However, the arguments presented by the members of the Constituent Assembly and
the trajectory of each provision, through its various iterations, culminating in either
inclusion or exclusion make the records of these Debates a useful source to think
about Constitution making.
The focus on the period up to 1950 deserves explanation as the Constitution of India,
1950, did not contain fundamental duties. As we noted earlier, these duties were
introduced by amendment in 1976, adopting the recommendations of the Swaran
Singh Committee Report, first submitted on 3 April 1976.16 Hence, the emergency
period and the Committee Report are critical to an understanding of Article 51A as
introduced. This proximate history would be explored in a separate paper. This paper
seeks to explore how duties were discussed and understood in Indian constitutional
discourse prior to the 1950 Constitution. These discussions invoke a richer and thicker
account of duties than what is found in the Swaran Singh Committee Report and,
arguably, it should shape our understanding of fundamental duties in Article 51A
today.
Three questions are explored in this study: nature of duties, that is the conception of
the duty and underlying principles along with the matrix of whom the duty is owed
to and by whom; the content of duties, that is, what are the duties owed and what are
the justifications for these duties. These questions are explored in two periods of time:
1895-1946 and in the Constituent Assembly Debates from 1946 to 1950.
Part A: Historical Constitutions — 1895-1946
Modern Constitution making in India began in earnest in the late 1800s. These protoconstitutional documents were drafted by several actors — key figures in the Indian
freedom movement, collective association, and the British colonial government
among others. The study of these ‘historical’ or ‘antecedent’ constitutions has grown
in importance as the salience of historical continuities and discontinuities with current
constitutional law and politics becomes increasingly contested.
Kim Lane Scheppele argues that,
[Co]nstitution drafters invariably look even more toward a past
than they do toward a future. In fact, this is impossible to avoid.
Constitution drafters know about the past experiences of their country
and its people; these drafters are usually selected for the constituent
assembly or other constitution-drafting body precisely because of
their roles in the immediate past crisis that provided the opportunity
for a new constitution. What they do not know, and in fact cannot
know, is the future. If they are well-prepared—and many Constitution
drafters prepare themselves for their tasks with extensive research all
16
Granville Austin, Working of a Democratic Constitution (Oxford University Press, 1999)353.
24
Journal of the National Human Rights Commission, Vol. 22, 2023