INDIAN BILL OF RIGHTS

The Delhi Debate on Future Citizenship

Assurance against Tyranny

The third plenary session of the Constituent Assembly, held during the last week of April, was concerned with relations between the proposed Union of India and the Indian States; the powers of the Union vis-a-vis its component units; and the fundamental rights to be guaranteed under the new constitution. Of these subjects the last engaged most attention. An interim report prepared by an advisory committee was adopted, with certain amendments and with certain clauses held over for further consideration because they were not acceptable to the House as a whole.

Sardar Vallabhbhai Patel, who holds the portfolios of Home Affairs and Information and Broadcasting in the present Interim Government, piloted the Fundamental Rights Bill through the House. He made it clear that the report was not final and included only justiciable rights. Sardar Patel's handling of the debate showed his characteristic firmness; he did not dragoon opponents into swallowing unpalatable clauses, but dealt summarily with many objections. When opposition was too strong to be ignored, further debate was short-circuited by referring contentious clauses back to the advisory committee. Certain vital matters thus remain undecided.

LIBERTY RESPECTED

The measure embodies in letter and in spirit the principles of social democracy evolved by liberal thought in western countries and offers the best proof of the liberalizing influence of British rule in India. It is also evidence that, whatever totalitarian influences there may be in the Indian National Congress-and their existence cannot be gainsaid- the main stream of nationalism has its sources in the same springs of respect for individual liberties, subject only to the overriding common good of society and the State, as feed the democracies of the British Commonwealth of Nations. In this there lies hope of future Indian cooperation, if not as a member of that commonwealth, then as a participant in the United Nations.

The report has sections on citizenship, rights of equality, rights of freedom, rights relating to religion, cultural and educational rights, and the right to constitutional remedies. The first, on qualifications for citizenship, was the subject of much discussion, but no agreement. The clause was redrafted, but still failed to find general approval because of difficulties arising from the possible partition of India into two or more states. The clause reads : "Every person born in the Union and subject to its jurisdiction, every person either of whose presents was at the time of such person's birth a citizen of the Union, and every person naturalized in the Union, shall be a citizen of the Union." This fails to provide for an Indian born in a state which does not adhere to the Union, or in an area which decides to form a separate state, such as Pakistan. Its literal application would deprive of Indian nationality many millions of people (mainly Hindus) born in provinces and states which choose to keep out of the Union, although the persons themselves might prefer to claim such nationality. It also differentiates between members of the same family who happen to have been born in different parts of the country, and it raises problems of dual nationality as between Pakistan and Hindustan.

RIGHTS OF EQUALITY

The section on rights of equality starts off with the admirable dictum that "the State shall not discriminate against any citizen on grounds of religion, race, caste, or sex." It particularizes against discrimination in trading establishments, including public restaurants, hotels and places of public entertainment; in the use of wells, tanks, roads, and places of public resorts maintained wholly or partly out of State funds or dedicated to the use of the general public; and in eligibility for public office. To clinch the argument, "untouchability in any form is a abolished, and the imposition of any disability on that account shall be an offence." Thus the progressive element in Hindu society which has campaigned for many years against the biggest blot on the country's fair name now gainstatutory recognition for its objective. Members of the scheduled castes, including Dr. Ambedkar himself (although commonly he is diametrically opposed to Congress policies), took a large part in the Constituent Assembly's debate and were satisfied with its outcome.

World opinion has somewhat naturally seized upon this move to abolish untouchability as the most significant feature of the Fundamental Rights Bill. Indian Opinion, on the other hand, ling conscious of the stigma and anxious to remove it has taken this provision almost for granted. That is because untouchability, while still firmly rooted in the countryside, has steadily lost its hold on the cities. No educated Indian would attempt to justify it today. Politically minded India may be trusted henceforth to enforce the legal sanctions against untouchability to the utmost of its power.

No surprise need be occasioned by a further provision adopted at Delhi without opposition namely, that "no title shall be conferred by the Union and no citizen of the Union shall accept any title from any foreign State." THis is a natural reflection of the nationalist attitude of mind, best exemplified by Pandit Nehru himself, which feels that the British system of conferring title for public services has led to sycophancy and even corruption, both moral and material. It is a sweeping indictment, from which many Britons will dissent. This is, however, entirely a matter for the new India to decide. Although the Union may not confer titles, the popular habit of labelling leaders with such honorifics, as "Mahatma" and "Sardar" will doubtless persist.

Under the heading of "rights of freedom" are grouped freedom of speech, freedom to form associations and unions, and the right to reside and hold property in any part of the Union. These are "subject to public order and morality" and may be exercised "except in a grave emergency declared to be such by the Government of the Union or the Unit concerned, whereby the security of the Union or the Unit, as the case may be, is threatened." In other words the State reserves the power to declare any association illegal-a power which was objected to by the solitary Communist member of the Assembly for obvious reasons. he wanted the power of veto to be restricted to matters concerning the defence of India, but the House insisted on a broader basis. On the manner in which this power is invoked will depends the liberality or otherwise of the future Union.

Another contentious clause establishes " the right of every citizen to reside and settle in any part of the Union, to acquire, hold and dispose of property, and to exercise or carry on any occupation, trade, business or profession." In a country where peasant and tribesman are at the mercy of the bania, or moneylender, unless special steps are taken to prevent the alienation of land and the practice of usury, it is understandable that spokesmen of the agriculturists and aboriginals should have objected to this sweeping licence to acquire property being given to every citizen. The matter was resolved by adding a proviso to impose "such restrictions as may be necessary in the public interest, including the protection of minority groups and tribes." Among the points held over for further consideration, because it raised the issue of conscription for national service was one providing for the prohibition of traffic in human beings and other forms of forced labour, subject to the right of the State to impose compulsory service for public purpose. There was no consensus of opinion on whether the new India should have a conscript or a volunteer army. Assembly members will have to make up their minds on this before they next meet.

RELIGIOUS TOLERANCE

Clauses relating to religion include the right "freely to profess, practise, and propagate religion subject to public order, morality, or health." This raised a controversy. Certain Hindu members who are averse from Christian missionary activity in the country sought to impose a ban on proselytism. The good sense of the House prevailed and even an attempt to prevent the conversion of minors was defeated after Christian members had put up a staunch defence of their right to spread the Gospel. Even so, there were two points relating to religion on which agreement could not be reached. One sought to provide that no person attending any school maintained by or receiving aid from, public funds should be compelled to take part in religious instruction, or attend religious worship in the school. The other laid it down that conversion from one religion to another brought about by coercion or undue influence should not be recognized by lad. Another bone of contention, included under the head of cultural and educational rights, provided that "No minority, whether based on religion, community or language, shall be discriminated against in regard to admission into State educational institutions, nor shall any religious instructions be compulsorily imposed on them." These three matters were referred back for further discussion and possible redrafting.

Notwithstanding these differences, the report on fundamental rights as adopted by the Constituent Assembly contains such assurances against tyranny and totalitarianism as should form the backbone of a liberal State. How far such assurances will be honoured in practice the future will show. That there is often a wide gulf between precept by law-makers and practice by rulers is only too true. Such divergences have been evident in the workings of Indian Provincial self-government, whether under the aegis of Congress or the Muslim League.

Well-wishers of the new India will pin their faith to the fact that members of the Constituent Assembly have generally approached their task in a spirit of seeking to prove themselves worthy of their new-found freedom. The pattern of citizenship will be incorporated in the fabric of the new constitution. Indications are that Indian leaders are seized of the urgency of their task, and will endeavour to produce an agreed constitution by the end of September. It will be probably embody many of the provisions of the Government of India Act of 1935, itself the major constitutional achievement of Parliament between the two World Wars.

London Times - 13-06-1947