FRANCE

Turning back to Europe, 1791 saw the promulgation of the Rights of Man and the Citizen, embodied in the French Constitution of 1793, and the constitution of the third year of the new republican era; they found no place in the Napoleonic constitutions, but they are reproduced in the constitution of 1946.

Though these are mainly concerned with personal and political liberty and property rights, they have a philosophic flavour, claiming that all men are bom equal; sovereignty resides in the nation; nobody can exercise authority not expressly emanating from it; and every public servant is liable to be called to account. The purpose of all political rights is to preserve the natural rights of man: liberty, property, security and resistance to oppression. No society in which these rights are not guaranteed can be said to have a constitution. Liberty is the power to do anything which does not injure another. Freedom of opinion is one of the most precious rights and no person should be punished for his opinions unless their manifestation affects public order. Property is an inviolable right; no person may be deprived of it, except for declared and obviously essential public necessity and on payment of just and predetermined compensation. Taxation must be agreed by the representatives of the people and its incidence distributed in accordance with means. No man shall be accused, arrested or detained save in accordance with law and prescribed procedure; every man is presumed innocent until proved guilty. If it is necessary to detain him, his detention must not be more rigorous than is necessary to ensure his appearance for trial. The law may only forbid conduct injurious to society and only provide punishments which are obviously necessary; no person may be convicted under a retroactive law.

The American Bill of Rights and the French Declaration of the Rights of Man influenced most constitutions which have since been promulgated, but they enshrine bourgeois ideals.

In the latter part of the nineteenth century and in the present century, the proletariat began to take an increasing interest in politics. Nevertheless the new constitutions of the early part of the twentieth century, particularly those of the period after the Kaiser’s War, generally regarded the same rights as fundamental. Unfortunately, the constitutional history of Europe generally, between the two wars, was the subversion of popular liberties and the establishment of dictatorship. It is therefore hardly surprising to find the report of the Simon Commission in 1930 rejecting die Indian demand for the insertion of a Bill of Rights in the new Constitution Act on the ground that they would be useless without the will and means to enforce them.¹ The Joint Select Committee on the Bill which became the Government of India Act, 1935, went further, saying that the recent history of Europe suggested that the most effective way of subverting human rights was to embody them in a constitution, where they must prove either of no practical value or impediments to effective legislation.¹ This argument would, of course, receive a more sympathetic hearing from an Englishman, for whom there is no clear distinction between constitutional and other laws and who believes that his laws do and should guarantee human liberties, than from an Indian about to discard the fetters of colonial rule.

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Source: Anderson J.N.D.. Changing Law in Developing Countries. Routledge,2021. — 290 p.. 2021

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