On 8th November 1948, Mahboob Ali Baig Sahib Bahadur [Madras – Muslim] at the Constituent Assembly spoke as follows:
“Now – Look at the Fundamental Rights that are enunciated. Can they be called Fundamental Rights at all? Fundamental Rights are those which are fundamental in character, unchangeable except in extreme circumstances. But what do we find here? These Fundamental Rights are hedged in by provisos, by overriding exceptions. There is a little confusion also in that Chapter that deals with Fundamental Rights. It is said that from experience it is found that instead of a Supreme Court deciding whether the Government under certain circumstances override the Fundamental Rights when the provision is made in the Draft itself; and it is claimed. Sir, in the provisions for the Form of Constitution that it must be a flexible Constitution. May I, with due respect, Dr. Ambedkar, state that the rigidity and the legalism which he says must be avoided on the very essence of a Written Constitution? It is not an Unwritten Constitution as in the case of Britain. In the case of Britain, Sir, it is a matter of History. It is an Unwritten Constitution and it has suited the peculiar genius of the British people to go on with their work without any Written Constitution and the peculiar Parliamentary Democracy suited the British Government very rigidity and the legalism which Dr. Ambedkar complaint as necessary and unavoidable characteristic of a Written Constitution. We do not want to be so flexible as to allow any Government to ride, roughshod over the Fundamental Rights. They are not Written Rights at all if they are hedged in by so many exceptions. What is stated as Fundamental Rights in the very Article we have been rendered useless. Further with regard to these Fundamental Rights it is stated in Section 13 that nothing contained in this shall in any way affect the operation of the existing laws. You know very well how reactionary the existing laws have been no doubt Article VIII [old] it is stated that all laws which are inconsistence with the Fundamental Rights must go, but in Article 13 [old] it is said that the existing laws must prevail as against the Fundamental Rights. Not only there is contradiction here but there is confusion I could understand Sir if under Article VIII [old] a list of Acts under Sections have been mentioned as well as those which have been annulled. That Section does not make it clear. In these circumstances, Sir, I am afraid, there are no Fundamental Rights at all.”
Comment: Even Fundamental Rights are submit to existing laws which are the products of pre-Independence era and therefore the Constitution Committee shall be constituted to sort out a laws which are in conflict with or derogatory to the Fundamental Rights.