The Pre-Constitutional Demand for a Bill of Rights

The Karachi Resolution, 1931

The Congress session at Karachi in March 1931 adopted the Resolution on Fundamental Rights and Economic and Social Change.

This is the document that explains the shape of the Indian Constitution, and it should be given weight for one reason above all others: it put civil and political claims and economic and social claims in one list, on the same footing.

Its civil and political content included freedom of expression, association and assembly, freedom of conscience and religion, equality before the law irrespective of caste, creed or sex, no disability on grounds of religion or caste, free and compulsory primary education, and the right to bear arms subject to regulation.

Its economic and social content included a living wage, limited working hours, protection against the economic consequences of old age, sickness and unemployment, protection of women workers, the abolition of serfdom, and the State ownership or control of key industries.

Twenty years later that single list was split in two, and the civil half became Part III while the economic half became Part IV. [Why the Social and Economic Rights Went into Part IV] is that split.

The Sapru Committee Report, 1945

The Committee chaired by Sir Tej Bahadur Sapru proposed a division of rights into justiciable and non-justiciable categories.

That is the proposal the Constituent Assembly adopted, and it is the direct structural ancestor of Parts III and IV. A candidate who can name the source of the two-part structure is doing better than one who treats it as an Irish borrowing alone.

What the imperial power said, and why it lost

The Simon Commission reported against a justiciable declaration of rights.

The Joint Parliamentary Committee that preceded the Government of India Act 1935 agreed, and the reasoning was that abstract declarations are either so heavily qualified as to be useless or so absolute as to be unworkable, and that in a country of India's diversity they would generate litigation rather than protection.

So the 1935 Act, which supplied a great deal of the Constitution's administrative structure, supplied none of its rights.

The Indian answer had two parts. A people that had been governed without rights had reason to want them written down and enforceable. And the argument that Indians were unsuited to enforceable rights was the same argument that had been used against every other extension of self government.

What this history contributes to the finished Constitution

Four things, and they are the marks in this question.

The insistence on justiciability, from the Nehru Report onwards, which is why Part III is enforceable and why article 32 exists.

The breadth of the list, from Karachi, which is why the Indian Constitution contains far more rights than the American one it is often compared to.

The two-part structure, from Sapru, which is why there is a Part IV at all.

And the specifically Indian entries. Untouchability in article 17, the prohibition on traffic in human beings and forced labour in article 23, and the prohibition on child labour in hazardous employment in article 24 are not in the American or the Irish model. They are in Part III because Indian social reform politics put them on the list decades earlier.

Worked example

Her Set 2 Q1 asks for the distinction between human rights and fundamental rights against the background of the history and development of human rights in India. The history is half the question.

Give the five documents in order with a line of content on each.

Give Karachi the most space, because the single combined list and its later split explain the structure of the Constitution.

Name Sapru as the source of the justiciable and non-justiciable division.

State the imperial position and the answer to it, because that is the argument the history is settling.

Close with the four contributions to the finished text.

What it does NOT mean

It does not mean the drafters borrowed nothing. They borrowed the writ jurisdiction, the due process debate, the directive principles device and much else; the point is that the demand and the content were Indian first.

It does not mean the 1895 Bill is securely attributed. It is not, and an answer that names an author with confidence is overstating the record.

And it does not mean the Karachi Resolution had legal force. It was a political resolution of a party, and its force is as evidence of what was wanted.

Quick revision

• 1895, Constitution of India Bill: earliest Indian list of rights. Authorship disputed, often associated with Tilak's circle. Expression, dwelling, property, equality, equality of opportunity, freedom from arbitrary arrest.
• 1925, Commonwealth of India Bill: National Convention associated with Annie Besant; introduced in the House of Commons and went nowhere. Liberty, conscience, expression, assembly, equality, free elementary education.
• 1928, Nehru Report: all-party committee under Motilal Nehru, answering the Simon Commission challenge. Nineteen fundamental rights, and they were to be JUSTICIABLE.
• 1931, Karachi Resolution: Congress session, March 1931, on Fundamental Rights and Economic and Social Change. Civil and economic claims in ONE list, later split into Parts III and IV.
• 1945, Sapru Committee: proposed the division into justiciable and non-justiciable rights, the direct ancestor of the two-part structure.
• The imperial position: the Simon Commission and the Joint Parliamentary Committee both against; the Government of India Act 1935 contains no bill of rights.
• Four contributions: justiciability, breadth, the two-part structure, and the Indian entries in articles 17, 23 and 24.

Test yourself

1. Trace the pre-constitutional demand for a bill of rights. It runs for half a century. The Constitution of India Bill of 1895, sometimes called the Swaraj Bill and of disputed authorship though often associated with Tilak's circle, is the earliest Indian draft constitution and the earliest Indian list of rights, claiming freedom of expression, inviolability of the dwelling, property, equality before the law, equality of opportunity in the public services and freedom from arbitrary arrest. The Commonwealth of India Bill of 1925, drafted under the National Convention associated with Annie Besant, was actually introduced in the House of Commons and declared liberty of the person, freedom of conscience and religion, free expression, free assembly, equality before the law and free elementary education.

The Nehru Report of 1928, produced by an all-party committee under Motilal Nehru in answer to the challenge that accompanied the Simon Commission, is the most important of them: it set out a declaration of nineteen fundamental rights and insisted that they be justiciable, which was the precise thing the imperial position denied. The Karachi Resolution of March 1931 put civil and political claims alongside economic and social ones in a single list on the same footing, covering expression, association, conscience, equality irrespective of caste, creed or sex, and free primary education on one side, and a living wage, limited hours, protection in old age, sickness and unemployment, protection of women workers and the abolition of serfdom on the other. The Sapru Committee of 1945 then proposed dividing rights into justiciable and non-justiciable categories, which is the structure the Constituent Assembly adopted.

2. What did the imperial power say, and what turned on the disagreement? The British position, maintained to the end, was that a justiciable declaration of rights was unsuitable for India. The Simon Commission reported against one, and the Joint Parliamentary Committee that preceded the Government of India Act 1935 agreed. The reasoning was that abstract declarations are either so heavily qualified as to be useless or so absolute as to be unworkable, and that in a country of India's diversity they would produce litigation rather than protection. The consequence was that the 1935 Act, which supplied a great deal of the eventual Constitution's administrative machinery, supplied none of its rights.

What turned on it was the whole character of Part III. The Indian answer was that a people governed without rights for a very long time had particular reason to want them written down and enforceable, and that the argument about unsuitability was the same argument that had been used against every previous extension of self government. Because the Indians won that argument, Part III is justiciable, article 13 makes an inconsistent law void, and article 32 is itself a fundamental right. Had the imperial position prevailed, India would have had a constitution with rights stated as principles of policy and no remedy attached, which is what Part IV actually is.

3. What does this history contribute to the text of the Constitution? Four things. The insistence on justiciability, pressed from the Nehru Report onwards, is why Part III is enforceable against the State, why article 13 voids inconsistent laws, and why the remedy in article 32 is itself made a fundamental right rather than left to ordinary procedure. The breadth of the list, which comes from Karachi, is why the Indian Constitution contains far more rights than the American document it is usually compared with, and why so many of them carry their limitations on their face.

The two-part structure comes from the Sapru Committee's proposal to divide rights into justiciable and non-justiciable, which is why there is a Part IV at all and why the Karachi list ended up split down the middle. And the specifically Indian entries come from Indian social reform politics rather than from any foreign model: the abolition of untouchability in article 17, the prohibition of traffic in human beings and forced labour in article 23, and the prohibition of child labour in hazardous employment in article 24 appear in no American or Irish precedent and are in Part III because Indians had been demanding them for decades.