Quaid-e-Azam Mohammad Ali Jinnah and Fundamental Human Rights

By Sharifuddin Pirzada

Quaid-e-Azam Mohammad Ali Jinnah Quaid-e-Azam always believed in and stood for human rights. In pre-Partition period he championed the cause of liberty, freedom of speech and association and other rights. In the Eighteenth Annual Session of the Muslim League held at Delhi in December 1926, Quaid-e-Azam proposed a resolution demanding that the Government of India Act 1919 should be revised and that without delay a Royal Commission be appointed to formulate a scheme so as to place Indian Constitution on a sound and permanent basis with provisions to establish full responsible Government in India.The resolution further demanded that any scheme of the future of Constitution of India should secure and guarantee, among others, the following basic and fundamental principles.

"Full religious liberty i.e. liberty of belief, worship, observances, propaganda, association and education shall be guaranteed to all communities."

In the famous Fourteen Points formulated by the Quaid-e-Azam on March 28, 1929, point No.7 embodied the provisions relating to liberty, association, education, belief and other fundamental rights and it was demanded that such rights should be guaranteed to all the communities.

Freedom of the Press

Quaid-e-Azam stood for the liberty of the Press and was critical of those laws which curbed or curtailed this liberty.

In his address to the Bombay Provincial Conference in 1918, Quaid-e-Azam criticised the Press Act of 1910 and its arbitrary provisions and still more its arbitrary enforcement by the Executive which was subject to no judicial check. Speaking in the Legislative Council on September 19, 1918 Quaid-e-Azam said, "Sir, when the Press Act was passed in 1910, I happened to be a Member of this Council. At that time the position, Sir, was this. I think the Hon'ble Home Member will bear me out that we had got already sufficient provisions in our ordinary codes and our ordinary laws to deal adequately with most of the offences which he described in his speech, but that could only be done by means of judicial proceedings.

It was then suggested in 1910 that we had so many instances of papers which I will characterise as erring papers, papers which spread sedition and disaffection, and were the cause more or less of political crimes, that those papers could not well and adequately be dealt with by the weapons which already existed in the armoury of the law. Therefore, the Government came before this Council and put forward this case, that the Council must give power to the Executive to deal with such offences, because it was urged that the consequences of adopting judicial proceedings were sometimes worse in their results although it could secure a conviction against the culprit. It was in view of these facts, and particularly because at that time the province of Bengal was not very peaceful, that the Government in 1910 came before this Council and asked for these powers. Sir, if you will refer to the proceedings of 1910, you will find that almost every non-official Member, feeling as he did that the Press Act was striking a blow at the liberty of the press which we all prize, still came to the conclusion that, having regard to the circumstances, he could not refuse them, and you will find that almost all non-official Members supported the Act, with the exception of one or two. That was in 1910.

"Sir, this Act has the defect of all measures which do not come under the purview of judicial supervision, because it is a measure which has got to be administered by the Executive. This measure has remained on the Statute Book for seven years, and I venture to say, that notwithstanding the extreme instances the Hon'ble Home Member was pleased to cite, there are cases where this Act has been oppressively worked. It is no use citing instances of any extreme character. We know all that, and we regret it. I could give some instances that have come to my knowledge, and I have no hesitation in saying, that the Act has been administered in a most arbitrary manner, and you cannot prevent it, you cannot avoid it, because you must remember that we are all human, and when such arbitrary powers are given to the Heads of Departments and to Executive Officers, it must be remembered that they are human, they have got likes and dislikes, and they have their prejudices. And remember this, that there is no appeal, it is final. Now what we want is this-seven years have passed since this Act became law, and we feel that it is time that proper inquiry should be held, and if you hold the inquiry, Sir, I venture to say that the Government themselves in all fairness will be satisfied that this Act should be modified. I do not wish for a single moment that any culprit who is guilty of sedition, who is guilty of causing disaffection, who is guilty of race hatred should escape, but at the same time, I say, protect the innocent, protect those journalists who are doing their duty and who are serving both the public and the Government by criticizing the Government freely, independently, honestly - which is an education for any Government. I know that officials are sensitive to criticism."

Freedom of Speech

Freedom of speech was always dear to him. Addressing the public meeting held under the auspices of the Bombay Presidency Association on July, 30, 1917, at Bombay, Quaid-e-Azam said, "If we accept the policy of the Government, all constitutional and lawful agitation will, in effect, be stopped, that the freedom of speech and the Press and the right of public meeting under the British Raj is henceforth to be regulated by the arbitrary judgement and decision of a Provincial Governor or Government, that the Executive is to decide what is lawful and constitutional propaganda without reference to the Court of Justice. We protest against the method adopted and attempts that are made to silence the people from carrying their constitutional agitation." At the Session of the Muslim League held at Calcutta in December 1917, Quaid-e-Azam exhorted, "Instead of Government meeting the complaints of the people what do they do in this country? They want to muzzle you. They say, we shall pass a Press Act. If you write anything, we will, they say, strangle you. They have passed the Seditious Meetings Act to stop meetings of the people. Is this really the method by which you can continue governing people? Is it possible for any Statute to destroy the soul of the people?"

Freedom of Association

Defending the freedom of Association, the Quaid-e-Azam opposed the Indian Criminal Law (Amendment) Bill. Participating in the discussion thereof on September 16, 1924 Quaid-e-Azam said; “Mr. Chatterjee can sit in his room in one of these buildings not very far from here and notify that this Act is applied or notify that a particular association is unlawful, and if, Sir, it happens to be my fortune or misfortune to be a member of that association I go to jail like my Honourable friend Pandit Motilal Nehru; what remedy have I? Where can I go for redress?”

The Honourable Mr. A.C. Chattejee; “You should resign.”

Mr. M. A. Jinnah: “Why should I resign because you happen to pass an order under this Act which is a blot on the Statute-Book? Because you as an Executive Member without giving an opportunity to the Association to be heard, declare that Association unlawful, I have got to resign and the association has got to be disbanded because Mr. Chatterjee pleases in his secret chamber to make an order without giving me a right to be heard. That is the very fundamental principle for which Englishmen have shed their blood and, it is to their credit, they have done so, and I say I would be prepared to shed my blood for the same principle.”

Political Parties

With the inauguration of the Provincial Constitution embodied in Government of India Act 1935 the Muslim League decided to participate in the election and after adopting an appropriate resolution issued a manifesto, which inter alia stated: “Whereas the Parliamentary system of Government which is being introduced in the country with the inauguration of the new constitution presupposed the formation of parties with a well-defined policy and programme which facilitate the education, the electorate, and cooperation between your groups with approximate aims and ideals and ensures the working of the Constitution to the best advantage.”

In his interview to the Representatives of Associated Press of America on November 8, 1945 Quaid-e-Azam said;

He did not expect that Pakistan would have one-party Government and that he would oppose one-party rule. “An opposition party or parties are good corrective for any party which is in power.”

Star Chambers

On March 14, 1919, speaking in the Indian Legislative Council Quaid-e-Azam said: "We know that even the Star Chambers were condemned. They at least had the semblance of judicial trial. Why were they condemned? They were condemned because, in the words of a great constitutional authority Maitland, "It was a court of politicians enforcing a policy, not a court of judges administering the Law'. That is what you will constitute yourselves, a court of politicians, and what is worse, even without the semblance of trial as there was in the Chamber."

Preventive Measures

Speaking on Criminal Law Emergency Power Bill in the Imperial Legislative Council on February 6, 1919 Quaid-e-Azam gave the grounds for opposing the Bills and said:

"I shall place before the Council the grounds on which I am opposed to these Bills. It is against the fundamental principles of law and justice, namely that no man should lose his liberty or be deprived of his liberty without a judicial trial in accordance with the accepted rule of evidence and procedure."

By these powers of an executive character you may be able to get hold of more real offenders but at the risk and at the cost of many other innocent men who will be persecuted and who will have no chance, no opportunity, of a proper trial. Now that is the fundamental difference between you and as far as I am concerned. You say these powers can be effective, and so they can be. But what guarantee is there for the innocent? Then you will ask, don't you trust the executive? My answer is that I certainly cannot trust the executive because I am a firm believer, I do not care how many Rowlatt Committees will decide and recommend, - I am a firm believer that no man's liberty should be taken away for a single minute without a proper judicial inquiry. I say that by these executive powers, you may be able to lay your finger on the real offenders. I venture to say, that you would clap many innocent people, who will be unable to resist the executive orders. Now that, to my mind, is the root of the whole question. And what is your answer to that? I say, my Lord, remember, you are responsible; remember, once you have passed this law in this, Council, Your Excellency's Government is responsible, because these laws will then be put into force; they will be put into force by Local Governments, they will be put into force in various ways by the police; you are giving this power and I want you, my Lord, to consider whether such a case has been made out as to enact these measures."

"Well, now who will give the information to the Local Government that a person is concerned with a movement of the kind defined? Who will furnish the Local Government with materials upon which the Local Government will make its order? I venture to say, my Lord, it will be some police officer. Who else can it be, except somebody in the Criminal Investigation Department of the Police? It is police who will furnish the local Government with information, exparte information, and upon that information, furnished by the police, the Local Government will say, well, here we have got this information, we will make the order; and the order is made and it is final. I am fully alive to the fact that my friend the law Member was a little bit annoyed when I was speaking on the Rowlatt Committee Resolution of the Hon'ble Mr. Khaparde, and he pointed out to me that these orders are made subject to certain conditions. I can assure my Hon'ble friend that I was fully alive to the existence of those conditions? After the order is made, after the man's liberty is taken away, under the second and more drastic preventive measures which are enacted, you have an investigating authority. After the man is either in jail, or has been arrested and is detained somewhere, you have the investigating authority. And, my Lord, what is that investigating authority? Here again I am fully alive to the fact that it is suggested that there will be one non-official member on that investigating authority. But what is that investigating authority? It will have the same materials. Though it may call for more materials, but the inquiry will be anything but a judicial inquiry. The person who is either under arrest or has been detained will not be there. He may be called by the investigating authority, he may be questioned, but he may not be there. The whole inquiry will be in camera, most probably behind the back of the person accused and the investigating authority is then to make a 'report’. I ask you, my Lord, again what is the good of that report, is it worth anything? I venture to say that the Hon'ble Law Member, for whose fairness I have the utmost respect, if he were there and if 20 statements were placed before him, and if the accused were not called before him, and he was to investigate behind the back of the accused, without the assistance of any advocate or barrister, I venture to say, my Lord, that even he, with his great experience of the Courts is likely to be misled. How are you really going to come to any decision? You know that even in a court of law, there you have sometimes the ablest counsel on both sides it is difficult to decide whether a person is really guilty or not, and we know juries, men of common sense, men of business, have differed. We know that judges have differed. We know that a Court sometimes convicts a man of murder, and you go to a court appeal and on the same evidence the man ks acquitted. This is a very serious matter when you are dealing with the liberty of the subject. How can you expect this investigation authority, sitting in camera, behind the back of the person accused, to come to any really useful conclusion? What happens then? This investigating authority, will make its report and the Government is not bound to accept that report. What is the good of it? The Government will say "we have considered it.” Now this is the condition: this is the most valuable safeguard. The same thing will apply in the more drastic preventive measures. Therefore, my Lord, it is no use shirking the issue. It is no use hedging round the whole of this question. It is quite clear and it is obvious that this measure is of most serious character. It is dangerous, it imperils the liberty of the subject and fundamental rights of a citizen and, my Lord, standing here as I do, I say that no man who loves fair play, who loves justice and who believes in the freedom and the liberty of the people can possibly give his consent to a measure of this character."

When the Rowlatt Bill was passed, the Quaid-e-Azam resigned from Legislative Council as a protest on March 28, 1919.

Special Trials

Quaid-e-Azam favoured Judicial trials as opposed to action before the executive. Speaking on March 14, 1919 Quaid-e-Azam said, "In a very famous case, which is known as Daniel's Case, one of the greatest jurists and lawyers, laid down three propositions:

"The first proposition is that no man can be imprisoned upon the will and pleasure of any, but a bondsman or villain.

"The second proposition. If a freeman of England might be imprisoned at the will and pleasure of the King, or by his commandant, he was in worse case even than a villain.

The third proposition. A freeman imprisoned without cause is civilly dead.” "My Lord, the provision of Part III of this Bill will bring about the result. First, the selection of the Victim will be left to the plenary discretion of the bureaucracy; secondly, my Lord, it means the negation of the public safety and defence; and thirdly, my Lord, I say that is poison to the Cornmonwealth.”

"My Lord, to quote the words of Lord Shaw in that famous judgement to which I have referred, this is what he says:

"In the exercise of power that the Government have plainest teachings of history and the dictates of Justice demand that, on the one hand, Government power, and, on the other hand, individual rights, these two shall face each other as party and party".

He does not say it is said it will not be so. Here, in the provisions of this Bill, the Government, as a party, shall act at its own command, the subject, as a party, shall submit and shall not be heard. The Government is at once to be party judge and executioner. That my Lord, seems to be Part III of this Bill.

"My Lord, I will not take up the time of this Council any more, I say, my Lord, that Part III is the blackest part of this black bill. And, my Lord, I speak with this passion, with this earnestness, with this feeling, because, if it even finds its place on the Statute Book, it will tarnish the fair names of India and Great Britain."

The Quaid-e-Azam opposed the Bengal Criminal Law Amendment Supplementary Bill and made a distinction between Emergency and normal time. In his speech on March 23, 1925 he said, "The Act does not contemplate any trial. The detenus can be detained for an Indefinite period. The Statute does not provide for any limit. That means that you can lock up as many men as you like according to the advice of your Executive and your police indefinitely or as long as you like and the man has no right to claim a trial or to have trial. It is not, as I have said before, that I am pleading for or advocating the cause of the guilty. What is this reasoning? Why is it that we are opposed to it so much? Why is it that it goes against our grain? The reason is a very simple one and it is this that by this measure you are not giving any protection to the innocent, that the innocent are likely to be persecuted, that this is an engine of oppression and of repression of legitimate movements in this country and it has been abused in the past and there is every likelihood of its being abused in the future.

"Now, Sir, what is the justification for this measure? Is there a state of war in this country? Is there a national peril in this country? Is the public safety of Bengal endangered? I challenge you to show that. What is your ground? Your ground is a petty ground that a few lives are in danger of being shot at: that spectacular murder is contemplated by a gang of men, 100 or 200, a gang of men - a few lives of officials are endangered; they may be shot at or shot down. Now, I ask a simple question, Sir, of myself and my answer is that if I were an official and if I felt that my life was in danger and I was going to be shot down, even like a dog, I should never be a party to a measure which will endanger the life and liberty of the innocent population as this measure undoubtedly does".

When Sarat Chandra Bose was in detention for three years, Quaid-e-Azam attacked the Government in a vigorous speech on January 22, 1935 and said;

"Here is a member who though arrested in February 1932 has been kept under detention and when challenged to put him to trial or release him, the government takes neither step. How does the government justify the detention of Mr. Sarat Bose for one single day? Even if there is no question of privilege, is not the Assembly entitled to censure the Government for detaining without trial any person, in this case a member of this House."

On the release of Prof. Kheiri from detention in 1944, Quaid-e-Azam wrote to him, "I am glad that you are a free man. Of course I do not know why you were subjected to detention, but you know that I am always against any man's liberty being taken away without a judicial trial.”

Habeas Corpus

Dealing with the writ of Habeas Corpus, in his speech on Bengal Criminal Law Amendment Supplementary Bill in the Indian Legislative Assembly on March 23, 1925, Quaid-e-Azam said:" It is nothing else but a disgrace to any civilised Government to resort to a measure of this character, this is an engine of oppression and of repression of legitimate movements in this country and it has been abused in the past and it will be abused in future. You are asking us to allow you, to allow the Bengal Police, to allow the Bengal Executive to arrest men, to keep them in custody indefinitely without a trial and that a man should have the right to claim the most prized writ of Habeas Corpus. We cannot be a party to this."

Quaid-e-Azam added, "The Bengal Act gives the Executive and the police the power to arrest any citizen and to detain him indefinitely or for as long a time as they desire. Now unless they strike at the root of the principle of the writ of Habeas Corpus which is incorporated in Section 491 of the Criminal Procedure Code, they cannot carry on that nefarious Statute to its logical conclusion, because, if they detain a citizen under that abominable Act there is Section 491 and he is entitled to ask for a writ of Habeas Corpus, and the result will be that the High Court of which I am very proud in this country will not tolerate that for a single moment. It is for that reason that the Government wish to use their axe at that writ of Habeas Corpus under Section 491. That is their scheme, that is their design. They wish to pursue that scheme and design. They wish to persist in that policy obstinately, and I say once more on the floor of this House that you will regret it and you will create more trouble than you imagine."

Speaking in the Indian Assembly on January 26, 1920 the Quaid-e-Azam relied on the observation of Lord Shaw who had quoted the following from Blackstone:

"He searchingly treats the cases both of liberty and life as tests, both and equally, of one and the same principle, the very principle which is under scrutiny in the present case. To bereave a man of life or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is less public, less striking, and therefore, a more dangerous engine of arbitrary government, and yet some time when the State is in real danger even this may be a necessary measure. But the happiness of our constitution is that it is not left to the Executive power to determine when the danger of the State is so great as to render this measure expedient. For it is the Parliament only, or legislative power, that whenever it sees proper, can authorise the Crown, by suspending the Habeas Corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing."

Fresh Election and Constitutional Liberties

In the statement of May 3, 1944, the Quaid-e-Azam denounced the repressive and oppressive measures which stifle the constitutional liberty of the people. The Quaid-e-Azam aptly and openly demanded: "Is the present constitution under which we are working to function fully and freely and the constitutional liberty should not be interfered with or curtailed? The present Legislature is now seven years old. We have repeatedly urged that fresh elections should be held, but the government has turned a deaf ear so far. Are we not entitled to make every legitimate effort to put our house in order and work the constitution? Either we should be allowed full freedom to work it or we must be definitely told to close down our shutters. But it will be a great blunder to interfere with constitutional liberties under the pretext that they might interfere with the war efforts."

Duties of Citizens

While speaking in the Imperial Legislative Council in April 1913, the Quaid-e-Azam said, "Sir, I believe in criticizing Government freely and frankly, but at the same time, that it is the duty of every educated man to support and help the Government when the Government is right. On this occasion I feel that, having regard to the history of political crimes, my hands are tied, my mouth is closed and my countrymen who are responsible for these deeds are responsible today for my position which I occupy in this Council at this moment. Let those men who still have these misguided ideas, let those men who have these hallucinations, realise that by anarchism, by dastardly crimes, they cannot bring about good government; let them yet realise that those methods have not succeeded in any country of the world, and are not likely to succeed in India. Let those men yet realise, before it is too late and before they bring their country into a position which may be more regretted by every patriot who feels for, and loves his Motherland, let them yet realise, that those are not the methods.”

Justifiability of Fundamental Rights

In the Federal Structure subcommittee of the Second Indian Round Table Conference in November 1931, the Quaid-e-Azam advocated the concept of independence of judiciary. Dealing with the jurisdiction of the proposed Federal Court, the Quaid-e-Azam expressed the view that if there is any measure which infringes any provision of the Constitution which includes Fundamental Rights, it should be open to the subject to go to the Court. He was also of the opinion, that even a Bill, if two-thirds of the members belonging to any class or community object that it affects their particular right under the Constitution or that it is bad ab initio because it infringes fundamental rights, then a representation suit should be allowed to be filed by any subject that the Bill is ultravires and the question should be decided by the Federal Court forthwith.

Quaid-e-Azam was elected President of the Constituent Assembly of Pakistan on August 11, 1947, and the very next day under his guidance a Committee was appointed on "Fundamental Rights of the citizens of Pakistan and on matters relating to Minorities." He headed that Committee and during his lifetime its subcommittee on Fundamental Rights had formulated an interim report which was the basis of the report presented to the Constituent Assembly in 1950. In his speeches and statements, Quaid-e-Azam concisely and precisely expressed his views on liberty, equality, justice, fraternity, protection of property of the minorities and other rights.

Replying to the speech made by the first Ambassador of France to Pakistan at the time of presenting credentials on January 2, 1948, Quaid-e-Azam remarked: "The cry of liberty, fraternity and equality which was raised during your Great Revolution and officially adopted by your great Republic had its repercussions throughout the world as is known to every student of history. These ideals and these principles are still buoying up the hopes of many downtrodden nations." In a broadcast talk to the people of Australia on February 19, 1948, Quaid-e-Azam reaffirmed: "We are members of the brotherhood of Islam in which all are equal in rights, dignity and self-respect. Consequently, we have a special and a very deep sense of unity. But make no mistake, Pakistan is not a theocracy or anything like it. Islam demands from us the tolerance of other creeds and we welcome in closest association with us all those who, of whatsoever creed, are themselves willing and ready to play their part as true and loyal citizens of Pakistan."

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