Debate over ‘reasonable restriction’ in Constituent Assembly.

Absolute freedom with no social control would be an invitation to anarchy while uncontrolled power of the
state to curtail individual rights may institutionalise tyranny. The real problem thus in constitution making is
that of balancing individual freedom with social control. The task was undertaken by the Advisory Committee
set up in terms of the Cabinet Mission Plan, by the Constituent Assembly on January 24, 1947 to report to the
Assembly on the fundamental rights.

The choice, as pointed out by Alladi krishnaswami Ayyar in his note to the Fundamental Rights sub-committee
of the Advisory Committee was practically between two alternatives. The one was the American pattern under
which the rights were enumerated in general terms in Constitution and their limits and scope was left to be
worked out by the courts. The other alternative available was on the pattern of those constitutions which not
only enumerated the rights but also included in the constitution in the form of provisos to these rights certain
grounds for limiting the rights mostly as laid down from time to time by the American Supreme Court. Ayyar
made scant attempt to conceal his choice in favour of the later model.

The first draft of the fundamental rights prepared by sub-committee also introduced the term ‘reasonable’ in the
context of restrictions on freedoms of the individual. In clause 1(2) of this draft, the freedoms of movement etc.
were made “subject to reasonable restraints as the law may impose.” By the time the sub-committee finalised
the draft of the aforesaid clause, this was renumbered as clause 10 and assumed the following form:

There shall be liberty for …. Provision may be made by law to impose reasonable restrictions may be necessary
in public interest.

The Advisory Committee further revised it and renumbered it as clause 8(e).Thus the term “reasonable
restriction” had found entry at the earliest stage of constitution making. With the active participation of its
lawyer-members and availability of regular advise form B.N. Rau, who used to attend its meetings as
Constitutional Advisor, it can safely be assumed that the members of the sub-committee were fully aware of the
implications of the term ‘reasonable’ in terms of the scope created thereby for judicial review.

The efforts of the Fundamental Rights sub-committee and Advisory Committee to incorporate ‘reasonable
restrictions’ proved abortive. Sardar Patel, chairman of the Advisory Committee, while introducing its draft in
the Constituent Assembly proposed that the term ‘reasonable’ be deleted from the clause 8(e). In doing so,
Sardar Patel referred to and accepted the amendment standing in the name of Rev. Nichols Roy. Nichols Roy
wanted ‘reasonable’ to be dropped because he did not want ‘contention and confusion’ which was likely to be
created as this term could be used to challenge the validity of any law in the courts. K.M. Munshi also felt that
the term ‘reasonable’ introduced “a certain amount of vagueness”. The decision of the Assembly to drop the
term ‘reasonable’ must have particularly pleased those members who were not in favour of judicial review. The
votaries of judicial review, on the other hand, would not have pressed their opposition to the suggestion for
dropping ‘reasonable’ because judicial review was already assured under the then clause 9 which extended the
protection of ‘due process’ to life and liberty.

The problem acquired a new dimension subsequently when the Assembly finally accepted the proposal of Dr.
Ambedkar, Chairman of the Drafting Committee to drop the ‘due process’ clause. With ‘reasonableness’
already dropped, the scope of judicial review would have stood considerably reduced. The section of opinion
supporting judicial review, however, was not prepared to accept this virtual ousting of the courts from the major
sectors of fundamental rights. The last ditch battle to restore ‘reasonableness’ clause was yet to be fought in the
Assembly.

The Drafting Committee in the meantime had prepared a new draft of the Article 13 (presently Article 19) and
further incorporated in it certain new grounds for restriction of the freedoms. When this provision was placed
by Dr. B.R. Ambedkar, Chairman of the Committee, before the Assembly, it met with considerable opposition
from a section of opinion. Ambedkar supported by A.K. Ayyar, tried to defend it, mainly on the ground that
these provisions were based on the judicial decisions in America. But the members evidently felt worried that
the legislatures were being given vast powers for restricting the constitutionally guaranteed freedoms. A few of
them wanted some provision to be made for review of these restrictive laws by the courts. Pandit Thakurdas
Bhargava eventually moved an amendment which would have the term ‘restriction’ qualified by ‘reasonable’ in
the provisos attached to the guarantee of various freedoms in Article 13. Explaining the need for qualifying the
term reasonable, Pandit Bhargava said:

If you consider clauses (3) to (6) you will find that in the objects and reasons an enactment says that its object is
to serve the interest of the public or to protect public order, then the courts would be helpless to come to the
rescue of nationals of this country in respect of the restrictions.

He therefore, proposed that:

If you put the word reasonable there, the Court will have to see whether a particular Act is in the interest of the
public, and secondly, whether the restrictions imposed by the legislatures are ‘reasonable’, ‘proper’ and
‘necessary’ in the circumstances of the case. The courts shall have to go into the question and it will not be the
legislature or the executive who could play with the Fundamental Rights of the people. It is the Court which
will have the final say.

Dr. Ambedkar accepted the amendment moved by Pandit Bhargava and the Assembly adopted it. This assures
now that the legislative regulations of individual freedoms will be subject to review by the courts. The final
victory was thus won by the votaries of judicial review in this major area of individual liberty.
Shivang Tandon

B.A. LL.B(Hons.), faculty of Law

Banaras Hindu University

Shivangtandon210@gmail.com

+918957854333