CONSTITUTION DAY

26th November 2010
1. We are assembled here to remember the Constitution Day of 26th November 1949 when the Constituent Assembly adopted the Constitution of India presented by Dr. Babasaheb Ambedkar, M. A., Ph.D., D. Sc., LL.D. (Columbia University), D. Litt. (Osmania University) , Barrister-at-Law. A draft of the proposed Constitution was presented by Dr. Ambedkar to the Constituent Assembly on 4th of October 1948. Dr. Ambedkar, a Dalit Icon, was born at Mahu (present day Madhya Pradesh) to a lower Untouchable Caste Poor Family of Subhedar Ramji Sapkal and Mrs. Bhimabai Ambedkar as the 14th Child on 14th of April 1891.
2. In pursuance of recommendations of Cabinet Mission in 1946, elections to the Constituent Assembly were held and the Constituent Assembly met for the first time on 9th December 1946. Lord Mount Batten’s Plan was accepted. At last, Britishers agreed to declare India’s independence. The British Parliament passed the Indian Independence Act on 18th July 1947, which came into force on 15th August 1947. It paved the way to constitute the “Constituent Assembly” headed by Babu Rajendra Prasad as President. A Drafting Committee headed by Dr. B. R. Ambedkar as Chairman and 8 other members was constituted.
3. The Constituent Assembly, after thoroughly examining various Constitution of other Countries of the World viz. America, England, Australia, etc. prepared the Constitution of India. Dr. Ambedkar addressed the Constituent Assembly on 26th November 1949 when the Constituent Assembly adopted the Indian Constitution. It is this 26th day of November 1949 we are assembled here to remember and celebrate.
4. As you all know the Constitution of India contains the Fundamental Right to equality guaranteed to all citizens of India irrespective of caste, creed, sex, place of birth etc. in the Social, Economic and Political fields. The Constitution was brought into force with effect from 26th January 1950 and we the citizens of India celebrate this day as Republic Day by observing the day as a National Public Holiday. To understand and appreciate the contents of the Constitution, it is advisable that each and every citizen should be supplied a copy of the Constitution in the language known to him free of costs and he should keep it in his house as a ‘Bible’ and read it everyday.
5. Our Constitution was prepared after systematic, thorough, and meticulous deliberation, clause by clause and word by word, right from 9-12-1946 to 24-1-1950, i. e. for a period of more than three years.
6. One important feature about addition of Article 21 may be mentioned here. Interim Report on Fundamental Rights dated 23rd April 1947, was submitted by Shri Sardar Vallabhbhai Patel, the Hon’ble Chairman, Advisory Committee on ‘Minorities Fundamental Rights’. It contained Clause 9 which read as follows:-
“No person shall be deprived of his life, or liberty, without due process of law, nor shall any person be denied the equal treatment of the laws within the territories of the Union.
Provided that nothing herein contained shall detract from the powers of the Union Legislature in respect of foreigners.”
On 30th April 1947, the Constituent Assembly proceeded to take into consideration the Interim Report on the subject of Fundamental Rights.
Clause 9 as amended, was adopted as follows:-
“No person shall be deprived of his life, or liberty, without due process of law, nor shall person be denied the equal treatment of the laws within the territories of the Union.
Provided that nothing herein contained shall detract from the powers of the Union Legislature in respect of foreigners”.
Even at this stage these words “without due process of law” were retained.
The Drafting Committee considered this clause and proposed Article 21 as follows:-
“No person shall be deprived of his life or personal liberty except according to procedure established by law…..”
Thus, in this proposal, “without due process of law” phrase was changed to “except according to procedure established by law”.
Many of the members of the Constituent Assembly did not favour such change. Many Amendments e.g. Amendments 523, 528 or 530 were moved for substituting the words “without due process of law” for the words “except according to procedure established by law” etc. in the draft of Article 21 as proposed by the Drafting Committee.
Kazi Syed Karimuddin (C. P. & Berar: Muslim ) while moving amendment No.523 said, words, “according to procedure established by law” will forbid “the Courts to look into the injustice of a law or into a capricious provision in a law” and that, “and the Judges will be only spectators.”
Pandit Thakur Dass Bhargava (East Punjab: General) reminded the house about Act XIV of 1908 called the Black Law under which thousands of Congressmen were sent to jail with powers of declaring any organization illegal by virtue of a notification, and that, the courts were not competent to hold that any organization or association of persons was legal though its objects were legal. He insisted on the words “due process of law” because “even if the legislature is carried away by Party Spirit and is sometimes panicky the judiciary will save us from the tyranny of the legislature and the executive.”
Shri Chimanlal Chakkubhai Shah (United States of Kathiawar (Saurashtra) supported “due process of law” because while reviewing legislation, “the Court will have the power to see not only that the procedure is followed, namely, that the warrant is in accordance with law or that the signature and the seal are there, but it has also the power to see that the substantive provisions of law are fair and just and not unreasonable or oppressive or capricious or arbitrary.”
Shri Krishna Chandra Sharma (United Provinces: General) discussed in length long history of Anglo-Americal law, particularly expression “Per Legum Terrea” in the Magna Carta, use of these words in 1331, 1351 and 1355, orin Statute No.28 during the reign of Edware III, and use of “due process of law” in American Constitution from 1791 and supported “due process of law” because “What this phrase is to guarantee a fair trial both in procedure as well as in substance”.
Shri H. V. Pataskar (Bombay: General) supported substituting the words “except according to procedure established by law” by the words “without due process of law” because “we have instances which lead us to think that the Party Machine at work is likely to prescribe procedures which are going to lead to the nullification of the provisions which have made in the Fundamental Rights.”
Shri K. M. Munshi supported incorporation of the words “without due process of law” in substitution of the words “except according to procedure establied by law” because “This clause would only have meaning if the Courts could examine not merely that the conviction has been according to law or according to proper procedure, but that the procedure as well as the substantive part of the law are such as would be proper and justified by the circumstances of the case.”
Shri Alladi Krishnaswami Iyer (Madras: General) was of the opinion that “The Drafting Committee in suggesting ‘procedure’ for ‘due process of law’ was possibly guilty of being apprehensive of judicial vagaries in the moulding of law.”
Mr. Z. H. Lari supported the words, “without due process of law” because “You cannot excuse excess of law simply because those excess are committed by a popularly elected legislature.”
While replying the debate on 13th December 1948, the Honourable Dr. B. R. Ambedkar confessed difficulty in taking position about amendment for the deletion of the words “procedure according to law” and the substitution of the words “due process” and choosing between giving “the judiciary the authority to sit in judgment over the will of the legislature and to question the law made by the legislature on the ground that it is not good law, in consonance with fundamental principles” and trusting that the legislature will not make bad laws. He further said, it is very difficult to come to any definite conclusion. There are dangers on both sides. For myself I cannot altogether omit the possibility of a legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, i do no see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad.” Therefore, he closed his arguments with, I would leave it to the house to decide in any way it likes.”
But still, the verdict of the majority was against this minority opinion.
The Amendment No.523, was “That in Article 21, for the words, ‘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”. When it was put to vote, the amendment was negatived.
The Amendment No.528 was withdrawn by leave of the Constituent Assembly.
When the Amendment No.530, “That in Article 21, for the words ‘procedure established by law’ the words ‘due process of law’ be substituted’ was put to vote, the amendment was negatived.
The proceedings are mentioned in somewhat details to emphasize the fact that the Hon’ble Members of the Constituent Assembly had done painstaking research before discussing each Article clause by clause and word by word.
7. Still, it requires great courage to admit that the deliberation, which took place all these years, were somewhat incomplete, even as per contemporary requirement and needs. It requires great courage to maintain readiness for reforms and corrections.
8. The Constitution which is, first and foremost, a Socio-Economic Document, is not free from defects. Socio-economic justice is the prime concern of the Constitution which is supreme. The Constitution envisages socio-economic justice as an Arch to ensure a meaningful and dignified life to everyone. The sole aim of the inclusion of socio-economic justice in the Constitution was to bring about a socio-economic Revolution so as to promote the welfare of the citizens of the country/common man. Socio-economic justice is the life-breath of Democracy which keeps all the Communities in Bharat/India together as one Country. The concept of socio-economic justice acts an elixir for socio-economic ills that have been crippling the Indo-Aryan Society since ages.
9. The Indian Constitution was and is not free from defects. Article 15 states that the State shall not discriminate against any citizen on grounds of only of religion, race, caste, sex and place of birth or any of them. India’s ruling Moughals who are from the creamy layer of the Upper Castes/Upper Class/Communities or Manuwadis, went to Madras High Court and then to Supreme Court in 1950, asking for discontinuance of the provision of Reservation in Educational Institutions to the historically and disadvantaged Communities on the plea that the provision of Reservation violated their Fundamental Right to non-discrimination. The Courts upheld the plea and declared Reservations meant to promote Social Justice unconstitutional. “TANTHAI PERIYAR” who later founded ‘DRAVIDA KAGHAGAM PARTY’ in Tamil Nadu, organized meetings and conferences against the said Judgement and also initiated agitations that gained momentum as days passed by. As a result, within a period of 6 months of the Constitution came into operation, the Constitution (First Amendment) Act, 1951, was moved and passed in Parliament. By the said Constitution (First Amendment) Act, 1951, provision of clause (4) was added in Article 15 of the Constitution. This provision of clause (4) of Article 15 was enforced on 18-6-1951. The amendment was passed by the same Members who were the Original Framers of the Indian Constitution including Dr. Babasaheb Ambedkar.
10. The added clause(4) of Article 15 reads as – “Nothing in this Article or clause (2) of Article 29 of the Constitution shall prevent the State from making any Special Provision for the advancement of any SOCIALLY and EDUCATIONALLY backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”
You will thus see that the word “ECONOMICALLY” is not deliberately appearing in clause (4) of Article 15 so as to enable the State to uplift an economically weaker or poorest of the poor citizen of India, by making suitable provisions in the relevant laws. This, according to me, is the reason why the gap between the rich and the poor citizens in India is widening. A Constitutional Amendment for inserting the word “ECONOMICALLY’ in clause (4) of Article 15 of the Constitution is therefore necessary to be made by the Indian Parliament to overcome the deliberate omission, if any.
I thank you, the Organizers of this meeting, for giving me an opportunity to speak about a few words on the Constitution Day and for the patient audience given by you all.
Thank you.
T. M. NADAR
HIGH COURT, BOMBAY