Parts III and IV essentially form a basic element of the Constitution without which its identity will completely change.

Historical Background and Influences on Fundamental Rights and Directive Principles

The British executive’s arbitrary acts, internments and deportations without trial and curbs on the liberty of the press and individuals are too well known to every student of Indian history to be specifically mentioned. This was before some essential rights based on British Common law and jurisprudence came to be embodied in various Parliamentary enactments.

According to B.N. Rau Year Book of Human Rights 1947, human rights, with few exceptions, were not guaranteed by the Constitution (Government of India Act). Shiva Rao has in his valuable study Framing of India’s Constitution (B. Shiva Rao) given the various stages beginning with 1895 Constitution of India Bill framed by the Indian National Congress which envisaged a Constitution guaranteeing a number of freedoms and rights.

Two events at a later stage exercised a decisive influence on the Indian leaders. One was the inclusion of a list of fundamental rights in the Constitution of Irish Free State in 1921 and the other, the problem of minorities.

Key Milestones in Drafting Fundamental Rights and Directive Principles

The next steps were the report of the Nehru Committee in 1928, the reiteration of the resolve at the session of the Indian National Congress at its Karachi Session in March 1931 and omitting some details, the deliberations of the Sapru Committee appointed by the All India Parties Conference (1944-45).

The British Cabinet Mission in 1946 recommended the setting up of an Advisory Committee for reporting inter alia on fundamental rights. Before reference is made to the Objectives Resolution adopted in January 22, 1947 it must be borne in mind that the post war period in Europe had witnessed a fundamental orientation in juristic thinking, particularly in West Germany, characterized by a farewell to positivism, under the influence of positivist legal thinking.

During the pre-war period most of the German Constitutions did not provide for judicial review which was conspicuously absent from the Weimar Constitution even though Hugo Preuss, often called the Father of that Constitution, insisted on its inclusion. After World War II when the disastrous effects of the positivist doctrines came to be realized there was reaction in favour of making certain norms immune from amendment or abrogation. This was done in the Constitution of the Federal Republic of Germany.

The atrocities committed during Second World War and the world wide agitation for human rights ultimately embodied in the U.N. Declaration of Human Rights on, which a number of the provisions in Parts III and IV of our Constitution are fashioned must not be forgotten while considering these matters.

Even in Great Britain, where the doctrine of the legal sovereignty of Parliament has prevailed since the days of Erskinc, Blackstone, Austin and lastly Dicey, the new trend in judicial decisions is to hold that there can be at least procedural limitations (requirement of form and manner) on the legislative powers of the legislature. This follows from the decisions in Moore v. The Attorney General for the Irish Free State (1935) A.C. 484; Attorney General for New South Wales v. Trethowan (1932) A.C. 526.

Role of the Objectives Resolution and its principles

The Objective’s Resolution declared, inter alia, the firm, and the solemn resolve to proclaim India as Independent Sovereign Republic and to draw up for her future governance a Constitution. Residuary powers were to vest in the States. All power and authority of the Sovereign Independent India, its constituent parts and organs of government, were derived from the people and it was stated:

(5) 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; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and

(6) wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and

(7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilised nations.

Recommendations by the British Cabinet Mission

It may be recalled that as regards the minorities the Cabinet Mission had recognised in their report to the British Cabinet on May 6, 1946 only three main communities; general, muslims and sikhs. General community included all those who were non- Muslims or non-sikhs. The Mission had recommended an Advisory Committee to be set up by the Constituent Assembly which was to frame the rights of citizens, minorities, tribals and excluded areas.

The Cabinet Mission statement had actually provided for the cession of sovereignty to the Indian people subject only to two matters which were;

(1) willingness to conclude a treaty with His Majesty’s Government to cover matters arising out of transfer of power and

(2) adequate provisions for the protection of the minorities.

Constituent Assembly Advisory Committee and Minority Rights

Pursuant to the above and paras 5 and 6 of the Objectives Resolution the Constituent Assembly set up an Advisory Committee on January 24, 1947.

The Committee was to consist of representatives of Muslims, the depressed classes or the scheduled castes, the sikhs, Christians, Parsis, Anglo-Indians, tribals and excluded areas besides the Hindus. As a historical fact it is safe to say that at a meeting held on May 11, 1949 a resolution for the abolition of all reservations for minorities other than the scheduled castes found whole hearted support from an overwhelming majority of the members of the Advisory Committee.

So far as the scheduled castes were concerned it was felt that their peculiar position would necessitate special reservation for them for a period of ten years. It would not be wrong to say that the separate representation of minorities which had been the feature of the previous Constitutions and which had witnessed so much of communal tension and strife was given up in favour of joint electorates in consideration of the guarantee of fundamental rights and minorities rights which it was decided to incorporate into the new Constitution.

Fundamental Rights and Directive Principles- Incorporation into the Constitution’s Preamble

The Objectives Resolution can be taken into account as ahistorical fact which moulded its nature and character. Since the language of the Preamble was taken from the resolution itself the declaration in the Preamble that India would be a Sovereign, Democratic Republic which would secure to all its citizens justice, liberty and equality was implemented in Parts III and IV and other provisions of the Constitution.

These formed not only the essential features of the Constitution but also the fundamental conditions upon and the basis on which the various groups and interests adopted the Constitution as the Preamble hoped to create one unified integrated community.