DR. AMBEDKAR: THE PRINCIPAL ARCHITECT
OF THE CONSTITUTION OF INDIA
Clause wise Discussion on
the Draft Constitution
15th November 1948 to 8th January 1949
SECTION FOUR
____________________________________________________________
Democracy defined
Democracy is a form and a method of Government
whereby revolutionary changes in the economic and social life of people are brought about
without bloodshed.
-from Dr. Ambedkars address at Poona
District Law Library on December 22, 1952.
______________________________________________________________
Contents
PART
II
****
****
[f1]
Mr. Vice-President :
Let Mr. Santhanam move.
The
Honourable Shri K. Santhanam
: Sir, I beg to move:
"That
after article 31, the following new article he added: " 31-A. The State shall take steps to organise village panchayats and endow them with such powers and authority as
may he necessary to enable them to function as units of self-Government."
The
Honourable Dr. B. R. Ambedkar:
Sir, I accept the amendment.
****
[f2] The Honourable Dr. B. R. Ambedkar : Sir, as I accept the amendment. I have noticing more to add.
(An
Honourable Member rose to speak.)
Mr.
Vice-President :
In this matter my decision is final. I have not yet found anybody who has opposed the
motion put forward by Mr. Santhanam. There might be
different ways of praising it, but at bottom and fundamentally, these speeches are nothing
but praising the amendment.
The
motion was adopted.
Article
31-A was added to the Constitution.
[f3] Shri Syamanandan Sahay (Bihar : General) : Sir, I will move amendments Nos. 933 and 934 together with your permission. I move :
"
(i) That in the article 32
after the word ' education ' a comma and the
words ' to medical aid ' be added ; and
(b) that
for the words ' of. undeserved want ' the words ' deserving relief ' be substituted."
****
[f4] The Honourable Dr. B. R. Ambedkar (Bombay : General) : Sir, I oppose the amendments. Mr. Vice-President (Dr. H. C. Mookherjee) : I put the amendments to vote.
{Amendments Nos. 933 and 934, and 936 as
further amended were negatived.]
[f5]
Mr. Vice-President :
The amendment of Mr. Ramalingam Chettiar
runs as follows:
"
And in particular the State shall endeavour to promote cottage industries on cooperative
lines in rural areas."
That
is the language of the amendment moved by Mr. Chettiar.
Therefore,
it is in order. Now the article is open for general discussion.
****
[f6]
Shri S. Nagappa (Madras
: General) : Sir, I do not
want to take time of the House. I just want to make an amendment. After the words ' to all
workers, industrial ', the word ' agricultural ' may be added. Sir, I need not say that
the bulk of the working population consists of agricultural workers.
Mr.
Vice-President :
This is out of order.
The
Honourable Dr. B. R. Ambedkar :
Mr. Vice-President, Sir, as there is a considerable amount of feeling that the Directive
Principles should make some reference to cottage industries, I am agreeable in principle to introduce in article 34 some words to give
effect to the wishes of the Members of this House. I am therefore prepared to accept the
amendment moved by my friend Mr. Ramalingam Chettiar, subject to the substitution of one or two words. One
substitution that I would like to make is this. After the words "
cottage industries on " I would like to add the words " individual or ". I
would like to substitute his word ' lines ' by the word ' basis '. So that the
amendment would read as follows:
"
And in particular the State shall endeavour to
promote cottage industries on individual or co-operative basis
in rural areas."
That,
I think, would meet the wishes of most of the Members who are particularly interested in
the subject.
I
may also add that I am quite agreeable to accept the amendment moved by Mr. Nagappa that the word '
agricultural ' be added after the word ' industrial '.
Vice-President
: That was not allowed.
The
Honourable Dr. B. R. Ambedkar
: I have no objection if you allow that. I think Mr. Nagappa's suggestion that agricultural labour
is as important as industrial labour and should not be merely referred to by the word '
otherwise ' has some substance in it. However, it is a matter of ruling and it is for you
to decide.
Shri
T. A. Ramalingam Chettiar :
I accept Dr. Ambedkar's amendments.
Shri
L. Krishnaswami Bharathi
: (Madras : General) : Sir, may I suggest that we
may stop with the word cottage industries and omit the rest. Why do you want the words ' on individual or co-operative
basis ' ? There is no point in adding these words unless
you want to lay special emphasis on co-operative basis. I would like these words ' on
individual or co-operative basis ' to be omitted.
Honourable
Dr. B. R. Ambedkar
: May I explain. Sir? I find
among the Members who are interested in the subject, there are two divisions : one division believes in cottage industries solely on a
cooperative basis ; the other division believes that there
should be cottage industries without any such limitation. In order to satisfy both sides.
I have used this phraseology deliberately, which, I am sure, will satisfy both views that
have been expressed.
Shri
M. Ananthasayanam Ayyangar :
(Madras : General) : I do
not want to speak.
Mr.
Vice-President
: I think we have discussed this matter sufficiently. We shall pass on to the actual voting.
Shri
Mahavir Tyagi :
In the hope that this will all be done on the basis of self-sufficiency, I accept the
amendment to my amendment as Imally proposed by Dr. Ambedkar
and in that case I shall have to withdraw mine.
The
amendment was, by leave of the Assembly, withdrawn.
Shri
Amiyo Kumar Ghosh :
Sir, I want to know whether ' agricultural workers ' have been included or not.
Mr.
Vice-President :
It has not been included but I am quite prepared to go back on my ruling provided the
House as a whole, without any dissension, accepts the
suggestion of Dr. Ambedkar. Honourable Members : Yes.
Mr.
Vice-President
: Then I shall put the amendment of Shri Ramalingam Chettiar as amended
by Dr. Ambedkar to the vote.
The
amendment, as amended, was adopted.
The
amendment, as further modified by Mr. Nagappa was adopted.
Article
34, as amended, was added to the Constitution.
****
[f7]
Mr. Vice-President
: Now, we come to article 35.
The
Honourable Dr. B. R.
Ambedkar
: Sir, I have to request you to allow this article to stand over for the present.
Mr.
Vice-President
: This article is allowed to stand over for consideration
later. Is it agreed to by the House ?
Honourable
Members
: Yes.
****
Pandit
Lakshmi Kanta maitra:
(West Bengal : General) :
Mr. Vice-President, Sir I beg to move:
"
That in article 36, the words ' Every citizen is entitled
to free primary education and ' be deleted."
Sir,
I will strictly obey the injunction given by you regarding curtailment of speeches. I will
put in half a dozen sentences to explain the purpose of this amendment. If this amendment
is accepted by the House, as I hope it will be, then the article will read as follows: " The State shall endeavour to provide, within a period
of ten years from the commencement of this Constitution, for free and compulsory education
for all children until they complete the age of fourteen years." ......
****
Mr.
Naziruddin Ahmad
: (West Bengal : Muslim) : Sir, I beg to
move:
"
That in article 36, for the word ' education ', the words ' primary education ' be
substituted."
[f8]
The Honourable Dr. B. R. Ambedkar
: Sir, I accept the amendment proposed by my friend, Mr.
Maitra, which suggests the deletion of the words "
every citizen is entitled to free primary education and ".
But I am not prepared to accept the amendment of my Friend, Mr. Naziruddin Ahmad. He seems
to think that the objective of the rest of the clause in article 36 is restricted to free
primary education. But that is not so. The clause as it stands after the amendment is that
every child shall be kept in an educational institution under training until the child is
of 14 years. If my Honourable Friend, [f9]
Mr. Naziruddin Ahmad had referred to article 18, which forms part of the Fundamental
Rights, he would have noticed that a provision is made in article 18 to forbid any child
being employed below the age of 14. Obviously, if the child is not to be employed below
the age of 14, the child must be kept occupied in some educational institution. That is
the object of article 36, and that is why I say the word "
primary " is quite inappropriate in that particular
clause, and I therefore oppose his amendment.
[The
motion of Pandit Maitra wax
adopted. The motion of Naziruddin Ahmad was negatived.]
Article
36, as amended, was added to the Constitution.
[f10]
Mr. Mohamad Ismail Sahib
(Madras : Muslim) : Sir, I
move that the following proviso be added to article 35:
"
Provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law."
****
[f11]
The Honourable Dr. B. R. Ambedkar
: Sir, I am afraid I cannot accept the amendments which
have been moved to this article. In dealing with this
matter, I do not propose to touch on the merits of the
question as to whether this country should have a Civil Code or it should not. That is a
matter which I think has been dealt with sufficiently for
the occasion by my Friend, Mr. Munshi, as well as by Shri Alladi Krishnaswami Ayyar. When the amendments to certain fundamental rights are
moved, it would be possible for me to make a full statement on this subject, and I
therefore do not propose to deal with it here.
My
friend, Mr. Hussain Imarn,
in rising to support the amendments, asked whether it was possible and desirable to have a
uniform Code of laws for a country so vast as this is. Now I must confess that I was very
much surprised at that statements, for the simple reason that we have in this country a
uniform code of laws
covering almost every aspect of human relationship. We have a uniform and complete
Criminal Code operating throughout country, which is contained in the Penal Code and the
Criminal Procedure Code. We have the Law of Transfer of
Property, which deals with property relations and which is operative throughout the
country. Then there are the Negotiable Instruments Acts ; and
I can cite innumerable enactments which would prove that this country has practically a
Civil Code, uniform in its content and applicable to the whole of the country. The only
province the Civil Law has not been able to invade so far is Marriage and Succession. It
is this little corner which we have not been able to invade so far and it is the intention
of those who desire to have article 35 as part of the Constitution to bring about that
change. Therefore, the argument whether we should attempt such a thing seems to me
somewhat misplaced for the simple reason that we have, as a matter of fact, covered the
whole tot of the field which is covered by a uniform Civil Code in this country. It is
therefore too late now to ask the question whether we could do it. As I say, we have
already done it.
Coming
to the amendments, there are only two observations which I
would like to make. My first observation would he to state that members who put forth
these amendments say that the Muslim personal law, so far as this country was concerned,
was immutable and uniform through the whole of India. Now I
wish to challenge that statement. I think most of my friends who have spoken on this
amendment have quite forgotten that up to 1935 the
North-West Frontier Province was not subject to the Shariat
Law. It followed the Hindu Law in the matter of succession and in other matters, so much so that it was in 1939 that the Central
Legislature had to come into the field
and to abrogate the application of the Hindu Law to the Muslims of the North-West Frontier
Province and to apply the Shariat Law to them. That is not all.
My
Honourable friends have forgotten, that, apart from the North-West
Frontier Province, up till 1937 in the rest of India, in various parts, such as the United
Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed
by the Hindu Law in the matter of succession. In order to bring them on the plane of
uniformity with regard to the other Muslims who observed
the Shariat Law, the Legislature had to intervene in 1937 and to pass an enactment
applying the Shariat Law to the rest of India.
I
am also informed by my friend, Shri Karunakara Menon, that in North
Malbar the Marumakkathayam
Law applied to allnot only to Hindus but also to Muslims. It is to be remembered
that the Marumakkathayam Law is a Matriarehal form of law
and not a Partriarehal form of law.
The
Mussulmans, therefore, in North Malbar were up to now following the Marumakkathayam law.
It is therefore no use making a categorical statement that the Muslim law has been an
immutable law which they have been following from ancient times. That law as such was not applicable in certain
parts and it has been made applicable ten years ago. Therefore if it was found necessary
that for the purpose of evolving a single civil code applicable to all citizens
irrespective of their religion, certain portions of the
Hindu Law, not because they were contained in Hindu Law but because they were found to be
the most suitable, were incorporated into the new civil code projected by article 35, I am
quite certain that it would not be open to any Muslim to say that the farmers of the civil
code had done great violence to the sentiments of the Muslim community.
My
second observation is to give them an assurance. I quite realise their feelings in the
matter, but I think they have read rather too much into
article 35, which merely proposes that the State shall endeavour to secure a civil code
for the citizens of the country. It does not say that after
the Code is framed the State shall enforce it upon all citizens merely because they are
citizens. It is perfectly possible that the future Parliament may make a provision by way
of making a beginning that the Code shall apply only to those who make a declaration that
they are prepared to be bound by it, so that in the initial
stage the application of the Code may be purely voluntary. Parliament may feel the ground
by some such method. This is not a novel method. It was adopted in the Shariat Act of 1937 when it was applied to territories other
than the North-West Frontier Province. The law said that here is a Shariat law which
should be applied to Mussulmans provided a Mussulman who wanted that he should be bound by
the Shariat Act should go to an officer of the State, make
a declaration that he is willing to be bound by it, and after he has made that declaration
the law will bind him and his successors. It would be perfectly possible for Parliament to
introduce a provision of that sort ; so that the fear which
my friends have expressed here will be altogether nullified. I therefore submit that there is no substance in these
amendments and I oppose them.
[The
motion of Mohd. lsmail Saheb and that of B. Packer Sahib Bahadar were negatived. Article 35 was added to the Constitution.]
[f12]
Sardar Hukum Singh (East
Punjab : Sikh) : Mr.
Vice-President,
I
move:
''
That in article 37, for the
words ' Scheduled Castes '
the words ' Backward communities of whatever class or
religion ' he substituted."
Sir,
"Scheduled Castes " has been defined in article
303 (w) of this Draft Constitution as castes and races
specified in the Government of India (Scheduled Castes) Order 1936.
In that Order, most of the tribes, castes and subcastes are
described and include Bawaria, Chamar,
Chuhra, Balmiki, Od, Sansi, Sirviband and Ramdasis. It would be conceded that they have different faiths
and beliefs. For instance, there are considerable numbers of Sikh Ramdasis, Odes, Balmikis and Chamars. They are
as backward as their brethren of other beliefs. But, so far, these Sikh backward classes
have been kept out of the benefits meant for Scheduled Castes.
The result has been either conversion in large numbers or discontent.
I
do realise that so far as election to legislatures was
concerned, there could be some justification as the Sikhs had separate representation and
the Scheduled Castes got their reservation out of General Seats. There is the famous case of S. Gopal Singh Khalsa who could not be allowed to contest a seat unless he
declared that he was not a Sikh. Such cases have led to disappointment and discontent on
account of a general belief that some sections were being discriminated against.
Now
the underlying idea is the uplift of the backward section of the community so that they
may be able to make equal contribution in the national activities. I fully support the idea. I may be confronted with an argument that at least
there is the first part of the article which provides for promotion " of educational and economic interests of ' weaker sections ' of the
people ". So far it is quite good and it can apply to
every class. But, as the " weaker sections " are not defined anywhere, the apprehension is that the
whole attention would be directed to the latter part relating to ' Scheduled Castes ' and
' weaker sections ' would not mean anything at all. Even the article lays the whole stress
on this latter portion by centralising attention through the words ' in particular ' of
the' Scheduled Castes '.
I
may not be misunderstood in this respect. I do not grudge this special care of the State
being directed towards "Scheduled Castes ".
Rather, I would support even greater concessions being given and more attention being paid
to backward classes. My only object is that
there should be no discrimination. That is not the intention of the article either. But,
as I have said, so far the " Scheduled Castes " have been understood by general masses to exclude the
members of the same castes professing Sikh religion. We should be particular in
guaranteeing against any misconstruction being placed or any discrimination being
exercised by those who would be responsible for actual working of it. Under the present
article, it is the " educational and economic
interests " that are to be promoted and therefore it
should be made clear that it is to be done for all backward classes, and not for persons
professing this or that particular religion or belief. I commend this motion for the
acceptance of the House.
Shri
A. V. Thakkar
(United States of Kathiawar : Saurashtra) : Sir, I beg to move this amendment (983) which asks for the
inclusion of the backward castes among Hindus and among Muslims...
The
Honourable Dr. B. R. Ambedkar
: May I just make a statement ?
I believe both these amendments dealing with the backward classes,
etc. would be more appropriate to the Schedule and could be better considered when we
dealt with the Schedule. I would suggest that the consideration of these amendments may be
postponed.
Shri
A. V. Thakkar
: My amendment seeks to lay down certain principles...
Mr.
Vice-President
: Dr. Ambedkar
proposes to give the fullest possible consideration to these in the Schedule.
Shri
A. V. Thakkar
: Does he agree to include all backward classes ?
Mr.Vice-President
: He can hardly agree to anything now. The matter is open
to discussion later.
Shri
A. V. Thakkar :
Then I do not move my amendment now.
Mr.
Naziruddin Ahmad :
Sir, I am not moving my amendment No. 985. It merely seeks to use capital letters in the
case of the Scheduled Castes. I would respectfully draw the attention of the Chairman of
the Drafting Committee to article 303 (1), items (w) and (x) on page 147 of the Draft Constitution. We have there
specified two definitions, '
Scheduled Castes ' and '
Scheduled Tribes '. '
Scheduled Castes ' have everywhere been spelt with capital
letters, but ' Scheduled tribes ' have been spelt with small letters.
The Honourable Dr. B. R. Ambedkar : We shall consider that.
Sardar Hukum Singh : I beg leave to withdraw my amendment.
The
amendment was, by leave of the Assembly, withdrawn.
****
Article
37 was added to the Constitution.
[f13]
Mr. Vice-President
: We shall commence today's
proceedings with the consideration of the particular article with which we are concerned
today in the Draft Constitution. The introduction of the Bill will be taken up after a
little while.
Prof.
Shibban Lal Saksena
: (United Provinces :
General) : I am tabling an amendment which is an amendment
of Mr. Mahavir Tyagi's. I
hope it will he acceptable to him, because in his amendment, he has not included the words ' except for
medicinal purposes '. I think that if the amendment of Mr.
Mahavir Tyagi is accepted as amended by my amendment, it
would become much better. I wish Dr. Ambedkar to accept my
amendment which is mentioned in No. 86 of list IV.
Sir
I beg to move :
"
That at the end of article 38, the following he substituted :
'
and shall endeavour to bring about prohibition of the
consumption of intoxicating drinks and drugs which are injurious to health except for
medicinal purposes "'.
[f14]
The Honourable Dr. B. R. Ambedkar
: Mr. Vice-President, I accept the amendment of Prof.
Shibban Lal Saksena subject to a further amendment, namely, that after the word ' and ' at the beginning of his amendment (86 of List IV) the words " in particular " be
added.
Shri
Mahavir Tyagi :
I really cannot understand how that amendment can be accepted by the Honourable Dr. Ambedkar.
The amendment under discussion is mine.
The
Honourable Dr. B. R. Ambedkar
: Sir, I accept the amendment of Mr. Tyagi as amended by
the amendment of Prof. Shibban Lal Saksena (Laughter).
Mr.
Vice-President :
Mr. Tyagi is a great stickler for rights.
The
Honourable Dr. B. R. Ambedkar :
Sir, if I may say so, the right really belongs to me, because it is I who drafted the
amendment he moved. (Renewed laughter.)
Mr. Vice-President :
That puts the matter in a new light.
The
Honourable Dr. B. R. Ambedkar :
I do not think the House would have found any difficulty in accepting this amendment. Two
points have been raised against it. One is by Prof. Khandekar
who represents Kolhapur in this Assembly. I am sure that
Mr. Khandekar has not sufficiently appreciated the fact that this clause is one of the
clauses of an Article which enumerates what are called Directive Principles of Policy.
There is therefore no compulsion on the State to act on this principle. Whether to act on
this principle and when to do so are left to the State and public opinion. Therefore, if
the State thinks that the time has not come for introducing prohibition or that it might
be introduced gradually or partially, under these Directive Principles it has full liberty
to act. I therefore do not think that we need have any compunction in this matter. But,
Sir, I was quite surprised at the speech delivered by my friend Mr. Jaipal Singh. He said that this
matter ought not to be discussed at this stage, but should be postponed till we take up
for consideration the report of the Advisory Committee on Tribal Areas. If he had read the
Draft Constitution, particularly the Sixth Schedule, paragraph 12, he would have found
that ample provision is made for safeguarding the position of the tribal people with
regard to the question of prohibition. The scheme with regard to the tribal areas is that
the law made by the State, whether
by a province or by the Centre, does not automatically apply to that particular area.
First of all, the law has. to be made. Secondly, the District Councils or the Regional
Councils which are established under this Constitution for
the purposes of the administration of the affairs of these areas are given the power to
say whether a particular law made by a province or by the Centre should be applied to that
particular region inhabited by the tribal people or not, and particular mention is made
with regard to the law relating to prohibition. I shall just
read out sub-paragraph (a) of paragraph 12 which occurs on page 184 of the Draft
Constitution. It says:
"
Notwithstanding anything contained in this Constitution
(a)
no Act of the legislature of the State in respect of any of the matters specified in
paragraph 3 of this Schedule as matters with respect to which a District Council or a
Regional Council may make laws, and no Act of the Legislature of the State prohibiting or
restricting the consumption of any non-distilled alcoholic liquor shall apply to any
autonomous district or autonomous region unless in either case the District Council for
such district or having jurisdiction over such region by public notification so directs,
and the District Council in giving such direction with respect to any Act may direct that
the Act shall in its application to such district or region or any part thereof have
effect subject to such exceptions or modifications as it thinks fit; "
Now,
I do not know what more my friend, Mr. Jaipal Singh, wants than the provision in paragraph
12 of the Sixth Schedule. My fear is that he has not read the Sixth Schedule : if he had read it, he would have realised that even though
the State may apply its law regarding prohibition in any part of the country, it has no
right to make it applicable to the tribal areas without the consent of the District
Councils or the Regional Councils.
Mr.
Vice-President :
There are three amendments. One is by Mr. Mahavir Tyagi. That is No. 71 in List II. If I read the situation
aright, that has been practically withdrawn. Am I right, Mr. Tyagi ?
Shri
Mahavir Tyagi
: I have not
withdrawn my amendment. I have only accepted the words which Prof. Shibban Lal Saksena intends to add to my amendment.
Mr.
Vice-President :
I want to know whether you want that your amendment should be put separately to the vote.
Shri
Mahavir Tyagi :
Yes, Sir, of course. As I have said, I want to abolish liquor altogether. He wants to add the words " except for medical purposes ".
Therefore my amendment is the original amendment.
Mr.
Vice-President :
I understand the situation. I shall now put to the vote the amendment of Mr. Mahavir Tyagi
as modified by Professor Shibban Lal Saksena and further modified by Dr. Ambedkar.
Shri
Mahavir Tyagi :
On a point of order, Dr. Ambedkar has added the word " particular " but he
has not taken my permission.
Mr.
Vice-President :
I take your permission on behalf of Dr. Ambedkar.
Shri
Mahavir Tyagi
: I accept his
amendment also, Sir.
Mr.
Vice-President
: This particular amendment as amended is now put to the
vote.
The
amendment was adopted.
[Article
38 an amended, was added to the Constitution.]
****
[f15]
Pandit Thakur Dass Bhargava
(East Punjab : General) : [f16]
Mr. President, the words of the amendment No. 72 which I am
moving in place of amendment No. 1002, are as follows :
"
That for amendment No. 1002 of the lists of amendments to
38-A the following he substituted:
"
38-A. The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall in particular
take steps for preserving and improving the breeds of cattle
and prohibit the slaughter of cow and other useful cattle, specially milk and draught cattle and their young stock '. "
At
the very outset I would like to submit that this amendment...
Shri
S. Nagappa :
(Madras : General) : Sir, on
a point of order, my Honourable friend, who can speak freely in English, is deliberately
talking in Urdu or Hindustani which a large number of
South Indians cannot follow.
Mr.
Vice-President :
The Honourable Member is perfectly entitled to speak in any language he likes but I would
request him to speak in English though he is not bound to speak in English.
Pandit
Thakur Dass Bhargava
: I wanted to speak in Hindi which is my own language about
the cow and I would request you not to order me to speak in English. As the subject is a
very important one, I would like to express myself in the way in which I can express
myself with greater ease and facility. I would therefore request you kindly to allow me to speak in Hindi.
*[Mr.
Vice-President, with regard to this amendment
I would like to submit before the house that in fact this amendment like the other
amendment, about which Dr. Ambedkar has stated, is his
manufacture....
[f17]
The Honourable Dr. B. R. Ambedkar
: I accept the
amendment of Pandit Thakur Dass Bhargava.
Mr.
Vice-President :
I shall now put the amendments one by one to the vote. The amendment of Pandit Thakur Dass
Bhargava. That is No. 72 in List II. [The motion was adopted.] Article 38-A, as
amended, was added to the Constitution.
[f18]
Mr. Vice-President
: Shall we now go on to the next item in the agenda ? No. 1003 has been covered by one of the previous amendments.
No. 1004 has also been disposed of. Then No. 1005. The first part of it cannot be moved,
but the second part can be moved. (Not moved.)
Then
the motion before the House is that article 39 forms part of the Constitution. There are several amendments to this.
(Nos.
1006,1007 and 1008 were not moved.) No. 1009 by Dr. Ambedkar and his colleagues.
The
Honourable Dr. B. R. Ambedkar :
Sir, I move:
"
That in article 39, after the words ' from spoliation ' the word ' disfigurement ' be inserted. "
Prof.
Shibban Lal Saksena:
Mr. Vice-President, Sir, I beg to move :
"
That in article 39, after the words ' from spoliation ' the word ' disfigurement ' be inserted, and all the words after the words ' may be ' to
the end of the article be deleted."
The
Honourable Dr. B. R. Ambedkar
: Why do you want to make a speech when I am going to
accept it ?
Prof.
Shibban Lal Saksena :
I am glad that Dr. Ambedkar is going to accept it. Because
this article is to be a directive principle, it should not mention about laws of
Parliament and so we must omit the words " to preserve
and maintain according to law made by Parliament all such monuments or places or
objects."
The
Honourable Dr. B. R. Ambedkar
: Sir, I accept the amendment.
****
Mr.
Vice-President
: I am now
putting the amendments one by one.
The
motion was adopted.
Mr.
Vice-President :
There is the amendment of Prof. Shibban Lal Saksena.
Begum
Aizaz Rasul :
(United Provinces : Muslim) :
May I know if Dr. Ambedkar has accepted Prof.
Shibban Lal Saksena's amendment ?
If not, I wish to oppose the second part.
Mr.
Vice-President :
There is no second part so far as I am aware. It only refers to deletion of certain words.
The first part is the same. Begum Aizaz Rasul : I wish to
oppose that motion. Mr. Vice-President : I am afraid it is
too late now.
The
motion was adopted.
Article
39, as amended, was added to the Constitution.
[f19]
The Honourable Dr. B. R. Ambedkar
: Mr. Vice-President, Sir, I move:
"
That after article 39, the following new article he inserted:
'
39-A. That State shall take steps to secure that, within a period of three years from the
commencement of this Constitution, there is separation of the judiciary from the executive
in the public services of the State. '. "
I
do not think it is necessary for me to make any very lengthy statement in support of the
amendment which I have moved. It has been the desire of this country from long past that
there should be separation of the judiciary from the executive and the demand has been
continued right from the time when the Congress was founded. Unfortunately, the British
Government did not give effect to the resolutions of the Congress demanding this
particular principle being introduced into the administration of the country. We think
that the time has come when this reform should be carried out. It is, of course, realised
that there may be certain difficulties in the carrying out of this reform ; consequently this amendment has taken into consideration two
particular matters which may be found to be matters of difficulty. One is this : that we deliberately did not make it a matter of fundamental
principle, because if we had made it a matter of fundamental principle it would have
become absolutely obligatory instantaneously on the passing of the Constitution to bring
about the separation of the judiciary and the executive. We have therefore deliberately
put this matter in the chapter dealing with directive principles and there too we have
provided that this reform shall be carried out within three years, so that there is no
room left for what might be called procrastination in a matter of this kind. Sir I move.
****
[f20]
Mr. Vice-President (Dr.
H. C. Mookherjee) : Notice of an
amendment has been received from Dr. Ambedkar. Will you
please move your amendment. Dr. Ambedkar ?
The
Honourable Dr. B. R.
Ambedkar (Bombay
: General) : Mr.
Vice-President, I move:
That
in article 39-A delete the words beginning from "
secure " up to "
separation of " and in their place substitute the
word, " separate ".
so
that the article 39-A, with this amendment would read as follows:
"
The State shall take steps to separate the judiciary from the executive in the public
services of the State. "
The
House will see that the object of this amendment is to eliminate the period of three years
which has been stated in the original article as proposed by 39-A. The reasons why I have
been obliged to make this amendment are these. There is a section of the House which feels
that in these directive principles we ought not to introduce matters of details relating
either to period or to procedure. These directive principles
ought to enunciate principles and ought not to go into the details of the working out of
the principles. That is one reason why I feel that the period of three years ought to be
eliminated from article 39-A.
The
second reason why I am forced to make this amendment is this. The expression " three years " has
again brought about a sort of division of opinion amongst
certain members of the House. Some say, if you have three years period, then no government
is going to take any step until the third year has come into duration. You are practically
permitting the provincial legislatures not to take any steps for three years by mentioning
three years in this article. The other view is that three years may be too short. It may
be that three years may be long enough so far as provinces are concerned, where the
administrative machinery is well established and can be altered and amended so as to bring
about the separation. But we have used the word "
State " in the directive principles to cover not only
the provincial governments but also the governments of the Indian States. It is contended
that the administration in the Indian States for a long time may not be such as to bring
about this desired result. Consequently the period of three years, so far as the Indian
States are concerned, is too short. All these arguments have undoubtedly a certain amount
of force which it is not possible to ignore. It is, therefore, thought that this article
would serve the purpose which we all of us have in view, if the article merely contained a
mandatory provision, giving a direction to the State, both in provinces as well as in the
Indian States, that this Constitution imposes, so to say, an obligation to separate the
judiciary from the executive in the public services of the State, the intention being that
where it is possible, it shall be done immediately without any delay, and where immediate
operation of this principle is not possible, it shall, nonetheless, be accepted as an
imperative obligation, the procrastination of which is not tolerated by the principles
underlying this Constitution. I therefore submit that the
amendment which I have moved meets all the points of view which are prevalent in this
House, and I hope that this House will give its accord to this amendment.
Prof.
Shibban Lal Saksena (United
Provinces : General) : Sir,
Dr. Ambedkar has already moved an amendment, that is he has
added a new article No. 39-A. Is it permissible to a member to amend his own amendment ?
Mr.
Vice-President
: Yes. I would request you all to bear in mind that we have
to go to the fundamentals and not to technicalities.
Shri
R. K. Sidhwa
(C. P. and Berar : General) : Mr.
Vice-President, Sir, I am very glad that Dr. Ambedkar has
moved this amendment and that at this late stage better counsels and sense have prevailed....
The
motion was adopted.
Article
39-A was added to the Constitution.
****
[f21]
Mr. Mohd. Tahir
(Bihar : Muslim) : Mr. Vice-President, Sir, I beg to move : That after article 39, the following new article be inserted
and the rest of the articles be renumbered :
"
40. It shall be the duty of the State to protect, safeguard and preserve the places of
worship such as Gurdwaras, Churches, Temples, Mosques
including the graveyards and burning ghats."
[f22]
The Honourable Dr. B. R. Ambedkar
: Sir, I do not accept the amendment. Mr. Vice-President : I will now put the amendment to vote.
The
amendment was negatived.
****
[f23]
Mr. Vice-President
: No. 1018. Dr. Ambedkar.
The Honourable Dr. B. R. Ambedkar : I understand Mr. Kamath is
moving an amendment. Shri H. V. Kamath : I shall be
moving my amendment after Dr. Ambedkar has moved his.
The Honourable Dr. B. R. Ambedkar : Sir, I move : " that for the existing article 40, the following be
substituted:
"
40. The State shall
(a)
promote international peace and security ;
(b)
seek to maintain just and Honourable relations between nations ;
and
(c)
endeavour to sustain respect for international law and treaty obligations in the dealings
of organised people with one another. "
Sir,
this, amendment merely simplifies the original article 40 and divides it into certain
parts separating each idea from the other so that any one who reads the article will get a
clear and complete idea of what is exactly intended to be covered by article 40. The
propositions contained in this new article are so simple that it seems to be super-arrogation to try to explain them to the House by any lengthy speech. Sir, I move.
Mr.
Vice-President
: There are certain amendments to this which I am calling
out. No. 74 Mr. Sarwate.
Shri
V. S. Sarwate (United States of Gwalior-Indore-Malwa-Madhya Bharat).
Mr. Vice-President, Sir, I beg to move an amendment to this amendment. My amendment stands
thus:
"That
in amendment No. 1018 of the list of amendments, in article 40, after the words " The State shall "
and before sub-clause (a), this new clause be inserted and the existing clause be
renumbered accordingly : (a) foster truthfulness,
justice, and sense of duty in the citizens. "
****
[f24]
Shri H.V. Kamath
: ......Sir,, I move
"That
in amendment 1018 of the list of Amendments in article 40,
after the word, ' shall '
the words ' endeavour to '
be inserted, in clause (b) the words
' seek to ' be deleted in clause (c)
the words ' endeavour to ' he deleted. "
Mr
Vice-President
: The question is that for the existing article 40,
the
following be substituted :
So
that if this amendment be accepted by the House the amendment of the Drafting Committee
will read as follows :
"
40. The State shall endeavour to
(a)
promote international peace and security ;
(b)
maintain just and Honourable relations between nations ;
(c)
foster respect for international law and treaty obligations in the dealings of organised
people with one another, and
(d)
encourage the settlement of international disputes by arbitration." This amendment
seek only a slight structural change in the amendment brought forward by Dr. Ambedkar so as to bring out or indicate the directive
character of the principle embodied in article 40......
****
[f25] Mr. President
: Mr. Ayyangar, will you
move it formally ?
Shri
M. Ananthasayanam Ayyangar :
Sir, I move that in the amendment of Dr. Ambedkar, at the
end add the following subclause :
"
and (d) to encourage the settlement of
international disputes by arbitration. "
The
motion was adopted.
[f26] The Honourable Dr. B. R. Ambedkar : Sir I accept Mr. Kamath's three amendment's. I accept Dr. Subbarayan's amendment and I accept the amendment moved by my Honourable friend, Mr. Ananthasayanam Ayyangar. I do not accept any other amendment.
The
motion was negatived.
[f27] The Honourable Dr. B. R. Ambedkar
: Sir, I move:
"
That the following words be added at the end of article 7 :
' or under the control of the Government of India '. "
Sir, this amendment was thought necessary because apart from the territories which form part of India, there may be other territories which may not form part of India, but may none-the-less be under the control of the Government of India. There are many cases occurring now in international affairs where territories are handed over to other countries for the purposes of administration either under a mandate or trusteeship. I think it is desirable that there ought to be no discrimination so far as the citizens of India and the residents of those mandated or trusteeship territories are concerned in fundamental rights. It is therefore desirable that this amendment should be made so that the principle of Fundamental Rights may be extended to the residents of those territories as well.
****
[f28]
Mr. Vice-President
: I would
request Dr. Ambedkar to enlighten us about the points raised here by Mr. Ali Baig. We are laymen and we
would like to hear him.
The Honourable Dr. B. R. Ambedkar : Mr. Vice-President, I must confess that although I had
concentrated my attention on the speech of my friend who moved this amendment, I have not
been able to follow what exactly he wanted to know. If his amendment is to delete the
whole of article 7, I can very easily explain to him why this article must stand as part
of the Constitution.
The
object of the Fundamental Rights is two-fold. First, that every citizen must be in a
position to claim those rights. Secondly, they must be binding upon every authority1
shall presently explain what the word " authority " meansupon every authority which has got either
the power to make laws or the power to have discretion vested in it. Therefore, it is
quite clear that if the Fundamental Rights are to be clear, then they must be binding not
only upon the Central Government, they must not only be binding upon the Provincial
Government, they must not only be binding upon the Government established in the Indian
States, they must also be binding upon District Local Boards, Municipalities, even village
panchayats and taluk boards, in fact, every authority which
has been created by law and which has got certain power to make laws, to make rules, or
make by-laws.
If
that proposition is acceptedand I do not see anyone who cares for Fundamental Rights
can object to such a universal obligation being imposed upon every authority created by
lawthen, what are we to do to make our intention clear ?
There are two ways of doing it. One way is to use a composite phrase such as " the State ", as we
have done in article 7 ; or, to keep on repeating every
time, " the Central Government, the Provincial
Government, the State Government, the Municipality, the local Board, the Port Trust, or
any other authority ". It seems to me not only most
cumbersome but stupid to keep on repeating this phraseology every time we have to make a
reference to some authority. The wisest course is to have this comprehensive phrase and to
economise in words. I hope that my friend will now understand why we have used the word " State" in this article and why this article must
stand as part of this Constitution.
Mr.
Vice-President:
I will now put this amendment to the vote. First of all, we have amendment No. 21 of Mr. Naziruddin Ahmad, which is an
amendment to amendment No. 246.
The
question is:
"
That with reference to amendment No. 246 of the List of Amendments,
in article 7 the words" and all local or other authorities, within the territory of
India or under the control of the Government of India " he deleted. "
The
motion was negatived.
Mr.
Vice-President :
The next amendment is No. 246 moved by Dr. Ambedkar.
The
question is : that the following words be added at the end
of article 7:
"
or under the control of the Government of India. "
The
motion was adopted.
[Two
more amendments were negatived.]
Article
7, as amended, was added to the Constitution.
****
[f29]
Mr. Vice-President :
We have a quarter of an hour more. We can resume discussion of article 8 of the Draft
Constitution.
Pandit
Lakshmi Kanta Maitra
(West Bengal : General) : We
may adjourn now.
Mr.
Vice-President :
Our time is valuable. We should not waste a quarter of an hour.
The
Honourable Dr. B. R. Ambedkar
: Sir, I move:
"
That for clause (3) of Article 8, the following be substituted:
'
(3) In this article
(a)
the expression ' law ' includes any ordinance, order, bye-law, rule, regulation,
notification, custom, or usage having' the force of law in
the territory of India or any part thereof;
(b)
the expression ' laws in force ' includes laws passed or made by a Legislature or other
competent authority in the territory of India before the commencement of this Constitution
and not previously repealed, notwithstanding that any such
law or any part thereof may not be then in operation either at all or in particular
areas."
Sir,
the reason for bringing in this amendment is this: It will
be noticed that in article 8 there are two expressions which occur. In subclause (1) of
article 8, there occurs the phrase " laws in force ", while in sub-clause (2) the word's " any law " occur. In the original draft as submitted to this
House, all that was done was to give the definition of the term "
law " in sub-clause (3). The term " laws in force " was
not defined. This amendment seeks to make good that lacuna.
What we have done is to split sub-clause (3) into two parts (a) and (b). (a) contains the definition of the term " law " as embodied
in the original sub-clause (3), and (b) gives the
definition of the expression " laws in force " which occurs in sub-clause (1) of article 8. I do not
think that any more explanation is necessary.
[f30]
Mr. Naziruddin Ahmad
: Sir, before I move my amendment, I beg to point out that
as a comprehensive amendment has been moved by the Honourable Dr. Ambedkar, I think the
present amendment should be suitably adapted to apply to that amendment. I wish to move
the second part of it only.
Mr.
Vice-President :
First of all, find out whether he accepts it or not.
Mr.
Naziruddin' Ahmad
: Unless I argue the matter, he will not accept it. I think. Sir, this amendment will have to be accepted.
I
beg to move:
That in amendment No. 260 which has been moved by Dr. Ambedkar, the
words "
custom or usage having the force of law in the territory of India or any part
thereof" be deleted.
Mr.
Vice-President
: How can you add to that amendment without giving notice ? It is out of order. You can only make a suggestion.
Mr.
Naziruddin Ahmad
: I have already given notice of an amendment to the original article. In view of the amendment of Dr. Ambedkar, there should be consequential changes.
Mr.
Vice-President
: All right.
[f31]
Mr. Naziruddin Ahmad
: I am very glad
for the kind interruption. It does not remove my difficulties at all. Does it mean to say
that the State ' makes ' a
custom or usage ? Still you have the difficulty to face
that the State has to make a law including custom or usage.
The
Honourable Shri B. G. Kher
: Of course, it means ' whenever necessary '. That is
always understood in law. I am sorry to interrupt.
The
Honourable Dr. B. R. Ambedkar
: Probably he may not find it necessary to continue his
speech if I refer to him this fact, namely, that the expression "law " in (3) (a) has reference to law in 8 (1).
Mr.
Naziruddin Ahmad
: I am again grateful for the kind interruption of Dr. Ambedkar that the words ' custom and usage ' have the force of
law and so forth....
****
[f32]
Mr. Vice-President
: Shall we resume discussion of article 8 ? Is there any Honourable Member who wishes to speak on it ?
The
Honourable Dr. B. R. Ambedkar
(Bombay : General) : Mr.
Vice-President, the amendment of Mr. Naziruddin Ahmad, I think, creates some difficulty
which it is necessary to clear up. His amendment was intended to remove what he called an
absurdity of the position which is created by the Draft as it stands. His argument, if I
have understood it correctly, means this, that in the definition of law we have included
custom, and having included custom, we also speak of the State not having the power to
make any law. According to him, it means that the State would have the power to make
custom, because according to our definition, law includes custom. I should have thought
that that construction was not possible, for the simple reason, that subclause (3) of
article 8 applies to the whole of the article 8, and does not merely apply to sub-clause
(2) of article 8. That being so, the only proper construction that one can put or it is
possible to put would be to read the word ' Law ' distributively, so that so far as article 8, sub-clause (1)
was concerned, ' Law ' would include custom, while so-far as sub-clause (2) was concerned,
' Law ' would not include custom.
That
would be, in my judgement, the proper reading, and if it was read that way, the absurdity
to which my Friend referred would not arise.
But
I can quite understand that a person who is not properly instructed in the rules of
interpretation of Statute may put the construction which my Friend Mr. Naziruddin Ahmad is seeking to
put, and therefore to avoid this difficulty, with your permission, I would suggest that in
the amendment which I have moved to sub-clause (3) of article 8, I may be permitted to add
the following words after the words " In this article ". The words which I would like to add would be
"
Unless the context otherwise requires "
so
that the article would read this way
'
In this article, unless the context otherwise requires
(a)
The expression ' law ' includes any Ordinance, order, bye-law, rule, regulation, notification, custom, or usage having the force of law in the
territory of India or any part thereof;
(b)
the expression............ ' "
I
need not read the whole thing.
So,
if the context in article 8(1) requires the term ' law ' to be used so as to include
custom, that construction would be possible. If in subclause (2) of article 8, it is not
necessary in the context to read the word ' law ' to include custom, it would not be
possible to read the word ' law ' to include custom. I think that would remove the
difficulty which my Friend has pointed out in his amendment.
Mr.
Vice-President
: I shall put
the amendments, one by one, to vote. I am referring to the numbering of the amendments in
the old list....
I
put amendment No. 252, standing in the name of Mr. Mahboob Ali
Baig to vote. The question is:
" That the
proviso to clause (2) of article 8 he deleted."
The
amendment was adopted.
[Amendment
No 259, standing in the name of Shri
Tokanath Misra was negatived.]
[f33]
Mr. Vice-President
: Then I put amendment No. 260, as amended by Dr. Ambedkar. The question is :
"That
for clause (3) of article 8, the following be substituted:
'
(3) In this article, unless the context otherwise requires,
(a)
The expression ' law ' includes any Ordinance, order, bye-law, rule,
regulation,
notification, custom, or usage having the force of law in the territory of India or any
part thereof;
(b)
the expression ' laws in force '
includes laws passed or made by a Legislature or other
competent authority in the territory of India before the
commencement of this Constitution and not previously repeated, notwithstanding that any
such law or any part thereof may not be then in operation either at all or in particular
areas '. "
The
amendment was adopted.
[Two
more amendments were negatived.]
Article
8, as amended was added to the Constitution.
[f34]
Mr. Vice-President :
The next amendment is No. 273 in the new list in the
Shri
Toknath Misra (Orissa : General) : Sir, I beg to move:
"
That after article 8, the following new article 8-A he inserted :
RIGHT OF
SUFFRAGE AND ELECTION
8-A. (1) Every citizen who is not less than 21 years of age and
is not otherwise disqualified under this Constitution or any law made by the Union Parliament or by the Legislature of his State on any
ground, e.g.,
non-residence, unsoundness of mind, crime or corrupt or
illegal practice, shall be entitled to be registered as a voter at such elections.
(2)
The elections shall be on the basis of adult suffrage as
described in the next preceding sub-clause but they may be indirect, i.e., the Poura
and Grama Panchayts or a group of villages, a township or a
part of it having a particular number of voters or being an autonomous unit of local
self-government shall be required to elect primary members, who in their turn, shall elect members to the Union Parliament and to the State Assembly.
(3)
The Primary Members shall have the right to recall the member they elected to the
Parliament or the Assembly of the State.
(4)
A voter shall have the right to election and the cost of election
shall be met by the State.
(5)
Every candidate will be elected by the People and even if there is no rival, no candidate
shall be elected unless he gets at least V of the total votes.
****
[f35]
Shri Algu Rai Shastri (United
Provinces : General) : Mr.
President [f36],
I rise to oppose the amendment moved by my Friend.
My
first reason for doing so is
that it has no relation to the question raised here. Matters
relating to elections have been dealt with in the Draft Constitution at other places where it has been stated as to
how the Legislature shall be formed; who shall be the
members of the Legislatures ; what shall be their rights ; what shall be the procedure of their elections. Amendments
of this nature may be moved in the article dealing with such things. This amendment is
totally irrelevant to Fundamental Rights of the Draft
Constitution....
...This
amendment should be rejected outright and should never be accepted.
The
Honourable Dr. B. R. Ambedkar
: I cannot accept this amendment.
The
motion of Toknath Misra was
negatived.
[f37]
Mr. Vice-President
: Amendment No. 313 is disallowed as being verbal.
Amendment No. 314. Dr. Ambedkar.
Shri
H. V. Kamath : Mr.
Vice-President, Sir, may I ask whether this is merely a verbal or at best a formal
amendment liable to be disallowed ? It merely seeks to
substitute the words ' State funds ' in place of the words ' the revenues of the State '.
Mr.
Vice-President :
I shall keep that in mind. Dr. Ambedkar, will you please deal with that point also '?
The
Honourable Dr. B. R. Ambedkar : Sir, I move:
"
That in sub-clause (b) of
the second paragraph of clause (1) of article 9, for the words ' the
revenues
of the State ' the words ' State funds ' he substituted. "
The
reason why the Drafting Committee felt that the words " the revenues of the State "
should be replaced by the words " State funds " is a very simple tiling.
In the administrative parlance which has been in vogue in India for a considerably long
time, we are accustomed to speak of revenues of a Provincial Government or revenues of the
Central Government. When we come to speak of local boards or district boards, we generally
use the phrase local funds and not revenues. That is the terminology which has been in
operation throughout India in all the provinces. Now, the Honourable members of the House
will remember that we are using the word ' State ' in this Part to include not only the
Central Government and the Provincial Governments and Indian States, but also local
authorities, such as district local boards or taluka local
boards or the Port Trust authorities. So far as they are concerned, the proper word is '
Fund '. It is therefore, desirable, in view of the fact that we are making these
Fundamental Rights obligatory not merely upon the Central Government and the Provincial
Governments, but also upon the district local boards and taluka local boards, to use a
wider phraseology which would be applicable not only to the Central Government, but also
to the local boards which are included in the definition of the word ' State '. I hope that my
Honourable Friend Mr. Kamath will now understand that the
amendment which I have moved is not merely verbal, but has some substance in it.
Sir,
I move.
[f38]
(0ne or two Honourable Members rose to speak.)
Mr.
Vice-President :
You must forgive me if I am unable to meet the wishes of Honourable Members. I want the
full co-operation of the House and I ask it specially just now. Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar:
Sir, dealing with the amendments which have been moved, I accept Amendment No. 280 moved
by Mr. Rout.
Shri
Syamanandan Sahaya (Bihar : General) : Will the Honourable Member give his views also about
amendments which have not been moved?
The
Honourable Dr. B. R. Ambedkar
: I am very
sorry I cannot give opinions regarding amendments which have not been moved.
Shri
Syamanandan Sahaya
: It was no
fault of the member concerned.
The
Honourable Dr. B. R. Ambedkar
: I cannot help it. I accept the amendment of Mr. Rouf
adding the words " place of birth ". I also accept the amendment (No. 37 in List 1) by Mr. Subramaniam to amendment No. 276 dropping the words " In particular " in
clause (1) of article 9.
With
regard to amendment No. 303 moved by Mr. Guptanath Singh. I am prepared to accept his amendment provided he is
prepared to drop the word " kunds
" from his amendment.
Shri
Guptanath Singh:
I have already done that. Sir.
The
Honourable Dr. B. R. Ambedkar
: Then, among the many amendments which I am sorry I cannot
accept. I think it is necessary for me to say something about two of them. One is amendment No. 315 moved by Mr. Tahir which requires that any contravention of the provisions
contained in article 9 should be made a crime punishable -by law. My friend Mr. Tahir who
moved this amendment referred particularly to the position of the untouchables and he said
that in regard to these acts which prevent the untouchables from sharing equally the
privileges enjoyed by the general public, we will not be successful in achieving our
purpose unless these acts, preventing them from using places of public resort, were made
offences. There is no doubt that there is no difference of opinion between him and other
Members of this House in this matter because all of us desire that this unfortunate class
should be entitled to the same privileges as members of the other communities without any
let or hindrance from anybody. But he will see that that purpose is carried out entirely
by the provisions contained in article 11 which specifically deals with untouchability : instead of
leaving it to Parliament or to the State to make it a crime, the article itself declares
that any such interference with their rights shall be treated as an offence punishable by
law. If his view is that there should be a provision in the Constitution dealing generally
with acts which interfere with the provisions contained in
article 9, I would like to draw his attention to article 27 in the Constitution which
places an obligation on Parliament to make laws declaring such interferences to be
offences punishable by law. The reason why such power is given to Parliament is because it
is felt that any offence which deals with the Fundamental rights should be uniform
throughout the territory of India, which would not be the case if this power was left to
the different States and Provinces to regulate as they like. My submission therefore is
that, so far as this point is concerned, the Constitution contains ample provision and
nothing more is really necessary.
With
regard to amendment No. 323 moved by Professor K. T. Shah, the object of which is to add " Scheduled Castes "
and " Scheduled Tribes "
along with women and children, I am afraid it may have just the opposite effect.
The
object which all of us have in mind is that the Scheduled Castes and Scheduled tribes
should not be segregated from the general public.
For
instance, none of us, I think, would like that a
separate school should be established for the Scheduled Castes
when there is a general school in the village open to the children of the entire
community. If these words are added, it will probably give a handle for a State to say, " Well, we are making special provision for the Scheduled
Castes ". To my mind they can safely say so by taking
shelter under the article if it is amended in the manner the Professor wants it. I
therefore think that it is not a desirable amendment.
Then
I come to my Friend Mr. Nagappa. He has asked me to explain
some of the words which have been used in this article. His first question was whether " shop " included
laundry and shaving saloon. Well, so far as I am concerned, I have not the least doubt
that the word ' shop ' does
include laundry and shaving place. To define the word '
shop ' in the most generic term one can think of is to
state that ' shop ' is a place where the owner is prepared
to offer his service to anybody who is prepared to go there seeking his service. A laundryman therefore would be a man sitting in his shop
offering to serve the public in a particular respect, namely, wash the dirty clothes of a
customer. Similarly, the owner of a shaving saloon would be sitting there offering his
service for any person who enters his saloon.
The
Honourable Shri B. G. Kher
(Bombay : General) : Does it
include the offices of a doctor and a lawyer ?
The
Honourable Dr. B. R. Ambedkar
: Certainly it will include anybody who offers his
services. I am using it in a generic sense.
I
should like to point out therefore that the word ' shop ' used here is not used in the
limited sense of permitting entry. It is used in the larger sense of requiring the
services if the terms of service are agreed to.
The
second question put to me was whether ' place of public resort ' includes burial grounds.
I should have thought that very few people would be interested in the burial ground,
because nobody would care to know what happens to him after he is dead. But, as my Friend
Mr. Nagappa is interested in the point should say that I have no doubt that a place of
public resort would include a burial ground subject to the fact that such a burial ground
is maintained wholly or partly out of public funds. Where there are no burial grounds
maintained by a municipality, local board or taluka board
or Provincial Government or village panchayat, nobody of
course has any right, because there is no public place about which anybody can make a
claim for entry. But if there is a burial ground maintained by the State out of State funds, then
obviously every person would have every right to have his body buried or cremated therein.
Then
my Friend asked me whether ponds are included in tanks. The answer is categorically in the
affirmative. A tank is a larger thing which must include a pond.
The
other question that he asked me was whether rivers, streams, canals and water sources
would be open to the untouchables. Wells, rivers, streams and canals no doubt would not
come under article 9 ; but they would certainly be covered
by the provisions of article II which make any interference with the rights of an
untouchable for equal treatment with the members of the other communities an offence.
Therefore my answer to my Friend Mr.Nagappa is that he need
have no fears with regard to the use of rivers, streams, canals, etc., because it is
perfectly possible for the Parliament to make any law under Article II to remove any such
disability if found.
Shri S. Nagappa :
What about the courses of water ?
The
Honourable Dr. B. R. Ambedkar :
I cannot add anything to the article at this stage. But I have no doubt that any action
necessary with regard to rivers and canals could be legitimately and adequately taken
under article II.
Shri
R. K. Sidhwa
: What about the interpretation of the word ' public ' ?
The
Honourable Dr. B. R. Ambedkar :
My Friend Mr. Sidhwa read out some definition from the Indian Penal Code of the word '
public ' and said that the word ' public ' there was used in a very limited sense as
belonging to a class. I should like to draw his attention to the fact that the word '
public ' is used here in a special sense. A place is a place of public resort provided, it
is maintained wholly or partly out of State funds. It has nothing to do with the
definition given in the Indian Penal Code.
Shri
Mahavir Tyagi (united
Provinces : General) : May I
know what is to happen to the amendments which have been declared by you as verbal
amendments ? Among them I fear there are some which really
aim at making a substantial change in the meaning of the clause or article concerned.
Mr.
Vice-President
: In that matter I am the sole judge. You have given me
discretionary power and I propose to exercise that power in my own way.
Shri
Mahavir Tyagi :
I want information. I do not dispute your judgement or your right. I only want to know
whether the sense of the House will be accommodated in regard to the amendments ruled out
or whether such amendments will be considered by the
Drafting Committee or some other body ? My suggestion is
that you will be doing well the House if you will kindly appoint a small sub-committee
which will go into these verbal amendments and find out whether some of them at least aim
at effecting a change in the meaning of the clause concerned. I do not dispute what you
said. They are out of order because you have ruled them as such. But even commas and fullstops have some value. My only request is that ...
Mr.
Vice-President :
May I suggest a better way which might appeal to you, a way which is better than the
appointment of a sub-committee ? Those who think that their
amendments are of some substance may approach the Drafting Committee directly themselves.
If they do so I am sure due consideration will be shown to them.
Shri
Mahavir Tyagi :
Now I am satisfied, Sir.
Mr.
Mohd. Tahir :
As the Honourable Dr. Ambedkar has answered my points to my satisfaction with regard to amendment No.
315,1 ask for leave to withdraw it.
The
amendment was, by leave of the Assembly, withdrawn.
Mr.
Vice-President :
Now I will put the rest of the amendments to the vote of the House. Dr. Ambedkar has accepted the first one.
[Following
amendments were adopted as per suggestion of Dr. Ambedkar.]
(1)" That for amendment No. 276 in the List of Amendments, the following be substituted:
'
That the second para. of clause (1) of article 9 be
numbered as new clause (la), and the words '
In particular ' in the new clause so formed, be deleted. ' "
Mr.
Vice-President
: The next one is No. 280 which, I understand
Dr.
Ambedkar has accepted. The question is :
(2)
No. 280
"
That in article 9, after the word ' sex ' wherever it occurs, the words ' place
of
birth ' be inserted. "
(3)
No. 286(by Mr. C. Subramaniam).
"That
in sub-clause (a) of clause (1) of article 9, after the words '
restaurants,
hotels
' the words ' Dharamsalas, Musafirkhanas
' be inserted."
(4)
No. 303(by Mr. Guptanath Singh).
"
That in sub-clause (b) of the second paragraph of clause
(1) of article 9,
after
the words ' wells, tanks ' the words ' bathing ghats ' be
inserted. "
(5)
No. 314
"
That in sub-clause (b) of the second paragraph of clause
(1) of article 9, for the words ' the revenues of the State
' the words ' State funds ' be substituted. "
[Rest
of the amendments were negatived.]
Article
9, as amended, was added to the Constitution.
[f1]
lbid., p. 520.
[f2]
CAD, (Official Report). Vol. VII, 22nd November 1948, p. 527.
[f3]
Ibid, 23rd November 1948, p. 329.
[f4]
Ibid., p. 529.
[f5]
Ibid., p. 532.
[f6]
Ibid, pp. 534-35.
[f7] CAD,
(Official Report), Vol. VII, 23rd November 1948, p. 538.
[f8]
CAD, (Official Report), Vol. VII, 22nd November1948, p. 538.
[f9]
Ibid., 540
[f10]
CAD, Vol. VII, 23rd November 1948. p. 540.
[f11]
Ibid., p. 550.
[f12] CAD.
Vol. VII, 23rd November 1948, pp. 552-53.
[f13]
CAD, Vol. VII, 24th November 1948, p. 555
[f14] CAD,
Vol. VII, 24th November 1948, pp. 566-67.
[f15] CAD,
Vol. VII, 24th November 1948, p. 568.
[f16]
Translation of Hindustani speech.
[f17]
CAD, Vol. VII, 24th November 1948, p. 580.
[f18]
Ibid.. p. 581.
[f19] CAD,
Vol. VII, 24th November 1948, p. 582.
[f20]
CAD, Vol. VII, 25th November 1948, pp. 585-86
[f21]
CAD, Vol. VII, 25th November 1948, p. 593.
[f22]
Ibid., p. 594.
[f23]
Ibid.. p. 595.
[f24]
CAD, Vol. VII, 25th November 1948, p. 596.
[f25]
lbid., pp. 595-605.
[f26]
lbid.,
p. 604.
[f27]
CAD, Vol. VII, 25th November 1948, p. 607..
[f28]
Ibid. 610.
[f29] CAD,
Vol. VII, 26th November 1948, p. 640.
[f30] CAD,
Vol. VII, 26th November 1948, p. 641.
[f31]
CAD, Vol. VII, 26th November 1948, p. 642.
[f32]
lbid., Vo. VII, 29th November 1948, pp. 644-45.
[f33] CAD,
Vol. VII, 26th November 1948, p. 645.
[f34]
CAD, Vol. VII, 29th November 1948, p. 646.
[f35]
Ibid.. p. 646.
[f36]
Translation of Hindustani speech.
[f37] CAD,
Vol. VII, 96th November 1948, pp. 653-54.
[f38] CAD,
Vol. VII, 29th November 1948, p.p. 660-64.