Fundamental Rights affected under Emergency rule
Shri H.V. Kamath: On a point of order. Is my Friend right in saying it is going to be accepted when it is only moved.
Mr. Naziruddin Ahmad: I heard a rumour that it is going to be accepted.
Mr. Vice-President: Nos. 791 and 792 are disallowed as verbal amendments.
(Amendment No., 793 was not moved).
Mr. Vice-President: Nos. 794, 795 and 799 are similar and are to be considered together. 794 is allowed to be moved.
The Honourable Dr. B.R. Ambedkar: With your permission I will just make one or two corrections to some words which crept into the drafting by mistake. Sir, with those corrections, my amendment will read as follows:
“That for the existing sub-clause (3) of article 25, the following clause be substituted:
‘Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2) of this article, Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2) of this article”.
The reason for inserting these clauses (1) and (2) is because clauses (1) and (2) refer to the Supreme Court.
The Honourable Dr. B.R. Ambedkar: Mr. Vice-President, Sir, of the amendments that have been moved to this article I can only accept amendment No. 789 which stood in the name of Mr. Baig, but which was moved by Mr. Naziruddin Ahmad. I accept it because it certainly improves the language of the draft. With regard to the other amendments I shall first of all take up the amendment (No. 801) moved by Mr. Tajamul Husain and the amendment (No. 802) moved by Mr. Karimuddin. Both of them are of an analogus character. The object of the amendment moved by Mr. Tajamul Husain is to delete altogether sub-clause (4) of this article and Mr. Karimuddin’s amendment is to limit the language of sub-clause (4) by the introduction of the words ‘in case of rebellion or invasion.”
Now, Sir, with regard to the argument that clause (4) should be deleted, I am afraid, if I may say so without any offence, that it is a very extravagant demand, a very tall order. There can be no doubt that while there are certain fundamental rights which the State must guarantee to the individual in order that the individual may have some security and freedom to develop his own personality, it is equally clear that in certain cases where, for instance, the State’s very life is in jeopardy, those rights must be subject to a certain amount of limitation.
Normal peaceful times are quite different from times of emergency. In times of emergency the life of the State itself is in jeopardy and if the State is not able to protect itself in times of emergency, the individual himself will be found to have lost his very existence. Consequently, the superior right of the State to protect itself in times of emergency, so that it may survive that emergency and live to discharge its functions in order that the individual under the aegis of the State may develop, must be guaranteed as safely as the right of an individual. I know of no Constitution which gave fundamental rights, but which gives them in such a manner as to deprive the State in times of emergency to protect itself by curtailing the rights of the individual. You rake any Constitution you like, where fundamental rights are guaranteed; you will also find that provision is made for the State to suspend these in times of emergency. So far, therefore, as the amendment to delete clause (4) is concerned, it is a matter of principle and I am afraid I cannot agree with the Mover of that amendment, and I must oppose it.
Now, Sir, I will go into the details. My Friend Mr. Tajamul Husain drew a very lurid picture by referring to various articles which are included in the Chapter dealing with Fundamental Rights. He said, here is a right to take water, there is a right to enter a shop, there is freedom to go to a bathing ghat. Now, if clause (4) came into operation, he suggested that all these elementary human rights which the Fundamental part guarantees – of permitting a man to go to a well to drink water, to walk on the road, to go to a cinema or a theatre, without any let or hindrance – will also disappear. I cannot understand from where my friend Mr. Tajamul Hussain got this idea. If he had referred to article 279 which relates to the power of the President to issue a proclamation of emergency, he would have found that clause (4) which permits suspension of these rights refers only to article 13 and to no other article. The only rights that would be suspended under the proclamation issued by the President under emergency are contained in article 13; all other articles and the rights guaranteed thereunder would remain intact, none of them would be affected. Consequently, the argument which he presented to the House is entirely outside the provision contained in article 279.
(To be continued)
Dr.Babasaheb Ambedkar Writings & Speeches, Vol. 13, (pages 435 – 437) 1994, Rs. 190. Govt. of Maharashtra, Bombay. The book may be had from Director, Government Printing, Stationery and Publications, Netaji Subhash Road, Bombay – 400 004.
