,
revision, etc.
The framers considered Indian Union as the federation, though it bears only
one characteristic of federation. „Due process clause‟ is an essential characteristic of
federation. It is found everywhere in the federation type of constitutions of the world.
But as Indian federation is not an absolute federation, the due process clause may not
be used. Therefore, the judiciary in India cannot act as it can act under the federation.
The courts in India are furnished with powers to grant bail to accused, if he/she
provides surety. If any Under Trial Prisoner is not in a position to give necessary
amount of surety then he/she has to languish in jail though his/her personal liberty is
violated. The courts cannot do anything of its own unless and until the legislature
or/and the executive provides for the same.
The Supreme Court of India cannot decide about the basic structure of the
constitution unless and until the question, demand, or plea for determination of basic
structure of the constitution is raised before it. The Supreme Court cannot grant
human rights in a better form than decided or determined by the legislature from time
to time.
Framers of the Indian Constitution didn‟t wanted that the people of India must
suffer adversely for personal liberty because of illicit acts of the legislature as well as
the executive. They strictly demanded for „due process of law‟ clause. They wanted
that the judiciary must be the ultimate custodian of democracy.
126
2.11) Interim Report on Fundamental Rights83
The Constituent Assembly had appointed the Advisory Committee on

Fundamental Rights. The said Committee had submitted the Interim Report on
Fundamental Rights on 23rd April, 1947. The Advisory Committee was appointed by
the Constituent Assembly on 24th January, 1947. The Hon‟ble Sardar Vallabhbhai
Patel was the Chairman of the Advisory Committee on Fundamental Rights.
The fundamental rights embodied in the interim report affecting basic

structure of the Constitution were as under:
i) The sub-committee on the fundamental rights recommended that fundamental

rights must be prepared in two parts viz., enforceable rights and non-
enforceable rights.
ii) The first part should consist of enforceable rights by conducting appropriate
legal proceedings.
iii) The second part should consist of „directive principles of the state policy‟
which are not enforceable in court of law, but at the same time useful in
making fundamental governance of the country.
iv) The fundamental rights provided to the persons and citizens must be
justiciable (enforceable) and not justifiable (reasonable).
v) The state means and includes the legislatures and the governments of the
Union and the units and all local or other authorities within the territories of
the union.
vi) The Union means the Union of India.
vii) The law of the Union includes any law made by the Union legislature and any
Indian law as in force within the Union or any part thereof.
83
Constituent Assembly Debates, Lok Sabha Secretariat, New Delhi, 2009 Edition, Book no.-1, Vol.-III,
Pg. no. 440 to 444
127
The definition of the State given in the said report is in more precise form. The
definition of the Union is also in precise form. It includes the state of Jammu and
Kashmir.
The following provisions were made in the said report under the right to
equality:
i) The state was given no right to discriminate on the grounds of religion, race,
caste or sex against any citizen.
ii) The state was given right to make separate provisions for women and children.
iii) The obligation was put on the part of the state to provide equality of
opportunity to all citizens in matters of public employment.
iv) The state was granted the right to make reservations for those classes that are
not adequately represented in public services according to the opinion of the
state.
The following freedoms were granted under the right to freedom:
i) Freedom of speech and expression was granted to citizens.
ii) Freedom of peaceful assembly without arms was granted to citizens.
iii) Freedom to form associations or unions was granted to citizens.
iv) Freedom to move freely throughout the Union was granted to citizens.
v) The freedom of life or liberty of person cannot be taken away without due
process of law.
vi) The equal treatment of the laws within the Indian Union was granted to every
person.
vii) The Union Legislature was granted powers to detract foreigners from
abovementioned provisions.
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viii) The traffic in human beings, forced labour, beggary and voluntary servitude
was prohibited. Anything in contravention to such prevention was considered
an offence.
ix) The child below the age of 14 years was prohibited to engage in work in
factory, mine and hazardous employment.
All the abovementioned freedoms were subjected to reasonable restrictions.

The preparators of the aforesaid report aimed at due process of law. They aimed at
putting reasonable restrictions on these freedoms. They didn‟t want to permit child
labour in factories, mines and hazardous employment activities.
The following freedoms were granted under miscellaneous rights:
1) The movable and immovable property of any person or corporation can be

acquired for public use.
2) If law provides, then the compensation must be provided for acquisition of

such property.
The preparators of the abovementioned report didn‟t want the acquisition of

private or residential property for public use:
The following rights were granted under constitutional remedies:
i) The rights guaranteed under the head of fundamental rights, if infringed then
all the powers regarding issue of writs like habeas corpus, mandamus,
prohibition, quo warranto and certiorari were be vested with the Supreme
Court apart from other courts.
ii) The rights guaranteed under the head of fundamental rights did not amount to
suspension unless and until the question of rebellion, invasion, grave
emergency and public safety was involved.
iii) The Union Legislature was empowered to curtail these guarantees by passing
a law. The extent to which these guarantees are curtailed or suspended must be
determined by the Union Legislature in form of law.
129
The preparators of the abovementioned report wanted to grant powers to
entertain writs by the Supreme Court apart from other courts. It was recommended to
grant powers to curtail or suspend fundamental rights of the persons and citizens by
the Union Legislature by passing a law. The single authority i.e. Prime Minister or
any other person or persons can curtail fundamental rights of the citizens as per their
own personal will.
2.12) Discussion on Report on Minority Rights84
The discussions regarding the Report on Minority Rights was done by the
Constituent Assembly for continuous two days i.e. on 27th August, 1947 (Wednesday)
and on 28th August, 1947 (Thursday). The framers of the Indian Constitution wanted
that the word „minorities‟ must be totally abolished from the history. They considered
that the period granted i.e. 10 years for their economic, social and educational
upliftment was excess for the purpose of bringing equality in the society. The
Advisory Committee on Minority Rights was appointed by the Constituent Assembly.
The said Committee submitted its report to the Constituent Assembly and the
Constituent Assembly decided the following:
The motion regarding-“That on a consideration of the report of the Advisory

Committee on minorities, fundamental rights, etc. on minority rights this meeting of
the Constituent Assembly resolves that a election of the Central and Provincial
Legislatures should, as far as Muslims are concerned, be held on the basis of separate
electorates,” was negatived. The motion that-“All elections to the Central and
Provincial Legislatures will be held on the basis of joint electorates,” was adopted.
The framers didn‟t want separate electorates as it was provided in the Government of
India Act. They wanted joint electorates.
The motion regarding-“That in List I, dated 25th August, 1947 the word
„seats‟ the word „representation‟ be substituted. The following words be substituted-
“after the word „schedule‟ the words „and the section of Hindu Community referred to
in paragraph 1-A hereof be inserted,” was adopted.
84
Constituent Assembly Debates, Lok Sabha Secretariat, New Delhi, 2009 Edition, Book no.-1, Vol.-V,
Pg. no. 197 to 291
130
The framers intended that the Constituency where minority communities are in
majority, there reservation must be provided not on the basis of particular
constituency but on the basis of particular constituency but on the basis of population
as a whole. They wanted that the Hindu Communities that are covered under
scheduled castes must be given the same rights and benefits that are given to other
minorities.
The amendment that-“That from group C of the Schedule to para 1, the words
„Scheduled Castes‟ be deleted,” was adopted. The intention behind it was that
Scheduled Castes must not be classed as a separate minority but it should be treated as
an integral part of the Hindu Community.
The amendment-“That in schedule to para-1, the following be added:
„Group D- Educationally advanced and wealthy minority castes and

communities in the various provinces.
NOTE-1 It shall be provided that persons belonging to these minorities shall not
have the right to contest unreserved seats.
NOTE-2 A list of these minorities shall be as determined by each legislature of

the existing Provinces,” was adopted. The framers wanted to safeguard
the interest of only those minorities that find difficulties in maintaining
themselves. According to them, highly educated and wealthy
minorities must not be bestowed with such advantages.
The motion regarding the amendment that-“Parsees-(b): There shall be no

statutory reservation in favour of the Parsee Community, but they would continue to
remain on the list of recognized minorities:
Provided that if as a result of elections during the period prescribed in provisio

2 to para 1 above it was found that the Parsee Community had not secured proper
reservation their claims for reserved seats would be reconsidered and adequate
representation of minorities continue to be a feature of the Constitution,” was adopted.
The framers have not provided for statutory reservation to Parsee Community.
But if they do not obtain proper reservation then their claims for reserved seats must
131
be considered. The similar motion for Anglo-Indians and for Indian Christians was
also adopted.
The motion regarding the amendment-“Muslims and Scheduled Castes-(C)

There shall be reservation of seats for the Muslims and Scheduled Castes in the
Central and Provincial Legislatures on the basis of their population,” was adopted. As
far as political rights are concerned, the reservation was pertaining to the basis of the
population of Muslims as well as of Scheduled Castes.
The amendment regarding clause 4 that-Additional right to minorities-The

members of a minority community who have reserved seats shall have the right to
contest unreserved seats as well,” was adopted. The minority communities were
granted the right to contest elections for unreserved seats also.
The amendment regarding clause 5 that-“The minorities for whom

representation has been reserved will be allotted seats on their population ration, and
there shall be no weightage for any community,” was adopted. The framers didn‟t
want to permit any sort of discrimination because representation was permitted on the
basis of population ratio.
The amendment regarding clause 6 that-“There shall be no condition for a

minimum number of votes of one‟s own community. There shall be no stipulation that
a minority candidate standing for election for a reserved seat shall poll a minimum
number of votes of his own community before he is declared elected,” was adopted.
The main reason for accepting the said amendment was that there was no criterion
fixed for obtaining certain minimum number of votes from the community from
which the minority candidate is contesting election. The framers wanted that there
shall be no injustice to either general community or minority community.
The motion regarding amendment to clause 7 that-“There may be plural

member constituencies, but the voting shall be distributive, that is, each voter will
have as many votes as there are members and he should give only one vote to a
candidate,” was adopted. The framers wanted to adopt the principle of one person one
vote.
132
The amendment made in clause-8 was adopted. Clause 8 provides for, “no
statutory reservation of seats for the minority communities in the cabinets. But the
reservation to minority communities was provided on the basis of a Convention
pertaining to the lines of para VII of the Instrument of Instruction issued to the
respective Governors under the Government of India Act, 1935”. The same was
provided in a schedule to the Constitution. The representatives of the minority
communities as well as the majority communities adopted it unanimously.
The motion regarding amendment to clause 10 that-
“(i) The present basis of recruitment of Anglo Indians in the Railways, the Posts
and Telegraphs and the Customs Departments shall continue unchanged for a
period of two years after coming into operation of the Federal Constitution .
After that all intervals of every two years, the reserved vacancies shall be
reduced each time by 10 per cent. This shall not however, bar the recruitment
of Anglo-Indians in the categories over and above the prescribed quota of
reserved appointments, if they are able to secure them on individual merit in
open competition with other communities. It shall also in no way prejudice
their recruitment on merit to posts in these departments, or any other in which
they have not been given a reserved quota.
(ii) After a period of ten years from the date of the coming into operation of the
Federal Constitution all such reservations shall cease.
(iii) In these services there shall be no reservation for any community after the
lapse of ten years,” was adopted.
The framers wanted to provide reservation for a period of 10 years from the
date of commencement of the Constitution. They didn‟t want to carry forward the
reservations for any community beyond the aforesaid period of ten years.
The motion regarding amendment of clause 12, that-“Provision shall also be

made for the setting up of a Statutory Commission to investigate into the conditions of
socially and educationally backward classes, to study the difficulties under which they
labour aid to recommend to the Union or the Unit Government, as the case may be,
the steps may be taken to eliminate the difficulties and the financial grants that should
133
be given and the conditions that should be prescribed for such grants,” was adopted.
The framers actually wanted to eliminate social and educational backwardness of
backward classes. For this purpose, they recommended for providing financial grants.
The aforesaid Committee was of the opinion that no separate electorates must
be provided to minority communities. The system of separate electorate was
prevailing and the Government of India Act, which they wanted to abolish. They
wanted that reservations to minority communities must be provided not on the basis
of particular consistency but on the basis of population as a whole. They wanted that,
the Hindu Communities that were covered under the Scheduled Castes must be given
the same rights as they were granted to other minority communities. The reservation
that they mentioned was pertaining to their political rights regarding contesting
election(s). They did not want that the benefit of reserved seats for contesting
elections must be granted to highly educated and wealthy minorities.
They did not provide statutory reservations to Anglo-Indians, Parsee, Indian

Christians and Sikhs. But they protected their interests by providing for
reconsideration of their claims in case of inadequate reservations. They granted
additional right to minorities that they can contest election from unreserved seats.
They were granted reserved seats on the basis of the ratio of their population. No
policy of community weightage was adopted. Besides this, no bar regarding minimum
number of votes from his/her own community was kept. This was done in order to
bring equality and transparency in elections. The principle of one person, one vote
was adopted. The framers wanted to change the policy regarding reservation of seats
in the cabinet as provided for in the Government of India Act.
They wanted that the reservation policy must exist only for 10 years from the
date of commencement of the constitution. After the said period of 10 years they
didn‟t want reservations for any of the minority communities regarding appointments
of public offices. They also recommended for the appointment of Statutory
Commission for ascertaining social and educational backwardness of backward
classes. They also recommended for providing financial grants for this purpose. They
didn‟t provide for reservation in education for removal of educational backwardness.
134
2.13) Supplementary Report on Fundamental Rights85
Clauses viz., 16, 17 and 18 were not discussed and decided in the Interim
Report on Fundamental Rights. The abovementioned three clauses were discussed and
decided in the Supplementary Report on Fundamental Rights on 30th August, 1947,
Saturday. The abovementioned three clauses relate to discrimination in religion. They
are not at all important as far as basic structure of the Indian Constitution is
concerned. But the discussion that took place at the time of deciding aforesaid clauses
is important from the viewpoint of basic structure.
Mr. R.K. Sidhwa quoted the words of Pandit Jawaharlal Nehru and drew the
attention of the House that- “Wherein shall be guaranteed and secured to all the
people of India justice, social, economic and political; equality of status, of
opportunity and before the law;..........”
The above aspect was brought by him in form of Resolution. At the time of
moving the said Resolution, he said- “I stand for Socialism and I hope, India will
stand for Socialism and that India will go towards the Constitution of a Socialist State
and I do believe that the whole world will have to go that way.”
Further, he demanded that social and economic equality must be placed under
the head of justiciable rights i.e. Fundamental Rights in the Constitution. He
explained that social equality and economic equality if placed under the head of non-
justiciable rights then it would be meaningless.
He demanded for socialism. He demanded India to be a Socialistic State and

social and economic justice in a justiciable manner. He demanded the democracy
through socialism. According to him, if social and economic inequalities are removed
then the problem of inequality and class distinction could be solved. It means he
disfavoured capitalism. His views come under the ambit of basic structure. His
aforesaid resolution was not put for voting. So, the question of adoption or rejection
does not arise.
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Constituent Assembly Debates, Lok Sabha Secretariat, New Delhi, 2009 Edition, Book no.-1, Vol.-V,
Pg. no.-333 & 334 and Pg. no. 370 to 372
135
2.14) Constituent Assembly Debates on Article 10286 (Article 123 of
the present Constitution)
The Constituent Assembly Debate regarding article 102 was conducted on 23rd
May, 1949. The said article relates to the president‟s power to promulgate ordinance.
The said article is article 123 of the present Indian Constitution i.e. „Power of
President to promulgate Ordinances during recess of Parliament.‟
The amendment was moved before the House- “That in clause (1) of article
102, for the words „when both Houses‟, the words „when one or both Houses‟ be
substituted”, was discussed. When none of the Houses are in session, and if need
arises to issue ordinance by the President then the abovementioned article restricts the
powers of the President. The debate indicates that the President must not be given
powers to issue ordinance when none of the House is in session. But, the President
must be empowered to issue ordinance when atleast any one of the House is in
session. The said amendment was negatived in voting.
The latter half of the said amendment was put before the Drafting Committee-
“That for the words „such Ordinances‟ the words „such Ordinance or Ordinances‟ be
substituted”, was negatived in voting. The reason behind bringing the said amendment
was to grant powers to the President for issuing more than one ordinances if there is a
necessity to do so.
Another amendment was brought before the House that-“Provided that such
ordinance shall not deprived any citizen of his right to personal liberty except on
Conviction after trial by a competent court of law,” was negatived in voting.
The reason behind bringing the abovementioned amendment was that if

circumstance arises for which fundamental rights are taken away immediately, then in
such a situation, citizens must not be deprived of fundamental rights. The aspects
regarding fundamental rights must be tried by a competent court of law. At that time,
the Public Safety Acts had taken the form of ordinances and the aspect that the
fundamental rights of the citizen to be tried by the competent court of law was lost.
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Constituent Assembly Debates, Lok Sabha Secretariat, New Delhi, 2009 Edition, Book no.-3, Vol.-
VIII, Pg. no. 202 to 227
136
Many persons were arrested and detained for months under the Public Safety Act in
many Provinces. The persons that were arrested were unaware about the grounds of
their arrest. Framers agreed that in future there may arise a situation like emergency
where it may become necessary to grant extraordinary powers but such extraordinary
powers shall never override the citizen by depriving them of their elementary rights.
Framers didn‟t tolerate the extraordinary power of the President regarding passing of
ordinances. They wanted to restrict such powers of the President by atleast not
depriving citizens from their elementary rights. This was the communist view that
they wanted to adopt in the constitution.
The amendment-“That in sub-clause (a) of clause (2) of article 102, after the
words „both Houses of Parliament‟, the words „within four weeks of its promulgation‟
be inserted”, was negatived in voting.
The said article contained that emergency shall cease to operate after the
expiration of the period of six months from the date of re-assembly of the Parliament.
Instead of the said period of six-months, the period of four months was recommended
in the above amendment. The logic behind abovementioned amendment was that the
President is the Constitutional Head. He has to act as per the advice and direction of
the Parliament. If the Parliament is not summoned then the President becomes
dictator. In order to refrain President from becoming dictator, it becomes necessary to
summon the Parliament during emergency. Article 102 does not anywhere specify the
limit (time period) for summoning the Parliament. The said article only permits for
laying the ordinance(s) before both the Houses of the Parliament.
Then, the question was raised that, what happens if the President summons the
Parliament after one year? Dr. Ambedkar answered the said question by making
gesture „no‟. It was because the President has got no dictatorial powers. So, he cannot
do so. During the British rule, the ordinance(s) passed by the Governor General used
to remain in force for the period of six months after promulgation. If the provision is
made „after six months of the re-assembly of the Parliament‟, then the ordinance(s)
shall continue in force for approximate period of seven and a half months. The
Parliament has to mandatorily meet twice a year. The period of six weeks is one and a
half month plus next six months will make a period of seven and a half months after
which the Parliament shall re-assemble. So, in order to restrict the ordinance making
137
power and in order to curtail mouse of the said article, the period of four weeks was
recommended. It was further recommended that if four weeks period is not accepted
then specific safeguard must be made that „every ordinance(s) shall come to an end
after the expiry of the period of six months.
The problem was that one provision regarding summoning of the Parliament
was provided. On the other hand, it was specifically provided that ordinance(s) shall
cease to operate within six weeks after the assembly of the Parliament. Indirectly, the
said article provides the life to the amendment for approximately ten weeks.
Another amendment moved before the House was-“That in sub-clause (a) of

clause (2) of article 102, for the words „six weeks from the re-assembly of the
Parliament‟ the words „thirty days from the promulgation of the ordinance‟ be
substituted,” was negatived in voting. The said amendment was read as-“An
ordinance promulgated under this article „shall be laid before both Houses of
Parliament and shall cease to operate at the expiration of six weeks from the re-
assembly of the Parliament, or if before the expiration of that period resolutions
disappearing it are passed by both Houses upon the passing of the second of these
resolutions.”
It was argued that the power of passing ordinance(s) was nothing but granting
power to the executive regarding passing of law, for a certain period. The said article
provides for continuation of ordinance(s) as long as the Parliament does not meet. If
the Parliament meets then also the ordinance(s) remain in force for the period of six
weeks from the date of its re-assembly. The said provision was directly borrowed
from the Government of India Act, 1925. Due to this provision, it was declared at that
time that the full responsible Government cannot be framed. The framers did not want
to carry forward the said provision of the Government of India Act. It was demanded
that the period for which the ordinance(s) remain in force is too long and legislature
must be given the chance to justify the situation of emergency.
The next amendment moved was- “Every such ordinance shall be laid before
both Houses of the Parliament immediately after each House assembles and unless
approved by either House of the Parliament by Specific Resolution, shall cease to
operate forthwith,” was negatived in voting.
138
The main reason for bringing the aforesaid amendment was to give proper
justification to the rule of law. It was appealed that the emergency power must not be
granted in an extraordinary manner in order to provide civil liberties to the citizen. It
was recommended that the extreme power must be given to the executive unless the
same is approved by the Parliament.
Another amendment was moved and it was read as-“Provided that such
ordinance shall not deprive any citizen of his right to personal liberty except on
conviction after trial by a competent court of law,” was negatived in voting.
It was demanded that under any reason, the right to life or personal liberty of the
citizens cannot be deprived. The same can be deprived at the time of conviction by the
trial court. Framers considered that deprivation of life or personal liberty is an
example of irresponsible government. It was demanded that in no way the legislative
power exercised by the president must exceed the fundamental rights of the citizen. If
it is done so, then it must be considered void. It was further demanded, that if the
Parliament is not in session at the time of passing ordinance(s) then the period of
thirty days must be made mandatory for calling the Parliament in session.
Then, honourable Dr. B.R. Ambedkar had given clarification regarding

abovementioned amendment and expressed his views regarding article 102. He
clarified that the ordinance making power granted to the President is not borrowed
from the Government of India Act, 1935. The aspect that is borrowed from the
Government of India Act, 1935 is its section 42. Under the said section, the President
can issue ordinance when Legislature is not in session.
Further he clarified that when legislature is not in session, the President is the
best person to issue ordinance(s) (if any need arises) as compared to the executive. In
absence of legislature, the President can pass ordinance(s) subject to the restriction
that he has to pass ordinance(s) with the similar limitations as the law was made by
the legislature during ordinary process. So, the question of deprivation of life or
personal liberty do not arise, because during ordinary process, legislature is not
empowered to deprive life or personal liberty of the citizen and the same applies to
the President.
139
The amendment-“That in clause (1) of article 102, after the words „except when
both Houses of the Parliament are in session‟, the words „after consultation with his
Council of Ministers‟, be inserted,” was negatived in voting.
The amendment-“That in sub-clause (a) of the clause (2) of article 102, after the
word „Parliament‟, where it first occurs the words „immediately after each House
assembles‟ be inserted; after the word „and‟ where it first occurs the words „unless
approved by either House of the Parliament by Specific Resolution‟ and after the
word „operate‟ the word „forthwith‟ be inserted; and the words „at the expiration of
six weeks from the re-assembly of the Parliament, or, it before the expiration of that
period resolutions disapproving it are passed by both Houses, upon passing of the
second of those resolutions‟; „be deleted‟, was negatived in voting.
The framers of the Indian Constitution assigned special powers i.e. law making
powers to the President at the time when Parliament is not in session. The President of
India can exercise this power only at the time of emergency. The President can issue
ordinance at the time of emergency. The President can issue ordinance at the time of
emergency. Such ordinance is scrutinized by both the Houses of the Parliament. If
Parliament permits to execute ordinance then only the executive is empowered to
execute the ordinance. But if emergency arises, when Parliament is not in session,
then the President is empowered to issue ordinance which the executive has to
execute it.
As far as the question of deprivation of life or personal liberty of the citizens of

India is concerned, the elementary rights of the citizens cannot be seized away by the
President. President‟s power of issuing ordinance at the time of emergency is similar
to a law made by the legislature under the ordinary process. None of the laws passed
by the legislature under the ordinary process were empowered to deprive citizens
from their elementary rights. The same aspect is explicitly applicable to the
President‟s power of issuing ordinance at the time of emergency. The expression of
cessation of ordinance from the period of expiration of six weeks from the date of re-
assembly of the Parliament was kept as it was. The aspect of suspension or
deprivation of right to life or personal liberty was not at all granted to the President
through article 102.
140
The debate regarding article 152 was conducted on 2nd June, 1949, Thursday.
The then article 152 is article 173 of the present Indian Constitution i.e. „Qualification
for membership of the State Legislature‟.
The amendment moved by Dr. B.R. Ambedkar that- “A person shall not be
qualified to be chosen to fill a seat in the legislature of a state unless he-
a) is citizen of India;
b) is, in the case of a seat in a Legislative Assembly, not less than twenty five
years of age and, in the case of a seat in the Legislative Council, not less than
thirty-five years of age; and
c) possesses such other qualifications as may be prescribed in that behalf by or

under any law made by the legislature of the state,” was adopted in voting.
The main reason for bringing the above amendment is to set some sort of
qualification for the candidates of either House of the Legislature of the State. At that
time there were appealing level of illiteracy prevalent in India. In order to avoid
illiterate candidate to become the member of either House of the Legislature, sub-
clause(c) was preferred in article 152. It was kept open for the Legislature to decide
the level of literacy of the candidate from time to time through law. Such requirement
was considered as a positive requirement. In Constitutions of Canada and South
Africa property qualifications were set forth for the candidates. But such
qualifications were not preferred by the members of the Constituent Assembly.
According to them, the said aspect leads to indirect promotion of zamindars of elitist
strata of the society to contest elections. They didn‟t want to throw away the ordinary
people from contesting elections. The motion regarding article 152 was adopted and
the said article became the part of the Indian Constitution.
87
141
According to the framers of the Indian Constitution, the law making power
absolutely vests with the legislature i.e. the State Legislature as well as the Central
Legislature. Law making body and the law imparting body are the two sides of the
same coin. If the law making body makes unjust arbitrary, inhuman, etc. kinds of laws
then it would not be possible for the law imparting body (judiciary) to function in a
fair manner. Utmost education level (qualification) is demanded from the judges. On
the other hand, if no education qualification is demanded from the legislature then
balance cannot be maintained. As already set forth in article 15 (supra) that the
expression „due process of law‟ is not accepted and in its place the expression „except
otherwise the procedure established by law‟ indicates that the foundation of just laws
lies with the legislature. Judiciary is the building or structure conducted on the said
foundation. If the foundation is weak, then we cannot expect impartial and fair
judiciary to stand of its own for longer period of time.
In order to provide and promote fairness and justification for the

implementation of article 15, it becomes necessary to determine from time to time the
educational qualification of the legislature through law.
2.16) Constituent Assembly Debates on Article 122-A88 (Article 367

of the present Constitution)
The debate regarding article 122-A was conducted on 6th June, 1949, Monday.
The then article 122-A is article 367 of the present Indian Constitution i.e.
„Interpretation‟.
The amendment was moved regarding insertion of article 122-A. It was- “In
this chapter, references to any substantial question of law to the interpretation of this
constitution shall be construed as including references to any substantial question of
law as to the interpretation of the Government of India Act, 1935 or of any Order in
Council or made there under or of the Indian Independence Act, 1947 or of any order
made there under,” was adopted in voting.
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Constituent Assembly Debates, Lok Sabha Secretariat, New Delhi, 2009 Edition, Book no.-3, Vol.-VIII
Pg. no. 651 to 655
142
When the High Court certifies that there involves a substantial question of law
in civil, criminal or any other proceedings regarding interpretation of the Indian
Constitution then the Supreme Court gains the power to undertake the work of
interpretation of the constitution. It means, the matters of vital importance must be
there. The jurisdiction of the Supreme Court regarding interpretation of the
Constitution is such that the matter which the Supreme Court is going to interpret is
not interpreted either by the Subordinate Court or the High Court.
The questions were raised in the debate that the Government of India Act,
1935 and the Indian Independence Act, 1947 shall extinguish or not from the day on
which the Constitution is passed. If they extinguish then how the Supreme Court can
interpret the law(s) that is/are not in force?
Against the said question, Dr. B.R. Ambedkar explained the entire scheme or
methodology through which the constitution shall be interpreted. He explained that
the statutes like the Government of India Act, 1935 and the Indian Independence Act,
1947 shall be repealed on the day on which the constitution will be passed but rights
and obligations accruing from the abovementioned statutes do not come to an end.
Similarly, at the time of interpretation of the constitution, the rights and obligations
accruing from the old constitution, statutes, etc. cannot be by-passed.
The framers of the Indian Constitution were of the opinion that the
Constitution of India must be interpreted in the manner in which it is framed. It means
that the Constitutional Guarantees granted to the people of India must not be taken
away from them in any manner.
The framers of the Indian Constitution adopted the criteria that the rights and
the obligations that accrued from the Government of India Act, 1935; Indian
Independence Act, 1947 and the Constitution shall be construed accordingly. If the
substantial question of law arises regarding the interpretation of the constitution, then
it becomes necessary for the High Court to grant the certificate regarding the
interpretation of the Constitution. After this Supreme Court of India becomes entitle
to interpret the constitution.
143
The debate regarding article 275 was conducted on 2nd August, 1949, Tuesday.
The said article was proposed for minor amendments on the said day. The then article
275 is article 352 of the present constitution i.e. „Proclamation of Emergency‟.
The amendment that-
“(1) If the president is satisfied that a grave emergency exists where by to security
of India or of any part of the territory is threatened, whether by war or external
aggression or internal disturbance, he may, by proclamation, make a
declaration to that effect.
(2) A proclamation issued under clause (1) of this article (in this constitution
referred to as „a Proclamation of Emergency‟)-
(a) may be revoked by a subsequent Proclamation;
(b) shall be laid before each House of Parliament;
(c) shall cease to operate at the expiration of two months unless before the
expiration of that period it has been approved by resolution s of both Houses
of Parliament;
Provided that if any such Proclamation is issued at a time when the House of
People has been dissolved or if the dissolution of the House of the People
takes place during the period of two months referred to in sub-clause (2) of
this clause and the Proclamation has not been approved by a resolution passed
by the House of the people before the expiration of that period, the
Proclamation shall cease to operate at the expiration of thirty days from the
date on which the House of the People first sits after its reconstitution unless
before the expiration of that period resolutions approving the Proclamation
have been passed by both House of Parliament.
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Constituent Assembly Debates, Lok Sabha Secretariat, New Delhi, 2009 Edition, Book no.-4, Vol.-IX,
Pg. no. 103 to 127
144
(3) A Proclamation of Emergency declaring that the security of India or if any part
of the territory thereof is threatened by war or by external aggression or by
internal disturbance may be made before the actual occurrence of war or of ay
such aggression or disturbance if the President is satisfied that there is
imminent danger thereof,” was adopted in voting.
The main reason, behind the acceptance of the said amendment was to stop the
President from becoming a dictator. Instead of the word „war‟, words „external
aggression‟ is used because many times war is not declared. The emergency provision
was misused by Hitler. The Weimer Constitution of the Third Retch was destroyed by
Hitler under the pretext of emergency provisions. The above example was cited by the
framers in order to explain the logic behind the said amendment. Previously, under
article 102 (supra) the limit for the Proclamation of Emergency was of six months
which was reduced to two months in this article. The words „domestic violence‟ are
replaced and in their place, the words „internal disturbances‟ are used.
The President is clothed with extraordinary powers under the head of

„Proclamation of Emergency‟. The ordinary or general function of the President is to
act upon the aid and advice of the Council of Ministers. But under emergency
provisions, the President can act of his own. The power of the President regarding
issue of ordinance at the time of emergency especially when the Parliament is not in
session was severely objected by the framers. It was because during such point of
time there are all probable chances of abuse of powers by the President. It was also
proposed that when the Parliament is not in session and if at such point of time, the
need arises to issue ordinance by the President then the provision must be made that
the President must act on the advice and aid of the Council of Ministers. It was also
proposed that the Proclamation of Emergency must be approved by both the Houses
of the Parliament. If it is not done so, then it would amount to denial of the right to
self-government.
It was also argued that in America, the President is not given absolute powers
even during emergency. But in England such absolute powers are granted to the
President during emergency. Giving absolute powers to the President was considered
against the Principles of democracy. It was also suggested to insert some safeguards
as to when to constitute the Proclamation of Emergency? What must constitute
145
internal disturbances or disorders? The framers gave an example that too many cases
of robbery do not constitute internal disorders. It was demanded to set norms for
internal disturbances. It was also proposed that if emergency arises and if the
Parliament is not in session at that time, then it must be summoned at once. A need
for strong centre was demanded.
The following amendments were negatived during the voting process-
The amendment- “That in sub-clause (a) of clause (2) of article 275, after the
words „may be revoked‟, the words „or varied‟ be inserted”, was negatived.
The motion- “That in clause (1) of the proposed article 275, after the word
„President‟ the words „acting upon the advice of his Council of Ministers‟, be
inserted,” was negatived.
The motion- “That in amendment for clause (3) of the proposed article 275,
the words „by war or by external aggression or‟ be deleted,” was negatived.
The motion- “That in clause (3) of the proposed article 275, for the words
„occurrence of war or of any such aggression or disturbance the words „occurrence of
such disturbance,‟ be substituted,” was negatived.
The article 275 assigns special powers to the President regarding Proclamation
of Emergency for internal disorders as well as for war. The said article was based on
England Model and not on American Model. But in England, the said power of
issuing Proclamation was taken away by passing the Emergency Act, 1920. The said
act was passed immediately after the First World War. Under the said act, the
Executive was granted the power to issue Proclamation, but it was subjected to
Parliament‟s approval. The framers gave the greatest example of misuse of the said
power by Hitler. The limit of Proclamation was decided as per article 102 was for six
months. But under the said article the said limit was reduced to two months.
If within the period of two months, if the House comes in session, the
Proclamation issued by the President ceases within the period of thirty days from the
date when the House comes in session. The framers in no way had adopted the
Principle of Constitutional Dictatorship envisaged by the President. Under the
146
situation of grave emergency, if the Parliament is not in session and there is no time
left to summon the Parliament immediately then only the President is allowed to make
use of his special powers regarding issue of Proclamation of Emergency under this
article. Besides this, if even during such grave emergency situation, if it is found that
the President has misused his powers then there is provision regarding impeachment
of the President. They didn‟t want that the President must act on the advice of the
Council of Ministers during emergency.

The major portion of the debate regarding article 280 was conducted on 4th
August, 1949, Thursday. The remaining debate and voting pertaining to the said
article was conducted on pertaining to the said article was conducted on 20 th August,
1949, Saturday. The then article 280 is article 359 of the present Constitution i.e.
“Suspension of the enforcement of the rights conferred by part III during
emergencies.”
The amendment no. 3028 was brought for the substitution of the following
from the existing article 280-
“That for the existing article 280, the following article be substituted-
„Where a Proclamation of Emergency is in operation, the President may by

order declare that the right to move any court for the enforcement of the rights
conferred by Part-III of this Constitution and all proceedings pending in any court for
the enforcement of any right so conferred shall remain suspended for the period
during which the Proclamation is in operation or for such shorter period as may be
specified in the order,” was adopted in voting. The aspect that was adopted regarding
amendment no. 3028 was non-suspension of enforcement of certain fundamental
rights during emergencies.
The part-III fundamental rights that were not subjected to suspension were
articles 13, 14, 15, 16 and 24. These were-
90
Pg. no.-186 to 198 and Pg. no. 523 to 554
147
Article 13: freedom of speech, press, etc.
Article 14: penalty greater than the offence was restricted
Article 15: due process of law
Article 16: freedom of trade and commerce
Article 17: compulsory acquisition of property
The old article 280 aimed at suspension of fundamental rights for a period of
six months after the proclamation is ended. The right to move to the Supreme Court
and the High Court for enforcement of the writs like habeas Corpus also gets
suspended even after the Proclamation ceases away. This was not considered as fair.
So, the above amendment was moved and it was adopted in voting.
For the above amendment, i.e. amendment no. 3028, the following aspects
were proposed through amendment no. 3030 i.e.-
“That in article 280, after the words „by order‟ the words „and subject to the
approval of a majority of the total membership of each House of Parliament‟ be
inserted.”
“That in amendment no. 3028 of the List of Amendment proposed to article

280 for the words „enforcement of the rights conferred by Part-III of this Constitution‟
the words „enforcement of such of the rights conferred by Part-III of this Constitution
as may be specified in that order‟ be substituted.”
That in amendment no. 3028 of the List of Amendments in the proposal article
280, for the words „any right‟ the words „any such right‟ be substituted.” “That in
3028 of the List of Amendments in the proposed article 280, for the words „the order‟
occurring at the end, the words „that order‟ be substituted.”
After summing up all the aspects of aforesaid amendment no. 3030, it was
read as-
“Where a Proclamation of Emergency is in operation, the President may, by order and

subject to the approval of a majority of the total membership of each House of
148
Parliament, declare that the right to move any Court for the enforcement of such of
the rights conferred by Part-III of the Constitution as may be specified in the order,
and all proceedings pending in any court for the enforcement of any such right so
conferred shall remain suspended for the period during which the Proclamation is in
operation or for such shorter period as may be specified in that order,” was negatived
in voting.
The main reason behind bringing the abovementioned amendment was to stop
the President from becoming the Constitutional Dictator. It was argued that in
England Defence of the Realm Act-DORA was passed in 1919-1920, in which there
was a provision regarding suspension of personal liberty. But at the same time it was
also provided for against the abuse of power by the executive for suspension of
personal liberties. Similarly, the Emergency Power Bill of 1920 was condemned as
the Black Bill in England. It was also argued that in USA, the right to the writ of
habeas corpus gets suspended at the time of rebellion or invasion only if the public
safety requires it. The said suspension of the right comes into force only when the
Senate and the House of Representatives approve the same together. Moreover, in
USA, besides conducting the above procedure, the Supreme Court, there, has to
justify the suspension of the said right.
It was argued that entire Part-III rights, i.e. fundamental rights are not possible
to be suspended during emergency. The examples of articles 11 and 13 (as per the
debates) were given. Article 11 stands for abolition of untouchability (supra) and
article 13 stands for freedom of speech, press, etc. (supra). It was argued that human
feelings cannot bed abrogated to such extent. The granting of said power to the
President was considered as human imperfections. In UK the Parliament is summoned
within five days at times of emergency (grave crisis). Similarly, the Constituent
Assembly of Italy also made the provision that at the time of grave crisis the Chamber
(Parliament) must assemble within five days. The decree of the President must be
converted into law within sixty days. The examples of UK, USA and Italy reveals
about proper safeguards made for emergency.
The following was proposed for amendment no. 3028-
149
“That in amendment no. 3028 of the List of Amendments, in the proposed article 280
for the words „the President may by order declare‟ the words „the Parliament may by
law provide‟ and for the words „the order‟ occurring at the end , the words „that law‟
be substituted.” The said motion was read as-
“Where a Proclamation of Emergency is in operation, the Parliament may by

law provide that the right to move any court for the enforcement of the rights
conferred by Part-III of this Constitution and all proceedings pending in any court for
the enforcement of any right so conferred shall remain suspended for the period
during which the proclamation is in operation or for such shorter period as may be
specified in that law.” The said motion was negatived in voting.
The main reason behind bringing the said motion was to draw the attention of
the House that liberties guaranteed under article 13(supra) cannot be suspended in any
situation. Besides this, the right to move to the Supreme Court for the enforcement of
fundamental rights by way of writs like habeas corpus and so on cannot be taken
away or abridged. It was argued that India waged the war against the British in the
year 1942. At that time, the right to move to the High Court for issue of writ of habeas
corpus was guaranteed under section 491 of the Code of Criminal Procedure. At that
time, the then British Government suspended the same right. The said aspect was
again repeated here. Moreover, it was also held that if the war lasts for ten years then
such rights remains suspended for 10 years. Such situation was considered intolerant
by no means. It was recommended that the Parliament must make the law regarding
the emergency. The aspect that the President alone has the power of emergency was
criticized. No single individual must be granted the power where Sovereign
Parliament exists.
Thereafter, the motion was moved regarding suspension of the rights

guaranteed under article 15 (supra) (due process of law) and article 13 (supra)
(freedom of speech, press, etc.) during emergencies. It was argued that article 13
already exists as a fundamental right with reasonable restrictions. If any more
restrictions are placed then it would become meaningless. Moreover, if article 25
(right to move to the Supreme Court for the enforcement of fundamental rights by
way of writs) is suspended, then guaranteed fundamental rights shall become no more
guarantees. It was said that by suspension of these rights executive is made more and
150
more autocratic. The problem was raised before the House that the term „emergency‟
is nowhere defined in the constitution. So, what constitutes an emergency? differs
from person to person. According to the framers, a panic cabinet soon declare the
emergency while a sturdy cabinet may not declare the emergency. The framers raised
the questions that-what situation constitutes the emergency? What are the exact
ingredients of emergency? The framers expressed that if under such situation, the
Parliament is made an alternative authority then entire things may go wrong. For
article 15, it was argued that the liberty of a person cannot be taken away except
otherwise the procedure established by law. Examples of the French Constitution and
the Swiss Constitution were given where the President is not clothed with such
powers.
The words of Lord Atkin were pronounced. These were, “War or no war,
justice must go on. His Majesty‟s justice cannot be curtailed or in the least affected
by the existence of a war.” It means that even at times of greatest emergency law
court must be kept open to justify individual rights. So, it was proposed that,
fundamental rights and fundamental liberties cannot be interfered even at times of
emergencies.
The most remarkable or astonishing about article 280 is that, the amendment
no. 15 was entirely negatived. The entire amendment no. 15 was-
“That in amendment no. 15, clause (3) of the proposed article 280, the full
stop occurring at the end be substituted by a comma and the words „when it meets for
the first time, after such in order‟ be added thereafter,” was negatived in voting. The
main reason for bringing the said amendment was to stop the President from
exercising drastic powers.
The question that-
“(i) That in amendment no. 15, clause (1) of the proposed article 280, for the
words „the President may by order declare‟ the words „Parliament may by law
provide‟ be substituted.
(ii) That in amendment no. 15, clause (1) of the proposed article 280, for the
words „mentioned in the order‟ the words „specified in the act‟ be substituted.
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(iii) That in amendment no. 15, clause (1) of the proposed article 280, for the
words „the rights so mentioned,‟ the words „any of such rights so mentioned‟
be substituted.
(iv) That in amendment no. 15, clause (1) of the proposed article 280, for the
words „in the order‟ occurring at the end of the clause, the words „in the Act‟
be substituted.
(v) That in amendment no. 15, clause (2) and (3) of the proposed article 280, the
following clause be substituted:-
(2) An act made under clause (1) of this article may be renewed, repealed or
varied by a subsequent Act of Parliament,” was negatived.
The question that-
“(i) That in amendment no. 15, in clause (1) of the proposed article 280, for the
word „mentioned‟ where it occurs for the first time, the word „specified‟ be
substituted.
(ii) That in amendment no. 15, in clause (1) of the proposed article 280, for words
„the rights so mentioned‟ the words „any of such rights so mentioned‟ be
substituted.
(iii) That in amendment no. 15, for the clause (1) of the proposed article 280, the
following be substituted:
„An order made under clause (1) of this article, shall, before the expiration of
fifteen days after it has been made, be laid before each House of Parliament
and shall cease to operate at the expiration of seven days from the time when it
is so laid, unless it has been approved earlier by resolutions of both Houses of
Parliament‟.
(iv) That in amendment no. 15, clause (3) of the proposed article 280, the
following new clauses be added:
iv) An order made under clause (1) of this article may be revoked by a subsequent
order.
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v) An order made under clause (1) of this article may be renewed or varied by a
subsequent order, subject to the provisions of clause (3) of this article.
(v) That in amendment no. 15, at the end of the proposed article 280, the
following new clause be added:
„Not withstanding anything contained in this article the right to move the
Supreme Court or a High Court by appropriate proceedings for a writ of habeas
corpus, and all such proceedings pending in any court shall not be suspended except
by an Act of Parliament;” was negatived.
The question that-
“That with reference to amendment no. 15 of List I (Fourth Week) of

Amendments to Amendments, after article 279, the following new article be added-
„279 A. Any law made or any executive action taken under article 279 in derogation
of the provisions of article 13 of Part-III of the Constitution shall ensure for such
period only as is considered necessary by the State as defined in that Part and in no
case for a period longer than the period during which a Proclamation of Emergency is
in force,” was negatived. The article 279 mentioned above was regarding making of
no laws during Proclamation of Emergency under article 13.
The question that-
“That in amendment no. 15 of List I (Fourth Week) of Amendments to

Amendments in clause (1) of the proposed article 280, after the words „a Proclamation
of Emergency‟ the words, figures and brackets „under article 275 (1) of the
Constitution‟ be inserted‟,” was negatived.
The question that-

Amendments, in clause (2) of the proposed article 280, the following be added at the
end-
„for a period during which the Proclamation is in force or for such shorter
period as may be specified,” was negatived.
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The question that-

Amendments, after clause (2) of the proposed article 280, the following new clause be
added-
„(2A) Any such order may be revoked or varied by a subsequent order‟,” was
negatived.
The question that-

Amendments, in clause (3) of the proposed article 280, the following be added at the
end:
„and shall cease to operate at the expiration of one month unless before the
expiration of that period it has been approved by resolutions of both Houses of
Parliament:
Provided that if any such order is issued at a time when the Houses of the
People has been dissolved or if the dissolution of the House of the People takes place
during the period of, one month referred to in clause (3) of this article and the order
has not been approved by a resolution passed by the House of the People before the
expiration of that period, this order shall cease to operate at the expiration of fifteen
days from the date on which the House of the People first sits after its reconstitution
unless before the expiration of that period resolutions approving the order have been
passed by both Houses of Parliament‟,” was negatived.
The question that-

Amendments, in clause (3) of the proposed article 280, the following words be added:
„and if the House of People, by a resolution passed by it, amends, varies or

rescinds the order, the resolutions shall be given effect too immediately‟,” was
negatived.
The question that-
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“That for article 280, the following article be substituted-
280(1) where a Proclamation of Emergency is in operation, the President may by

order declare that the right to move any Court for the enforcement of such of
the rights conferred by Part-III of this Constitution as may be mentioned in the
order and all proceedings in any court for the enforcement of the rights so
mentioned shall remain suspended for the period during which the
proclamation is in force or for such shorter period as may be specified in the
order.
(2) An order made as aforesaid may mind to the whole or any part of the territory
of India.
(3) Every order made under clause (1) of this article shall as soon as may be after
it is made be laid before each House of Parliament,” was negatived.
The amendments no. 16 and 17 were not moved. The amendment no. 18 that
was brought for bringing the changes in amendment no. 15 which was on similar lines
as it was in case of amendment no. 15 was negatived in voting.
The old article 280 aimed at the suspension of all fundamental rights
enumerated in Part-III of the Indian Constitution during emergency as well as uptil six
months after the emergency ceases away. Till this period, no one can move to the
Supreme Court or the High Court for the enforcement of fundamental rights.
Moreover, the proceedings already undergoing in the courts regarding enforcement of
fundamental rights also get suspended for the abovementioned period.
The amended article 280 has completely given new dimension to the said
article. Most of the fundamental rights are borrowed from the British and American
Constitution. The power of the President regarding declaration of Proclamation of
Emergency pertaining to internal disorders and war enumerated in article 275 (supra).
It was totally based on English model. The framers didn‟t want the President to
become a Constitutional Dictator. They wanted that in a democracy sole powers
cannot be vested in one person i.e. the President. The powers of the President
regarding suspension of fundamental rights during emergencies were referred from
the British Constitution, the American Constitution, the Italian Constitution and the
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French Constitution. The framers revealed their intention that there are certain
fundamental rights that cannot be suspended even during and after the emergency.
These rights are right to equality, personal liberty, abolition of untouchability,
abolition of titles and right to move to the Supreme Court or the High Court for the
implementation of the fundamental rights. If these rights are suspended then it will
lead to situations like-miscarriage of democracy, failure of constitutional machinery,
constitutional dictatorship and failure of human rights and humanitarian approaches.
All the motions regarding amendment no. 15 were negatived in voting.
The framers wanted that some of the fundamental freedoms guaranteed in

form of fundamental rights are suspended during and after the emergency until the
normalcy is not reached then it shall not give rise to abovementioned situations like
miscarriage of democracy, failure of constitutional machinery and so no. Suspension
of some of the fundamental freedoms guaranteed under articles 13, 14, 15, 16 and 24
doesn‟t make difference. So, suspension of these articles was permitted but
suspension of rest of the articles was not permitted even during and after the
emergency.
The motion regarding article 15 pertaining to the Parliament‟s power to enact

law regarding suspension of fundamental rights was negatived because many a times
emergency arises when the Parliament is not in session or the Parliament is dissolved
and the new Parliament is about to be formed. In such a situation, the President
remains the sole person to decide and declare about the Proclamation of emergency.
Thus, keeping this situation in mind, the right to suspension of all fundamental rights
conferred in Part-III of the Constitution are neither granted solely to the President nor
to the Parliament.
By negativating entire amendment no. 15, the framers also covered the
situation if the Parliament is not in session or it is dissolved then the President has to
act solely at his own discretion. But under such discretion, he cannot become
Constitutional Dictator. Moreover, he cannot suspend all fundamental rights. The
other side of the coin is the implied situation that framers has permitted is-if the
Parliament is in session, the President cannot act of his own. Under such situation, the
President has to act as per the advice of the Parliament.
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The framers also intended that the period of enforcement of the order of
Proclamation of Emergency must be flexible. It must not be rigid say 6 months, 3
months, one month, 15 days, 7 days and so on as it was debated. They wanted that the
effect of the order of the proclamation of emergency shall cease to exist as and when
the emergency extinguishes and the normalcy is reached.
2.19) Constituent Assembly Debates on Article 295-A91 (Articles 330

& 332 of the present Constitution)
The debate regarding article 295-A was conducted on 24th August, 1949,
Wednesday and on 25th August, 1949, Thursday. The said article was regarding
abolition of reservation of seats for Scheduled Castes and Scheduled Tribes either in
the House of People or in the Legislative Assembly of the State after the expiration of
the period of ten years from the date of commencement of the Indian Constitution.
The then article 295-A is related to articles 330 and 332 of the present Indian
Constitution. Article 330 of the present Indian Constitution is- Reservation of the
seats for Scheduled Castes and Scheduled Tribes in the House of People. Article 332
of the present Indian Constitution is- Reservation of seats for Scheduled Castes and
Scheduled Tribes in the Legislative Assemblies of the States.
The motion was moved regarding insertion of this new article 295-A. It was-
“That after article 295, the following new article be inserted:-
„295-A Notwithstanding anything contained in the foregoing provisions of this Part,

the provisions of this Constitution relating to the reservation of seats for the
Scheduled Castes and the Scheduled Tribes either in House of People or in the
Legislative Assembly of a State shall cease to have effect on the expiration of a period
of ten years from the commencement of this Constitution‟.”
The said amendment was negatived in voting. The main reason behind
bringing the abovementioned amendment was to disallow the provision regarding
reservation of seats to Scheduled Castes and Scheduled Tribes in the House of People
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Pg. no. 674 to 698
157
as well as the Legislative Assembly of the State after the period of ten years from the
date of commencement of this Constitution. The protection of reservation of the seats
for Scheduled Castes and Scheduled Tribes was decided to be given for a period of
ten years from the date of commencement of this Constitution.
It was argued that social, educational, political and economic backwardness is

found in India. Ten years period was considered much shorter period for eradicating
different types of backwardness completely. Moreover, article 215-B of the debated
Constitution provides for the administration of Scheduled and tribal areas. The
Government cannot act of its own. It has to act as per the report of the Tribal
Advisory Committee which was set up as per the Cabinet Mission Plan. Unless and
until, the Tribal Advisory Committee does not give report to the Government
regarding complete eradication of different types of backwardness, the Government
cannot cease the protection of reservation of its own.
Then amendment no. 38 was moved. It was- “That in amendment no. 38 of

List-I (fifth week) of Amendments to Amendments, in the proposed new article 295-
A after the words „ten years‟ the words „or longer period if the Parliament so decides
at a later date‟ be inserted.” By the said amendment, it was proposed that instead of
period of reservation of ten years, it should be kept open for the Parliament to decide
about the reservation. The Parliament has to review the situation of different types of
backwardness of Scheduled Castes and Scheduled Tribes and then it has to take
appropriate decisions regarding reservation. The above amendment was read as-
“Notwithstanding anything contained in the forgoing provisions of this part,

the provisions of this Constitution relating to the reservation of seats for the
Scheduled Castes and the Scheduled Tribes either in the House of the People or in the
Legislative Assembly of the State shall cease to have effect on the expiration of a
period of ten years from the commencement of this Constitution, unless Parliament by
law otherwise provide.”
After hours of discussion regarding different motions of amendment no. 38,

voting was conducted. In voting, the motion regarding amendment no. 38 that- “That
in amendment no. 38 of List-I (fifth week) of Amendments to Amendments, at the
end of the proposed new article 295-A, the following be added:-
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„Unless Parliament by law otherwise provides‟,” was negatived. Then, the said article
was made the part of the Constitution.
The framers adopted the strict view that reservation for Scheduled Castes and
Scheduled Tribes in the House of People and in the Legislature of the State must
cease to exist after ten years from the date of commencement of this Constitution.
They did not want that the Parliament must be given the discretion to decide from
time to time about the reservation. Due to this reason, the motion regarding
amendment no. 38 pertaining to assignment of powers to the Parliament for deciding
about the period of reservation from time to time was negatived. The main reason
behind doing so was that there are no strict parameters for defining backwardness.
Moreover, practising untouchability which is one of the social backwardness was
considered as cognizable offence. They wanted that the parliamentary form of
democracy must prevail wholly on the basis of equality and not on the basis of
reservation. According to the framers, the real goals of the parliamentary form of
democracy persist in equality and not through reservation.
2.20) Constituent Assembly Debates on Article 3692 (Article 21 A of

The debates regarding article 36 was conducted on 23rd November, 1948,

Tuesday. The said article was adopted on 31st August, 1949, Wednesday. Article 36
was regarding free and compulsory education at the state expense to all the children
upto the age of fourteen years. The then article 36 is the article 21 A of the present
Indian Constitution.
The amendment moved regarding article 36 was- “That in article 36, the
words „Every citizen is entitled to free primary education and‟ be deleted.” The said
article was read as- “The state shall endeavour to provide, within a period of ten years
from the commencement of the Constitution, for free and compulsory education for
all children until they complete the age of fourteen yeas.” was adopted in voting.
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159
The main reason behind bringing the said amendment was that it included the
question of substance. Part IV rights of the Indian Constitution deal with the Directive
Principles of the State Policy. The provision made in the abovementioned article
indicated the policy that has to be adopted in the future. So, it becomes a directive
made to the State. But at the same time it also contains an obligation in the form of
compulsion. So, it comes within the ambit of the directive principle of the state policy
coupled with the fundamental right. In other words, the directive principle is
combined with the fundamental right.
The attention of the House was drawn that in the original article, the marginal
note indicated that „Provision for free primary education‟. But in the above
amendment no distinction is made between primary education and secondary
education. The citizen upto the age of 14 years has to obtain education. It may be
primary or secondary or may be called by any other name.
Thereafter, the motion that-
“That in article 36, for the word „education‟ the words „primary education‟ be
substituted,” was negatived.
On 31st August, 1949, article 36 was adopted by the House in the following
form- “The State shall endeavour to provide within a period of ten years from the
commencement of this Constitution for free and compulsory education for all children
until they complete the age of fourteen years.”
The framers wanted that the State must provide free education to the citizen
upto the age of fourteen years at state‟s expenses. As this was not possible all of a
sudden, the time period of ten years was given. The said provision shall become
operative after 10 years from the date of implementation of this Constitution. Till the
period of ten years, the State has to make necessary arrangements in this direction. So,
the day on which the said article was adopted becomes the part of the Directive
Principle of the State Policy under Part IV rights of the Indian Constitution. After the
said period of ten years, it becomes mandatory obligation on the part of the State. So,
it automatically ceases to be a Directive and the same acquires the character of one of
the basic fundamental right under Part III of the Constitution. The framers have not
made any sort of distinction between primary or secondary or any other form of
160
education. They only aimed at free and compulsory education (by whatsoever name
called).
2.21) Constituent Assembly Debates on Article 2493 (Article 300 A of

The debate regarding article 24 was conducted from 10th September, 1949,
Saturday to 12th September, 1949, Monday. Article 24 is about compulsory
acquisition of property. The then article 24 is article 300-A of the present Indian
Constitution i.e. „Persons not to be deprived of property save by authority of law.
The first amendment moved for the debate of the said article was-
“That for article 24, the following article be substituted,
‟24 (1) No person shall be deprived of his property save by authority of law.
(2) No property, movable or immovable, including an interest in, or in any

company owing, any commercial or industrial undertaking shall be taken
possession of or acquired for public purposes under any authorising the taking
of such possession or such acquisition, unless the law provides for
compensation for the property taken possession of or acquired and either fixes
the amount of the compensation, or specifies the principles on which, and the
manner in which, the compensation is to be determined.
(3) No such law as is referred to in clause (2), of this article made by the
Legislature of a State shall have effect unless such law having been reserved
for the consideration of the President has received his assent.
(4) If any Bill pending before the Legislature of the State at the commencement of
this Constitution has, after it has been passed by such Legislature, received the
assent of the President, the law so assented to shall not be called in question in
any court on the ground that it contravenes the provisions of clause(2) of this
article.
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Pg. no. 1193 to 1313
161
(5) Save as provided in the next succeeding clause, nothing in clause (2) of this
article than affect-
(a) the provisions of any existing law, or
(b) the provisions of any law which the state may hereafter make for the purpose
of imposing or levying any tax or penalty or for the promotion of public
health, or the prevention of danger to life or property.
(6) Any law of a State enacted, not more than one year before the commencement
of this constitution, may within three months from such commencement by
substituted by the Governor of the State to the President for his certification;
and thereupon, if the President by public notification so certifies, if shall not
be called in question in any court on the ground that it contravenes this
provision of clause (2) of this article or sub-section (2) of section 299 of the
Government of India Act, 1935‟,” was negatived in voting.
The above amendment indicates about two different approaches regarding

right to property and its acquisition. The first approach is about the individual right to
property. The second approach is about the community‟s interest or the community‟s
right vested in that property. The former approach is fundamental right and the later
approach is the right to development. The state is conferred the power regarding
acquisition of the individual‟s property for public purposes as per the procedure
established by law. Acquisition of property in such a manner includes social
engineering, social reforms, etc. The provision of fair and equitable compensation is
also made for the person whose property is acquired by the State for public purpose. It
was also provided in the said amendment that acquisition of individual‟s property by
the State for public purpose is to be done for urgent and important reasons.
It was provided that the Parliament has to fix the amount of compensation on
the basis of the principles governing the compensation. It was further provided that if
the State makes acquisition of individual‟s property under the name of public purpose
for malafied reasons i.e. for politicians‟ own interests then it should be considered as
gross abuse of law and it shall be treated as a fraud on constitution. Though individual
property rights were granted but monopoly over property rights were not permitted.
The courts in India were not given the powers to contravene with clause (2) of this
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article. The sole jurisdiction over it lies with the Parliament. It was also made
mandatory for the Parliament to keep in mind the right to property of individual as
fundamental right as well as about the safety of rights provided in the Constitution.
The amendment no. 369 was moved. It was-
“That in amendment no. 369 of List VII (Seventh week), for the proposed article 24,
the following be substituted-
‟24 (a) The property of the entire people is the mainstay of the State in the
development of the national economy.
(b) The administration and disposal of the property of the entire people are
determined by law.
(c) Private property and private enterprises are guaranteed to the extent they are
consistent with the general interests of the Republic and its toiling masses.
(d) Private property and economic enterprises as well as their inheritance may be
taxed, regulated, limited, acquired and requisitioned, expropriated and
socialized but only in accordance with the law. It will be determined by law in
which cases and to what extent the owner shall be compensated.
(e) Expropriation over against the states, local self-governing institutions, serving
the public welfare, may take place only upon the payment of compensation‟,”
was adopted in voting.
The above amendment was brought for the purpose of cherishing socialistic goals.
It was brought for the purpose of promoting socialism in India. It was termed as
Socialist Republic. It was demanded that property rights to individuals must be
granted on the basis of the law recognized by the community. The State was granted
the right to limit, regulate and expropriate the property of individual(s) through law as
per the common interest of the community. The State has to determine compensation
on the basis of social lines and on the basis of prevailing social conditions. It was also
suggested to deal with economic rights of the masses through the property rights.
163
Then with regard to amendment numbers 720 to 769, the following amendment
was moved-
“That with reference to amendment nos. 720 to 769 of the List of Amendments,
for article 24, the following be substituted-
„24(1) No person shall be deprived of his property save by authority of law.
(2) No property, movable or immovable, including any interest in, or in any

company owing, any commercial or industrial undertaking, shall be taken
possession of or acquired for public purposes under any law authorising the
taking of such possession or such acquisition except on payment in cash or
bonds or both of the amount determined as compensation in accordance with
principles laid down by such law.
(3) Nothing in clause (2) of this article shall affect-
(a) the provisions of any existing law, or
(b) the provisions of any law which the State may hereafter make for the purpose
of imposing or levying any tax or for the promotion of public health or
prevention of danger to life or property‟,” were negatived in voting.
The question was raised through the above amendment was that „what
constitutes fair and equitable compensation?‟ It was argued that whatever
compensation decided by the Parliament cannot be considered as fair and equitable.
Ultimately, it would be the Supreme Court that has to decide about the underlying
equity and fairness in the compensation so declared. The views of Mahatma Gandhi
were quoted regarding property rights. Mahatma Gandhi was of the opinion that India
has experienced the evils of Zamindari System. The national government has to take
into consideration the rights of the dispossessed. The Government has to rob nobody
for the purpose of paying compensation to anybody.
Then, through an amendment, it was proposed that the Union Government

shall be the owner of all private property within four years from the date of
commencement of the Constitution. This was for the implementation of the Marxist
164
view in India. The system of peasant proprietorship was the main hindrance in
implementation of Marxist ideology in India.
Then, another part of amendment no. 369 was moved. It was-
“That in, amendment no. 369 of List VII (Seventh Week), for the proposed
article 24, the following be substituted-
24 (1) No person shall be deprive of his property save by authority of law.
(2) No property, movable or immovable including any interest in, or in any

company owing any commercial or industrial undertaking shall be taken
possession of or acquired under any law unless the law provides for
compensation for the property taken possession of or acquired.
Provided that where an entire category of property, movable or immovable, is

taken possession of or acquired under any law passed by Parliament or the Legislature
of the State for the distinct purpose and object of gradually and peacefully
establishing or classless society in India the principles of law authorising the taking
possession of or acquisition shall in no case be called in question in any court.
Provided further that it shall be the natural right of every citizen whose
property is taken possession of or acquired to get rectified in a proper court of law any
wrong done to in the process of execution of the law providing for compensation,”
was adopted in voting.
The above amendment was brought for the purpose of implementation of

complete socialization. It included abolition of Zamindari System as well as
promoting classless society, in India. Unlike other fundamental rights, the pre-
condition attached to property right is the interest of the community at large as a
matter of public trust. As per the article 37, private property is guaranteed. If such
property is not injurious to the interests of the entire community then it shall not be
acquisited by the State.
Then few amendments were proposed under the amendment no. 369. These
were-
165
“That in amendment no. 369 of List VII, (Seventh Week), in clause (1) of the
proposed article 24, after the word „property‟ the words „except in the national interest
and‟ be inserted,”
proposed article 24, for the words, „taken possession of or acquired‟, where they occur
for the second time the words „to be taken possession of or acquired‟ be substituted.”
proposed article 24, after the words „to be determined‟ a comma and the words
„provided that such principles or such manner of determination of compensation shall
not be called in question in any court‟ be added.”
“That in amendment no. 369 of List VII, (Seventh Week), clause (3) of the
proposed article 24 be deleted.”
“That in amendment no. 369 of List VII, (Seventh Week), for clause (4) of the
proposed article 24, the following be substituted:
„(4) Any Bill pending before the Legislature of the State at the commencement of
this Constitution shall not after its subsequent enactment, be called into
question in any court on the ground that it contravenes the provisions of clause
(2) of this article‟.”
proposed article 24, the words „may‟ within three months from such commencement
be substituted by the Governor of the State to the President for his certification; and
thereupon, if the President by public notification so certifies, it be deleted.”
The above amendments were adopted in voting. The main purposes for
bringing the above amendments were-
(i) no expropriation of property shall be done without compensation.
(ii) right of the individual must not override the rights or interest of the
community.
(iii) the State must not adopt the doctrine of adoption of few.
166
The words of Mahatma Gandhi were quoted here. Gandhiji insisted on the
doctrine of „Aparigraha‟ i.e. the holder of the property is a mere trustee of the
property for the good of the entire community.
Then the next amendment moved was-
“That in amendment no. 369 of List VII, (Seventh Week), at the end of clause
(1) of the proposed article 24, the following proviso be added:
Provided that no rights of absolute property shall be allowed to or recognized

in any individual, partnership firm, or joint stock company in any form of natural
wealth, such as land, forest, mines and minerals, waters of rivers, lakes or seas
surrounding the coasts of the Union; and that ultimate ownership in these forms of
natural wealth shall always be deemed to vest in any belong to the people of India
collectively; and that they shall be owned, worked, managed or developed by
collective enterprise only, eliminating altogether the profit motive from all such
enterprise,” was adopted in voting.
The above amendment aimed at protection of natural resources and natural

wealth. The obligation is put forth on the part of the State by disallowing different
types of partnership for exploiting different natural wealth. The different natural
wealth is purely vested on the people of India. Public participation is demanded for its
usage and profit motive is not permitted.
The next amendment moved was-
proposed article 24-
(i) for the words „No Property‟ the words „Any Property‟ be substituted;
(ii) for the words „shall be taken‟ the words „may be taken‟ be substituted;
(iii) for the words „unless the law provides for compensation‟ the words „subject to
such compensation, if any‟ be substituted;
(iv) for the words „acquired and either fixes the amount of compensation, or
specifies the principles on which, and the manner in which, the compensation
167
is to be determined‟ the words „acquired as may be determined by the
principles laid down in the law for calculating the compensation‟ be
substituted.” The said clause was read as-
“Any property, movable or immovable, including any interest in, or any

company owing, any commercial or industrial undertaking, may be taken
possession of or acquired for public purposes under any law authorizing the
taking of such possession or such acquisition subject to such compensation, if
any, for the property taken possession of or acquired as may be determined by
the principles laid done in the law for calculating the compensation.”
“(v) the following be added at the end:
„Provided that no compensation whatsoever shall be payable in respect of:
(a) any public utility, social service or civic amenity which has been owned, work
managed or controlled, by any individual partnership firm, or joint stock
company for more than 20 years continuously immediately before the day this
Constitution come into force,”
“(b) any agricultural land forming part of the proprietary of any land owner,
howsoever described, which has remained uncultivated or undeveloped
continuously for ten years or more immediately before the day this
Constitution comes into force;
(c) any urban land, forming part of the proprietary of any individual, partnership
firm or joint stock company, which has remained unbuilt upon or
underdeveloped in any way for fifteen years or more continuously
immediately before the day this Constitution comes into effect;
(d) any agricultural land forming part of the proprietary of any landowner,
howsoever described, which has remained in the ownership or possession of
the same individual or his family for more than 25 years continuously
immediately before the day when this Constitution comes into operation;
(e) any mine, forest or mining or forest concession which has remained in the
ownership or possession of the same individual, partnership firm or joint stock
168
company for at least twenty years immediately before the day this Constitution
comes into operation;
(f) any share, stock, bond, debenture or mortgage on any joint stock company,
owing, working, managing or controlling any industrial or commercial
undertaking which has been owned, worked, controlled or managed by the
same joint stock company, or any combination or amalgamation of it with any
other company for more than thirty years continuously immediately before the
day this Constitution comes into operation,
Or
Which has paid in the course of its operations and existence in the aggregate,
in the shape of dividend or interests, a sum equal to exceeding twice the paid
up value of its shares, stock, bonds or debentures;
Or
Whose total assets (not including goodwill) at the time of the acquisition by
the State of any such undertaking are less in value than its total liabilities,”
was adopted.
The abovementioned amendment was brought in order to make the provision

regarding compensation in a more precise manner. The commercial, industrial, etc.
properties were made subjected to acquisition. The public function of commercial
undertakings, industrial undertakings, etc. was considered in clause (v) of the above
amendment. But such public function may be carried out by commercial, industrial,
etc. types of undertakings for atleast more than 20 years before the commencement of
this Constitution. If such undertakings are acquisited then they are not entitled for
compensation. Similar is the case with agricultural land. If agricultural land is not
cultivated for a period of ten years or more and if it is acquisited then its owner is not
entitled for compensation.
If urban land is not built or developed for a continuous period of fifteen years
or more, and then it is acquisited, it is not entitled for compensation. If any
agricultural land is a proprietary of any land owner and if it remains in the possession
169
of the individual or his family for the period of twenty five years or more and if such
land is acquisited, it is not entitled for compensation. The Government is entitled to
undertake acquisition of mines, forests, etc. that are in ownership or possession of any
individual, partnership firm or a joint stock company for atleast twenty years or more
from the day of the commencement of the Constitution without any compensation.
The same provision with a bar of thirty years was made applicable to the industrial or
commercial undertakings. Thus, in this way, different parameter for acquisition and
compensation were fixed through the above amendment.
Thereafter, a series of amendments were brought before the House and each of
them were discussed thoroughly. Most of the amendments that were brought before
the House were negatived. The amendments that were adopted were-
proposed article 24, after the words „the compensation is to be determined‟ the words
„and given‟ be added,” was adopted.
“That in amendment no. 369 of the List VII, (Seventh Week), in clause (5) of the
proposed article 24, the words „Save as provided in the next succeeding clauses‟ be
omitted,” was adopted.
“That in amendment no. 369 of List VII, (Seventh Week), for sub-clause (a) of clause
(5) of the proposed article 24, the following sub-clause be substituted:
„(a) the provision of any existing law other than a law to which the provisions
of clause (6) of this article apply, or‟,” was adopted.
“That in amendment no. 369 of List VII (Seventh Week), after sub-clause (b)
of the proposed article 24, the following new clause be added:
„(c) the provisions of any existing law made or of any law which the state may
hereafter make, in pursuance of any agreement arrived at with a foreign state or
otherwise with respect to property declared by law to be evacuee property‟,” was
adopted.
Thereafter, article 24 was added to the Constitution. Adoption of article 24 is

based on the adoption of amendment no. 369. Entire amendment no. 369 was not
170
adopted. Amendment no. 369 was adopted in parts i.e. it was partly adopted. Sub-
clause (2), (5), (5a), (5b), (5c) and (6) of amendment no. 369 were adopted. If we
consider the abovementioned clauses of amendment no. 369 then article 24 includes
the following:
The Government (State) is entitled to acquire movable as well as immovable

properties of any commercial or industrial undertakings only if the law permits for
compensating the same. If the Parliament or the Legislature of the State acquires any
movable or immovable property for the purpose of establishing classless society in
India, then such acquisition cannot be challenged in the court of law. But if the
property of any citizen is acquired then as per his/her natural rights, he has a right to
approach the court of law. The compensation is to be paid as per the principles laid
down for this purpose. Different categories for computing compensation were
mentioned in sub-clause (2) of amendment no. 369. The compensation that is to be
provided must be fair and equitable.
The State is entitled to acquisite the property that contravenes public health.
The State can do so in order to prevent danger to life and property. This can be done
by existing law or by any other law framed by the State in future in this context.
Under such law(s), the State is also empowered to levy tax or penalty. The obligation
is created on the State to maintain just and equitable economic and social order. The
State was given the power to make an agreement with a foreign state under existing
law or on the basics of any law that shall be enacted in future in this context. For this
purpose, the State was granted the power to declare any property as evacuee property.
It was also proposed that the compensation to be provided by the State must be fair
and equitable. The term „fair and equitable‟ means the compensation based on market
value of the property.
The private properties and private enterprises were guaranteed property rights
as far as they are consistent with the general interest of the community at large,
especially the toiling masses. The Parliament was given the power of socialization of
any class of property on the basis of law. All these aspects were covered under article
24.
171
The framers were of the opinion to grant individual right to property as
fundamental right. It is not exclusive right. It is granted with reasonable restrictions
over it. The framers have adopted the Russian method of expropriation i.e. fair
compensation and just compensation to be paid to the owner of the property, by the
State, at the time of acquisition of property. The fair, equitable and just compensation
includes the compensation to be paid on the basis of the market value of the property
acquisited or expropriated. The State is empowered to exquisite private property
under three broad reasons:
i) for public purposes
ii) for maintenance of public health and for prevention of danger to life and
property of the community
iii) for development purposes
Similarly, the Parliament was granted the power to make law for acquisition or
expropriation of private property for two reasons, viz.,
i) If large scale accumulation of property is done against the interest of toiling

masses of the society.
ii) For execution of an agreement made with the foreign state. Under this, it can
declare any property as evacuee property.
The debate was also held that the right to private property is to be considered
as fundamental right or constitutional right. The right to private property is a
fundamental right. The framers have not expressed it either in terms of affirmation or
in terms of negation. They have simply stated the provision made in article 13(supra).
Article 13 clause (1), sub-clause (f) states that, “All citizens shall have the right to
acquire, hold and dispose off property,” In this sense, it becomes the fundamental
right with reasonable restrictions. Moreover, the obligation is created on the part of
the State to protect and provide private property right. The said right is provided with
reasonable restrictions.
State socialism is promoted which acts as a bar in property accumulation by

few people in the society. The State is made duty bound to provide and promote
172
social, economic and political justice. In this sense, it can acquisite property by giving
fair and equitable compensation to the person whose property is acquisited. On the
other hand, the person whose property is acquisited is given a right to move to the
court for demanding justice if any injustice is done to him. Property right is age old
natural right. Due to this reason, the said right was given place in Magna Carta of
1225 A.D.
The framers aimed at abolition of zamindari and capitalism. They insisted on

nationalization and socialization. Accumulation of wealth in form of property was not
permitted under nationalization and socialization. It was specifically mentioned in the
debate that the said article 24 finds place in the chapter of fundamental rights. It was
also mentioned that fundamental rights are beyond the jurisdiction of a legislature
under Parliamentary Democracy. It means, these rights are fundamental in nature.
They cannot be extinguished or abridged by the legislature.
2.22) Constituent Assembly Debates on Article 15-A94 (Article 22 of

The debates regarding article 15-A were conducted on 15th September, 1949,
Thursday and on 16th September, 1949, Friday. Article 15-A is regarding protection
against certain arrest and detentions. The then article 15-A is article 22 of the present
Indian Constitution i.e. „Protection against arrest and detention in certain cases.‟
The recommended article 15-A was as under:
“That after article 15, the following article be inserted:
‟15-A.(1) No person who is arrested shall be detained in custody without being

informed, as soon as may be, of the grounds for such arrest nor shall be denied
the right to consult a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before
the nearest magistrate within a period of twenty-four hours of such arrest
excluding the time necessary for the journey from the place of arrest to the
94
Pg. no. 1498 to 1572
173
court of the magistrate and no such person shall be detained in custody beyond
the said period without the authority of a magistrate.
(3) Nothing in this article shall apply-
(a) to any person, who for the time being is an enemy alien, or
(b) to any person who is arrested under any law providing for preventive
detention;
Provided that nothing in sub-clause (b) of clause (3) of this article shall permit
the detention of a person for a longer period than three months unless-
(a) an Advisory Board consisting of persons who are or have been or are qualified
to be appointed as judges of a High Court has reported before the expiration of
the said period of three months that there is in its opinion sufficient cause for
such detention, or
(b) such person is detained in accordance with the provisions of any law made by
Parliament under clause (4) of this article
(4) Parliament may by law prescribe the circumstances under which and the class
or classes of cases in which a person who is arrested under any law providing
for preventive detention may be detained for a period longer than three months
and also the maximum period for which any such person may be so detained.”
Article 15-A is applicable to all persons except who is an enemy alien to India.
The said article aims at maintaining individual liberty unless he/she is found and
proved guilty as per the procedure established by law. The arrested person is to be
brought before the nearest magistrate within 24 hours. The detained person is given
the right to consult the legal practitioner of his choice. The arrested person cannot be
put in custody without the order of the magistrate. If a person is arrested under the
preventive detention, he/she shall not be put in detention for a period of more than
three months. The Parliament was given the power to decide about the time period for
which the accused to be put in custody under preventive detention from time to time.
It was proposed before the House that every arrested person shall be granted
the right to access to courts, to be defended by his counsel, the right to cross
174
examining the witness produced against the accused, right to appeal against
conviction, no detention without trial, trial by independent tribunal, no detention
unless the order of detention is confirmed by the tribunal, right to freedom from
torture, right to speedy and public trial and right to appeal for the person sentenced
imprisonment to be guaranteed under the said article. Moreover, the procedure
regarding preventive detention was proposed to be adopted for the crimes pertaining
to participation in dangerous activities or subversive activities, disrupting public
peace and security of the state.
It was argued that due process clause is not adopted. Instead of that „according
to the procedure established by law‟ was adopted in article 15 (supra). The framers
were well aware that there were all possible chances that arbitrary laws may be
framed or there were chances that police may act arbitrarily. So, abovementioned
rights were preferred for the arrested person. The framers adopted judicious thinking.
The framers left upon the discretion of the Parliament to decide about the minimum
and maximum period of preventive detention.
Dr. B.R. Ambedkar had expressed his views on arrest and detention in his
book „States and Minorities.‟ His views were read before the House. His views were-
“No State shall make or enforce any law or custom which shall abridge the privileged
or immunities of citizen. Nor shall any State deprive any person of life, liberty or
property without due process of law, nor deny to any person without its jurisdiction
equal protection of law.” Dr. B.R. Ambedkar‟s views were very judicious. He covered
both the sides of the coin i.e. equal protection of law and personal liberty. He
preferred due process of law. The Advisory Committee on Fundamental Rights and
Minorities in its report (supra) admitted that fundamental rights in India are
justiciable. So, nobody can be denied of life and liberty without due process of law
based on the principle of equality before law. The meaning of due process of law was
explained as- „due process of law means the law which hears before it condemns,‟
The example of the Japanese Constitution was given in this context. In the
Japanese Constitution, the life and liberty of the person are not abridged without due
process of law. For this purpose, similar protection is given to the person against
arrest and detention as it was guaranteed under the said article. In India, the judiciary
is granted the power to question the law, to question the procedure that is followed
175
regarding arrest and detention of the person if it is challenged or demanded in form of
right before the judiciary. Moreover, the judiciary is also granted the power to declare
any law invalid if it contravenes or violates the fundamental principles.
The framers considered articles 3,7,8 and 9 of the Charter of Human Rights as
Fundamental Human Rights for civilized nations. Article 3 of the said Charter
provides for right to life, liberty and security. Article 7 of the said Charter provides
for the protection against arbitrary arrest and detention. Article 8 of the said Charter
provides for full equity and fair hearing by an independent and impartial tribunal
regarding the person against whom the criminal charge is made. Article 9 of the said
Charter provides for presumption of innocence unless and until he/she is proved guilty
of the offence whose charge is made. The framers wanted to provide fundamental
human rights through article 15 (supra) and article 15-A. They have guaranteed
personal liberty not only against arrest and detention but also at the stage of trial and
appeal. The framers recommended to make corresponding changes in the Code of
Criminal Procedure pertaining to article 15-A. An obligation is created on the part of
the State to provide personal liberty. The framers have provided certain essential
fundamental rights. These are such rights that even if legislature is or is not/may or
may not consider them non-reasonable.
The framers wanted to restrain the executive to detain any person without trial.
They didn‟t want to grant powers to the Parliament to frame laws for arresting any
person at the convenience of the public authority. The discussions were also held
about maximum and minimum period of preventive detention and the circumstances
or situations in which preventive detention procedure must be practised. After
discussion, the framers were of the opinion that preventive detention must be
implemented in public interest. The people are given the right to challenge the
circumstances and situations of public interest in the court of law. The maximum
period for which a person is to be put in preventive detention was decided three
months. It was further decided that during the said period of three months, nobody
shall be put in preventive detention for a period more than a stretch of 7 days.
Thus, framers provided following guarantees through this article-
176
i) Right to be produced before the nearest magistrate within a period of 24 hours
excluding the time of journey.
ii) Not to be put into the custody without the order of the magistrate.
iii) Right to fair hearing by impartial and independent tribunal.
iv) Right to be defended by the counsel of his/her (detenue‟s) choice.
v) Right to get justice through trial by the court.
vi) Right to protection against arbitrary arrest.
vii) Right to protection against arbitrary detention.
viii) Right to protection against preventive detention.
The framers have not used the word „speedy‟ before the word „justice‟. But
speedy trial is the pre-condition for obtaining justice. It is considered as the sine-qua-
hone for the redressal aspect. The principles of fundamental human rights cherished in
the said article relates to right to life, personal liberty and inherent dignity of mankind.
Public interest at large is considered rather than individual interest. Utmost equality is
preferred. Due to this reason, it was allowed to file the writ of Habeas Corpus either
before the Supreme Court or the High Court in case of preventive detention.
2.23) Constituent Assembly Debates on Preamble95
The debate regarding Preamble was conducted on 17th October, 1949,

Monday. The first motion passed regarding Preamble was- “We, the people of India,
having solemnly resolved to constitute India into a Sovereign Independent Republic,”
The framers wanted India to be the federation in the form of republic. They wanted
India to be sovereign, democratic republic. According to the framers, the word
„Republic‟ used in the Preamble occupies more importance than the word
„Federation‟. They were of the strong opinion that Republic means, the Union of
States and Union also means Federation. So, according to them, the word Federation
is of least importance for them. They expressed that if word Federation is used and
95
Constituent Assembly Debates, Lok Sabha Secretariat, New Delhi, 2009 Edition, Book no.-5, Vol.-X,
Pg. no. 429 to 457
177
Republic is not used then it shall transform India similar to as that of British Empire.
So, words Independent and Republic are used together. On the other hand, the word
„Republics‟ is not used. Framers have given the example of words, „Republican
Dominion‟. For India, the word „Dominion‟ is not used in the Preamble because
Dominion means inclusion in imperial regime. The framers didn‟t want India to be
included in imperial regime.
There was a point of disagreement between framers. It was regarding that

Pandit Jawaharlal Nehru agreed to remain in British Commonwealth. If India remains
in British Commonwealth then it would be termed as „republican dominion‟. But
instead of these words „independent republic‟ are used.
The words „Sovereign Federal Republic‟ were not accepted. Similarly, the
words „Sovereign Independent Republic‟ were not accepted. The framers proposed
about three main characteristics of the Indian Constitution viz., it must be a federal
constitution. It must be a centrifugal constitution (strong centre and states must be
willing to handover central powers to the centre), and the goodwill of the constituent
units (states) must be maintained by giving them freedom and liberty through which
they differ from the centre. This was the Soviet Union‟s (U.S.S.R‟s) model that India
had adopted.
The Preamble of the Irish Constitution was referred. The said constitution
begins with the word „God‟ but in India nothing is traded in its Preamble in the name
of God. Framers put everything in a democratic manner i.e. by the will, of the will and
for the will of the people of India. The names of Mahatma Gandhi, great Indian sages,
etc were not used in the Preamble of the Constitution. But at the same time, the
decisions of the American Supreme Court are taken as foundation. Through the
Preamble, the framers wanted to give the indication that the entire constitution rests
on sovereignty and it is vested on the people of India.
For the debate regarding the usage of word „Socialist‟, the framers held that
the future of India will demand socialism. According to them socialism means
bringing social order in equalitarian manner. They considered the theory of
materialism as dogma. They were of the opinion that „equality‟ and „liberty‟ does not
178
coexist together. Framers also quoted the lines from the book „Liberty versus
Equality‟ of Muriel Jaeger. These were-
“It is becoming more and more widely accepted that ownership is one of those
liberties infringe the liberty of others and so must be abolished, or drastically
restricted. And at this point what one may call the „paradox of liberty‟ becomes acute.
If every liberty that does, or may do, harm to one‟s fellow-men where taken away,
there would be no liberty left. The abolition or restriction of private wealth implies
some kind of public control. Public control means pubic planning, for the general
good is the whole object of taking wealth out of private hands. This is well-worn
platitude; but it is the details that interest us- the effect that the application of these
platitudes will have upon our lives from day to day, from year to year, and from
generation to generation,”
“Public planning means that enterprise, labour, distribution must be strictly

regulated. It means, therefore that that one‟s chance to choose one‟s occupation must
be reduced; since the plan cannot possibly be worked unless enough labour is directed
into the occupation where it is needed, regardless of whether enough people want to
do that kind of work or not.”
From the above lines it is clear that application of socialism in a socialist state
needs public planning in order to maintain a balance between liberty and equality. The
perfect recognition of liberty and equality is feasible only in classless society. But
framers have adopted „liberty‟ in the Preamble i.e. it is permitted in the entire
constitution. Through „liberty‟ creation of classless society becomes fiction. The
motion regarding addition of the word „socialist‟ was negatived.
The framers tried to bring the balance between the concepts of liberty and
equality by guaranteeing free and compulsory education, adequate means of
livelihood, free medical aid, etc. The word „sovereignty‟ used in the Preamble is
nothing but the implementation of the complete concept of „Austinian Sovereignty‟.
But at the same time sovereignty leading to ear and leading to imperialism is not
permitted. The sovereignty in India aims at attainment of common brotherhood and
common citizenship. The Government was not given the right to misuse the
sovereignty because sovereignty vests with the people and the people will remain
179
forever. Government is not sovereign but the state is sovereign because the
government may come and go.
Through Preamble, moral, legal, spiritual and mystic principles are revealed.
The principle of non-violence enumerated in the democracy is moral principle. The
principle that „life is one and no one can divide it is a mystic principle‟. The principle
of Vedanta that „we are one of another‟ is a spiritual principle. The form of Indian
democracy permitted by and expressed in the Preambles that instead of breaking
heads, we count them. This is the principle of non-violence. Framers told that if we
fail to achieve and maintain such democracy then it will lead to autocracy. Autocracy
will lead imperialism. Imperialism will lead to fascism. They wanted that as we are
politically independent, we must be democratically independent. They wanted that we
must be economically democratic i.e. Socialism.
After all the above discussions, the Preamble was accepted and adopted and
added to the Constitution of India. From the debate regarding the Preamble, we also
come to know that the word „Socialist‟ was not adopted at the time of voting for
motion regarding it. The underlying reason may be framers did not want to promote
absolute socialism because it has its own evils. But at the same time socialism was
promoted to a great extent through reservation policy, equality among different
classes, free education, guarantee of adequate livelihood, etc. In this way, framers
adopted quasi-socialism from the inception of the Constitution of India. Their real
intention was to adopt socialism by excluding its evils i.e. to adopt quasi-socialism.
180

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CHAPTER-2

INTENTION OF THE FRAMERS REGARDING BASIC

The Constituent Assembly performed the task of framing the Constitution of

But what comprises of the basic structure is nowhere specifically mentioned in

The summary of the sessions of the Constituent Assembly are as under:

1st Session 9th December to 23rd December, 1946

2nd Session 20th January to 25th January, 1947

3rd Session 28th April, 1947 and 2nd May, 1947

4th Session 14th July to 31st July, 1947

5th Session 14th August to 30th August, 1947

6th Session 27th January, 1948

7th Session 4th November, 1948 and 8th January 1949

8th Session 16th May to 16th June, 1949

9th Session 30th July to 18th September, 1949

10th Session 6th October to 17th October, 1949

11th Session 14th November to 26th November, 1949

2.2) Composition of the Constituent Assembly74

Sr. Name Designation

2. Dr. Sachchidanand Sinha Temporary Chairman

3. Sir B.N. Rau Constitutional Advisor

4. Shri H.V.R. Iengar Secretary

5. Mr. B.F.H.B. Tyabji Deputy Secretary

6. Khan Bahadur S.G. Husnain Under Secretary

7. Mr. K.V. Padmanabhan Assistant Secretary

8. Subedar Major Harbans Lal Jaitka Marshal

2.3) Important Committees of the Constituent Assembly & their

Sr. Name of Committees Chairman

2. Steering Committee Dr. Rajendra Prasad

3. Finance & Staff Committee Dr. Rajendra Prasad

4. Credential Committee Alladi Krishnaswami Ayyar

5. House Committee B. Pattabhi Sitaramaya

6. Order of Business Committee K.M. Mushi

7. Ad. hoc Committee on National Flag Dr. Rajendra Prasad

8. Committee on the Functions of the G.V. Mavalankar

10. Advisory Committee on Fundamental Sardar Vallabhbhai Patel

12. North East Frontier Tribal Areas & Gopinath Bardoloi

15. Union Constitution Committee Jawaharlal Nehru

16. Drafting Committee Dr. B.R. Ambedkar

2.4) Preliminary Notes regarding Fundamental Rights76

i) equality before law

ii) freedom of press

iii) freedom of assembly

iv) freedom of speech

vi) security of person

vii) freedom of association

viii) social security

He expressed another problem that the rights indicated above if provided in

i) the right to work

ii) the right to maintenance in old age, sickness, etc.

iii) the right to education

iv) the right to rest and leisure

v) the right to free and compulsory primary education

vi) protection of culture, language and script

vii) promotion of international peace and security

In part-B rights, he wanted „fundamental rights strictly‟. It means that these

He expressed his viewpoint by giving examples of France and Russia.

He took into consideration the miserable conditions and situations of

iii) Economic and social rights