DR. AMBEDKAR: THE PRINCIPAL ARCHITECT
OF THE CONSTITUTION OF INDIA
Clause wise Discussion on the Draft
Constitution
30th
July 1949 to 16th September 1949
SECTION
SIX
Clause-wise
Discussion
______________________________________________________________
Contents
Articles
for Discussion:
ARTICLE 261
[f1]
The Honourable Dr. B. R. Ambedkar: Sir, I move:
"That
in article 261, for the word 'Parliament' the words 'each House of
Parliament ' he substituted.
"
[f2]
The
Honourable Dr. B. R. Ambedkar:
Mr. President, Sir, I am sorry I cannot accept the amendments moved to this article. It
seems to me that the amendment are based upon a complete misunderstanding of the
provisions contained in article 261, and I feel that no amendment is necessary at all. In
order to understand exactly what article 261 means, you have to go back to the previous
articles which deal with the distribution of the income-tax and the distribution of the
net proceeds of the Centrally collected excise duties. Obviously, with regard to the
distribution of the income-tax, the article which we have passed so far leave the matter
entirely with the President acting on the recommendations of the Finance Commission. That
being so, it would not now be possible to say by an amendment that so far as the
recommendations with regard to the distribution of the income-tax are concerned, the matter may be left to Parliament. My submission is that
that issue is now closed, we having passed an article leaving to the President the
allocation and the distribution of the income-tax either in the initial stage or in the
subsequent variations.
Now,
the other matter which is covered by article 261 relates to the distribution of the
revenue collected from Centrally levied excise duties. It is also clear from the article
that we have passed that this matter shall be governed by the law made by Parliament. The
President cannot do it himself. Therefore the words "
shall put before Parliament a memorandum stating the action
that has been taken " merely means this that the
President shall say, as he is bound to say, that a Bill shall be introduced before
Parliament to regularise or sanction the proceeds of the excise duties and the manner in
which they are to be allocated. Consequently, if my Friend, Prof. Shibban Lal Saksena will read article 261 in relation to the other
articles that we have passed, he will realise that so far as the distribution of the
excise duties is concerned, the result will be the same as what he proposes to bring about
by his amendment. therefore I think that his amendment is quite unnecessary.
Mr.
President:
I will now put the amendments to the vote.
[Articles
261, as amended by Dr. Ambedkar's
amendment was adopted and added to the Constitution.]
ARTICLE 263
[f3]
The Honourable Dr. B. R. Ambedkar:
Sir, I move:
"
That for article 263 the following be substituted :— (Custody of Consolidated Funds,
the payment of moneys into and withdrawal of moneys from such funds).
'
263. (1) The custody of the Consolidated Fund of India, the payments of moneys into such
Fund, the withdrawal of moneys therefrom and all other
matters connected with or ancillary to the matters aforesaid
shall be regulated by law made by Parliament, and until provision in that behalf is so
made by Parliament, shall be regulated by rules made by the President.
(2)
The custody of the Consolidated Fund of a State, the payments of moneys into such Fund and
the withdrawal of moneys therefrom, and all other matters connected with or ancillary to
the matters aforesaid shall be regulated by law made by the Legislature of the State, and,
until provision in that behalf is so made by the Legislature of the State shall be
regulated by rules made by the Governor of the State. ' "
I
do not think any explanation is necessary.
Pandit
Hirday Nath Kunzru
: Mr. President, I move:
"
That in the amendment just moved by Dr. Ambedkar, after the
words ' Consolidated Fund ', wherever they occur, the words ' and the Contingency Fund ' be inserted ; and for the words ' such Fund ', wherever they occur, the
words ' such Funds ' be substituted. "
The
House has already agreed to the establishment of a Contingency Fund. It is therefore
necessary to provide for the manner in which money may be put into the Contingency Fund
and may be withdrawn from it. This is a purely formal amendment and I trust that the House
will accept it.
Mr.
President: I
take it that Dr. Ambedkar will accept Pandit Kunzru's amendment.
The
Honourable Dr. B. R.
Ambedkar:
I accept the amendment. Article 263, as amended, was added to the Constitution.
****
ARTICLE 267
[f4]
The Honourable Dr. B. R. Ambedkar:
Sir, I move :
"
That in article 267—
(i)
after the words ' Crown in India '
the words ' or after such commencement in connection with
the affairs of the Union or of a State ' be inserted ;
(ii)
for the words ' revenues of India ' wherever they occur, the
words ' Consolidated Fund of India ' be substituted ;
(iii)
for the words ' revenues of a State ' wherever they occur, the words ' Consolidated Fund
of the State ' be substituted ;
(iv)
the words and Figure ' for the time being specified in Part
I of the First Schedule ' be omitted ; and
(v)
for the words ' revenues of the State ', the words ' Consolidated Fund of the State ' be
substituted. "
It
is just consequential.
****
The
Honourable Dr. B. R. Ambedkar:
Sir, I do not accept any amendment.
Mr.
President:
I put the amendments to vote.
[Dr.
Ambedkar's amendment was adopted.
All other amendments moved by Prof. S. L. Saksena, H. V. Kamath and Dr. P. S. Deshmukh were rejected.
Article 267, as amended, was added to the Constitution.]
ARTICLE 268
****
[f5]
The
Honourable Dr. B. R. Ambedkar:
Sir, except for the last oration of my Friend Prof. K. T. Shah in which he suggested that we should introduce a
clause putting limitation upon the authority of Parliament to sanction loans, I was really
quite unable to understand the dissent which has been expressed by other speakers with regard to the
provision contained in article 268. It is admitted that it is the executive alone which
can pledge the credit of the country for borrowing purposes, for borrowing is an executive
act in one aspect of the case, hut in this article it is not proposed that the power of
the executive to borrow is to the unfettered by any law
that is to he made by Parliament. This article specifically says that the borrowing power
of the executive shall be subject to such limitations as Parliament may by law prescribe.
If Parliament does not make a law, it is certainly the fault of Parliament and I should
have thought it very difficult to imagine any future Parliament which will not pay
sufficient or serious attention to this matter and enact a law. Under the article 268 I
even concede that there might be an Annual Debt Act made by Parliament prescribing or limiting the power of the executive as to how much
they can borrow within that year. I therefore do not see what more is wanted by those who
expressed their dissent from the provisions of article 268. It is of course a different
matter for consideration whether we should have a further provision limiting the power of the Parliament to pledge the credit of the
country. It seems to me that even that matter may be left to Parliament because it will be
free for parliament to say that borrowing shall not be done
on the pledging of certain resources of the country. I do not see how this article
prevents Parliament from putting upon itself the limitations with regard to the guarantees
that may be given by Parliament for the ensurement of these
loans or borrowings. I therefore think that from all points of view this article 268 as it
stands is sufficient to cover all contingencies and I have no doubt about it that, as my
friend Mr. Ananthasayanam Ayyangar
said, we hope that Parliament will take this matter seriously and keep on enacting laws so
as to limit the borrowing authority of the Union,—1 go
further and say that I not only hope but I expect that Parliament will discharge its
duties under this article.
Shri
H. V. Kamath : Would not Dr. Ambedkar agree
to the deletion of the words, " if any " ?
The
Honourable Dr. B. R.
Ambedkar: I
have been considering that, but I do not think that will improve matters, because the
words are "as may from time to time".
Mr.
President: I
take it the amendment to substitute the words "
Consolidated Fund of India " is accepted.
Article
268, as amended, was added to the Constitution.
****
ARTICLE 269
[f6]
Mr.
President:
There are some amendments which are printed in the II Volume of the printed amendments on
page 313. Then we shall take up amendment No. 107 by Dr. Ambedkar.
The
Honourable Dr. B. R.
Ambedkar:
Sir, I move :
"
That in clause (1) of article 269, the words and figures ' for the time being specified
in Part I of the First Schedule ', be omitted. "
"That
in clause (1) of article 269, for the words 'revenues of
the State ' the words 'Consolidated Fund of the State ', be
substituted."
"
That with reference to amendment No. 2972 of the List of Amendments, for clause (2) of
article 269, the following clause be substituted:—-
'
(2) The Government of India may, subject to such conditions
as may be laid down by or under any law made by Parliament, make loans to any State or, so
long as any limits fixed under article 268 of this Constitution are not exceeded, give guarantees in
respect of loans raised by any State, and any sums required for the purpose of making such
loans shall be charged on the Consolidated Fund of India. '
"
The important
change by my amendment No. 107 is that originally the Government of India was given a free
hand in this matter; now the action, of the Government of India is subject to such conditions as
may be laid down by or under any law made by Parliament.
Sir,
I move:
"
That in clause (3) of article 269, the words and figures ' for the
time being specified in Part I or Part III of the First Schedule ' be omitted. "
****
The
Honourable Dr. B. R. Ambedkar: I
do not think. Sir, any reply is called for.
[Article
269, as amended by Dr. Ambedkar's amendment was adopted
and added to the Constitution.
ARTICLES 5 AND 6
[f7]
Mr.
President:
We have now to take up articles 5 and 6 of the original draft. I find there is a veritable
jungle of amendments, something like 130 or 140 amendments, to these two articles. I
suggest that the best course will be for Dr. Ambedkar to move the articles in the form in
which he has finally framed them and I shall then take up
the amendments to this amended draft. Both 5 and 6 go together, I think, Dr. Ambedkar.
Prof.
K. T. Shah
: May I know what happens to the amendments in the Printed
List '? They have all been tabled as amendments to the original draft. I do not quite
understand your suggestion as to the process in which the amendments would now be taken
up.
Mr.
President:
If there is any amendment which is of a substantial nature, which touches any of the
amended drafts as proposed by the Drafting Committee, I shall certainly take it up, but I
leave it to the Members to point out to me which particular amendment they wish to move.
Dr. P. S. Deshmukh : If the original
draft is not moved, all the amendments tabled to that draft go by the wind.
Mr.
President:
We do not move the original draft, but it will be taken as moved and then the other
amendments come in.
Members
will find that Dr. Ambedkar has given notice of certain
amendments which have been circulated to Members. The first is No. I in List 1.
The
Honourable Dr. B. R.
Ambedkar:
Sir, May I give the references ? The amendments of which
notice has been given about the citizenship clause are spread over various lists, and I
propose to give in the beginning to Members the references to the various lists. The first
amendment is No. I of List 1. Then come amendments Nos.
128, 129, 130, 131, 132 and 133 of List IV. These are the various proposals of the
Drafting Committee with regard to this article. I feel that the House may not be in a
position to get a clear arid complete idea if these amendments were moved bit by bit,
separately. Therefore what I propose to do is this that I will move a consolidated
amendment, so to say, which I have prepared, consisting of amendments Nos. 1, 128, 129,
130 and 133. My Friend, Mr. T. T.
Krishnamachari, will subsequently move the other two
amendments which are Nos. 131 and 132 in List IV. In amendment No. 129, it should read " of the proposed article 5A "
instead of " of the proposed article 5." It is a
printing error. With these preliminary observations, so to say, I move my amendment:
"
That for articles 5 and 6, the following articles be substituted :—( Citizen at the date of
Commencement of this Constitution).
"
5. At the date of commencement of this Constitution, every person who has his domicile the
territory in India and—
(a)
who was born in the territory of India; or
(b)
either of whose Parents was born in the territory of
India; or
(c)
who has been ordinarily resident in the territory of India
for not less than five years immediately preceding the date of such commencement.
shall
be a citizen of India, provided that he has not voluntarily acquired the citizenship of
any foreign State.
(Rights of citizenship of certain persons who have migrated to India from Pakistan).
5-A.
Notwithstanding anything contained in article 5 of this Constitution, a person who has migrated to the territory of India
from the territory now included
in Pakistan shall be deemed
to be a citizen of India at the date of commencement of this Constitution if—
(a)
he or either of his parents or any of his grand-parents was
born in India as defined in the Government of India Act, 1935 (as originally enacted) ; and
(b)
(i) in the case where such person has so migrated before the nineteenth day of July 1948,
he has ordinarily resided within the territory of India since the date of his migration;
and
(ii)
in the case where such person has so migrated on or after the nineteenth day of July 1948
he has been registered as a citizen of India by an officer
appointed in this behalf by the Government of the Dominion of India on an application made
by him therefor to such officer before the date of commencement of this Constitution in
the form prescribed for the purpose by that Government:
Provided
that no such registration shall be made unless the person making the application has
resided in the territory of India for at least six months before the date of his
application.
(Rights of citizenship of certain migrants to Pakistan)
5-AA.
Notwithstanding anything contained in articles 5 and 5-A of this Constitution a person who
has after the first day of March 1947, migrated from the territory of India to the
territory now included in Pakistan shall not be deemed to be a citizen of India:
Provided
that nothing in this article shall apply to a person who, after having so migrated to the
territory now included in Pakistan has returned to the territory of India under a permit
for resettlement or permanent return issued by or under the authority of any law and every
such person shall for the purposes of clause (b) of article 5-A of this Constitution be
deemed to have migrated to the territory of India after the
nineteenth day of July 1948.
Shri
Jaspat Roy Kapoor
(United Provinces : General) :
This, you had said, would be moved by Mr. T. T. Krishnamachari.
The
Honourable Dr. B. R. Ambedkar:
I have included it in the consolidated article as I am proposing to accept the amendment
which will be moved by him.
(Right
of citizenship of certain persons of Indian
origin residing outside India).
5-B.
Notwithstanding anything contained in articles 5 and 5-A of this Constitution, any person
who or either of whose parents or any of whose grand parents
was born in India as defined in the Government of India Act, 1935 ( as originally enacted) and who is ordinarily residing in any territory
outside India as so defined shall be deemed to be a citizen of India if he has been
registered as a citizen of India by the diplomatic or consular representative of India in
the country where he is for the time being residing on an application made by him therefor
to such diplomatic or consular representative, whether before or after the commencement of
this Constitution in the form prescribed for the purpose by the Government of the Dominion
of India or the Government of India.
(Continuance of the rights of citizenship).
5-C.
Every person who is a citizen of India under any of the foregoing provisions of this Part
shall, subject to the provisions of any law that may be
made by Parliament, continue to be such
citizen.
(Parliament to regulate the right of citizenship by law.).
6.
Nothing in the foregoing provisions of this Part shall derogate from the power of
Parliament to make any provision with respect to the acquisition and termination of
citizenship and all other matters
relating."
Sir,
I would reserve my remarks after the amendments to my draft are moved by Mr. T. T. Krishnamachari and that will complete the thing.
****
[f8]
Mr. President:
If we take up all the either amendments, I think there will
not be any end to them. First, let Dr. Ambedkar explain his
proposition and then the other amendments may be moved.
The
Honourable Dr. B. R.
Ambedkar:
Mr. President, Sir, except one other article in the Draft Constitution, I do not think
that any other article has given the Drafting Committee such a headache as this particular
article. I do not know how many drafts were prepared and how many were destroyed as being
inadequate to cover all the cases which it was thought necessary and desirable to cover. I
think it is a piece of good fortune for the Drafting Committee to have ultimately agreed
upon the draft which I have moved, because I feel that this
is the draft which satisfies most people, if not all.
An
Honourable Member
: Question.
The
Honourable Dr. B. R. Ambedkar:
Now, Sir, this article refers to citizenship not in any general sense but to citizenship
on the date of the commencement of this Constitution. It is not the object of this
particular article to lay down a permanent law of citizenship for this country. The
business of laying down a permanent law of citizenship has been left to Parliament, and as
Members will see from the wording of article 6 as I have moved, the entire matter
regarding citizenship has been left to Parliament to determine by any law that it may deem
tit. The article reads—
"
Nothing in the foregoing provisions of this Part shall derogate from the power of
Parliament to make any provision with respect to the acquisition and termination of
citizenship and all other matters relating to citizenship. "
The
effect of article 6 is this, that Parliament may not only take away citizenship from those who are declared to be citizens on the date
of the commencement of this Constitution by the provisions
of article 5 and those that follow, but Parliament may make altogether a new law embodying
new principles. That is the first proposition that has to be borne in mind by those who
will participate in the debate on these articles. They must not understand that the
provisions that we are making for citizenship on the date of the commencement of this
Constitution are going to be permanent or unalterable. All that we are doing is to decide ad hoc for the time being.
Having
said that, I would like to draw the attention of the Members to the fact that in
conferring citizenship on the date of the commencement of this Constitution, the Drafting
Committee has provided for five different classes of people who can, provided they satisfy
the terms and conditions which are laid down in this article, become citizens on the date
on which the Constitution commences.
These
five categories are :
(1) Persons domiciled in India and
horn in India : In other words, those who form the hulk of
the population of India as defined by this Constitution ;
(2)
Persons who are domiciled in India hut who are not horn in India but who have resided in
India. For instance persons who are the subjects of the
Portuguese Settlements in India or the French Settlements in India like Chandernagore, Pondicherry, or
the Iranians for the matter of that who have come from Persia and although they are not
born here, they have resided for a long time and undoubtedly have the intention of becoming the citizens of India.
The
three other categories of people whom the Drafting Committee proposes to bring within the
ambit of this article are :
(3)
Persons who are residents in India but who have migrated to Pakistan ;
(4)
Persons resident in Pakistan and who have migrated to India;
and
(5)
Persons who or whose parents are born in India hut are residing outside India.
These
are the five categories of people who are covered by the provisions of this article. Now the first category of people viz., persons who
are domiciled in the territory of India and who are born in the territory of India or
whose parents were born in the territory of India are dealt with in article 5 clauses (a)
and (b). They will be citizens under those provisions if
they satisfy the conditions laid down there.
The
second class of people to whom I referred, viz..,, persons who have resided in India but who are not
born in India are covered by clause (c) of article 5, who
have been ordinarily resident in the territory of India for not less than five years
immediately preceding the date of such commencement. The condition that it imposes is this
that he must be a resident of India for five years. All these clauses are subject to a
general limitation, viz.,
that they have not voluntarily acquired the citizenship of any foreign State.
With
regard to the last class viz., persons who are residing abroad but who or whose
parents were born in India, they are covered by my article 5-B which refers to persons who
or whose parents or whose grandparents were born in India as defined in the Government of
India Act, 1935, who are ordinarily residing in any territory outside India—they are
called Indians abroad. The only limitation that has been imposed upon them is that they
shall make an application if they want to be citizens of India before the commencement of
the Constitution to the Consular Officer or to the Diplomatic Representative of the
Government of India in the form which is prescribed for the purpose by the Government of
India and they must be registered as citizens. Two conditions are laid down for
them—one is an application and secondly, registration of such an applicant by the
Consular or the Diplomatic representative of India in the country in which he is staying.
These are as I said very simple matters.
We
now come to the two categories of persons who were residents in India who have migrated to
Pakistan and those who were resident in Pakistan but have
migrated to India. The case of those who have migrated to India from Pakistan is dealt
with in my article 5-A. The provisions of article 5-A are these—
Those
persons who have come to India from Pakistan are divided into two categories—
(a)
those who have come before the 19th day of July 1948, and
(b) Those who have come from Pakistan to
India after the 19th July 1948.
Those
who have come before 19th July 1948, will automatically become the citizens of India.
With
regard to those who have come after the 19th July 1948,
they will also be entitled to citizenship on the date of the commencement of the
Constitution, provided a certain procedure is followed, viz., he again
will be required to make an application to an Officer appointed by the Government of the
Dominion of India and if that person is registered by that Officer on an application so
made.
The
persons coming from Pakistan to India in the matter of their acquisition of citizenship on
the date of the commencement of the Constitution are put into two categories—those
who have come before 19th July 1948 and those who have come afterwards. In the case of
those who have come before the 19th July 1948, citizenship is automatic. No conditions, no
procedure is laid down with regard to them. With regard to those who have come thereafter
certain procedural conditions are laid down and when those conditions are satisfied, they also will become entitled to citizenship under the
article we now propose.
Then
I come to those who have migrated to Pakistan but who have returned to India after going
to Pakistan. There the position is this. I am not as fully versed in this matter as
probably the Ministers dealing with the matter are, but the proposal that we have put
forth is this if a person who has migrated to Pakistan and, after having gone there, has
returned to India on the basis of a permit which was given to him by the Government of
India not merely to enter India but a permit which will entitle him to resettlement or
permanent return, it is only such person who will be entitled to become a citizen of India
on the commencement of this Constitution. This provision had to be introduced because the
Government of India, in dealing with persons who left India for Pakistan and who
subsequently returned from Pakistan to India, allowed them to come and settle permanently
under a system which is called the ' Permit system '. This permit system was introduced from the 19th July 1948.
Therefore the provision contained in article 5-B deals with the citizenship of persons who
after coming from Pakistan went to Pakistan and returned to India. Provision is made that
if a person has come on the basis of a permit issued to him for
resettling or permanent return, he alone would be entitled to become a citizen on the date
of the commencement of the Constitution.
I
may say, Sir. that it is not possible to cover every kind of case for a limited purpose, namely, the purpose of conferring
citizenship on the date of the commencement of the Constitution. If there is any category
of people who are left out by the provisions contained in this amendment, we have given
power to Parliament subsequently to make provision for them. I suggest to the House that
the amendments which I have proposed are sufficient for the purpose and for the moment and I hope the House
will be able to accept these amendments.
Shri
B. M. Gupta (Bombay
: General) : Was the permit
system brought in on 19th July 1948 ?
The
Honourable Dr. B. R. Ambedkar:
Yes, on the 19th July '48 there was an ordinance passed
that no person shall come in unless he has a permit, and certain rules were framed by the
Government of India under that, on 19th July 1948, whereby they said a permit may be
issued to any person coming from Pakistan to India specifically saying that he is entitled to come in. There are three
kinds of permits. Temporary Permit, Permanent Permit and permit for resettlement or
permanent return. It is only the last category of persons who have been permitted to come
back with the express object of resettlement and permanent
return, it is only those persons who are proposed to be included in this article, and no
other.
Mr.
President:
I think we shall take up the amendments tomorrow.
****
[f9]
Mr. President:
I do not think any useful purpose will be served by further speeches. The amendments are
all there before the Members ; they are free to vote in
favour of any amendment they like.
The
Honourable Dr. B. R. Ambedkar
(Bombay : General) : Mr.
President. Sir, it has not been possible for me to note
down every point that has been made by those who have criticised the draft articles which I have moved. I do not think it is necessary to
pursue every line of criticism. It is enough if I take the more substantial points and
meet them.
My
Friend, Dr. Deshmukh, said that hy the draft articles we
had made our citizenship a very cheap one. I should have though that if he was aware of
the rules which govern the law of citizenship, he would have realised that our citizenship
is no cheaper than would have been made hy laws laid down
by other countries.
With
regard to the point that has been made by my Friend Prof. K.
T. Shall that there ought to be positive prohibition in
these articles limiting Parliament's authority to make law under article 6 not to give citizenship to the residents of those
countries who deny citizenship to Indians resident there, I
think that is a matter which might well be left for
Parliament to decide in accordance with the circumstances as and when they may arise.
The
points of criticism with which I am mostly concerned are those which have been levelled
against those parts of the articles which relate to immigrants from Pakistan to India and
to immigrants from India to Pakistan. With regard to the first part of the provisions
which relate to immigrants coming from Pakistan to India, the criticism has mainly come
from the representatives of Assam, particularly as voiced by my Friend Mr. Rohini Kumar Chaudhuri. If I understood him correctly, his contention was that these articles relating to immigrants from
Pakistan to India have left the gates open both for Bengalis as well as Muslims coming
from East Bengal into Assam and either disturbing their
economy or disturbing the balance of communal proportions in that Province. I think. Sir, he has entirely misunderstood
the purport of the articles which deal with immigrants from Pakistan to India.
If
he will read the provisions again, he will find that it is
only with regard to those who have entered Assam before
19th July 1948, that they have been declared, automatically so to say, citizens of Assam
if they have resided within the territory of India. But with regard to those who have
entered Assam, whether they are Hindu Bengalees or whether they are Muslin), after the
19th July 1948, he will find that citizenship is not an automatic business at all. There
are three conditions laid down for persons who have entered
Assam after the 19th July 1948. The first condition is that
such a person must make an application for citizenship. He must prove that he has resided
in Assam for six months and, thirdly, there is a very severe condition, namely that he
must be registered by an officer appointed by the Government of the
Dominion of India. I would like to state very categorically
that this registration power is a plenary power. The mere fact that a man has made an
application, the mere fact that he has resided for six months
in Assam, would not involve any responsibility or duty or obligation on the registering
officer to register him. Notwithstanding that there is an application, notwithstanding
that he has resided for six months, the officer will still
have enough discretion left in him to decide whether he should be registered or he should
not be registered. In other words, the officer would be entitled
to examine, on such material as he may have before him, the purport for which he has come, such as whether he has come with a
bonafide. motive of becoming a permanent citizen of India or whether he has come with any
other purpose. Now, it seems to me that, having regard to these three limiting conditions
which are made applicable to persons who enter Assam after 19th July 1948, any tear such
as the one which has been expressed by my Friend Mr. Rohini
Kumar Chaudhuri that the
flood-gates will be opened to swamp the Assamese people
either by Bengalees or by Muslims, seems to me to be utterly unfounded. If he has any
objection to those who have entered Bengal before 19th July 1948—in this case on a showing that the man has resided in India,
citizenship becomes automatic—no doubt that matter will be dealt with by Parliament
under any law that may be made under article 6. If my friends from Assam will be able to
convince Parliament that those who have entered Assam before 19th July 1948 should, for
any reason that they may have in mind or they may like to put before Parliament, be
disqualified, I have no doubt that Parliament will take that matter into consideration.
Therefore, so far as the criticism of these articles relating to immigrants from Pakistan
to Assam is concerned, I submit it is entirely unfounded.
Then
I come to the criticism which has been levelled on the provisions which relate to
immigrants from India to Pakistan. I think that those who
have criticised these articles have again not clearly understood what exactly it is
proposed to be done. I should like, therefore, to re-state
what the articles say. According to the provisions which
relate to those who are immigrants from India to Pakistan, any one who has left India
after the first March 1947, barring one small exception,
has been declared not to be citizens of India. That, I think, has got to be understood
very carefully. It is a general and universal proposition which we have enunciated. It is
necessary to enunciate this proposition, because on the rule of International Law that
birth confers domicile, a person has not to acquire what is called domicile of origin by any special effort either by application or by some other
method or by some kind of a grace. The origin of domicile goes with birth. It was felt
that those persons who left India, but who were born in India notwithstanding that they
went to Pakistan, might, on the basis of the rule of International Law, still claim that
their domicile of origin is intact. In order that they should not have any such defence,
it is thought wise to make it absolutely clear that any one who has gone to Pakistan after
the 1st March—you all know that we have taken 1st March very deliberately, because
that was the date when the disturbances started and the exodus began and we thought that
there would be no violation of any principle of International justice if we presumed that
any man who, as a result of the disturbances went to Pakistan with the intention of
residing permanently there, loses his right of citizenship in India. It is to provide for
these two things that we converted this natural assumption into a rule of law and laid
down that anyone who has gone to Pakistan after 1st March shall not be entitled to say
that he still has a domicile in India. According to article
5 where domicile is an essential ingredient in citizenship, those persons having gone to
Pakistan lost their domicile and their citizenship.
Now
I come to an exception. There are people who, having left India for Pakistan, have
subsequently returned to India. Well, there again our rule is that anyone who returns to
India is not to be deemed a citizen unless he satisfies certain special circumstances.
Going to Pakistan and returning to India does not make any alteration in the general rule
we have laid down, namely that such a person shall not be a citizen. The exception is this: as my Honourable Friend Shri N. Gopalaswami Ayyangar said,
in the course of the negotiations between the two Governments, the Government of India and the Government of Pakistan, they came to some
arrangement whereby the Government of India agreed to permit certain persons who went from
India to Pakistan to return to India and allowed them to return not merely as temporary
travellers or as merchants or for some other purpose of temporary character to visit a
sick relation, but expressly permitted them to return to India and to settle permanently
and to remain in India permanently. We have got such persons in India now. The question
therefore is whether the rule which I have said we have enunciated in this article, not to
permit anyone who has gone from India to Pakistan after the 1st March 1947, should have an
exception or not. It was felt and speaking for myself I submit very rightly felt that when
a Government has given an undertaking to a person to permit him to return to his old
domicile and to settle there permanently, it would not be right to take away from that
person the eligibility to become a citizen. As my Friend, Mr. Gopalaswami Ayyangar has
said, the class of people covered by this category, having regard to the very large
population both of Hindus and Muslims we have, is very small, something between two to
three thousand. It would, in my judgement look very invidious, it would in my judgement
look a breach of faith if we now said that we should not allow these people whom our-own
Government, whether rightly or wrongly, allowed to come away from Pakistan for the purpose
of permanent residents here, to have this privilege. It
would be quite open to this House to bring in a Bill to prevent the Government of India
from continuing the permit system hereafter. That is within
the privilege and power of this House, but I do not think that the House will be acting
rightly or in accordance with what I call public conscience if it says that these people who, as I
said, are so small, who have come on the assurance of our own Government to make their
home here, should be denied the right of citizenship. Sir, I do not think therefore that
there is any substance in the criticism that has been levelled against these articles and
I hope the House will accept them as they are.
OF
GOVERNMENT OF INDIA ACT, 1935
(AMENDMENT)
BILL
[f10]
The
Honourable Dr. B. R.
Ambedkar:
Mr. Vice-President, Sir, I find from the speeches to which I have listened so far that
there is a great deal of misunderstanding as to what this particular Bill, particularly
clause 4 of it, proposes to do. I think it is desirable at the outset to tell the House
what exactly is intended to be done by clause 4. In order to put the House in a proper
frame of mind—if I may say so without meaning any offence—1 should like to draw
the attention of the House to the wording of Section 291 of the Government of India Act as
it was in operation before it was adapted after the Independence Act. Now I shall read
just a few lines of that Section 291.
"
In so far us provision with respect to mutters herein after mentioned is not made by this Act. His Majesty in
Council (and I want to emphasise these words His Majesty in Council) may from time. to
time make provision with respect to those matters or any of them, etc., etc. "
The
first thing that I would like to draw the attention of the House is this that in clause 4
of this Bill the matters which are enumerated from (b) to (j) are exactly the matters which are enumerated in the old
Section 291. Therefore, it has to be understood at the outset that this clause, clause 4,
is not making any fundamental change in the provisions contained in the original Section
291. The matters for which the Governor-General is going to be given powers by the
provisions of the new Section 291, as embodied in this
Bill, are the same which were given by the original Section 291 to His Majesty in Council.
(An Honourable Member : No.) I hope that this will be now
clear to everybody and I do not think there can be any doubt on it, for anyone who
compares the different clauses in this Bill and in the original Section 291 will have all
his doubts removed.
The
question, therefore, may be asked as to why is it that we
are now, giving the power to the Governor-General. The difficulty,
i£ I may say so, is this. Somehow when the Government of
India Act, 1935, came to be adapted alter the Independence Act, there was, in my
judgement, at any rate, a slip that took place and that slip was this, that this power
which originally vested in His Majesty in Council, logically speaking, ought to have been
transferred to the Governor-General, because the Governor-General under the Dominion law
stepped into the shoes of His Majesty in Council. But, unfortunately, as I said, what
happened was this that in adapting this Section 291, the power which we are now giving to
the Governor-General was given to the local Legislature, I
will read that adapted Section 291. I 'ask my friends who
have been agitating over this to read the section as adapted. This is how it reads :
"
In so far as provision with respect to matters herein
mentioned is not made in this Act in relation to any Provincial Legislature, provision may he made by Act of that Legislature with respect
to those matters or any of them, etc., etc. "
It
has now been discovered that that was an error, that really speaking, when the section was
adapted at that stage, the Governor-General should have
been endowed with those powers, because those powers under the provisions of Section 291
were vested in His Majesty in Council and not in any local legislature what we are doing
by this Bill is merely to restore the old position as it existed under the unadapted
Section 291. I, therefore, want to submit that any
criticism which has been levelled by any Member of the Assembly that there was some kind
of a deep-laid game in order to upset the constitution for
political motives is absolutely unwarranted. All that we are trying to do is to correct a
slip that had taken place then.
I
come to the next point, namely, the addition of the words "the composition of the
Chamber or Chambers of the legislature. " I quite
agree............[f11]
Dr.
P. S. Deshmukh
: May I ask one question.
Sir ? Does not the alteration of the words " in so far as provision with respect to matters
hereinafter mentioned is not made by this Act ", the
omission of these words and making of these provisions applicable to.........
The
Honourable Dr. B. R.
Ambedkar:
That is what exactly I am explaining. As I said, the only difference that will now be
found between the original article 291 as unadapted and the proposed new clause is this
that it is proposed by this new article to give power to the Governor-General to alter the
provisions with regard to the composition of the Legislature. I admit that that is
a change.
Dr.
P.S. Deshmukh
: Which includes schedules 5 and 6.
The
Honourable Dr. B. R.
Ambedkar:
Oh, yes ; that is quite true. I admit without any kind of
reservation that that is a change which is being made. Now the question is why should we
make that change. The reason why we have to make the change in order to give the
Governor-General the power even to alter the composition is to he found in the situation
in which we find ourselves. Honourable Members will remember that there has been a
considerable shifting of the population on account of partition. The population of East
Punjab is surely not in any stereotyped condition. Refugees are coming and going. On the
1st April the population numbered so much ; six months
thereafter it may number something quite different from what it was then. Similarly with
regard to West Bengal and many other provinces where refugees have been taken by the
Government of India under their scheme of rehabilitation or the refugees themselves have
voluntarily travelled from one area to another. Obviously you cannot allow the provisions
contained in the Fifth and Sixth Schedules with regard to the numbers in the legislature
to remain what they were when we know as a matter of fact that the population has lost all
relation to the numbers then prescribed in the Schedules. It is therefore in order to take
into account the shifting of the population that power is given to the Governor-General to
alter even the Schedules which deal with the composition of the legislature.
I
hope my Honourable Friends will now understand that in giving this additional power of
making an order with regard to the composition of the Chamber or Chambers the intention is
to permit the Governor-General to make an order which will bring the strength of the
different legislatures in the provinces affected to suit the numbers in those provinces.
There is no nefarious purpose.
Dr.
P. S. Deshmukh
: You had two full years to rectify this position.
The
Honourable Dr. B. R. Ambedkar:
That is a different matter. I am only explaining why these provisions are being introduced
by this new clause.
I
have said that the other provisions are merely reproductions of what is contained in the
original Section 291. This power is not being taken for a wanton or an unnecessary purpose
nor is it intended to be used for anything other than a
bonafide purpose. Therefore having regard to these circumstances my submission is that
clause 4 is a perfectly justifiable proposal, both from the point of view of conferring
these powers, which originally vested in His Majesty in Council, to be vested in the
Governor-General who is his successor and to give him additional power to alter the
composition, because the pattern of the numbers in the different provinces have changed
from the 15th August 1947. I quite realise that there has been an error in the Statement
of Objects and Reasons where unfortunately a particular reference has been made to West
Bengal. I should like to assert that this clause has been intended as a general provision
which may be used by the Governor-General for rectifying any of the matters with regard to
any province, not particularly West Bengal ; and I think
that was against somehow a slip which ought not to have taken place. Members of the House
have picked up that particular wording of that particular clause where a pointed reference has been made to West Bengal in order to charge the
Government with malafide, with having some kind of a bad motive towards the
legislature in West Bengal. As I said, it is nothing of the kind. These clauses are
general ; they may be used if a situation arises which" calls for their
use in West Bengal. They may be used for my province of Bombay where probably today, at
any rate, no such circumstance appears. Therefore from that unfortunate statement—if
I may say so—no conclusion ought to be drawn that there is any kind of underhand
dealing so far as this clause is concerned.
Shri
Suresh Chandra Majumdar
(West Bengal : General) : Is
it not possible to drop the words " West Bengal " ?
The
Honourable Dr. B. R.
Ambedkar:
I have been telling my Honourable Friend's that the
Statement of Objects and Reasons is not a part of the Act and therefore there can be no
amendment moved to the deletion of any word or clause or sentence in the Statement of
Objects and Reasons. As soon as this Bill becomes an Act, that Statement of Objects and
Reasons will be thrown into the dustbin. It is different from a Preamble and I want
Members of the House to concentrate on the Preamble where there is no such reference to
West Bengal. Therefore my submission is that there is really nothing to quarrel with in
this particular clause. In the first place it restores the original provision as it
existed in the Government of India Act, 1935, in its unadapted condition, and secondly it
proposes to give power which it has become necessary to give because of the altered position in the provinces.
An
Honourable Member: Sir, I move that the question be now put.
Shri
H. V. Kamath : Sir, on a point of order. Dr.
Ambedkar has raised fresh points which we wish to discuss and under rule 33 of our Rules
you may hold that there has not been sufficient debate, and so refuse to accept this
motion for closure.
Dr.
P. S. Deshmukh
: But Dr. Ambedkar is not
the Minister in charge.
Mr.
Vice-President:
Yes, that is so ; and the Honourable Member Mr. Kamath has had ample opportunity to speak on this clause. I
therefore accept the motion for closure.
The
question is:
"
That the question be now put. "
The
motion was adopted.
****
[f12]
Mr. Vice-President: (Shri V. T. Krishnamachari) : Today we begin with article 150. The House will remember
that there was a debate on this article as it originally stood and after three amendments
were moved, the article was recommitted to the Drafting Committee. Dr. Ambedkar has now given notice of a new article. I request him
to move that article, amendment No. I of List I (Fourth Week).
Mr.
Naziruddin Ahmad
(West Bengal : Muslim) :
Sir, I have a point of Order. Shall I move it
just now or after the amendment is moved ?
Mr.
Vice-President:
You may move it just now.
Mr.
Naziruddin Ahmad
: Mr. Vice-President, Sir, as I have been observing for
some time that the Drafting Committee has been springing
surprise after surprise on the Members. Every day new amendments of a sweeping character
are being sent in by the Drafting Committee. They come in all of a sudden like Air Raids.
The
Honourable Dr. B. R. Ambedkar
(Bombay : General) : Where
is the point of Order ?
Mr.
Vice-President:
May I remind the Honourable Member that this amendment has been brought before the House
by Dr. Ambedkar and the Drafting Committee in response to
the desire universally expressed in the House. For this reason, I rule out this point of
Order. I now ask Dr. Ambedkar to move his amendment.
The
Honourable Dr. B. R. Ambedkar:
Mr. Vice-President, Sir, I move:
"That
for article 150, the following be substituted:—( Composition of the Legislative Council)
'150.
(1) The total number of members in the Legislative Council of a State having such a
Council shall not exceed one-fourth of the total number of members
in the Assembly of that State;
Provided
that the total number of members in the Legislative Council
of a State shall in no case be less than forty.
(2)
Until Parliament may by law otherwise provide, the composition
of the Legislative Council of a State shall be as provided
in clause (3) of this article.
(3)
Of the total number of members in the Legislative Council of a State—
(a)
as nearly as may be, one-third shall be elected by electorates consisting of members of
municipalities, district broads and such other local authorities as Parliament may by law
specify ;
(b)
as nearly as may be, one-twelfth shall be elected by electorates consisting of persons who
have been for at least three years graduates of any university in the State and persons possessing for at least three years
qualifications prescribed by or under any law made by Parliament as equivalent to that of
a graduate of any such university ;
(c)
as nearly as may be, one-twelfth shall be elected by electorates consisting of persons who
have been for at least three years engaged in teaching in
such educational institutions within the State, not lower in standard than that of a
secondary school as may he prescribed by or under any law made by Parliament;
(d)
as nearly as may be, one-third shall be elected by the members of the Legislative Assembly
of the State from amongst persons who are not members of the Assembly;
(e)
the remainder shall be nominated by the Governor in the manner provided in clause (5) of this article.
(4)
The members to be elected under sub-clauses (a), (b) and (c) of clause (3) of this article
shall be chosen in such territorial constituencies as may be prescribed by or under any law made by Parliament, and the elections under the said
sub-clauses and under sub-clause (d) of the said clause shall be in accordance with the
system of proportional representation by means of the single transferable
vote.
(5)
The members to be nominated by the Governor under sub-clause (e) of clause (3) of this
article shall consist of persons having special knowledge or practical experience in
respect of such matters as the following, namely:—
literature,
science, art, co-operative movement and social services. ' "
As
you have said. Sir, this article in a different form was
before the House last time. The article as it then stood, merely said that the composition
of the Upper Chamber shall be as may be prescribed by law made by Parliament. The House
thought that that was not the proper way of dealing with an important part of the
constitutional structure of a provincial legislature, and that there shall be something
concrete and specific in the matter of the constitution of the Upper Chamber. The
President of the Constituent Assembly said that he shared the feelings of those Members of
the House who took that view, and suggested that the matter may be further considered by
the Drafting Committee with a view to presenting a draft which might be more acceptable to
those Members who had taken that line of criticism. As Honourable Members will see, the
draft presented here is a compromise between the two points of view. This draft sets out
in concrete terms the composition of the Upper Chamber in the different provinces. The
only thing it does is that it also provides that Parliament may by law alter at any time
the composition laid down in this new article 150. I hope that this compromise will be
acceptable to the House and that the House will be in a position to accept this amendment.
****
[f13]
The Honourable Dr. B. R. Ambedkar:
Mr. Vice-Resident, Sir, out of the amendments that have
been moved, I am prepared to accept the amendments moved by Mr. Sarwate.
I think he has spotted a real difficulty in the draft as it stands. The draft says—' University in the State '. It is quite obvious that there
are many States with at present no university. All the same there are graduates from other
Universities who are residing in that State. It is certainly not the intention to take
away the right of a graduate residing in a State to participate in the elections to the
Upper Chamber merely because he does not happen to be a graduate of a University in that
particular State. In order therefore to make the way clear for graduates residing in the
particular State, I think this amendment is necessary and I propose to accept it. I would
only say that the word ' habitually ' is perhaps not necessary because residence as a
qualification will be defined under the provisions of article 149 where we have the power
to describe qualifications and disqualifications.
With
regard to the other points of criticisms. I do not know that those who have indulged in high-flown phraseology in
denouncing this particular article have done any service either to themselves or to the
House. This is a matter which has been debated more than once. Whether there should be a
Second Chamber in the province or not was a matter which was debated and the proposition
has been accepted that those provinces who want Second Chambers should be permitted to
have them. I do not know that any good purpose is served by repeating the same arguments
which were urged by those Members at the time when that matter was discussed.
With
regard to the merits of the proposition which has been
tabled before the House, I have not seen any single
constructive suggestion on the part of any Member who has taken part in this debate as to
what should be the alternative constitution of the Second Chamber. Here and there bits
have been taken and denunciations have been indulged in to point out either that that is a
useful provision or a dangerous provision. Well, I am prepared to say that this is a
matter where there can be two opinions and I am not prepared to say that the opinion I
hold or the opinion of the Drafting Committee is the only correct one in this matter. We
have to provide some kind of constitution and I am prepared to say that the constitution
provided is as reasonable and as practicable as can be thought of in the present
circumstances.
Then
there were two points that were made, one of them by my Friend Mr. Nagappa. He wanted that a provision should be made for the
representation of agricultural labour. I do not know that any such provision is necessary
for the representation of agricultural labour in the Upper Chamber, because the Lower
Chamber will be in my judgement having a very large representation of agricultural labour
in view of the fact that the suffrage on which the Lower Chamber would be elected would be
adult suffrage and I do not know.........
Shri
S. Nagappa
: lf that is the case, all other sections also to whom you are
giving will also get representation in the Lower Chamber.
The
Honourable Dr. B. R.
Ambedkar:
They are provided for very different reasons but agricultural labour would be amply
provided in the Lower Chamber.
My
friend Shri Muniswami Pillai by an amendment raised the question that there should
be special representation for the Scheduled Castes in the
Upper Chamber. Now, I should like to point out to him that so far as the Drafting
Committee is concerned, it is governed by the report of the Advisory Committee which dealt
with this matter. In the report of the Advisory Committee which was placed before the
House during August 1947 the following provision finds a place
:—
" (c) There shall be
reservation of seats for the Muslims in the Lower House of the Central and Provincial
Legislatures on the basis of their population. "
" 3. (a) The section of Hindu community referred to as
scheduled caste and defined in scheduled to the Government of India Act 1935 shall have
the same rights and benefits which are herein provided for etc., etc., " which means that the representation to be guaranteed to
the Scheduled Castes shall be guaranteed only in the Lower Houses of the Central and
Provincial Legislatures. That being the decision of the Constituent Assembly, I do not think it is competent for the Drafting
Committee to adopt any proposition which I do not want to injure anybody's feeling, that
if any one was vociferously in favour of this decision, it was my Friend Mr. Muniswamy
Pillay and I think he ought to be content with what he
agreed to a hide by then. "
Mr.
Vice-President:
Dr. Ambedkar you have to formally withdraw amendment No. 2.
The
Honourable Dr. B. R. Ambedkar:
Yes I have to withdraw it. The amendment was, by leave of the Assembly, withdraw.
[6
amendments were negatived and five including the one by Dr. Ambedkar were withdrawn.]
****
[f14]
Mr. Vice-President:
I now put Mr. Sarwate's amendment to the House.
The
question is:
"
That in sub-clause (b) of clause
(3) of the proposed article 150, after words ' consisting
of persons ' the words '
resident in the State ' he added, and for the words ' in
the State ' the words ' in the territory of India ' be substituted. "
The
amendment was adopted.
[Article
150, as amended, was added to the Court.]
PART VIII-A
[f15]
The
Honourable Dr. B. R. Ambedkar: Sir, I move my amendment
"
That after Part VIII, the
following new Part he inserted :—
" PART VIII-A
THE
SCHEDULED AND
TRIBAL AREAS
215-A.
In this Constitution—
(a)
the expression ' scheduled areas ' means the areas specified in Parts I to VII of
Definitions the Table appended to paragraph 18 of the Fifth Schedule in relation to the
States to which those Parts respectively relate subject to any order made under
sub-paragraph (2) of that paragraph ;
(b)
the expression ' tribal areas ' means the areas specified in Parts I and II of the Table
appended to paragraph 19 of the Sixth Schedule subject to any order made under
sub-paragraph (3) of paragraph I or clause (b) of
sub-paragraph (1) of paragraph 17 of that Schedule.
215B.
(1) The provisions of the Fifth Schedule shall apply to the administration and control of the scheduled areas and scheduled
tribes in any State for the time being specified in Part I or Part
III of the First Schedule other than the State of Assam.
(2)
The provisions of the Sixth Schedule shall apply to the administration of the tribal areas
in the State of Assam. "
Sir,
my amendment merely replaces the original articles 189 and 190. The only thing we are
doing is that we are transferring the provisions contained in articles 189 and 190 to
another and a separate part. It is because of the transposition that it has become
necessary to re-number them in order to secure the necessary logical sequence of the new
part. Barring minor changes, there are no changes of substance at all, in the new articles
proposed by me—article 215A and article 215B.
****
[f16]
The Honourable Dr. B. R. Ambedkar: I
do not think there is any necessity to offer any remarks in reply.
The
motion was adopted.
[Part
VIIIA and articles 215A and 215 B were added to the Constitution.]
ARTICLE 250
[f17]
The
Honourable Dr. B. R. Ambedkar:
Sir, I move:—
"
That in sub-clause (c) of clause (1) of article 250, after
the word ' railway ' a comma
and the word ' sea ' be inserted. "
Sir,
I move my next amendment also.
"
That in clause (2) of article 250, for the words ' revenues of India ' the words '
Consolidated Fund of India ' be substituted. '
Mr.
Naziruddin Ahmad :
...At present there is a Bill before the Legislature for charging estate duty. Here we are
legislating for a long time. Therefore we should have both estate or succession duty.
The
Honourable Dr. B. R. Ambedkar:
Succession duty is covered by (a) which says ' Duties in respect of succession to property
'. Why repeat that in (b) ?
Mr.
Naziruddin Ahmad
: The two might have been combined.
****
[f18]
Mr.
Vice-President:
...Anyway, does Dr. Ambedkar want to say anything ?
The
Honourable Dr. B. R. Ambedkar: I do not want to say anything.
Mr.
Vice-President: I
will not put the amendments to the House.
[Both
the amendments of Dr. Ambedkar, mentioned above, were adopted. Other amendments were
rejected. Article 250 as amended wan added to the Constitution.]
ARTICLE 277
The
Honourable Dr. B. R. Ambedkar:
Sir, I beg to move:
"
That article 277 he re-numbered as clause (1) of article 277, and to the said article as
so re-numbered the following clause be added :—-
'
(2) Every order made under clause (1) of this article shall, as soon as may be after it is
made, be laid before each House of Parliament. ' "
This
article 277 is a consequential article. It lays down what shall be the financial
consequences of the issue of an emergency proclamation by the President. Clause (1) of the
article says that provisions relating to financial arrangements between provinces and the
Center may be modified by the President by order during the period of the emergency. It
was felt that it was not proper to give the President this absolute and unrestricted power
to modify the financial arrangements between the Provinces and the States and that the
Parliament should also have a say in the matter. Consequently it is now proposed to add
clause (2) to article 277 whereby it is provided that any order made by the President
varying the arrangements shall be laid before each House of Parliament. It follows that
after the matter is placed before the Parliament. Parliament will take such action as it
deems proper, which the President will be bound to carry out.
****
[f19]
The Honourable Dr. B. R. Ambedkar (Bombay
: General) : Mr.
Vice-President, Sir, I have given as close an attention as it is possible to give to the
amendment moved by my Honourable Friend Pandit Kunzru, and
I am sorry to say that I do
not see eye to eye with him, because I feel that in a large measure his amendment seems to
be quite unnecessary.
Let us begin by having an idea as to what financial relations between the Center and the provinces are normally going to be. I think it is clear from the articles which have already been passed that the provinces will be drawing upon the Center in the normal course of things :
(1)
proceeds of income-tax under article 251 ;
(2)
a share of the central excise duties under article 253 ;
and
(3)
certain grants and subventions under article 255.
I
am not speaking of the jute duty because it stands on a separate footing and has been statutorily guaranteed.
Let
us also have an idea as to what the article as proposed by me proposes to do. What the
article proposes to do is this that it should be open to the President when an emergency
has been proclaimed to have the power to reallocate the proceeds of the income-tax, the
excise duties and the grants which the Center would be making under the provisions of
article 255. The article, as proposed by me, gives the President discretion to modify the
allocations under these three heads. That is the position of the draft article as
presented to the House by the Drafting Committee.
Now,
what does my Friend Pandit Kunzru propose to do by his amendment '? If I have understood him correctly, he does not differ from the Drafting Committee in leaving with the President
complete discretion to modify two of the three items to which I have made reference, that is to say, he is prepared to leave with the
President full and complete discretion to modify any
allocation made to the provinces by the Center out of the
proceeds of the excise duty and the grants made by the Center under article 255. If I
understood him correctly, he would have no difficulty if the President, by order,
completely wiped off any share that the Center was bound to give in normal times to the
provinces out of the proceeds of the excise duties and the grants made by the Center.
Pandit
Hirday
Nath Kunzru (United
Provinces : General) : I
never said any such thing.
The
Honourable Dr. B. R. Ambedkar:
Your amendment is limited only to the income-tax. That is what I am trying to point out.
You do not by your amendment, in any way suggest that there should be any different method
of dealing with the proceeds of the excise duties or the grants made by the Center under
article 255.
Pandit
Hirday
Nath Kunzru: The
reason why I cast my amendment in that form is this. In so far as the distribution of the
proceeds of any taxes depends on a statute passed by Parliament that power cannot be taken
away from Parliament but it does not belong to the President. But so far as income-tax is
concerned, the Government of India Act, 1935, envisaged the transfer of the full share of
the provinces to them within a certain period and allowed the Governor-General, in case
there was an emergency, to delay the transfer to the
provinces and thus lengthen the total period in which the provinces were to get their full
share. That was the only reason ; the inference drawn by my
Honourable Friend is completely unjustified.
The
Honourable Dr. B. R. Ambedkar:
I am entitled to draw the most natural inference from the
amendment as tabled.
Pandit
Hirday
Nath Kunzru :
The Honourable Member is completely misunderstanding me. Under my amendment the President
will have no power to alter the distribution of the proceeds of the Union excise duties.
The
Honourable Dr. B. R. Ambedkar: I
am sorry the Honourable Member did not make the matter clear in his amendment. And if he
wants to put a new construction now and make a fundamental change the amendment should
have been such as to give me perfect notice as to what was intended. There is nothing in
the amendment to suggest that the Honourable Member wants to alter the provisions of
articles 253 and 255. It may be an after thought but I cannot deal with after thoughts ; I have to deal with the amendment as it is tabled.
Therefore, as I read the amendment, my construction is very natural.
Pandit
Hirday
Nath Kunzru : The
Honourable Member is utterly unjustified.
The
Honourable Dr. B. R.
Ambedkar:
That is the Honourable Member's opinion. My reading is that something new is being put
forward now.
Pandit
Hirday
Nath Kunzru
: The Honourable Member is misrepresenting me and
knows that he is doing so.
The
Honourable Dr. B. R. Ambedkar:
The Honourable Member is misrepresenting his own thoughts. Therefore, as I understand it,
there is no question of my Honourable Friend suggesting any alteration in the system of
modifying the proceeds of the excise duty and the grant. The only question that he raised
is the question of the modification of the allocation of income-tax during an emergency.
Even so what do I find ? If I again read his amendment
correctly, he is not altogether taking away the discretion which is left to the President
in the matter of the modification of the allocation of the income-tax. All that he is
doing is that if the President was to make a modification of the allocation of the
income-tax as contained in the previous order, then the President should proceed in a
certain manner which he has stated in Ms amendment. In other words, the only difference
between the draft clause as put by me and the amendment of my Honourable Friend Pandit
Kunzru is this that, so far as the discretion of the President is concerned, it should not
be left unregulated, that it should be regulated in the manner which he suggests.
My
reply to that is this: Where is the reason to believe that
in modifying or exercising the power of the President to modify the provisions relating to
the distribution of the income-tax he will act so arbitrarily as to take away altogether
the proceeds of the income-tax ? Where is the ground for
believing that the President will not even adopt the suggestion made by my Honourable
Friend. Pandit Kunzru, in the amendment as he has put it '? There is no reason to suppose
or to make such an arbitrary suggestion that the President is going to wipe out altogether
the total proceeds which the provinces are entitled to receive under the allocation. After
all the President will be a reasonable man ; he will know
that to a very considerable extent the proceeds of the income-tax do form part of the
revenues of the provinces ; and he will also know that,
notwithstanding the fact that there is an emergency, it is as much necessary to help the
Center as it is necessary to keep the provinces going.
Therefore
in my judgement there is no necessity to tie down the hands of the President to act in a
particular manner in the way suggested by the amendment of my Friend Pandit Kunzru. It might be that the President on consultation with
the provinces or on consultation with the Finance Commission or any other expert authority
might find some other method of dealing with the proceeds of the income-tax in an
emergency, and the suggestion that he might have then might prove far better than what my
Friend Pandit Kunzru is suggesting. I therefore think that it would be very wrong to tie
down the hands of the President to act in a particular manner and not leave him the
liberty or discretion to act in many other ways that might suggest themselves to him. I
suggest that it is better to leave the draft as elastic as it is proposed to be done by
the Drafting Committee ; no
advantage will be gained by accepting the amendment of my Friend Pandit Kunzru.
As
I have said, I have made another amendment in the original draft which left the matter
entirely and completely to the discretion of the President and Parliament had no say in
the matter. By the new amendment I have proposed it is now possible for Parliament to
consider any order that the President may make with regard
to the allocation of the revenues ; and therefore if the
President is doing something which is likely to be very deleterious
or injurious to the interests of the province?, surely many
representatives in Parliament who would be drawn from the provinces and who would
undoubtedly not forget the interests of the provinces would be in a position to set
matters right. I therefore think that the original arrangement should be maintained by
virtue of the fact that it is far more elastic than what is suggested by my Honourable
Friend Pandit Kunzru.
[Amendment
of Dr. Ambedkar was adopted and that of Pandit Kunzru was negatived. Article 277, as amended was added to the Constitution.]
ARTICLE 280
[f20]
The Honourable Dr. B. R. Ambedkar:
Sir, I move:
"
That for article 280, the following article be substituted:— (Suspension of the rights guaranteed by article 25 of the Constitution during emergencies)
'
280. (1) Where a Proclamation of 'Emergency is in
operation, the President may by order suspension of the rights declare that the right to move any court for the enforcement of such of the rights
conferred by Part III of this Constitution as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned
shall remain suspended for the period during which the Proclamation is in force or for
such shorter period as may he specified in the Order.
(2)
All order made as aforesaid may extend to the whole or any
part of the territory of India.
(3)
Every order made under clause (1) of this article shall as soon as may be after it is made
be laid before each House of Parliament. ' "
Sir,
the House will realise that clauses (2) and (3) are additions to the old article. In the
old article there was a provision that while a Proclamation of Emergency was in force the
President may suspend the provisions for the rights contained in Part III throughout
India. Now, it is held that, notwithstanding the fact that there may he emergency, it may
be quite possible to keep the enforcement of the rights given by Part III in certain areas
intact and there need not be a universal suspension throughout India merely by reason of
the proclamation. Consequently clause (2) has been introduced into the draft article to
make that provision.
Thirdly,
the original article did not contain any provision permitting Parliament to have a say in
the matter of any order issued under clause (1). It was the desire of the House that the
order of suspension should not be left absolutely unfettered in the hands of the President
and consequently it is now provided that such an order should be placed before Parliament,
no doubt with the consequential provision that Parliament will be free to take such action
as it likes.
****
[f21]
The Honourable Dr. B. R. Ambedkar: Sir, I am not at all surprised at the
strong sentiments which have been expressed by some speakers who have taken part in the
debate on this article against the provisions contained in the clause as I have put
forward. The article deals with fundamental matters and with vital matters relating to rights of the people and it is therefore
proper that we should approach a subject of this sort not only with caution but—1 am
also prepared to say—with some emotion. We have passed certain fundamental rights
already and when we are trying to reduce them or to suspend them we should be very careful
as to the ways and means we adopt in curtailing or suspending them.
Therefore my intends who have spoken against that article will, I
hope, understand that I am in no sense an opponent of what they have said. In tact I
respect their sentiments very much. All the same I am sorry to say that I do not find it possible to accept either any of the amendments which they have moved or the suggestions that they have made. I
remain, if I may say so, quite unconvinced. At the same time, I may say that I am no less
fond of the fundamental rights than they are.
I
propose to deal in the course of my reply with some general questions. It is of course not
possible for me to go into all the detailed points that have been urged by the various
speakers. The first question is whether in an emergency there should be suspension of the
fundamental rights or there should be no suspension at all;
in other words, whether our fundamental rights should be absolute, never to be varied,
suspended or abrogated, or whether our fundamental rights must be made subject to some
emergencies. I think I am right in saying that a large majority of the House realises the
necessity of suspending these rights during an emergency ;
the only question is about the ways and means of doing it.
Now
if it is agreed that it is necessary to provide for the suspension of these rights
during an emergency, the next question that legitimately arises for consideration is
whether the power to suspend them should be vested absolutely in the President or whether
they should be left to be determined by Parliament. Now having regard to what is being
done in other countries—and I am sure every one in this House will agree that we must
draw upon the experience and the provisions contained in the constitutions of other
countries—the position is this. As to the suspension of the right of what is called haheus corpus the matter under the English law must of
course be dealt with by law. It is not open to the executive to suspend the right of haheus corpus.
That is the position in Great Britain. Coming next to the position in the United States,
we find that while the Congress has power to deal with what are called constitutional
guarantees including the suspension of the writ of hulbeas corpus the President is not altogether left without
any power to deal with the matter. I do not want to go into the detailed history of the
matter. But I think I am right in saying that while the power is left with the Congress,
the President is also vested with what may he called the ad interim power to
suspend the writ. My friends shake their heads. But I think if they referred to a standard
authority Corwin's book on '
the President ', they will find that that is the position.
Pandit
Hirday
Nath Kunzru : Will you let me interrupt him.
Sir ? I am sure he is familiar with Ogg's Government of America. Perhaps he will regard that book
as a standard book.
The
Honourable Dr. B. R.
Ambedkar:
Yes. That is not the only book. There are one hundred books on the American Constitution.
I am certainly familiar with some fifty of them.
Pandit
Hirday Nath Kunzru
: It is stated there that the best legal opinion is that
the right to suspend the privilege of the writ of hashes corpus
vests in the Congress and that the President may exercise it only where, as Commander-in-Chief of the Armed Forces he considers it
necessary for the security of the military operations.
The
Honourable Dr. B. R. Ambedkar:
Yes. My submission is that in the United States while the Congress has the power, the
President also, as the Executive Head of the State, has the ad interim power to
suspend.
Now,
in framing our Constitution, we have more or less followed the American
precedent. By the amendment which I have made, Parliament has been now vested with power
to deal with this matter. We also propose to give the President an ad interim power to take such action as he thinks
is necessary in the matter of the constitutional guarantee.
Therefore,
comparing the draft article and comparing the position as you find in the United States,
there is certainly not very great difference between the two. Here also the President does
not take action in his personal capacity. We have a further safeguard which the American
Constitution does not have, namely, our President will be guided by the advice of the executive and, our executive would be subject
to the authority of Parliament. Therefore, so for as the question of vesting all the power
to suspend the guarantees' is concerned, my submission is
that ours is not altogether a novel proposal which is made without either reference to any
precedent or made in a wanton planner without caring to what happens to the fundamental rights.
Now,
having dealt with that question, I come to amendment No. 74 of Mr. Bhargava. I think that is an important matter and should
therefore explain what exactly the provision is. His amendment really refers to article
279, although he has put it as an amendment to article 280. What he wants in that any
action taken by the State under the authority conferred upon it by the emergency
provisions to suspend the fundamental rights should
automatically cease with the ceasing of the Proclamation. I think that is what he wants so
far as amendment No. 74 is concerned. My submission is that if the article is read
properly, that is exactly what it means. I would like to draw his attention to article
279. He will see that that article does not save anything done under any law made under
the powers given by the emergency. In order that the matter may be clear to him I would
like again to draw his attention to article 227. If he compares the
two, he will see that there is a fundamental difference between the two articles. Article
227 is also an article which gives power to the Center to pass certain laws in an
emergency even affecting the State List. I would draw his attention to clause (2) of
article 227. He will find at the end of it that all acts
cease to have effect on the expiration of a period of six months after the Proclamation
has ceased to operate except as respect things done "or
omitted to be done before the expiration of the same period. This clause does not occur in
article 279. Therefore, not only any law that will be made under the provisions of article
279 will vanish, but anything done will also cease to be validly
done. Thus, a person who was arrested under the provisions of any law made under article
279, would when the law has ceased to be in force not be governed by it merely because it
has been done under any law made under that article. Under this article 279, not only the
law goes, but the act done also goes.
Then
I would draw attention to clause (2) of article 8. That again is an important article
which must be read with article 279. Article 8 is an exception to the general provisions
contained in this Constitution that the existing law will continue to operate. What
article 8 says is that any existing law which is inconsistent with any of fundamental rights will be inoperative. Article 8 clause (1)
deals with the existing law and clause (2) deals with future laws. Thus, ' any law made under article 279 ' would be a future law. When
the emergency ceases any law made under article 279 will come under clause (2) of article
8 so that if it becomes inconsistent with the fundamental rights it would automatically
cease.
Therefore
my submission is that, so far as amendment 74 is concerned the fears expressed are
groundless. There is ample provision in the existing law which would cover all the cases
my Honourable Friend Pandit Thakur Das Bhargava has in mind.
Pandit
Thakur Das Bhargava
: In article 277 (2) the reference is to a law made by
Parliament. It has no reference to any action taken by the executive. Secondly, it speaks of law made by Parliament
whereas under article 13 we have reference to a law made by a State as defined therein.
The Honourable Dr. B. R. Ambedkar: The State there means both, because the
word ' State ' used in article 279 is used in the same sense in which it is used in Part
III where it means both the Center, the provinces and even the municipalities.
Pandit
Thakur Das Bhargava
: Whereas in 227 (1) the reference is only to Parliament.
The
Honourable Dr. B. R. Ambedkar:
That is what I say. 279 will also be governed by 8. Therefore any law which is
inconsistent with the fundamental rights granted will cease to operate.
Now,
I proceed to deal with amendment No. 78 of Pandit Bhargava. In that amendment he has
stated that the order issued by the President suspending the provisions of any of these
fundamental rights shall be expressly ratified. He says that there must be express
ratification by Parliament of an
order issued by the President. The draft article proposed by the Drafting Committee provides that the ratification may be presumed
unless Parliament by a positive action cancels the order of the President. That is the
real difference between his amendment and the article as I have formulated.
Pandit
Thakur Das Bhargava
: But it is a very fundamental difference.
The
Honourable Dr. B. R.
Ambedkar:
That is a very fundamental thing. In a sense it is fundamental
and in a sense it is not fundamental because we have provided that the Proclamation shall
be placed before Parliament. That obligation I have now imposed. Obviously if the
Parliament is called and the Proclamation is placed before it, it would be a stupid thing
if the people who come into the Parliament do not take positive action and such a
Parliament would be an unnecessary thing and not wanted.
Pandit
Thakur Das Bhargava
: Is it not necessary to say that the law will only be
applicable for the period of the emergency and not for shorter period and not for six
months after the proclamation ?
The
Honourable Dr. B. R. Ambedkar:
I am coming to that, but so far as this question is concerned, it is a matter of mere
detail whether the Parliament should by an express resolution say that we want the
President to withdraw it, or we want the President to continue it, or we want the
President to continue it in a modified form. Once
Parliament is called and Parliament has become seized of the matter, is it not proper that
the matter should be left to Parliament and its consent presumed to have been given unless
it has decided otherwise ? Where is the difficulty ? I do not see anything with regard to the amendment.
An
Honourable Member
: It is one o'clock now.
Mr.
Vice-President:
We are going to finish this article.
The
Honourable Dr. B. R. Ambedkar:
Mr. Gupte has moved an amendment which is an amendment to the amendment of Pandit Bhargava,
No. 78. He wants that a definite period should be mentioned, that the Proclamation should
be placed before Parliament within two months. Pandit Bhargava's
amendment was one month, I think, if I mistake not and my original proposal is " as soon as possible ".
Well I do not know whether anybody wants to make this a matter of conscience and if this
matter was not guaranteed, we are going to fast unto death. I think " as soon as possible "
may be worked in such a manner that the matter may be placed before Parliament within one
month, within two months or may be even a fortnight. It is
a most elastic phrase and therefore, I submit that the provision as contained in the draft
is the best under the circumstances and I hope the House will accept it.
Mr.
Vice-President: I
now place the amendments before the House.
[All
amendments except that of Dr. Ambedkar were either withdrawn or rejected. Article 280 as amended was added to the Contributed.]
[f22]
The Honourable Dr. B. R. Ambedkar
(Bombay: General) : Sir, I
move:
"
That for article 254 the following article be substituted :—
(Public Service Commission for the Union & for the State).
284.
(1)
Subject to the provisions of this article, there shall be a Public Service Commission for
the Union and a Public Service Commission for each State.
(2)
Two or more States may agree that there shall be one Public Service Commission for that
group of states, and if a resolution to that effect is passed by the House or, where there
are two Houses, by each House of the Legislature of each of those States Parliament may by
law provide for the appointment of a Joint Public Service Commission (referred to in this
Chapter as Joint Commission) to serve the needs of those States.
(2a)
Any such law as aforesaid may contain such incidental and consequential provisions as may appear necessary or desirable
for giving effect to the purposes of clause (2)
of this article.
(3)
The Public Service Commission for the Union, if requested so to do by the governor or Ruler of a State, may, with the approval of the
President agree to serve all or any of the needs of the State.
(4)
References in this Constitution to the Union Public Service Commission or a State Public
Service Commission shall, unless the context otherwise
requires, be construed as references to the Commission serving the needs of the Union or, as the case may be, the
State as respects the particular matter in question."
The
article is self-explanatory and I do not think that any observations are necessary to
clear up any point in this article. I will therefore reserve may remarks to the stage when
I may be called upon to reply to any criticism that may be made.
Shri
Lakshminarayan Sahu
(Orissa : General) : May I know, Sir, why the provision as to any such law by
Parliament is introduced and also why mention has been made of Ruler in these provisions ?
The
Honourable Dr. B. R. Ambedkar:
If I understand my friend Mr. Sahu correctly, he wants to know why we have introduced the
provision for Parliament to make law. He will understand that the basic principle is that
each State should have its own Public Service Commission. But, if, for administrative
purposes or for financial purposes it is not possible for
each State to have a Public Service Commission of its own, power is left open for two
States by a resolution to confer power upon the center to make provision for a joint
Regional Commission to serve the need's of two such States
which, as I have said, either for administrative or for financial reasons are not in a
position to have a separate independent Commission for themselves. Obviously, when such a
power is conferred upon the Center, it must be that the power so conferred must be
regulated by law made by Parliament and it should not be open to the President either to
constitute a Joint Commission for two States by purely executive order. It is for that
purpose that power is given to Parliament to regulate the composition of any Commission
which is to serve two States.
Shri
Lakshminarayan Sahu : The other point as to why the '
Ruler ' has been mentioned ?
The
Honourable Dr. B. R.
Ambedkar:
Because it may be that even a State in Part III may find it unnecessary to have an
independent Public Service Commission for itself. Consequently, the door again there
should not be closed to a State in Part III if that State were to agree to any State in
Part I jointly to make a request to the President that a Joint Commission may be
appointed. That is the reason why ' Rule ' is included in the provisions of this article.
Shri
R. K. Sidhva (C. P. & Berar : General) : I want one
clarification. In clause (3) it is stated " with the approval of the President, agree to serve all
or any of the needs of the State." May I know if any local body wants to utilise the
services of the Service Commission, will that be allowed ?
The
Honourable Dr. B. R. Ambedkar:
Yes. There is a separate article for that making provision that if a local authority wants
its needs to be served by the Public Service Commission, it will be possible for
Parliament to confer such authority upon the Public Service Commission also to serve the
needs of such local authority.
(Amendment
No. 2 was not moved)
****
[f23]
Mr. President:
Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar:
I do not thin there is anything that I need say.
[All
amendments except that of Dr. Ambedkar were rejected.
Article 284 as amended was added to the Constitution.]
ARTICLE 285
Mr.
Naziruddin Abrnad :
.. .I think it
is difficult for anyone to try to follow these changes. I therefore object not only on the
ground of their being in breach of the rules but also on the ground they are in a form not
readily intelligible and they should have been expressed as amendments to the Constitution
itself.
[f24]
The Honourable Dr. B. R. Ambedkar: This is not the first time when my friend has raised a point
of Order. You have been good enough to allow the Drafting Committee to depart from the
technicalities of the Rules of Procedure and I therefore submit that in this case also you
will be pleased to allow us to proceed.
****
[f25]
Mr.
President:
...Dr. Ambedkar may explain how the separate articles came
into being. You move them together and we may take them separately at the time of voting.
[f26]
The Honourable Dr. B. R.
Ambedkar:
Yes, they may be put separately. Sir I move:
"
That for article 285, the following articles be substituted :—
(Appointment & term of office of members).
285.
(1) The Chairman and other members of a Public
Service Commission shall be appointed, in the case of the
Union Commission or a
Joint Commission, by the President, and in the case of a State Commission, by the Governor or Ruler of the State:
Provided
that at least one-half of the members of every Public Service Commission shall be persons
who at the dates of their respective appointments have held office for at least ten years
either under the Government of India or under the Government of a State, and in computing
the said period of ten years any period before the commencement of this Constitution
during which a person has held office under' the Crown
shall be included.
(2)
A member of a Public Service Commission shall hold office for a term of six years from the
date on which he enters upon his office or until he attains, in the case of the Union
Commission, the age of sixty-five years, and in the case of a State Commission or a Joint
Commission, the age of sixty years, whichever is earlier:
Provided
that—
(a)
a member of a Public Service Commission may by writing under his hand addressed, in the
case of the Union Commission or a Joint Commission, to the President and in the case of a
State Commission, to the Governor or Ruler of the State, resign his office;
(b)
a member of a Public Service Commission may be removed from his office in the manner
provided in clause (1) or clause (3) of article 285-A
of this Constitution.
(3)
A person who holds office as a member of a Public Service Commission
shall, on the expiration of his term of office, be ineligible for re-appointment to
that office.
(Removal & suspension of a member of a Public Service Commission)
285A. (1) Subject to
the provisions of clause (3) of this article,
the Chairman or any other member
of a Public Service Commission shall only be
removed from office by order of the President on the ground
of misbehaviour after the
Supreme Court on a reference being made to it by the President has, on inquiry held in
accordance with the procedure prescribed in that behalf under article 121 of this
Constitution, reported that the Chairman or such other member, as the case may be, ought
on any such ground be removed.
(2)
The President in the case of the Union Commission or a Joint Commission and the Governor or Ruler in the case of a State Commission may suspend
from office the Chairman or any other member of the Commission in respect of whom a
reference has been made to the supreme Court under clause (1) of this article until the President has passed
orders on receipt of the report of the Supreme Court on such reference.
(3)
Notwithstanding anything contained in clause (1)
of this article, the President may, by order, remove from office the Chairman or any other
member of a Public Service Commission if the Chairman or, such other member, as the case
may be—
(a)
is adjudged as insolvent; or
(b)
engages during his term of office in any paid employment outside the duties of his office;
"
And
here I want to add a third one, as (c) : "
(c)
is
in the opinion of the President unfit to continue in office by reason of infirmity of mind
or body.
(4)
For the purpose of clause (1) of this article,
the Chairman or any other member of a Public Service Commission may be deemed to be guilty
of misbehaviour if he is or becomes in any way concerned or interested in any contract or
agreement made by or on behalf of the Government of India or the Government of a State or
participates in any way in the profit thereof or in any benefit from emoluments arising
therefrom otherwise than as a member and in common with the
other members of any incorporated company.
(Power to make regulations as to conditions of service of members & staff
of the Commission)
285-B.
In the case of the Union Commission or a Joint Commission, the President and in
the case of a State Commission, the Governor or Ruler of
the State, may by regulation—
(a)
determine the number of members of the Commission, and their conditions of service; and
(b)
make provision with respect to the number of members of the staff of the Commission and
their conditions of service :
Provided
that the conditions of service of a member of a Public Service Commission shall not be
altered to his disadvantage after his appointment.
(Bar to the holding of offices by members of Commissions on ceasing to be such
members).
285-C.
On ceasing to hold office—
(a)
the Chairman of the Union Public Service Commission shall be ineligible for further employment either under the Government of India or under the
Government of a State;
(b)
the chairman of a State Public Service Commission shall be eligible for appointment as the
Chairman or any other member of the Union Public Service
Commission or as the Chairman of any other State Public Service Commission but not for any
other employment either under the Government of India or under the Government of a State;
(c)
a member other than the Chairman of the Union Public Service Commission shall he eligible
for appointment as the Chairman of the Union Public Service Commission or as the Chairman
of a State Public Service Commission but not for any other employment either under the
Government of India or under the Government of a State;
(d)
a member other than the Chairman of a State Public Service Commission shall be eligible
for appointment as the Chairman or any other member of the Union Public Service Commission
or as the Chairman of that or any other State Public Service Commission, but not for any
other employment either Under the Government of India or under the Government of a State.
Sir,
these are the clauses which deal with the Public Services Commissions, their tenure of office and qualifications and disqualifications and their
removal and suspension. I should very briefly like to explain to the House the matters
embodied here,
the principal mattes that are embodied in these articles.
The
first point is with regard to the tenure of the Public Service Commission. That is dealt with in article 285. According to the provisions
contained in that article the term of office of a member of the Public Service Commission
is fixed at six years or in the case of the Union Commission, until he reaches the age of
65 and in the case of a State Commission untill he reaches the age of 60. That is with
regard to the term of office.
Then
I come to the removal of the members of the Public Service Commission. That matter is
dealt with in article 285-A. Under the provisions of that article, a member of the Public
Service Commission is liable to be removed by the President on proof of misbehaviour. He
is also liable to be removed by reason of automatic disqualification. This automatic
disqualification can result in three cases. One is insolvency. The second is engaging in
any other employment and the third is that he becomes infirm in mind or body. With regard
to misbehaviour, the provision is some what peculiar. The Honourable House will remember
that in the case of the removal of High Court Judges or the Judges of the Supreme Court,
it has been provided in the articles we have already passed that they hold their posts
during good behaviour, and they shall not be liable to be removed until a resolution in
that behalf is passed by both Chambers of Parliament. It is felt that it is unnecessary to
provide such a stiff and severe provision for the removal of members of the Public Service
Commission. Consequently it has been provided in this article that the provisions
contained in the Government of India Act for the removal of the Judges of the High Court
would be sufficient to give as much security and as much protection to the members of the
Public Service Commission. I think the House will remember that in the proviso contained in the Government
of India Act, what is necessary for the removal of a Federal Court Judge or a High Court
Judge is an enquiry made by the Federal Court in the case of the High Court Judges or by
the Privy Council in the case of the Federal Court Judges, and on a report being made that
there has been a case of misbehaviour, it is open to the Governor-General to remove either
the Federal Court Judge or the Judge of the High Court. We have adopted the same provision
with regard to the removal of Public Service Commission, wherever there is a case of
misbehaviour.
With
regard to automatic disqualifications, I do not think that there could be any manner of
dispute because it is obvious that if a member of the Public
Service Commission has become insolvent, his integrity could not be altogether relied upon
and therefore it must act as a sort of automatic disqualification. Similarly, if a member
of the Public Service Commission who is undoubtedly a whole-time officer of the State,
instead of discharging his duties to the fullest extent possible and devoting all his
time, were to devote a part of his time in some other employment, that again should be a
ground for automatic disqualification. Similarly the third disqualification, namely, that
he has become infirm in body and mind may also be regarded, without any kind of dispute,
as a fit case for automatic disqualification. Members of the House will also remember that
while reading article 285-A, there is a provision made for
suspension of a member of the Public Services Commission during an enquiry made by the
Supreme Court. That provision is, I think, necessary. If the President thinks that a
member is guilty of misbehaviour, it is not desirable that the member should continue to
function as a member of the Public Services Commission unless his character has been
cleared up by a report in his favour by the Supreme Court.
Now,
I come to the other important matter relating to the employment or eligibility for
employment of the members of the Public Services Commission both—the Union and State
Public Services Commissions. Members will see that according to article 285, clause (3), we have made both the Chairman and the Members
of the Central Public Services Commission as well as the Chairman of the State Commission,
and the members of the State Commission ineligible for reappointment to the same posts:
that is to say, once a term of office of a Chairman and Member is over, whether he is a
Chairman of the Union Commission or the Chairman of a State Commission, we have said that
he shall not be reappointed. I think that is a very salutary provision, because any hope
that might be held out for reappointment, or continuation in the same appointment, may act
as a sort of temptation which may induce the Member not to act with the same impartiality
that he is expected to act in discharging his duties. Therefore, that is a fundamental bar
which has been provided in the draft article.
Then
the second thing is that according to article 285-C, there is also a provision that
neither of these shall be eligible for employment in any other posts. There is therefore a
double disqualification. There is no permission to continue them in their office, nor is
there provision for their appointment in any other posts. Now, the only exceptions, that
is to say, cases where they could be appointed are these :
The
Chairman of a State Public Services Commission is permitted
to be a Chairman or a Member of the Union Commission, or a Chairman of any other State
Commission. .
Secondly,
the Members of the Union Commission can become Chairman of the Union Commission or any
other State Commission.
Thirdly,
the Members of the State Commission can become a Chairman or a member of the Union
Commission, or the Chairman of a State Commission.
In
other words, the exceptions are : namely, that one man, who
is a Member of the Union Public Services Commission, may become a Chairman of the State
Public Services Commission can become a Chairman of the Union Public Services Commission,
or become a Member of the Union Public Services Commission. The principal point to be
noted is this, that neither the Chairman nor the Member of a State Commission can have
employment under the same State. He can be appointed by another
State as a Chairman or he can be appointed by the Central Government as the Chairman of
the Union Public Services Commission or a Member of the Union Public Services Commission,
the object being not to permit the State to exercise any patronage in the matter either of
giving continued employment in the same post, or in any other post, so that it is hoped
that with these provisions the Members of the Commission will be as independent as they
are expected to be.
I
do not think there is any other point which calls for explanation.
Shri
Lakshminarayan
Sahu : What about Members of
Joint Commissions ?
The
Honourable Dr. B. R. Ambedkar : A Joint Commission is the State Commission. That is defined
in clause (4) of article 284.
Dr.
Manmohan Das
(West Bengal : General) : I
would like to be clear on some points about 285-A. If the Supreme Court as being referred
by the President reports that the Chairman or some other Member of the Public Service
Commission should be removed, then will it be obligatory on the part of the President to
remove him ?
The
Honourable Dr. B. R. Ambedkar:
Certainly.
Mr.
Naziruddin Ahmad :
You have asked the Honourable Member to explain to the
House the difference between the new draft and the original. That would have been helpful
for a proper appreciation of the real changes.
The
Honourable Dr. B. R.
Ambedkar:
If any point is raised in the course of the debate, I will explain it in the course of my
reply.
Mr.
Naziruddin Ahmad : I
do not know whether to oppose or not to oppose.
The
Honourable Dr. B. R. Ambedkar:
You must have read both drafts. The only thing you might not have read are the commas and
semicolons.
Mr.
President: I
will now take up the amendments. -
****
[f27]
The Honourable Dr. B. R. Ambedkar:
Mr. President, Sir, there are just a few points on which I would like to say a word or two
in reply to the criticism made on the articles which I have submitted to the House.
The
first criticism is with regard to the composition of the Public Service Commission. The
reservation made there that at least one-half of the
members of the Public Service Commission should have been servants of the Crown has been
objected to on the ground that this is really a paradise prepared for the I.C.S. people. I am sorry
to say that those who have made this criticism do not seem to have understood the purpose,
the significance and the functions of the Public Service Commission. The function of the
Public Service Commission is to choose people who are fit for Public Service. The judgment
required to come to a conclusion on the question of fitness presupposes a certain amount
of experience on the part of the person who is asked to judge. Obviously nobody can be a
better judge in this matter than a person who has already been in the service of the
Crown. The reason therefore why a certain proportion is reserved to persons in service is
not because there is any desire to oblige persons who are already in the service of the
Crown but the desire is to secure persons with the necessary experience who would be able
to perform their duties in the best manner possible.
However, I am prepared to accept an amendment if my Friend Mr. Kapoor
is prepared for it. I am prepared to say—
" Provided that as nearly as may be one-half " instead of saying " Provided that at least one-half"
Shri
H. V. Kamath : Why not say " not more
than one-half " ?
The
Honourable Dr. B. R. Ambedkar:
No, I have done my best. With regard to the second question, that
persons who have been in the Public Service Commission should be permitted to accept an
honorary office under the State, personally I am not now inclined to accept that
suggestion. Our whole object is to make the members of the Public Service Commission
independent of the executive. One way of making them independent of the executive is to
deprive them of any office with which the executive might tempt them to depart from their
duty. It is quite true that an office which is not an office of profit but an honorary
office does not involve pay. But as every body knows pay is not the only thing which a person obtains by
reason of his post. There is such a thing as " pay, pickings and pilferings
". But even if it is not so, there is a certain amount
of influence which an office gives to a person. And I think it is desirable to exclude
even the possibility of such a person being placed in a post where, although he may not
get a salary, he may obtain certain degree of influence.
Now,
I come to the amendment of my Friend Mr. Kunzru. I quite agree with him that there is obviously a
distinction made between the services to be employed under the Public Service Commission
and the services to be employed under the High Court, the Supreme Court and the
Auditor-General. I would like to explain why we have made this distinction. With regard to
the staff of the High Court and the Supreme Court, at any rate those who are occupying the
highest places are required
to exercise a certain amount of judicial discretion. Consequently we felt that not only
their salaries and pensions should be determined by the Chief Justice with the approval of
the President but the conditions of their service also should be left to be determined by
the Chief Justice. In the case of the Public Service Commission much of the staff—in
fact the whole of the staff-— will be merely concerned with what we call " ministerial duties "
where there is no authority and no discretion is left. That is the reason why we have made
this distinction. But I quite see that my argument is probably not as sound as it might
appear. All the same I would suggest to my Honourable Friend Pandit Kunzru to allow this
article to go through on the promise that at a later stage if I find that there is a
necessity to make a change I will come before the House with the necessary amendment.
Sir,
my attention is drawn to the fact in the cyclostyled copy
of my amendment to article 285-A in sub-clause (3)(b)
the words ought to be ' in any paid employment '. They have been typed wrongly
as ' in any body's employment.'
I hope the correction will be made.
As
I said to Pandit Kunzru, the Drafting Committee will look into the matter and if it feels that there are grounds to make any alteration they will,
with the permission of the House come forward with an amendment so that the position may
be rectified.
Mr.
President:
I will now put the amendments to vote first.
The
question is :—
"
That in amendment No. 3 above, in the proviso to clause (1) of the proposed article 285,
for the word ' one-half ' the word ' one third ' be substituted."
Shri
Jaspat Roy Kapoor :
In the place of this I accept the suggestion made by Dr. Ambedkar
to have nearly ' as may be one-half '.
Mr.
President:
Then I shall put that to vote. The question is :
"
That in amendment No. 3 above, in the proviso to clause (1) of the proposed article 285, for the words ' at least one-half ' the words
' as nearly as may be one-half ' be substituted."
[The
amendment was adopted. Article 285, as amended, was added to the Constitution.]
****
[f28]
Mr. President:
We shall now proceed with the consideration of article 286 and the subsequent articles.
The
Honourable Dr. B. R.
Ambedkar (Bombay
: General) : Sir, May I,
with your permission, move amendments Nos. 12, 16, 17 and
19 together ? They all relate to the same subject. There
may be a common debate and then you might put each amendment separately.
Mr.
President:
Yes, I agree.
The
Honourable Dr. B. R. Ambedkar:
Sir, I move :
"
That for article 286, the following article be substituted :—
(Functions of Public Service Commission).
286
(1) It shall be the duty of the Union and the
State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively.
(2)
It shall also be the duty of the Union Public Service Commission, if requested by any two
or more States so to do, to assist those States in framing and operating schemes of joint
recruitment for any services for which candidates possessing special qualifications are
required.
(3)
The Union Public Service Commission or the State Public Service Commission, as the case
may be, shall be consulted—
(a) on
all matters relating to methods of recruitment to civil services and for civil posts;
(b) on
the principles to be followed in making appointments to
civil services and posts and in making promotions and transfers from one service to another and on the suitability
of candidates for such appointment, promotions or transfers;
(c) on
all disciplinary matters affecting a person serving under the Government of India or the
Government of a State in a civil capacity, including memorials or petitions relating to
such matters;
(d) on
any claim by or in respect of a person who is serving or has served under the Government
of India or the Government of a State or under the Crown, in a civil capacity, that any
costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting
to be done in the execution of his duty should be paid out of the Consolidated Fund of
India or, as the case may be, of the State;
(e) on
any claim for the award of a pension in respect of injuries sustained by a person while
serving under the Government of India or the Government of
a State or under the Crown in a civil capacity, and any
question as to the amount of any such award,
and
it shall be the duty of a Public Service Commission to advise on any matter so referred to
them and on any other matter which the President or. as the case may be, the Governor or
Ruler of the State may refer to them :
Provided
that the President as respects the All India Services and also as respects other services and posts in connection with the affairs of the Union, and
the Governor or Ruler, as the case may be, as respects other services and posts in connection with the affairs of a State, may make
regulations specifying the matters in which either generally, or in any particular class
of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to
be consulted.
(4)
Nothing in clause (3) of this article shall
require a Public Service Commission to be consulted as respects
the manner in which appointments and posts are to be reserved in favour of any backward class citizens in the Union or a State.
(5)
All regulations made under the proviso to clause (3)
of this article by the President or the Governor or Ruler
of a State shall be laid for not less than fourteen days before each House of Parliament
or the Houses or each House of the legislature of the
State, as the case may be, as soon as possible after they
are made. and shall be subject to such modifications, whether by way of repeal or
amendment, as both Houses of Parliament or the House or
both Houses of the Legislature of the State may make during the session in which they are
so laid."
"
That for article 287, the following be substituted :—( Power to extend functions of Public Service Commission).
287.
An Act made by Parliament or, as the case may be, the
Legislature of a State may provide for the exercise of additional functions by the Union
Public Service Commission or the State Public Service Commission as respects the services of the Union or
the State and also of any local authority or other body corporate
constituted by law or public institution ".
"
That for article 288, the following be substituted :— (Expenses of Public Service
Commission).
288.
The expenses of the Union or a State Public service Commission, including any salaries, allowances and pensions
payable to or in respect of the members or staff of the
Commission, shall be charged on the Consolidated Fund of India or, as the case may be, the State."
"
That for amendment No. 3075 of the List of Amendments the
following be substituted :—
"
That after article 288, the following new article be added :—
(Reports of the Public Service Commissions).
288-A,
(1) It shall be
the duty of the Union Commission to present annually to the President a report as to the
work done by the Commission and on receipt of such report the President shall cause a copy
thereof together with a memorandum explaining, as respects
the causes, if any, where the advice of the Commission was not accepted, the reasons for such
non-acceptance to be laid before each House of Parliament.
(2)
It shall be the duty of a State Commission to present annually to the Governor or Ruler of
the State a report as to the work done by the Commission, and it shall be the duty of a
Joint Commission to present annually to the Governor or Ruler or each of the States the
needs of which are served by the Joint Commission a report as to the work done by the
Commission in relation to that State, and in either case the Governor
or Ruler, as the case may be, shall, on receipt of such report,
cause a copy thereof together with a memorandum explaining as respects the cases, if any, where the advice of the Commission was not accepted,
the reasons for such non-acceptance to be laid before the Legislature of the State."
The
articles are self-explanatory and I do not think that at this stage it is necessary for me to make any comments to bring out any of the
points, because the points are all very plain. I would therefore reserve my remarks
towards the end when after the debate probably it may be necessary for me to offer some
explanation of some of the points raised.
Sir,
I move.
****
[f29]
Mr. President:
Dr. Ambedkar.
The
Honourable Dr. B. R.
Ambedkar:
Mr. President. Sir, after the speeches that have been made by my Friend Mr. Ananthasayanam Ayyangar and my Friend Mr. Kunzru, there is very little
that is left for me to say in reply to the various points that have been made. Mr. Jaspat Roy Kapoor said that
clause (2) was unnecessary. I do not agree
with him because clause (2) deals with a matter which is
quite different from the one dealt with in the original article 284. I think it is
necessary, therefore, to retain both the clauses.
The
only point that remains for me to say anything about is the question that is raised about
the Scheduled Castes and the Backward Classes. I think I might say that enough provision
has been made, both in article 296 which we have to
consider at a later stage and in article 10, for safeguarding the interests of what are
called the Scheduled Castes, the Scheduled Tribes and the Backward Classes. I do not think
that any purpose will be served by making a provision whereby it would be obligatory upon
the President to appoint a member of what might be called either a Scheduled Caste, or
Scheduled Tribe or a member belonging to the backward classes.
Shri
A. V. Thakkar
(Saurashtra) : Other
backward classes.
The
Honourable Dr. B. R. Ambedkar:
The function of a member of the Public Service Commission is a general one. He cannot be
there to protect the interests of any particular class. He shall have to apply his mind to
the general question of finding out who is the best and the most efficient candidate for
an appointment. The real protection, the real method of protection is one that has been
adopted, namely, to permit the Legislature to fix a certain quota to be filled by these
classes. I am also asked to define what are backward classes. Well, I think the words
"backward classes "so far as this country is concerned is almost elementary. I
do not think that I can use a simpler word than the word "
Backward Classes ". Everybody in the province knows
who are the backward classes, and I think it is, therefore, better to leave the matter as
has been done in this Constitution, to the Commission which is to be appointed which will
investigate into the conditions of the state of society, and to ascertain which are to be
regarded as backward classes in this country.
Shri
A. V. Thakkar : May I ask whether it will not take several years before
that is done ?
The
Honourable Dr. B. R.
Ambedkar:
Yes, but in the meantime, there is no prohibition on any provincial government to make
provisions for what are called the backward classes. They are left quite free, by article
10. Therefore, my submission is that there is no fear that the interests of the backward
classes or the Scheduled Castes will be overlooked in the recruitment to the services. As
my Friend Pandit Kunzru has said, the articles I have
presented to the House are certainly a very great improvement upon what the articles were
before in the Draft Constitution. We have, if I may say so for myself, studied a great
deal the provisions in the Canadian law and the provisions in the Australian law. and we
have succeeded, if I may say so, in finding out a via
media which I hope the House will not find any difficulty in accepting.
[Article
286, as proposed by Dr. Ambedkar not adopted and added to the Constitution.]
ARTICLE 292
[f30]
The Honourable Dr. B. R. Ambedkar: I
move that for article 292, the following be substituted : (Reservation of seats for Scheduled castes & Scheduled Tribes in the House
of he People).
"
292 (1) Seats shall be reserved in the House of
the People for—
(a) the
Scheduled Castes;
(b) the
scheduled tribes except the scheduled tribes in the tribal areas of Assam;
(c) the
scheduled tribes in the autonomous districts of Assam.
(2)
The number of seats reserved in any State for the Scheduled Castes or the Scheduled Tribes
under clause (1) of this article shall bear,
as nearly as may be, the same proportion to the total
number of seats allotted to that state People as the
population of the Scheduled Castes in that State or of the Scheduled Tribes in that State
or part of that State as the case may be, in respect of
which seats are so reserved bears to the total population of that State."
This
article 292 is an exact reproduction of the decisions of the Advisory Committee in this
matter and I do not think any explanation is necessary.
Mr.
President:
This represents the decision which was taken at another session of this House when we
considered the Advisory Committee's report. This puts in form the decision then taken....
****
[f31]
The Honourable Dr. B. R. Ambedkar
(Bombay : General) : I was
going to suggest, with regard to the amendment which stands in the name of Rev. Nichols Roy, that this is more relevant to the interpretation
clause where the Scheduled Castes and the tribal people will be defined. If my friend is
keen on moving this amendment, I think it should properly stand over until we come to that
part of the Constitution—article 303.
Mr.
President:
Have you followed Dr. Ambedkar ?
The
Honourable Rev. J. J.
M. Nichols-Roy (Assam : General) : Yes, I have. My
amendment was based on the amendment which was going to be moved by Mr. Thakkar, No. 3108, and I now find that the amendment (No. 28) which he is now going to move is in a
different form. However, if Mr. Thakkar is not going to move this amendment, I also will
not move my amendment now. But I reserve the right that I shall move my amendment at the
time when this matter will be discussed under article 303.
The
Honourable Dr. B. R. Ambedkar: I also suggest that the amendments which stand in
the name of Mr. Thakkar should stand over and be taken at the same time when we are
dealing with article 303.
The
Honourable Rev. J. J.
M. Nichols-Roy :
If Mr. Thakkar agrees. I will agree.
Shri
A. V. Thakkar (Saurashtra)
: I completely agree.
****
[f32]
Sardar
Bhopinder Singh Man
(East Punjab : Sikh) : As a
number of amendments have been moved, it seems to me that some time be given to oppose
those amendments.
Mr.
President:
As I said we have discussed this very proposition for two full days in this House, and
every section of the House had full opportunity of expressing itself on the general
principles. Now it is those very principles which are sought to be embodied in the
resolution which has been placed before the House by Dr. Ambedkar.
I do not think any further discussion will help the
Members. I therefore call upon Dr. Ambedkar to speak.
The
Honourable Dr. B. R.
Ambedkar:
Mr. President, Sir, a great many of the points which were raised in the course of the
debate on this article and the various amendments are, in my judgment, quite irrelevant to
the subject matter of this article. They might well be raised when we will come to the
discussion of the electoral laws and the framing of the constituencies. I, therefore, do
not propose to deal with them at this stage.
There
are just three points which, I think, call for a reply. One point is the one which is
raised by Mr. Laskar by his amendment. His amendment is to
introduce the words " save in the case of the
Scheduled Castes in Assam ". I have completely failed
to understand what he intends to do by the introduction of these words. If these words
were introduced it would mean that the Scheduled Castes in Assam
will not be entitled to get the representation which the article proposes to give them in
the Lower House of the Central Parliament, because if the words stand as they are, " save in the case of the Scheduled Castes in Assam " unaccompanied by any other provision, I cannot see what
other effect it would have except to deprive the Scheduled Castes of Assam of the right to
representation which has been given to them. If I
understand him correctly, I think the matter, which he has raised, legitimately refers to
article 67B of the Constitution which has already been passed. In that article it has been
provided that the ratio of representation in the Legislature should have a definite
relation to certain population figures. It has been laid down that the representation in
the Lower House at the Center shall be not less than one representative for every 7,50,000
people, or not more than one representative for a population of 5,00,000. According to
what he was saying—and I must confess that it was utterly impossible for me to hear
anything that he was saying— but if I gathered the purport of it, he seems to be
under the impression that on account of the division of Sylhet
district the population of the Scheduled Castes in Assam has been considerably reduced and
that there may not be any such figure as we have laid down, namely 7,50,000 or 5,00,000,
with the result that he feels that the Scheduled Castes of Assam will not get any
representation. But I should like to tell him that the provision in article 67(5)(b) does not apply to the Scheduled Castes. It
applies to the constituency. What it means is that if a constituency consists of 7,50,000
people, that constituency will have one seat. It may be that within that constituency the
population of the Scheduled Castes is much smaller, but that would not prevent either the
Delimitation Committee or Parliament from allotting a seat for the Scheduled Castes in
that particular area. His fear, therefore, in my judgment,
is utterly groundless.
Then
I come to the amendment moved by Sardar Hukam Singh in which he
suggests that provision ought to be made whereby the Scheduled Castes and the Scheduled
Tribes would be entitled to contest seats which are generally
not reserved for the Scheduled Castes or the Scheduled Tribes. He said that the Drafting Committee has made a deliberate omission. I
do not think that is correct. It is accepted that. the Scheduled Castes and the Scheduled
Tribes shall be entitled to contest seats which are not reserved
seats, which are unreserved seats. That is contained in the report of the Advisory
Committee which has already been accepted by the House. The reason why that particular
provision has not been introduced in article 292 is because it is not germane at this
place. This proposition will find its place in the law relating to election with which
this Assembly or the Assembly in its legislative capacity will have to deal with. He
therefore need have no fear on that ground.
With
regard to the point raised by my Friend Mr. Pillai that the
population according to which seats are to be reserved should be estimated by a fresh
census, that matter has been agitated in .this House on
very many occasions. I then said that it was quite impossible for the Government to commit
itself to taking a fresh census but the Government has kept
its mind open. If it is feasible the government may take a fresh census in order to
estimate the population of the Scheduled Castes or the Scheduled Tribes in order to calculate the total presentation
that they would be entitled to in accordance with the provisions of article 292. The
Government is also suggesting that if in any case it is not
possible to have a fresh census, they will estimate the population of these communities on
the basis of the voters' strength which may be calculated from them, in which case we
might be able to arrive at what might be called a rough and ready estimate of the
population. I do not think it is possible for me to go beyond that.
All
the other amendments I oppose.
[Article
292, as amended by Dr. Ambedkar's motion was added to the Constitution.]
[f33]
Mr. President:
Dr. Ambedkar.
The
Honourable Dr. B. R.
Ambedkar:
I do not think it is necessary to say anything.
[Article 293
was added to the constitution without any amendment.]
ARTICLE 294
[f34]
The
Honourable Dr. B. R. Ambedkar:
Sir, I move :
"
That for article 294, the following be substituted :—
(Reservation of seats for minorities in the Legislative
Assemblies of the States).
294.
(1) Seats shall be reserved for the Scheduled
Castes and the Scheduled Tribes, except the Scheduled Tribes in the tribal areas of Assam
in the Legislative Assembly of every State for the time .being
specified in Part I or Part m of the First Schedule.
(2} Seats shall be reserved also for the autonomous districts in
the Legislative Assembly of the State of Assam.
(3)
The number of seats reserved for the Scheduled Castes or
the Scheduled Tribes in the Legislative assembly of any
State under clause (1) of this article shall
bear, as nearly as may be, the same proportion
to the total number of seats in the assembly as the population of the Scheduled Castes in
the State or of the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved bears to the total population of the State.
(4)
The number of seats reserved for an autonomous district in the Legislative Assembly of the
State of Assam shall bear to the total number of seats in that Assembly a proportion not
less than the population of the district bears to the total
population of the State.
(5)
The constituencies for the seats reserved for any
autonomous district of the State of Assam shall not comprise any area outside that district except in the
case of the constituency comprising the cantonment and the Municipality of Shillong.
(6)
No person who is not a member of a Scheduled Tribe of any autonomous
district of the State of Assam shall be eligible for election to the Legislative Assembly
of the State from any constituency of that district except from the constituency comprising the cantonment and municipality of Shillong.' "
This article is exactly the same as the
original article as it stood in the Draft Constitution. The only amendment is that the
provision for the reservation of seats for the Muslims and the Christians has been omitted
from clause (1) of article 294. That is in
accordance with the decision taken by this Assembly on that matter.
ARTICLE 295-A
[f35]
The
Honourable Dr. B. R. Ambedkar:
Sir, I 'move :
"
That after article 295, the following new article be inserted :—
(Reservation of seats for Scheduled Castes & Scheduled Tribes to cease to
be in force after the expiration of ten years from the commencement of this constitution).
'
295-A. Notwithstanding anything contained in the foregoing provisions of this Part, the
provisions of this Constitution relating to the
reservation of seats for scheduled caste and the Scheduled
Tribes either in the House of the People or in the Legislative Assembly of a State shall
cease to have effect on the commencement of this constitution
This
is also in accordance with the decision of the House. I do not think any explanation is
necessary.
****
[f36]
Mr. President:
Dr. Ambedkar.
The
Honourable Dr. B. R.
Ambedkar
(Bombay: General): Mr. President, Sir, there are just four amendments about
which I would like to say a few words. I will first take the amendment of my Friend Mr. Bhargava, and say that I am prepared to accept his amendment,
because I find that although in the general body of the
report that was made to this House, no mention as to time-limit was made to the proposal
for allowing representation to Anglo-Indians by nomination, I find that in the subsequent
debate which took place on that report, there is an amendment moved by my friend Pandit
Bhargava which is very much in the same terms as the amendment which he has now moved, and
I find that that amendment of his was accepted by the House. I, therefore, am bound to
accept the amendment that he has moved now.
Next,
with regard to the question raised by Mr. Naziruddin Ahmad, one part of it has been, I think, met by the amendment
moved by my Friend Mr. Krishnamachari which I also accept.
I am not at all clear in my own mind at the present stage whether the words in the clause
mean that the time-limit should begin to operate from the commencement of the Constitution
or whether from the date of the first election to the new Parliament. But all I can say at
this stage is that that is a matter which the Drafting Committee will consider and if it
is necessary, they will bring about some amendment to carry out the intention that the
period should be from the date of first meeting of the first Parliament.
With
regard to the other arguments which have been used by my friend's
Mr. Muniswami Pillai and Mr.
Manmohan Das, I am sorry it
is not possible to accept that amendment. Their proposal is that while they are prepared
to leave the clause as it is, they propose to vest Parliament with the power to alter this
clause by further extension of the period of ten years. Now first of all we have as I
said, introduced this matter in the Constitution itself,
and I do not think that we should permit any change to be made in this, except by the
amendment of the Constitution itself.
I
would like to say one or two words on the remarks of Members of the Scheduled Castes who
have spoken in somewhat passionate and vehement terms on the limitation imposed by this
article. I have to say that they have really no cause for complaint, because the decision
to limit the thing to ten years was really a decision which has been arrived at with their
consent. I personally was prepared to press for a larger time, because I do feel that so
far as the Scheduled Castes are concerned, they are not treated on the same footing as the
other minorities. For instance, so far as I know the special reservation for the Mussalmans started in the year 1892; so to say, the beginning
was made then. Therefore, the Muslims had practically enjoyed these privileges for more or
less sixty years. The Christians got this privilege under the Constitution of 1920 and
they have enjoyed it for 28 years. The Scheduled Castes got this only in the Constitution
of 1935. The commencement of this benefit of special reservation practically began in the
year 1937 when that Act came into operation. Unfortunately for them, they had the benefit
of this only for two years, for from 1939 practically up to the present moment, or up to
1946, the Constitution was suspended and the Scheduled Castes were not in a position to
enjoy the benefits of the privileges which were given to
them in the 1935 Act, and it would have been quite proper I think, and generous on the
part of this House to have given the Scheduled Castes a longer term with regard to these
reservations. But as I said, it was all accepted by the House. It was accepted by Mr. Nagappa and Mr. Muniswamy Pillai and all these Members, if I may say so—1 am not
making any complaint— were acting on the other side, and I think it is not right now
to go back on these provisions. If at the end of the ten years, the Scheduled Castes find
that their position has not improved or that they want further extension of this period,
it will not be beyond their capacity or their intelligence to invent new ways of getting
the same protection which they are promised here.
Shri
A. V. Thakkar(Saurashtra) : What about the Scheduled
Tribes who are lower down in the scale ?
The
Honourable Dr. B. R.
Ambedkar:
For the Scheduled Tribes I am prepared to give far longer time. But all those who have
spoken about the reservations to the Scheduled Castes or to the Scheduled Tribes have been
so meticulous that the thing should end by ten years. All I want to say to them, in the
words of Edmund Burke, is "
Large Empires and small minds go ill together ".
Mr.
President:
I shall now take up the amendments one by one....
Shri
Yudhisthir Mishra
(Orissa States) : Sir, I
would like to withdraw my amendment.
(The
amendment was, by leave, of the Assembly, withdrawn.)
Mr.
President:
Amendment No. 40 (List I—Fifth Week)
Shri
S. Nagappa : In view of the explanation given by Dr. Ambedkar I do not wish to press my amendment.
(The
amendment was, by leave of the Assembly, withdrawn.)
Mr.
President:
Amendment No. 99 (List III—Fifth Week).
Shri
V. I. Muniswamy Pillay :
I was not present in the House on the 25th May when the Second Report of the Minorities Committee was considered. However, in view of what Dr.
Ambedkar has said I would like to withdraw my amendment. '
The
amendment was, by leave of the Assembly, withdrawn.
[f37]
Mr. Naziruddin Ahmad : The principle of my amendment has been substantially
accepted by Mr. T. T. Krishnamachari's amendment. Therefore, I wish to withdraw my
amendment.
[The
amendment was, by leave of the Assembly, withdrawn.]
Mr.
President:
The next amendment is No. 113 by Pandit Thakur Das Bhargava. This has been accepted by Dr. Ambedkar.
The
question is:
"
That in amendment No. 38 of List I (Fifth Week) of Amendments to Amendments, in the
proposed new article 295-A, after the word ' Constitution ' the brackets and letter '(a)
'be inserted and after the word ' State ', the following be
inserted :—
'
(b) relating to
the representation of the Anglo-Indian community either in
the House of the people or in the Legislative Assemblies of the States through nomination.
' "
(The
amendment was adopted.)
Mr.
President:
The next amendment is Drafting Committee's amendment No. 114.
The
question is:
"
That in amendment No. 38 of List I (Fifth Week) of Amendments
to Amendments, to the proposed article 295-A, the following proviso be added :—
'
Provided that nothing in this article shall affect the representation in the House of the
People or in the Legislative Assembly of a State until the dissolution of the then
existing House or the Assembly, as the case may be.' "
[The
amendment was adopted. Article 295-A, as amended, was added to the Constitution.]
ARTICLE 296
****
[f38]
Mr. Naziruddin Ahmad :
.. .My point is that the
amendment should be rejected on technical as well as substantial grounds.
Shri
T. T. Krishnamachari (Madras :
General) : May I submit.
Sir, that my Honourable Friend is wholly out of order in raising this point of Order, because this matter was accepted by the House. The Honourable
Member had two clear days' notice of it and if he is not able to understand the
significance of the amendment in two days, I am sure he cannot understand it in two
months.
Mr.
President:
Is it suggested that when the question was reopened last time with regard to reservation
of seats this also was one of the points considered and on
this point also a decision was taken then ?
Shri
T. T. Krishnamachari :
My suggestion is that since Muslims and Indian Christians are no longer to be treated as
minorities this point does not arise.
Mr.
Naziruddin Ahmad :
Not at all. I submit that what was considered was the question of representation of
minorities in the legislature. But this new article relates to a different matter, viz., the protection
of the minorities in getting minor
jobs in the secretariats and districts etc. On the matter of representation in the
legislature Sardar Patel was
kind enough to consult as and we agreed not to have any reservation in the legislature.
The
Honourable Dr. B. R. Ambedkar
(Bombay : General) : Sir,
the position is this. The report of the Minorities Committee provided that all minorities
should have two benefits or privileges, namely, representation in the legislatures and
representation in the services. Paragraph 9 of the report which was accepted by this House
contained this :
"
In the all-India and provincial services the claims of all minorities shall be kept in
view in making appointments to these services consistently
with the consideration of efficiency in the
administration."
That
was the original proposition passed by this House. Subsequently the Advisory Committee
came to the conclusion on the consent of the two minorities—Muslims
and Christians—that they were not to be treated as minorities. When the House has now
accepted that the only minorities to be provided for in this manner are the Scheduled
Castes and the Scheduled Tribes obviously the Drafting Committee is bound by the decision
of the House and to alter the article in terms of such decision.
Mr.
President:
The point of Order taken is that what was decided at the time of reconsideration of the
articles relating to minorities referred only to reservation of seats and that the
question of services was not taken into consideration and that point was not decided.
The
Honourable Dr. B. R.
Ambedkar:
As I understand it, the decision was that
they were not minorities and therefore they are not to have either of the two privileges.
****
ARTICLE
299
[f39]
The Honourable Dr. B. R. Ambedkar:
Sir, I beg to move :
"
That for article 299, the following article be substituted :—( Special Officer for Minorities).
' 299. (1) There shall be a Special Officer for minorities
to be appointed by the Special Officer, President.
(2) It shall be the duty of the Special Officer to
investigate all matters relating to the safeguards provided for minorities under this
Constitution and to report to the President upon the working of the safeguards at such
intervals as the president may direct, and the President shall cause all such reports to
be laid before each House of Parliament.' "
The
original article provided that there should be a minority officer both in the Center and
in each of the provinces. It is now felt that, as the number of minorities has been
considerably reduced, it is not desirable to have a cumbrous provision like that for
having an officer in each province. The purpose of the original article will be carried
out if the Center appoints an officer and makes him report to the President.
****
THIRD SCHEDULE
[f40]
The
Honourable Dr. B. R. Ambedkar:
Sir, I move :
"
That in the Third Schedule, in Form I of the Declarations, for the words and brackets
solemnly affirm (or swear)', the following be substituted :—
'
solemnly affirm
Sir,
I also move :
"
That in the Third Schedule, in Form II of the Declarations, for the word's and brackets solemnly affirm (or swear)', the following be substituted :—
' solemnly affirm
"
That in the Third Schedule, in Form 111 of the Declarations
(a) for
the word ' declaration ' the words ' affirmation or oath ' be substituted;
(b) for
the words ' solemnly and sincerely promise and declare ' the following be
substituted:—
'
solemnly affirm
"
That is the Third Schedule, in Form IV of the Declarations,—
(a) for
the word ' declaration ' the words ' affirmation or oath ' be substituted;
(b) for
the words ' solemnly and sincerely promise and declare ' the following be substituted:—
'
solemnly affirm
swear
in the name
"
That in the Third Schedule, in Form V of the
Declarations,—
the
words and figure ' for the time of God.' "
(a) being
specified in Part I of the First Schedule be omitted;
(b) for
the words and brackets ' solemnly affirm (or swear)', the
following be substituted:—
'
solemnly affirm
"
That in the Third Schedule, in Form VI of the Declarations,—
(a) the
words and figure ' for the time being specified in Part I of the First Schedule be omitted;
(b) for
the words and brackets ' solemnly affirm (or swear) ', the following be substituted:—
'
solemnly affirm
"
That in the Third Schedule, in Form VII of the Declarations,—
(a) for
the word ' declaration ' the words ' affirmation or oath ' be substituted;
(b) the
words and figure ' for the time being specified in Part I of the First Schedule ' be
omitted;
(c) for
the words ' solemnly and sincerely promise and declare ', the following be substituted:—
'
solemnly affirm
"
That in the Third Schedule, in Form VIII of the Declarations,—
(a)
for
the word ' declaration ' the words ' affirmation or oath ' be substituted;
(b)
for
the words ' solemnly and sincerely promise and declare ' the following be substituted:—
'
solemnly affirm
swear
in the name of God.'
"
Sir,
I also move :
"
That in the Third Schedule for the heading ' Forms of Declarations ' the heading ' Forms
of affirmations or Oaths ' be substituted."
Mr.
President: I
take it that there is no objection to the heading being changed.
Mr.
Naziruddin Ahmad :
There is no objection. Sir.
Mr.
President:
Then the heading is changed....
****
[f41]
The Honourable Dr. B. R. Ambedkar:
Sir, I move :
"
That in Form VI of the Forms of Declarations in the third Schedule, the words ' or as may be specially permitted by the Governor in the case
of any matter pertaining to the functions to be exercised by him in his discretion ' be
omitted."
These
are unnecessary because we do not propose to leave any discretion in the Governor at all.
Shri
H. V. Kamath :
May I remind Dr. Ambedkar that 143 has not yet been amended ?
The
Honourable Dr. B. R. Ambedkar:
Yes, I remember that.
****
Mr.
President:
We have abolished all discretion.
Mr.
Naziruddin Ahmad :
The difficulty arises in connection with the phraseology occurring at the end of Form VI.
****
Mr.
President:
That is why Dr. Ambedkar has moved for its deletion.
****
[f42]
The
Honourable Dr. B. R. Ambedkar:
In proposing this amendment, I have not the slightest desire to offend the sentiments of
some of the Members who have spoken against the draft on the ground that God has been
placed below the line. Sir, in this matter I must admit that we have really no consistent
policy which we have followed, for instance, in article 49,
which has been passed. God has been, I think, placed above the line and affirmation below
the line. In article 81, we have placed affirmation first and the oath afterwards. In this
article, to which we have moved amendments, we have merely followed the wording of the
principal clause, which runs : "
Affirm or Swear ". That being the language of the
principal clause, the logical sequence was that the affirmation was placed above the line
and the oath was placed below. It is a purely logical thing. Now, the reason why we have
thought it desirable to place affirmation first and oath afterwards, was because in this
country, at any rate, the Hindu, when he is called upon in any Court of Law to give
evidence, generally begins by an affirmation. It is only Christians, Anglo-Indians and
Muslims who swear. The Hindus do not like to utter the name of God. I therefore thought
that in a matter of this sort, we ought to respect the sentiments and practice of the
majority community, and consequently we have introduced this particular method by stating
the position as to affirmation and oath. As I said, I have neither one view nor the other.
I am perfectly prepared to carry out the wishes of the House. If the House is of the
opinion that Mr. Kamath's amendment should be
accepted—and I submit that that would be contrary to the practice prevalent in this
country so far as the Hindus are concerned—then what I
would suggest is this, that my amendments would be allowed at this stage, with the liberty
that the Drafting Committee will take into consideration all the other articles which have
been incorporated in the Constitution so far as to bring the whole matter in line. It will
not be proper to make a change here and to leave the other articles as they stand.
Shri
Mahavir Tyagi : Let grammer not stand in the
way of God !
Shri
H. V. Kamath : With regard to article 81, there was no amendment before the
House. It was stated that every Member in each House of Parliament should make an
affirmation and an oath according to the Third Schedule. But what the House has already
adopted is the oath or affirmation for the President and the
Governors, and that is in the form set out by me in my amendment today.
Mr.
President:
It is not necessary to have a discussion over this matter. You had better vote on it. It
is not a question on which there is room for much discussion. As Dr. Ambedkar has said, he has no particular feeling in the matter,
and if the House decides one way, he will ask for the liberty to put all the articles in
that form. So I shall put the amendment to the vote.
Mr.
Naziruddin Ahmed : My amendment have not been
touched by Dr. Ambedkar at all.
Mr.
President:
That is different.
The
Honourable Dr. B. R.
Ambedkar:
After the word " sincerely "?
After " sincerely "
I would like to add something more. It would not be enough.
Mr.
President:
He wants the omission of the word " affection ".
(after
a pause)
Well,
I will take up the amendment.
(Following
amendment was adopted)
"That
in Amendment Nos. 56 to 63 of List I (Fifth Week) of
Amendments to Amendments, in the form of the oath or
affirmation in the Third Schedule, for the words
'
solemnly affirm
swear in the name of God '
(Proposed
to be substituted), the following be substituted:—
'
swear in the name of God
solemnly affirm. ' "
(The
amendment was adopted.)
Mr.
President:
I take it that the House gives leave to Dr. Ambedkar to put
the other articles, wherever such similar expressions occur in the same order.
Honourable
Member: Yes.
Shri
Jaspat Roy Kapoor :
May I suggest that in all the places where we have the words "
affirmation or oath "
we may have the ' oath '
first and ' affirmation ' afterwards. It should be so in the substantive clause also.
Mr.
President:
That is so. It should be put in the same order wherever the expression occurs.
****
Mr.
President:
The question is :
"
That with reference to amendment No. 56 of List I ( Fifth
Week) of Amendments to Amendments, in the Third Schedule,
in Form I of the Declarations, for the words ' all manner of people ' the words ' all
people ' be substituted."
Mr.
Naziruddin Ahmad: This may be left to the Drafting Committee.
Mr.
President:
It is not pressed. So I take it that it is dropped.
****
Mr.
President:
The question is :
"
That in Form VI of the Forms of Declarations in the Third Schedule, the words ' or as may
be specially permitted by the Governor in the case of any
matter pertaining to the functions to be exercised by him in his discretion ' be
omitted."
(The
amendment was adopted.)
Mr.
President: I
do not think it is necessary to put the other amendments to vote, because the voting will
be the same as with regard to the other amendments.
Mr.
Naziruddin Ahmad :
They may be formally put and rejected by the House.
****
[f43]
Mr. President:
Then I put the proposition moved by Dr. Ambedkar, as
amended by Mr. Kamath's amendment and Dr. Ambedkar's own amendment, with regard to all these forms. I do not
think it is necessary to read them separately.
(The
motion was adopted.)
Mr.
President:
The question is :
"
That the Third Schedule, as amended, stand part of the Constitution."
The
motion was adopted.
The
Third Schedule as amended, was added to the Constitution.
[f44]
Mr.
President: I
do not think the Member has any justification for supposing that other members do not
study the amendments.
Mr.
Naziruddin Ahmad
: I have been
assured by some very serious Members that they have not read the amendments. Therefore, in
view of the serious nature of the amendments I say that the
house should have time to consider them.... -
Mr.
President: If
any question is raised with regard to any particular amendment or item and if Members want
time, we shall consider that at that time. Let us now proceed item by item.
The
Honourable Dr. B. R. Ambedkar
(Bombay : General) : I would
like to say that these amendments were circulated on Saturday, day before yesterday.
Mr.
President:
Were they circulated on Saturday ?
Some
Honourable Members :
Yes, Sir.
The
Honourable Dr. B. R. Ambedkar:
On Saturday evening, I think. So far as Mr. Naziruddin Ahmad is concerned, there are
some forty amendments standing in his name.
Mr.
Naziruddin Ahmad : Only twenty.
The
Honourable Dr. B. R. Ambedkar:
They cover the whole of List 1. Therefore my submission is
that the complaint, so far as he is individually concerned, that he did not have time,
must be regarded as absolutely unfounded.