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
V
ARTICLE 15 |
ARTICLE 44 |
ARTICLE 45 |
ARTICLE 46 |
ARTICLE 47 |
ARTICLE 47 A |
ARTICLE 48 |
ARTICLE 49 |
ARTICLE 50 |
ARTICLE 51 |
ARTICLE 52 |
ARTICLE 53 |
ARTICLE 54 |
ARTICLE 55 |
ARTICLE 56 |
ARTICLE 57 |
ARTICLE 59 |
ARTICLE 60 |
[f1]
Mr. Vice-President
: With the permission of the House, I should like to revert
to an article left over: that is article 15. I have before
me the proceedings of the House from which it appearsthis was considered on the 6th
December lastthat general discussion had concluded and I had called upon Dr.
Ambedkar to reply. At that time it was suggested that efforts should be made to arrive at
some kind of understanding so that those who had submitted certain amendments might feel satisfied. I do not know the position now ; but we cannot wait any longer. Dr. Ambedkar, will you please
make the position clear ? If no understanding has been
arrived at, I would ask you to reply.
The
Honourable Dr. B. R. Ambedkar
: Mr. Vice-President, I must confess that
I
am somewhat in a difficult position with regard to article 15 and the amendment moved by
my Friend Pandit Bhargava for the deletion of the words " procedure according to law "
and the substitution of the words " due process ".
It
is quite clear to any one who has listened to the debate that has taken place last time
that there are two sharp points of view. One point of view says that " due process of law "
must be there in this article ; otherwise the article is a
nugatory one. The other point of view is that the existing phraseology is quite sufficient
for the purpose. Let me explain what exactly " due
process " involves.
The
question of " due process "
raises, in my judgement, the question of the relationship between the legislature and the
judiciary. In a federal constitution, it is always open to
the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in
reference to the powers of legislation which are granted by the Constitution to the
particular legislature. If the law made by a particular legislature exceeds the authority
of the power given to it by the Constitution, such law would be ultra vires and invalid. That is the normal thing
that happens in all federal constitutions. Every law in a federal constitution, whether
made by the Parliament at the Centre or made by the legislature of a State, is always
subject to examination by the judiciary from the point of view of the authority of the
legislature making the law. The ' due process ' clause, in my judgement, would give the judiciary the power
to question the law made by the legislature on another ground. That ground would be
whether that law is in keeping with certain fundamental principles relating to the rights
of the individual. In other word's, the judiciary would be
endowed with the authority to question the law not merely
on the ground whether it was in excess of the authority of the legislature, but also on
the ground whether the law was good law, apart from the question of the powers of the
legislature making the law. The law may be perfectly good and valid so far as the
authority of the legislature is concerned. But, it may not be a good law, that is to say,
it violates certain fundamental principles; and the
judiciary would have that additional power of declaring the law invalid. The question
which arises in considering this matter is this. We have no doubt given the judiciary the
power to examine the law made by different legislative bodies on the ground whether that
law is in accordance with the powers given to it. The question now raised by the
introduction of the phrase ' due process ' is whether the judiciary should be given the additional
power to question the laws made by the State on the ground that they violate certain
fundamental principles.
There
are two views on this point. One view is this: that the
legislature may be trusted not to make any law which would abrogate the fundamental rights
of man, so to say, the fundamental rights which apply to every individual, and
consequently, there is no danger arising from the introduction of the phrase ' due process
'. Another view is this :
that it is not possible to trust the legislature; the
legislature is likely to err, is likely to be led away by passion, by party prejudice, by
party considerations, and the legislature may make a law which may abrogate what may be
regarded as the fundamental principles which safeguard the
individual rights of a citizen. We are therefore placed in two difficult positions. One is
to give the judiciary the authority to sit in judgement over the will of the legislature
and to question the law made by the legislature on the ground that it is not good law, in
consonance with fundamental principles. Is that a desirable principle ? The second position is that the legislature ought to be
trusted not to make bad laws. It is very difficult to come
to any definite conclusion. There are dangers on both
sides. For myself I cannot altogether omit the possibility of a Legislature packed by
party men making laws which may abrogate or violate what we regard as certain fundamental
principles affecting the life and liberty of an individual. At the same time, I do not see
how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by
the Legislature and by dint of their own individual conscience or their bias or their
prejudices be trusted to determine which law is good and which law is bad. It is rather a
case where a man has to sail between Charybdis and Scylla and I therefore would not say anything. I would leave
it to the House to decide in any way it likes.
Mr.
Vice-President
: I shall now
put the amendments one by one to vote.
[In
all five amendments were
negatived and one was withdrawn. No amendment wax adopted. Article 15 wax adopted and added to the Constitution.]
****
[f2]
Mr. Vice-President
: We shall now take up article 44.
The
motion is : The article 44 form part of the Constitution.
I
am going to call over the amendments one by one.
Amendment
No. 1075Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar :
"
That in sub-clause (c) of clause (2) of article 44, for the
words " such member " the
words " the elected members of both Houses of
Parliament " be substituted. "
Before
proceeding to give the reasons for the amendment I would like with your permission to go
back for a minute to clause (2) of this article and explain the scheme as set out in
sub-clauses (a) and (b) of that clause. Honourable Members
will see that the President is to be elected by elected Members of the Tower House of each
State Legislature and by elected Members of both Houses of Parliament the two to
form a single electoral college. Sub-clause (1) of article 44 says that as far as
practicable there shall be uniformity in the scale of representation of the different
States in the election of the President. It would have been possible to achieve this
uniformity by the simple method of assigning each member of the electoral college one
vote. But this is not possible because of the disparity between the members of the
Legislature and their ratio to population that exists between the .different classes of States. In the case of States in Part I
of the First Schedule, article 149(3)fixes the scale of
representationone representative for every one lakh of population. In the case of States in Part III,
no such scale is laid down. The scale may vary from State to State. In one State, it may
be one representative for every l0,000 population. In
another, it may be one for every 20,000. That being the position, the value of the votes
cast in the election of the President by the members of the State Legislatures cannot be
measured by the simple rule of assigning one vote one value. The problem, therefore, is
how to bring about uniformity in the value of the votes
cast by members who do not represent the same electoral unit. The formula adopted to
obtain the value of a vote cast by an elected member of the Legislature of a State is to
divide the population of that State by the total number of elected members of the
Legislature of that State ; and to divide the quotient so
obtained by 1,000 and if the remainder is not less than 500 then add one to the dividend.
This is what is stated in sub-clauses (b) and (c) of clause (2).
I
now come to the amendment to sub-clause (c) which I have moved. With regard to the votes
cast by members of Parliament, we are confronted by the same problem, namely, the
disparity in the electoral units and consequent disparity in the value of the votes cast
by them. This disparity also arises from the same causes.
In the first place, the Council of States being elected by the State Legislature reflects
the same disparity which exists between States in Part I and States in Pan-Ill. In the
second place, there is the same disparity in the ratio of
seats to population as between States in Part I and Part
III in the election of members of Parliament.
There
are two ways of achieving uniformity in the voting by members of Parliament. One is to divide the
total number of votes capable of being cast by members of all the State Legislatures by
the total number of members of all the State Legislatures and the quotient will be the
number of votes which each member will be entitled to cast. The other method is to divide
the total number of votes capable of being cast by members of the Legislatures of all the
States by the total number of elected members of both Houses of Parliament. The first
method is set out in sub-clause (c) as it stands. The second method is embodied in the
amendment to sub-clause (c) which I have moved. The difference between the two methods
lies in this. In the first method all members of. the
electoral college taking part in the election of the President are treated on the same
footing in the matter of valuation of their votes. According to the second method the
members of Parliament are given equal strength in the matter of voting as the members of
the State Legislatures will have.
It is felt that members of Parliament should have a better voice than what sub-clause (c)
as it stands does. Hence the amendment.
****
[f3]
The Honourable Dr. B. R. Ambedkar
: Mr. Vice-President, Sir, I accept the amendment No. 25 of
List I to amendment No. 1083 moved by my friend Mr. Naziruddin
Ahmad. The other amendments I am sorry, I cannot accept.
Now, Sir in the course of the general debate, two questions have been raised. One is on
the amendment of Mr. Naziruddin Ahmad. It has been pointed
out by various speakers that it would be very wrong to base any election on the last
census viz., of 1941. I am sure there is a great deal of
force in what has been said by the various speakers on this point. It is true that the
1941 census was in some areas, at any rate, a cooked census;
a census was cooked by the local Government that was in existence, in favour of certain
communities and operated against certain other communities. But apart from that, it is
equally true that on account of the partition of India there has been a great change in
the population and its communal composition in certain provinces of India, for instance,
in the East Punjab, Bombay, West Bengal and to some extent in U.P.
also. In view of the fact that the Constitution provides for representation to various
communities in accordance with their ratio of population to the general population, it is
necessary that not only the total population of every particular province should be
ascertained but that the proportion of the various communities to which we have guaranteed
representation in accordance with their population should also be ascertained before the foundations of the Constitution are laid down in
terms of election.
I
have no doubt about it that the Government will pay attention to the various arguments
that have been made in favour of having a true
census of the people before the elections are undertaken. If I may say so, one of the
reasons which persuaded me to accept the amendment of my friend Mr. Naziruddin Ahmad is
that he used the word ' latest '
in preference to the word ' last '. I thought that the word ' last ' had a sort of a
local cotour in the sense that the last census may mean the periodical census which is
taken every ten years ; and the ' latest '[f4]
census means the census taken before any operation of election is started.
Mr.
Naziruddin Ahmad :
I did not use those words. I said the last preceding census.
The
Honourable Dr. B. R. Ambedkar
: Anyhow, I did not pay much attention to what he said. But
that certainly is my idea, that this clause shall not prevent the Government from having a
new census before proceeding to have elections for the new legislature. I think that
should satisfy most Members who have an apprehension on this point.
Shri
Mahavir Tyagi : May I take it that you give an assurance that such a census
will be taken ?
The
Honourable Dr. B. R. Ambedkar :
I cannot possibly give an assurance. But no government will
overtook the vast changes that have taken place in the composition and the total
population of the different provinces. We have guaranteed representation to a great
population consisting of various minorities. There has been a great deal of debate, as
Honourable Members know, over the question of weightage,
and we know that weightage has been disallowed. If we now have the elections and allow
them to take place and the seats to be
assigned on the existing basis of population, when as a matter of fact, that basis has
been lost by migrations, it might result in weightage to various communities, and no
representation to certain communities. Obviously in order to avoid such a kind of thing
and to see that no community has any weightage, undoubtedly, government will have to see
that the census is a proper census.
Pandit
Lakshmi Kanta Maitra
: I want to
know whether the Honourable Member means that no election under the new Constitution
should be held unless this census was taken.
Honourable
Dr. B. R. Ambedkar:
Well, it seems to me only a natural conclusion, because the seats for the elections cannot
be assigned unless the populations of the various communities are ascertained. Therefore,
that seems to me the logical conclusion, and a new census will be inevitable.
The
other question that was greatly agitated by Mr. Tyagi and by Begum Aizaz Rasul and certain other
members related to the election of the President. Now, there are two ways of electing the
President. One way is to elect him by what is called a bare majority of the House. If a
man got 51 per cent, he would be elected. That is one way of electing the President and
that is the simple and straightforward one. Now, with regard to that, it may just happen
that the majority party would be in a position to elect the President without the minority
party having any-voice in the election of the President.
Obviously no Member of the House would like the President to be elected by a bare majority
or by a system of election in which the minorities had no part to play. That being so, the
election of the President by a bare majority has to be eliminated, and we have to provide
a system whereby the minorities will have some voice in the election of the President. The
only method of giving the minorities a voice in the election of the President is, so to
say, to have separate electorates and to provide that the President must not only have a
majority but he must have a substantial number of votes
from each minority. But that again, seems to me, to be a proposition which we cannot
accept having regard to what we have laid down in the Constitution, namely, that there
shall be no separate electorates. The only other method, therefore, that remained was to
have a system of election in which the minorities will have
some hand and some play, and that is undoubtedly the system of proportional
representation, which has been laid down in the
Constitution.
Mr.
Naziruddin Ahmad
:There is to be transferability.
How can there be proportional representation when there is only one man to be elected ?
The
Honourable Dr. B. R. Ambedkar :
I really cannot go into this question in detail. To do so I will have to open a class and
lecture on the subject ; but I cannot undertake that task
at this stage. However, it is well-known and everybody knows how the system works.
Mr.
Vice-President
: These interruptions show that some Members are not aware
of the true nature of proportional representations. You need not pay attention to these
interruptions.
Maulana
Hasrat Mohani:
What are you going to do if there is only one candidate ?
The
Honourable Dr. B. R. Ambedkar:
If there is only one candidate, he will be elected unanimously (Laughter), and no question
of majority or minority arises at all.
The
other question asked by Mr. Tyagi was whether there was any
procedure for eliminating candidates.
Shri Mahavir Tyagi :
On a point of information, Sir.
The
Honourable Dr. B. R. Ambedkar :
No. I cannot yield. I am answering your point. Your point was whether there was a process
of elimination. The point before me is that I want that the election of the President or
the General representation involves elimination. Otherwise it has no meaning. Tile only thing that we have done is that instead of having
several proportional representations, we have provided one single proportional representation, in which every candidate at the bottom will be
eliminated, until we reach one man who gets what is called a "
quota ".
Shri
Mahavir Tyagi :
But in the Parliament the system of alternative votes is adopted.
The
Honourable Dr. B. R. Ambedkar
: Alternative is only another name for proportional.
Sir,
I have nothing further to say on this point.
Shri
Mahavir Tyagi :
Sir, I want to know.........
Mr.
Vice-President :
Mr. Tyagi, my difficulty is I cannot compel the Chairman of the Drafting Committee to
answer your questions. Neither can I compel him to clarify your doubts.
I
am going to put these amendments, one by one to vote.
I
put amendment No. 1075 to vote. (This was moved by Dr. Ambedkar).
[Following
two amendments were adopted and two others were negatived.]
( I ) That in sub-clause (c) of clause (2) of
article 44, for the words " such member " the words " the elected members of both Houses of Parliament " be substituted.
Following
amendment moved by Mr. Naziruddin Ahmad was
accepted
by Dr. Ambedkar.)
(2)
That for the Explanation to
article 44, the following Explanation be substituted:
"
Explanation.In this article, the expression '
population ' means the population as ascertained at the
last preceding census of which the relevant figures have been published."
Article
44, as amended, was adopted and added to the Constitution.
****
[f5]
Shri T. T. Krishnamachari
: Sir, the Honourable Member's amendment is substantially
the same as the article, and deals only with the substantive part of the clause and not
with the proviso. Is there any object in the Honourable Member moving his amendment ?
Mr.
Mohd. Tahir
: There is a difference in the meaning of the amendment and
the article, and I shall explain how.
The Honourable Dr. B. R. Ambedkar : It is not an
amendment at all : it is merely a transposition of the
words. There is no difference at all.
****
[f6]
Mr. Vice-President
: Amendment No. 1086 is disallowed as it is a verbal
amendment.
Amendments
Nos. 1087 and 1088 are identical. Dr. Ambedkar may move No. 1087.
The
Honourable Dr. B. R. Ambedkar
: Sir, I move:
That
in clause (a) of the proviso to article 45, for the word "
resignation " the word "
writing " be substituted.
****
[f7]
Mr. Vice-President
: As no Member has desired to speak on the general
discussion of this article, I propose to ask Dr. Ambedkar
to reply to the debate. I have received a slip requesting
for an opportunity to speak just now. It has come too late.
The
Honourable Dr. B. R. Ambedkar
: Sir, the only amendment that I accept is No. 1090 as
amended by Mr. Gupte's amendment. The others, I am sorry, I
cannot accept. There has been no point raised by any Member which requires any
explanation.
Mr.
Vice-President :
I am going to put the amendments to vote.
[In
all five amendment were negatived as they were not accepted by
Dr. Ambedkar. Only two
amendments as shown below were adopted.]
Mr.
Vice-President :
Now, the question is
That
in clause (a) of the proviso to article 45 for the word ' resignation ' the word ' writing
' be substituted.
[This
amendment moved by Dr. Ambedkar was adopted.]
****
Mr.
Vice-President
: Now I shall put amendment No. 1090 as modified by
amendment No. 26(A) standing in the name of Shri B. M. Gupte to the vote of the House.
The
question is :
That
(1) Article 45 be re-numbered as clause (1) of that article.
(2)
In clause (a) of the proviso to the said clause as so re-numbered for the words "
Chairman of the Council of States and the Speaker of the House of the People " the word ' Vice-President ' be substituted.
(3)
In the said article as re-numbered add the following clause:
" (2) Any resignation addressed to the Vice-President
under clause (a) of the proviso to clause (1) of this article shall forthwith be
communicated by him to the Speaker of the House of the People."
The
amendment was adopted.
Article
45, as amended, was adopted and added to the Constitution.
****
[f8]
The Honourable Dr. B. R. Ambedkar
: Mr. Vice-President, Sir, I am prepared to accept the
amendment of Mr. Sharma, i.e..
No. 1098, for the deletion of the words " once, but
only once ".
With
regard to Mr. Kamath's amendment, I think the proper time
when this matter could be discussed will be when the issue as to the qualifications of the person standing
for Presidentship is raised.
To
Mr. Tyagi I may say that in view of the deletion of the
words " once, but only once ",
his fears about the Vice-President are groundless.
Mr.
Vice-President
: I shall now put the amendments one by one to the vote.
Amendment No. 1098 The question is:
"
That in article 46 the words '
one, but only once ' be deleted. "
The
amendment was adopted.
Mr.
Vice-President
: Then amendment No. 1100.
Shri H.
V. Kamath : In view of Dr. Ambedkar's
statement, I do not want to press it.
The
amendment was, by leave of the Assembly, withdrawn.
Mr.
Vice-President :
Then Mr. Tyagi's amendment. It does not arise after Dr.
Ambedkar's speech, but some pandit of
technicalities might say that I did not put it to the vote.
So I want to know if Mr. Tyagi withdraws it or not.
Shri
Mahavir Tyagi :
Sir, I withdraw it.
The
amendment was, by leave of the Assembly, withdrawn.
Mr.
Vice-President :
The question is :
That article 46, as amended, form
part of the Constitution.
The
motion was adopted.
Article
46, as amended, was added to the Constitution.
[f9]
Mr. Vice-President
: Amendment No. 1109, Verbal ;
disallowed. Amendments numbers 1110 to 1112 are of similar import. The first of these may be moved. It stands in the name of Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar
: (Bombay : General) : Mr.
Vice-President,
Sir, I move:
"
That in clause (2) of article 47, and in Explanation to clause 2. for the words ' any office or position of emolument ', wherever they occur, the words '
any office of profit ' be substituted. "
Sir,
this amendment is merely intended to improve the language of the draft.
Mr.
Vice-President
: Amendment No. 1111. Should that be put to the vote ?
Shri
H. V. Kamath (C.
P. & Berar : General) : Dr. Ambedkar has stolen a
march over me; this does not arise.
Mr.
Vice-President
: Amendment No. 1112.
Shri
Mihir Lal Chattopadbyay
(West Bengal : General) :
That is already covered. Sir. (Amendment No. 1113 was not
moved.)
Mr.
Vice-President
: Amendment numbers 1114, 1115 and 1116 are verbal and are
disallowed.
Amendment
No. 1117, Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar
: Sir, I move:
"
That for sub-clause (a) of the Explanation to clause (2) of
article 47, .the following be substituted:
"
(a) he is the Governor of any State for the time being specified in Part I of the First
Scheduled or is a minister either for India or for any such
State ; or "
The
object of this amendment is to remove a disqualification that might arise on account of
the fact that a Governor of a State or a Minister is holding an office of profit under the
Crown. It is desirable that the Governor of a State as well as a Minister both at the
Centre and in the States should be permitted to stand for election and the rule of office
of profit under the Crown should not stand in their way.
[f10]
Mr. Vice-President:
Dr. Ambedkar.
Shri Syamanadan Sahaya (Bihar: General): Sir, I have......
Mr.
Vice-President : I
have called Dr. Ambedkar, I am sorry. But have you any amendment?
Shri
Syamanadan Sahaya:
No, I have no amendment, but......
Mr.
Vice-President :
If you had come to the front, you could have caught my eyes, because in that direction
there is a bad glare.
Shri
R. K. Sidhwa (C.
P. & Berar: General): But, Sir, we have not had
adequate discussion of this article. Only one member has spoken.
The
Honourable Dr. B. R. Ambedkar:
If they want further discussion, I have no objection.
Mr.
Vice-President : Dr.
Ambedkar has been good enough to say he does not mind if other Members also speak. Will
Shri Syamanandan Sahaya please come to the mike ?
Shri
R. K. Sidhwa:
Sir......
Mr.
Vice-President :
Mr. Sidhwa will always have the last word.
I
shall give him the last word.
Shri
Syamanandan Sahaya:
Mr. Vice-President, Sir, I am here to support the amendment which has been moved by Prof.
K. T. Shah.
The Honourable Dr. B. R. Ambedkar: Which amendment
of 'Prof. Shah ? Shri Syamanandan
Sahaya: Amendment No.
1124 which reads like this.
'
provided that any such Minister shall, before offering himself as candidate for such
election, resign his office '.
[f11]
The Honourable Dr. B. R. Ambedkar:
Mr. Vice-President, I regret that I am unable to accept any of the amendments which have
been moved by my Honourable Friend, Prof. K. T. Shah. There are three amendments which
have been moved by Prof. K. T. Shah. One of them relates to the Minister as a candidate
for the Presidency and the other two amendments relate to the President. I propose to
divide my observations in reply to his speeches on the three amendments into two parts. In
the first part I propose to devote myself to his amendment relating to the Minister.
Prof. K. T. Shah's amendment requires that if a person is holding the office of a
Minister and wishes to contest an election, the first condition must be that he shall resign his office as a Minister. In other words, ministership by itself would be a disqualification for election. It seems to me that Prof. K. T. Shah has not devoted sufficient attention to his amendment. In the first place, if a Minister resigns then this amendment is unnecessary. The second point which I think Prof. Shah has not considered and which seems to me to he very crucial is this. Supposing we accept his amendment that a Minister shall resign before he stands as a candidate for Presidentship, it is quite clear that between the period of the dissolution of the old Parliament and the time when the new Parliament assembles there can be no Ministers at all in charge of the administration. And the question that we have to consider is this. What is to happen to the administration during the period which is involved between the dissolution of the old Parliament and the assembly of the new Parliament ? Are we to hand over the administration to the bureaucrats or the heads of the administrative departments to carry on until the new Parliament is elected ? Or is there to be some kind of expedient whereby we are to go about and find a set of temporary Ministers who would take charge of Government during this short period of two or three months and thus forego the opportunity of contesting elections and becoming Ministers themselves in a new Parliament for the full period of their term ? It seems to me that the amendment of Prof. K. T. Shah, if accepted, would create complete administrative chaos in the Government of the country and therefore I submit......[f12]
Shri
L.
Krishnaswami Bharathi
(Madras : General) : It does
not refer to all Ministers: it only refers to one minister.
Shri
Mahavir Tyagi (United Provinces :
General) : And to .Deputy
Minister also.
The
Honourable Dr. B. R. Ambedkar :
Supposing every Minister wants to contest the election and therefore every Minister will
have to resign.
Prof.
K. T. Shah referred to the fact that the Ministers generally monkeyed with the election or
may manipulate or exercise their influence over the administration. That of course, to
some extent, is probably true. But in order to eliminate the influence which Ministers
exercise or might exercise on the elections the draft Constitution has provided under
certain articles (articles 289 to 292) for a special machinery to be in charge of what are
called Election Commissions both in the centre as well as in the Provinces, which would
take charge of the elections to Parliament as well as to the State legislatures. They are
to have complete superintendence, control and management of elections, so that whatever
possibility that there exists of Ministers exercising their influence over elections has been sought to be eliminated and consequently the
fear which Prof. K. T. Shah
entertains has really no place at all. I am therefore, for these reasons, unable to accept
his amendment.
Coming
to his amendments which deal with the President, his first amendment No. 1108 sets out
certain disqualifications such as conviction for treason, any offence against the State or
any violation of the Constitution, etc. The reason why, for
instance, we have not specifically mentioned in this particular article under discussion
these disqualifications, will be obvious if the Members recall that we have made other
provisions which would have the same object which Prof. Shah has in his mind. In this
connection I would like to draw the attention of the House to sub-clause (c) of article 48 which requires that " the President shall be a
person who shall be qualified for election to Parliament ".
Now the qualifications for election to Parliament are laid
down in article 83. Sub-clause (6') of article 83 leaves it
to the Parliament to add any disqualifications which Parliament may think it necessary or
desirable to add. It is therefore possible that the Parliament when it exercises the
powers which are given to it under sub-clause (e) of article 83 may think it desirable to include in the list
of disqualifications (it is empowered to add to those already enumerated under article 83)
some of the propositions which Prof. K. T. Shah has enunciated in his amendment. I
therefore submit that, although this particular clause does not refer to the
disqualifications mentioned by Professor Shah, it is quite possible and open to Parliament
to add them by any law that it may make in sub-clause (e) of 83.
Shri
H. V. Kamath :
On a point of clarification, Mr. Vice-President. if matters like ' unsound mind ' and 'undischarged insolvent ' are
found important enough to be embodied in the article itself, what is the point in leaving
this more vital and fundamental thing to Parliament and not giving it a place in the
Constitution itself?
The
Honourable Dr. B. R. Ambedkar : I
do not know. It is a mere matter of logic. It is perfectly possible to say that every
disqualification should be laid down here. It is perfectly possible to say that some
essential things may be laid down here and the others left to the Parliament. I cannot see
any inconsistency in that at all.
Now
coming to the last amendment of Professor Shah, No. 1125, I think a careful perusal of the
language he has used is very essential. What the Professor wants is that every person who
has to be a President shall, before assuming office, divest himself of his interest,
right, title, etc. in any business or
concern which is being sponsored by Government or carried on by Government either itself
or through any agency, and secondly that the Government should buy that interest from the
President. In regard to this, the first thing that strikes me is that this is one of the
most novel propositions that I have ever seen. I do not remember that there is any
Constitution anywhere in the world which lays down any such condition. I should have
thought that if any such condition was necessary it is in the Constitution of the United
States where the President has got an opportunity of exercising administrative
control, and administrative discretion and therefore the greatest opportunity of personal
aggrandisement exists there. And yet, the Constitution of the United States is absolutely
silent about any such condition at all. Professor Shah no doubt has tabled his amendment
because he looks upon it as a merely consequential amendment to the original proposition
which he had enunciated in the form of his amendment, namely, that the President should
have the same position as that of the President of the United States. But our Constitution
has completely departed from the position which has been assigned to the President of the
United States. As I have stated over and over again, our President is merely a nominal figurehead. He has no discretion ; he
has no powers of administration at all. Therefore, so far as our President is concerned,
this provision is absolutely unnecessary. If at all it is necessary it should be with
regard to the Prime Ministers and the other Ministers of State, because it is they who are
in complete control of the administration of the State. If any person under the Government
of India has any opportunity of aggrandising himself, it is either the Prime Minister or
the Ministers of State and such a provision ought to have been imposed upon them during
their tenure and not on the President.
The
third question that arises1 think it is a very concrete question is this.
Supposing we laid down any such condition ; is it possible
in the circumstances in which we are living, to obtain any candidate who would offer
himself for the Presidentship and subject himself to the conditions which have been laid
down by Professor Shah ? I doubt very much whether even
Professor Shah would offer himself to be President of the Indian Union if these conditions
are laid down.
Prof. K. T. Shah
: It is not my custom to
interrupt speakers at all. But may I give him this categoric
assurance that as far I myself am concerned, he can rest assured that there will be
complete fulfilment of these conditions. (Laughter).
The
Honourable Dr. B. R. Ambedkar
: I am glad. But this country could not carry on under the
assumption that Professor Shah would be the only candidate who would offer himself for
Presidentship. (Laughter) Safety lies in multiplicity of candidates. Therefore we have to
consider whether, from a practical point of view, we should have a sufficient number of
candidates offering themselves for this particular post. And I have not the least doubt
about it that, notwithstanding the very virtuous character of this amendment we should
practically be suspending this particular provision from the Constitution if we accept
this amendment.
For
these reasons I do not accept any of the amendments.
Shri H. V. Kamath :
Is Dr. Ambedkar opposed even to the disclosure of the candidate's interest or share ? Is he opposed even to a declaration like that ?
The
Honourable Dr. B. R. Ambedkar:
But that is not the amendment.
Shri
H.
V.Kamat: That
is part of the amendment.
The
Honourable Dr. B. R. Ambedkar:
But that is not the amendment.
Mr. Vice-President:
I will now put the amendments to vote one by one.
[Following
two amendments were adopted; three amendments were negatived.]
Mr.
Vice-President
: The question is :
"
That in clause (2) of article 47, and in Explanation to
clause 2, for the words ' any office or position of
emolument '. wherever they occur, the words ' any office of profit he substituted ".
Mr.
Vice-President:
The question is :
"
That for sub-clause (a) of Explanation to clause (2) of
article 47, the following he substituted:
'(a)
he is the Governor of any State for the time being specified in Part I of the First
Schedule or is a minister either for India or for any such State; or '."
Article
47, as amended, was adopted and added to the Constitution.
****
[f13]
Mr. Tajarnul Hussain
: ...... Now, Sir, in my opinion, this is a fair amendment
but I am afraid that this amendment will not be accepted by the Honourable Dr. Ambedkar. Professor Shah comes
forward with beautiful amendments but they are all lost because the Honourable Member in
charge of the Draft Constitution is not in favour of them. Therefore, with your
permission, I want to move a verbal amendment to this.
Mr.
Vice-President:
I cannot allow you to do that. In that case other people would also come forward with verbal amendments. You may make a suggestion for
the acceptance of Dr. Ambedkar.
Mr.
Tajarnul Husain
: My suggestion is this :
Mr. Shah's amendment does not say that when a person is elected President he should
declare and divest himself of all his personal property. He only says that he should
divest himself of his rights, shares or interests in any concern aided or supported by
government and that such rights, etc. should be taken over and held in trust for him by
the Government of India. I say that as it would come to the
Government of India, I thought that Dr. Ambedkar would accept it. If, Dr. Ambedkar as the
Law Minister of the Government of India is not going to accept it, then instead of the '
Government of India ', let it go to the President's wife and children. That is a very
simple matter..........
I
support the amendment and I move my oral amendment.
Mr.
Vice-President :
There is no amendment to be moved.
The
Honourable Dr. B. R. Ambedkar
: Sir, I have nothing to say.
[Amendment
of Prof. K. T. Shah was put to vote hut was negatived by the House.]
[f14]
Mr. Vice-President
: On going through the amendments one by one. I find that
amendments Nos. 1127, 1128 and 1130 are of similar import.
Amendment No. 1130 seems to be the most comprehensive and may be moved.
The
Honourable Dr. B. R. Ambedkar
: Mr. Vice-President, Sir,
I
move:
"
That in clause (1) of article 48 :
'
(a) for the words ' either
of Parliament or ' the words '
of either House of Parliament or of a House ' be substituted;
(b)
for the words ' member of Parliament or ' the words '
member of either House of Parliament or of a House ' be substituted ;
(c)
for the words ' in Parliament of such Legislature, as the case may be, ' the words ' in
that House ' be substituted '. "
There
was some defect in the original language and we have tried
to
improve
it.
Mr.
Naziruddin Ahmad (West
Bengal : Muslim) : Mr.
Vice-President, we have already decided by accepting certain rules that amendments which
are intended to beautify the language of an article will
not be allowed. Improving the language is not now one of the objectives of an amendment.
Before the amendment was moved, it looked like an imposing amendment, but Dr. Ambedkar has
clearly-admitted that it was intended merely to improve the
language of the article. In that view, although it has been moved, it need not be put to
the vote.
Mr.
Vice-President :
Certain powers have been given to the Chair and the Chair is going to exercise them in the
way which seems best.
****
[f15] The Honourable Dr. B. R. Ambedkar : Sir, I move:
''
That in clause (2) of article 48, for the words ' or
position of emolument ' the words ' of profit ' be
substituted. "
Sir,
this amendment is just for the sake of uniformity.
Mr.
Vice-President
: Amendment No. 1134. Do you want me to put this to the
vote ?
Shri H. V. Kamath :
I have been forestalled by Dr. Ambedkar; But I would like to move amendment No. 1135.
Mr.
Vice-President
: We have now only come up to amendment No. 1134. Amendment
No. 1135. You can move it.
Shri
H.
V. Kamath : I move. Sir,
"
That in clause (3) of article 48, the words ' the President
shall have an official residence and ' he deleted. "
That
is to say, the clause will read thus, if the amendment is accepted. " There shall be paid to the President such emoluments
and allowances, etc. etc............."
In
moving this amendment. Sir, I seek a little light from Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar
: Which amendment ?
Shri
H. V. Kamath
: Amendment No. 1135. My purpose in moving this amendment
before the House is to request Dr. Ambedkar to throw a
little light upon the necessity for incorporating such an insignificant, such a minor
detail in our Constitution....
[f16]
The Honourable Dr. B. R. Ambedkar
: Mr. Vice-President, Sir, I regret I cannot accept the
amendments which have been moved. Professor Shah's amendment No. 1138 seems to be somewhat
superfluous. It provides that the President shall be given Secretariat assistance. There
is no doubt about it that it will be done whether there is any provision in the
Constitution or not.
With
regard to his second amendment No. 1140 prescribing that a pension be given to the
President on his retirement, I find that while I am agreeable to the sentiment that he has
expressed that persons who serve the public by becoming members of Parliament undergo a
great deal of personal sacrifice and that it is desirable that they should not be left
unprovided for towards the end of their lives, it seems rather difficult to accept this
particular amendment also. According to him, every person
who becomes President and serves his term of office, which is 5 years, shall, at the end
of 5 years, be entitled to a pension. The second difficulty is that according to his
amendment his pension shall not be altered during his life-time. Now supposing for
instance one person who has been a President and has filled his full
terms of years and has obtained a pension under the amendment of Professor Shah, suppose
that he is again elected to be the President, what is the position ? The position is that he continues to get his salary as the
President in addition to that he will also be entitled to his pension.
We
would not be in a position even to reduce the pension in order to bring it down to his
salary. Therefore, in the form in which the amendment is moved, I do not think that it is
a practical proposition for anyone to accept. But there is no doubt about the general view
that he has expressed, that after a certain period of service in Parliament, Members,
including the President, ought to be entitled to some sort of pension, and I think it is a
laudable idea which has been given effect to in the British Parliament, and I have no
doubt about it that our future Parliament will bear this fact in mind.
Then
with regard to the question raised by Professor Kamath
about residential............ [f17]
Shri
H.
V. Kamath : Sir,
I am not Professor Kamath.
The
Honourable Dr. B. R. Ambedkar
: But he is quite entitled to be called Professor because
he speaks so often. (Laughter.)
Shri
H. V. Kamath
: God forbid I should ever become a professor, (Laughter.)
The
Honourable Dr. B. R. Ambedkar :
Well, my friend Mr. Kamath asked me to explain why we have included this provision here,
with regard to the official residence of the President, and he also twitted me on the fact that I was burdening
the Constitution by mentioning it and other small minutiae. It might be though that this
is a small matter and might not have been included in the Constitution. But the question I
would like to ask Mr. Kamath is this. Does he or does he not intend that the President
should have an official residence and that Parliament should make provision for it ? And is there very much
of a wrong if the proposition was stated in the Constitution itself ? If the intention is that.........
Shri
H. V. Kamath
: Sir, may I know whether the Prime Minister will or will
not have an official residence ?
The Honourable Dr. B. R. Ambedkar : Yes, this is merely a matter of logic. I want to know if he
does or does not support the proposition that the President should have an official
residence. If he accepts that proposition, then it seems to me a matter of small import
whether a provision is made in the Constitution itself or
whether the matter is left for the future Parliament to decide. The reason why we have
introduced this matter in the Constitution is that in the Government of India Act, in the
several Orders in Council which have been issued by the
Secretary of State under the authority conferred upon him by the Second Schedule of the
Government of India Act, official residences, both for the Governor-General and the
Governors have been laid down; and we have merely followed
the existing practice in incorporating this particular provision in the Constitution; and I do not think we have done any very great violence
either to good taste or done something which we do not intend to do.
Shri
H. V. Kamath :
On a point of clarification, Sir, may I know whether this particular clause of article 48
will stand in the way of the President being provided with more than one official
residence ? It speaks of the President having " an official residence. "
The
Honourable Dr. B. R. Ambedkar
: Not at all. There may be two official residences.
Then,
with regard to the amendment of Mr. Sarwate, No. 28, I
would like to say that this matter may have to be considered when we deal with the Constitution of the States which will accede to the Indian
Union. Today the situation is so fluid that it is very
difficult to make any provision of the sort which has been suggested by Mr. Sarwate.
Mr.
Vice-President :
The amendments will now be put to vote, one by one. Amendment No. 1130, standing in the
name of Dr. Ambedkar.
[All amendments of Dr. Ambedkar as
shown were accepted. Amendments standing in the name of Mr. Sarwate, Mr. Naziruddin Ahmed,
Mr. Kamath and Prof. K. T. Shah
were negatived. Article 48,
as amended, was adopted and added to the Constitution.]
****
[f18]
Mr. Vice-President
: We now come to article 49.
Shri
T. T. Krishnamachari
: Mr. Vice-President, Sir, I move:
"
That in article 49, after the words ' Chief Justice of India ' the
words ' or, in his absence the senior-most Judge of the
Supreme Court available ' be
inserted. "
Sir,
this is only making a provision in case the Chief Justice of India is not present, some
other Judge should do his function, and it is but proper that the senior-most judge of the
Supreme Court should do this function. Sir, I trust the House will accept the amendment
because it needs no further explanation.
Mr.
Vice-President
: Dr. Ambedkar, do you
accept that amendment ?
The
Honourable Dr. B. R. Ambedkar
: Yes, I do.
****
[f19]
Mr. Vice-President : Dr.
Ambedkar.
The
Honourable Dr. B. R. Ambedkar:
Mr. Vice-President, Sir, I am prepared to accept the amendment moved by Mr. T. T. Krishnamachari, that is
No. 1144, and also amendment No. 1146 by Mr. Kamath, as
amended by Mr. Tyagi's amendment.
With
regard to the first amendment, that moved by Mr. T. T.
Krishnamachari, not much argument is necessary. His amendments is certainly better than
the amendment that stood in my name.
With regard to the second amendment.
No. 1146, in view of the tact that I am prepared to accept it in the form amended by Mr. Tyagi, I do not think I am called upon to enter into the
merits of the question. But perhaps, it might be as well that I should say a few words as
to why the Drafting Committee itself did not introduce in
its original draft, the words " in the name of God. " Sir, I do not think that this matter was considered
fully by the Drafting Committee and therefore I cannot advance any adequate reason why
they did not originally put in those words.
So
far as I am concerned, I feel that this was a matter which required some consideration. If
the House will permit me, I would express my own views on
the matter. The way I felt about it is this. The word " God " so far as my
reading goes, has a different significance in different religious. Christians and Muslims
believe in God not merely as a concept, but as a force which governs the world and which
governs, therefore, the moral and spiritual actions of those who believe in God. So far as
Hindu theotogy was concerned, according to my reading and I may be wholly wrong, I
do not pretend to be a student of the subject1 felt that the word " Eswara " or to use a bigger word, "
Parmeswara " is merely a summation of an idea, of a concept. As I
said, to use the language of integral calculus, you put sums together and find out something which is common, and you call that "' S " which is merely a summation. There is nothing concrete
behind it. If in Hindu theology there is anything concrete, it is " Brahma ", " Vishnu ", " Mahesh ", " Siva ", " Shakti ". There are things
which are accepted by Hindus as forces which govern the world. It seems to me, that it
would have been very difficult for the Drafting Committee
to have proceeded upon this basis and to have introduced phraseology which would have
required several underlinings-God, below that Siva, below that Vishnu, below that
Brahma, below that Sakti and so on and so on. It is because of this embarrassment that we
left the situation blank, as you will find in the Drafting Committee.
Shri
A. V. Thakkar
[United State of Kathiawar (Saurashtra)
] : But there is one above
all.
The
Honourable Dr. B. R. Ambedkar
: I am, however, quite happy that this amendment has been
introduced. Now, some Members have raised objections to the amendment. They are afraid
that the introduction of the word God in the Constitution is going to alter the nature of
what has been proclaimed to be a secular State. In my judgement, the introduction of the
word God does not raise that question at all. The reason why the word God is introduced is
a very simple one. The Constitution lays down certain obligations upon the President.
Those obligations are obviously divisible into two categories, obligations for which there
is legal sanction and legal punishment provided, and there are obligations for which there
are no legal rules provided, nor any punishment is provided. Consequently, in every
constitution this question always arises. What is to be the sanction of such duties, such
obligations, as have been imposed upon a particular functionary for which it is not
possible by law to provide a criminal sanction, a penalty ?
It is obvious that unless and until we decide or we believe that these moral duties for
which there is no criminal or legal sanction are not mere
pious platitudes, we must provide some kind of sanction. To some people God is a sanction.
They think if they take a vow in the name of God, God being the governing force of the
Universe, as well as of their individual lives, that oath in the name of God provides the
sanction which is necessary for the fulfilment of obligations which are purely moral and
for which there is no sanction provided.
There
are people who believe that their conscience is enough of a sanction. They do not need
God, an external force, as a sentinel or a watchman to act by their side. They think a
solemn affirmation coming out of their conscience is quite enough of a sanction. If
Honourable Members have read the history of this matter which is embodied in the struggle
between Mr. Bradlaugh and the House of Commons, they will
realize that as early as 1880 or so, Mr. Bradlaugh insisted that he was a perfectly moral
being, that his conscience was quite active, and that if he took the oath his conscience
was enough of a sanction for him to keep him within the traces, so to say. After a long
struggle in the House of Commons, in which on one occasion Mr. Bradlaugh was almost beaten
to death by the Sergeant-at-Arms for trying to sit in the
House of Commons and taking part in its proceedings without
taking the oath to which he raised objection. Mr. Gladstone ultimately had to yield and to
provide an additional or alternative form which is called solemn affirmation. Therefore
the issue that is involved in this amendment has noticing
to do with the character of the State. Whether it is a secular or a religious State is a
matter quite outside the bounds of the issue raised. The only question raised is whether
we ought not to provide some kind of a sanction for the moral obligation we impose on the
President. If the President thinks that God is a mentor and that unless he takes an oath
in the name of God he will not be true to the duties he assumes, I think we ought to give
him the liberty to swear in the name of God. If there is another person with whom God is
not his mentor, we ought to give him the liberty to affirm and carry on the duties on the
basis of that affirmation.
I
therefore submit that the amendment is a good one and I am prepared to accept it.
Mr. Vice-President :
You have noticing to say on the amendments moved by Mr. Karimuddin and Prof. Shah ?
The
Honourable Dr. B. R. Ambedkar :
No, Sir.
[Amendment moved By T. T. Krishnamachari as mentioned before was adopted.] .
****
Mr.
Vice-President :
The next amendment to be put to the vote is No. 1146. But this is identical with Mr. Mahavir Tyagi's amendment and
if Mr. Kamath agrees I shall put this one to the vote.
Shri
H. V. Kamath : I have no
objection to Mr. Tyagi's amendment, as there is a mere
verbal difference between his and mine.
Mr.
Vice-President :
Then I shall put Mr. Tyagi's amendment, which is an
amendment to amendment No. 1146, to vote.
Shri
H. V. Kamath : No, Sir. My amendment as amended by Mr. Tyagi should he put to the vote.
Mr. Vice-President :
Yes, yes ; that is understood, I did not know that you were
such a stickler for forms; You break
so many forms systematically
The
question is :
"
That in article 49 for the words ' do solemnly affirm (or
swear) ', the following he substituted:
solemnly affirm
The
amendment was adopted.
Article
49, as amended, was adopted and added to the Constitution.
****
[f20]
Mr. Vice-President :
Amendment Nos. 1166, 1167, 1168
and 1169 are of similar import. Amendment No. 1167 may be moved. It stands in the name of
Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar (Bombay
: General) : Sir,
I
move:
"
That in sub-clause (b) of clause (2) of article 50, for the
words ' supported by ' the words ' passed by a majority of ' he substituted. "
Mr.
Vice-President :
Amendment No. 1166 standing in the names of Mr. Mohd. Tahir and Saiyid Jafar Imam.
Mr.
Mohd. Tahir
: I want to
discuss it. My amendment is quite different from Dr. Ambedkar's. They are not the same.
Mr.
Vice-President
: It can be put to the vote. You can take part in the
general discussion and make your point then. That will be much better, I think.
****
[f21]
Mr. Vice-President :
...Amendment No. 1177 may be moved.
The
Honourable Dr. B. R. Ambedkar
: Sir, I beg to move:
"
That in clause (4) of article 50, for the words ' passed, supported by ' the words ' passed by a majority of ' be substituted. "
****
[f22]
The Honourable Dr. B. R. Ambedkar
: Mr. Vice-President, Sir, of the many amendments which
have been moved to this article. I can accept only two. One is No. 1158 moved by my Friend, Mr. Gupte
providing of fourteen days' notice for the discussion of a motion to impeach the
President. The second amendment which I am prepared to accept is amendment No. 1160 moved
by my Friend Mr. Deo, as amended by Mr. T. T. Krishnamachari. I think the original provision in the Draft
Constitution did not lay down sufficient number of members as a condition precedent for
the initiation of the motion. I think the change provided by the amendment is for the
better and I am therefore prepared to accept it.
Now,
Sir, I come to the other amendments which I am sorry to say I have not been able to accept
but which I think call for a reply. The amendments which call for a reply are the
amendments moved by Prof. K. T. Shah Nos. 1151,1171,1173, 1176 and
1186. Sir, the amendments which have been moved by Prof. K. T. Shah refer to two
questions. The first is the scheme of impeachment which has been laid down in the Draft
Constitution and the second relates to the right of the President to appear and defend
through a lawyer before the House which is investigating the charge against the President.
So far as the second amendment of Prof. K. T. Shah is concerned, I do not see that there
is any necessity for any such amendment at all ; because
Prof. Shah referred to the article1 think it is sub-clause (4) or (3),it makes
ample provision for permitting the President not only to appear before the investigating
House, but also to be represented by any other person, namely, a lawyer. All that Prof. K.
T. Shah has done is to separate this particular part of that clause and to put it as
sub-clause (3) (a) in order to make it an independent proposition by itself. I do not
think that there is any such necessity for the device that he has adopted.
Now,
I come to the first part, namely, the drawbacks which he has shown in the scheme of
impeachment provided in the Draft Constitution. Before I proceed to reply to his points, I
think it is desirable that the House should have before it a clear picture of the
provisions of the scheme embodied in the Draft Constitution. Any one who analyses this
article will find that it embodies four, different propositions. Firstly, the motion for
impeachment may be initiated in either House, either in the Council of States or in the
House of the People. Secondly, such motion must have the support of a required number of
members. Thirdly, the House which has passed the motion for investigation shall not be
entitled to investigate the charge. And fourthly, that the House which has investigated
the charge, if it finds the President guilty must do so by a majority of two-thirds.
These
are the four propositions which have been embodied in this
particular article. Now Prof. Shah's proposition is that the Upper House should have
nothing to do with the impeachment of the President and that the jurisdiction to impeach
the President, to investigate and to come to its own conclusions must be solely vested in
the House of the People. I have not been able to understand the reasons why Prof. K. T. Shah thinks that the
Tower House is in a special way entitled to have this jurisdiction vested in it. After all
the trial of the President or his impeachment is intended to see that the dignity, honour
and the rectitude of the office is maintained by the person who is holding that particular
office. Obviously, the honour, the dignity and the rectitude of that office is not merely
a matter of concern to the Tower House, it is equally a matter of concern for the Upper
House as well. I do not, therefore, understand why the Upper Chamber which, as I said, is
equally interested in seeing that the President conducts himself in conformity with the
provisions of the Constitution should be ousted from investigating or entertaining a
charge of any breach of conduct on the part of the President in his integrity and it is
equally concerned as the House of the People. Prof. K. T. Shah felt so sure about the
correctness of his proposition that he said in the course of his argument that only those
who have been slavishly copying the other constitutions would have the courage to oppose
his amendments. I do not mind the dig which he has had at the Drafting Committee. As I
said in my opening address, the Drafting Committee in the interests of this country has
not been afraid of borrowing from other constitutions wherever they have felt that the
other constitutions have contained some better provisions than we could ourselves devise.
But I thought Prof. K. T. Shah forgot that if there was any person, so far as I am able to
see, who has practised slavish imitation of the Constitution of the United States, I
cannot point to any other individual except Prof. Shah. (Laughter). I thought his whole scheme which was just a
substitute for the scheme of Government embodied in the Draft Constitution was bodily
borrowed with commas and semi-cotons from the United States Constitution, and when he was
defeated on his main proposition, his worship of the United States Constitution has been
so profound, so deep, that he has been persisting in moving the other amendments which, as
he himself knows, are only consequential and have no substance
in themselves. I therefore do not mind the dig that he has had at the Drafting Committee.
The
other proposition which Prof. K. T.
Shah has sought to introduce in the Constitution is that there should be a concurrence of
the other House. He has evidently decided to accept the main scheme embodied in the Draft
Constitution. What he wants is that even if the one House which has investigated the
offence has come to a conclusion, that conclusion ought not to have effect unless it has been adopted by the other House. I cannot
understand why, for instance, the verdict of a juryand this is no doubt a sort of
jury, which will investigate and come to a conclusion1 do not understand why the
verdict of one House, which it would have come to after investigation should be submitted
to another jury. I have never known of any such principle or precedent at all. Secondly, I
do not understand what is to be the effect if the other House does not adopt. Is the other
House required to adopt only by bare majority or two-thirds majority ? Supposing the other House does not adopt the conclusion
which has been arrived at by one House, what is to be done ?
Obviously there will be a tie. Prof. K. T. Shah provided in my judgement, no remedy for
the dissolution of that tie. For these reasons, I am unable to accept any of the
amendments moved by Prof. K. T. Shah.
There
is another amendment which I might deal with because it is analogous to the amendments
moved by Prof. K. T. Shah, and that is amendment No. 1178 moved by my Friend, Mr. Mohd. Tahir. He says that it is
unnecessary to provide for a two-thirds majority for a charge of being guilty of violation
of the Constitution. He thinks that a bare majority is enough. Now, Sir, I think my
Friend, Mr. Mohd. Tahir has not taken sufficient notice of the fact that a motion for
impeachment is very different from a motion of no confidence. A motion of no confidence
does not involve any shame or moral turpitude. A motion of no confidence merely means that
the party does not accept or the House does not accept the policy of the Government.
Beyond that no other censure is involved in a no confidence motion. But, an impeachment
motion stands on a totally different footing. If a man is convicted on a motion for
impeachment, it practically amounts to the ruination of his public career. That being the
difference, I think it is desirable that such an important consequence should not be
permitted to follow from the decision of a bare majority. It is because of this difference
that the Drafting Committee provided that the verdict of guilty should be supported by a
two-thirds majority.
Now,
Sir, I come to the amendments of my Honourable Friend. Kazi
Syed Karimuddin. His first amendment which I propose to
take for consideration is amendment No. 1152. By this amendment he wants to add treason,
bribery and other high crimes and misdemeanours after the words, ' violation of the Constitution '.
My own view is this. The phrase ' violation of the Constitution ' is quite a large one and
may well include treason, bribery and other high crimes or misdemeanours. Because treason,
certainly, would be a violation of the Constitution. Bribery also will be a violation of
the Constitution because it will be a violation of the oath by the President. With regard
to crimes, the Members will see that we have made a different provision with regard to the
trial of the President for any crimes or misdemeanours that he may have made. Therefore,
in my view, the addition of these words, treason and bribery, are unnecessary. They are
covered by the phrase " violation of the Constitution ".
His
other amendment is amendment No. 1170, whereby Mr. Karimuddin seeks to provide that when
an investigation is being made into the charge of impeachment, the Chief Justice of India
shall preside. I have no quarrel with his proposition that any investigation that may be
undertaken by any House which happens to be in charge of the impeachment matter should
have the investigation conducted in a judicial manner, having regard to all the provisions
which are embodied in the Criminal Procedure Code and the Evidence Act. As I said, I have
no quarrel with his objective ; in fact, I share it. The
only point is this : whether this is a matter which should
be left for the two Houses to provide in the Rules of Procedure or whether it is desirable
to place this matter right in the Constitution in a definite and express manner. My friend
Mr. Karimuddin will see that in sub-clause (3) it is
provided that the House shall investigate, and therefore it is quite clear that both the
Houses of Parliament in making the rules of procedure will have to embody in it a section
dealing with the procedure relating to impeachment. Because, it may be, at one time the initiation may take place in the Upper Chamber
and trial may take place in the Tower Chamber, and vice
versa. So, both the Houses will have to have a section
dealing with this matter in the procedure of each House. That being so, there is nothing
to prevent the legislature from setting out in that part of the procedure of the two
Houses that wherever that investigation is made, either the Chief Justice shall preside or
some other judicial officer may preside, and therefore it seems to me that his object will
be achieved if what I submit is carried out by the procedural part of the Rules of the two
Houses. This provision is therefore quite unnecessary.
I
come to his third amendment. No. 1187. He wants that the
Constitution should lay down the disqualifications which must necessarily arise out of a
charge of guilt on impeachment. The language that he has borrowed I see is from the United
States Constitution. My view with regard to this matter is this. So far as membership of
the legislature is concerned, as I pointed out on an earlier occasion, the matter is
covered by the provision contained in article 83 which lays down the disqualifications for
membership of the legislature. As I then stated, it would be perfectly Possible for Parliament in laying down additional
disqualifications to introduce a clause saying that a person who has been impeached under
the Constitution shall not be qualified to be a member of the legislature. Therefore, by
virtue of article 83, it would be perfectly possible to exclude a President who has been
impeached from membership of the legislature.
The
only other matter that remains is the question of appointment to office. It seems to me
that there are several considerations to be borne in mind. It is quite true that the
provisions of the Draft Constitution leave this matter open. But, I think it would be
perfectly possible for Parliament, when enacting, a Civil Servants Act, as I have no doubt
the future Parliament will be required to do, to lay down the qualifications for public
service, their emoluments and all other provisions with regard to public service.
Obviously, it would be open to Parliament to say that any person who has been impeached
under the law of the Constitution shall not be a fit person to be appointed to any
particular post, either an ambassadorial post, outside the Government, or inside the
Government in any particular department. Therefore, that matter, I see, can also be
covered by parliamentary legislation.
Shri
H. V. Kamath :
Am I to understand that Dr. Ambedkar is personally in
favour of this amendments ?
The
Honourable Dr. B. R. Ambedkar:
Yes ; I think there is nothing in this amendment except the
fact that this was met by other ways.
Now,
Sir, the other question is this : is it necessary to have
these disqualifications laid down specifically and
expressly in the Constitution ? It seems to me that there is no necessity, for two
reasons. One is that no person who has been shamed in this manner by a public trial and
declared to be a public enemy would ever have the courage to offer himself as a candidate
for any particular post. Therefore, that possibility, I
think, is excluded by this consideration. The second is this :
whether the people of this country would be so wanting in sense of public duty and public service to elect any such
person, if he, as a matter of fact, stood. I think it would be too shameful an imputation
to the people of this country to say that it is necessary to make an express provision of
this sort in the Constitution because the people of this country are likely to elect
persons who are criminals, who have committed breach of trust and who have failed the
public in the performance of their public duties. I think these weaknesses are inherent in
all societies and no good purpose will be served by advertising them by putting them in
the Constitution. I therefore think that the amendments, however laudable they are, are
not necessary to be embodied in the Constitution.
Mr.
Vice-President :
The amendments which have been moved will now be put to vote.
[Following amendments were accepted by
Dr. Ambedkar and adopted by
the House.]
****
[f23]
Mr. Vice-President
: I now put to
vote amendment No. 1160 as modified by the amendment of Mr. T.T.
Krishnamachari.
The
question is:
"
That is sub-clause (a) of clause
(2) of article 50, for the words thirty members ', the words ' one-fourth
of the total number of members
' be substituted. "
The
amendment was adopted.
Mr.
Vice-President
: The question is :
"
That in sub-clause (a) of clause (2) of article 50, for the words ' after a notice ' the
words ' after at least 14 days notice ' he substituted. "
The
amendment was adopted.
Mr.
Vice-President : The question is :
"
That in sub-clause (h) of
clause (2) of article 50, for the words ' supported by '
the words ' passed by a majority of ' he substituted. "
The
amendment was adopted.
[In
all 15 amendments were negatived. One of them was discussed
as under.]
****
[f24]
Mr. Vice-President
: The question is: Amendment
No. 1185.
Mr.
Naziruddin Ahmad
: Sir, no reply
has been given to my amendment by Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar
: Sir, I said I oppose it.
Mr.
Vice-President
: The question is :
"
That in clause (4) of article 50, for the words ' date on which ', the words ' time when ' be substituted. "
The
amendment was negatived.
[Article
50, as amended wax adopted and added to the Constitution.]
****
****
[f25]
Mr. Vice-President
: Amendments Nos. 1195, 1196
and 1197 are disallowed, being verbal ones. Dr. Ambedkar.
The Honourable Dr. B. R. Ambedkar : Sir, I am sorry I cannot accept the amendment moved by Prof.
K. T. Shah. His amendment
seems to be covered altogether by article 54 (1). I tail to find any difference between
the amendment that he has moved and the provision contained in sub-clause (1) of article
54. I think if he considers this article, he will find that his amendment is unnecessary
and superfluous.
With
regard to the other amendment, the point of difference is that any one who is elected as a
result of the resignation and so on, should only occupy the Chair of the Presidentship
during the balance of the term, while the provision contained in the Constitution is to
the effect that if a person is elected as a result of resignation, death and so on, he
should continue to be the President for the full term prescribed by the Constitution. I
see no reason why the term of office of a person who has been elected to the office should
not be the full term prescribed by the Constitution and why he should be limited only to
the balance of the term. I therefore, see no justification for the amendment at all.
[All
the three amendments were negatived. Article 51 was adopted
to the Constitution. The motion was adopted. Article 51 wax
added to the Constitution.]
[Article
52 was adopted without discussion and added to the
Constitution.]
[f26]
Mr. Vice-President
: Then we come to article 53.
Amendment
No. 1201 is being disallowed because it has the effect of a negative vote. Amendments Nos. 1202 and 1203 seem to be identical and I therefore allow
amendment No. 1202 to be moved.
The
Honourable Dr. B. R. Ambedkar : Sir, I move:
"
That in article 53, for the words ' or position of emolument '
the words ' of profit ' be
substituted. "
Mr.
Vice-President
: Then No. 1204 standing in the name of Mr. Mohd. Tahir.
Mr.
Mohd. Tahir :
I am not moving it, Sir.
Mr.
Vice-President
: Then amendment No. 1205 standing in the name of Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar
: Sir, I move: "
That
to the proviso to article 53, the following be added:
'
and shall not be entitled to any salary or allowance payable to the Chairman of the
Council of States under article 79 of this Constitution. ' "
The
provision is intended to prevent making a double profit.
Mr.
Vice-President
: There is one amendment sent in by Mr. Naziruddin Ahmad, No. 33. This
is formal and is disallowed.
Now
I am putting these amendments to vote. Has any Member anything to say on these amendments ?
Shri
H. V. Kamath : On a point of information, Sir, with reference to amendment
No. 1205, will the Vice-President, when he acts as President, draw the salary and
allowances of the President or those of the Vice-President only ?
The
Honourable Dr. B. R. Ambedkar
: The salary of the President, salary of the office.
Mr.
Vice-President
: Then I am putting these amendments to vote. I shall put
No. 1202 standing in the name of Dr. Ambedkar.
The
question is :
"
That in article 53, for the words ' or position of emolument ' the words ' of profit ' he
substituted. "
The
amendment was adopted.
Mr.
Vice-President
: Do you want me to put your amendment to vote, Mr. Naziruddin Ahmad, which is
identical with the previous one ?
Mr.
Naziruddin Ahmad
: No, Sir.
Vice-President
: Then I shall put to vote amendment No. 1205.
The
question is : "
That
to the proviso to article 53, the following be added:
'
and shall not be entitled to any salary or allowance payable to the Chairman of the
Council of States under article 79 of this Constitution '. "
The
amendment was adopted.
Article
53, as amended, was adopted and added to the constitution.
[f27]
Mr. Naziruddin Ahmad
: Sir, I beg to move :
"That
in clause (1) of article 54, for the words 'date on which
', the words ' time when ' be substituted "
(Speech
of N.A.)
Mr.
Vice-President
: ...Amendments Nos. 1211
and 1210 are of similar import but the former is more comprehensive and may be moved.
The
Honourable Dr. B. R. Ambedkar
: Sir, I move :
"
That to clause (3) of article 54, the following be added:
' and be entitled to such privileges, emoluments and
allowances as may be determined by Parliament by law and until provision in that behalf is
so made, such privileges, emoluments and allowances as are
specified in the Second Schedule '."
This
merely makes good an omission in the Draft Constitution.
****
The Honourable Dr. B. R. Ambedkar : Mr. Vice-President, I find that in the amendments that have
been moved there are really three points which have been raised. One point which has been
raised by my friend Mr. Naziruddin Ahmad relates to time. We all know by now how very
meticulous my friend Mr. Naziruddin Ahmad is and he wants to have the Constitution
specifically state the time when a President frees himself from office and another persons
takes over that office. I do not know whether so much meticulousness is necessary in this
Constitution. However, what I find difficult to accept in the amendment which he has moved
is that he has not particularised what is system of timing which he has in mind. Is it the
Greenwich time, the Standard time, the Bombay or Calcutta time ?.........
[f28]
Mr.
Naziruddin Ahmad
: I mean the actual time of
appointment.
The
Honourable Dr. B. R. Ambedkar
: What is the time may be very different.
Unless
he prescribes the system I do not think that the introduction of the word 'time' introduces any greater
clarity or definiteness at all.
Secondly,
so far as this particular clause is concerned I find that
his amendment is quite unnecessary, because if he will read sub-clause (1) of article 54
he will see that it is stated " to fill such vacancy enters upon his office ". Surely the entering upon office will he at sometime in
the dayit may be midnight or it may be 12 oclock in the day. therefore time is
specified so to say by implication and this amendment is therefore quite unnecessary......[f29]
Mr.
Naziruddin Ahmad
: The clause provides that the Vice-President shall act
until the ' date ' on which
the new President enters upon his office and not the time when he does so.
The Honourable Dr. B. R. Ambedkar : Surely it will be sometime on some day on which he will
enter the office. He may probably consult an astrologer to find out what is the auspicious
moment. However, the amendment is quite unnecessary.
My
friend Mr. Kamath said that in replying to the debate on
the previous article I stated or rather in moving my amendment I stated that the
Vice-President when acting as the President shall have the same emoluments as the
President. He found some difficulty in reconciling that statement with the amendment which
I have moved, which gives the Parliament the power to fix the salary of the Vice-President
when acting as the President. If my Friend Mr. Kamath were to turn to page 161 of the
Draft Constitution he will find that there is a schedule fixing the salary of the
President and paragraph 5 of that schedule definitely provides for the salary of the
President. Surely when a person is acting as the President,
no matter at what early stage in life he has climbed to that post, he will be entitled to get that salary according to this Constitution. But
it was felt that it might be necessary to leave the matter to Parliament to fix a
different scale of salary for a person who is assuming the office of the President
expressly for a very short duration. Parliament may not like to give him the same salary,
because the tenure of his office is certainly not of the same duration as that of the
President himself. Consequently, if Parliament makes no provision, then he gets the salary
of the President. But Parliament may make provision to give him a different salary. It is for that purpose the amendment has been
moved.
Shri
H. V. Kamath :
Sir, may I invite the attention of my Honourable Friend Dr.
Ambedkar to article 48 clause (4) which lays down that the
emoluments and allowances of the President shall not be diminished during his term of
office ? Am I to understand that you make a distinction
between the Vice-President acting as President and the President ?
The Honourable Dr. B. R. Ambedkar : Yes,
certainly.
Shri
H.
V. Kamath : Sir,
Just now when I raised objection to an amendment to the last article. Dr. Ambedkar said that the Vice-President shall draw the
salary and allowances of the President while acting as President.
The Honourable Dr. B. R. Ambedkar : Unless Parliament otherwise provides, the Vice-Presidents
gets the salary of the President when he acts for him. There is no reason why Parliament
should not be given authority to fix the scales of pay of a President who may be there for
a short duration.
Pandit
Bhargava raised another point and that was to the effect
that there was no provision for the impeachment of the Vice-President when acting as
President. Obviously, when a Vice-President becomes the President, all the duties and
obligations which are imposed upon the President fall upon him without making any express
mention of the fact at all. If during his tenure of office as President, the
Vice-President commits any of the offences or acts which expose the President to the risk
of being impeached, he will not have any kind of immunity by reason of the fact that he is
either a Vice-President or is acting as President, pro
tempore. There is therefore no necessity for making any
provision for it.
Mr.
Naziruddin Ahmad
: Mr. Vice-President, may I ask ......
The Honourable Dr. B. R. Ambedkar : I do not submit myself to any cross examination at this
stage.
Mr.
Vice-Pesident
: Mr. Naziruddin Ahmad may
go back to his seat.
Mr.
Naziruddin Ahmad
: I want to draw the attention of the Honourable Dr.
Ambedkar to an oversight.
Mr.
Vice-President
: He refuses to
listen to it. What can I do ? I cannot compel him to
listen.
Mr.
Naziruddin Ahmad
: No one can compel him. The point is that in clause (3) of
article 54......
Mr.
Vice-President
: I am going to
put the amendment to vote. Dr. Ambedkar has said that he
will not give any reply.
Mr.
Naziruddin Ahmad
: I hope he will reconsider the matter.
Mr.
Vice-President
: I have not called upon Mr. Naziruddin Ahmad to speak.
Mr.
Naziruddin Ahmad
: Sir, I want only to draw the attention of the House to a
point which might influence the votes.
Mr.
Vice-President :
Why not do so at the third reading stage ? I am going to
put the amendment to
vote.
Mr.
Naziruddin Ahmad :
But, Sir, this is a matter of great importance.
Mr.
Vice-President
: You think so. May I ask you respectfully to go back to
your seat ?
Mr.
Naziruddin Ahmad
: I shall comply with your request.
Mr.
Vice-President
: I shall now
put amendment No. 1205 standing in the name of Mr. Naziruddin Ahmad to vote.
The
amendment was negatived.
[Amendment by Dr. Ambedkar as mentioned earlier
was adopted.]
Article
54, as amended, was adopted and added to the constitution.
****
[f30]
Mr. Vice-President
:... Amendment No. 1224 Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar : Sir, I move.
"
That in clause (2) of article 55, for the words ' either of Parliament or ' the
words ' of either House of
Parliament or of a House ' for the words ' member of
Parliament or ' the words ' member of either House of Parliament or of a House '. and for
the words ' in Parliament or such Legislature, as the case may be ' the words ' in that House ' be substituted respectively"
This
is only to improve the language. There is no point of substance
[f31]
Mr. Vice-President
: The next two amendments Nos.
1232 and 1233 are disallowed as being verbal.
Amendments
Nos. 1234 standing in the name of Dr. Ambedkar, 1235 and
1239 standing in the name of Mr. Naziruddin Ahmad are of similar import and I am, therefore asking Dr.
Ambedkar to move his amendment, which seems to me the most comprehensive one.
The
Honourable Dr. B. R.
Ambedkar :
Sir, I move :
"
That in clause (4) of article 55, for the words ' or position of emolument ' wherever
they occur the words ' of profit ' be substituted."
Mr.
Vice-President :
Amendment No. 1235 stands in the name of Mr. Naziruddin Ahmad. Does he want me to put this
to the vote ?
Mr.
Naziruddin Ahmad
: No , Sir, the previous
amendment will cover it.
Mr.
Vice-President
: What about amendment No. 1239 ?
Mr.
Naziruddin Ahmad
: The same consideration would apply.
(Amendment
No. 1236 was not moved.)
Mr.
Vice-President
: Amendments Nos. 1237 and 1238 are verbal and are,
therefore, disallowed.
Amendment
No. 1240 stands in the name of Dr. B. R. Ambedkar. He may move it.
The
Honourable Dr. B. R. Ambedkar :
Sir, I move :
"
That for sub-clause (a) of the Explanation to clause (4) of article 55, the following be
substituted :
'(a)
he is the Governor of any State for the time being
specified in Part I of the First Schedule or is a minister either for India or for any
such State, of."
****
[f32] Mr. Vice-President : Dr.
Ambedkar.
The Honourable Dr. B. R. Ambedkar (Bombay : General) : Mr.
Vice-President, Sir, I regret that I cannot accept any of the amendments which have been
moved, to this article. So far as the general debate is concerned, I think there are only
two amendments which call for any reply. The first is the amendment moved by Mr. Tahir, No. 1215. Mr. Tahir's
amendment proposes that the same system of election which has been prescribed for the
President should be made applicable to the election of the Vice-President. Now, Sir, the
difference which has been made in the Draft Constitution between the system of election to
the Presidentship and the system of election for the Vice-Presidentship is based upon the
functions which the two dignitaries are supposed to discharge. The President is the Head
of the State and his powers extend both to the
administration by the Centre as well as of the States. Consequently, it is necessary that
in his election, not only Members of Parliament should play their part, but the Members of
the State Legislatures should also have a voice. But when we come to the vice-President, Ms normal
functions are merely to preside over the Council of States. It is only on a rare occasion,
and that too for a temporary period, that he may be called upon to assume the duties of a
President. That being so, it does not seem necessary that the Members of the State
Legislatures should also be invited to take part in the election of the Vice-President.
That is the justification why the Draft Constitution has
made a distinction in the modes of election of these two
dignitaries.
The
second amendment which calls for a reply is the amendment moved by
Mr. Naziruddin Ahmad, No.
1219. He has suggested that the word " assembled " should be dropped. Now, the reason why the word "
assembled " has been introduced in this article is to
avoid election being conducted by posting of ballot papers. We all know that the postal
system, when used for the purpose of electioneering is liable to result in failure. Either
the ballot papers posted may not reach the destination and may be lost in transit; or it is perfectly possible for a candidate to send round
his agents in order to collect the ballot papers so that he may obtain possession of them,
sign them himself and send them on without giving any opportunity to the elector Himself
to exercise his freedom in the matter of election. It is for this reason that it was
decided that the election should take place when the two Houses assemble, so as to prevent
the misuse of posting. Now, I do not think that the calling together of a meeting of the
Members of Parliament for this purpose is going to introduce in practice a difficulty, or
is going to introduce any inconvenience. After all. Members
of Parliament would be meeting together for the purposes of legislation, and it would be
perfectly possible to have the election during one of those sessions. I, therefore, submit
that the original language is the more justifiable one, in view of the circumstances I
have mentioned.
Now,
Sir, with regard to Prof. K. T.
Shah's amendment that the disqualifications, with regard to the Vice-President should be
specified in the Constitution itself, that is a matter which I have already dealt with
when replying to a similar amendment moved by him with regard to the President, and I said
that this is a matter which could be provided for by law made by Parliament.
With
regard to the suggestion which has been made both by Mr. Bharathi
and Mr. Naziruddin Ahmad
about the use of the words " alternative vote",
all I can say is this. If it is merely a matter of change of language, it might be possible for the Drafting Committee at a later stage, to consider
this matter. But ifand I am not prepared to commit myself one way or the
otherthe alternative vote does involve some change of substance, then I am afraid it
will not be possible for us to consider this matter at any stage at all.
Mr.
Vice-President :
I am now going to put the different amendments to vote, one by
one.
[All
the amendments except those moved by Dr. B. R. Ambedkar were negatived. Dr. Ambedkar's amendments are mentioned earlier.]
Article
55, as amended, was adopted and added to the Constitution.
****
****
[f33]
The Honourable Dr. B. R. Ambedkar :
Mr. Vice-President, Sir, I regret my inability to accept any of the amendments that have
been moved to article 50.1 should, however, like to meet some of the points that have been
made by those who have moved the amendments. Sir, the first amendment was by Prof. Shall which laid down that provision should be made for pay and
pension for the Vice-President. This is a matter which Prof. Shah has also raised in
connection with the office of the President and I had
stated my objection to making any such provision in the Constitution itself.
The
Honourable Shri K. Santhanam
(Madras : General) : May I
point out that in Second Schedule express provision has been made ?
The
Honourable Dr. B. R. Ambedkar
: Having explained my position with
regard
to that point, I shall not repeat what I have said then. Coming to sub-clause (b) of article 56, various points have been raised. First of all a point has been raised that the
words ' bribery, corruption etc. ' should be added.
Personally I do not think that any such particular phrase is necessary. Want of confidence
is a very large phrase and is big enough to include any ground such as' corruption, bribery etc. Therefore that amendment, in my
judgement, is not necessary. The second point that has been made is that the removal of
the Vice-President should be governed by the same rules as the removal of the President viz.., that there
should be a majority of two-thirds. Now, Sir, with regard to that point. I would like to
draw the attention of the House that although the Constitution speaks of Vice-President,
he really is a Chairman of the Council of States. In other words, so far as his functions
are concerned, he is merely an opposite number of the Speaker Of the House of People.
Consequently in making a comparison or comment upon the provisions contained in sub-clause
(b) of article 56 those provisions should be compared with
the articles dealing with the removal of the Speaker and they are contained in article
77(c). If this article 56(b) is compared with the article 77(c), members will find that
the position is exactly identical. The same rules which are made applicable to the removal
of the Speaker are also made applicable to the removal of
the Vice-President who, as I have stated, is really another name for the Chairman of the
Council of States. Consequently, the requirement of
two-thirds majority is unnecessary.
And
then my friend Mr. Kamath has raised what I might call a
somewhat ticklish question. He said that sub-clause (b) of this article speaks of a majority, while when the
reference is made to the House of the People, no such phraseotogy is used. Now, the matter
is quite simple. Whenever we have said that a certain resolution has to be passed, it is
understood that it has to be passed by a majority of the House. It is only when a special
majority is mentioned that a reference is made to a majority and not otherwise. Now, I
quite agree that his argument is that although we do not mention or specify any particular
majority with respect to the Council of States, we have still used the phraseotogypassed by a majority. Why is this distinction made ? Why is this distinction between the phraseotogy used in
regard to the Council of States and in regard to the House of the People ? Now, the difference has been
made because of the word " then " occurring there. That word "
then " is important. The word " then " means all
members whose seats are not vacant. It does not mean members sitting or present and
voting. It is because of this provision, that all members who are members of Parliament
and whose seats are not vacant, that their votes also have to be counted, that we have
saidpassed by a majority of the then members.
Shri
H. V. Kamath : Does it mean the total number of members of the Council of
States ?
The
Honourable Dr. B. R. Ambedkar
: Yes, The word ' then ' is necessary.
Shri
H. V. Kamath
: On a point of clarification.
Sir. Yesterday in article 50, we used the phraseotogy '
passed by a majority ' in place of the two-thirds majority.
Should we not do the same thing here to make the meaning clearer '?
The Honourable Dr. B. R. Ambedkar : I shall explain it presently. The reason is due to the fact
that we have to use the word ' then ' which is intended to distinguish the case of members
present and voting, and members who are members of the House whose seats are not vacant,
and voting.
Shri
H.
V. Kamath : Am I
to understand that unless otherwise specified, when you say a resolution is passed or
adopted, it means that it is by a simple majority ?
The
Honourable Dr. B. R. Ambedkar
: Yes. Now, coming to the point raised by my friend Mr. Tahir, amendment No. 1266. If I understood him correctly, what
he says is that the resolution of no confidence should require to be passed by two-thirds.
This may be good or it may be bad. I cannot say. All I can say is that this provision is
also on a par with the provision regarding the want of confidence in the Speaker. There
also we do not require that it should be passed by two-thirds majority or two-thirds of
the members of the House.
Then,
coming to the amendment of my friend Mr. Naziruddin Ahmad,
who wants that in clause (c) after the word " term " words such
as resignation etc. should be inserted. This amendment is absolutely
unnecessary, because this article does not make any provision for filling casual
vacancies.
There
is no necessity for making any provision for casual vacancies because under article 75,
sub-clause (1) there is always the Deputy Chairman who is there to step in whenever there
is any casual vacancy. Consequently such an amendment is unnecessary.
Sir,
I hope that with this explanation, the House will accept the article as it stands.
Mr.
Vice-President
: I may now put
the amendments, one by one to vote.
[All
the amendments were negatived. Article 56 was adopted and
added to the Constitution.]
****
[f34]
The Honourable Dr. B. R. Ambedkar :
I am afraid Prof. K. T. Shah
has not considered the matter as fully as he ought to have before moving his amendment.
The omission of the Vice-President from article 57 is a very deliberate one, because as my
friend Mr. Tajarnul Husain has
just now pointed out, his main functions, which are those of the Chairman of the Council
of States, have been amply provided for by article 75 (1) where there is a Deputy Chairman
who will function in his absence. It is therefore unnecessary to introduce any such
amendment in article 57.
My
friend Prof. Shah said that I was really borrowing very liberally from the amendments of
other friends whenever I found that the Draft was in some way defective. I think Prof. K.
T. Shah, if I may say so, has indirectly paid me a compliment because, as Emerson has
said, " A genius is the most indebted man " and I am certainly most indebted to my friends.
Mr. Vice-President :
I am now putting the amendments to vote.
The
question is :
"
That in article 57, after the words ' the functions of
President ' the words ' or
Vice-President ' be added. "
The
amendment was negatived.
Mr.
Vice-President
: There are no other amendments.
The
question is :
"
That article 57, stand part of the Constitution. "
The
motion was adopted.
Article
57 was added to the Constitution.
[Article 58
was added to the Constitution without any amendment.]
[f35]
Mr. Vice-President
: Does Dr. Ambedkar wish to
say anything on this amendment moved by Mr. Tajarnul Husain ?
The
Honourable Dr. B. R.
Ambedkar
: Yes, Sir. It might be desirable that I explain in a few
words in its general outline the scheme embodied in article 59. It is this : the power of commutation of sentence for offences enacted, by the Federal Law is vested in the President of the Union.
The power to commute sentences for offences enacted by the State Legislatures is vested in
the Governors of the State. In the case of sentences of death, whether it is inflicted
under any law passed by Parliament or by the law of the States, the power is vested in
both, the President as well as the State concerned. This is the scheme.
With
regard to the amendment of my friend Mr. Tajarnul Husain,
his object is that the power to commute sentences of death permitted to the Governor
should be taken away. Now, sub-clause (3) embodies in it
the present practice which is in operation under which the power of commuting the death
sentences is vested both in the Governor as well as in the President. The Drafting
Committee has not seen any very strong arguments for taking away the power from the
Governor. After all, the offence is committed in that particular locality. The Home
Minister who would be advising the Governor on a mercy petition from an offender sentenced
to death would be in a
better position to advise the Governor having regard to his intimate knowledge of the
circumstances of the case and the situation prevailing in that area. It was therefore felt
desirable that no harm will be done if the power which the Governor now enjoys is left
with him. There is, however, a safeguard provided. Supposing in the case of a sentence of
death the mercy petition is rejected, it is always open under the provisions of this
article, for the offender to approach the President with another mercy petition and try
his luck there. I do not think there is any great violation of any fundamental principle
involved or any inconvenience that is likely to arise if the provisions in the draft
article are retained as they are.
Mr.Vice-President
:
Now I will put the amendment of Mr. Tajarnul Husain to
vote. The question is : " That clause (3) of article
59 be deleted. " The amendment was negatived.
Mr. Vice-President : I shall now put article 59 to vote.
The question is :
"
That article 59 stand part of the Constitution. " Article
59 was adopted and added to the Constitution.
[f36]
The Honourable Dr. B. R. Ambedkar
(Bombay : General) : Mr.
Vice-President, Sir, I am sorry that I cannot accept either of the two amendments which
have been moved to this proviso, but I shall state to the House very briefly the reasons why I am not in a position to accept these
amendments. Before I do so, I think it is desirable that the House should know what
exactly is the difference between the position as stated in the proviso and the two
amendments which are moved to that proviso. Taking the proviso as it stands it lays down
two propositions. The first proposition is that generally the authority to execute laws
which relate to what is called the Concurrent field, whether the law is passed by the
Central Legislature or whether it is passed by the Provincial or State Legislature, shall
ordinarily apply to the Province or the State. That is the first proposition which this
proviso lays down. The second proposition which the proviso lays down is that if in any
particular case Parliament thinks that in passing a law which relates to the Concurrent field, the execution ought to be retained by the Central
Government, Parliament shall have the power to do so. Therefore, the position is this ; that in all cases,
ordinarily, the executive authority so far as the Concurrent List is concerned will rest
with the units, the Provinces as well as the States. It is
only in exceptional cases that the Centre may prescribe that the
execution of a Concurrent law shall be with the Centre. The amendments which have been
moved are different in their connotation. The first amendment is that the Centre should
have nothing to do with regard to the administration of a law which relates to matters
placed in the Concurrent field. The second amendment which has been moved by my Honourable
Friend, Pandit Kunzru, although it does not permit the
Centre to take upon itself the execution of a law passed in the Concurrent field, is
prepared to permit the Centre issue directions, with regard to matters falling within
Items 25 and 37, to the Provincial Governments. That is the difference between the two
amendments.
The
first amendment really goes much beyond the present position as set out in the Government
of India Act, 1935. As Honourable Members know, even under the present Government of India
Act, 1935, it is permissible for the Central Government at least to issue directions to
the Provinces, setting out the method and manner in which a particular law may be carried
out. The first amendment I say even takes away that power which the present Government of
India Act, 1935, gives to the Centre. The amendment of my Honourable Friend, Pandit Kunzru wishes to restore the position back to what it now
found in the Government of India Act, 1935.
Pandit
Hirday
Nath Kunzru : I go a little beyond that. The second part of my amendment
goes beyond any power which the Government of India now enjoy under the Government of
India Act, 1935.
The
Honourable Dr. B. R. Ambedkar :
Well, that may be so. That I said is the position as I understand it. Now, Sir, I will
deal with the major amendment which wants to go back to a
position where the Centre will not even have the power to issue directions, and for that
purpose, it is necessary for me to go into the history of this particular matter. It must
have been noticed-and I say it merely, as a matter of fact and without any kind of
insinuation in it at all,that a large number of members who have spoken in favour of
the first amendment are mostly Muslims. One of them, my Friend Mr. Pecker, thought that it was a sacred duty of every Member of
this House to oppose the proviso. I have no idea..........[f37]
B.
Pecker Sahib Bahadur
: I have not
said that, Sir. I only said that it is the duty of every Member to act according to Ins
conscience.
The
Honourable Dr. B. R. Ambedkar:
By which I mean, I suppose that every Member who has conscience must oppose the proviso.
It cannot mean anything else. (Laughter.)
B.
Pecker Sahib Bahadur
: Certainly not.
The Honourable Dr. B. R. Ambedkar : Now, Sir, this peculiar phenomenon of Muslim members being
concerned in this particular proviso, as I said, has a history behind
it, and I am sorry to say that my Honourable Friend, Pandit Kunzru forgot altogether that
history ; I have no doubt about it that he is familiar with
that history as I am myself.
This
matter goes back to the Round Table Conference which was held in
1930.
Everyone who is familiar with what happened in the Round Table Conference, which was held
in 1930 will remember that the two major parties who were represented in that Conference,
namely the Muslim League and the Indian National Congress, found themselves at logger
heads on many points of constitutional importance.
One
of the points on which they found themselves at logger-heads was the question of
provincial autonomy. Of course, it was realised that there could not be complete
provincial autonomy in a Constitution which intended to preserve the unity of India, both
in the matter of legislation and administration. But the Muslim League took up such an
adamant attitude on this point that the Secretary of State had to make certain concessions
in order to reconcile the Muslim League to the acceptance of some sort of responsible
Government at the Centre. One of the things which the then Secretary of State did was to
introduce this clause which is contained in Section 126 of the Government of India Act
which stated that the authority of the Central Government, so far as legislation in the
concurrent field was concerned, was to be strictly limited to the issue of directions and
it should not extend to the actual administration of the matter itself. The argument was
that there would have been no objection on the part of the Muslim League to have the
Centre administer a particular law in the concurrent field if
the Central Government was not likely to be dominated by
the Hindus. That was so expressly stated, I remember, during the debates in the Round
Table Conference. It is because the Muslim League Governments which came into existence in
the provinces where the Muslims formed a majority, such as for instances in the North-West
Frontier Province, the Punjab, Bengal and to some extent Assam, did not want it in the
field which they thought exclusively belonged to them by reason of their majority, that
the Secretary of State held to make this concession. I have no doubt about it that this
was a concession. It was not an acceptance of the principle that the Centre should have no
authority to administer a law passed in the concurrent field. My submission therefore is
that the position stated in Section 126 of the Government of India Act, 1935, is not to be
justified on principle; it is justified because it was a
concession made to the Muslims. Therefore, it is not proper to rely upon Section 126 in drawing any support for the arguments which have been
urged in favour of this amendment.
Sir,
that the position stated in Section 126 of the Government of India Act was fundamentally
wrong was admitted by the Secretary of State in a subsequent legislation which the
Parliament enacted just before the war was declared. As Honourable Members will remember,
Section 126 was supplemented by Section 126-A by a law made by Parliament just before the
war was declared. Why was it that the Parliament found it necessary to enact Section 126-A
? As you will remember Section 126-A is one of the most
drastic clauses in the Government of India Act so far as concurrent legislation is
concerned. It permits the Central Government to legislate not only on provincial subjects,
but it permits the Central Government to take over the administration both of provincial
as well as concurrent subjects. That was done because the Secretary of State felt that at
least in the war period, Section 126 might prove itself absolutely fatal to the
administration of the country. My submission therefore is that Section 126-A which was enacted for emergency purposes is applicable not
only for an emergency, but for ordinary purposes and ordinary times as well. My first
submission to the House therefore is this ; that no
argument that can be based on the principle of Section 126
can be valid in these days for the circumstances which I have mentioned.
Coming
to the proviso, .........[f38]
B. Pocker Sahib Bahadur : With your permission. Sir,
may I just correct my learned Friend ? This Constitution is
being framed for the present Indian Union in which there is not a single province in which
the Muslims are in a majority and therefore there is absolutely no point in saying that it
is the Muslim members that are moving this amendment in the interests of the Muslim
League. It is a very misleading argument based on a misconception of fact and the
Honourable Minister for Law forgets the fact that we in the
present Indian Union, Muslims as such, are not in the least to be particularly benefited
by this amendment.
The
Honourable Dr. B. R. Ambedkar
: I was just going to say that although that is a statement
of fact which I absolutely accept, my complaint is that the Muslim members have not yet
given up the philosophy of the Muslim League which they ought to. They are repeating
arguments which were valid when the Muslim League was there and the Muslim Provinces were
there.
They
have no validity now. I cannot understand why the Muslims are repeating them. (Interruption.)
Mr.
Vice-President
: Order, order.
The
Honourable Dr. B. R. Ambedkar
: I was saying that there is no substance in the argument that we are departing from the
provision contained in Section 126 of the Government of
India Act. As I said, that section was not based upon any principle at all.
In
support of the proviso, I would like to say two things. First, there is ample precedent
for the proposition enshrined so to say in this proviso. My Honourable Friend Mr. T. T. Krishnamachari has dealt at some length with the position as
it is found in various countries which have a federal Constitution. I shall not therefore
labour that point again. But I would just like to make one reference to the Australian
Constitution. In the Australian Constitution we have also what is called a concurrent field of legislation. Under the Australian Constitution it is
open to the Commonwealth Parliament in making any law in the concurrent field to take upon
itself the authority to administer. I shall just quote one
short paragraph from a well known book called "
Legislative and Executive Powers in Australia " by a
great lawyer Mr. Wynes. This is what he says ::
"
Lastly, there are Commonwealth Statutes. Letroy states that
executive power is derived from legislative power unless there be some restraining
enactment. This proposition is true, it seems, in Canada, where the double enumeration
commits to each Government exclusive legislative powers, but is not applicable in
Australia. Where the legislative power of the Commonwealth is exclusive-e.g., in the
case of defencethe executive power in relation to the subject of the grant inheres
in the Commonwealth, but in respect of concurrent powers, the executive function remains
with the States until the Commonwealth legislative power is exercised."
Which
means that in the concurrent field, the executive authority
remains with the States so long as the Commonwealth has not exercised the power of making
laws which it had. The moment it does, the execution of that
law is automatically-transferred to the Commonwealth.
Therefore, comparing the position as setout in the proviso with the position as it is found in Australia, I
submit that we are not making any violent departure from any federal principle that one
may like to quote. Now, .Sir, my second submission is that
there is ample justification for a proviso of this sort, which permits the Centre in any
particular case to take upon itself the administration of certain laws in the Concurrent
List. Let me give one or two illustrations. The Constituent Assembly has passed article
II, which abolishes untouchability. It also permits
Parliament to pass appropriate legislation to make the abolition of untouchability a reality. Supposing the Centre makes a law
prescribing a certain penalty, certain prosecution for obstruction caused to the
untouchables in the exercising of their civic rights. Supposing a law like that was made,
and supposing that in any particular province the sentiment in favour of the abolition of
untouchability is not as genuine and as intense nor is the Government interested in seeing
that the untouchables have all the civic rights which the Constitution guarantees is it
logical, is it fair that the Centre on which so much
responsibility has been cast by the Constitution in the matter of untouchability, should
merely pass a law and sit with folded hands, waiting and
watching as to what the Provincial Governments are doing in the matter of executing all
those particular laws ? As everyone will remember, the
execution of such a law might require the establishing of
additional police, special machinery for taking down if the offence
was made cognizable, for prosecution and for all costs of administrative matters without
which the law could not be made good. Should not the Centre which enacts a law-of this character have the authority to execute it ? I would like to know it there is anybody who can say that on
a matter of such vital importance, the Centre should do nothing more than enact a law.
Let
me give you another illustration. We have got in this country the practice of child
marriage against which there has been so much sentiment and so much outcry. Laws have been
passed by the Centre. They are left to be executed by the provinces. We all know what the
effect has been as a result of this dichotomy between legislative authority resting in one
Government and executive authority resting in the other. I understand (and I think my
friend Pandit Bhargava who has been such a staunch
supporter of this matter has been staling .always in this House) that notwithstanding the legislation,
child marriages are as rampant as they were. Is it not desirable that the Centre which is
so much interested in putting down these evils should have some authority for executing
laws of this character ? Should it merely allow the
provinces the liberty to do what they liked with the legislation made by Parliament with
such intensity of feeling and such keen desire of putting it into effect ? Take, for instance, another caseFactory Legislation. I
can remember very well when I was the Labour Member of the Government of India, cases
after causes in which it was reported that no Provincial
government or at least a good many of them were not prepared to establish Factory
Inspectors and to appoint them in order to see that the Factory Laws were properly
executed. Is it desirable that the labour legislations of the central Government should be
mere paper legislations with no effect given to them ? How
can effect be given to them unless the centre has got some authority to make good the
administration of laws which it makes ? I therefore submit
that having regard to the cases which I have citedand I have no doubt Honourable
Members will remember many more cases after their own experiencethat a large part of
legislation which the centre makes in the Concurrent field remains merely a paper
legislation, for the simple reason that the Centre cannot execute its own laws. I think it
is a crying situation which ought to be rectified which the
proviso seeks to do.
There
is one other point which I would like to mention and it is this. Really speaking, the
Provincial Governments ought to welcome this proviso because there is a certain sort of
financial anomaly in the existing position. For the Centre to make laws and leave to
provinces the administration means imposing certain financial burdens on the provinces
which is involved in the employment of the machinery for the carrying out of those laws.
When the centre takes upon itself the responsibility of the executing of those laws, to
that extent the provinces are relieved of any financial burden and I should have thought from that point of view this proviso should be a welcome
additional relief which the provinces seek so badly. I therefore
submit. Sir, that for the reasons I have given, the proviso
contains a principle which this House would do well to endorse. (Cheers).
[All
4 amendments were negatived. Article 60 was adopted without any amendment and
added to the Constitution.]
[f1] CAD.
Vol. VII, 13th December 1948, pp. 999-101.
[f2] CAD,
Vol. VII, 13th December 1948, pp. 1001-03.
[f3] CAD,
Vol. VII, 13th December 1948, pp.1016-18.
[f4]
Misprinted as ' last' in the debates..
[f5] CAD,
Vol. VII, 13th December 1948, p. 1019.
[f6]
CAD, Vol. VII, 13th December 1948, pp. 1019-20.
[f7]
Ibid., p. 1022.
[f8]
CAD, Vol. VII. 13th December 1948, p.1024.
[f9] CAD,
Vol. VII, 27th December 1948, p. 1027.
[f10]
CAD, Vol. VII, 27th December 1948, p. 1031.
[f11]
Ibid.. pp. 1034-37.
[f12] Dots in
the original debates indicate interruption.
[f13] CAD,
Vol. VII, 27th December 1948. p. 1040.
[f14]
CAD. Vol. VII. 27th December 1948 p. 1040.
[f15]
Ibid.. p. 1042.
[f16] CAD,
Vol. VII, 27th December 1948, pp. 1044-46.
[f17] Dots in
the original debates indicate interruption.
[f18]
CAD, Vol. VII, 27th December 1948, p. 1047.
[f19]
CAD, Vol. VII. 27th December 1948, pp. 1060-62.
[f20]
CAD, Vol. VII, 28th December 1948, p. 1065.
[f21]
Ibid., p. 1067
[f22]
Ibid., pp. l079-82.
[f23] CAD.
Vol. VIII, 28th December 1948, p. 1083.
[f24]
CAD. Vol. VII, 28th December 1948, p. 1084.
[f25]
Ibid.. p. 1087.
[f26] CAD,
Vol. VII, 28th December 1948, pp. 1088-89.
[f27] CAD,
Vol. VII, 28th December 1948, pp. 1089-92.
[f28] Dots in
the original debates indicate interuptions.
[f29]
Dots in the original debates indicates interruptions.
[f30] CAD,
Vol. VII, 28th December 1948, p. 1095.
[f31]
CAD, Vol. VII, 28th December 1948, p. 1096.
[f32]
Ibid., 29th December 1948, pp. 1100-02.
[f33] CAD,
Vol. VII, 29th December 1948, pp. 1113-15.
[f34] CAD,
Vol. VII, 29th December 1948, p. 1117.
[f35]
CAD, Vol. VII, 29th December 1948, pp. 1119-20.
[f36] CAD,
Vol. VII, 30th December 1948, pp. 1136-40.
[f37] Dots in
the original debates indicate interruption.
[f38] Dots in
the original debates indicate interruption.