Vol. 17, Part II · pages 401–405

376 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES For centuries the word Constitution always meant a particular administrative enactment. Much as it had meant to the Roman Lawyers. The word was used to distinguish such particular enactments from Consuetudo or ancient custom. It was not until 1610 the Constitution came to have the modern meaning, according to which it means the scheme of civil Government as defined by law ; in other words, the legal frame work of the State. A hundred years later the word Constitution is seen to have taken on an additional and special meaning which goes much beyond the legal frame-work of the State. This is well indicated by Bolingbroke who, writing in 1733, said :— “By Constitution, we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be Governed.” Even this meaning of the word Constitution is still short of the modern meaning of the word Constitution. To-day the word means the fundamental law which determines the powers and duties of the different organs of Government in a State and to which they are subject. This meaning of the word Constitution was evidently brought out by Thomas Paine who argued that:— “A Constitution is not the act of a Government but of a people constituting a Government and a Government without a Constitution is power without right.” So much for the meaning of the word Constitution. What is the nature and scope of Constitutional Law ? An easier way of understanding the nature of Constitutional Law is to know its scope. It would, therefore, be better to describe first the scope of it. The scope of Constitutional Law all over the world where democracy prevails includes all matters relating to the right claimed by the State against its citizens, i.e. (1) to make a law binding on all,

377CONSTITUTION AND CONSTITUTIONALISM (2) to enforce the law and (3) to interpret the law and the rights claimed by the citizens against the State. If it is a composite State, i.e., a Federal State, then the scope of Constitutional Law would, in addition to those matters, include matters pertaining to the inter-relations between the Central Polity and the other polities making up the Federation, legal, executive and financial. Given the scope what is the place of Constitutional Law in legal jurisprudence ? Prof. Holland calls it a part of the Public Law of the country. No one can deny that this is the correct view. His reasoning logically leads to that conclusion. Law as an enforceable rule of conduct relates to rights. When it relates to rights as between the citizens of the same State it is called Municipal Law. When it relates to two different States, it is called International Law. The Municipal Law of a State falls into two categories. One is called the Private Law and the other is called Public Law. Rights which may be enforced by one citizen against another fall under what is called Private Law. Rights which the State asserts against citizens to enforce against itself fall under what is called Public Law. Similarly in a federal organization the rights which the Centre has against the States necessarily belong to the field of Public Law. On no view they can be deemed to fall under Private Law. In so far as Constitutional Law deals with the rights claimed by the State against another State or by the State against the citizens and the rights claimed by the citizens against the State, Constitutional Law must be admitted as a branch of Public Law. This explanation of the nature and scope of Constitional Law will justify why only certain heads have been selected for discussion and exposition. They are selected because their discussion offers the best method of exposing the Constitution as a part of the Public Law of India and bringing to light its special features. zz

31 PEOPLE IN INDIA WOULD KNOW THEIR FUNDAMENTAL RIGHTS Dr. B. R. Ambedkar, the Law Minister, Government of India, visited Hyderabad. He addressed a meeting held in the Boat Club, under the auspices of the Hyderabad Progressive Group on 24-5-1950. Certain questions were put to him by the correspondents and members of the audience in regard to the Constitution, Democracy, Untouchability etc. Parliamentary Democracy in India There are moments when I think that the future of Democracy in India is very dark. But, I do not want to say that I have not other moments when I feel that if all of us put our shoulders together and pledge ourselves to “constitutional morality” we should be able to build up a regular party system in which there could be liberty, equality and fraternity. Fundamental Rights Embodied in The Constitution Of India It is wrong to suppose that fundamental rights conferred absolute rights on the citizens. We have certain limitations on Fundamental Rights which are necessary for the safety of the State. While we drafted the Constitution, we took care to see that individual liberty was not unduly affected by limitation on fundamental rights. The best guarantee of fundamental rights was to have a good opposition in Parliament, in which case the Government was bound to behave properly. The second safeguard was legal. For instance, a Minister acted on reports submitted by the C. I. D. in arresting and keeping a person under the preventive detention. The question that arose was were the reports of the C. I. D. genuine. This is a difficult question to solve.

379PEOPLE IN . . . . . . . . . RIGHTS I should have thought that legal ingenuity ought to be able to find some way of imposing some restrictions or some limitations upon the power of the Minister to act upon such reports so that there is enough ground for taking executive action and that there is sound semblance of genuineness in the report submitted. If that is done, I think, then the Supreme Court is there as another safeguard. India is now in a transitional stage. When the U. S. A. framed its Constitution and incorporated the fundamental rights therein, its people did not know what the nature, scope and limitations of those rights were. It was only after a long course of judicial decisions of the Supreme Court that the difficulties were settled, and the nature, scope and limitations of fundamental rights were all laid down. Similarly, I am sure that after a period of five or ten years, people in India would know their fundamental rights and what their Constitution meant for them. Adult Franchise Question : Why was adult franchise introduced in India all of a sudden and not gradually ? Answer: I think the party in power was so much committed to the principle of adult suffrage that notwithstanding the fact that towards the end they began to feel somewhat doubtful about its utility, they could not go back to it. Personally, I am not at all afraid of adult franchise. I am one of the few people who are very much in touch with the masses and I feel certain that there is no fear of adult suffrage being misunderstood or misrepresented in any way. The only difficulty I feel about adult suffrage is the capacity of the attenuated official machinery to carry out the entire polling of this vast mass of voters in the country. The only way by which that difficulty could be solved, in my judgement, is not to have election in all the constituencies in one day, but to spread them over a few days to enable the machinery to function efficiently. Question : Is it a fact that in the meeting of Hyderabad Scheduled Castes Federation Working Committee it was decided to give an ultimatum to Caste Hindus that if they did not

380 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES stop harassing the Scheduled Castes and recognise their rights, the Scheduled Castes would take the matter to the UN? Answer : There was no agenda for the meeting and no resolutions were passed. It is always, however, open to any section of the people in any country to go to the Human Rights Commission, if it feels oppressed. Untouchability The problem of Untouchability in India is assuming an economic aspect now which formerly it did not. I suppose that the lot the Untouchables in the country is better now than was the case five or six years ago, but they might have progressed better and quicker if certain impediments were not in their way. On Having A Common Civil Code For All Communities Question : Is it not possible to have a common civil code for all communities inhabiting India, like the Hindus, Muslims, Christains, Parsis etc? Answer: It is not so easy to produce a civil code applicable to all in this country irrespective of caste or religion. Obviously it is quite clear we cannot import principles of justice from some country outside India denovo. We do not have a clean slate. We should take the Hindu Law, the Muslim Law, the laws governing the Christians and other communities and other acts and find out a common denominator. We can go to every community and try to tell them to accept the common denominator in the interests of uniformity of law. But first of all, we should know our own law and what it is. For instance, the Hindu Law is a ‘Jungle’. It must be codified so that people may have an idea about laws governing them before they can consider having a common code. zz