DR.
AMBEDKAR: THE PRINCIPAL are HITECT OF THE CONSTITUTION OF INDIA
Clause wise Discussion on
the Draft Constitution
SECTION SEVEN
17th
September 1949 to 16th November 1949.
ABOLITION
OF PRIVY COUNCIL JURISDICTION BILL
______________________________________________________________
Continued…
[f1]
Mr. President :
We shall now take up Part Vl-A.
The
Honourable Dr. B. R. Ambedkar :
Sir, I move :
"
That after Part VI, the following new Part be inserted :—
(Application of provisions of Part VI to States in Part III of the first Schedule.)
211A.
The provisions of Part VI Of this Constitution shall apply
in relation to the States for the time being specified in
Part III of the First Schedule as they apply
in relation to the States for the time being specified in
Part I of that Schedule subject to the following modifications and omissions, namely :—
'
(1) For
the word " Governor " wherever it occurs in the said Part VI, except where it occurs for the second time in clause (b) of article 209. the word " Rajpramukh " shall be
substituted.
(2) In
article 128, for the word and figure " Part I " the word
and figure " Part III " shall be substituted.
(3) Articles
131, 132 and 134 shall be omitted.
(a) in
clause (1), for the words, " be appointed " the word " becomes " shall be substituted;
(b) for
clause (3), the following clause shall be substituted, namely :—
"
(3)
The Rajpramukh shall be entitled without payment of rent to
the use of his residences, and there shall be paid to the Rajpramukh such allowances as
the President may, by general or special order, determine. ";
(c) in
clause (4), the words ' emoluments and ' shall be omitted.
(5) In
article 136, after the words " senior-most judge of
that court available " the words 'or in such other manner as may be prescribed in this behalf
• by the President ' shall be inserted.
(6) In
article 144, the proviso to clause (1) shall be omitted.
(7) In
article 148, for clause (1) the following clause
shall be substituted, namely:—
(1) "(1)
For every State there shall be a Legislature which shall consist of the Rajpramukh
and—
(a) in
the State of Mysore, two Houses;
(b) in
other States, one House. "
(8) In
article 163, for the words " as are specified in the Second Schedule " the words " as the
Rajpramukh may determine " shall be substituted.
(9) In
article 170 for the words" as were immediately before the date of commencement of
this Constitution applicable in the case of members of the Provincial Legislative Assembly for that State " the words " as the Rajpramukh may determine "
shall be substituted.
(10) In
clause (3) of article 177—
(a) for
sub-clause (a), the following sub-clause shall
be substituted, namely:—
"(a)
the allowances of the Rujprainukh and other expenditure relating
to his office as determined by the President by general or
special order;
(b) after
sub-clause (e),
the following sub-clause shall be inserted, namely:—
"(re) in the case of the State of Travancore-Cochin, a sum of fifty-one
lakhs of rupees required to be paid annually to the Devaswom fund under the
covenant entered into before the commencement of this Constitution by the Rulers of the
Indian States of Travancore and Cochin for the formation of
the United States of Travancore and Cochin; "
(11) In
article 183, for clause (2), the following clause shall be substituted, namely:—
"(2)
Until rules are made under clause (i) of this article, the rules of procedure
and standing orders in force immediately before the commencement of this Constitution with respect to the
Legislature for the State or, where no House of the legislature for
the State existed, the rules of procedure and standing orders in force immediately before
such commencement with respect to the Legislative Assembly
of such Province, as may be specified in this behalf by the Rajpramukh of the State, shall have
effect in relation to the legislature
of the State subject to such modifications and adaptations as may be made therein by the
Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be. "
(12)
In
clause (2) of article 191, for the word " Province " the
words " Indian State "
shall be substituted.
(13)
For
article 197, the following article shall be substituted,
namely :—
(Salaries
etc. of judges)
"197.
The judges of each High Court shall be entitled to such salaries
and allowances and to such rights in respect of leave of
absence and pension as may from time to time be determined by the President after
consultation with the Rajpramukh:
Provided
that neither the salary of a judge nor his rights in
respect of leave, of absence or pension shall be varied to his disadvantage after his
appointment.' "
I
think I will move the other amendments afterwards.
As
will be seen, the underlying idea of this Part is that Part VI of this Constitution which
deals with the Constitution of the States will now automatically
apply under the provisions of article 2 II-A to States in Part III. But it is realized
that in applying Part VI to the Indian States which will be
in Part III there are special circumstances for which it is necessary to make some
provision and the purpose of this particular amendment 217 is to indicate those particular
articles in which these amendments are necessary to be made in order to deal with the
special circumstances of the States in Part III. Otherwise
the States in Part III so far as their internal constitution is concerned will be on a par
with the States in Part 1.
****
[f2]
Prof. Shibban Lal Saksena :
The amendment that I am moving is 288 of List XII.
Mr.
President : I have just received it. You can move it.
Shri
T. T. Krishnamachari : But that has not been moved.
The Honourable Dr. B. R. Ambedkar : How can you move it ?
Prof.
Shibban Lal Saksena :
I am not moving the amendment which the President read out. I am moving No. 288 of List
XII.
****
The
Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the
Clock, Mr. President (The Honourable Dr. Rajendra Prasad)
in the Chair.
PART
Vl-A— (contd.)
[f3]
Mr.
President : I
think it would be better to take the other articles which are sought to be amended in
connection with the States and take all the amendments, and (hen
have the general discussion. I do not think it is necessary for Dr. Ambedkar to read the whole thing.
The
Honourable Dr. B. R. Ambedkar
(Bombay : General) : Sir, I
move
"
That article 224 be omitted. "
"
That article 225 be omitted. "
"
That after article 235, the following new article be inserted, namely :—
(Armed forces of States in part III of the First Schedule,)
'235A.
(1) Notwithstanding anything contained in this Constitution, a State for the time being
specified in Part 11 of the First Schedule having any armed
force immediately before the commencement of this Constitution may,
until Parliament by law otherwise provides, continue to maintain the said force after such
commencement subject to such general or special orders as the President may from time to
time issue in this behalf.
(2)
Any such armed force as is referred to in clause (I ) of
this article shall form part of the forces of the Union. ' "
"
That for article 236, the following article be substituted, namely :—
(Power of the Union to undertake executive, legislative or judicial functions in relation to any territory not being part of the territory of India.)
236.
The Government of India may by agreement with the
Government of any territory not being part of the territory of India undertake any executive, legislative
or judicial functions vested in the Government of such
territory, but every such agreement shall be subject to and
governed by, any law relating to the exercise of foreign
jurisdiction for the time being in force.'"
"
That article 237 be omitted. "
"
That after article 274D, the following new articles be
inserted, namely :— '
(Power of certain States in Part III of the First Schedule to impose
restriction on trade & commerce by levy of certain taxes & duties on goods
imported into or exported from such States.)
274DD.
Notwithstanding anything contained in the foregoing provisions of this Part, the President
may enter into an agreement with a State for the time being specified
in Part III of the First Schedule with respect to the levy and collection of any tax or
duty leviable by the State on goods imported into the State from other States or on goods
exported from the State to other States,
and any agreement entered into under this article shall continue in force for such period not exceeding ten years from the commencement of this Constitution as may be specified in the agreement:
Provided
that the President may at any time after the expiration of Five
years from such commencement terminate or modify any such agreement if after consideration
of the report of the Finance Commission constituted under article 260 of this Constitution
he thinks it necessary to do so.
(Effect of articles 274A &
274C on existing laws)
'274D.
Nothing in articles 274A and 274C of this Constitution shall affect the provisions of any
existing law except in so far as the President may by order otherwise provide.
"
That after article 302, the following new article be
inserted, namely :—
(Rights & privileges of Rulers of Indian States.)
'302A.
In the exercise of the power of Parliament or of the
Legislature of a State to make laws or in the exercise of the executive power of the Union
or of a State, due regard shall be had to the guarantee or assurance given
under any such covenant or agreement as is referred to in article 267A* of this
Constitution with respect to the personal rights,
privileges and dignities of the Ruler of an Indian State. ' "
'
That after article 306, the following new articles be inserted :—
(Temporary provisions with respect to States in Part III of the First
Schedule)
"
306B. Notwithstanding anything contained in this Constitution, during a period of ten
years from the commencement thereof, or during such longer or shorter period as Parliament
may by law provide in respect of any State, the Government of every State for the time being specified in
Part III of the First Schedule shall be under the general control
of, and comply with such particular directions, if any, as may from time to time be given
by the President, and any failure to comply with such
directions shall be deemed to be a failure to carry out the Government of the State in
accordance with the provisions of this Constitution :
"
Provided that the President may by order direct that the provisions of this article shall
not apply to any State specified in the order., ' "
"
That for clause (1) of article 258, the following clause be substituted: —
'(1)
Notwithstanding anything contained in this Chapter, the
Government of India may, subject, to the provisions of
clause (2) of this article, enter into an agreement with the Government of a State for the
time being specified in Part III of the First Schedule with respect to—
(a)
the levy and collection of any tax or duty leviable by the
Government of India in such State and for the distribution of the proceeds thereof otherwise than in accordance with the provisions of this
Chapter:
(b)
the grant of any financial assistance by the Government of
India to such State in consequence of the loss of any revenue which that State used to
derive from any tax or duty leviable under this Constitution by the Government of India or from any other
sources;
(c)
the contribution by such State in respect of any payment made by the Government of India
under clause (1) of article 267A of this Constitution, and
when an agreement is so entered into, the provisions of this Chapter shall in relation to
such State have effect subject to the terms of such agreement. ' "
"
That in chapter I of Part IX, after article 267, the
following new article shall be inserted, namely:—
(Privy purse sums of Rulers.)
'
267A. (1) Where under any covenant or agreement entered
into by the Ruler of any Indian State before the commencement of this Constitution, the
payment of any sums, free of tax, has been guaranteed or assured by the Government of the
Dominion of India to any Ruler of such State as Privy Purse—
(a)
such sums shall be charged on, and paid out of, the Consolidated
Fund of India; and
(b)
the sums so paid to any Ruler shall be exempt from all
taxes on income.
(2)
Where the territories of any such Indian State as aforesaid
are comprised within a State specified in Part I or Part III of the
First Schedule there shall
be charged on, and paid out of, the Consolidated Fund of that
State such contribution, if any, in respect of the payments made by the Government of
India under clause (1) of this article and for such period as may, subject to any
agreement entered into in that behalf under clause (1) of article 258 of this
Constitution, be determined by order of the President, ' "
"
That after article 270, the following new article be inserted :—
'
270A. (1) As from the commencement of this Constitution—
(Succession to property assets, liabilities & obligations of Indian
States)
(a) all
assets relating to any of the matters enumerated in the Union List vested immediately
before such commencement, in any Indian State corresponding
to any State for the time being specified in Part III of
the First Schedule shall be vested in the Government of India, and
(b)
all liabilities relating to any of the said matters of the
Government of any Indian State corresponding to any State
for the time being specified
in Part III of the First Schedule shall be the liabilities
of the Government of India, subject to any agreement entered into in that behalf by the Government of India with the Government of that
State.
(2)
As from the commencement of this Constitution the Government of each State for the time being specified in Part III of the First Schedule
shall be the successor of the Government of the
corresponding Indian State as regards all property, assets, liabilities and obligations
other than the assets and liabilities referred to in clause
(1) of this article.' "
Shri
Brajeshwar Prasad
(Bihar : General) : Sir, I would like to suggest that these two amendments No.
218 and 219 relating to articles 224 and 225 should be
disposed of first, or the amendments standing in the name
of honourable Members to these articles will also have to be moved.
Mr. President :
They have to be deleted. It does not take any time to dispose them of.
[Article
224 was deleted from the Constitution.]
[f4]
Mr. President :
Amendment No. 222 : Dr. Ambedkar.
The Honourable Dr. B. R. Ambedkar : I have
already moved that.
****
The
Assembly re-assembled after Lunch at Four of the Clock, Mr. President (the Honourable Dr. Rajendra Prasad) in the Chair. (13th October 1949).
(REOPENED)
[f5]
Mr.
President :
We shall now take up those consequential amendments No. 226 etc.
The
Honourable Dr. B. R. Ambedkar :
I would ask Mr. T. T. Krishnamachari to move the amendments on my behalf.
****
[f6]
Mr.
President :
We shall now take up article 296; amendment No. 15. We have got a large number of
amendments. Some of the amendments are amendments to the amendment to be moved on behalf
of the Drafting Committee. Some are amendments to other amendments which are to be moved
by other Members. Many of them overlap. Therefore, I think Members will themselves
exercise a certain amount of discretion in not insisting upon amendments which are only
overlapping and which are covered by other amendments.
Shri
H. V. Kamath (C. P. & Berar: General) : We shall abide by your ruling.
Sir.
Mr.
President : I do not want to give any ruling if I can help it.
The Honourable Dr. B. R. Ambedkar (Bombay : General) : Sir, I move:
"
That with reference to amendment No. 3163 of the List of amendments for article 296 the
following article be substituted:—
(Claims of Scheduled Castes & Scheduled Tribes to services & posts).
'
296. The claims of the members of the Scheduled Castes and
the Scheduled Tribes shall be taken into consideration consistently with the maintenance
of efficiency of administration, in the making of
appointments to services and posts in connection with the
affairs of the Union or of a State.' "
****
[f7]
Mr. President :
… The next amendment which purports to substitute is No.23, which stands in the name
of Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar : I do not propose to move it.
Mr.
President : Then No. 24.
The
Honourable Dr. B. R. Ambedkar :
Not being moved.
[The
amendment of Dr. Ambedkar mentioned
above was adopted. Article
296, as amended, was added to the Constitution.]
****
****
[f8]
Sardar
Hukam Singh : My question has not been
answered. Have these four Sikh Classes been included in the
Scheduled Castes.
The
Honourable Dr. B. R. Ambedkar : Of course, they will be.
Shri
K. M. Munshi : The President is empowered to issue, under article 300-A, a list of Scheduled Castes. In that, these Scheduled Castes will find
a place.
Sardar
Hukam Singh :
Where is the guarantee that the President will include these people in that list ? We have given up all safeguards to secure this in the
Constitution. That has not been done.
Shri
K. M. Munshi : The President has that power. The President is sure to keep
to the pledge which has been given. This decision finds a
place in the Advisory Committee's Report that the Sikh
Scheduled Castes will form part of the Scheduled Castes and
provided with the safeguards under article 296 which we
have already passed. There is no question
of going back upon that pledge, you may take it from me. I repeat the Sikh Scheduled
Castes will be included in the list of Scheduled Castes and Scheduled Tribes in the
Punjab.
[Article
299, as amended, was added
to the Constitution.]
ARTICLE
48
[f9]
Shri H. V. Kamath :
Dr. Ambedkar was quite clear when he gave his answer to me
the other day, but now he seems to have some doubt in his own mind, and he has come now
with an amendment seeking to provide residences to Governors and the President, without payment of rent. We should, proceed logically, provide
rent-free accommodation to Ministers also.
The
Honourable Dr. B. R.
Ambedkar : Sir, if I may say a word. This amendment is merely
consequential or analogous to the provision we have made with regard to the Rajpramukhs. In the clauses that were moved the other day with
regard to the residences of Rajpramukhs. we have definitely
stated that they will be rent-free. On comparing the similar clauses relating to the
Governors, we found that somehow there was a slip and we did not mention rent-free houses.
It is to make good that lacuna, and to bring the cases of the Governors and the President on the same footing as the Rajpramukhs
that this amendment is needed.
With
regard to the question of Ministers, that will be regulated by law made by
Parliament. Whether Parliament will be prepared to give them salary with house, and if
with house, whether it will be free of rent or with rent, are all matters that will be
regulated by Parliament, because the offices of Ministers
are political offices dependent upon the goodwill and the
confidence of the House. and it seems to me that Mr. Kamath
will very easily understand that it would be not proper to remove the Ministers from the
purview and jurisdiction of Parliament.
Mr.
President : I
would like to put it to vote.
The
question is:
"
That in clause (3) of article 48, for the words ' The President shall have an official residence, the words '
The President shall be
entitled to the use of the Government House without payment of rent ' be substituted. "
[The
amendment was negatived.]
Mr. President : Then I put the amendment moved by
Shri T.T.Krishnamachari. The question is:
"
That in clause (3) of article 48, for the words ' The President shall have an official residence ' the words ' The President shall be entitled
without payment of rent to the use of his official residences ' be substituted. "
The
amendment was adopted.
Shri
T. T. Krishnamachari :
Sir, I move amendment No. 360.
"
That clause (5a) of article 62 be omitted. "
The
reason for this is, as I told the House the other day on behalf of Dr. Ambedkar, that we do not propose to move Schedule IIIA and also the Schedule which deals
with Instructions to Governors. The clause in question reads thus : " (5a) In the choice of his ministers and in the
exercise of his other functions under this constitution, the resident
shall be generally guided by Instructions set out in Schedule IIIA. " Actually, since
Schedule IIIA is not moved, this clause becomes superfluous.
Therefore I have moved for its omission.
Shri
H. V. Kamath : Sir, you might remember that some months ago you raised the
important point whether the President would always be bound
to accept the advice of his Council of Ministers. Our Constitution is silent on that
point. It only says that there shall be a Council of
Ministers to aid and advise the President. Dr. Ambedkar at
that time undertook to insert some provision somewhere in the Constitution in order to
make this point clear. That is my recollection. The President will kindly say whether I am
right or wrong. Nowhere in the Draft Constitution has this point been clarified. I hope Dr. Ambedkar will
do so, and not leave it vague as at present.
[f10]
The Honourable Dr. B. R. Ambedkar :
Sir, I wish I had notice of this, so that I could give the necessary quotations. But I can
make a general statement. The point whether there is anything contained in the Constitution
which would compel the President to accept the advice of
the Ministry is really a very small one as compared with
the general question. I propose to say something about the
general question.
Every
Constitution, so far as it relates to what we call parliamentary democracy, requires three
different organs of the State, the executive, the judiciary and the legislature. I have
not anywhere found in any Constitution a provision saying
that the executive shall obey the legislature, nor have I found anywhere in any
Constitution a provision that the executive shall obey the judiciary. Nowhere is such a
provision to be found. That is because it is generally understood that the provisions of
the Constitution are binding upon the different organs of the State.
Consequently, it is to be presumed that those who work the
Constitution, those who compose the Legislature and those who compose the executive and the judiciary know their
functions, their limitations and their duties. It is
therefore to be expected that if the executive is honest in
working the Constitution, then the executive is bound to
obey the Legislature without any kind of compulsory obligation laid down in the Constitution.
Similarly,
if the executive is honest in working the Constitution, it must act in accordance with the
judicial decisions given by the Supreme Court.
Therefore my submission is that this is a matter of one organ of
the State acting within its own limitations and obeying the supremacy of the other organs
of the State. In so far as the Constitution gives a
supremacy to that is a matter of constitutional obligation which is implicit in the
Constitution itself.
I
remember. Sir, that you raised this question and I looked
it up and I had with me two decisions of the King's Bench division which I wanted one day
to bring here and refer in the House so as to make the point quite clear. But I am sorry I
had no notice today of this point being raised. But this is
the answer to the question that has been raised.
No
constitutional Government
can function in any country unless any particular constitutional authority remembers the
fact that its authority is limited by the Constitution and
that if there is any authority created by the Constitution
which has to decide between that particular authority and any
other authority, then the decision of that authority shall
be binding upon any other organ. That is the sanction which this Constitution gives in
order to see that the President shall follow the advice of his Ministers, that the
executive shall not exceed in its executive authority the law made by Parliament and that
the executive shall not give its own interpretation of the law which is in conflict with the interpretation
of the judicial organ created by the Constitution.
Shri
H. V. Kamath : If in any particular case the
President docs not act upon the advice of his Council of Ministers, will that be tantamount to a violation of the Constitution and will he be
liable to impeachment ? ,
The
Honourable Dr. B. R. Ambedkar : There is not the
slightest doubt about it.
The Honourable Shri K. Santhanam (Madras :
General) : I may add to Dr. Ambedkar's statement, and point out
that there are certain marginal cases
in which the President may not accept the advice of the Ministers. When a Ministry wants dissolution it will be open to the President to say that he
will install another Ministry which has the confidence of the majority and continue to run the administration.
There are some marginal cases where he may have in the interests of responsible government
itself to over-ride the advice of his responsible Ministers.
The
Honourable Dr. B. R. Ambedkar : I would only like to say one thing in reply. That was once
the position. It has been defined very clearly in Macaulay's History of England
what the King can do. But I say that these are matters of convention. In Canada this
question arose when Mr. Mackenzie King wanted dissolution. "The question was whether the Governor-General was bound to give a decision or
whether he was free to call the leader of the Opposition to form an alternative Ministry.
On the advice of the British Government, the Governor-General accepted the advice of Mr.
Mackenzie King and dissolved the Parliament.
Shri
H. V. Kamath : Instead of Dr. Ambedkar's
obiter dictum why not have a Constitutional
provision ?
The
Honourable Dr. B. R. Ambedkar :
We cannot discuss this question in this way.
[Amendment
No. 360 mentioned earlier of Mr. T. T. Krishnamachari was adopted.
Clause (5 a) of Article 62 was omitted.]
[f11]
The Honourable Shri K. Santhanam :
May I enquire whether a person who has lost his State by merger in a province continues to
be a Ruler or he has become successor ?
Shri T. T. Krishnamachari
: The whole difficulty
is, this is rather intricate. It is baffling. I admit that a person who has lost his State
is nevertheless a Ruler, under the definition in (nn), and
also for the purpose of article 267-A.
The
Honourable Shri K. Santhanam :
Why not his son also be a Ruler ?
Shri
T. T. Krishnamachari :
Might be.
The
Honourable Dr. B. R. Ambedkar : If I may say so, this definition of Ruler is intended only for the limited purpose
of making payments out of the privy purse. It has no other reference at all.
The
Honourable Shri K. Santhanam
: My point is whether it will be so construed as to mean two people at the same time entitled to the allowances. I want to ensure that at a time there will be
only one person who will be entitled under the covenant to
receive payment.
Mr.
President : I
think that is just secured by this, because the person recognised as the Ruler alone will be entitled to
the payment.
The
Honourable Dr. B. R. Ambedkar
: That would be governed by
the provisions regarding recognition. I am sure the President is not going to recognise
two or three or four persons. This expression is deliberately used in order to give the
power to the President.
The
Honourable Shri K. Santhanam :
He might be called the Ruler or successor.
Mr. President : Mr.
Santhanam, I think that is quite clear. ...I do not suppose
any further discussion is
necessary. I shall put it to vote.
[The amendment of Shri T. T. Krishnamachari to
substitute sub-clause (nn)
of clause (1) of Article 303 was adopted.]
[f12]
Mr.
President :
We then go to the Schedule. ...
The Honourable Dr. B. R. Ambedkar : Sir, I move :
"
That for the First Schedule the following be substituted :—
(ARTICLES
1
AND 4)
TIDE
STATES AND
TIIE TERRITORIES OF INDIA
Names of States |
Names of corresponding Provinces |
1. Assam
|
Assam |
2.
Bengal
|
West
Bengal |
3.
Bihar
|
Bihar |
4,
Bombay
|
Bombay |
Central
Provinces and Berar |
|
6.
Madras
|
Madras |
7.
Orissa
|
Orissa |
8.
Punjab
|
East
Punjab |
9.
United provinces. |
United
Provinces. |
TERRITORIES
OF STATES
The
territory of the State of Assam shall comprise the territories which immediately before
the commencement of this Constitution were comprised in the province of Assam, the Khasi States and the Assam Tribal Areas.
The
territory of the State of Bengal shall comprise the
territory which immediately before the commencement of this Constitution was comprised in
the Province of West Bengal. "
Shri
B. Das (Orissa :
General) : We wanted Utkal
to be the name of ORISSA.
The
Honourable Dr. B. R. Ambedkar :
You may move an amendment.
"
The territory of the State of Bombay shall comprise the territory which immediately before
the commencement of this Constitution was comprised in the Province of Bombay and the
territories which by virtue of an order made under section 290A of the Government of India Act, 1935, were immediately before such
commencement being administered as if they fanned part of that Province or which immediately before such
commencement were being administered by the Government of
that Province under the provisions of the Extra-Provincial Jurisdiction Act. 1947.
The
territory of each of the other States shall comprise the
territories which immediately before the commencement of this constitution were comprised
in the corresponding Province and the territories which, by virtue of an order made under
section 290A of the Government of India Act, 1935, were immediately before such commencement being administered as if they formed part
of that Province.
Names of States.
2.
Bhopal
3.
Bilaspur
4.
Coorg
5.
Cooch-Bchar
6.
Delhi
8.
Kutch
9.
Manipur
TERRITORIES
OF STATES
The
territory of the State of Ajmer shall comprise the territories
which immediately before the commencement of this Constitution were comprised in the Chief Commissioner's Provinces of Ajmer-Merwara
and Panth Piploda.
The
territory of each of the States of Coorg and Delhi shall comprise the territory which immediately
before the commencement of this Constitution was comprised
in the Chief Commissioner's Province of the
same name.
The
territory of each of the other States shall comprise the territories which, by
virtue of an order made under section 290A of the Government of India Act. 1935, were immediately, before the commencement of this Constitution administered as if they were a Chief Commissioner's
Province of the same name.
PART
III
Names of States.
1. Hyderabad
2.
Jammu and Kashmir
4.
Mysore
5.
Patiala & East Punjab States Union
6.
Rajasthan
7.
Saurashtra
9.
Vindbya Pradesh
TERRITORIES
OF
STATES
The territory of the State of Rajasthan
shall comprise the territories which immediately before the
commencement of this Constitution were comprised in the
United State of Rajasthan and the territories which
immediately before such commencement were being administered by the Government of that State under the
provisions of the Extra-Provincial Jurisdiction Act, 1947.
The
territory of the State of Saurashtra shall comprise the territories which immediately before
the commencement of this Constitution were comprised in the
United States of Kathiawar (Saurashtra) and the territories
which immediately before such commencement were being administered by the Government of
that State under the provisions of the Extra-Provincial Jurisdiction Act, 1947.
The
territory of each of the other states shall comprise the
territory which immediately before
the commencement of this Constitution was comprised in the corresponding Indian State.
PART
IV
The
Andaman And Nicobar Islands."
Sir,
I do not think the amendment which I have moved calls for any explanation.
Shri
Jainarain Vyas : I would like to know
if Sirohi State has been put
in anywhere.
The
Honourable Dr. B. R. Ambedkar :
Sirohi, I understand is administered under the Extra-Provincial
Jurisdiction Act, 1947, partly by Bombay and partly by Rajasthan.
That is the reason why it has not been separately mentioned.
****
[f13]
The Honourable Dr. B. R. Ambedkar
(Bombay: General) : Sir, I move amendment No. 425.
" That in amendment No. 307 of List XIII(Second Week), for the proposed article 264A the following be substituted :—( Restriction as to imposition of tax on Sale or purchase of goods).
'264A.
(1) No law of a State shall unoppose, or authorise the
imposition of a tax on the sale or purchase of goods where
such sale or: purchase
takes place-
(a) outside
the State; or
(b) in
the course of the import of the goods into, or export of the goods out of, the territory
of India.
Explanation.—For the purposes of sub-clause (a) of this clause a sale or purchase shall be
deemed to have taken place in the State in which the goods
have actually been delivered as a direct result of such sale or purchase for the purpose
of consumption in that State, notwithstanding the fact that under the general law relating
to sale of goods the property in the goods has by reason of such sale or purchase passed
in another State.
(2)
Except in so far as Parliament may by law otherwise
provide, no law of a State shall impose, or authorise the imposition of. a tax on the sale
or purchase of any goods where such sale or purchase takes place in the course of inter-State trade or commerce:
Provided
that the President may by order direct that any tax on the
sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of
this Constitution shall, notwithstanding that the imposition of such tax is contrary to
the provisions of this clause, continue to be levied until the thirty-first day of March, 1951.
(3)
No law made by the Legislature of a State imposing, or
authorising the imposition of, a tax on the sale or purchase of any such goods as have
been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has
received his assent. ' "
Sir,
as everyone knows, the sales tax has created a great deal of difficulty throughout India
in the matter of freedom of trade and commerce. It has been found that the very many sales
taxes which are levied by the various Provincial Governments either cut into goods which
are the subject matter of imports or exports, or cut into
what is called interstate trade or commerce. It is agreed that this kind of chaos ought
not to be allowed and that while the provinces may be free to levy the sales tax there
ought to be some regulations whereby the sales tax levied by the provinces would be confined within the legitimate limits which are intended to be
covered by the sales tax. It is, therefore, felt that there ought to be some specific
provisions laying down certain limitations on the power of the provinces to levy sales
tax.
The
first thing that I would like to point out to the House is that there are certain
provisions in this article 264A which are merely reproductions of the different parts of
the Constitution. For instance, in sub-clause (1) of
article 264A as proposed by me, sub-clause (b) is merely a reproduction of the article
contained in the Constitution, the entry in the Legislative
List that taxation of imports and exports shall be the exclusive province of the Central
Government. Consequently so far as sub-clause (l)(b) is concerned there cannot be any dispute that this
is in any sense an invasion of the right of provinces to levy as sales tax.
Similarly,
sub-clause (2) is merely a reproduction of Part XA which we recently passed dealing with provisions regarding inter-State
trade and commerce. Therefore so far as sub-clause (2)
is concerned there is really nothing new in it. It
merely says that if any sales tax is imposed it shall not
be in conflict with the provisions of Part XA.
With
regard to sub-clause (3) it has also been agreed
that there are certain commodities which are so essential
for the life of the community throughout India that they
should not be subject to sales tax by the province in which they are to be found.
Therefore it was felt that if there was any such article which was essential for the life of the community
throughout India, then it is necessary that, before the province concerned levies any tax
upon such a commodity, the law made by the province should have the assent of the
President so that it would be possible for the President and the Central Government to see
that no hardship is created by the particular levy proposed by a particular province.
The
proviso to sub-clause (2) is also important and
the attention of the House might be drawn to it. It is quite true that some of the sales
taxes which have been levied by the provinces do not quite conform to the provisions
contained in article 264A. They probably go beyond the provisions. It is therefore felt
that when the rule of law as embodied in the Constitution comes into force all laws which
are inconsistent with the provisions of the Constitution shall stand abrogated. On the
date of the inauguration of the Constitution this might create a certain amount of
financial difficulty or embarrassment to the different provinces which have got such taxes
and on the proceeds of which their finances to a large extent are based. It is therefore
proposed as an explanation to the general provisions of the Constitution that
notwithstanding the inconsistency or any sales tax imposed by any province with the provisions of article 264A, such a law will continue in
operation until the 31st day of March 1951, that is to say, we practically propose to give
the provinces a few months more to make such adjustments as they can and must in order to
bring their law into conformity with the provisions of this article.
I
do not think any further explanation is necessary so far as my amendment is concerned but
if any point is raised I shall be very glad to say something in reply to it when I reply
to the debate.
****
[f14] Shri Mahavir Tyagi :
...There are so many defects in the present system of sales tax. Now, in Delhi, there is
no sales tax; in the United Provinces, there is a sales tax on motor car, radios, on bicycles and other things. Whenever any citizen in Meerut wants a motor car or a bicycle, he does not go to the
local shop there. The local agency suffers. He comes to
Delhi. I see Dr. Ambedkar beckoning me to keep quite; he is
using undue influence.
The
Honourable Dr. B. R.
Ambedkar :
I have followed the point.
Shri
Mahavir Tyagi :
Have you followed it ? Have you also appreciated it ? Are you prepared to accommodate me ? You have got the delegates of the People behind you. Dr.
Ambedkar, I can assure you, if you are just, if you recognise justice, you might become
later on the Supreme Judge of India in your life, if you do justice to the citizen. I
submit, Sir, this is the manner in which that tax is being levied....
****
[f15]
The
Honourable Dr. B. R. Ambedkar : Sir, there are three
amendments before the House. The first is the amendment of my Friend Prof. Shibban Lal Saxena. According to his amendment, what he proposes is that
the power practically to levy sales tax should be with the Parliament.
There
are two fundamental objections to this proposal. In the first place, this matter was
canvassed at various times between the Provincial Premiers and the Finance Department of the Government
of India in which the proposal was made that in order to
remove the difficulties that arise in the levy of the sales tax it would be better if the
tax was levied and collected by the Centre and distributed among the Provinces either according to some accepted principles or
on the basis of a report made by some Commission. Fortunately or unfortunately, the
Provincial premisers were to a man opposed to this principle and I think. Sir, that their decision was right from my point of view.
Although
I am prepared to say that the financial system which has been
laid down in the scheme of the Draft Constitution is better
than any other special system that I know of. I think it
must be said that it suffers from one defect. That defect is that the Provinces are very
largely dependent for their resources upon the grants made to them by the Centre. As well
as know, one of the methods by which a responsible Government works is the power vested in
the Legislature to throw out a Money Bill. Under the scheme that we have proposed; a Money
Bill in the Province must be of a very meagre sort. The taxes that they could directly
levy are of a very minor character and the Legislature may not be in a position to use
this usual method of recording its " no confidence " in the Government by refusing taxes. I think,
therefore, that while a large number of resources on which the
Provinces depend have been concentrated in the Centre, it
is from the point of view of constitutional government desirable at least to leave one
important source of revenue with the Provinces. Therefore, I think that the proposal to
leave the sales tax in the hands of the Provinces, from that point of view, is a very
justifiable thing. That being so, I think the amendment of my Friend Prof. Shibban Lal Saxena falls to the ground.
With
regard to the amendment of my Friend Mr. Tyagi, I would
like to say that I am in great sympathy with what he has said. There is no doubt about it
that the sales tax when it began in 1937 was an insignificant source of revenue. I have
examined the figures so far as Bombay and Madras are concerned. The tax in the year 1937
in Madras was somewhere about Rs.
2.35 crores. Today it is very nearly Rs. 14 crores. With regard to Bombay the same is the situation, namely, that
the tax about Rs. 3.5 crores in 1937 and today it is somewhere in the neighbourhood of Rs.
14 crores. This must be admitted as a very enormous increase and I do not think that it is
desirable to play with the sales tax for the purpose of raising revenue for the simple
reason that a taxation system can be altered on the basis, so far as I know, of two
principles. One is the largest equity between the different classes. If one class is taxed
more than another class it is justifiable to employ the taxation system to equalise the
burden.
The
second important principle which, I think, is accepted all
over the world is that no taxation system should be so manipulated as to lower the
standard of living of the people, and I have not the slightest doubt in my mind that the
sales tax has a very intimate connection with the standard of living of the people of the province. But, with all the sympathy that I have with
my friend, I again find that if his amendment was accepted it would mean that the power of
the provinces to levy the sales tax would not be free and unfettered.
It would be subject to a ceiling fixed by Parliament. It seems to me that if we permit the
sales tax to be levied by the provinces, then the provinces must be free to adjust the
rate of the sales tax to the changing situation of the province, and, therefore, a ceiling
from the Centre would be a great handicap in the working of the sales tax. I have, no doubt that my Friend Mr. Tyagi, if he goes into the Provincial
Legislature, will carry his ideas through by telling the
Provincial Governments that the sales tax has an important effect on the standard of
living of the people, and therefore, they ought to be very careful as to where they fix
the pitch.
Shri
Mahavir Tyagi :
Have I become so inconvenient to you ?
The
Honourable Dr. B. R. Ambedkar :
Not at all. If I were a Premier, I would have taken the same attitude as you have taken.
Now,
coming to the amendment of my honourable Friend Pandit Kunzru,
I am inclined to think that the purpose of his amendment is practically
carried out in the explanation to sub-clause (1) where also
we have emphasised the fact that the sales tax in its fundamental
character must be a tax on consumption and I do not think that his amendment is going to
improve matters very much.
There is only one point, I think, about which I should like to
say a word. There are, I know, some friends who do not like the
phraseology in sub-clause (1), in so far as it applies, " in the course of export and in the course of import. " Now, the Drafting Committee
has spent a great deal of time in order to choose the exact phraseology. So far as they
are concerned, they are satisfied that the phraseology is as good as could be invented.
But I am prepared to say that the Drafting Committee will further
examine this particular phraseology in order to see whether
some other phraseology could not be substituted, so as to remove the point of criticism
which has been levelled against this part of the article. Sir, I hope the House will now
accept the amendment.
Mr.
President :
Before putting the proposition moved by Dr. Ambedkar to
vote, I desire to say a few words, particularly because I see in front of me the
Honourable the Finance Minister. I do not wish to say anything either in support of or in
opposition to the article which has been moved, but I desire to point out that there is a
considerable feeling in the provinces that their sources of revenue have been curtailed a
great deal, and also, particularly among the provinces,
which are poor, that the distribution of the income-tax is not such as to give them
satisfaction. I desire to ask the Finance Minister to bear this in mind when he comes to
consider the question of the distribution of the income-tax, so that it may not be said
that the policy of the Government of India is such as to
give more to those who have much and to take away the little from those who have little.
I
shall now put the various amendments to vote.
All
amendments were negatived.
[Original proposition moved by
Dr. Ambedkar was adopted.
Article 264-A, as amended,
was added to the constitution.]
[f16] The Honourable Dr. B. R. Ambedkar : I would like you to take
up article 280-A.
Pandit
Hirday
Nath Kunzru : I strongly object
to that article being taken up today. I received the amendment only this morning. The
matter with which it deals is a very important one and we should be allowed some time to
consider it and to put forward amendments, if we want to do so.
Mr.
Naziruddin Ahmad :
In addition, this article proposes to introduce a new kind of emergency unknown in any
system.
The
Honourable Dr. B. R. Ambedkar;
Sir, I hope you will not allow these technicalities to stand in the way of the business of
the House. Now, even if the honourable Member got the amendment
at nine o'clock, from nine to twelve he had time. I do not think there is anything obscure
in this amendment. A man of much less intelligence than my honourable Friend Pandit Kunzru
could understand it on first reading. I have no doubt about it.
Pandit Hirday Nath Kunzru : Sir, it
is a very important matter and Dr. Ambedkar's impatience
and rudeness should not be allowed to override the rights of the Members—rights which
they clearly enjoy under the rules. I demand. Sir, that we
should be given more time to consider this amendment notwithstanding the obvious desire of
Dr. Ambedkar to rush the amendment through the House.
Mr.
President :
I would suggest that we go in the order in which it is on the agenda and take up article
274-DD.
The Honourable Dr. B. R. Ambedkar : I am prepared
to do that, Sir, but I must say that we are so much pressed for time that I do not think
that these technicalities ought to be given more importance than they deserve.
Pandit
Hirday
Nath Kunzru : It is a pity that
the Chairman of the Drafting Committee, who, by virtue of his position may be supposed to
appreciate the rights of others, makes light of them.
ARTICLE
274-DD.
[f17] The Honourable Dr. B.
R. Ambedkar :
Sir, I move :
"
That with reference to amendment No. 400 of List XVII (Second Week), after article 274D,
the following article be inserted :— (Power of certain States on Part III of the First Schedule in impose
restrictions on trade & commerce by the levy of certain taxes & duties on the
import of goods into or the export of goods from such States).
' 274DD. Notwithstanding anything contained
in the foregoing provisions of this Part or in any other provisions of this Constitution was levying any tax or duty on the import of goods into the State from
other States or on the export of goods from the State to other States may, if an agreement in that behalf
has been entered into between the Government of India and the Government of that State,
continue to levy and collect such tax of duty subject to
the terms of such agreement and for such period not
exceeding ten years from the commencement of this Constitution as may be specified
in the agreement :
Provided
that the President may at any time after the expiration of
five years from such commencement
terminate or modify any such agreement if, after
consideration of the report of the Finance Commission
constituted under article 260 of this Constitution, he thinks it necessary to do so. ' "
Sir, this new article is a mere consequential amendment to article 258, which the House has already accepted, whereby the power is given to the Government of India to enter into agreement with States in Part III for the purposes of making certain financial adjustments during a temporary period.
[f18]
[Article 274DD was adopted and added to the constitution]
****
[f19] The Honourable Dr. B. R. Ambedkar : If my honourable Friend Pandit Kunzru
has now no objection we may proceed with the new article
280A. He has had another half an hour.
Mr.
President :
I think we had better take it up a little later.
****
[f20]
The
Honourable Dr. B. R. Ambedkar : Sir, I
move :
" That
after article 280, the following new article be inserted : (Provisions as to financial emergency).
' 280-A. (I )
If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened,
he may by a proclamation make a declaration to that effect.
(2)
The provisions of clause (2) of article 275 of this constitution shall apply in relation to a proclamation issued under clause (1) of
this article as they apply in relation to a Proclamation of Emergency issued under clause
(1) of the said article 275.
(3)
during the period any such proclamation as is mentioned in
clause(l) of this article is in operation, the executive authority
of the Union shall extend to the giving of directions to any State to observe such canons
of financial propriety as may be specified in the directions, and to the giving of such other directions as the President
may been necessary and adequate for the purpose.
(4)
Notwithstanding anything contained in this Constitution—
(a)
any such direction may include—
(i)
a provision requiring the reduction of salaries and
allowances of all or any class of persons serving in
connection with the affairs of a State;
(ii)
a provision requiring all money bills or other bills to which the provisions of article
182 of this Constitution apply to be reserved for the
consideration of the President after they are passed by the
Legislature of the State;
(b)
it shall be competent for the President during the period any proclamation issued under clause (1) of this article
is in operation to issue directions for the reduction of
salaries and allowances of all or any class of persons serving in connection with the affairs of the Union including the judges of
the Supreme Court and the High Courts.
(5)
Any failure to comply with any directions given under clause (3) of this article shall be
deemed to be a failure to carry on the Government of the State in accordance with the
provisions of this Constitution, ' "
Sir,
having regard to the present economic and financial
situation in this country there can hardly be any Member of
this Assembly who would dispute the anxiety of some such provision as is embodied in this
new article 280A and I therefore, do not propose to spend any time in giving any
justification for the inclusion of this article in our
Draft Constitution. All that I propose to say is this, that this article more or less follows the
pattern of what is called the National Recovery Act of the
United States passed in the year 1930ortherea bouts, which give the power to the President to make similar provisions in order to remove the
difficulties, both economic and financial, that had overtaken the American people as a
result of the great depression from which they were suffering. The reason why, for instance, we have thought it necessary to
include such a provision in the Constitution is because we
know that under the American Constitution within a very short time the legislation passed
by the President was challenged in the Supreme Court and the Supreme Court declared the whole of the legislation to he unconstitutional, with the
result that after that declaration of the Supreme Court, the President can hardly do
anything which he wanted to do under the provisions of the National Recovery Act. A similar fate perhaps might
overwhelm our President if he were to grapple with a
similar financial and economic emergency. In order to prevent any such difficulty we thought it was much better to make an express provision in the Constitution itself
and that is the reason why this article has been brought forth.
****
[f21] Mr. President :
Have you anything to say '?
The
Honourable Dr. B. R. Ambedkar :
If you think it is necessary, I will speak.
Mr.
President :
No, no. I do not say so. Then I will put the amendment to the vote.
Shri
H. V. Kamath : I suggest that
Dr. Ambedkar might consider
the change of the wording from "
threatened " to " gravely threatened . "
Mr.
President :
You did make your suggestion. He will consider whether it
is worth considering. I do not think I should allow you to
make a second speech in the form of a suggestion to Dr. Ambedkar.
Srijut
Rohini Kumar Chaudhuri (Assam : General) : I wanted to make my
only speech.
Mr.
President :
But I have already closed the debate.
[All 8 amendments were negatived. Original amendment of Dr. Ambedkar
was adopted. Article 280A was added to the Constitution.]
****
[f22]
Shri
B. Das : I
wish Dr. Ambedkar should make it clear whether the tribunal in the
territory of India applies to the Income-tax tribunal or the different Railway tribunals
that we have. If the power is extended, then the Income-tax tribunal must be dissolved at
once. We have got the Income-tax tribunal which is the
final authority.
The
Honourable Dr. B. R. Ambedkar :
Are they relevant to this discussion ? How does the
Income-tax tribunal come here ?
Shri
B. Das : In this article
it is stated :—
"
The Supreme Court may, in its discretion, grant special
leave to appeal from any judgement, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India. "
I
only wish to be assured by you that the ' tribunal ' does not mean the '
Income-tax tribunal '.
The
Honourable Dr. B. R. Ambedkar : You
said other personnel also. So far as my memory goes, this has been amended to make
provision for income-tax cases also to be taken up in the Supreme Court. I know that it
has been amended.
Pandit
Thakur Das Bhargava
: Sir, in my humble opinion clause (2) seems to be very
wide and unnecessary. It reads as follows :
"
Nothing in clause (1) of this article shall apply to any judgement, determination,
sentence or order passed or made by any court or tribunal
constituted by or under any law relating to- the Armed
Forces. "
So
far as offences relating to the military personnel and
military offences are concerned, they may be immune from the jurisdiction of the Supreme
Court; but there are many laws relating to the Armed Forces which countenance the
judgements etc. by courts constituted under those Acts and the accused in those cases are
the civilian population or military personnel accused of civil offences. In regard to,
say, the Cantonment Act or in regard to the Territorial Forces Act, there are some
offences in which the members of the civil population are accused and there is no reason
whatsoever why such sentences should not be subject to the jurisdiction of the Supreme
Court. I, therefore, think that this clause is too widely worded and needs amendment.
The
Honourable Dr. B. R. Ambedkar : Mr.
President, Sir, in view of the observation made by my honourable Friend. Prof. Shibban Lal Saksena, it has
become incumbent upon me to say something in relation to the proposed article moved by my
honourable Friend, Mr. T. T.
Krishnamachari. It is quite true that on the occasion when
we considered article 112 and the amendment moved by my honourable Friend, Prof. Shibban
Lal Saksena. I did say that under article 112 there would be jurisdiction in the Supreme
Court to entertain an appeal against any order made by a Court-martial. Theoretically that
proposition is still correct and there is no doubt about it in my mind, but what I forgot
to say is this : That according to the rulings of our High
Courts as well as the rulings of the British Courts including those of the Privy Council,
it has been a well recognized principle that civil courts, although they have jurisdiction
under the statute, will not exercise that jurisdiction in
order to disturb any finding or decision given or order made by the Court-martial. I do
not wish to go into the reason why the civil courts of superior authority, which
notwithstanding the fact that they have this jurisdiction have said that they will not
exercise that jurisdiction; but the fact is there and I should have thought that if our
courts in India follow the same decision which has been given by British Courts—the
House of Lords, the King's Bench Division as well as the Privy Council and if I may say so
also the decision given by our Federal Court in two or three cases which were adjudicated
upon by them—there would be no necessity for clause (2); hut unfortunately the Defence Ministry feels
that such an important matter ought not be left in a condition of doubt and that there
should be a statutory provision declaring that none of the superior civil courts whether it is a High Court or the Supreme Court shall
exercise such jurisdiction as against a court or tribunal constituted under any law
relating to the Armed Forces.
This
question is not merely a theoretical question but is a question
of great practical moment because it involves the discipline of the Armed Forces. If there
is anything with regard to the armed forces, it is the necessity of maintaining discipline. The Defence Ministry feel that if a
member of the armed forces can look up either to the Supreme Court or to the High Court
for redress against any decision which has been taken by a court or tribunal constituted
for the purpose of maintaining discipline in the armed forces, discipline would vanish. I
must say that that is an argument against which there is no
reply. That is why clause (2) has been added in
article 112 by this particular amendment and a similar provision is made in the provisions
relating to the powers of superintendence of the High
Courts. That is my justification why it is now proposed to
put in clause(2) of article 112.
I
should, however, like to say this that clause (2)
does not altogether take away the powers of the Supreme Court or the High Court. The law docs not
leave a member of the armed forces entirely to the mercy of the tribunal constituted under
the particular law. For, notwithstanding clause (2) of
article 112, it would still be open to the Supreme court or to the High Court to exercise
Jurisdiction, if the court martial has exceeded the jurisdiction which has been given to
it or the power conferred upon it by the law relating to armed forces. It will be open to
the Supreme Court as well as to the High Court to examine the question whether the exercise of jurisdiction is within the ambit of the
law which creates and constitutes this court or tribunal. Secondly, if the court-martial
were to give a finding
without any evidence, then, again, it will be open to the Supreme Court as well as the High Court to entertain an appeal in order to find
out whether there is evidence. Of course, it would not be open to the High Court or the
Supreme Court to consider whether there has been enough
evidence. That is a matter which is outside the jurisdiction of either of these Courts. Whether
there is evidence or not, that is a matter which they could entertain. Similarly, if I may
say so, it would be open for a member of the armed forces to appeal to the courts for the
purpose of issuing prerogative writs in order to examine whether the proceedings of the
court martial against him are carried on under any particular law made by Parliament or
whether they were arbitrary in character. Therefore, in my opinion, this article, having
regard to the difficulties raised by the Defence Ministry, is a necessary article. It really does
not do anything more but give a statutory recognition to a
rule that is already prevalent and which is recognised by all superior courts.
I
am told that some people feel some difficulty with regard
to the law relating to the armed forces. It is said that
there are many persons in the armed forces who are really not what are called men of the line, men behind the line. It seemed to me quite impossible to make
distinction between persons who are actually bearing arms
and clivers who are enrolled
under the Army Act, because the necessity of
discipline in the armed
forces is as great as the necessity of maintaining
discipline among those who are not included among the armed forces.
My
honourable Friend Mr. Sidhva raised the question that
sometimes when a member of the armed forces commits a certain crime, kills somebody by
rash driving or any such act, he is generally tried by court-martial, and there is nothing
done so as to bring him to book before the ordinary courts of criminal law. Well, I do not
know; but I have no doubt in my mind that so far as a member
of the armed forces is concerned,
he is subject to double jurisdiction. He is no doubt
subject to the jurisdiction of the court which is created
under the military law. At the same time, he is not exempt
from the ordinary law of the land. If a man, for instance, commits
an offence which is an offence under the Indian Penal Code and also under the Army Act, he
will be liable to be prosecuted under both the Acts. If a member of the army has escaped any such prosecution, it is because people have not pursued the matter. The
general theory of the law is that
because a man becomes a member of the armed forces, he does not cease to be liable to the ordinary law of the land. He continues to be liable,
but in addition to that liability, he takes a farther liability under the Act under which he is enrolled.
Shri
Mahavir Tyagi :
Can he have two punishments for one crime ?
The
Honourable Dr. B. R. Ambedkar :
Oh, yes.
Shri
R. K. Sidhva :
Why not make it clear ?
The
Honourable Dr. B. R. Ambedkar :
It is quite clear. Section 2 of the Indian Penal Code says : " every person "." Every person "
means high or low, armed or unarmed.
Mr.
President :
Mr. T. T. Krishnamachari, would you like to say anything after this ?
Shri
T. T. Krishnamachari : No, Sir.
Mr. President : I
shall put the amendments to vote.
I
shall put article 112 as proposed in amendment No. 421 .The question is:
"
That with reference to amendment No. 364 of List XV (Second
Week), for article 112, the following article be substituted :—( Special leave to appeal by the Supreme Court).
'
112. (1) The Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India.
(2) Nothing in clause (1) of this article shall apply to any judgement, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces. ' "
The
motion was adopted.
Article
112, as amended, was added to the Constitution.
****
[f23] Mr. President :
Now we are at the fag end of the clauses and over four or five
clauses we need not quarrel.
The
Honourable Shri K. Santhanam
:
But some of the amendments tabled are matters of substance
which, I think, will have to he debated at length. I leave
it to you. Sir, but so far as this is concerned I think the
words " made by Parliament "
are absolutely essential to make the
meaning precise and clear.
The Honourable Dr. B. R. Ambedkar (Bombay : general) : Sir, the amendment moved by my Friend Mr. Santhanam is quite
unnecessary. It has been brought in by him because he has forgotten to take account of the
provisions contained in article 60. Article 60 says that the executive power of the Union
shall extend to all matters with respect to which Parliament has power to make laws,
provided that it shall not so extend, unless the
Parliament, law so provides, to matters with respect to which the
Legislature of the States has also power to make laws that is, matters in the
concurrent List. Therefore, the amendment moved by my Friend Mr. Krishnamachari in
sub-clause (b)
of clause (1) of article 59 cannot go beyond the
power of Parliament to make laws.
The
Honourable Shri K. Santhanam :
The article does not limit it only to those laws; it can also extend further.
The
Honourable Dr. B. R. Ambedkar :
No, it cannot extend further. The necessity for bringing an amendment in sub-clause (b) is this; that
the executive power of the centre extends not only to matters enumerated in List I, but
may also extend to matters enumerated in List III and the position of the Drafting
Committee is this, that whenever a law is made by Parliament, in respect of any matter
contained in List III if the law confers executive power on the Centre, the power of the
President to grant reprieve must extend to that law.
Therefore, these words are necessary. Mr. Santhanam's
amendment is absolutely unnecessary and out of place
because article 60 covers the point.
(Amendment
of Mr. Santhanam was negatived.)
****
[f24] The Honourable Dr. B. R. Ambedkar :
The clause moved by my Friend Mr. Krishnamachari is of old
standing. It occurs in the Instrument of Instructions issued to the Governor of the
provinces under the Government of India Act, 1935.
Paragraph
17 of the Instrument of Instructions says :
"
Without prejudice to the generality of his powers as to reservation of Bills, our Government shall not
assent in our name to, but shall reserve for the
consideration of our Governor-General any Bill or any of
the clauses herein specified,
i.e.
(b)
any Bill which in his opinion would, if it became law so derogate from the powers of the
High Court as to endanger the position that that Court is, by the
Act, designed to fulfil."
This
clause is the old Instrument of Instructions the Drafting
Committee had bodily copied in the Fourth Schedule which they had proposed to introduce
and it will be found in Vol. II of the amendments at pages
368-369. In view of the fact that the House on my recommendation came to the conclusion
that for the reasons which I then stated it was unnecessary to
have any such schedule containing instructions to the Governors of the States in Part I,
it is felt by the Drafting Committee that, at any rate, that particular part of the
proposed Instrument of Instructions, paragraph 17, should be incorporated in the
Constitution itself. Now, Sir, the reasons for doing this
are these :
The
High Courts are placed under the Centre as well as the Provinces. So far as the
organisation and the territorial jurisdiction of the High Court are concerned, they are
undoubtedly under the Centre and the Provinces have no power either to alter the
organization of the High Court or the territorial
jurisdiction of the High Court. But with regard to pecuniary jurisdiction and the
jurisdiction with regard to any matters that are mentioned in List II, the power rests
under the new Constitution with the States. It is perfectly possible, for instance, for a
State Legislative to pass a Bill to reduce the pecuniary jurisdiction of the High Court by
raising the value of the suit that may be entertained by the High Court. That would be one
way whereby the State would be in a position to diminish the authority of the High Court.
Secondly,
in enacting any measure under any of the entries contained in List II, for instance, debt cancellation or any such matter, it would be open for the
Provinces to say that the decree made by any such Court or Board shall be final and
conclusive, and that the High Court should have no jurisdiction in that matter at all.
It
seems to me that any such Act would amount to a derogation from the authority of the High
Court which this Constitution intends to confer upon it. Therefore, it is felt necessary
that before such law becomes final, the President should have the opportunity to examine
whether such a law should be permitted to take effect or
whether such a law was so much in derogation of the authority of the High Court that the
High Court merely remained a shell without any life in it.
I,
therefore, submit that in view of the fact that the High Court is such an important
institution intended by the Constitution to adjudicate between the Legislature and the
Executive and between citizen and citizen such a power given to the President is a very
necessary power to maintain an important institution which has been created by the
Constitution. That is the purpose for which this amendment is being introduced.
Shri
H. V. Kamath :
What about my suggestion to simplify the language?
The
Honourable Dr. B. R. Ambedkar :
I cannot at this stage consider any drafting amendments.
Shri
H. V. Kamath :
All right : Do it later on.
Mr.
President :
I will now put it to vote.
(Amendment
of Mr. T. T. Krishmachari)
The
question is:
"That
to article 175 the following proviso be added :
Provided
further that the Governor shall not assent to, but shall
reserve for the consideration of the President any which in the opinion of the Governor
would, if it became law, so derogate from the powers of the High Court as to endanger the
position which that court is by this Constitution designed to fill.
' "
The
amendment was adopted.
****
[f25] Mr. President :
Would you like to reply. Dr. Ambedkar
?
The Honourable Dr. B. R. Ambedkar : Sir, this
article is to be read along with article 8.
Article
8 says—
"
All laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such
inconsistency be void."
And
all that this article says is this, that all laws which
relate to libels, slander, defamation or any other matter which offends against decency or morality or undermines the security
of the State shall not be
affected by article 8. That is to say, they shall continue to operate. If the words " contempt of court "
were not there, then to any law relating to contempt of
court article 8 would apply, and it would stand abrogated.
It is prevent that kind of situation that the words "
contempt of court " are introduced, and there is,
therefore, no difficulty in this amendment being accepted.
Now
with regard to the point made by my Friend Mr. Santhanam, it
is quite true that so far as fundamental rights are concerned, the word " State " is used in
a double sense, including the Centre as well as the Provinces. But I think he will bear in
mind that notwithstanding this fact, a State may make a law as well as the Centre may make
a law; some of the heads mentioned here such as libel, slander, defamation, security of
State, etc., are matters placed in the Concurrent List so that if there was any very great variation among the laws made,
relating to these subjects, it will be open to the Centre to enter upon the field and introduce such uniformity as the Centre thinks it
necessary for this purpose.
The
Honourable Shri K. Santhanam
:
But contempt of court is not included in the Concurrent List or any other list.
The
Honourable Dr. B. R. Ambedkar :
Well, that may be brought in.
Mr.
President :
Then I will put these two amendments to vote. As a matter of fact. Pandit Thakur Das Bhargavas's amendment is not an amendment to Mr. Krishnamachari's amendment, it is independent altogether I
will put them separately. First I put Mr. Krishnamachari's amendment to vote.
The
question as:
That in clause (2) of
article 13, after the word ' defamation ' the words ' contempt of court
', be inserted "
The
amendment was adopted.
Pandit
Thakur Das Bhargava's amendment was
negatived.
****
[f26]
Mr.
President : Then we take up the new article 302AAA, i.e. amendment No.
450, Mr. Santhanam has made a suggestion that in order to
complete the amendment which
has just been passed, " Contempt of Court " must be included in the
Concurrent List, and I think it is consequential and we had better take that tiling.
The Honourable Dr. B. R. Ambedkar : I will move an amendment
straightaway. Sir.
I move :
"
That after entry 15 in the Concurrent List, the following entry be added :
" 15A. Contempt of Court "
Mr.
President :
I do not think there can be any objection to that.
Mr.
Naziruddin Ahmed ;
There may be many more such timings.
Mr.
President :
May be, but they will come
up in time.
So,
I will put this to vote.
The
above amendment was adopted.
Entry
15A was added to the Concurrent List.
****
[f27]
The
Honourable Dr. B. R. Ambedkar : Sir, I
think my Friend Mr. Sidhva has entirely misunderstood the
position. If he will refer to List
II, in Schedule Seven, items 30 and 35 which relate to the matters covered by the amendment moved by my Friend Shri T. T. Krishnamachari, he will see
that the power of legislation given
to the Centre under items 30 and 35 is of a
very limited character. The
power given under item 30 is for the
purpose of regulation and organisation of air traffic. The power given under 35 is
for the purpose of delimitation of the Constitution and the powers of port authorities. He will very readily see that, so far as the
territory covered by aerodromes or air ports and ports is concerned,
it is part of the territory of the province and
consequently any law made by the State is applicable to the
area covered by the aerodrome or the port. These entries 30 and 35 do not give
the Centre power to legislate for all matters which lie
within the purview of the Central
Government under the entries. The powers are limited.
Therefore the proposal in this
article is this : that while it retains
areas covered by the aerodromes
and by the ports as part of the area of the provinces, it
does not exclude them-it retains the power of the States to
make laws under any of the items contained in List II so as to be applicable to the areas
covered by the aerodromes and the areas covered by the ports. What the amendment says is
that if the Central Government think that for any particular reason such as for instance
sanitation, quarantine, etc., a law is made by the State within whose jurisdiction a
particular aerodrome or port is located, then it will be open for the President to say
that this particular law of the State shall apply to the aerodrome or to the port subject
to this, that or the other notification. Beyond that, there is no invasion on the part of
the Centre over the dominion of the States in respect of framing laws relating to entries
contained in List II, so far as aerodromes and ports are concerned. I hope my Friend, Mr. Sidhva, will now withdraw his objection.
Mr.
President :
I shall now put amendment No. 450 to the vote. The question is:
"
That after article 302AA, the following new article be inserted : (Special provisions as to major
ports & aerodromes).
" 302AAA. (1) Notwithstanding anything
contained in this Constitution, the President may by public
notification direct that as from such date as
may be specified in the notification—
(a) any
law made by Parliament or by the Legislature of a State shall
not
apply
to any major port or aerodrome or shall apply thereto subject to such exceptions or
modifications as may be specified in the notification, or
(b)
any existing law shall cease to have effect in any major port or aerodrome
except
as respects things done or omitted to be done before the
said date, or shall in its application to such port or aerodrome have effect subject to
such exceptions or modifications as may be specified in the
notification.
(2) In this article :—
(a) ' major port '
means a port declared to be a major port by or under any law made by Parliament or any
existing law and includes all areas for the time being included within the limits of such port ;
(b) '
aerodrome ' means aerodrome as defined for the purposes of the enactments relating to
airways, aircraft and air navigation.' "
The
motion was adopted.
Article
302AAA was added to the Constitution.
****
[f28] Mr. President :
Now I have to put the amendment moved by Mr. Kamath to
vote. There is no alternative left to me.
The
Honourable Dr. B. R. Ambedkar
:
He may be asked to withdraw it.
Mr. President ; I
suggested to him not to move it. It rests with him to withdraw it.
Shri
H. V. Kamath :
I am not withdrawing it.
Mr.
President :
He says he does not withdraw it.
The
question is:
"
That in amendment No. 2 of the List of Amendments (Volume 1), the
following be substituted for the proposed preamble :—
"
In the name of the God,
We,
the people of India, having solemnly resolved to constitute
India into a Sovereign democratic republic, and to secure to all her citizens
Justice,
social, economic and political;
Liberty
of thought, expression, belief, faith and worship ;
Equality
of status and of opportunity, and to promote among them all;
Fraternity,
assuring the dignity of the individual and the unity of the nation ; in our
Constituent
Assembly do hereby adopt, enact give to ourselves the Constitution.' "
Shri H. V.
Kamath : I claim a division.
Pandit
Govind Malaviya :
I also want a division on this question.
Moulana
Hasrat Mohani :
I also want a division on this question.
Pandit
Govind Malaviya :
I want a division because I feel that we are doing an injustice to this country and to its
people and I want to know who says what on this matter.
The
assembly divided by show of lands.
Ayes: 41
None: 68
The
amendment was negatived.
Honourable Members :
Closure, closure.
[f29] Mr. President :
I take it that closure is accepted. I shall now ask Dr. Ambedkar
to reply.
The
Honourable Dr. B. R.
Ambedkar :
Mr. president. Sir, the
point in the amendment which makes it, or is supposed to make it, different from the
Preamble drafted by the Drafting Committee lies in the addition of the words " from whom is derived all power and authority ". The question therefore is whether the Preamble as
drafted, conveys any other meaning than what is the general intention of the House, viz., that this
Constitution should emanate from the people and should recognise that the sovereignty to
make this Constitution vests in the people. I do not think that there is any other matter
that is a matter of dispute. My contention is that what is suggested in this amendment is
already contained in the draft Preamble.
Maulana
Hasrat Mohani : Then
why don't you accept it '?
The
Honourable Dr. B. R. Ambedkar :
I propose to show now, by a detailed examination, that my
contention is true.
Sir,
this amendment, if one were to analyse it, falls into three
distinct parts. There is one part which is declaratory. The second part is descriptive.
The third part is objective and obligatory, if I may say
so. Now, the declaratory part consists of the following phrase :
' We the people of India, in our Constituent Assembly, this day, this month..................do
hereby adopt, enact and give to ourselves this Constitution.'
Those Members of the House who are worried as to whether
this Preamble does or does not state that this Constitution
and the power and authority and sovereignty to make this Constitution vest in the people should
separate the other parts of the amendment from the part
which I have read out, namely the opening words ' We the
people of India in our Constituent Assembly, this day, do thereby adopt, enact and give to ourselves this constitution' Reading it in that fashion. ..............[f30]
Shri
Mahavir Tyagi :
Where do the people come in ? It is the Constituent
Assembly Members that come in.
The
Honourable Dr. B. R. Ambedkar :
That is a different matter. I am for the moment discussing this narrow point : Does this Constitution say or
does this Constitution not say that the Constitution is
ordained, adopted and enacted by the people. I think anybody who read's its plain language, not
dissociating it from the other parts, namely the descriptive
and the objective cannot have any doubt that that is what the Preamble means.
Now
my Friend Mr. Tyagi said that this Constitution is being
passed by a body of people who have been elected on a narrow franchise. It is quite true
that it is not a Constituent Assembly in the sense that it includes every adult male and
female in this country. But if my Friend Mr. Tyagi wants that
this Constitution should not become operative unless it has been
referred to the people in the
form of a referendum that is quite a different question
which has noticing to do with
the point which we are debating whether this Constitution
should have validity if it was passed by this Constituent Assembly or Whether it will have
validity only when it is passed on a referendum. That is
quite a different matter altogether. It has nothing to do with the point under debate.
The
point under debate is this : Does this Constitution or does it not acknowledge, recognise and proclaim that it emanates from the people ? I say it does.
I
would like honourable Members to consider also the Preamble of the Constitution of the
United States. I shall read a portion of it. It says : " We the people of the
United States "—lam not reading the other parts— " We the
people of United States do ordain and establish this Constitution for the United States of
America. " As most Members
know, that Constitution was
drafted by a very small body. I forget now the exact
details and the number of the States that were represented in that
small body which met at Philadelphia to draw up the
Constitution. (Honourable Members : There were 13 States).
There were 13 States. Therefore,
if the representatives of 13 States assembled in a small
conference in Philadelphia could pass a Constitution and say that what they did was in the name of the
people, on their authority, basing on it their sovereignty. I personally myself, do not
understand, unless a man was an absolute pedant, that a body of people 292 in number, representing this vast continent, in their representative
capacity, could not say that they are acting in the name of the people of this country. (' Hear, hear')
Maulana
Hasrat Mohani :
I do not think. It is only a community.
The
Honourable Dr. B. R. Ambedkar :
That is a different matter, Maulana. I cannot deal with that. Therefore, so far as that
contention is concerned, I submit that there need be no
ground for any kind of fear or apprehension. No person in
this House desires that there should be anything in this Constitution which has the remotest semblance of its
having been derived from the sovereignty of the British Parliament. Nobody has the slightest desire for that. In fact we wish to delete every vestige of the sovereignty of the British
Parliament such as it existed before the operation of this
Constitution. There is no difference of opinion between any Member of this House and any
Member of the Drafting Committee so far as that is
concerned.
Some
Members, I suppose, have a certain amount of fear or apprehension that, on account of the
fact that earlier this year the Constituent Assembly joined in making a declaration that
this country will be associated with the British Commonwealth,
that association has in some way derogated from the
sovereignty of the people. Sir, I do not think that is a right view to take Every
independent country must have kind of a treaty with some other country. Because one
sovereign country makes a treaty with another sovereign
country, that country does not become less sovereign on that account.(interruption).
I am taking the worst example. I know that some people have that sort of tear. (Interruption).
Shrimati
Purnima Banerji :
May I, sir............
Mr.
President :
Let Dr. Ambedkar proceed. He has not insinuated anything.
The Honourable Dr. B. R. Ambedkar ; I say that
this Preamble embodies what is the desire of every Member of the House that this
Constitution should have its root, its authority, its sovereignty, from the people. That
it has.
Therefore
I am not prepared to accept the amendment. I do not- want to say anything about the text
of the amendment. Probably the amendment is somewhat
worded, if I may say so with all respect in a form which
would not fit in the Preamble as we have drafted, and therefore on both these grounds I
think there is no justification for altering the language which has been used by the
Drafting Committee.
[The
amendment was negatived. The motion was adopted and The Preamble
was added to the Constitution .]
****
Mr.
President:
We are now coming to the close of this session. Before I actually adjourn the House, there
are certain things which have to be settled at this stage. One of the questions which have
to be decided is the next session for the Third Reading of the Constitution, and on
previous occasions the House gave me permission to call it at any time I thought
necessary, and this time also I suppose the House would give me that permission, but I
would ask Mr. Satyanarayan Sinha
to move a formal resolution to that effect.
The
Honourable Shri Satyanarayan Sinha : Sir, I
move :
"
That the Assembly do adjourn until such day in November
1949 as the President may fix ".
Mr.
President :
The question is :
"
That the Assembly do adjourn until such day in November
1949 as the President may fix ".
The
motion was adopted.
Mr.
President :
I think we have done with all the amendments, of which we had notice, and I need not say
anything more about them. Now that we have concluded the second Reading of the
Constitution, by virtue of the powers vested in me under Rule 38-R as recently passed by
this House, I shall refer the Draft Constitution with the amendments to the Drafting
Committee in order to carry out such redraft of the articles,
revision of punctuations, revision and completion of the marginal notes, and for
recommending such formal or consequential or necessary amendments of the Constitution as
may be required. This has to be done to complete the work
and I do that by virtue of the authority which you have given me, with this, we now adjourn till such date as I may announce.
****
The
Constituent Assembly then adjourned to a date in November
1949 to be fixed by the President.
[f31]
Mr.
President : I
understand that there are two Members who have to take the
Pledge and sign the Register.
The
following Member took the pledge and signed the register :—
Shri M. R. Masani (Bombay General).
Mr. President : We
have now to take up the consideration of the Draft Constitution.
****
[f32]
The Honourable Dr. B. R. Ambedkar
(Bombay
General) : Mr. President,
Sir, I have to present the report of the Drafting Committee together with the Draft
Constitution of India as revised by the Committee under rule38-R
of the Constituent Assembly rules. Sir, I move—
"
That the amendments recommended by the Drafting Committee in the Draft Constitution of India be taken
into consideration."
Sir,
I do not propose to make any very long statement of the report or ' on the recommendations made by the Drafting Committee for
the purpose of revising or altering the articles as they were passed at the last session
of this Assembly. The only thing that I wish to say is that
I would not like to apologise to the House tor the long list of corrigenda which has been
placed before the House or the supplementary list of amendments included in list II. In my judgement it would have been much better
if the Drafting Committee had been able to avoid this long list of corrigenda and the supplementary list of amendments contained in List II, but
the House will realise the stress of time under which the Drafting Committee had been
working. It is within the knowledge of all the Members of the House that the last session
of the Constituent Assembly ended on the 17th of October.
Today is the 14th of November. Obviously there was not even one full month available for
the Drafting Committee to carry out this huge task of examining not less than 395 articles
which are now part of the Constitution. As I said, the Drafting Committee had not even one
month, but that even is not a correct statement, because
according to Rule 38-R and other rules, the Drafting Committee was required to circulate
the Draft Constitution as revised by them five days before this session of the House. As a matter of fact
the Constitution was circulated on The 6th of November,
practically eight days before the commencement of this session. Consequently the lime
available for the Drafting Committee was shorter by eight days. Again, it must be taken into consideration that
in order to enable the Drafting Committee to send out the
Draft Constitution in time, they had to hand over the draft they
had prepared to the printer some days in advance to be able to obtain the copies some lime
before they were actually despatched.
The draft was handed over to the printer on the 4th of
November. It will be seen
that the printer had only one day practically to carry out
the alterations and the amendments suggested by the
Drafting Committee. It is impossible either for the printer
or for the Drafting Committee or the gentleman in charge of
proof corrections to produce a correct copy of such a huge
document containing 395 articles within one day.
That
in my judgement is a sufficient justification for the long
corrigenda which the Drafting Committee had to issue in
order to draw attention to the omissions and the mistakes which had been left
uncorrected in the copy as
was presented to them by the printer on the 5th. Deducting all these days, it will be noticed that the Drafting
Committee had barely ten days left to them to carry out this huge task. It is this
shortness of time, practically ten days, which in my judgement justifies the issue of the second list of amendments now embodied
in List II. If the Drafting Committee had a longer time to consider this matter they would have been
undoubtedly in a position to avoid either the issue of the corrigenda or the Supplementary
List of Amendments, and I hope that the House will forgive such trouble as is likely to be
caused to them by having to refer
to the corrigenda and to the Second List of Amendments for which the Drafting Committee is
responsible.
Sir,
it is unnecessary for me to discuss at this stage the nature of the amendments and changes
proposed by the Drafting Committee in the Draft
Constitution. The nature of the changes have been indicated in paragraph 2 of the Report.
It will be seen that there are really
three classes of changes which the Drafting Committee has made. The First change is merely
renumbering of articles, clauses, sub-clauses and the revision of punctuation. This has
been done largely because it was felt that the articles as they emerged from the last
session of the Constituent Assembly were scattered in different places and could not be
grouped together under one head of subject-matter. It was therefore held by the Drafting
Committee that in order to give the reader and the Members
of the House a complete idea as to what the articles relating to any particular
subject-matter are, it was necessary to transpose certain articles from one Part to
another Part, from one Chapter to another Chapter so that they may be conveniently grouped together and
assembled for a better understanding and a better presentation of the subject-matter
of the Constitution. The
second set of changes as are described in the report are purely
formal and consequential, such as the omission of the words
" of this Constitution "
which occurs in the draft articles at various places. Sometimes capital letters had been
printed in small type and that correction had to be made. Other alterations such as reference to Ruler and Rajpramukh had to be made because these
changes were made towards the end when we were discussing the clauses
relating to definition. The other changes may be compendiously called '
necessary alterations. ' Now those necessary alterations fall into two classes,
alterations which do not involve a substantial change in the article itself. These are
alterations which are necessary because it was found that in terms of the language used when the articles
were passed in the last session, the meaning of some
articles was not clear, or there was some lacuna left which had to be made good. That the Drafting Committee has
endeavoured to do without making any substantial change in the content of the articles
affected by those changes. There are, however, oilier articles where also
necessary changes have been made, but those necessary changes are changes which to some
extent involve substantial change. The Drafting Committee felt that it was necessary to
make these changes although they were substantial, because
if such substantial changes were not made there would
remain in the article as
passed in the last session various defects and various
omissions which it was undesirable to allow to continue, and the Drafting Committee has
therefore taken upon itself the responsibility of suggesting such changes which are
referred to in sub-clause (d)
of paragraph 2 and I hope that this House will find it agreeable to accept those changes. As to the
substantial alterations that have been made, in regard to some of them sufficient
explanation has been given in paragraph 4, and I need not repeat what has been said in the report in justification of those changes.
Sir,
I do not think it is necessary for me to add anything to the report of the Drafting
Committee and I hope that the House will be able to accept the report as well as the
changes recommended by the Drafting
Committee both in the report as well as in List II which has already been circulated to
the Members of the House.
AMENDMENTS
OF
ARTICLES
Mr.
President :
Dr. Ambedkar has presented the report and the motion now
before the House is that the amendments recommended by the Drafting Committee, and the
Draft Constitution be taken into consideration....[f33]
****
[f34]
Mr.
President : As I
understand the point of order which you are raising Pandit Kunzru,
it is this, that this article as it is now proposed goes beyond the decisions of this House and it is not a necessary consequence
of any decision which has been taken.
The
Honourable Dr. B. R.
Ambedkar :
(Bombay : General): The only
question on this point of order that could arise is whether the change proposed by the
Drafting Committee in article 365 is a consequential change.
It is quite clear in the judgment of the Drafting Committee that this is not only
necessary but consequential, for the simple reason that,
once there is power given to the Union Government to issue
directions to the States that in certain matters they must act in a certain way, it seems
to me that not to give the Centre the power to take action when there is failure to carry out those directions is practically
negativing the directions which the Constitution proposes to give to the Centre. Every
right must be followed by a remedy. If there is no remedy then obviously the right is
purely a paper right, a nugatory right which has no meaning, no sense and no substance.
That is the reason why the Drafting Committee regarded that such an article was necessary
on the ground that it was a consequential article.
But
, Sir, I propose to say something more which will show that
the Drafting Committee has really not travelled beyond the provisions as they were passed
at the last session of the Constituent Assembly. I would ask my honourable Freind Pandit Kunzru to refer to article 280-A, clause (5),
and article 306-B. Article 280-A, clause (5),
and the provisions contained in the concluding portion of the main part of 306-B are now
embodied in article 365. To that extent, article 365 cannot be regarded as a new article
interpolated by the Drafting committee. If my honourable Friend....[f35]
Pandit
Hirday
Nath Kunzru : May I interrupt my
honourable Friend ? Article 306-B relates only to the power
of the Central Executive over Governments of the States included in Part B of the first Schedule. My honourable Friend has extended
that power of the Central Executive over all State Governments.
The
Honourable Dr. B. R. Ambedkar
:
If my honourable Friend would allow me to complete, I would
like to read article 280-A, not of the present draft, but
of the old, as was passed at the second reading. These are financial provisions. Clause (5) of the article 280-A says: " Any failure to comply with any directions given under
clause (3) of this
article shall be deemed to be a failure to carry on the
Government of the State in accordance with the provisions of this Constitution. " Therefore article 365 merely seeks to incorporate this
clause (5) of the
article 280-A. My honourable Friend, If he refers again to article 306-B....[f36]
Pandit
Hirday Nath Kunzru :
Will my honourable Friend allow me to interrupt him again ?
The
Honourable Dr. B. R. Ambedkar :
I think it would be better if he speaks after I have completed my argument. If he refers
to article 306-B which deals again with the power to issue instructions and directions to
States in Part III which are now States in Part-B of the
First Schedule, he will see that the last portion says : " any failure to comply
with such directions shall be deemed to be a failure to
carry on the Government of the State in accordance with the provisions of this " Constitution. "
Therefore my contention is that article 365 does not introduce any new principle at all.
It merely gathers together or assembles the different
sections in which the power to issue directions is given and states in general terms that wherever power is given to issue directions
and there is a failure, it would be open to the President
to deem that a situation has
arisen in which there has been a failure to carry out the provisions of this Constitution.
The only articles in which such a power to deem that there has been a failure to carry on the Government in accordance with the provisions of the
Constitution was not specifically mentioned were articles 256 and 257. It merely said that the Centre had the power to give
directions. Therefore, if there is at all any extension of the principle embodied in
articles 280-A(5) and 306-B in the new article 365 it is with regard to some of the
articles in which this fact was not positively stated. My submission is that when the
Constitution does say that
with respect to certain articles where the power to issue directions is given, the
president shall be entitled
or it shall be lawful for the President to deem that there
has been a failure to carry on the Government in accordance with
the provisions of the Constitution, it seems difficult to justify that certain other articles in which also the power to issue
directions has been given should have been omitted from the
purview of article 365. The object of article 365 is to make the thing complete and to
extend the express provision contained in article 280-A and article 306-B which
have been passed by the House already. Therefore, I submit
that there is no innovation of any kind at all. It merely makes good the omission which
had taken place with regard to some of the article which are, I submit, on the same footing as article 280-A, clause (5) and
306-B.
Pandit
Hirday Nath Kunzru :
May I point out the reference by Dr. Ambedkar to article
280-A and 306-B in the Draft Constitution as amended by the Constituent Assembly
is not to the point ? Article 280-A refers only to Financial emergencies. The
power conferred on the President under that article can be
exercised only when he has declared that the financial stability or credit of India or any
part thereof is threatened. The scope of that article
therefore is very limited. There is another article in the
Constitution which enables
the President to issue a proclamation of emergency. Such a proclamation can be issued only
when India is threatened by war or internal disturbances.
But these articles do not justify the extension of the power that
the Central Executive may exercise in certain emergencies to all cases. Article 306-B is definitely limited to the case of State mentioned in Part B of the First Schedule. Such a provision was not made in the
Constitution in reference to States mentioned in Part A of the First
Schedule. Dr. Ambedkar has himself admitted that he has extended the provisions of article 306-B and article 280-A. He
has generalised them and brought
even the States mentioned in Part A of the First Schedule
under the wider exercise of the powers of the Central Executive referred to in articles 306-B and 280-A. I submit, Sir, that the
analogy is unjustified and,
in any case, incomplete. Whatever the Assembly may have done in the case of States
mentioned in Part B of the First Schedule, it does not follow from this that the same
provisions must be extended to the States mentioned in Part
A of the first Schedule. I
submit, therefore, that the language of article 365 goes beyond the express decisions of
the Constituent Assembly. A certain difference has to be maintained between the States
mentioned in Part A of the First Schedule and part B of the First Schedule. The difference
cannot be obliterated simply because the Drafting Committee desires that they should be
removed.
Pandit
Balkrishna Sharma
(United Provinces : General) :
May I offer some remarks ?
Mr. President : On the point of order ?
Pandit
Balkrishna Sharma :
Yes, Sir.
Mr.
President :
Dr. Ambedkar has already replied.
The Honourable Dr. B. R.
Ambedkar : I would like to draw your attention that
even in the present Government of India Act there is a provision to the same effect contained in section
126, which empowers the Governor-General to give directions
to the provinces and if it appears to the Governor-General that effect has not been
given to any such directions he can in his discretion issue orders to the Governor who was
to act in his discretion in the matter of carrying out the directions given by the
Governor-General. This provision, if I may say so, is very
necessary because we all know—those of us who were Ministers during the time of the war—how these mere powers
of giving directions turned out to be in infructuous when
the Punjab Government would not carry out the food policy of the Government of India. The
whole Government can be brought to a standstill by a province not carrying out the
directions and the Government of India not having any power to enforce those directions.
This is a very important matter and I submit that the change made is not only consequential but very necessary for the very stability of the Government.
****
[f37] Pandit Hirday Nath Kunzru : ...I should like
Sir, to refer to one more point before I sit down. The Drafting Committee has referred to a number of articles in this Constitution in
justification of the language of article 365. Now, one of
the articles so referred to
this article 371 which corresponds to the old article 306-B. Had that article been omitted, then there might have been some justification for article 3(55, but article 306-B has not been omitted from
this Constitution. It Figures as article 371 but I have not
been able to compare the languages of article 371 in the Constitution as revised by the Drafting Committee and article 306-B in the Constitution as amended by the Constituent
Assembly last month....
The
Honourable Dr. B. R. Ambedkar:
Before my honourable Friend proceeds further, I would like to point out that the words " and any failure to comply with
such directions shall be deemed to be a failure to carry on the Government of the State in accordance with
the provisions of this Constitution " have been
omitted from article 371 which corresponds to the original article 306-B.
Pandit
Hirday Nath Kunzru :
Then I stand corrected in that
respect. If article 365 is deleted as proposed by my
honourable Friend, Pandit Thakur Das
Bhargava, then the Drafting Committee can revert to
the old draft of article 306-B. Apart from this. Sir, since
this question has been referred to by Dr. Ambedkar, I
should like to point out that article 306-B in the
Constitution as amended by the Constituent Assembly, which corresponds to article 371 in
the present Draft of the Constitution that we are discussing now, is of limited duration . It will remain in
operation for ten years only, and this provision cannot be
referred to as a justification for introducing a
new provision in the Constitution that will be permanent.
Sir,
I was referring to articles 353 and 360 when my honourable
Friend, Dr. Ambedkar, pointed out to me the change that had been made in the draft of article 306-B.
Shri
H. V. Kamath : May I point out that
article 371 provides for a period longer than ten years also ?
The
Honourable Dr. B. R. Ambedkar
; " Notwithstanding anything in this Constitution ' during a period often years
from the commencement thereof, or during such longer or shorter period as Parliament may be law provide..." etc [f38]
****
[f39] Shri Mahavir Tyagi :
Sir, I hope President means the President of the Constituent Assembly, and not the '
Governmental President '.
Mr.
President :
There is no other President except the President of the Union.
The Honourable Dr. B. R. Ambedkar
; I propose to explain tills
matter in my reply. Mr. Sidhva may conclude his remarks.
****
[f40]
The
Honourable Dr. B. R. Ambedkar ;
Sir, I move :
'That
in sub-clause (b) of clause
(1) of article 72, for the words ' offence under any law '
the words ' offence against any law ' be substituted."
****
[f41] Shri R. K. Sidhva :
If we get an answer to any doubts it will be helpful.
The
Honourable Dr. B. R. Ambedkar
:
Sir, If my friend Mr. Sidhva were to refer to clause (12)
of article 366 in the draft as revised by the Drafting Committee, he will notice that
there is really noticing new in sub-clause (3) of article 367 which is the subject.-matter of amendment No. 562-A. Article 366 is a definition article and clause (12) there
attempts to define what a foreign State is within the meaning of the Constitution. It was
felt that clause (12) of article 366 as passed by the Assembly was rather cryptic and too
succinct and that it was desirable to give it a more elaborate shape and form.
Consequently the Drafting Committee thought that the best
way would be to delete clause (12) of article 366. This is done by amendment No. 497 and
it is sought to be replaced now by the present amendment
No. 562-A. In the draft as presented to the House with the
report the main provision was that it was open to the President to declare by an order
that a certain country was not a foreign State so far as India was concerned. The main part of clause (3)
of article 367 is just the same. The only thing that
has been added is that Parliament may legislate on this subject and, while legislating,
endow the President with power to proclaim by an order what country is not a foreign
State. It was further felt by the Drafting Committee that it was not desirable to confer
this power in such rigid terms as would follow from the proviso if the words " for such purposes as may be specified in the order " were
not there. The President and Parliament may then be
confronted with two inescapable alternatives, either to say that a foreign country was a foreign
State or to say that a certain country was not a foreign State with the result that the subjects of the country which is declared not to be a
foreign State would become automatically citizens of India and be entitled to all the
rights which the citizens of India are entitled to under this Constitution. It may be in the interests of this country that, while
it might be desirable to recognize a certain foreign country as not a foreign Slate, it
should be limited to such purposes as may be specified in the order so that while making
the order the President would have his position made perfectly
elastic enabling him to say that while we declare that a certain country is not a foreign
State the subjects of that foreign State will be entitled only to certain rights and
privileges which are conferred upon the citizens of India and not
to all. It is for that purpose and in order to make a provision
for those other matters that we thought it desirable to
transpose clause (12) of article 366 and bring it as clause
(3) of article 367.
****
[f42] Mr. President :
Pandit Bhargava has suggested that there is still time between now and the 25th for the Members to come to an agreement
on this question . If it is agreed to by them, that can be
done.
The
Honourable Dr. B. R. Ambedkar :
(Bombay: General) : I think
the difficulty could be easily got over if this assembly before it closes its session on
the 26th November could pass an Act amending the Government of India Act, 1935, section
29U, permitting the Governor-General among other things which he is empowered to do to change also the
name of a Province so that the President can act under article
391 and amend the schedule in order to carry out the action that has been taken by the
Governor-General under the Government
of India Act, as proposed. This matter cannot take more than a few minutes. It would be possible for the Drafting
Committee or the Home Department to bring before this
Assembly a Bill to amend the Government of India Act 1935, section 290. Such a Bill could be passed before the 26th January.
The
Honourable Shri K. Santhanam :
Our difficulty is not objection to changing the name but
only to ' Aryavaria '. Similarly we cannot allow
the Governor-General also to
change the name to ' Aryavarta '.
The Honourable Dr. B. R. Ambedkar : It cannot be Aryavarta as the party has given its verdict on that. I am sure Babu Purushotam Das Tandon has taken note of that.
The Honourable Pandit Govind
Ballabh Pant (United
Provinces : General) : What
you have rejected will not be put forward by the U.P. Government
nor accepted by the Governor-General. That we all accept.
Mr.
President :
Then nothing has to be done at present.
The Honourable Pandit Govind Ballabh Pant : On the understanding that an amending Bill of the nature suggested by Dr. Ambedkar
will be passed before we disperse.
Mr.
President :
That is for Dr. Ambedkar to do.
****
[f43]
Mr.
President :
...Now, we have finished all the amendments, and there is
no time for any further general discussion. But as a matter of fact, we have discussed
everything which came up and which required discussion. So I would
request Dr. Ambedkar to reply to the debate on the various amendments.
Shri
Raj Bahadur : Sir, I
want to refer to only one
point. May I request that the order about Sirohi be placed before the
House so that we may know what its contents are, and whether this Assembly can ratify
or endorse it, or in any way lake note of it or not.
Mr.
President :
I do not think that is a matter which comes before this House. It is a matter for the
other House, not for this House. Dr. Ambedkar.
The
Honourable Dr. B. R.
Ambedkar :
Mr. President, Sir, in my reply I propose to take certain articles which have been
subjected to stronger criticism by the Members of the Assembly. It is, of course,
impossible for me to touch upon every article to which reference
has been made by the members in the course of their observations.
I therefore, propose to confine myself to the more
important ones against which serious objections were raised.
I begin with article 22. Listening to the debate, I found that this article 22 and its provisions as amended by the Drafting Committee's amendments, have not been completely understood, and I should therefore like to state in some precise manner exactly what the article as amended by the Drafting Committee’s amendments proposes to do. The provisions of article 22, as amended by the Drafting Committee, contain the following important points.
First,
every case of preventive detention must be authorised by
law. It cannot be at the will of the executive.
Secondly,
every case of preventive detention for a period of longer than three months must be placed
before a judicial board, unless it is one of those cases in which Parliament, acting under
clause (7), sub-clause (a) has, by law,
prescribed that it need not be placed before a judicial board for authority to detain
beyond three months.
Thirdly,
in every case, whether it is a case which is required to be placed before the judicial board or not.
Parliament shall prescribe the maximum period of detention so that no person who is
detained under any law relating to preventive detention can be detained indefinitely. There shall always be
a maximum period of detention which Parliament is required to prescribe by law.
Fourthly,
in cases which are required by article 22 to go before the Judicial Board, the procedure to be followed by the
Board shall be laid down by Parliament. I would like Members to consider the provisions of
this new article 22 as amended by the Drafting Committee,
with the original article 15-A. It will be seen that the original article 15-A was open to
two criticisms. One was that (4)(a) did not appear to be subject to maximum period of
detention prescribed under clause (7). Clause (4)(a) appeared to stand by itself,
independent of clause (7). The second defect was that the
requirements as to the communication of the grounds of
detention did not apply to person detained under (4)(a). It will now be seen that the
present (4) of article 22 removes these two defects as they existed in the original draft
of 15-A.
Notwithstanding
the improvement made by article 22, I find from the
observations of Mrs. Purnima Banerji
that she has still some complaint against the article. In
the course of a speech yesterday, she said that preventive detention
can take place without the authority of law, and secondly, that there
are still cases which need not go to the Judicial Board. With regard to her first comment,
I should like to say respectfully that she is very much mistaken.
Although preventive detention is different from detention
under ordinary law, nonetheless, preventive detention must take place under law. It cannot
be at the will of the executive. That point is perfectly clear. With regard to the second
comment which she has made, that the new article 22 excepts certain cases from the purview
of the Judicial Board. I admit that that statement is correct. But I also say that it is
necessary to make such a distinction, because there may be
cases of detention where the circumstances are so severe and the
consequences so dangerous that it would not even be desirable to permit the members of the
Judicial Board to know the facts regarding the detention of any particular individual. It
might be too dangerous, the disclosure of such facts, to the very existence of the State.
No doubt, she will realise that there are two mitigating circumstances even in regard to
the last category of persons who are to be detained beyond three months, without the
intervention of the Judicial Board. The first is this, that such cases will be defined by
Parliament. They are not to be arbitrarily decided by the executive. It is only when
Parliament lays down in what cases the matter need not go
to the Judicial Board, it is only in those cases that the
Government will be entitled to detain a person beyond a period
of three months. But what is more important to realise is that in every case, whether it
is a case which is required to go before the Judicial Board or whether it is a case which
is not required to go before the Judicial Board, there shall be a maximum period of
detention prescribed by law.
I
think, having regard to these amendments, which have been suggested
by the Drafting Committee in article 22, there is a
great deal of improvement in the original harshness of the provisions embodied in article
15A. Sir, having said what I think is necessary to say
about article 22, I will next proceed to take article 373, because that article is intimately
connected with article 22.
There has been a great deal of criticism against article 373 and some Members have
even challenged the legitimacy or propriety of including such an article in the
Constitution. But, in reply, I would like to invite the attention of the Members to this
question. What would happen if this article did not find a place in the Constitution ? I think it is quite clear that what would happen if this
article 373 did not find a place in the Constitution is this, that all persons detained
under preventive detention would have to be released
forthwith on the 26th of January 1950, if by that date they
have undergone the three
months' detention permitted by article 22 and if Parliament is not able to pass
a law under clause (7) of article 22 permitting a longer
period of detention. The question is this : is this a desirable consequence ?
Is it desirable to allow all persons who are detained under
the present law to be released on the 26th of January,
simply because Parliament is not in a position to make a law on the 26th
of January, 1950 permitting a further period of detention. It seems to me that that would be a very disastrous consequence.
Consequently, it is necessary, in view of the fact that it
is quite impossible for Parliament immediately or before the 26th of January to meet and
to pass a law which will take effect from that date, to empower some authority under the Constitution to do the work which Parliament is expected to do in order to give full
effect to the provisions of article 22. Who is such an authority under the Constitution ? Obviously the
President. The President is the only authority who will be in existence on or before the
26th of January and who could expeditiously make a law
stepping into the shoes of Parliament and giving affect to the provisions of article 22
permitting a longer period of detention. It is, therefore, absolutely essential to provide
for a break-down of the law relating to preventive detention, to have an article such as
373 empowering the President to enact a law which is within
the power of Parliament to enact. Sir, I should further
like to add that there is nothing very novel in the provisions contained in article 373,
because we have given power by other articles to the
President to adapt existing laws in order that they may be
brought in conformity with the provisions of the Constitution.
Such modification can only be made by Parliament, but we
also realise that it would not be possible for Parliament immediately on the 26th of
January to adapt so many voluminous laws enacted by the
Indian Legislature to bring them in conformity with the Constitution. That power has, therefore, been given
to the President. Similarly, by another article we have given to the President the power
to amend temporarily this very Constitution for the purpose
of removing difficulties. I, therefore, submit that there is nothing novel, there is nothing sinister in this article
373. On the other hand, it is a very necessary complementary article to prevent the
break-down of any law relating to preventive detention.
Now,
Sir, I come to article 34 which relates to martial Law. This article, too, has been
subjected to some strong criticism. I am sorry to say that Members who spoke against
article 34 did not quite realise what ar-ticle"20, clause (1) and article 21 of the Constitution propose to
do. Sir, I would like to read article 20, clause (A ) and
also article 21,because without a proper realisation of the
provisions contained in these two articles it would not be
possible for any Members to realise the desirability
of—1 would even go further and say the necessity for—article 34. Article 20,
clause (1) says :
"
No person shall be convicted of any offence except for violation of a law in force at the tune of the commission of the
act charged as an offence. "
Article
21 says:
"
No person shall be deprived of his life or personal liberty except according to procedure
established by law."
Now,
it is obvious that when there is a riot, insurrection or
rebellion, or the overthrow of the authority of the State in any particular territory, martial law is introduced. The officer in charge of martial law does two things. He declares by
his order that certain acts shall be offences against his authority, and, secondly, he
prescribes his own procedure for the trial of persons who
offend against the acts notified by him as offences. It is quite clear that any act
notified by the military commander in charge of the disturbed area is not an offence
enacted by law in force, because the Commander of the area is not a law-making person. He
has no authority to declare that a certain act is an
offence, and secondly the violation of any order made by him would
not be an offence within the meaning of the phrase " law in force ",
because " law in force ",
can only mean law made by a law-making authority. Moreover,
the procedure that the Commander-in-Chief
or the military commander prescribes is also not procedure
according to law, because he is not entitled to make a law. These are orders which he has
made for the purpose of carrying out his functions, namely, of restoring law and order.
Obviously, if article 20 clause (1) and article 21 remain as they are without any such
qualification as is mentioned in article 34, martial law
would be impossible in the
country, and it would be impossible for the State to restore order quickly in an area
which has become rebellious.
It
is therefore necessary to make a positive statement or positive provisions to permit that notwithstanding anything contained in article 20 or
article 21, any act proclaimed by the Commander-in-Chief as
an offence against his order shall be an offence.
Similarly, the procedure prescribed by him shall be
procedure deemed to be established by law. I hope it will be clear that if article 34 was
not in our Constitution, the administration of martial law
would be quite impossible and the restoration of peace may
become one of the impossibilities of the situation. I
therefore submit. Sir, that article 34 is a very necessary
article in order to mitigate the severity of articles 20(/) and 21.
Shri
H. V. Kamath :
May I ask why the indemnification of persons other than
public servants is visualised in this article ?
The
Honourable Dr. B. R. Ambedkar :
Because my friend probably knows if he is a lawyer....[f44]
Shri
H. V. Kamath :
I am not.
The
Honourable Dr. B. R. Ambedkar :
...that when martial law is there it is not merely the duty
of the Commander-in-Chief to punish people, it is the duty of every individual citizen of
the State to take the responsibility on his own shoulder and come to the help of the
Commander-in-Chief. Consequently if it was found that any person who was an ordinary
citizen and did not belong to the Commander-in-Chiefs entourage,
so to say, does any act, it is absolutely essential that he also ought to be indemnified because whatever
act he does, he does it in the maintenance of the peace of the State and there is a no
reason why a distinction should be made for a military officer and a civilian who comes to
the rescue of the State to establish peace. Now, Sir, I
come to article 48 which relates to cow slaughter. I need
not say anything about it because the Drafting Committee has put in an agreed amendment which is No. 549 in List IV. I hope that would satisfy those who were rather dissatisfied
with the new draft of
article 48 as proposed by the Drafting Committee.
Then
I come to article 77 which deals with rules of business. In the course of the debate on
this article, some members could pot understand why this article was at all necessary. Some members said that if at all this article
was necessary the authority to make rules of business
should be vested in the Prime Minister. Others said that if this article was at all
necessary it was necessary for the purpose of the efficient
transaction of business and consequently the word "efficient
" ought to be introduced in this clause. Now, Sir, I
am sorry to say that not many members who participated in the debate on article 77 have understood the fundamental basis of this
article. With regard to the point that the authority to make rules of business should be vested in the Prime
Minister. I think it has not been understood properly that in effect that will be so for
the single reason that although the
article speaks of the President, the President is also bound to accept the advice of the Prime
Minister. Consequently, the rules
that will be issued by the President under article 77 will in fact be issued by the Prime
Minister and on his advice.
Now,
Sir, in order to understand the exact necessity of article 77, the first thing which is
necessary to realise is that article 77 is closely related to article 53. In fact, article
77 merely follows on to article 53. Article 53 makes a very
necessary provision. According to the general provisions of the Constitution all executive authority of the Union is to be exercised by the President. It might be contended that, under that general provision, that
the executive authority of the Union is to be exercised by the President, such authority as the President is
authorised and permitted to exercise shall be exercised by
him personally. In order to negative any such contention,
article 53 was introduced which specifically says that the executive
authority of the Union may be exercised
by the President either directly or indirectly through
others. In other words, article 53 permits delegation by the President
to others to carry out the
authority which is vested in him by the Constitution. Now, Sir, this specific provision contained in
article 53 permitting the President to exercise his authority through others and not by himself must also be given
effect to. Otherwise article
53 will be nugatory. The question may arise as to why it is
necessary to make a statutory provision as is proposed to be done in article 77 requiring
the resident to make rules of business. Why not leave it to
the President to do so or not to do so as he likes ? The
necessity for making a statutory provision in terms of article 77 is therefore necessary to be explained.
There
are two things which must be borne in mind in criticising
article 77. The first is that if the President wants to delegate his authority to some
other officer or some other authority, there must be sonic evidence that he has made the delegation. It is not
possible for persons who may have to raise such a question in a court of law to prove that the resident has delegated
the authority. Secondly, if the President by his delegation proposes to give authority to
any particular individual to act in his name or in the name of the Government, then also
that particular person or that particular officer must be specifically defined. Otherwise a
large litigation may arise in a court of law in which the
questions as to the delegation by President, the question
as to the authority of any particular individual exercising the powers vested in the Union President may become
matters of litigation. Those
who have been familiar with litigation in our courts will remember that famous case of Shibnath Banerjee versus Government of Bengal.
Under the Defence of India
Act, the Governor had made certain rules authorising
certain persons to arrest
certain individuals who committed offences against the
Defence of India Act. The question was raised as to whether the particular individual who ordered the arrest under that
particular law had the authority
to act and in order to satisfy itself the Calcutta High Court called upon the
Government of Bengal to prove to its satisfaction that the
particular individual who was authorised to arrest was the
individual meant by the Government of Bengal. The
Government of Bengal had to produce its rules of business for the inspection of the Court
before the Court was satisfied
that the person who
exercised the authority was the person meant by the rules of business.
It
is in order to avoid this kind of litigation as to delegation of authority for acts, that
we thought, it was necessary to introduce a provision like article 77. This article of
course does not take away the powers of the Parliament to make a law permitting other persons to have delegated authority as to
permit them to act in the
name of the Government of India. But while Parliament does make such a provision, it is
necessary that the President shall so act as to avoid any kind of litigation that may
arise otherwise.
With regard to article 100 which relates
to the question of quorum, I do not know whether it is
necessary for me to say anything in reply. All that I would say is that, there is a fear having
regard to the comparative figures relating to quorum
prescribed in other legislative bodies in other countries
that the quorum originally fixed was probably too high and
we therefore suggested that the quorum should be reduced.
The Drafting Committees' proposal is not an absolute
proposal, because it is made subject to law made by Parliament. If Parliament after a
certain amount of experience as to quorum comes to the conclusion that it is possible to
carry on the business of Parliament with a higher quorum, there is nothing to prevent
Parliament from altering this provision as contained in article 100. The provision
therefore is very elastic and permits the existing situation to be taken into account and
permits also the future experience to become the guide of
Parliament in altering the provision.
Something
was said with regard to article 128. It was contended that we ought not to pamper our
judges too much. All that I would say is that, the question with regard to the salaries of
judges is not now subject to scrutiny. The House has already passed
a certain scale of salary for existing judges and a certain
scale of salary for future judges. The only question that
we are called upon to consider is when a person is appointed as a judge of a High Court of
a particular State, should it be permissible for the Government to transfer him from that
Court to a High Court in any other State? If so, should this transfer be accompanied by
some kind of-pecuniary allowance which would compensate him
for the monetary loss that he might have to sustain by reason of the transfer ? The Drafting Committee felt that since all the High Courts so far as the appointment of judges is
concerned form now a central subject, it was desirable to treat
all the judges of the High Courts throughout India as forming one single cadre like the I.C.S. and that they should be liable to be transferred from
one High Court to another. If such power was not reserved
to the Centre, the administration of justice might become a very difficult matter. It might be
necessary that one judge may be transferred from one High Court to another in order to
strengthen the High Court elsewhere by importing better talent which may not be locally
available. Secondly, it might be desirable to import a new
Chief Justice to a High Court because it might be desirable
to have a man who is unaffected by local politics and local
jealousies. We thought therefore that the power to transfer should be placed in the hands of the Central Government,
We
also took into account the fact that this power of transfer
of judges from one High Court to another may be abused. A Provincial Government might like
to transfer a particular judge from its High Court because that judge had become very
inconvenient to the Provincial Government by the particular attitude that he had taken with regard to
certain judicial matters, or that he had made a nuisance of himself by giving decisions
which the Provincial Government did not like. We have taken care that in effecting these transfers, no such considerations ought to prevail.
Transfers ought to take place only on the ground of
convenience of the general administration. Consequently, we have introduced a provision
that such transfers shall take place in consultation with
the Chief Justice of India who can be trusted to advise the Government in a mariner which is not affected by local or personal prejudices.
The
only question, therefore, that remained was whether such transfer
should be made so obligatory as not to involve any provision for compensation for loss
incurred. We felt that that would be a severe hardship. A
judge is generally appointed to the High Court from the local bar. He may have a household
there. He may have a house and other things in which he
will be personally interested and which form his
belongings. If he is transferred from one High Court to another,
obviously, he cannot transfer all his household. He will have to maintain a household in
the original province in which he worked and he will have to establish a new household in the new Province to which he is transferred. The Drafting
Committee felt therefore justified in making provision that where such transfer is made it
would be permissible for Parliament to allow a personal allowance to be given to a judge
so transferred. I contend that there is nothing wrong in the amendment proposed by the Drafting Committee.
With
regard to article 1481 need say nothing at this stage for
the simple reason that the amendment moved by my friend Mr.
T. T. Krishnamachari (No. 618) is one which has found itself agreeable to all those who had taken interest
in this particular article.
Similarly
article 320 over which there was so much controversy (if I may say so, without offence,
utterly futile controversy) all controversy has now been set at rest by the revised
amendment No. 558, which removes the objectionable parts
which Members at one stage did not like.
With
regard to article 365 there has been already considerable amount of debate and discussion. I also participated in that debate and stated my point of view. I am sure that after
taking all that I said into consideration, Members will find that article 365 is a necessary article and does not in any sense
over-ride the decision taken by the House at an earlier
stage.
I
come to article 378. It was contended that this article should contain a provision of a uniform character
for determining the population for election purposes. I am
sorry to say that I am not in a position to accept this proposal of a uniform rule. It is
quite impossible to have a uniform rule in the changing circumstances of the different
Provinces. The Centre therefore must retain to itself the liberty to apply different tests to different Provinces for the purpose of
determining the population. If any grave departure is made by reason of applying different
rules to different Provinces, the matter is still open for
the future Parliament to determine, because all matters
which have relevance to constituencies will undoubtedly be
placed before the Parliament and Parliament will then be in a position to see for itself
whether the population as ascertained by the Central Government is proper, or below or above. Now, Sir, I come to article 391.
Pandit
Balkrishna Sharma :
Article 379 ?
The
Honourable Dr. B. R. Ambedkar :
About article 379 I can quite appreciate the objection of my honourable Friend Mr. Sharma.
He objects to the words principally, " Dominion of
India ". I tried yesterday
with the help of Mr. Mukerjee,
the Chief Draftsman, my hand to redraft the article with the object of eliminating those words ' Dominion of India'. But I confess that I failed. I would therefore request Mr. Sharma to
allow the article to stand as it is. It is unfortunate, hut there is no remedy to it that
I can see within the short time that was left to us.
Now
coming to article 391, the position is this : The
Constitution contains two sets of provisions for the creation of new provinces.
Provinces can be created after the commencement of the Constitution. New Provinces can be
created between 26th November and 26th January. With regard
to the creation of Provinces after the commencement of the Constitution, the articles that
would become operative are articles 3 and 4. They give
power to Parliament to make such changes in the existing boundaries of the provinces in order to create new
provinces. Those articles are so clear that I do not think any further commentary
from me is necessary.
With
regard to the creation of new Provinces between now and the
26th of January, the article that would be operative would be section 290 of
the Government of India Act of 1935 and article 391 of the present Constitution. Sir,
article 391 says that, if between now and the 26th of
January the authority empowered to take action under the Government of India Act, 1935
does take action, then the President, under article 391 is empowered to give effect to that order made under the
Government of India Act section 290. ' Notwithstanding the
fact '— this is an important ' thing ' notwithstanding
the fact that on the 25th January, the
Government of India Act, 1935, would stand replaced', the action would stand. The President is empowered under article 391 to carry over that action taken under the
Government of India Act, 1935 and to give effect to it by an order amending the First
Schedule and consequentially
the Fourth Schedule which deals with representation in the Council of States.
An
Honourable Member :
He can only act after 26th January.
The
Honourable Dr. B. R. Ambedkar :
He can act at any time. The Constituent Assembly will not be able to take notice of it,
because it will not be in existence for this purpose after the 26th November. The point is
this that the Government of India Act, 1935 will continue
in operation after the 25th November. So long as that Act continues, the
Governor-General's right to act under it also continues. He may take action at any time
that he likes.
My
friend Mr. Sidliva raised one question,
namely that any action that
may be taken between now and the 25th January should be subject to the scrutiny of Parliament. I think what he
intends is that it should not be merely the act of the
executive. My friend Mr. Sidhva will remember that our Constitution will come into operation on the 26th of January. Till the 25th of
January, the Constitution
which will be operative in India will be the Constitution embodied in the Government of India Act, 1935, as adapted on 15th August 1947. Therefore, between now and the 25th of January, the Constitution is not the Constitution
that we shall he passing, but the Constitution embodied in
the Government of India Act, 1935. Therefore in replying to his question
whether the Parliament should have the
right or the Indian legislature
should have the right to he consulted in this matter, must he determined by the
terms contained in section 290 of the Government of India Act, 1935.
If
my friend Mr. Sidhva were to turn to section 290 of the
Government of India Act, he will see that the Governor-General is not required to
ascertain the views of the
Provincial Legislature nor is he required to ascertain the views of
the Indian Legislature. All
that he is required to do is to ascertain the views of the Government
of any Province affected by the order. Therefore, so far as the operation of section 290 is concerned— and it is the only section which
can be invoked so far as any action with regard to reconstitution of Provinces
between now and the 25th
January is concerned—this has placed both the Provincial Legislature and the Indian Legislature, outside the purview of any consultation
that the Governor-General may make for acting under section 290. Therefore with the best wishes in tile
world it is not possible to carry out tile wishes of my friend Mr. Sidliva.
He must therefore remain content with such provisions as we have got under section 290. Sir. I do not think any oilier article calls for a reply. I would therefore close with the hope that the House will
be in a position to accept the amendments proposed by the Drafting Committee. (Cheers).
Mr. President : I
will now put the amendments one by one to vote. Members
have noticed that there are many amendments which arise on
some amendment or other of the Drafting Committee. It may
be that some of the amendments which have been moved by
members may be acceptable to the Drafting Committee and it may be that some
Members are willing to withdraw the amendments which they have moved.
[in all 95 amendments of the
Drafting Committee alone were accepted.
66 amendments were negatived
and 36 withdrawn.]
****
[f45] Mr. President :
Before we adjourn for the day we shall make some
arrangement regarding the timetable as to what we propose to do. I take it that we do not
sit this afternoon. I want to know from Members how many of them would like to speak, so that I
might fix an order as also the time. As regards sitting on
Saturday next it is not possible for me to decide now. I shall decide it on Friday as to
whether we shall sit on Saturday or not. As regards the sessions
from day to day, what is the wish of the House?
Several Honourable
Members: Five hours a day.
Prof. N. G. Ranga (Madras: General):
One sitting from 2-30 to 6-30 p.m., so that we shall come
only once.
Mr.
President :
What is the time limit for each speaker?
Shri K. M. Munshi:
I suggest 15 minutes and live hours a day so that Members might get a few days between this and the next session.
Several Honourable
Members: Half an hour.
Mr.
President :
As a compromise the time limit will be 20 minutes for each speaker.
The Honourable Dr. B. R. Ambedkar: All that we can do now is to decide whether we should sit tomorrow. In the meantime it would be
desirable if you could invite Members who desire to speak to send in their names to you. After ascertaining the number of speakers who desire to take part in
the general debate it will be possible for you to determine
whether we should have two sessions a day and also as to the time-limit for every speaker.
At the moment nobody is in a position to know how many Members wish to speak, If the number of speakers are not too many it will be possible to
increase the time for each Member
and it will also be possible to have one session a day. I therefore suggest that you should only fix the meeting for tomorrow and in the
meantime ask Members to indicate their wishes to you, so
that you may have a list of speakers and then we can come
to a decision as to other points, such as the time-limit
for each speaker and the number of the daily sessions, whether it should be one or two.
Mr.
President :
I think that is a practical suggestion.
Shri T. T. Krishnamachari:
May I say. Sir that we sit tomorrow as usual from ten to one and from three to
Five?
Mr.
President :
For the present I decide that we meet tomorrow as usual at Ten of the Clock and I expect
Members to send to the office by this evening their names
if they wish to take part in the debate. That information
will enable me to decide the hours of sitting, etc. I may say that it would be open to a
Member not to participate in the debate even though he has
given his name.
The
House stands adjourned till ten of the Clock tomorrow.
The
Assembly then adjourned till
ten of the Clock on Thursday, the 17th November 1949.
[f1]CAD,
Vol. X, 12th October 1949, pp. 154-155.
[f2]CAD,
Vol. X, 12th October 1949, p. 158.
[f3]Ibid.
pp. 175-177.
[f4]CAD, Vol. X, 13th October 1949, p. 183.
[f5]Ibid.,
p. 210.
[f6]Ibid.,
14th October 1949, p. 229.
[f7]CAD, Vol. X, 14th October 1949, pp. 236-237.
[f8]Ibid.,
p. 262.
[f9]
CAD, Vol. X, 14th October 1949, p. 268.
[f10]CAD,
Vol. X, 14th October 1949, pp. 269-70.
[f11]CAD,
Vol. X, 14th October 1949, p. 282.
[f12]CAD,
Vol. X, 14111 October 1949, PP. 286-288.
[f13]CAD,
Vol. X, 16th October 1949, pp. 325-327.
[f14]CAD,
Vol. X, 16th October 1949, pp. 330.331.
[f15]Ibid.,
pp. 339-340.
[f16]CAD,
Vol. X, 16th October 1949, p. 342.
[f17]CAD,
Vol. X, 16th October 1949, p. 342.
[f18]Ibid.,,
[f19]CAD,
Vol. X, 16th October 1949, p. 345.
[f20]Ibid,
p. 361.
[f21]CAD.
Vol. X. 16th October 1949. pp. 372.
[f22]Ibid.
p. 378-80.
[f23]CAD,
Vol. X, 17th October 1949, p. 390.
[f24]CAD,
Vol. X, 17th October 1949, pp. 393-394.
[f25]CAD,
Vol. X, 17th October 1949, p. 402.
[f26]CAD,
Vol. X, 17th October 1949, p. 403.
[f27]Ibid..
pp. 405-406.
[f28]CAD,
Vol. X, 17th October 1949, p. 442.
[f29]CAD,
Vol. X, 17th October 1949, pp. 454-456.
[f30]Dots
indicate interruption.
[f31]CAD,
Official Report, Vol. X, 14th November 1949, p. 459
[f32]lbid.,
pp. 462-464.
[f33]Dots
indicate interruption.
[f34]CAD,
Official Report, Vol. X, 15th November 1949, pp. 507-509
[f35]Dots
indicate interruption.
[f36]lbid..
[f37]CAD,
Official Report, Vol. X, 15th November 1949, p. 519.
[f38]Dots
indicate interruption.
[f39]CAD, Official Report, Vol. X, 15th November 1949, p. 525.
[f40]Ibid.,
p. 536.
[f41]CAD,
Official Report, Vol. X, 15th November 1949, pp. 550-551.
[f42]CAD,
Official Report, Vol. X, 16th November 1949, p. 574.
[f43]Ibid,
pp. 575-582.
[f44]Dots
indicate interruption.
[f45]CAD,
Official Report. Vol. X, 16th November 1949 p.
606.