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Constituent Assembly Debates
Constituent Assembly Debate On 17 October, 1949
The Constituent Assembly of India meet in the Constitution Hall, New Delhi, at Nine of the Clock, Mr
CONSTITUENT ASSEMBLY OF INDIA
Monday, the 17th October, 1949
The Constituent Assembly of India meet in the Constitution
Hall, New Delhi, at Nine of the Clock, Mr. President (The Honourable Dr.
Rajendra Prasad) in the Chair.
MOTION-RE ALLOWANCES OF MEMBERS
Mr. President : We shall first take up the motion standing
in the name of Shri Muniswamy Pillay.
Mr. V.I. Muniswamy Pillay : (Madras : General) : Mr. President,
with your permission, I beg to move :
"That the following amendments be made in the Rules governing
the allowances of Members of the Constituent Assembly of India :-
That in rule (D), relating to daily allowances, in paragraph
4 of the Handbook for Members, and in paragraph 8 (Relating to allowances
admissible to Members residing at the place where the Assembly meets) of
the said Hand-book, for the figure, brackets and words `Rs. 45 (Rupees
forty five)', the figure, brackets and words `Rs. 40 (Rupees forty)' be
substituted.
That exception (c) to Note 1 under rule (A) in paragraph
4 of the Handbook for members, be deleted."
Sir, this motion has been brought before the House for certain reasons.
Everyone of the members of this august Assembly knows the present general
economic condition in India and also the prevailing financial stringency.
There has been a cry throughout this country that some savings must be
made here and there to help the Government. This motion I have moved shows
that the Members who are entitled to Rs.45 per day by way of daily allowance
shall forego 11 per cent of it which makes it Rs.40. I know as a matter
of fact that this is a small sacrifice. This august Body has go give a
lead to the country to improve the economic conditions that prevail today.
Sir, this sum of Rs.40 to which we propose to reduce our daily allowance
does not represent our salary. This matter was before the Staff and Finance
Committee and the Members thereof felt that this should be placed before
the Constituent Assembly. The Members are offering to cut down their daily
allowance by 11 per cent. Voluntarily. I contacted many Members of this
August Assembly and found that they are all unanimously of the opinion
that a five rupee cut in the daily allowance will not be a hardship. In
the circumstances I hope the House will give its consent to reduce the
daily allowance of Members from Rs.45 to Rs.40.
The second part of my amendment is that exception (c) to Note 1 under
rule (A) in paragraph 4 of the Handbook for Members be deleted. As one
coming from Madras I know as a matter of fact that there is arrangement
for running a restaurant car from Delhi to Balharshah and also from Balharshah
to Delhi in the train service. This arrangement gives some convenience
to Members for their meals and other things. At one time there was a feeling
that this restaurant car was not meeting the demands mostly of the western
style. But the present arrangement which is mostly of the Indian type caters
both to vegetarians and non-vegetarians. The arrangements made in this
respect from Delhi to Madras and back are in my opinion satisfactory. Of
course, from Balharshah to Madras, the arrangement is not completely satisfactory,
because the restaurant car is detached at Balharshah. But there are first
class refreshment rooms and there are caterers who wait on the passengers
at every important station and take orders and supply dinner and other
things either in the train itself or at the halting places.
These two changes in the rules are therefore necessary and I hope the
Members will vote unanimously for this motion.
Mr. President:There is notice of an amendment to this motion
by Shri Shankarrao Deo.
Shri Shankerrao Deo (Bombay : General) : I am not moving my amendment,
Sir.
Shri H.J. Khandekar (C.P. & Berar : General) *[Mr. President,
Sir, I beg to move : my amendment which I have tabled in respect of the
motion under discussion which has been moved by Shri Muniswamy Pillay proposing
that the present amount of daily allowances to the Members of the Constituent
Assembly should be reduced from rupees forty-five to forty only.
The amendment reads :
"That in the amendments to Rule (D), and to paragraph figure, brackets
and words Rs.40 (Rupees forty) the figure, brackets and words Rs.20 (Rupees
twenty) be substituted."
In my amendment I propose that Members should draw only rupees twenty
for their daily allowance. There is a reason, Sir, for my suggesting this
amendment and it is this. While we were fighting for freedom, every one
of us, and I may say millions of our countrymen made every possible sacrifice
that was needed to make our country free. After the country had made a
lot of sacrifices through the efforts and kindness of Mahatmaji we achieved
Swarajaya and made our country free. But after independence, I am sorry
to say, Sir, such an atmosphere has grown in the country that everyone
who took part in the freedom struggle wants now to earn more and to lead
a pleasant and prosperous life. We are, no doubt, free now; but to retain
out freedom it is necessary for every one of our countrymen to make sacrifices,
for if we do not make sacrifice for the security of our freedom, and the
conditions that are obtaining at present in the country continue further,
I am afraid, we may be overtaken by chaos and our freedom may turn out
to be a short-lived one. The financial position of the Government of the
country is getting worse and worse and we should, therefore, make all possible
sacrifices to improve it.
From the very start ours has been an organization of selfless people.
There was an amendment in the name of Shri Shankarrao Deo which he has
not moved ; I wish he had moved his amendment. The amendment he has sent
in is not befitting a person of his standing who in his renunciating spirit
has discarded even Kurta and Topi and does not put on Dhoti of the usual
length of nine cubits. An amendment from him should have said that the
Members should not take even a pie for their allowance.
He is a bachelor, I mean to say he is unmarried. Secondly, he has no
family; and thirdly, his dress is much simpler than ours. I say he is a
great and selfless person, nay I should say he is a sage or sanyasin.
It was not proper for a great and selfless sage like him to have sent in
an amendment like the one he has tabled.
Shri M. Satyanarayana (Madras : General) : May I ask if it is
proper for us to speak in this strain about any person ?
Shri H.J. Khandekar : I am not speaking anything against hi,
rather I am expressing admiration for him; I consider him a selfless persons
and a sage and this is what I have said about him. I do not think that
there can be any objection against the terms. I have used about him. I
only means to say that an amendment from a leader like him should have
been to the effect that the Members should not take even a pie as allowance.
Sir, I am a family man ; I have my family and children, whom I have
to provide for. I require clothes and house for them. It is, therefore,
natural that I may taken some amount as allowance. But at the same time
I do wish to make some sacrifice. So, maintaining a balance between our
requirements and the sense of sacrifice, I have moved my amendment and
every Member of the House who is at least of my status and not thjat of
Shri Shankarrao Deo, should accept a minimum allowance of rupees twenty
a day. My amendment, Sir, is quite reasonable. Every Member who has so
far been making sacrifices should continue to make sacrifice in future
also. I believe for a selfless person, my amendment alone is right and
every selfless person should accept it.
Outside this House we hear every one exhorting for sacrifice. We hear
talks for making sacrifice from the Members of this House and from the
Congress platform. Out leaders are also making constant requests to all
to make all possible sacrifice for the country. If we, therefore, accept
the amendment of Shri Muniswamy Pillay which lays down a nominal sacrifice
of rupees five only, it would not be decent and proper for the honourable
Members of this House. This sacrifice is not in conformity with the dignity
of the Members of the House. If you go to villages and say that you have
sacrificed rupees five a day from your income, the people will laugh at
you.
Shri Shankarrao Deo : Is there any discussion necessary on this
point?
Shri H.J. Khandekar : I am about to conclude my observations
now. So in view of what I have said, Sir, my amendment is very proper and
I hope the House will accept it.}
(Shri R.K. Sidhva rose to speak)
Mr. President : Is there any discussion necessary ?
Honourable Members : The question may now be put.
Shri R.K. Sidhva : (C.P. & Berar : General) : Sir, I wholeheartedly
support the motion move by .
Mr. President : What is the use of this discussion ?
Shri R.K. Sidhva : Sir, the only point that I want to make is
that the cut should be voluntary. the Ministers are also having a cut voluntarily.
We can unanimously make a declaration in the House that we shall also forego
Rs. 5 a day. That will be more graceful than amending the rules and making
it compulsory. Nothing else.
Mr. President : Mr. Sidhva's point is that instead of amending
the rules, let it be in the form of a resolution which every Member will
undertake to follow. His point is that instead of making it compulsory
by an amendment of the rules, let it be in the form of a resolution which
every Member will accept.
Shri V.I. Muniswamy Pillay : May I say a few words about the
amendment moved by Mr. Khandekar. So far as Mr. Sidhva's point is concerned,
a resolution practically comes to the same thing.
Mr. President : How will the office prepare the bills ?
Shri R.K. Sidhva : On the basis of the resolution.
Mr. President : No, the office cannot prepare the bills on the
basis of a voluntary resolution, unless the Member concerned gives it in
writing. Can you do that for every Member here ? Every Member will have
to do it individually.
Shri R.K. Sidhva : The salary of the Ministers is regulated by
an Act. The act is not amended. Yet the cut has been only voluntary. In
this case also similar procedure should be adopted.
Mr. President : The Ministers are so few in numbers and all of
them can give it in writing. But we are here more than three hundred. All
of us are not present here.
Seth Govind Dass (C.P. Berar : Geeneral) : For one thing, most
of our Members are not here. Therefore, let the Assembly decide this question.
Shri V.I. Muniswamy Pillay : Sir, these rules were made by this
Assembly and I think it is only proper that a motion should be moved and
carried. Mr. Khandekar was referring to the question whether Members were
having any extra expenses. I do think that is relevant. When we accepted
the original motion in this house, no personalities were concerned or mentioned.
There were some members here having their families and servants. Thus having
two establishments entailing heavy expenses. At the time the rules were
made the Assembly came to the unanimous conclusion by fixing the allowances
at Rs. 45. Now, this motion seeks to reduce it by Rs. 5 and make it Rs.
40 and instead of the circutous route via Bombay and paying
more money from the Government, we are providing for the shortest route
and paying the amount which is actually due.
Mr. President : I will first put Mr. Khandekar's amendment to
the vote. The question is :-
"That in the amendments to Rule (D) and to paragraph 8, for the proposed
figure, brackets and words Rs. 40 (Rupees forty) the figure, brackets and
words Rs. 20 (Rupees twenty) be substituted."
Mr. President : The question is :-
"That the following amendments be made in the Rules governing
the allowances of Members of the Constituent Assembly of India :-
That in rule (D), relating to daily allowance, in paragraph
4 of Handbook for Members, and in paragraph 8 (relating to allowances admissible
to Members resident at the place where the Assembly meets) of the said
Handbook for the figure, brackets and words Rs. 45 (rupees forty five)
the figure, brackets and words Rs. 40 (rupees forty) be substituted.
That exception (c) to Note 1 under rule (A) in paragraph
4 of the Handbook for Members, be deleted."
The motion was adopted
------------
DRAFT CONSTITUTION (contd.)
Article 59
Mr. President : Then we will take up the consideration of the
articles on the Order Paper. Article 59, amendment No. 445.
The Honourable Shri K. Santhanam (Madras : General) : May I suggest
that we take up the articles for which amendments were circulated earlier.
These amendments were given to us only this morning.
Mr. President : They were distributed to Members yesterday evening
when we were sitting in the House.
Shri T.T. Krishnamachari : (Madras : General) : Mr. President,
Sir, the amendments to articles 59, 62, 141, 175 and 13 would mean reopening
the articles already passed. May I suggest that the permission of the House
be taken ?
Mr. President : Does the House give leave to reopen these articles
?
Honourable Members : Yes.
Shri T.T. Krishnamachari : Sir, I move
"That for sub-clause (b) of clause (1) of article 59,
the following sub-clause be substituted :-
(b) in all cases where the punishment or sentence is
for an offence under any law relating to a matter to which the executive
power of the Union extends"
Sub-clause (b) of the original article 59, which relates to the powers
of the President to grant pardons, reads thus :-
"(b) in all cases where the punishment or sentence is
for an offence under any law relating to a matter with respect to which
Parliament has, and the Legislature of the State in which the offence is
committed has not, power to make laws."
This means that the concurrent field would be left in a very nebulous position.
In article 60 it is provided that in matters where Parliament so decides
the executive power of the Union will extend to the States in respect of
subjects falling within the concurrent field. This position will be left
nebulous. Therefore the amendment seeks to remedy that defect, making the
power of the President to grant pardon to extend to all matters to which
the executive power of the Union extends.
There will have to be a consequential amendment in regard to article
141 where the power of pardon is given to the President, which I shall
move presently if this amendment is approved by the House.
The Honourable Shri K. Santhanam : Sir, I have tabled an amendment
to this. I could not send it earlier.
I move :
"That in amendment No. 445 of List XX in the proposed
sub-clause (b) of clause (1) of article 59, after the words `offence under
any law' the words made by Parliament be inserted."
I understand the purpose of amendment No. 445, but it goes much wider
tan its intention, because the executive power of the Union extends not
only to laws made by Parliament but also to some of the laws made by the
legislature of a State. For instance, in articles 234 and 234A which deal
with the giving of directions, the executive power of the Union extends
to some laws made by the Legislature of a State. Yesterday, in the matter
of financial emergency, we have provided that the executive power of the
Union extends to matters relating to money Bills and financial matters.
We do not want that in the case of offence under laws made by a State Legislature
the right of pardon should accrue to the President. Therefore I want to
limit it to offences under any law by Parliament. The point is when Parliament
makes any law under the concurrent List and gives executive power to the
Union Executive then the power of pardon should be with the President.
But we do not want to give the power of pardon to the President even when
the executive power extends t laws made by a State Legislature. Therefore,
I think the amendment is too wide and I want to limit it to laws made by
Parliament.
I am afraid the Drafting Committee who are naturally very tired are
trying to introduce amendments drafted in haste. They have had time to
scrutinise them and we have had no time either to scrutinise them.
Shri T.T. Krishnamachari : May I on a point of order say that
the honourable Member is perfectly right to speak about himself. If he
has had no time, we agree. But I do not think he ought to cast any aspersions
on the Drafting Committee as not having had any time to scrutinise them.
I would like to say that we have scrutinised every amendment. If we did
not have the time to scrutinise these amendments we would not have tabled
them.
Shri B.M. Gupte : (Bombay : General) : Saying that they had no
time is not casting any aspersions on the Drafting Committee.
The Honourable Shri K. Santhanam : I am not disputing their intention
or ability, but I am saying that they are hurried which is a matter of
fact.
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 be 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 and 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: 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.
Mr. President : The question is :
"That in amendment No. 445 of List XX, in the proposed
sub-clause (b) of clause (1) of article 59, after the words `offence under
any law' the words `made by Parliament' be inserted."
The amendment was negatived.
Mr. President : The question is :
"That for sub-clause (b) of clause (1) of article 59,
the following sub-clause be substituted :-
in all cases where the punishment or sentence is for an offence
under any law relating to mater to which the executive power of the4 Union
extends;"
The Amendment was adopted.
-------------
Article 62
Shri T.T. Krishnamachari : Sir, I move :
"That in clause (5) of article 62, for the words `who
from the date of his appointment is, for a period of six consecutive months,
not a member', the words `who for any period of six consecutive months
is not a member' be substituted."
This is a purely verbal alteration in regard to the qualification, or
rather the disqualification, of Ministers. If my memory is correct, I think
this wording was pointed out to us as being more suitable by my honourable
Friend Mr. Gupte at the time we passed this article. And I think Dr. Ambedkar
had in mind examining the position. We feel this is the more appropriate
wording and therefore we have suggested this amendment.
Incidentally I might mention that there is an amendment tabled by my
honourable Friend Mr. Santhanam which may be quite correct, but it is only
a matter of variation again of the language. Really the amendment is not
a matter of substance but putting the thing in the precise form so as to
avoid any mistaken interpretation that may arise in the future.
The Honourable Shri K. Santhanam : It is quite correct as my
Friend Mr. Krishnamachari has said that my amendment is only to make matters
clear because, as the official amendment stands, there is no clear indication
where to begin the period of six months and how to count it. It may also
be construed though it may not appear a very correct interpretation
that the period may be counted even before he became a Minister, because
it may be said that if a person is not a member of Parliament he cannot
be appointed a Minister. Our object is that a person who is not a member
of Parliament may be appointed Minister, but after that appointment he
must become a member within six months and must continue to be a member
afterwards. Therefore my amendment is :
"That in amendment No. 446 of List XX, in clause (5) of
article 62, for the proposed words who for any period of six consecutive
months is not a member the words who after the date of his appointment,
is for any period of six consecutive months not a member, be substituted."
When we changed from the wording of the Government of India Act 1935,
I remember this was discussed by us and we put the words "from the date
of appointment" as the beginning of the period. But in interpretation it
may mean that afterwards he may cease to be a member after six months and
such a case may not be covered. So I agree that the amendment is desirable.
But if the words "after the date of appointment" are put in it will become
much more precise.
Shri H.V. Kamath : (C.P. & Berar : General) : May I suggest
that for the word "after" which Mr. Santhanam suggests, the word "from"
would be more appropriate? "After" is not correct.
The Honourable Shri K. Santhanam : "From" may mean that for the
first six months he should be member and afterwards if he ceases to be
member he may continue to be minister. That is the lacuna which we are
trying to fill up.
Shri T.T. Krishnamachari : There is only one point I would like
to mention in respect of Mr. Santhanam's amendment. His amendment is practically
the same, except for a minor difference, namely, in a position where a
person is a Minister who after having been elected duly and later on during
four or five months after the original election some irregularity is found
in the election and the election is set aside. Mr. Santhanam's amendment
would not cover such a case. So I would suggest that we should err on the
safe side and that the House should accept the amendment moved by me.
The Honourable Shri K. Santhanam : I do not press my amendment.
The amendment was, by leave of the Assembly, withdrawn.
Mr. President : Then I put No 446. The question is :
"That in clause (5) of article 62, for the words who from
the date of his appointment is, for a period of six consecutive months,
bot a members the words who for any period of six consecutive months is
not a member be substituted."
The amendment was adopted.
----------
Article 147
Shri T.T. Krishnamachari : I move No. 447, which reads thus :
"That in article 141, for the words with respect to which
the Legislature of the State has power to make laws the words to which
the executive power of the State extends be substituted."
I have already explained the position while moving amendment No. 445
which the House was good enough to accept. This merely seeks to remedy
the position so far as the Governor's powers of granting pardon are concerned.
Mr. President : The question is :
"That in article 141, for the words with respect to which
the Legislature of the State has power to make laws the words to which
the executive power of the State extends' be substituted."
The motion was adopted.
______________
Article 175
Shri T.T. Krishnamachari : Sir, I move :
"That to article 175, the following proviso be added :-
"Provided further that the Governor shall not assent
to, but shall reserve for consideration of the President any Bill 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 reason why we have to bring in this amendment at this stage is this.
An amendment had been tabled by Dr.Ambedkar No. 3406 of Volume II of
amendments to amendments seeking to recast the 4th Schedule,
which the House has now decided to drop, and therefore Dr. Ambedkar could
not move it. In that amendment, in clause (7) provision had been made in
regard to the substance of the proviso which I have now moved. If the 4th
Schedule had been there, this amendment would not have been necessary.
At the time we considered article 175 we were not quite sure whether the
4th Schedule will be a part of the Constitution or not. That
is my explanation for bringing forward this amendment.
On the merits, the house will recognise that the high courts happen
to be, so far as appointment had jurisdiction and all that is concerned,
a mater exclusively of Central competence. But there are matters in which
the Provinces also can interfere and this proviso is intended to protect
any hasty action by a province in regard to the powers of the High Court
and it directs that the Governor should reserve such Bills for the assent
of the President. The matter is by itself very simple and follows a principle
accepted in the body of the Constitution. I think there can be no serious
objection to this amendment.
Shri H.V. Kamath : Mr. President, I would request my Friend Mr.
Krishnamachari to throw some light on an obscure aspect of the matter,
obscure to me. I do not follow his argument when he says that some measures
or Bills might be introduced which might endanger the position. First of
all, of such Bills were going to be introduced would it not be ultra
vires of the legislature at its very inception, ab initio? Will
not the introduction of the Bill be prevented by the Constitution ? Then
again, I have some objection to the language used in the last portion of
this amendment. It is very cumbrous. It could be simplified with advantage
to all concerned. Instead of saying, "as to endanger the position and
all that, will it not be enough to say " so derogate from the powers of
the High Court conferred upon it by (or under) the Constitution"? That
would bring out the meaning of the article clearly. I do not see any necessity
for this cumbrous verbiage towards the end of the amendment.
The Honourable Dr. B.R. Ambedkar : tte 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 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 Court 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 Province
have no power either to alter the organisation 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 Legislature 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.
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
____________
Article 13
Mr. President : There is a previous amendment of which notice
has been given amendment No. 415.
Shri T. T. Krishnamachari : I do not propose to move it.
Sir, I move.
"That in clause (2) of article 13, after the word defamation
the word contempt of court be inserted."
Sir, the House will recognise that amendment No. 415 was originally
tabled, as we had been advised by our legal advisers that there will be
certain difficulties in regard to the exception in sub-clause (2) of article
13 in so far as the operation of sub-clause (a) of clause (1) of article
13 is concerned. But, Sir, a number of honourable Members of this House
spoke about this amendment to Members of the Drafting Committee and they
felt that it is not an amendment merely seeking to remedy a lacuna but
altering the character of the clause in its entirety. They objected to
two words public order being included. The idea, at any rate, of a part
of that amendment was to cover one category of what might be called lapses
in the exercise of freedom of speech and expression, namely, a person might
be speaking on a matter which is sub judice and thereby interfere
with the administration of justice. That is a category of offences which
is not covered by the exceptions mentioned in clause (2) or article 13,
so far as the right of freedom of speech and expression is concerned. Honourable
Members of this house will realize that it was not our intention to allow
contempt of court to take place without any let or hindrance, and it is
not our idea that sub-clause (a) of clause (1) of article 13 should be
used for this purpose.
We, therefore, felt, Sir, that we would restrict ourselves to merely
remedying a lacuna rather than extending the scope of the exceptions mentioned
in clause (2) and that is why we have decided to drop the original amendment
415 and we have tabled amendment No. 449 in which contempt of court will
figure on a par with libels, slander, defamation or any mater which offends
against decency or morality, or which undermines the security of, or tends
to overthrow, the State. Actually, contempt of court will figure with the
first three and it is a very necessary protection so far as our law courts
are concerned, and I hope the House will have no objection to accepting
this amendment.
Mr. President : There is an amendment by Prof. Saksena. I do
not understand it. Will he explain it ?
Prof. Shibban Lal Saksena : (United Provinces : General) For
contempt of court read or contempt of court. That has been omitted by inadvertence.
Shri T.T. Krishnamachari : `Contempt of court or any matter'
: That comes later. Technically, Sir, there ought to be a comma after "defamation."
Pandit Thakur Das Bhagava (East Punjab : General) Mr. President,
with your permission I propose to move my amendment No. 435 which was intended
to amend No. 415 but this amendment has not been moved. My amendment seeks
to substitute for the words any law the words any reasonable law. That
was the old amendment in respect of amendment No. 415. Now instead of 415
Mr. T.T. Krishnamachari has moved an amendment adding the words contempt
of court after the word defamation instead of the words morality, public
order or the administration of justice and when I gave the amendment it
was in view of the words public order or the administration of justice.
All the same my amendment does not lose it value in so far as I wanted
that the article 13 should be amended. The change in the amendment of Mr.
Krishnamachari makes no difference to me. So with your permission I beg
to move :
"That for the words any law the words any reasonable law
be substituted."
An Honourable Member : Law is always reasonable.
Pandit Thakur Das Bhargava. The law has been defined only a measure
which is passed by the legislature. The law can be both reasonable as well
as unreasonable. The law that all blue eyed persons be killed will be a
good law though an unreasonable one. We are competent to pass any law which
is reasonable or otherwise. We certainly pass laws through ignorance, passion,
panic and prejudice which look reasonable to some and unreasonable to others.
Therefore, the courts have been given the power to see whether the laws
are reasonable or otherwise. You have already passed under article 13 certain
amendments to the original article 13 which when amended said that the
courts are empowered to see whether any restrictions are reasonable or
not. The legislature is competent to pass any kind of law and the courts
are therefore empowered in certain matters to see that the powers exercised
by the legislature are reasonable. So far as the fundamental aspect is
concerned. I do not think any person shall doubt that the courts can be
armed with a power like this because we have already armed the courts with
these powers.
Now coming to the amendment of Mr. T.T. Krishnamachari he wants that
the words contempt of court be added after the word defamation in article
13(2) and the clause would read thus :
"Nothing in sub-clause (a) of clause (1) of this article
shall affect the operation of any existing law, or prevent the State from
making any law, relating to libel, slander, defamation, contempt of court,
or any other matter which offends against decency or morality or tends
to overthrow the State."
In regard to this contempt of court, my contention is this, that these
words need not be added to article 13, because as a matter of fact contempt
of law as we understand it consists of a certain piece of conduct not necessarily
with freedom of speech, because when you read the law relating to contempt
of court, you will find in section 480 of the Criminal Procedure Code that
usually the contempt of the ordinary courts of law consists in the infringement
of sections 175, 178 and 179 and sections 180 and 288 of the Indian Penal
Code. All these sections relate to certain pieces of conduct of the individual.
For instance section 175 relates to non-taking of the summons from a court
peon, omission to produce document; se3ctions 178, 179 and 180 relate to
the refusal to reply to question put by the Court or refusal to take any
oath; and similarly section 288 applies when there is an interruption of
any judicial proceedings or when there is any insult offered to the court;
insult can be offered in many ways and not necessarily by way of speech.
Therefore my submission is that the essence of any of these sections
is that a wrong motion or wrong conduct or attitude is penalized and not
speech by itself. The courts are empowered to take cognizance of the act
of contempt and there and then deal with these offences. My first contention,
therefore, is that these sections 175, 178, 180 and 288 which are the subject-matter
of contempt as envisaged in section 480 do not relate to the freedom of
speech at all and therefore, this amendment is not germane to the subject
of the freedom of speech and expression
Moreover, Sir, we have already passed article 118 in this Constitution.
It relates to the powers of the Supreme Court and in so far as the contempt
of the Supreme Court is concerned it is already covered by law and the
Supreme Court is perfectly entitle to deal with cases of contempt. In regard
to other courts, Sir, the law is generally contained either in the law
of defamation or in Act 12 of 1926. Apart from visible contempt committed
in the view of the courts as envisaged in section 480. Criminal Procedure
Code. Comments of judicial acts of courts and magistrates are in the nature
of technical contempt, and if you want to change the law, relating to such
contempt, if you want to take away the powers of freedom of speech, you
must enact that f the legislature passes and such law, it must be subject
to the scrutiny of the courts.
As far defamation under which such contempt usually comes it is covered
by the provisions in the Penal Code. This question of defamation is a very
intricate one. In so far as civil defamation is concerned truth is absolute
defence but so far as the criminal defamation is concerned the greater
the truth the greater the defamation. When you arm the legislature with
such plenary powers to make any law and that law is not subject to the
scrutiny by the courts, it means that the legislature is given a very free
hand and the freedom of speech will be reduced to a mere farce. We had
lately an Act which was enacted by the previous Government in so far as
they armed the courts to punish persons who made comments in respect of
certain judgments. It was called the Judicial Officers' Protection Act
and the provisions of that Act were very wide and sweeping. It may be that
the contempt of courts may include cases of such contempt also. In regard
to such contempt cases, which are technically contempt cases and which
are not committed in the view of the court, there and then, they may come
within the purview of the contempt law and as such should be controlled
and their interpretation should be made amendable to the jurisdiction of
the court. If we do not do that, my fear is that the liberty of freedom
of speech and expression will practically become a nullity.
If you kindly see the six clauses of article 13, you will find the words
reasonable restrictions. But in clause (2) there are no such words reasonable
restrictions, which means that a legislature has been given full powers
to place any kind of restriction, reasonable or unreasonable. When the
subject matter of clause (2) was only confined to certain matters, I could
understand that the word reasonable might have been omitted. Even then
so far as the question of sedition was concerned when the original article
was before us we amended this law and we saw that the word sedition did
not cover cases which it ought not to have dealt with. Therefore we changed
the words thus : which undermines the security of or tends to overthrow
the State, and because these words were changed, the word, "reasonable"
was not put in clause (2). Now clause (2) will not only deal with ordinary
matters but the question of freedom of speech in regard to the executive
authority of the courts is being introduced in it.
Therefore, since we are enlarging the scope of clause (2) it stands
to reason that we may also enlarge the scope of the restriction upon the
power of the legislature in so far as, if we introduce the word "reasonable"
before the word law, then we will attain our object and we will also attain
this object of restricting the scope of the legislature in defining defamation,
libel, slander, etc. or any other matter which offends again decency or
morality. All these matter will be rationalized to a certain extent and
instead of reducing the rights and privileges of the citizens of the Republic
it would be better if we enlarge their liberties and I therefore suggest
that instead of the words any law the words any reasonable law may be substituted.
In case we do not agree to amend it further by the addition of these words,
my fear is that again we will be going forward in the process which we
are unfortunately after, viz. whatever has been given in article 13 may
be taken away in some form or other. We have already done this by enacting
article 24, articles 244, 278, 307 and other articles.
Therefore, my humble submission is that in regard to this most important
matter relating to freedom of speech and expression we should so arrange
matters that what has been given is not taken away and whatever powers
we have given to the legislatures, they may be curtailed to this extent
that they may be subject to the scrutiny of the courts. After all, the
courts are as much the creatures of the Government as the legislature.
Therefore, there is no point in having suspicion against the authority
of the courts when you yourself are giving the legislature the power of
arming the courts to hold persons guilty of contempt or proceeding against
them in regard to contempt of court, in executive manner. You are by the
amendment giving the power to the courts to see whether the law enacted
in respect of contempt of court is good or not. As a matter of fact, you
are helping the courts in one way and enlarging the authority of the courts
in another way. Therefore, I submit that this amendment of mine should
be accepted by the House.
Shri R.K. Sidhva : Mr. President, Sir, this amendment relates
to article 13 clause (1) (a). Clause (1) (a) says, All citizens shall have
the right to freedom of speech and expression. Clause (2) imposes a restriction
on making speeches and using any words which may be libel, slander or defamation.
My honourable Friend Mr.T.T. Krishnamachari wants that the words contempt
of court should be inserted after the word defamation.
First of all, let me state that this is not a consequential amendment.
This is a fundamental proposition that is being brought before this House.
We know, Sir, about this contempt of court, how the Judges have been exercising
their powers in the past, as if they are infallible, as if they do not
commit any mistakes. Even third class magistrates, first class magistrates
and sub-judges have been passing such strictures which even High Court
Judges themselves sit as the prosecutors. They themselves want the judiciary
and executive functions to be separated. In cases of contempt of court,
the High Court Judges is the prosecutor and he himself sits and decides
cases in which he himself has felt that contempt of court has been committed.
We have many cases before us. I will quote the illustration of two cases,
Mr. B.G. Horniman, the Editor of "Sentinel" and Mr. Devadas Gandhi, Editor
of the Hindustan Times. the Allahabad High Court passed strictures against
the very reasonable comments made by these two persons. They preferred
to go to the jail and went to jail rather than submit to the ex parte
decision
of the High Court. I cannot understand why my lawyer friends there are
very lenient to the judges. After all, Judges have not got two horns; they
are also human beings. They are, liable to commit mistakes. Why should
we show so much leniency to them? We must safeguard the interest of the
public. If a citizen by way of making a speech condemns the action of a
third class magistrate or a fourth class magistrate who has passed strictures
upon the public, is he not entitled to make a speech and comment upon it
?
It is unfair that in the matter of contempt of court, this clause is
to be added. I strongly resent it. It is very unfair that the citizen after
having been given some rights, and having been restricted by so many clauses,
you want to further restrict it by inserting contempt of court. In contempt
of court, we know when certain extraordinary things happen, High Court
judges have some sort of power. Here, you have the power right down from
the magistrate up to the High Court judges. Even there, I say the High
Court judges are not infallible ; they have also committed so many mistakes.
They do not want any comment to be made against a High Court judge when
comment was necessary in the interest of the public life.
With these words, Sir, I feel that at this juncture the Drafting Committee
may drop these words contempt of court which has always been a bone of
contention both on the part of the newspapers and the public. I want to
know in what constitution contempt of court is being inserted. My honourable
Friend Mr. Alladi Krishnaswami Ayyar will guide whether in any constitution
in the world contempt of court is included. That power already exists with
the judges. Why do you want to put that in the Constitution and make the
Judge above everybody? You want to make him a Super God.
Mr. President : This has nothing to do with courts. If you read
the article you will see that it says that nothing in sub-clause (a) shall
effect the operation of any existing law in so far as it relates to, or
prevent the State from making any law relating to contempt.
Shri R.K. Sidhva :It relates to the citizens. The citizens shall
have the right to freedom of speech and expression provided they do not
make a speech which ma be libel, slander, defamation or contempt of court.
A judgment may have been passed by a court
Mr. President : A law may be passed which will prevent defamation
of a private individual; but a law may not be passed which will prevent
defamation or libel of a court; that is what your argument comes to.
Shri R.K. Sidhva : I do not want any law to be made in respect
of contempt of court. I am very clear on this point because in my past
experience about contempt of court, from the lowest to the highest court
judges have not been impartial. Therefore I am opposed to this amendment.
Mr. Naziruddin Ahmad : (West Bengal : Muslim) : Mr. President,
Sir, a warm controversy hangs round Contempt of Court. I submit that the
High Court should have the power to punish for contempt in a summary manner.
The reason is that the trial in a case must be conducted in an atmosphere
of calm without any prejudice, on the evidence alone. If there is no power
to proceed for Contempt of Court, any one may start a newspaper trial of
a case pending in a Court or it may be that he indulges in public harangues
about the merits of a case and thereby seriously prejudice the fair and
impartial trial of a case. It is for this reason that contempt of Court
has found a place in our statute book. There is an act of 1926 namely the
Contempt of Courts Act. There are some contempts which can be punished
by event he smallest magistrates. Mr. Sidhva described him as the Fourth
Class Magistrate; there is no such thing at all. If there is a man who
interrupts the proceedings of a Court, he should be punished summarily
by any Court. There are may other serious kinds of contempt which could
be punished only the High Court.
It is said that the High Court becomes the complainant or the prosecutor.
I do not think so. Really, the dignity of the Court is impaired or its
impartiality is challenged and the High Court alone should have the power
to punish for contempt. To quote an example, if we show contempt to the
President, the President alone should have the summarily power to deal
with it. It is by way of analogy that Contempt of Court should be a part
of the law. It is already a part of the law, Pandit Thakur Das Bhargava
pointed out that we have already provided for Contempt of Court to be dealt
with by the Courts in another place and his only objection to this amendment
is whether it should find a place in clause (2) of article 13. It is very
difficult on the spur of the moment to find out what is the effect of the
provision we have already made. We are changing our mind so often and introducing
new amendments of a scrappy character so often that it is often impossible
to find out what an amendment means. It would, at the most, be overlapping.
If there is overlapping that would not be very much of a fault in this
Constitution as there is plenty of overlapping in other places. I submit,
therefore, that the amendment should rather be accepted.
With regard to Pandit Thakur Das Bhargava's amendment that the words
any law should be substituted by the words any reasonable law, it would
be useless in practice. If any law is to be passed, it is to be passed
by the Legislature. It has always to be assumed that the Legislature passes
a law which is, or at least it considers to be reasonable and not unreasonable.
After all, a Legislature is absolutely free. The Legislature cannot contravene
any constitutional limitation. But the word reasonable cannot be a condition.
that condition must be assumed in their very power, and the fact that elected
men will make laws necessarily implies that the laws made are reasonable.
But supposing we introduce this expression and make it reasonable law it
will have no binding force on the Legislature. The word reasonable would
not in the least curtail their power or in the least fetter their discretion.
In these circumstances, the word reasonable would be absolutely unnecessary
and quite meaningless in practice, and so the amendment should not be accepted;
and so far as the Contempt of Court amendment is concerned, for the time
being it should be accepted, subject of course to further consideration
by the Drafting Committee that there is no overlapping in two places.
Shri B. Dass : (Orissa : Genral) : Sir, I seek your protection
from the tyranny of the Drafting Committee. The Fundamental Rights were
passed by us with great solemnity I am not a lawyer, but being a common
man I understand the Fundamental Rights given to us after great consideration
in so many Committees and after serious consideration by this House. What
has happened for the last two or three days that we are suffering from
the tyranny of the Drafting Committee ? On the 15th we received
amendments to article 13 by the same two gentlemen the Honourable Dr.
Ambedkar and Mr. T.T. Krishnamachari and today Mr. Krishnamachari has
moved another amendment. Last night we got the present amendment which
the House is concerned. Fundamental Rights cannot suddenly be changed.
If today was not the last day of this house to consider further amendments,
article 304 would have applied to any changes in the Constitution; for
any changes to the Constitution. it says :
"An amendment of the Constitution may be initiated by
the introduction of a Bill for the purpose in either House of Parliament,
and when the Bill is passed in each House by a majority of the total membership
of that House and by a majority of not less than two-thirds of the members
of that House present and voting etc."
When Dr. Ambedkar himself as Chairman had provided in Part XVI Amendment
of the Constitution with such solemnity, how does the change taken place
overnight ?
I am not one who thinks very high of the judges particularly as they
are trained under the British tradition and they have misapplied justice
and kept us down. I have not read in any place of public utterances that
the High Court Judges or other court Judges or Magistrates in India have
changed since August 1947 and have a better realization of their function
and duties. If Dr.Ambedkar, ten years hence on his retirement, writes a
book on the vagaries of Courts, about contempt of court, he will see his
particular partially overnight to give certain more powers to these magistrates
and judges were not called for. It will be a very wonderful book where
many penniless lawyers became judges and regulated and controlled the affairs
and rule of the allien Raj by the world contempt of court and the chicken-hearted
lawyers got frightened at them.
Mr. President : So far as High Courts are concerned, all parties
and all people in this country have always held them in high esteem and
it is no use casting as persons on them generally. There may have been
individual Judges who may have erred, but we should not cast aspersions
on the judiciary as a whole.
Shri B. Das : Sir, I bow to your ruling. I wish my heart becomes
pure and I respect the Judges in India for their eminent position and for
their due discharge of their duties. However, I seek your protection. If
I have my personal view, I will oppose any tempering with any articles
in the Fundamental Rights to the Third Reading of this Constitution. We
must have some sanctity over change of Fundamental Rights. If it were such
a mistake, how is it that it was not spotted on the 15th of
this month? It is spotted only yesterday. Dr. Ambedkar has been described
as the Manu of this century. Do Manus change overnight ? In that case everyone
of us will be Manu and not Dr. Ambedkar alone. I think no harm will be
done if this amendment to article 13 does not take place. Let Parliament
meet, let Dr. Ambedkar himself bring out a Bill and we will examine it
on its merits. But why tamper with Fundamental Rights? That is my submission
and I do hope, Sir, as our President, you will be pleased to give a ruling
over such matters as amendments to Fundamental Rights.
Shri Krishna Chandra Sharma : (United Provinces : General ) :
Mr. President, I am jealous for the dignity and respect of the Judges.
I hold that in democracy judges should be respected by all classes of people
and there should be dignity attached to the person and their functions.
But one thing I object to is that this contempt of court addition is unnecessary
because the article has the words existing law and there is a provision
in Cr. P.C. Section 480, which deals with contempt of Court during the
proceedings when the Court itself has the power to punish the man committing
the contempt. There is another contempt of court Act which empowers the
High Court to take cognizance of any contempt of court anywhere. Therefore
in view of the existing provisions and I think they are sufficient to
deal with the situation no more protection is necessary. This addition
is therefore unnecessary and undesirable.
The Honourable Shri K. Santhanam : Sir, I do not think the argument
of the last speaker is correct because article 13 will modify the existing
law. Therefore provision for contempt of court is necessary but my difficulty
is that under article 13(2) every State Legislature is given the power
to enact a law relating to contempt of court. If dozen legislatures enact
dozen different laws relating to contempt of court. I think the position,
especially of newspapers will become very difficult.
For instance, if the Madras Legislature makes a law relating to contempt
of court, it will apply, of course, according to its jurisdiction, only
to the papers published in Madras. But it will not apply to all papers
coming from anywhere in India and circulating in Madras, and that will
happen in every province. So far as defamation, slander, etc. are concerned,
they are actionable wrongs which are put in the Concurrent List. When there
is any confusion, Parliament can step in and bring about uniformity. But
in the case of contempt of court, I do not think it is open to Parliament
to bring about uniformity. Therefore, if they want to put it in article
13 there must be a separate item in the Concurrent List so that at any
time Parliament can step in and bring about some uniformity of law. Otherwise,
the insertion of the words contempt of court here, I suggest under clause
(2) of article 13 will result in different laws of contempt of court and
cause confusion throughout the country. I suggest that steps may be taken
to at least reserve powers to Parliament either to make laws for contempt
of court, or to see that laws relating to contempt of court are brought
into some kind of uniformity. It may be put in the Concurrent List, if
the words "contempt of court" are inserted in clause (2) of article 13.
Mr. President : Would you like to reply, Dr. Ambedkar ?
The Honourable Dr. B.R. Ambedkar : Si, 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 provision 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 Sate, 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 Bhargava's amendment is not an amendment
to Mr. Krishnamachari's amendment, it is independent altogether. I will
up them separately. First I put Mr. Krishnamachari's amendment to vote.
The question is :
"That in clause (2) of article 13, after the word defamation
the words contempt of court be inserted."
The amendment was adopted
-------
Mr. President : Then I will put the amendment of Pandit Thakur
Das Bhargava.
The question is :
"That at the end of the amendment No. 415 of List XVIII
(Second Week), the following be added :
That for the words any law the words any reasonable law
be substituted."
The amendment was negatived.
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 thing.
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. Nazirudin Ahmad : There may be many more such things.
Mr. President : May be, but they will come up in time.
So, I will put this to vote.
The question is :
"That after entry 15 in the Concurrent List, the following
entry be added :-
15A, Contempt of Court."
The amendment was adopted.
Entry 15A was added to the Concurrent List.
____
New Article 302AAA
Mr. President : Then we take up Amendment No. 450.
Shri T.T. Krishnamachari : Sir, I beg to move :
"That after article 302AA, the following new article be inserted :-
"302AAA. (1) Notwithstanding anything contained in this
Constitution, the
Special provisions as to major ports of aerodromes, President
may by public notification direct that as from such date as may be specified
in the notification:-
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
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.
In this article :-
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 ;
aerodrome means aerodrome as defined for the purposes of
the enactments relating to airways, aircraft and air navigation."
Sir, the reason for moving this article is that certain difficulties have
been experienced in regard to what are called international aerodromes,
in trying to fit in transit passengers internationals who come in there,
but who may not ordinarily for the time, being, come within the scope of
the particular laws of the province in which the aerodrome is situation.
The idea, I understand is that Santa Cruz Aerodrome in Bombay and Dum Dum
in Calcutta are now to be treated as international aerodromes. It is possible
that other aerodromes will also be treated as coming under the same category,
before long. For instance, if there is absolute prohibition law in regard
to liquor in any province, the moment the passenger lands and if he has
some liquor with him, he would be coming within the scope of this law of
the province, whereas it is only proper that he should come within the
scope of the law of the State only when he goes out of the aerodrome into
the area covered by the State. Again, there are certain specified security
regulations that may be necessary in the aerodromes, but which may not
fit in with the scheme of security regulation current in the State. For
instances, in military aerodromes the security regulations are very strict
because the entire aerodrome is under military control. In the case of
civil aerodromes the position is a little different. The Central Government
which controls them will have to depend largely on local laws so far as
security arrangements and other similar mattes are concerned and it may
be necessary not merely to have a preventive staff whom the Central Government
is empowered to have by fiscal legislation but also have a special police
with special powers for the purpose of dealing with international traffic
and those who interfere with it.
The same contingency will apply to major ports, also particularly to
new ports that come into being in areas which were formerly called Indian
States. There are some difficulties in future. This is merely enabling
provisions to permit the President the limited power to get over the difficulties
that might arise which would not necessitate the provinces to alter their
laws to suit the special circumstances of a port or aerodrome. It will
help the provinces to make a law irrespective of the fact that there is
a major port or aerodrome situated in the State and it helps the Centre
to control those areas if it desires to do so by passing laws in addition
to those existing in the provinces or modifying those laws to suit the
special circumstances of the case. Instances might be quoted against the
utility of an article of this nature but their validity is limited. There
are possibilities of more instances of a different nature arising in the
future. I repeat that this is an enabling provision which does not seek
to interfere with the powers of the provinces at all. Major ports and aerodromes
are admittedly under Central control for all purposes and the Centre is
also empowered to have additional legislative control by means of Presidential
action.
The purpose of the amendment is simple one and I am told which is very
necessary in regard to the administration o the aerodromes and major ports
concerned with international traffic. I hope the House will accept it.
Mr. Naziruddin Ahmad : Will there be no changes necessary in
the Seventh Schedule ?
Shri T.T. Krishnamachari: No Major ports and aerodromes are Central
subjects.
Mr. President : Prof. Shibbanlal Saksena has given notice of
an amendment. He is not in his place and therefore it is not moved.
Shri. R.K. Sidhva : Sir, I cannot understand how this article
is described as a simple one and merely a consequential change is sought
to be made.
Shri R.K. Sidhva : The Mover said that it is simple article concerned
with international traffic and should be approved by the House.
Sir, the preamble does not state why the President should be empowered
with extraordinary powers and over rule any law which Parliament may make
regarding aerodromes and major ports. These come within the Union List,
I do not see why clause (a) provides an law made by Parliament or by the
Legislature of a State. I do not think any State is empowered to make laws
regarding aerodromes and major ports.
Sir, if this article is meant for emergencies such as was and so on.
I can understand it. During the last two World Wars, entry to the aerodromes
and major ports was prohibited to the public and many restrictions were
imposed regarding traffic therein. I can understand that. But I cannot
understand why when Parliament in the ordinary course make laws, such laws
should be superseded by the President. What are the reasons for empowering
the President to do so ? No case has been made out for this. Today, in
the international airports if any passenger comes from foreign countries
he is subjected to search. His luggage and even his person are searched.
There are both men and women inspectors at the Custom House for this purpose.
All these restrictions are there now and so I do not think there is any
need to give the President this power. As I said, I can understand the
need for this power in an emergency. But, why when laws enacted by Parliament
are there for the purpose ordinarily, should the President have power to
overrule those laws? In emergencies the position will be different, I agree,
I have personal experience of it. Even relatives of persons embarking or
disembarking at ports are not allowed access. Such restrictions are there
and have been there is times of emergencies. I do not see any necessity
for vesting this power in the President. Instead of this, however, I would
suggest the following provision : - "Notwithstanding anything contained
in this Constitution, the President may by public notification direct as
from such date as may be specified any law may be made in the event of
an emergency or war." If these lines are added this article would get a
different meaning and may be necessary. Otherwise it will mean you want
to deprive Parliament of the power of making laws. I want an explanation
as to why the words "Legislature of State" are put in. Has any State power
to make laws concerning aerodromes ?
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 organization of air traffic. The power given
under 35 is for the purpose 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 the 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 not 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:
"302AAA (1) Notwithstanding anything contained in this
Constitution, the President may by Special provisions
as to major ports and aerodromes public notification
direct that as from such date as may be specified in the notification
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
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.
In this article :-
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 ;
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.
___________
Mr. President : Then we go to the next item, article 306A.
Shri T.T. Krishnamachari : May I suggest that we pass over the
next item for the time being and take up Schedule III-A ?
Mr. President : Yes we may take that up.
Schedule III-A
Shri T.T. Krishnamachari : Mr. President, Sir, I move :
"That after Schedule III, the following Schedule be inserted
:
"SCHEDULE III-A
[ARTICLES 4(1) & 67(1a)]
ALLOCATION OF SEATS IN THE COUNCIL OF STATES
To each Sate or Sates specified in the first column of the table of
seats appended to this Schedule there shall be allotted the number of seats
specified in the second column of the said table opposite to that State
or States, as the case may be.
TABLE OF SEATS
THE COUNCIL OF STATES
REPRESENTATIVES OF STATES FOR THE TIME BEING SPECIFIED IN PART I
OF THE FIRST SCHEDULE
States
Total Seats
________________________________________________________________________
1. Assam 6
2. Bengali .14
3. Bihar . ...21
4.Bombay.......................................................................................................17
5.Koshal-Vidarbh....12
6. Madras .. .27
7. Orissa . .9
8. Punjab ..8
9. United Provinces... 30
Total. 144
REPRESENTATIVES OF STATES FOR THE TIME BEING SPECIFIED IN PART II
OF THE FIRST SCHEDULE
States and Groups
Total
of States
Seats
________________________________________________________________________
1. Ajmer
................................ ............1
2.Coorg
3.Bhopal .......1
4.Bilaspur
. ....................................1
5.Himachal Pradesh
6.Cooch-Behar ............1
7.Delhi.......................................................................................................................1
8.Kutch .....1
9.Manipur
....................................................................................................................................1
10.Tripura
11.Rampur. ......1
TOTAL8
REPRESENTATIVES OF STATES FOR THE TIME
BEING SPECIFIED IN PART III OF THE FIRST SCHEDULE
______________________________________________________________________________
States
Total Seats
1
2
_______________________________________________________________________________
1. Hyderabad.....................................................................................................11
2. Jammu & Kashmir.........................................................................................
.4
3. Madhya Bharat...............................................................................................
6
4. Mysore...........................................................................................................
6
5. Patiala & East Punjab States Union....................................................................3
6. Rajasthan..........................................................................................................9
7. Saurashtra.........................................................................................................4
8. Travancore-Cochin.............................................................................................6
9. Vindhya Pradesh.................................................................................................4
Total.....................................................................................................................
53
Total of all Seats...................................................................................................
205
Sir, these are three tables, one relating
to the States specified in Part I, the second relates to States specified
in Part II and the third relates to States specified in Part III, and the
total number of seats allotted happens to be 205. I would explain, Sir,
that the relative article in the Constitution happens to be 67, clauses
(1), (2), (3) and (4), and, as honourable members will realise, that under
clause (1) the maximum has been fixed at 250, out of which twelve members,
shall be nominated by the President and the rest will be representatives
o the States. The basis of the scheme envisaged in these tables is the
decision of the Union Constitution Committee at a meeting held on the 1st
December, 1948 at which the
following Members of this House were present
:
The Honourable Shri Jawaharlal Nehru.
The Honourable Shir Jagjivan Ram.
The Honourable Dr. B.R. Ambedkar.
Shri K.M. Munshi.
Prof. K.T. Shah.
Shri T.T. Krishnamachari, and
Mr. B.H. Zaidi.
If I may be permitted, I w
ill read the relevant portion of the Committee's report.
"The Committee did not go
into the details of the revised scheme of allocation of seats in the Council
of States prepared by office, as owing to mergers of various types the
position of the Indian States is still unsettled. They were of the view
that it was advisable to postpone consideration of the detailed allocation
of seats to a later date. The Committee while reiterating their previous
decision that the representation of units in the Council of States shall
be on the scale of one representative for every million of the population
up to five millions of the population plus one representative for every
additional two millions of the population thereafter, considered it unnecessary
to adhere to the other decision that the maximum number of representatives
from anyone unit shall be limited to twenty-five. It was found that only
two States, namely Madras and United Provinces would be affected by the
imposition of such a limitation and that an abrogation of this limit while
securing uniformity would involve only an increase by seven seats in the
total number of seats which would be well within the overall maximum of
250 members provided for in article 67(1) of the Draft Constitution. "
Sir, it is on the basis of this report
made by the Union Constitution Committee that one seat should be allotted
to every million up to five millions and thereafter one seat for every
additional two millions, that this total has been worked out, and, as honourable
Members will see, the total number comes to 205 plus twelve to be nominated
by the President, i.e. 217. We still have thirty-three seats in hand before
reaching the maximum number mentioned in article 67(1).
I would like to say why this is necessary
because we could have adopted a different scheme even though it may be
in contravention of the recommendations of the Union Constitution Committee.
It may be, as honourable Members of the House will understand, that there
is a further splitting up of the Units in Part I. If that will be the case,
the number will naturally be increased because by every splitting up of
the Units, the commitments will increase by at least five. These reallocations
by reason of action taken by future Governments under article 3 of this
Constitution may necessitate the raising of this number 217 to a still
higher figure, and therefore provision has been made by following the system
indicated by the Union Constitution Committee's report, viz. one seat for
every millions up to five million and one seat for every additional two
millions thereafter, which, I think, is a very fair arrangement and will
also freedom of action so far as the future is concerned. I would not claim
any infallibility so far as these, figures are concerned. May be that the
thing might be arranged in some other manner. For instance, regrouping
in regard to States in Part II may be taken exception to. It is a matter
of opinion.
I think on the whole the scheme is fair,
but should honourable Members of this House or people outside have any
objection, of course those objections will be examined and those objections
will be placed before you and if you will permit me, the necessary amendments
will be moved at a later stage, but I do not think that in the face of
the arrangement placed before the House any serious alteration would become
necessary between now and the Third Reading stage.
I would like to mention another factor
that by reason of making this amendment, I would also have to make three
consequential amendments, because of certain variations that have occurred.
For one thing, article 67 (1a) refers to Schedule III-B. An amendment will
be necessary in regard to this particular sub-clause in the article. An
amendment would also be necessary in article 4 because while taking into
consideration article 4 we had omitted to mention along with the First
Schedule the Schedule relating to the Table of Seats in the Council of
States. Article 4 reads thus:
"Any law referred to in article
2 or article 3 of this Constitution shall contain such provisions for the
amendment of the First Schedule as may be necessary to give effect to the
provisions of the law and may also contain such incidental and consequential
provisions as Parliament may deem necessary."
Any alteration of the First Schedule will
entail the alteration of Schedule III. The first Schedule and the Third
Schedule have got to be taken together. I will move an amendment later
for putting in Schedule III-A in article 4. These amendments will moved
subsequently if the amendment that I have now moved for the incorporation
of Schedule III-A containing the Tables of Seats in the Council of States
is accepted by the House.
Shri H.V. Kamath : I do not know
why my esteemed friend once again referred to my honourable Colleagues
as "people inside the House".
Mr. President : He said "honourable
Members and people outside".
The question is :
"That after Schedule III,
the following Schedule be inserted :
SCHEDULE III-A
[ARTICLES 4(1) & 67(1A)]
ALLOCATION OF SEATS IN THE COUNCIL OF
STATES
To each State or States specified in the
first column of the table of seats appended to this Schedule there shall
be allotted the number of seats specified in the second column of the said
table opposite to that State or States, as the case may be.
TABLE OF SEATS
THE COUNCIL OF STATES
REPRESENTATIVES OF STATES FOR THE
TIME BEING SPECIFIED IN PART I OF THE FIRST SCHEDULE
_________________________________________________________________________________
States
Total Seats
1
2
__________________________________________________________________________________
1. Assam ....................................................................................................................
6
2. Bengal....................................................................................................................
14
3. Bihar.......................................................................................................................
21
4. Bombay ..................................................................................................................
17
5. Koshal-Vidarbh .......................................................................................................
12
6. Madras.....................................................................................................................
27
7. Orissa........................................................................................................................
9
8. Punjab.........................................................................................................................8
9. United Provinces.........................................................................................................30
Total .............................................................................................................................
144
REPRESENTATIVES OF STATES FOR THE TIME
BEING SPECIFIED IN PART II OF THE FIRST SCHEDULE
____________________________________________________________________________________
States & Groups of States
Total Seats
1
2
_____________________________________________________________________________________
1. Ajmer
....................................................................................................................................
1
2. Coorg
3. Bhopal......................................................................................................................................1
4. Bilaspur
....................................................................................................................................1
5. Himachal Pradesh
6. Cooch-Behar............................................................................................................................1
7.Delhi...........................................................................................................................................1
8. Kutch......................................................................................................................................1
9. Manipur
........................................................................................................................................
...........1
10. Tripura
11. Rampur...................................................................................................................................1
Total..............................................................................................................................................8
REPRESENTATIVES OF STATES FOR THE TIME
BEING SPECIFIED IN PART III OF THE FIRST SCHEDULE
____________________________________________________________________________________
States
Total Seats
1
2
______________________________________________________________________________________
1. Hyderabad................................................................................................................
11
2. Jammu & Kashmir........................................................................................................................
.4
3. Madhya Bharat.............................................................................................................................
.6
4. Mysore..........................................................................................................................6
5. Patiala & East Punjab States Union.................................................................................................
................................3
6. Rajasthan.........................................................................................................................9
7. Saurashtra........................................................................................................................4
8. Travancore-Cochin...........................................................................................................6
9. Vindhya Pradesh................................................................................................................................
4
Total ..............................................................................................................................................53
Total of all Seats.....................................................................................................................................205
The motion was adopted.
Schedule III-A was added to the Constitution.
Shri T.T. Krishnamachari : Mr. President,
Sir, I move :
"That in clause (1a) of article
67, for the word, figure and letter 'Schedule II-B' the word, figure and
letter 'Schedule III-A' be substituted."
I have already explained the need for this
amendment. I hope the House will accept the amendment.
Mr. President : This is merely consequential.
The question is :
"That in clause (1a) of article
67, for the word, figure and letter 'Schedule III-B' the word, figure and
letter 'Schedule III-A' be substituted."
The amendment was adopted.
_____
Shri T.T. Krishnamachari : Sir,
I move :
"That in clause (1) of article
4, after the words 'First Schedule' the words, figure and letter, 'and
Schedule III-A' be inserted."
I have also explained the need for this
amendment. I hope the House will accept the amendment.
Mr. President : This is also consequential.
The question is :
"That in clause (1) of article
4, after the words 'First Schedule' the words figure and letter ' and schedule
III-A' be inserted."
The amendment was adopted.
_____
Shri T.T. Krishnamachari : Mr. President,
I move :
"That in clause (1) of article,
4, for the words 'incidental and consequential provisions' the words and
brackets 'supplemental, incidental and consequential provisions 9including
provisions as to representation in Parliament and in the Legislature or
Legislatures of the State or States to be affected by such law' be substituted."
This is a modification of the words which
we now seek to supplant. There is nothing intrinsic in this amendment which
seeks to vary a principle which has been incorporated in article 4.
Mr. Naziruddin Ahmad : Does it enlarge
the scope of the original text ?
Shri T.T. Krishnamachari : Only
to the extent that article 4 is an operative clause in regard to article
3, and the enlargement is restricted only to the extent that is absolutely
necessary.
Mr. President : The
question is :
"That in clause (1) of article
4, for the words 'incidental and consequential provisions' the words and
brackets 'supplemental, incidental and consequential provisions (including
provisions as to representation in Parliament and in the legislature or
Legislatures of the State or States to be affected by such law)' be substituted."
The amendment was adopted.
_______
Part XVIII.
Shri T.T. Krishnamachari : Mr. President,
Sir, I move :
"That for Part XVIII, the
following Part be substituted :
PART XVIII
SHORT TITLE, COMMENCEMENT AND REPEALS
Short title
313A. This Constitution may be called the Constitution of India".
Shri B. Das : You have to say "of
India, that is Bharat".
Shri T.T. Krishnamachari : We have
used the word India as we have used it in other placed in the Constitution.
"314. This article and articles
5, 5A , 5AA, 5B, 303, 311, 331A and 312F of this Commencement Constitution
Commencement
shall come into force at once, and the remaining provisions
thereof shall come into force on the twenty-sixth day of January, 1950,
which date is referred to in this Constitution as the date of commencement
of this Constitution.
315. The Indian Independence
Act, 1947, in so far as its provision are repugnant to this Constitution
and the Government of Repeals
India
Act, 1935, including the India (Central Government and Legislature) Act,
1946 and, all other enactments amending or supplementing the Government
of India Act, 1935, shall cease to have effect:
Provided that nothing in
this article shall affect the provisions of the Abolition of Privy Council
Jurisdiction Act, 1949."
Sir, the first clause 313A is a formal
one. The second clause relates to clause 314 which in the draft Constitution
has been left more or less blank after the words "This Constitution shall
come into fore on......". This clause puts in articles 5, 5A, 5AA and 5B
relating to Citizenship, article 303 (Definitions) and articles 311, 311A
and 312A and 312F which are transitory provisions. 311 relates to the election
of the provisional Parliament, 311A to the provisional President, and 312F
relations to the provisional Parliament so as to determine the method to
be followed for the by-elections and the rules to be followed for that
purpose. These have been put in as the articles will have to come into
force immediately. The remaining articles will come into force on the appointed
day, which is the 26th of January 1950.
So far as 315 is concerned, this more or
less follows the scheme in the draft Constitution with this exception that
we have found it necessary to provide that the operation of the Privy Council
Jurisdiction Act passed by this House shall not be affected by this repeal.
I do not think there is any need to explain the purport of these articles
as they are self-explanatory.
The Honourable Shri K. Santhanam : What
about the appointment of a Commission for the delimitation of constituencies
?
Shri T.T. Krishnamachari : That
we have not put in, I would like to add this. There may be, for instance,
the question of delimitation of constituencies under article 290. This
must be preceded by a legislation by the provisional Parliament. I do not
think anything could be done in that regard between now and the 26th of
January 1950. I will mention here another matter, if I may do so with your
permission. These are the articles that to us now appear as being necessary
to be put in article 314. The position will be examined at greater length.
Actually, I understand the Law Ministry attached to the Government of India
is going through the whole matter and is carefully scanning the provisions
of the Constitution that will have to come into force before the appointed
ate. Should we feel that anything should be added to these articles we
shall seek your permission and the permission of the House to incorporate
them at a later stage. At the moment these are the only articles affected
as far as we can see by going through the articles and scrutinizing the
meaning of those articles. But other consequential matters might arise,
and if they should arise on a scrutiny and examination of the articles
by us we shall certainly bring fresh proposals before the House with your
permission.
Mr. President : There are certain
amendments relating to the original article, I shall take them up fi the
Members want them, and if they fit in with the amendment as now put in.
There are three here. One is by Dr. Deshmukh. He is not here; so it is
not moved. the next one is by Mr. Brajeshwar Prasad. He too is not here.
So it is also not moved. Then there is again an amendment relating to 315
by Dr. Deshmukh. so, it is not also moved. Are there any others?
Shri H.V. Kamath : I have certain
amendments in Vol.II of the printed list.
Mr. President : You may move them,
but I think we may take these form the beginning. First 314. There are
certain amendments. One is by Mr. N. Ahmad regarding numbering of the Chapter.
It is verbal and need not be moved. Mr. Prakasam is not here. Mr. Lari
is no longer a member. There is no other amendment to 314. To 315 there
is one by Mr. Kamath - 3325. He may move it.
Shri H.V. Kamath : Mr. President,
I refer to amendments 3325 and 3327 of Printed List, Vol.II. I do not propose
to move 3325 because the article as now moved by my honourable Friend Mr.
Krishnamachari has made an alteration in 314 regarding the date on which
the Constitution will come into force. My amendment which refers to the
date of commencement of the Constitution has therefore no validity now.
amendment 3327 is a verbal or formal one. The House will see that the marginal
heading of article 315 is "Repeals" and in conformity with that, I thought
it would be more correct to state at the end of this article instead of
the words "shall cease to have effect" - "shall stand repealed". Of Course,
am not a lawyer or an authority on matters of constitutional terminology
and phraseology. I shall be content with leaving this matter to the collective
wisdom of the Drafting Committee.
But, Sir, I would like to make a few observations
in regard to the amendment just now moved by my honourable Friend Mr. Krishnamachari,
No. 463. The first point is with regard to article 315 as moved by him.
This refers to the Indian Independence Act, 1947. If the House will compare
this with the original draft of this article, they will see that the words
"insofar as its provisions are repugnant to this Constitution" are a fresh
insertion. The original draft was silent on this point. I would like to
know what exactly is the significance of these words. Do we not state categorically,
clearly and unambiguously that with effect from the date of commencement
of this Constitution the Indian Independence Act stands repealed, and of
course the Government of India Act and what not? When this Constitution
comes into force, then all other laws that were in force till that date
automatically become null and void. Therefore, these words "insofar as
its provisions are repugnant to this Constitution" are wholly unnecessary
and should be deleted. I am sorry I had no time to give notice of an amendment.
As regards article 314, it refers to the
date of commencement of this Constitution. Certain articles have got -
and quite rightly so, - to come into force at once. I have nothing to say
on that point. But about the second part of this article which says that
the rest of the Constitution shall come into force on the 26th January
1950. I made a suggestion some time ago that, granting with all my heart
that the 26th of January has got a sanctity all its own in our national
calendar, we might still have another day, and it might very aptly and
in the fitness of things signify, the advent of our complete freedom and
republican status. We may christen it the "Republic Day". The 26th January
would still be regarded as "Independence Day", the day on which we took
the famous pledge of independence. But in all humility I suggest that we
might have a "Republic Day' which we may observe like other days in our
national calendar. I have no objection if the "Independence Day" and the
"Republic Day" synchronise, but I think it would add more importance to
our national calendar if we had "Independence Day" on the 26th January
and another day in January or December as "Republic Day". As a matter of
fact, if it were possible, we might have December 9th, 1949, as the Republic
Day, because we began this historic Assembly on the 9th December. But perhaps
it is not quite possible to get all these things ready by then, so I would
suggest a day in January and have it as "Republic Day" to be celebrated
like "Independence Day" or "Gandhi Jayanti" or other national days. I would
request the House to consider this little submission of mine to the effect
that we might as well state that the remaining provisions of this article
shall come into force on the midnight of the 25/26th January 1950. Just
as in August 1947 we celebrated or we welcomed the advent of freedom on
the night of 14/15th August 1947, it would be in the fitness of things
if we state here definitely that the remaining provisions thereof shall
come into force on the midnight of 25/26th January 1950, and if that were
adopted today, it would have the way for the celebration of another historic
ceremony.
I do not know what the astrologers will
have to say about this matter, because last time when they were consulted,
there was a conflict of opinion about the auspiciousness of the date.
Mr. President : They offered their
opinion without being consulted.
Shri H.V. Kamath : They were consulted
by friends outside and they were not quite agreed whether it was wholly
auspicious. I do not think we are always bound by the opinions of astrologers,
but other things being equal, we might as well celebrate it on the midnight
of 25/26th January 1950.
I hope Mr. T.T. Krishnamachari has been
listening to me and that he will try his best to answer the suggestions
that I have made.
Mr. Naziruddin Ahmad : I am not
moving my amendment, but with regard to the amendment that has been moved
by Mr. T.T. Krishnamachari, I have some difficulty about the proposed article
315. Article 315 tries to state that the Indian Independence Act, insofar
as it is repugnant to this constitution, shall cease to have effect. I
however think that this should be covered by the old article 307. I do
not know what has become of it; whether it is proposed to move it or not.
But article 307 in the Draft Constitution.............
Mr. T.T. Krishnamachari : Another
article 307 has been moved and accepted and is part of the Constitution.
Mr. Nazirudding Ahmad : This article
307 would cover 315. I am referring to the old article, and I suppose that
the new article 307 is substantially of the same effect.
Shri T.T. Krishnamachari : Except
clause (2).
Mr. Nazirudding Ahmad : Clause (1)
says : "Subject to the other provisions of this Constitution, all the laws
in force in the territory of India immediately before the commencement
of this Constitution shall continue in force therein until..........."
So, "all laws in force in the territory
of India" would also include the Indian Independence Act 1947.
Shri T.T. Krishnamachari: It is
expressly mentioned.
Mr. Naziruddin Ahmad: It is not
necessary: otherwise you should mention all the other existing Acts which
would be covered. The Indian Independence Act is completely in the hands
of the Indian Legislature. That Act states that from the appointed date,
all laws relating to the Indian administration and all British laws applicable
to India, should no longer be affected or modified or dealt with in any
way by the British Parliament but this should be dealt with specifically
by the Indian Legislature. If that is so, I fail to see how the Indian
Independence Act is an Act which requires a special mention. That is certainly
within our competence. The British Parliament has no longer any jurisdiction
over that. they have enacted a self-denying ordinance and that is certainly
a law in force in the territory of India. Those laws which are now existing
will have to be adopted under article 307. I do not know how far the office
has proceeded with it, because on the 26th January we expect a complete
Adaptation Order, fully ready, to be applicable on that date. On and from
that date all laws, inconsistent with the present Constitution should be
clearly adapted to suit the Constitution.
I think the word "Repeal" in the marginal
note is inapplicable because we are not repealing the Independence Act:
we are merely trying to say that insofar as it is inconsistent with the
present Constitution it shall cease to have effect. We really modify the
Act or adapt it to suit the present Constitution and that purpose would
certainly be served by article 307. I, therefore, oppose article 315. All
that we want is not the repeal but really an adaptation.
With regard to article 314, there is one
expression which is coming up before the House repeatedly, namely, "the
date of the commencement of this Constitution". Sometimes we say, "the
commencement of the Constitution". On other occasions we say "the date
of the commencement of this Constitution." I think the words 'the date
of' are absolutely unnecessary and tautological. We mention here the "26th
day of January 1950". which date is referred to in this article as the
"date of" the commencement of this Constitution. The 26th day of January
1950 is certainly a 'date of' and if that is referred to as the commencement
of this Constitution the words 'date of' are absolute unnecessary. The
use of this expression has been rather indiscriminate in many places that
they occur, and in any places they do not occur. I should think these words
should be deleted by the drafting Committee so as to make the expression
absolutely neat and clear and yet complete.
I would like to know what progress has
been made in the adaptation of the existing laws because this is extremely
important and things should be ready on the 26th January. This will affect
courts, offices and various other persons. We should have a completely
adapted series of Acts, as was done in the case of the government of India
Act, all the Acts were adapted and an Adaptation Order was printed and
circulated before time so as to be ready on the date that the Constitution
came into effect, that is, on the 1st April, 1937.
I should like to know what progress has
been made already, because if that is not taken in hand, there may be an
impasse and confusion. So this requires clarification and if we have taken
that in hand, then article 35 will be absolutely unnecessary.
The Honourable Shri K. Santhanam
: Sir, I have just two points to make with reference to amendment No. 463.
I think before any other article is brought into operation, it is desirable
to have at least the Preamble and article 1 also to be brought into operation
because all the other clauses refer to India and so before article 1 comes
into operation, I do not think it is quite right that other articles should
be brought into operation. I suggest that the Preamble and article 1 also
may be added. These articles should be brought into immediate operation
while the rest may come into operation on the 26th of January.
Mr. Naziruddin Ahamd : The difficulty
would be that the Preamble has not yet been accepted by the House.
The Honourable Shri K. Santhanam : It
will have to be accepted before the Constitution is complete. I am only
suggesting this.
Shri R.K. Sidhva : May I know why
you want the Preamble to be made applicable immediately ?
The Honourable Shri K. Santhanam : Preliminary
to bringing the whole Constitution into force, we are bringing some provisions
of the Constitution into force and the object of the Constitution and the
name of the country must be there before any part of the Constitution can
be brought into force. You may consider that suggestion for what it is
worth.
In proposed article 315 there are provisions
what are hardly consistent with the dignity of the new Constitution. It
says : "The Indian Independence Act, 1947, insofar as its provisions are
repugnant to this Constitution and the Government of India Act, 1935, shall
cease to have effect." The Independence Act to the extent it is not repugnant
to the provisions will continue in existence and be in force. I think the
entire Independence Act must be repealed. The only fundamental law must
be the Constitution. The validity of all other laws must be derived from
the Constitution. When the Government of India Act 1935 was passed, all
the previous Acts were completely repealed. I do not think we should leave
the Indian Independence Act as if it is continued together with the Constitution
as a fundamental law of the country so that it can be argued in the Supreme
Court that a certain provision of the Indian Independence Act, because
it is not repugnant to the provisions of the Constitution will continue
in force. Our Supreme Court should not derive any authority from the Indian
Independence Act; it should derive its authority only from the Constitution.
I think this is an elementary principle which is necessary for the dignity
of the whole Constitution. We should not say that our Constitution consists
of the Constitutions which we have enacted and the Indian Independence
Act to the extent it is not repugnant to the provisions of the Constitution.
So I think this is a matter of importance and I suggest that Mr. Alladi
and others should put their heads together and see that we do not enact
a clause which is likely to be detrimental to the dignity of the Constitution
we are making.
Shri B. Das : Mr. President, Sir,
in article 314 it says : "This article 311 will come into force at once."
when the article 311 was passed I understood that those members of provincial
legislatures that are Members of this House will continue till the 26th
of January, 1950. I wish it should be made clear that all members of provincial
legislatures, that our comrades and colleagues here will remain with us
until the 26th of January, 1950 when the Republic will be declared. I hope
no mistake will be made on that quarter if we accept the present article
314 (Interruption). I respectfully request you to examine article 311 and
I want to know whether our colleagues here from the provincial legislatures
will continue to remain with us till the 26th January, 1950 when the Republic
will be declared. Otherwise if that is not contemplated, I oppose the inclusion
of article 311 here.
Shri R.K. Sidhva : It is clear.
Shri Alladi Krishnaswami Ayyar (Madras
: General) : Mr. President, I just want to say a word or two in regard
to the first objection of my honourable Friend Mr. Santhanam. I might point
out that in the Draft Constitution, article 315, there is no reference
to the retention of any revision of the Dominion Act after our Constitution
comes into force. I would read the language of the said original article.
"The Indian Independence Act, 1947 and the Government of India Act, 1935,
including the India (Central Government and Legislature) Act, 1946 and
all other enactments amending or supplementing the Government of India
Act, 1935, shall cease to have effect." On a careful consideration I am
inclined to agree with Mr. Santhanam, namely, that there is no question
of the retention of any of the provisions of the earlier Act after our
new Constitution comes into force. No doubt we might give a fresh lease
of life to certain laws which were passed under the old Constitution and
adopt them, so to speak, as the law under our Constitution. that is necessary
and that provision has been made. I might also point out we were particularly
anxious that the Constitution which we are making or passing must not be
traceable to section 7 of the Independence Act and we took the view that
there is no necessity of even the Governor General's assent being required
for the new Constitution. The new Constitution will not be a constitution
passed under or in pursuance of the wide and comprehensive powers given
under section 7 or 8 of the Indian Independence Act. Therefore, when once
we pass a Constitution, use our own free will, independent of and without
reference to any earlier Act, there is no need of mentioning that the independence
Act will continue to be in force to any extent whatever. I might mention
that even when an Act like the government of India Act of 1935 was passed
it was in pursuance of an Act of Parliament and the earlier Government
of India Act was treated as repealed, excepting in so far as the provisions
of the earlier government of India Act were in terms adopted and continued
by particular sections of the Government of India Act. Under those circumstances
there is force in the suggestion of Mr. Santhanam, but they are in the
nature of a drafting amendment. If permission is given tat might be dropped
at a later stage. The reason why I am mentioning this is that having emerged
from the Drafting Committee, it is only fair that it should be amended
again by the Drafting Committee. There will be no difficulty whatever in
regard to that point.
Then some technical point was raised by
my honourable Friend, Mr. Kamath, with regard to the words 'cease to have
effect'' ; for the very reason for which he has been fighting we advisedly
put in the express words "cease to have effect". On the point as to repeal,
we are to remember we are an independent body. The Independence Act emanated
from another Parliament. There is no question of our repealing another
Act. That is why advisedly the draft Constitution contained the express
provision "cease to have effect". Therefore, consistent with the ideas
of my honourable Friend Mr. Kamath, who always stands for the independence
of this country, for the Constitution not having reference to anything
emanating from the British Parliament, it is appropriate and fitting that
the expression 'cease' should be there instead of the word 'repealed'.
Then, Sir, lastly the point mentioned by
Mr. Santhanam : one regarding the coming into force of the Preamble and
secondly, that India shall be a Union. I think, if I may say with respect
to my honourable Friend who is always careful about his points, there is
no force in that objection. So far as the Preamble is concerned, though
in an ordinary statute we do not attach any importance to the Preamble,
all importance has to be attached to the Preamble in a Constitutional statute,
there is no such thing as the Preamble immediately coming into force. The
Preamble will come into force in all its plentitude when the Constitution
comes into force. There is no reason to say that the Preamble will come
into force earlier than when the Constitution comes into force.
Secondly, I do not think we can bring into
force the article that India shall be a Union because India does not immediately
become a Union of States as it is understood throughout the Constitution.
A Union must be understood with the entire constitutional mechanism that
has been created under the Constitution which we are passing. We cannot
conceive of a body or soul without limbs. If the limbs do not begin to
operate how can a Union come into existence. So far as that point is concerned,
even Homer nods and there is no force in the objection raised by Mr. Santhanam
that the article must come into force immediately.
Mr. President : There was one point
raised by Mr. Das with regard to article 311.
Shri T.T. Krishnamachari : That
is very clear, Sir.
Shri Alladi Krishnaswami Ayyar : I
have not caught the point.
Shri Kuladhar Chaliha (Assam : General)
: Sir, I want to understand from the Drafting Committee how you can reconcile
article 311(3) with article 314. Article 314 says that it shall come into
force at once. These Members will have to vacate immediately I think. I
want to have an answer from Mr. Krishnamachari. If that is the consequence,
we cannot support this.
The Honourable Shri K. Santhanam : This
will come into effect when the Third Reading is passed.
Mr. President : That is exactly
the point raised by Mr. B. Das also.
Shri T.T. Krishnamachari : Sir,
in regard to the point raised by Mr. B.Das and Mr. Kuladhar Chaliha, I
would like to say this. Article 311(3) says:
"If a member of the Constituent
Assembly of the Dominion of India was on the sixth day of October 1949,
or thereafter becomes at any time before the commencement of this Constitution
a member of a House of the legislature of a Governor's province then, as
from the date of commencement of this Constitution the seat of such member
shall, unless he has ceased to be a member of that Assembly earlier, become
vacant."
Here, article 314 says that the date of
the commencement of the Constitution is 26th of January 1950. Even though
these articles are to come into force immediately, the date of the commencement
of the Constitution will be the operating factor. I do not think there
is any doubt about that. I can tell honourable Members this. The idea is
that Members who have double membership remain Members until the 25th of
January. (Interruption). Honourable Members will please hear me patiently.
We will have to examine the position again if instead of the words ''ate
of commencement of the Constitution ''the words ''appointed date'' would
suit better. Because, the appointed day happens to be the 26th of January.
The position will be examined by Dr. Ambedkar and the Drafting Committee
and if it is felt that the position of the Members will in any way be prejudicially
affected, I will give this assurance to this House, that we will try to
safeguard it by a suitable amendment and I think honourable Members need
have no fear in that matter.
Dr. B. Pattabhi Sitaramayya (Madras
: General) : I should like to know what was the object with which this
was included. The date of commencement of the Constitution being evident
and the tenure continuing till that date, what was the object of including
this article mentioning the articles which are immediately coming into
force? Probably it is to bring the elections into operation. If so, can
you have an implied purpose and a declared purpose which are different
from each other. this must be re-examined.
Shri T.T. Krishnamachari : The honourable
Doctor has really put his finger on th point. The point is that, notwithstanding
the fact that the vacancies have not occurred until the 25th of January,
elections will have to be held so that the new Members will be enabled
to take their seats on the 26th of January, on which date the vacancies
will definitely occur. The idea is to enable the President of the Constituent
Assembly to hold these elections notwithstanding the fact the actual vacancies
will occur later. The wording of article 311 is clear. Both articles 311
and 312F permit the President of the Constituent Assembly to make appropriate
rules for the purpose of enabling elections to be held on the supposition
that the seats will become vacant on the 25th of January. The position
as the doctor has understood is correct and the position is also perfectly
clear I do not think any Member will be prejudicially affected by the fact
that these articles are being brought into effect immediately from the
time the Constitution is finally passed, or the Third Reading has been
passed. If we do not do it, the President of the constituent Assembly will
not be empowered to take any action under articles 311 and 312F.
With regard to the wording of article 315,
I must bow to the superior wisdom of my honourable Colleauge Mr. Alladi
Krishnaswami Ayyar. If he now feels that the wording is not as it should
be, I suppose the matter has definitely to be reconsidered. I would only
say this, when experts differ, the layman is literally at sea. The reason
why we made this change in the draft article is because of the advice that
has been given to us by the constitutional Adviser of this honourable House
which is in these terms. "This article provides without any qualification
that the Indian Independence Act, 1947 and certain other Parliamentary
enactments shall cease to have effect. There are, however, certain provisions
of the Indian Independence Act which would not cease to have effect. For
example, there is no reason why the provision of that Act stating that
His Majesty's Government in the United Kingdom have no longer any responsibility
as respects the government of any of the territories which immediately
before August 1947 were included in British India, that the suzerainty
of His Majesty over the Indian States lapses, etc., should not continue
to remain in force. There is nothing in this provision that is repugnant
to the new Constitution. hence the proposed amendment." My honourable Friend
Mr. Alladi Krishnaswami Ayyar holds the view that as this Constitution
is completely independent in character, it acts on its own volition and
therefore all the other enactments that preceded it must automatically
cease to have effect. I quite agree. But, this is the opinion that was
given to us by the Constitutional Adviser and it is only on the lines of
this opinion that we put in these words "in so far as its provisions are
repugnant to this Constitution".
I had originally thought of suggesting
that we might, in order to make the meaning of this particular article
clear, split it up into two and call it 315(1) with the following words
: "The Indian Independence Act, 1947, in so far as its provisions are repugnant
to this Constitution", then put the figure (2) and put the following words
after it. "The Government of India Act, 1935 including the India (Central
Government and Legislature) Act, 1946, and all other enactments amending
or supplementing the Government of India Act", and thereafter, put these
words below, which shall apply to both (1) and (2) ; shall cease to have
effect". In view of the position taken up by my honourable Friend Mr. Alladi
Krishnaswami Ayyar, I would suggest with your permission that the House
do pass this article in this form and we will have it examined.(??)
My honourable Colleague, the Chairman of
the Drafting committee is not here. We shall have the position re-examined
and if necessary, at the Third Reading Stage, when we are convinced that
these words "in so far as its provisions are repugnant to this Constitution"
should be eliminated, we shall eliminate them at the Third Reading Stage.
I therefore suggest that we shall pass
this article in the present form and if any change is necessary, we shall
take adequate legal advice and the eminent lawyer members of the Drafting
committee will examine it. We will put my honourable colleague Mr. Alladi
Krishnaswami Ayyar against Dr. Ambedkar and Mr. Munshi and we will probably
be able to arrive at a settlement so far as the wording is concerned. I
do hope that...........
The Honourable Shri K. Santhanam : Would
it not be better that the opposite course is adopted ?
Shri T.T. Krishnamachari : I have
suggested one course. My honourable Friend Mr. Santhanam takes the opposite
view. It is for the House to decide whether my view is proper or the opposite
view. I would also suggest that before we finalise the wording of the article,
we shall have the benefit of the views of Sir B.N. Rau about this matter.
We shall immediately write to him about this matter and ask him if he would
revise his view in the light of the expression of opposite views in the
House. Therefore, I suggest that this article be accepted by the House
in its present form, subject to this condition that the whole thing will
be re-examined and if on examination we find that the objections mentioned
by my honourable Friend Mr. Santhanam and supported by my honourable Colleague
have any validity, the article will come before the House in a revised
form.
So far as the objection to the wording
"cease to have effect" is concerned, which my honourable Friend Mr. Kamath
wants to be supplanted by the word "repealed", I think my honourable Colleague
Mr. Alladi Krishnaswami Ayyar has answered him adequately. The House need,
therefore, have no qualms in accepting the wording 'cease to have effect'.
Shri H.V. Kamath : What about the
two suggestion that I made in regard to a separate Republic day and also
about the midnight ceremony ?
Shri T.T. Krishnamachari : That
is a matter for the appropriate authorities and not for the Drafting Committee.
Mr. Naziruddin Ahmed : Is it proper
to accept this subject to reconsideration ? If these controversial matters
are left over for the Third Reading, other matters will have no time. I
suggest it should be dropped. It is included in 307.
Mr. President : That again is a
controversial matter. In some form it has to be passed today so that the
Second Reading may be completed. If any question arises for revision, that
may be done at the Third Reading stage, and as Mr. Krishnamachari said
they will have the matter re-examined and if we find that any amendment
is necessary, we shall take that up at that stage. If we leave it also,
then we could not bring anything new at that stage.
The Honourable Shri K. Santhanam : If
the words 'In so far as it s provisions are repugnant to this Constitution,
are omitted, it will have unanimous acceptance and there is nothing to
prevent them in re-introducing those words if they are found essential.
Now we are asked to take it in a form which we dislike and it is said that
they will consider it later. There is no difficulty for the Drafting Committee
to re-introduce the words if it is considered essential.
Mr. President: It is really a matter
for the House to decide. I will put the two views separately.
The question is :
"That for Part XVIII, the following Part
be substituted :
PART XVIII
SHORT TITLE, COMMENCEMENT AND
REPEALS
'313. This Constitution may be called the
Constitution of India'. "
The amendment was adopted.
Mr. President : The question is
:
"This article and articles 5, 5A, 5AA,
5B, 303, 311, 311A and 312F of this Constitution shall come into force
at once, and the remaining provisions thereof shall come into force on
the twenty-sixth day of January, 1050, which date is referred to in this
Constitution as the date of commencement of this Constitution."
The amendment was adopted.
__________
Article 315
Mr. President : The question is
:
"That in proposed article 315 the words
'in so far as its provisions are repugnant to this Constitution be deleted."
The amendment was adopted.
Mr. President : The question is
:
"That proposed article 315, as amended,
stand part of the Constitution".
The motion was adopted.
Article 315, as amended, was added to the
Constitution.
__________
Article 306A
Mr. President : We go to 306A.
It is suggested that we had better begin
the Preamble. It may be moved.
Shri T.T. Krishnamachari : It is
not necessary to move it. The Preamble may be taken into consideration.
Mr. President : The Preamble is
moved. I shall have to take up the various amendments to the Preamble now.
I have a large number of amendments - many of them printed in the printed
list.
Maulana Hasrat Mohani (United Provinces
: Muslim ) : I understand that you hae already decided that the Preamble
will be taken up last. How is it that there are some articles remaining
undiscussed and you pass to the Preamble?
Mr. President : Not many articles
left.
Maulana Hasrat Mohani : Even one
article - unless you finish the articles, you cannot take up the Preamble.
Mr. President : Very well, let us
take up 306A.
The Honourable Shri Satyanarayan Sinha
(Bihar
: General): Sir, are you taking up the Preamble ?
Mr. President : No, Maulana hasrat
Mohani objects to the Preamble being taken up before all the other articles
are finished.
There is one more article of which notice
was given and it has been standing over, amendment No. 472 by Mr. Naziruddin
Ahmad. And I understand it is the same as another article of which notice
was given by Pandi Thakur Das Bhargava.
Pandit Thakur Das Bhargava: Sir,
it was held over on the 3rd June, by you order.
Mr. President : Then shall we take
it up now? Which of them shall we take up. Mr. Nazirudding Ahmad's or that
of Pandit Thakur Das Bhargava ?
Pandit Thakur Das Bhargava : Sir,
I beg to move that...............
Shri R.K. Sidhva : Sir, there are
other articles also of which notice has been given by other Members.
Mr. President : There is no other
amendment by the Drafting Committee.
Shri R.K. Sidhva : But there may
be other Members who may have amendments besides these two.
Mr. President : Amendments for the
addition of new articles ?
Shri R.K. Sidhva : Yes,
Mr. President : I do not thin they
will arise now.
Pandit Thakur Das Bhargava : Sir,
I udnerstand Shri Gopalaswami Ayyangar has just come and so I may be allowed
to move, after he has done.
Mr. President : There are so many
articles of which notice was given and which are dropped now. We have dealt
with the whole Constitution from every point of view and we cannot begin
now taking up new articles. I know Pandit Thakur Das Bhargava's amendment
was held over, but it has been covered by other amendments.
Pandit Thakur Das Bhargava : It
is not covered, Sir.
Mr. President : Very well. We take
up article 306A now.
The Honourable Shri Satyanarayan Sinha
(Bihar
: General) :Sir, are you taking up the Preamble ?
Mr. President : No, Maulana Hasrat
Mohani objects to the Preamble being taken up before all the other articles
are finished.
There is one more article of which notice
was given and it has been standing over, amendment No. 472 by Mr. Naziruddin
Ahmad. And I understand it is the same as another article of which was
given by Pandit Thakur Das Bhargava.
Pandit Thakur Das Bhargava: Sir,
it was held over on the 3rd june, by your order.
Mr. President : Then shall we take
it up now? Which of them shall we take up. Mr. Nazirudding Ahmad's or that
of Pandit Thakur Das Bhargava ?
Pandit Thakur Das Bhargava : Sir,
I beg to move that...............
Shri R.K. Sidhva : Sir there are
other articles also of which notice has been given by other Members.
Mr. President : There is no other
amendment by the Drafting Committee.
Shri R.K. Sidhva: Yes,
Mr. President : Amendments for the
addition of new articles ?
Shri R.K. Sidhva : Yes,
Mr. President : I do not think they
will arise now.
Pandit Thakur Das Bhargava : Sir,
I understand Shri Glopalswami Ayyangar has just come and so I may be allowed
to move, after he has done.
Mr. President : There are so many
articles of which notice was given and which are dropped now. We have dealt
with the whole Constitution from every point of view and we cannot begin
now taking up new articles. I know Pandit Thakur Das Bhargava's amendment
was held over, but it has been covered by other amendments.
Pandit Thakur Das Bhargava : It
is not covered, Sir.
Mr. President : Very well. We take
up article 306A now. Mr. Gopalaswami Ayyangar.
The Honourable Shri N. Gopalaswami Ayyangar
: (Madras : General) : Sir, before I read out the motion. I would request
yur permission, Sir, not to move item 379, but to move item 451 instead.
Sir, I move:
"That with reference to Amendment no.379
of List XV (Second Week), after article 306, the following new article
be inserted:
'306A. (1) Notwithstanding anything contained
in this Constitution,
(a) the provisions of article 211A of
this Constitution shall not apply in relation to the State of Jammu and
Kashmir;
(b) the power of Parliament to make laws for
the State shall be limited to
(i) those matters in the Union List and
the Concurrent List which, in consultation with the Government of the State,
are declared by the President to correspond to matters specified in the
Instrument of Accession governing the accession of the State to the Dominion
of India as the matters with respect to which the Dominion Legislature
may make laws for the State; and
(ii) such other matters in the said List
as, with the concurrence of the Government of the State, the President
may by order specify;
Explanation. - For the purposes
of this article, the Government of the State means the person for the time
being recognised by the Union as the Maharaja of Jammu and Kashmir, acting
on the advice of the Council of Ministers..."
I am making, Sir, with your permission, a
change here. Instead of the word "appointed" I am substituting the words,
"for the time being in office" - "under the Maharaja's Proclamation, dated
the fifth day of March, 1948."
Pandit Hirday Nath Kunzru : We could
not hear the honourable member correctly.
The Honourable Shri N. Gopalaswami Ayyangar
;
"Explanation. - For the purposes
of this article, the Government of the State means the person for the time
being recognised by the Union as the Maharaja of Jammu and Kashmir, acting
on the advice of the council of Ministers, for the time being in office,
under the Maharaja's Proclamation, dated the fifth day of March, 1948."
I have there substituted the words "or the
time being in office," for the word "appointed".
"(c) the provisions of article 1 of this
Constitution shall apply in relation to the State.
(d) such of the other provisions of this
Constitution and subject to such exceptions and modifications shall apply
in relation to the State as the President may by order specify;
Provided that no such order which relates
to the matters specified in the Instrument of Accession of the State aforesaid
shall be issued except in consultation with the Government of the State;
Provided further that no such order which
relates to matters other than those referred to in the last preceding proviso
shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government
of the State referred to in sub-clause (b) (ii) or in the second proviso
to sub-clause (d) of clause (1) was given before the Constituent Assembly
for the purpose of framing the Constitution of the State is convened, it
shall be placed before such Assembly for such decision as it may take thereon.
(3) Not withstanding anything in the preceding
clauses of this article, the President may, by public notification, declare
that this article shall cease to be operative or shall be operative only
with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent
Assembly of the State shall be necessary before the President issues such
a notification."
Sir, this matter, the matter of this particular
motion, relates to the Jammu and Kashmir State. The House is fully aware
of the fact that the State has acceded to the Dominion of India. The history
of this accession is also well know. The accession took place on the 26th
October, 1947. Since then, the State has had a chequered history. Conditions
are not yet normal in the State. The meaning of this accession is that
at present that State is a unit of a federal State, namely, the Dominion
of India. This Dominion is getting transformed into a Republic, which will
be inaugurated on the 26th January, 1950. The Jammu and Kashmir State,
therefore, has to become a unit of the new Republic of India.
As the House is aware, accession to the
Dominion always took place by means of an instrument which had to be signed
by the Ruler of the State and which had to be accepted by the Governor-General
of India. That has taken place in this case. As the House is also aware,
Instruments of Accession will be a thing of past in the new Constitution.
The States have been integrated with the Federal Republic in such a manner
that they do not have to accede or execute a document of Accession for
the purpose of becoming units of the Republic, but they are mentioned in
the Constitution itself; and, in the case of practically all States other
than the State of Jammu and Kashmir, their constitutions also have been
embodied in the Constitution for the whole of India. All those other States
have agreed to integrate themselves in that way and accept the Constitution
provided.
Maulana Hasrat Mohani : Why this
discrimination, please?
The Honourable Shri N. Gopalaswami Ayyangar
: The discrimination is due to the special conditions of Kashmir. That
particular State is not yet ripe for this kind of integration. It is the
hope of everybody here that in due course even Jammu and Kashmir will become
ripe for the same sort of integration as has taken place in the case of
other States. (Cheers) At present it is not possible to achieve that integration.
There are various reasons why this is not possible now, I shall refer again
to this a little later.
In the case of the other Indian States
or Unions of States there are two or three points which have got to be
remembered. They have all accepted the Constitution framed for States in
Part I of the new Constitution and those provisions have been adapted so
as to suit conditions of Indian States and Unions of States. Secondly,
the Centre, that is the Republican Federal Centre will have power to make
laws applying in every such State or Union to all Union Concurrent Subjects.
Thirdly, a uniformity of relationship has been established between those
States and Unions and the Centre. Kashmir's conditions are, as I have said,
special and require special treatment.
I do not want to take much of the time
of the House, but I shall briefly indicate what the special conditions
are. In the first place, there has been a war going on within the limits
of Jammu and Kashmir State.
There was a cease-fire agreed to at the
beginning of this year and that cease-fire is still on. But the conditions
in the State are still unusual and abnormal. They have not settled down.
It is therefore necessary that the administration of the State should be
geared to these unusual conditions until normal life is restored as in
the case of the other States.
Part of the State is still in the hands
of rebels and enemies.
We are entangled with the United Nations
in regard to Jammu and Kashmir and it is not possible to say now when we
shall be free from this entanglement. That can take place only when the
Kashmir problem is satisfactorily settled.
Again, the Government of India have committed
themselves to the people of Kashmir in certain respects. They have committed
themselves to the position that an opportunity would be given to the people
of the State to decide for themselves whether they will remain with the
Republic or wish to go out of it. We are also committed to ascertaining
this will of the people by means of a plebiscite provided that peaceful
and normal conditions are restored and the impartiality of the plebiscite
could be guaranteed. We have also agreed that the will of the people, through
the instrument of a constituent assembly, will determine the constitution
of the State as well as the sphere of Union jurisdiction over the State.
At present, the legislature which was known
as the Praja Sabha in the State is dead. Neither that legislature nor a
constituent assembly can be convoked or can function until complete peace
comes to prevail in that State. We have therefore to deal with the Government
of the State which, as represented in its Council of Ministers, reflects
the opinion of the largest political party in the State. Till a constituent
assembly comes into being, only an interim arrangement is possible and
not an arrangement which could at once be brought into line with the arrangement
that exists in the case of the other States.
Now, if you remember the viewpoints that
I have mentioned, it is an inevitable conclusion that, at the present moment,
we could establish only an interim system. Article 306A is an attempt to
establish such a system.
I shall now proceed to take the House through
the provisions of this article. As honourable Members will remember, the
constitution of Indian States is mainly governed by article 211A of this
Constitution which applies the Constitution to Indian States, subject to
the modifications contained in Part VI-A read with the Schedule. So far
as that provision in concerned, I have already indicated to you that the
provisions regarding the Constitution of other States could not at present
be applied to Jammu and Kashmir. Therefore, clause 91) (a) of this article
says that the provisions of article 211A of this Constitution shall not
apply to the State of Jammu and Kashmir.
The Second portion of this article relates
to the legislative authority of Parliament over the Jammu and Kashmir State.
This governed primarily by the Instrument of Accession. Broadly speaking,
that legislative power is confined to the three subjects of defence, foreign
affairs and communications, but as a matter of fact these broad categories
include a number of items which are listed in the Instrument of Accession.
I believe they number some twenty to twenty-five. Now, these items have
undergone a change in description, in numbering, in arrangement, as amongst
themselves, in List I and List III of the new Constitution. It is therefore
necessary that the items mentioned in the Instrument of Accession should
be brought into line with the changed designations of entries in Lists
I and III of the new Constitution. So, clause (1) (b) of article 306A says
that this listing of the items as per the terms of the new Constitution
should be done by the President in consultation with the government of
the Sate.
Clause (b)(ii) refers to possible additions
to the List in the Instrument of Accession, and these additions could be
made according to the provisions of this article with the concurrence of
the government of the Sate. The idea is that even before the Constituent
Assembly meets, it may be necessary in the interests of both the Centre
and the State that certain items which are not included in the Instrument
of Accession would be appropriately added to the List in that Instrument
so that administration, legislation and executive action might be furthered,
and as this may happen before the Constituent Assembly meets, the only
authority from whom we can get consent for the addition is the Government
of the State. That is provided for.
Then, there is the Explanation, which defines
what the Government of the State means. The Government of the State is
defined both in the Constitution which is now supposed to be in force in
the Jammu and Kashmir State as well as in the Proclamation which the Maharaja
issued on the 5th March, 1948. The terms of the Proclamation, to the extent
that they are inconsistent with the provisions of the Constitution Act
of the State, will prevail over that Constitution Act, and therefore it
is that in this Explanation it is the Proclamation which is referred to.
Under the terms of that Proclamation the Maharaja constituted an interim
popular Government, and he said: -
"I hereby ordain as follows :-
(1) My Council of ministers shall consist
of the Prime Minister and such other Ministers as may be appointed on the
advice of the Prime Minister. I have by Royal Warrant appointed, Sheikh
Mohd. Abdullah as the Prime Minister with effect from the 1st day of Marc
1948.
He proceeds -
"The Prime Minister and other Ministers
would function as a Cabinet and act on the principle of joint responsibility."
Then there was no Legislature functioning,
and so he instituted a kind of responsible Government with a Prime Minister
and colleagues who would own collective responsibility for their acts and
regard themselves as jointly responsible for all the acts of the Government.
Now, that is brought out in this Explanation.
The Honourable Shri K. Santhanam : The
Explanation says that the Maharaja will be recognised by the Union instead
of by the President.
The Honourable Shri N. Gopalaswami Ayyangar
: Perhaps we may leave it to the
Third Reading. As you know the scheme of the Constitution Act is that the
Rajpramukh must be recognised by the President. So, this also says that
the Maharaja of Jammu and Kashmir should be a persons recognised for the
time being by the Union.
As regards the Council of Ministers, this
Proclamation set up a system under which this Council was to be established,
viz., that the Maharaja first finds the Prime minister and then on his
advice appoints his colleagues, and the Explanation as now amended by me
says that whatever Council of Ministers is in being at the time will, along
with the Maharaja to whom they are responsible give their concurrence or
give their advice on such matters as are referred to them under this article.
Clauses (c) and (d) refer to the provisions
of the Constitution other than the matters listed in Lists I and III. These
various provisions have been divided into certain categories. The first
according to this draft is that article 1 of the Constitution will automatically
apply. As you know, it describes the territory of India, and includes amongst
these territories all the States mentioned in Part III, and Jammu and Kashmir
is one of the States mentioned in Part III. With regard to the other provisions
in the Constitution, these will apply to the Jammu and Kashmir State with
such exceptions and modifications as may be decided on when the President
issues an order to that effect. That Order can be issued in regard to subjects
mentioned in the Instrument of Accession only after consultation with the
Government of the State. In regard to other matters, the concurrence of
that Government has to be taken.
Now, it is not the case, nor is it the
intention of the members of the kashmir Government whom I took the opportunity
of consulting before this draft was finalised - it is not their intention
that the other provisions of the Constitution are not to apply. Their particular
point of view is that these provision should apply only in cases where
they can apply the only subject to such modifications or exceptions as
the particular conditions of the Jammu and Kashmir State may require. I
wish to say no more about that particular point at the present moment.
Then we come to clause (2). You will remember
that several of these clauses provide for the concurrence of the Government
of Jammu and Kashmir State. Now, these relate particularly to matters which
are not mentioned in the Instrument of Accession, and it is one of our
commitments to the people and Government of Kashmir that no such additions
should be made except with the consent of the Constituent Assembly which
may be called in the State for the purpose of framing its Constitution.
In other words, what we are committed to is that these additions are matters
for the determination of the Constituent Assembly of the State.
Now, you will recall that in some of the
clauses of this article we have provided for the concurrence of the Government
of the State. The government of the State feel that in view of the commitments
already entered into between the State and the Centre, they cannot be regarded
as final authorities for the giving of this concurrence, though they are
prepared to give it in the interim periods but if they do give this concurrence,
this clause provides that that concurrence should be placed before the
Constituent Assembly when it meets and the Constituent Assembly may take
whatever decisions it likes on those matters.
The last clause refers to what may happen
later on. We have said article 211A will not apply to the Jammu and Kashmir
State. But that cannot be a permanent feature of the Constitution of the
State, and hope it will not be. So the provision is made that when the
Constituent Assembly of the state has met and taken its decision both on
the Constitution for the State and on the range of federal jurisdiction
over the State, the President may on the recommendation of that Constituent
Assembly issue an order that this article 306A shall either cease to be
operative, or shall be operative only subject to such exceptions and modifications
as may be specified by him. But before he issues any order of that kind
the recommendation of the Constituent Assembly will be a condition precedent.
That explains the whole of this article.
The effect of this article is that the
Jammu and Kashmir State which is now a part of India will continue to be
a part of India, will be a unit of the future Federal Republic of India
and the Union Legislature will get jurisdiction to enact laws on matters
specified either in the Instrument of Accession or by later addition with
the concurrence of the Government of the State. And steps have to be taken
for the purpose of convening a Constituent Assembly in due course which
will go into the matters I have already referred to. When it has come to
a decision on the different matters it will make a recommendation to the
President who will either abrogate article 306A or direct that it shall
apply with such modifications and exceptions as the Constituent Assembly
may recommend. That, Sir, is briefly a description of the effect of this
article, and I hope the House will carry it.
(Amendment Nos. 459, 460 and 461 were not
moved)
Shri Mahavir Tyagi : (United Provinces
: General) I am not in concurrence with the wording of the clauses, but
I do not wish to move the amendments.
(Amendment No. 462 was not moved)
Mr. President : There is one more
amendment of which notice was received this morning. That is by Shri Mahavir
Tyagi to the effect 'that n amendment No.451 of List XX (Second Week),
in the proviso to clause (3) of the proposed new article 306A" for the
word "recommendation" the word "consultation" be substituted.
Shri Mahavir Tyagi : I am not moving
that too.
Mr. President : The article is now
open to discussion.
Maulana Hasrat Mohani : Sir, I want
to make it clear at the very outset that I am neither opposed to all these
concessions being granted to my Friend Sheikh Abdullah, not am I opposed
to the acceptance of the Maharaja as the ruler of Kashmir. And if the Maharaja
of Kashmir gets further powers and concessions I will be very glad. But
what I object to is this. Why do you make this discrimination about this
Ruler ? My. Ayyangar has himself admitted here that the administration
of Kashmir State is not on a very good basis .........
Mr. President : Maulana, we are
not concerned with the maharaja of Baroda here.
Maulana Hasrat Mohani : Well, I
would not go into any detail. But I say that I object to this sot of thing.
If you grant these concessions to the maharaja of Kashmir you should also
withdraw your decision about the merger of Baroda into Bombay and allow
all these concessions and many more concessions to the Baroda ruler also.
Mr. President: The question is :
"That with reference to Amendment No.379
of List XV (Second Week), after article 306, the following new article
be inserted : -
'306A. (1) Not withstanding anything contained
in this Constitution.
(a) the provisions of article 211A of
this Constitution shall not apply in relation to the State of Jammu and
Kashmir.
(b) the power of Parliament to make laws for
the State shall be limited to
(i) those matters in the Union List and
the Concurrent List which, in consultation with the Government of the State,
are declared by the President to correspond to matters specified in the
Instrument of Accession governing the accession of the State to the Dominion
of India are the matters with respect to which the Dominion Legislature
may make laws for the State; and
(ii) such other matters in the said Lists
as, with the concurrence of the Government of the State, the President
may by order specify;
Explanation :- For the purposes of this
article, the government of the State means the person for the time being
recognised by the union as the maharaja of Jammu and Kashmir, acting on
the advice of the Council of Ministers, for the time being in office, under
the Maharaja's Proclamation, dated the fifth day of Marc, 1948.
(c) the provisions of article 1 of this
Constitution shall apply in relation to the State;
(b) such of the other provision of this
Constitution and subject to such exceptions and modifications shall apply
in relation to the State as the President may by order specify:
Provided that no such order which relates
to the matters specified in the Instrument of Accession of the State aforesaid
shall be issued except in consultation with the Government of the State:
Provided further that no such order which
relates to matters other than those referred to in the last preceding proviso
shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government
of the State referred to in sub-clause (b)
(ii) or in the second proviso to sub-clause
(d) of clause (1) was given before the Constituent Assembly for the purpose
of framing the Constitution of the State is convened, it shall be placed
before such Assembly for such decision as it may take thereon.
(3) Notwithstanding anything in the preceding
clause of this article, the President may, by public notification declare
that this article shall cease to be operative or shall be operative only
with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent
Assembly of the State shall be necessary before the President issues such
a notification'."
The motion was adopted.
Article 306A was added to the Constitution.
________
Mr. President : These are all the
amendments that we have had from the Drafting Committee. There are certain
amendments printed in the List of Amendments and probably some others in
some one or other of the numerous lists subsequently circulated. The question
is whether we take up any of those amendments. We have gone through the
whole Constitution article by article and clause by clause at great length
and I do not think we can re-open any of those things at this stage by
bringing in fresh amendments. There is one amendment by Pandit Thakur Das
Bhargava, No.472, on which Mr. Naziruddin Ahmad has given notice of an
amendment, and this was included in List I of Fifth Week. It was not by
itself an amendment. It was a long article and it related only to one paragraph
of that article. I think this very point has been covered by article 109,
which we have passed. Article 109 confers original jurisdiction on the
Supreme Court and Article 121 lays down that the Supreme Court will have
its own rules of procedure, while article 25 deals with the remedies given
to a party to have Fundamental Rights enforced in court. I think these
three articles between themselves cover everything contained in the amendments
of Mr. Naziruddin Ahmad and Pandit Bhargava. I therefore rule out of Pandit
Bhargava's amendment
We shall now take up the Preamble.
Preamble
An Honourable Member : May I suggest
that the Preamble be taken up when we meet again in November for the Third
Reading ? By that time, the Drafting Committee will also have submitted
its final report to this House.
Maulana Hasrat Mohani : I object
to that, because unless you get the Preamble passed today, how could you
produce any report on the Second Reading?
Shri K.M. Munshi : Once in my life
I support the Maulana Sahed !
Mr. President : I think we should
get the Preamble also passed today. The Constitution as a whole has to
be passed in its Second Reading and the Preamble forms part of the Constitution.
Therefore, the Preamble cannot be postponed.
If necessary, we shall sit in the afternoon
and dispose of it, unless we can do it within fifteen minutes that remain
before one o'clock.
I find there are quite a good number of
amendments to the Preamble in Vol. I of the Printed List Many of them bring
in certain matters really not germane to the Preamble but by way of introduction
of the Preamble. But I find that Maulana Hasrat Mohani's amendment is one
of substance and seeks to bring in altogether new ideas. Therefore, I would
ask him if he wishes to move his amendment first.
Maulana Hasrat Mohani : I have three
amendments. I want to move them separately, not in one bundle.
Mr. President : Which one do you
want to move first ?
"That for amendment No.8 of the List of
Amendments (Volume I), the following be substituted :-
"That in the Preamble, for
the words "We, the People of India, having solemnly resolved to constitute
India into a Sovereign Democratic Republic" the following be substituted
:-
"We, the People of India
having solemnly resolved to constitute India into a Sovereign Federal Republic."
or alternatively
"We, the people of India,
having solemnly resolved to constitute India into a Sovereign Independent
Republic."
I shall just now give my reasons for proposing
these amendments. In view of the proverbial shortness of public memory,
I want first to remind the Members about a very fundamental fact that has
been brought into the present Constitution and in the Draft prepared by
Dr. Ambedkar. I refer to Volume IV No.6 of the official report of the proceedings
of this Assembly - list 738, Part I: Federal territory and jurisdiction.
Under "name of territory and federation" it is said that the Federation
hereby established shall be a sovereign independent republic known as India.
So it is clearly laid down that we will have only a Federation and it will
be a federation of Indian republics. But my friend, Dr. Ambedkar has cleverly,
I suppose, dropped the word "Federal" altogether and the word "independent"
also has been dropped and he has aid "democratic State". I objected to
that when I spoke the other day.
Shri Deshbandhu Gupta : (Delhi):
On a point of order : the effect of these amendments if passed would be
that the whole Constitution will have to be recast.
Maulana Hasrat Mohani : Who will
be responsible for that ?
Shri Deshbandhu Gupta : To move
such an amendment at this stage is out of order and it should therefore
be disallowed.
Maulana Hasrat Mohani : I should
submit that I tried my best in the very beginning to stop you. I said that
when you are going to decide the fate of India you should first make up
your mind to find out and declare what kind of constitution you are going
to frame. But I was ruled out. Of course I said if you do not accept my
suggestion then you should not grumble, when the Preamble is presented;
should I not raise any objection? Then I will not listen to you if you
say because we have passed such and such a thing ..........
Shri Deshbandhu Gupta : May I have
your ruling?
Maulana Hasrat Mohani : I say that
you are responsible for preventing me from getting this thing discussed
in the very beginning and therefore if you have to redraft the whole Constitution
it does not matter. I shall insist on it. I have every right to propose
any amendment in the Preamble, and if you find you have already passed
something quite different, let me tell you that the Preamble will not be
subject to your erroneous decisions and you will have to correct those
decisions and it may take a year or two. But it does not matter. But unless
and until you conform to the accepted principles prevalent all over the
world, I think it will be ridiculous to pass this so perfunctorily.
Shri Deshbandhu Gupta : May I draw
the attention of the Chair to the point of order moved by me? I am serious
about it.
Mr. President : He is moving amendment
No. 453 which runs thus :
"That in the Pramble for
the words 'We, the people of India, having solemnly resolved to constitute
India into a Sovereign Democratic Republic' the following be substituted:
-
'We, the people of India,
having solemnly resolved to constituted India into a Sovereign Federal
Republic'. "
Or
'We, the people of India
having solemnly resolved to constitute India into a Sovereign Independent
Republic'. "
So far as this amendment is concerned,
I do not see anything in it that is out of order.
You are taking only this one, Maulana Sahib
?
Maulana Hasrat Mohani : No, no.
I will propose the other one when the time comes.
Mr. President : At present you are
moving this one?
Maulana Hasrat Mohani : Yes. But
I am not giving up the other amendment.
Mr. President : You are not taking
up any other at the present moment. You have moved amendment No. 453.
Maulana Hasrat Mohani : Yes - this
and the other one.
Mr. President : Which other one
? We have only one amendment.
Maulana Hasrat Mohani : The alternative
!
Mr. President : That does not make
any difference.
Dr. B. Pattabhi Sitaramayya : You
said before that if there are alternative amendments and one of them is
moved, the other one would be blocked.
Mr. President : I do not see much
difference between the two amendment. They are more or less the same. therefore
whether the one or the other is accepted does not matter.
Dr. B. Pattabhi Sitaramayya : So,
if they are the same, only one can be accepted.
Mr. President : Whichever he moved,
that I will put to the House.
Maulana Hasrat Mohani : So I have
read out the official report. I refer to volume IV.....................
Mr. President: The object of putting the Preamble last was that
the Preamble may be in conformity with the Bill as accepted.
Maulana Hasrat Mohani: When I wanted the Preamble discussed at
the very beginning you said we will not allow you to discuss it. I, therefore,
pointed out that I was suspicious that when you had passed all the other
articles according to your wishes, if any one else proposed anything about
the Preamble you would say that it was not possible to go back on what
we had passed it is now a settled fact and you will then rule me out of
order. You gave me a promise that you would not do that and I have that
in the printed report.
Dr. B. Pattabhi Sitaramayya: Well, you have been good enough
to disallow the point of order but he admits the point of order and therefore
he must be ruled out now.
Maulana Hasrat Mohani: What is the point of order?
Mr. President: Maulana Sahib, you are referring to something
that I promised. I just want to have that.
Maulana Hasrat Mohani: I will read out to you what you said on
a previous occasion. I have here also an admission on the part of Dr. Ambedkar
himself. I refer you to the printed report, volume 7, no. 6, page 418 where
he says that he will not object to any amendment being proposed at this
stage.
With regard to yourself, I refer you to volume 4, no. 6 on page 733.
That was the occasion when the report on the proposed Union Constitution
was presented by Pandit Jawaharlal Nehru. I raised an objection at that
time and you said that "you need not obstruct him just now". You said I
could raise this objection afterwards. "As I understand it, the Maulanas
point is that I should give him a promise at this stage that his amendment
will not be ruled out of order". Then you said "More than this I cannot
say anything at this stage". "I have given some sort of promise that Maulana
wanted. I take it that the House wishes that we should proceed with the
consideration of this report". I objected and said that I would not allow
this report to be considered and then you said that I can raise my objection
afterwards and for the present I may, allow Pandit Jawaharlal Nehru to
proceed with; this report and it was on that understanding that I refrained
from saying all these things at that time.
Mr. President: Far from giving a promise I definitely refused
to give a promise. I read the relevant portion of the debate: "As I understand
it, the Maulanas point is that I should give him a promise at this stage
that his amendment will not be ruled out of order. Obviously I cannot give
any promise to any member before the matter actually comes up. But you
may all have noticed that I am very liberal in the matter of allowing amendments
to be moved even if they come out of time. Unless there is any technical
ground, I do not see any reason why his amendment may be ruled out of order.
More than this I cannot say anything at this stage".
Maulana Hasrat Mohani: I have been given some sort of promise. Very
well, Sir. According to that report the Committee appointed for framing
the constitution was given a clear directive that the Constitution should
be framed in accordance with the Objectives Resolution passed by this Assembly.
It is quite strange that instead of following the Objectives Resolution,
Dr. Ambedkar is passing anything he likes. He wants the Objectives Resolution
to be in conformity with his erroneous decision. He has reversed the order
and this is what I object to most because it has changed the character
of the Constitution. As I pointed out here, what was the object of the
Objectives Resolution and the Report. They said that it will be a Federation
of sovereign Independent Republics. Mark this plural form "Republics".
Now he has reversed the whole thing. He has dropped the word Federation;
he has dropped the word Republic and he has dropped also the word, independent
for some ulterior motive which I am not going to disclose at this moment.
I reserve it for a future occasion when I will throw it in his face when
the time comes. For the present I say that according to the Objectives
Resolution and according to the instructions given by Pandit Jawaharlal
Nehru they should at least change this article in this way, that the spirit
of what he suggested may be included in the article proposed by Dr. Ambedkar.
He in fact, accepted this thing; he drops the word independent. For the
word independent I want to put the word Federal that is, a sovereign
federal Republic; it does not matter if it is not a Republic. When I say
a Sovereign Federal Republic, it means a Republic and the State units of
that will also be Republics or it will be a Federation. I say No. He
takes that word only because it implies also a sort of a unitary system,
and whatever he wants he has reversed and changed the whole character of
this Constitution. We mean and the Objectives Resolution means that India
will be made a Federation of Independent Republics and he now says "No".
India will be transformed and in the place of the British Empire you will
create an Indian Empire which will consist only of States which will have
got no power and in the States you have also included and brought down
the Provinces also. Formerly, I thought that the States will get the benefit
of this inclusion but you have brought down the provinces also and you
have deprived them of everything and even the sort of provincial autonomy
has been taken away and in fact you have allowed nothing for the Provinces.
You decided that you will have elected governors for the provinces. I objected
to the word governors in the very beginning and when Pandit Jawaharlal
Nehru said "I cannot satisfy the Maulana; he is a very deep man. He is
afraid of this word Governor, I suggested that instead of the word Governor
we may put the word "president also in regard to the provinces. They
said that they need not do that. I did not press that matter to the provinces.
They said that they need not do that. I did not press that matter at that
time but now I find on hearing the explanations given by Dr. Ambedkar that
he has reversed the whole picture and he has let the cat out of the bag.
He has clearly said: "What will be India that is Bharat? It will be a Union
of States". What does this mean? You have discarded the word Republic;
you have discarded the word "Federation"; you have discarded the word "Independent",
and my honourable friend, Dr. Ambedkar says: "Well, what does it matter?
It does not matter when we say Republic. It is immaterial whether you call
it independent or not. I say if this is immaterial why is he so anxious
to change that word independent into democratic? There is something
secretly going behind the scenes and I pointed out on a previous occasion
that when Pandit Jawaharlal Nehru changed his mind and went to England
to have some sort of connection with the British Commonwealth, then he
thought that we will have a Republic and also independent. So he wanted
to create a loophole for himself because he can now say: "We are already
a Republic". We are not an independent Republic. What sort of a Republic
are we? Some sort of Republic that these European countries, these imperialists,
who are past-masters in this jugglery of words, have coined new phrases;
and what are these new phrases? Holland has invented a phrase a Republican
Dominion and France has coined a new word for Vietnam which says that
it will be a colonial Republic. We admit that Vietnam is a Republic and
Holland says that they have accepted Indonesia as a Republic but it says
it is a Republican Dominion. Instead of the Dominion it will be included
in an imperial regime and that fraud was brought about by Holland and by
France and do you propose that you will also bring about the same fraud
to be enacted here?
Maulana Hasrat Mohani: You said that we have got the word Republic.
You have dropped the word Federation. You will also say that of course
Pandit Jawaharlal Nehru has agreed to remain in the British Commonwealth
because they accept we are independent. But, what sort of independence?
It will be a republican dominion. Because if it is a real republic and
not a republican dominion, you should have nothing to do with any king
or Emperor directly or indirectly in any manner. When once Pandit Jawaharlal
Nehru has agreed to remain in the British Comonwealth, I think he has forfeited
his right to call India as a Republic. It is not a republic. If it is a
republic, it is a republican dominion, as I said just now.
So, my alternative proposal is this. Either introduce the word Federal
instead of the word "Democratic". It will make something clear. If you
do not want to introduce this word federation, if you are afraid of it,
I will grant a concession to Dr. Ambedkar and you stick to the original
wording of the Objectives Resolution which is given here. It will be "Independent
Sovereign Republic". I say, drop this word democratic and keep to the
actual words used in the Objectives Resolution. If you use the words "independent
Republic my object will be served. I come forward and say that whatever
has been done by Pandit Jawaharlal Nehru is absolutely a false policy.
Mr. President: Does any one else wish to say anything about this
amendment? I will put it to the vote. First alternative.
The question is:
"That in the Preamble for the words, We, the people of
India, having solemnly resolved to constitute India into a Sovereign Democratic
Republic the following be substituted:-
We, the people of India, having solemnly resolved to
constitute India into a Sovereign Federal Republic."
The amendment was negatived.
Mr. President: I shall put the second alternative.
The question is:
"That in the Preamble, for the words, We, the people
of India, having solemnly resolved to constitute India into a Sovereign
Democratic Republic the following be substituted:-
We, the people of India, having solemnly resoled to constitute
India into a Sovereign independent Republic".
The amendment was negatived.
Mr. President: We shall take up the other things when we meet
at six oclock.
The Assembly then adjourned for lunch till 6 p.m.
The Assembly re-assembled after lunch at 6 p.m., Mr. President (The
honourable Dr. Rajendra Prasad) in the Chair.
Mr. President: We have to take up the other amendment now. There
is one in the name of Maulana Hasrat Mohani, No. 9.
Maulana Hasrat Mohani: Mr. President, I move:
"That in the preamble, for the words We, the People of
India, having solemnly resolved to constitute India into a Sovereign Democratic
Republic the words We, The People of India, having solemnly resolved
to constitute India into a Union of Indian Socialistic Republics to be
called U.I.S.R. on the lines of U.S.S.R. be substituted".
Shri Deshbandhu Gupta: May I now raise the point of order again
and submit that it is out of order because it goes counter to the Constitution
we have passed?
Mr. President: A point of order has been raised that the whole
Constitution that has been framed and accepted by this house is inconsistent
with this amendment of the preamble and therefore it should be ruled out
of order.
Maulana Hasrat Mohani: It was for this very point I requested
you to save me from this sort of maneuvering. I am not going to repeat
the same things. The other day I proposed this very thing in connection
with article I. What I am going to propose today is on a different basis.
If you find me repeating the same argument, you can declare me out of order
but if I say something quite new which has nothing to do with my amendment
to the First article of the Constitution, I think I am entitled to some
indulgence on your part. As I showed in my statement earlier, you gave
a sort of promise that you will not rule me out abruptly or without any
consideration. Of course if you still think that I have nothing new to
say and you find me repeating, you can rule me out; but if it is something
quite different from what I said in connection with article I, then of
course I do not see any reason why my amendment should be ruled out of
order.
Dr. B. Pattabhi Sitaramayya: May I know whether the vote that
was taken this morning was a vote to reject Maulanas amendment? There
was no positive vote on the wording of the preamble?
Mr. President: I did not take any.
Dr. B. Pattabhi Sitaramayya: Therefore all that was done was
to reject this amendment to substitute independent or Federal for the
word Democratic.
Mr. President: Maulana: what I have to decide is not whether
you are going to repeat or not. The point is whether this is in order or
not. The objection is that it is inconsistent with the whole Constitution
we have passed. What have you to say about that?
Maulana Hasrat Mohani: I do not know how it is inconsistent.
Because the words in the preamble are Sovereign Democratic Republic.
I say that instead of these you can say Union of independent Republics.
Where is the inconsistency? I do not find any inconsistency in that.
Mr. President: Do you really suggest that the Constitution we
have passed is on the lines of U.S.S.R.?
Maulana Hasrat Mohani: I am not going to say anything of the
kind. I do not say we should go and merge in the U.S.S.R. or that you should
adopt the same Constitution; but what I want to say is that we should work
out our Constitution along the lines and on the pattern of Soviet Russia.
It is a special pattern and also republican pattern and also it is of a
centrifugal pattern.
Shri Jai Narain Vyas (Rajasthan): May I enquire if the honourable
Member is making a speech or replying to the point of order?
Mr. President: He is replying to the point of order.
Maulana Hasrat Mohani: When I propose this that we are not going
to merge ourselves with Russia or we are not going to adopt the Constitution
of U.S.S.R. I am only suggesting that the Constitution and the Preamble
we are adopting here in this Second reading must be on the same lines,
of the same pattern as the U.S.S.R. plan and I do not think there is any
thing inconsistent in that. What are those considerations? What are the
fundamental principles of the U.S.S.R.? They are three. First that it will
be federal constitution. Secondly that it will be a centrifugal federation,
and at the same time, the Centre, after getting some central powers, it
again delegated those powers to their constituent units, declaring that
they...
Mr. President: I think it will save time if I allowed Maulana
Sahib to move his amendment, without giving any ruling. So you had better
finish your speech.
Maulana Hasrat Mohani: Some of my friends here, whenever they
hear the word "Soviet", say, "He is an agent of the Soviet Govt. and he
is in the pay of the Soviet Govt." I do not think anybody in this world
can accuse me of that kind of thing.
Mr. President: Nobody has said that in this house.
Maulana Hasrat Mohani: They are the henchmen of the Soviet, they
carry out the orders they receive from the Soviet Govt. I have no connection
with them. I have got no connection with the Communist party of India even,
because I refused to join them on the ground that once they made the mistake
of saying that we have got a common ground with England because we are
both fighting nazism. I said then, and I say it now, "Anybody who helps
any foreign Govt., especially the British Govt., under any terms or for
any motive, I say that he is wrong".
Mr. President: Maulana Sahib, let me remind you that we are not
concerned with biographical details. You will please speak on your amendment.
Maulana Hasrat Mohani: I am not going to say anything to which
anyone can take objection. I have nothing to do with the Soviet Govt. or
the Soviet Constitution. I want only our Constitution and our preamble
to follow the lines adopted by the Soviet Govt., and those are the three
lines which I have mentioned. That is to say, our Constitution must be
federal, and also along with being federal, it must be centrifugal, that
the constituent States or Republics should willingly hand over certain
central powers to the Centre. And after that, to obtain the goodwill of
the constituent units, they again, I mean the Soviet Govt. again, gave
freedom to their constituent units or republics. They said, "If you find
at any time that the Centre is deciding something against your interest,
you are at liberty to differ from the Centre". And therefore, they gave
them the simultaneous right, and if they found anything going wrong, any
proposal of the Centre, they could at once go out and they said that even
when the war was raging. They said to all those Muslim republics of the
U.S.S.R., "If you like, you can go and fight on whichever side you want.
If you do not like to fight for us, we do not press you. What was the result?
The U.S.S.R. took them into its confidence and the result was not a single
Muslim went against the Soviet Republic. Everyone fought, whole heartedly
with the Soviet Govt. What was the reason for this? They did so, because
they found they had been taken into the confidence of the U.S.S.R. They
were not made to leave the Soviet group. Why should they leave them? They
were also cautious. They would never propose anything which might obviously
go against the interest of their Constituent units.
So by adopting this conciliatory attitude they have attained that kind
of freedom and that kind of success that has never been known in the world
before. I say, Sir, that we should also follow the same policy, and we
should also adopt the same attitude. We should also take our minorities
into our confidence. Instead of doing that, you are going to outcaste them
altogether. You are passing anything you like, without the slightest consideration
for the interests of even your political minorities. You do not care a
fig about us. You see, your Bengal Govt. and your Madras Govt. have declared
the Communist Party to be unlawful, on the ground that the Communists have
adopted some unlawful means, that they are fighting, killing, murdering
and looting. Well, I say that the same thing can be said by the Communists.
They can say, "You do not allow us any scope, you do not allow us to take
an independent and constitutional attitude, and you..
Mr. President: May I remind you, that we are not in the Legislative
Assembly, but we are here in the Constituent Assembly, and we are not concerned
with what is happening in the country at the present moment.
Maulana Hasrat Mohani: Very well, Sir, I have only a few sentences
more to speak in this connection and I am not going to take very long over
them.
Supposing you say that the Communists can fight a free election in the
next election, with joint electorates and all that, and without any restriction.
But how are they going to do that? Supposing the Communist party wants
to adopt this constitutional means, will you allow them to issue their
manifesto, which must certainly be against your principles? Will you allow
them to have their agents for the elections? Will you allow them to have
their own workers who will approach every voter? You will not do anything
of that kind. Once they issue their manifesto, you will at once send them
to the prison. So it is a question of whether the hen came first or the
egg came first. You imprison them because they adopt violent means, and
they say, "We are forced to resort to violent means because you do not
leave us any scope for constitutional means".
Mr. President: Maulana Sahib, you are not speaking on your amendment.
Maulana Hasrat Mohani: Very well. I have only to request Dr.
Ambedkar and this house to adopt the same conciliatory attitude to all
political minorities and to adopt the same principles as have been adopted
by the Soviet Union. I am not going to ask you to join the Soviet Union
or to adopt their Constitution. With these few words, I propose my amendment
and request Dr. Ambedkar to accept it.
Mr. President: Does anyone wish to say anything about this amendment?
Honourable Members: No.
Mr. President: Then I will put it to vote.
The question is:
"That in the Preamble for the words We, the People of
India, having solemnly resolved to constitute India into a Sovereign Democratic
Republic the words We The people of India, having solemnly resolved to
constitute India into a union of Indian Socialistic Republics to be called
U.I.S.R. on the lines of U.S.S.R. be substituted".
The amendment was negatived.
Mr. President: Now we have got a large number of amendments of
which notice is given by other Members. Some of these amendments relate
to two things. In some of them the name of God is brought in some form
or other in this preamble. In some others, the name of Mahatma Gandhi is
brought in some form or other. Then there are some in which some amendments
are suggested to the wording. But those are rather minor things, and the
main amendments are really those in which the name of God is brought in,
or the name of Mahatma Gandhi is brought in, or both together. Now, I would
like to know from Members if they insist upon these amendments being moved,
because I cannot prevent them from moving them; but I would suggest that
neither god nor mahatma Gandhi admits of a discussion in this House.
Shri H.V. Kamath: Mr. President, may I move my amendment No.
430?.
Mr. President: If it is moved it may have to be voted upon.
Shri Deshbandhu Gupta: Sir, before Mr. Mamath moves his amendment,
may I draw the attention of the house to the fact that when the Assembly
passed the Objectives Resolution solemnly, all Members standing, the Prime
Minister at that time had made an appeal in these words:
Yet,
"It is a Resolution and it is something much more than
a Resolution. It is a declaration. It is a firm resolve. It is a pledge
and an undertaking and it is for all of us I hope a dedication..and
I wish this house if I may say so respectfully, should consider this Resolution
not in a spirit of narrow legal wording, but rather look at the spirit
behind that Resolution".
The Preamble is no less important and the Prime Ministers remarks are
equally applicable to same. I, therefore, appeal to Mr. Kamath that this
may be borne in mind.
Mr. President: May I just point out to Mr. Kamath one thing?
In the Schedule III which we have passed an oath or affirmation is prescribed
for Ministers and others who have to take office. We have put the thing
in the alternative form, such as Swear in the name of God or, Solemnly
affirm so as to give freedom of choice to the believers and the non-believers
to take the oath or the affirmation. Now here, would you like this thing
also to be in the alternative form?
Shri H.V. Kamath: Here we are not individuals. Here we are all
the people of India. There. There is much difference between the two.
Mr. President: The people of India includes individuals. If you
insist upon moving your amendment I cannot prevent you. But I would suggest
to you not to insist upon it.
Shri H.V. Kamath: Mr. President, I move
Smt. Purnima Banerji (United Provinces: General). Mr. President,
I would beg of you to see that the matter of God is not made the subject
of discussion between a majority and a minority. It is most embarrassing.
To most of us, believers and non-believers, it will be difficult to affirm
or deny God. Let us not try to invoke his name in vain. It should not be
brought up in this form and the members compelled to vote one way or the
other. The name of God is invoked by every nation upon earth and god is
an Impartial Entity and he should be allowed to remain so. With these words,
I appeal to Mr. Kamath not to put us to the embarrassment of having to
vote upon God.
Shri H. V. Kamath: I regret I cannot accept the appeal. I shall
move amendment No. 430 standing in my name. Sir, I move:
"That in amendment no. 2 of the list of Amendments (Volume
I), the following be substituted for the proposed preamble:-
In the name of 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 and
give to ourselves this Constitution".
Dr. B. Pattabhi Sitaramayya: The amendment is only in the first
line, you see, Sir?
Mr. President: It is exactly the same as the Preamble except
that it begins with In the name of God.
Honourable Members: No speech, please.
The Honourable Shri K. Santhanam: I rise to a point of order.
The amendment moved must have a meaning.
Mr. President: It is not a point of order really.
Shri H.V. Kamath: I can reply to Mr. Santhanam. My amendment
means, in the name of God we do this and that. No long speech is needed
to commend this motion. Besides invoking the name of God, I have taken
a little liberty with only one word, and that is, I have changed the word
its citizens to her citizens.
Shri A. Thanu Pillai: (Travancore and Cochin State): may I rise
to a point of order, Sir? If Mr. Kamaths amendment is accepted, - of course
I am a believer in God-would not that amount to compulsion in the matter
of faith? Is it not out of order to move a motion like that? It affects
the fundamental right of freedom of faith. A man has a right to believe
in God or not, according to the Constitution. In that view this amendment
should be ruled out, though I am myself a staunch believer in God.
Shri H.V. Kamath: My reply to Mr. Thanu Pillai is that we are
passing this in the name and on behalf of the people of India. All that
we have done here in this Assembly has been in the name and on behalf of
the people of India.
Shri Rohini Kumar Chaudhuri (Assam: General): May I move an amendment
to that of Sh. Kamath that, instead of In the name of God, would he be
pleased to accept In the name of Goodess? (laughter).
Shri H.V. Kamath: Mr. President, all that we have done in this
House has been done on behalf of and for the people of India, and all decisions
have been taken here by the vote of the House. Weather this becomes a matter
for the vote of the House or not, I am sure in their heart of hearts the
people of India for whom we have been working and toiling here for the
last three years would endorse this amendment in toto. That is so far as
the point raised by Mr. Pillai is concerned.
I have taken only a slight liberty with the text of the Preamble. As
I have pointed out, I am sticking to the wording of the Objectives Resolution
moved by Pandit Jawaharlal Nehru in December, 1946. In the first part of
it, the future with reference to the governance of the country the words
used are "her future governance", here being apt for the motherland. That
being so, we should say her and not its citizens in the preamble. I
would leave this however to the Drafting Committee.
As regards the substance of the motion I do not propose to make a long
speech. In this august House, the first Constituent Assembly of India,
of our Bharata Varsha, in this land, ancient but ever young, which has
through the ages renewed itself at the Divine Fountain, let us consecrate
this Constitution by a Solemn dedication to God in the spirit of the Gita.
Yatkaroshi yadashnasi
Yajjuhoshi dadasi yat
Yattapasyasi kaunteya
Tatkurushwa madarpanam.
Whatever our shortcomings, whatever the defects and errors of this Constitution
let us pray that God will give us strength, courage and wisdom to transmute
our baser metal into gold, through hard work, suffering and sacrifice for
India and for her people. This has been the voice of our ancient civilisation,
has been the voice through all these centuries, a voice distinctive, vital
and creative, and if we, the people of India, heed that voice, all will
be well with us.
Shri V.I. Muniswamy Pillay (Madras: General): I strongly support
the motion moved by Mr. Kamath.
(Prof. Shibban Lal Saksena rose to speak).
Mr. President: Do you want to move any amendment?
Prof. Shibban Lal Saksena: Yes, Sir; No. 3.
Mr. President: Does anyone wish to speak on this amendment which
has been moved by Mr. Kamath?
Shri M. Thirumala Rao (Madras: General): Are you allowing Mr.
Saksena to move his amendment? I want to speak a few words on Mr. Kamaths
amendment.
Mr. President: We are now on Mr. Kamaths amendment.
Shri Mahavir Tyagi: May I remind Dr. Ambedkar of the promise
he made to me on another occasion. May I read a few line, Sir? Sir, on
the 15th November, 1948 when the question was discussed, Dr.
Ambedkar had asked me to remind him about this question of sovereignty,
I said-
"I hope..that his draft means that it (sovereignty)
vests with the people, and his explanation may well go down into the records
for future reference".
He replied-
"Beyond doubt it vests with the people. I might also tell
my friend that I shall not have the least objection if this matter was
raised again when we are discussing the Preamble".
Mr. President: That is not the point. At the present moment we
are on Mr. Kamaths amendment, not on that. We are not dealing with that
question now.
Shri M. Thirumala Rao: It is unfortunate that Mr. Kamath has
not seen his way not to press his amendment to a vote. This is a thing
of such vital importance and affects the life of the whole nation, that
it should not be subjected to the vote of a House of three hundred people
whether India wants God or not. We have accepted that God should be there
in the Oath, but for those who do not believe in God, there is an alternative
there, but there is no possibility of a compromise which can provide for
both the things in the Preamble. Therefore, I think it would be better
that Mr. Kamath withdraws his amendment and does not subject God about
whom he spoke in such reverent terms to the vote of the House, and if it
comes to the vote, it will not be fair to ourselves and to the nation.
Dr. B. Pattabhi Sitaramayya: May I request that that amendment
may be disposed of first before we take up anything else?
Pandit Hirday Nath Kunzru: It is a matter of the deepest regret
that a matter that concerns our innermost and most sacred feelings should
have been brought into the arena of discussion. It would have been far
more consistent with our belief in the highest truths and our determination
to adhere firmly to them that we should not seek to impose our own belief
on others. I recognise the sincerity of Mr. Kamath and of those who agree
with him, but I do not see why in a matter that vitally concerns every
man individually, the collective view should be forced on anybody. Such
a course of action is inconsistent with the Preamble which promises liberty
to thought, expression, belief, faith and worship to everyone. How can
we deal with this question in a narrow spirit? We invoke the name of God,
but I make bold to say that while we do so, we are showing a narrow, sectarian
spirit, which is contrary to the spirit of the Constitution and which we
should try to forget at this time when we have reached the end of a very
important stage of our labours.
Shri Rohini Kumar Chaudhuri: Sir, I am at one with my friend,
Pandit Kunjru, in objecting to the amendment which has been moved by my
friend Mr. Kamath. Sir, I have great admiration for my friend, Mr. Kamath.
I am one who has unbounded confidence in him so far as political affairs
are concerned. I must confess that I am very sadly disappointed in him
this evening. By this amendment, he shocked the feelings of many when he
stoutly refused to accept the amendment which I proposed. Sir, it is not
a matter of laughter with me. I believe in a Goodess. I belong to Kamrup
where the Goodess Kamakhya is worshipped.
An Honourable Member: God includes Goodess.
Mr. President: It is bad as it is that we have brought in the
name of God in our discussion. We should not become flippant about it.
Shri Rohini Kumar Chaudhuri: We should remember that when we
started our political movement, we started it with the singing of Bande
Mataram. What does Bande Mataram mean? It means an invocation to a Goodess.
It means belief in a Goodess. Sir, we who belong to the Sakthi cult, protest
against invoking the name of God alone, completely ignoring the Goodess.
That is my submission. If we bring in the name of God at all, we should
bring in the name of the Goddess also. As I said, this amendment should
not have been brought. But as it has been brought, this is my point of
view.
The Honourable Shri Satyanarayan Sinha (Bihar: General): Sir,
the question may now be put.
Pandit Govind Malaviya (United Provinces: General): Sir, I wish
to say a few words.
Mr. President: There are so many others who are wanting to speak.
But it has now been suggested that the matter be closed.
Pandit Govind Malaviya: It has been said that we should not impose
our will on any section. I hope the other section of the House also will
not do that. I wish, with your permission to say a few words on this matter.
Mr. President: But closure has been moved. I shall put the closure
motion to vote.
The question is:
"That the question be now put".
The motion was adopted.
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
I), the following be substituted for the proposed preamble:-
In the name of 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 and
give to ourselves the Constitution".
Shri H.V. Kamath: I claim a division.
Pandit Govind Malaviya: I want a division on this question.
Maulana 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 hands.
Ayes: 41
Noes: 68.
The amendment was negatived.
Shri H.V. Kamath: This, Sir, is a black day in our annals. God
save India.
Pandit Govind Malaviya: Sir, it is so vital a matter and I again
beg of you that we might have a division on this matter.
Mr. President: I have had the division now.
Shri A. Thanu Pillai: Sir, Mr. Kamath should not have made that
statement, and he should withdraw it.
Mr. President: I may tell Pandit Govind Malaviya this. I have
got here in our Rules the following
"A matter requiring the decision of the Assembly shall
be brought forward by means of a question put by the Chairman.
In all matters requiring to be decided by the members
of the Assembly, the Chairman shall exercise a vote only in the case of
an equality of votes.
Votes may be taken by voices or division and shall be
taken by division if any member so desires".
Here I have taken the voices and then I have adopted the particular
method of division by asking members to raise their hands, instead of asking
them to rise in their places. I think I have substantially fulfilled the
requirement of the Rules.
Shri Mahavir Tyagi: On a point of order, sir, the President has
already once laid down, by means of a Standing Order, as to what will be
the method of Division. I have not got the Order with me because it was
issued separately. In that Standing Order it is mentioned in so many words
that when a Member calls a Division the President shall get all the doors
closed and say "Ayes to the Right. Noes to the Left". And then the Members
will file past by the side of the Tellers. That Standing Order was issued
during the session and the requirement of that Standing Order has not been
fulfilled.
Mr. President: You have not read the rule rightly. Paragraph
(4) of rule 30 says: "The Chairman shall determine the method of taking
vote by division". I have followed that.
Shri Mahavir Tyagi: My point is once the standing order was issued,
it cannot be changed verbally.
Mr. President: Is it suggested that paragraph (4) of Rule 30
is superseded?
Shri H.V. Kamath: That has been amplified and clarified in your
office circular.
Mr. President: It does not require any clarification. It is very
clear. The Chairman shall determine the method of taking voice by division:
"If in the opinion of the person presiding a division
is claimed unnecessarily (that is to say, when he is satisfied in any particular
case that there is a clear preponderance of opinion in support of his declaration
and against the challengers) he may not follow the ordinary method of having
votes recorded in the division lobbies but may have the vote of the House
by asking the Members who are for Aye and for No respectively to rise
in their places and thereupon as he thinks fit, may either declare the
determination of the House immediately or may order a division to be held.
When the Chairman there and then declares the determination of the House,
the names of voters will not ordinarily be recorded".
An Honourable Member: The word "division has got a particular
meaning in point of phraseology. Claiming of division means that names
will have to be recorded. It is not mere counting of hands. That is the
practice followed in the Legislative Assembly.
Mr. President: We are not concerned with the procedure in other
places,. Our procedure is governed by our own rules and I have taken the
division in the sense intended by that order. That is my final ruling.
Pandit Govind Malaviya: I have no doubt about the rules. They
are quite clear. It is for the Chair to decide the manner in which the
views of the House should be obtained. I did not have any doubt in my mind
when I made the request to you. But since it is so important a matter about
which many of us feel so very keenly, I leave it to you to decide whether
anything more should be done. If you are satisfied that what has been done
is not enough then in view of our request and our feeling, if you could
consider it feasible to have some other method for a division adopted,
we shall be very grateful.
Mr. President: I am perfectly satisfied that I have got the view
of the House correctly and that is all I am concerned with. We shall go
to the next item.
Pandit Govind Malaviya: There was an amendment in my name on
this point. You have decided that only Mr. Kamaths amendment will be moved,
but my amendment is quite different. It does not bring in the name of God
and it is possible that it may not be offensive to anybody.
Mr. President: I am now going to take the amendments as they
are on the Order Paper. I will see what is to be done about your amendment
when we come to it. Prof. Shah is not here; so his amendment is not moved.
Then Mr. Saksenas amendment.
Prof. Shibban Lal Saksena: Sir, I beg to move:
"That for the Preamble, the following be substituted:-
In the name of God the Almighty, under whose inspiration
and guidance, the Father of our Nation, Mahatma Gandhi, led the Nation
from slavery into Freedom, by unique adherence to the eternal principles
of Satya and Ahimsa, and who sustained the millions of our countrymen and
the martyrs of the Nation in their heroic and unremitting struggle to regain
the Complete Independence of our Motherland,
We, the People of Bharat, having solemnly resolved to
constitute Bharat into a Sovereign, Independent, Democratic, Socialist
Republic, and to secure to all its citizens:
JUSTICE, social, economic and political,
LIBERTY of though, expression, belief, faith and worship,
EQUALITY of status and of opportunity; and to promote
among them all;
FRATERNITY assuring the dignity and freedom of the individual
and the unity of the country and the Nation:
In our Constituent Assembly this;..day of Vikrami Samvat
2006 (the 26th day of January, 1950 A.D.) do hereby enact, adopt
and give to ourselves this Constitution".
I have been very much pained to see the attitude of some of our friends
regarding the introduction of the holy name of God and the Father of the
Nation at the beginning of our Constitution. While they have a right to
have their say, other people also have a full right to have their say.
This country has always prided on its discoveries in the realm of the spirit
and we are now afraid even to put in Gods name at the commencement of
our Constitution. I am one of those who think that we have produced a great
piece of work by preparing this Constitution. There may be some defects
in it. But I am sure we have done some very great things. It is only meet
and proper that the name of God and the name of the Father of the Nation
should be put at the beginning of our Constitution. I am sorry that some
people should have thought that we are forcing it on them. There are other
Constitutions in the world the Irish Constitution, for instance-wherein
in the very beginning in the Preamble God has been mentioned and homage
has been paid to the martyrs who won their freedom. I have therefore been
very much pained to feel that some Members merely at the mention of the
name of God or the Father of the Nation feel that something is sought to
be forced upon somebody. If they feel that way, they are at liberty to
have their opinion, but why force others who feel intensely in the matter
to eliminate Gods name? I greatly regret the attitude of my friends. I
hope they will reconsider it. This Constitution will probably build our
country on a new pattern and on the basis of the ideals set by the Father
of the Nation. It is therefore meet and proper that we should humble ourselves
before God and pay homage to the Father of the Nation by incorporating
their names in the very beginning of the Constitution.
Shri Brajeshwar Prasad (Bihar:General): Mr. President, I rise
to oppose the amendment moved by my friend Prof. Shibban Lal Saksena. I
do not want that the name of Mahatma Gandhi should be incorporated in this
Constitution, because it is not a Gandhian Constitution. The foundation
stones of this Constitution are the decisions of the American Supreme Court.
It is the Government of India Act, 1935, repeated again. If we had a Gandhian
Constitution, I would have been the first to offer my support. I do not
want that the name of Mahatma Gandhi should be dragged in the rotten Constitution.
Mr. President: I will now put this amendment to vote.
Acharya J.B. Kripalani (United Provinces: General): May I request
the Mover of the amendment to withdraw it? It is not behoving us to vote
on this amendment. We must be very sparing of the use of the name of the
Father of the Nation. My friend Shibban Lal knows that I yield to nobody
in my love and respect for Gandhiji. I think it will be consistent with
that respect if we do not bring him into this Constitution that may be
changed and reshaped at any time.
Prof. Shibban Lal Saksena: Sir, in response to the appeal of
Acharya Kriplani, I beg to withdraw my amendment.
The amendment was, by leave of the Assembly withdrawn.
(Amendment No. 4 was not moved).
Pandit Govind Malaviya: The amendment of which I had given notice
ran thus:
"That in the Preamble, for the words We the people of
India the following be substituted:-
By the grace of Parameshwar, the Supreme Being, Lord
of the Universe (called by different names by different peoples of the
world).
From whom emanates all that is good and wise, and who
is the Prime Source of all Authority,
We the people of Bharata (India),
Humbly acknowledging our devotion to Him,
And gratefully remembering our great leader Mahatma Mohandas
Karamchand Gandhi and the innumerable sons and daughters of this land who
have laboured, struggled and suffered for our freedom, and".
Dr. P.S. Deshmukh: I rise to a point of order. The essence of
this amendment is in two respects. It introduces the name of God and it
brings in the name of Mahatma Gandhi. Both of these issues have been decided
by this House. In one case there has been some debate and voting; in the
other case the honourable Gentleman has withdrawn the motion. I therefore
urge that this amendment should be ruled out of order since the main ingredients
in that amendment have been already decided by the House.
Pandit Govind Malaviya: If the words which I had been noted,
it would have been seen that I had said that I was reading the amendment
which I had intended to move. I had said that "it ran thus and thus.If
the House had borne with me for a moment, I was going to say , Sir, that
this was the amendment of which I had given notice, but in view of the
expression which had just taken place what I wished to move now was:
I would delete the last portions referring to Mahatma Gandhi and others,
and would also delete the word Parameshwara at the beginning. That was
what I was going to say to meet the point of view which has been expressed.
The Honourable Dr. B.R. Ambedkar: They have been disposed of!
Pandit Govind Malaviya: Then the amendment would read:
"By the Grace of the Supreme Being, Lord of the Universe,
called by different names..".
Maulana Hasrat Mohani: Is he proposing some new amendment? I
rise to a point of order. He is out of order. He is proposing something
new.
Pandit Govind Malaviya: Then it will satisfy even the unreasonable
point of view which has been expressed here. We will not be referring to
God as such or to anybodys particular God because my amendment says
"called by different names by different peoples of the world" and yet we
would be able to put into our Preamble something which has been the most
distinctive and permanent feature of the thought and belief, of the tradition,
of the culture and of the history of the entire life of the people of this
country from time immemorial. I submit, Sir, that we have come here as
representatives of the people of India. Honesty demands that we should
record here what may be their view. In this Preamble, Sir..
Mr. President: I shall decide the point of order. The first point
is whether it is covered by the amendment which has been defeated. I think
it is covered.
Pandit Govind Malaviya: Even after the deletions, if you think
so, I shall take my seat.
Mr. President: By simply omitting the word Parameshwar you do
not take out of the amendment which has been defeated.
Pandit Govind Malaviya: I thought the objection of some of our
friends was to the word "God". I shall obey your Ruling, Sir.
Shri Mahavir Tyagi: I do not want to move my amendment No. 11
but I want to ask Dr. Ambedkar if he is going to keep to the promise he
had made.
Mr. President: That is a different matter.
Shri Mahavir Tyagi: He told me to remind him at the time when
the Preamble was being discussed.
Mr. Naziruddin Ahmad: If there is a breach of promise, then my
friend should go to Court!
Shri Mahavir Tyagi: It is not a question of promise. I was assured
according to the proceedings, by what Dr. Ambedkar had stated about the
investment of sovereignty. I had moved an amendment and he had replied
that the meaning was "vested in the people" but it was not defined in so
many words I had insisted that it be ascertained. Dr. Ambedkar said: "You
doubt that it vests with the people. I might tell my friend that I shall
not have the least objection".
Mr. President: Is there any amendment?
Shri Mahavir Tyagi: But this is for the Drafting Committee to
do it.
Shri Satish Chandra (United Provinces: general): There is an
amendment No. 452 in list XXI to the same effect, standing jointly in the
names of Smt. Purnima Banerji and myself.
Shri Mahavir Tyagi: If you permit me they might accommodate it
in the Drafting Committee.
Mr. President: I understand there is an amendment to that effect.
We shall have to take it up when we come to it.
Amendment No. 14: There are several amendments with regard to the name.
Those do not arise now.
Does any Member who has given notice of the amendments printed in the
first volume wish to move his amendment?
Honourable Members: No.
Mr. President: I shall go to the supplementary list. There are
amendments in the supplementary printed list and I take it that no Member
wants to move any of those amendments either.
Honurable Members: No, no.
(At this stage Smt. Purnima Banerji rose to speak).
Mr. President: Yours is one of these recent amendments, but I
am now thinking of the old printed list.
Then we come to amendment No. 452.
Shri Brajeshwar Prasad: There is amendment No. 313 previous to
that in List XIII second page.
Mr. President: Yes, you can move it.
Shri Brajeshwar Prasad: Mr. President, Sir, there are eight amendments
standing in my name. I refer to amendments Nos. 313,314,316 and 317,318,319,320
and 323. Sir, I would like to move only one amendment.
I refer to amendment No. 313. Mr. President, Sir, I move:
"That for amendment No. 1 of the List of amendments (Vol.
1), the following be substituted:-
That for the Preamble the following be substituted:-
"WE THE PEOPLE OF INDIA, having resolved to constitute
India into a SECULAR CO-OPERATIVE COMMONWEALTH to establish SOCIALIST ORDER
and to secure to all its citizens-
an adequate means of livelihood
Free and compulsory education
Free medical aid
Compulsory military training
do hereby ordain and establish this Constitution for India".
Dr. P.S. Deshmukh: What about a camel and motor cycle?
Shri Brajeshwar Prasad: It is for you to suggest those things.
Sir, this word secular has not found any place in our Constitution. This
is the word on which the greatest stress has been laid by our national
leaders. I do submit that this word ought to be incorporated in our Preamble
because it will tone up the morale of the minorities and it will check
the spirit of loafers that is rampant in politics. I have laid stress on
another word. I refer to the word Socialist. I believe that the future
of India is in Socialism. I believe in a Socialist order. When I say that
I believe in a socialist order. I do not mean that I accept the Marxian
interpretation of History. I do not believe in class war nor in the materialist
Philosophy which is so widely prevalent among the socialist circles. By
socialism I mean an equalitarian social order. Equality of opportunity
without equality of income is a mere shibboleth. I believe that in India
we have to evolve a new type of socialism consistent with the tradition
and history of this land. The theory of materialism is a well-knit dogma.
I think that we people in India have not to learn anything from Germany
on philosophical speculation.
Now I come to some other words which have found place in the Preamble.
There seems to be a confusion of thought. I hold the opinion that the word
liberty and equality do not go together. They are incompatibles. They
are the enemies of one another, the one can only triumph at the expense
of the other. With your kind permission, I would quote a small passage
of a few lines from a booklet. I refer to the book entitled "Liberty versus
equality by Muriel Jaeger:
"It is becoming more and more widely accepted that ownership
is one of those liberties that infringe the liberty of others and so must
be abolished, or drastically restricted. And at this point what one may
call the "paradox of liberty" becomes acute. If every liberty that does,
or may do, harm to ones fellow-men where taken away, there would be no
liberty left. The abolition or restriction of private wealth implies some
kind of public control. Public control means public planning, for the general
good is the whole object of taking wealth out of private hands. This is
well-worn platitude; but it is the details that interest us-the effect
that the application of these platitudes will have upon our lives from
day to day, from year to year, and from generation to generation.
"Public planning means that enterprise, labour, distribution
must be strictly regulated. It means, therefore that that ones chance
to choose ones occupation must be reduced, since the plan cannot possibly
be worked unless enough labour is directed into the occupation where it
is needed, regardless of whether enough people want to do that kind of
work or not".
Sir, I would crave your indulgence for a few minutes.
Mr. President: Are you going to read the whole book?
Shri Brajeshwar Prasad: No. Sir.
Mr. President: I thought you said you would read one sentence,
but at least you have read one paragraph.
Shri Brajeshwar Prasad: I have read a few lines; I wanted to
finish one paragraph consisting of 12 lines.
I will just urge another point. I hold that liberty and equality are
not merely incompatibles but they can be reconciled only in a class less
society and here, I would again refer to another paragraph and I would
like with your permission to read a few lines:
"As for the final goal, the Marxists, who are so severe
with "Utopians", have always been rather pathetically vague. But so far
as one can discover, they foreseen a state in which everyone will work
cheerfully for the common good, any help himself to whatever he wants from
the common stock, which will then be so ample that there will be no danger
of any rivalry or clashing of interests. They think that this will be the
natural result of a society without force and without subordination and
that good social habits will grow of themselves in a classless society,
so that special state apparatus will become gradually superfluous. It appears
from this that the ultimate Communist idea is complete Liberty combined
with complete equality".
I do not want to place impossible ideals before the nation. Sir, it
is only in a class-less society that we can achieve a reconciliation of
the two concepts of liberty and equality.
I have suggested that instead of these ideals laid down in the preamble
we should have some pragmatic ideals before us. If we succeed in providing
an adequate means of livelihood, free and compulsory education, free medical
aid and compulsory military training I would think that our efforts have
borne fruit. I do not want to place impossible ideals before the nation
which we know well that neither in our life-time nor in the life-time of
our children or our grand children we will not be able to achieve. I would
like to refer to another point before I conclude. I object to the word
sovereignty in this Preamble. I hold the opinion that the whole concept
of Austrian sovereignty has been exploded. A legal concept must have some
relation with real facts. If it is not so, it has got no value.
Sir, it is not right to say that the Govt. of Nepal is a sovereign State.
It has got the right: it is sovereign and it can declare war against the
U.S.A. The Govt. of the U.S.S.R. is free to liquidate the Communist Party
of Russia. We know that both in the external and internal affairs the State
is circumscribed by numerous factors. If the Govt. of Nepal declares war
against America or the U.S.S.R. tries to liquidate the Communist Party.
We know what the result would be. Therefore, I hold the opinion that we
should not place any undue emphasis upon this word "sovereignty". I hold
the opinion that this ideal is neither necessary nor desirable because
sovereignty leads to war; sovereignty leads to imperialism. (Clapping and
interruption).
Mr. President: I hope the honourable Member will take the hint.
Shri Brajeshwar Prasad: I have a right to demand protection from
you. I can never be hood-winked in this way I will have my say and let
honourable Members clap their hands, I will go on speaking and unless you
ask me to close my speech, I will go on speaking. I cannot allow, Sir,
without raising my voice of protest.
Shri Mahavir Tyagi: On a point of order, I hope you as the custodian
of the rights of honourable Members will see that Members are not shouted
down like that.
Mr. President: There is no attempt at shouting him down. They
only want to cheer him down. The honourable Member had better finish.
Shri Brajeshwar Prasad: Sir, I will now deal with only one aspect
of the question. The word sovereign has found a place in this Preamble.
I am rather thick-skinned. I will never resume my seat. I will speak and
then take my seat. I feel that this word sovereign is entirely misplaced.
A State consists of individuals. Are individuals sovereign in any sense
of the term? If individuals are not sovereign, how can a State which consists
of individuals be sovereign. It is a very well-known fact that man has
no free will of his own, that he is circumscribed by factors of heredity
and environment. Both qualitatively and quantitatively he holds a very
insignificant place in the universe. If man is so insignificant, if man
is a non-entity in the world how can a State which consists of individuals
be a sovereign State? Therefore, Sir, I am opposed to this idea of sovereignty.
We are sovereign. We are a sovereign State to the extent it is possible
for a modern State to be sovereign. We do not aspire to rise to those Austrian
heights because, as I have already stated, it is a frivolous concept, it
is a mischievous concept. The deletion of the word sovereign will not
in any way deter us from exercising the functions of sovereignty which
are vested in the Government of India. It will not detract one iota of
sovereignty but by the retention of this word sovereign, we are placing
a false ideal, a mischievous ideal before the nation. Therefore, I am opposed
to this Preamble. Let us have some pragmatic ideals, ideals which we may
be capable of achieving in our own life time and in the life time of our
children.
Mr. President: Does any one wish to say anything about the amendment?
I shall put this amendment to vote.
The question is:
"That the amendment No. 1 of the List of Amendments (Vol.
I), the following be substituted:-
"That for the Preamble, the following be substituted:-
"WE THE PEOPLE OF INIDA-having resolved to constitute
India into a SECULAR CO-OPERATIVE COMMONWEALTH to establish SOCIALIST ORDER
and to secure to all its citizens-
an adequate means of LIVELIHOOD
FREE AND COMPULSORY EDUCATION
FREE MEDICAL AID
COMPULSORY MILITARY TRAINING
do hereby ordain and establish this Constitution for India".
The amendment was negatived.
Mr. President: We shall take up the amendment of which notice
has been given by Smt. Purnima Benerji, amendment No. 452.
Shri H.V. Kamath: On a point of order, may I submit, Sir, that
I have not moved my amendment No. 2? This is with reference to my amendment.
Therefore, it cannot arise.
Shri Mahavir Tyagi: On the point of order, may I submit, Sir,.
Mr. President: The point of order has been raised. I am considering
it. Let me find out what he has moved and what he has not moved.
Shri Mahavir Tyagi: On the point of order raised by my honourable
friend Mr. Kamath. I beg to submit that on previous occasions, such amendments
have been permitted in the House. When there was no occasion to give amendments
because they were time-barred, many of us took the opportunity of just
hinging our amendments or connecting them with previous ones. If those
Members did not move, it is not the fault of the other honourable members
who have come with their ideas and their amendments. Because there is no
other chance of making the amendments relevant. Within the time, the only
course left to them was just to relate their amendments to previous ones
already given notice of. I would therefore submit, Sir, that at this fag
end of the debate, you might kindly not give a ruling which will debar
the moving of this amendment.
Mr. Naziruddin Ahmed: May I point out Sir, that this is not an
amendment to another amendment, in which case it would have been barred
by the rules, but an amendment "with reference to some other amendment.
Therefore, the amendment is in order.
Mr. President: I have as a matter of fact allowed amendments
of this nature to be moved. So, I cannot rule this out.
Smt. Purnima Banerji: Sir, I move:
"That in amendment No. 2 of the List of Amendments (Volume 1), for the
first paragraph in the proposed preamble, the following be substituted:-
"We on behalf of the people of India from whom is derived all power
and authority of the Independent India,.
With your permission, Sir, I would like to drop the word "sovereign"
here.
"its constituent parts and organs of Government, having solemnly resolved
to constitute India into a Sovereign Democratic Republic and to secure
to all its citizens:-
Sir, my honourable friend Mr. Tyagi has given point to my amendment
and further strengthened my hands. I feel that the Preamble that we are
now dealing with forms one of the most important parts of the Constitution
and to persons like us who are not of a legalistic bent of mind, it stands
as a charter of our freedom and as a measure of our success or our failure.
It lays down the goal to which we are going and therefore at this moment
if members of this House will allow us to express what we feel on this
subject with a little more patience, then, I personally will be very grateful.
Sir, I feel that the Constitution which we have drawn up has invested
the President and Parliament with wide powers. At this moment, I do not
think we should be content with considering the masses of our people as
the sovereign authority from all power is derived and in whom all sovereign
authority rests by merely believing that because they once to to the polls
once in five years their sovereignty is secured. Therefore, I feel that,
in the Preamble, mention of that sovereignty should be made. I have not
gone beyond what the House has already passed. The wording which I have
quoted here is taken almost verbatim from the Objectives Resolution which
was first passed in this House in January 1947. As I said before, the three
parts of the Constitution or rather three incidents in the Constitution,
one, the Objectives Resolution, second the statement of Objectives of State
policy and the Preamble are supposed not to have any legal binding upon
the Constitution. But they, in fact, constitute the very life-breath of
the Constitution which we have here framed. I do not wish to take more
of your time. I would strengthen my argument with the speech quoted by
my honourable friend Mr. Tyagi From the speech made by Dr. Ambedkar when
he moved the Preamble. At that moment, I was not present in the House.
But that has borns my contention out that the sovereignty of the people
should be mentioned somewhere in the Constitution. With these words, I
move my amendment.
Shri Mahavir Tyagi: Sir, in supporting the amendment of my honourable
friend. Smt. Banerji, I have to remind the House of the proceedings of
15th November, 1948, when a similar amendment was moved by me.
It was worded like this that the sovereignty will vest in the whole body
of people. It was discussed thread-bare and I was assured that the article
to which I was moving that amendment was not the proper place for that
amendment and I was promised that this amendment would be considered when
the Preamble was discussed. Now is the occasion when I beg to remind the
House of the promise the Chairman of the Drafting Committee gave me. I
am keen that the residence of the sovereignty should be defined. I am more
keen about it because up till today the sovereignty vests in His Majesty
the King of England. There is an Englishman in whom we have vested the
sovereignty for a century past. So if we do not say in so many word, as
to where the sovereignty would vest in future it will go on vesting in
an Englishman. We want to break it away from him. Therefore, we must definitely
say that there is no more sovereignty attached to the King of England.
Then, I also do not want to let remain any doubt or danger of any Government,
this or future, to bargain or barter away the sovereignty of the country
in the name of Commonwealth or common brotherhood or common citizenship
or whatever it be. So the sovereignty must be vested in so many words in
the people as a whole. In China in their Constitution they have put it
that the sovereignty vests in the whole people of China. Whether the Communists
take China or not, the people will remain. People will not be animals if
they become communists or if they adopt any party label. People will remain
in India as well and the sovereignty will vest in the people of India.
It must be defined so that the Govt. might not misuse it. It does not vest
even in the Govt. Govt. only represents the people. Because Dr. Ambedkar
has agreed to put it in the Constitution, I do not want to dilate upon
it and I hope he will kindly accommodate these words and make it clear
once for all that the sovereignty vests in the people and not in any foreigner
as it does today, nor in the state even though it has the title of being
a "sovereign state".
Acharya J. B. Kriplalani: Mr. President, Sir, I was not my intention
to speak but some friends wanted that at this last moment when practically
we are finishing our Constitution I should speak a few words. Some of my
friends said that I began, by a formal speech, the proceedings of this
House and that I should, at this time of its Second Reading which is for
all practical purposes the final reading, finish the proceedings.
Sir, you like a good host, have reserved the choicest wine for the last.
This Preamble should have come in the beginning of the Constitution even
as it is given in the beginning of the Constitution. There was a reason
for that because it would have been before us in every detailed provision
that we made in the Constitution. It would have cautioned us that we were
not deviating from the basic principles which we have laid down in the
Preamble. As I have sat in this House from day to day, I have seen that
very often we have devastated from the basic principle laid down in the
preamble only recently we want against the great principle of democracy.
This unfortunate land is divided into many castes and economic classes.
There are innumerable divisions. I think it was the first time in the history
of Worlds Constitutions that a new caste of administrators was created,
and it was placed in a privileged position. It was placed in the position
where even the chosen representatives of the people could not touch its
special privileges as against the people,. This, I submit, was going against
the first basic principles of our Constitution.
Sir, I want, at this solemn hour to remind the House that what we have
stated in this Preamble are not legal and political principles only. They
are also great moral and spiritual principles and if I May say so, they
are mystic principles. In fact these were not first legal and constitutional
principles, but they were really spiritual and moral principles. If we
look at history, we shall find that because the lawyers and politician
made their principles into legal and constitutional form that their life
and vitality was lost and is being lost even today. Take democracy. What
is it? It implies the equality of man, it implies fraternity. Above all
it implies the great principle of non-violence. How can there be democracy
where there is violence? Even the ordinary definition of democracy is that
instead of breaking heads, we count heads. This non-violence then there
is at the root of democracy. And I submit that the principle of non-violence,
is a moral principle. It is a spiritual principle. It is a mystic principle.
It is a principle which says that life is one, that you cannot divide it,
that it is the same life pulsating through us all. As the Bible puts it.
"we are one of another," or as Vendanta puts it, that all this is One.
If we want to use democracy as only a legal, constitutional and formal
device, I submit, we shall fail. As we have put democracy at the basis
of your Constitution, I wish Sir, that the whole country should understand
the moral, the spiritual and the mystic implication of the word "democracy".
If we have not done that, we shall fail as they have failed in other countries.
Democracy will be made into autocracy and it will be made into imperialism,
and it will be made into fascism. But as a moral principle, it must be
lived in life. If it is not lived in life, and the whole of it in all its
departments, it becomes only a formal and a legal principal. We have got
to see that we live this democracy in our life. It would be inconsistent
with democracy to have it only in the legal and political field. Politically,
we are a democratic people but economically we are divided into such classes
that that the barriers cannot be crossed. If we have got to be democratic
we have got to be economically so too.
I also say democracy is inconsistent with caste system. That is social
aristocracy. We must do away with castes and classes. Otherwise we cannot
swear by democracy. And we must remember that economic democracy does not
merely mean that there should be no classes, that there should be no rich
and por; but the State itself should live in a manner that is consistent
with the life of the poor, if people happen to be poor. It is not economic
equality if for pomp and pageant, we spend thousands and lakhs of rupees.
It is again not democracy if at every corner of the Govt. House human beings
are made to stand statue like and unmoving. Such things are against the
dignity of the individuals, if we establish democracy, we have to establish
it in the whole of our life, in all its departments, whether it be in administration,
or in society or in the economic field. This we must know and understand.
Then we have said that we will have liberty of thought, expression,
belief, faith and worship. We must understand the implications of this
also. All these freedoms can only be guaranteed on the basis of non-violence.
If there is violence, you cannot have liberty of thought, you cannot have
liberty of expression, you cannot have liberty of faith or liberty of faith
or liberty of worship. And this non-violence should go so far as to make
us not only what is popularly called tolerant of other people, but to a
certain extent, we should accept their ideas as good for them. Mere tolerance
will not carry us far. Many people are merely tolerant. Why? Because they
are indifferent. They say "this mans worship is different from ours. It
is wrong. The man is sure to go to hell; but let him, it is none of my
business". That is not tolerance. That is intolerance, if violence is not
used physically, it is because it is not possible always to use violence,
but there is mental violence. We have to respect each others faith. We
have to respect it as having an element of truth. No religion in the world
is perfect, and yet there is no faith without some element of Gods truth.
Then we have said that there should be equality of status and opportunity.
This implies that in our public affairs, we should be absolutely above
board that there should be no nepotism, there should be no favouritism,
there should be no "mine" and not mine. This can be done. We can give
equality of opportunity and equality of status only when what is considered
as "Ours" is put behind and what is considered as "Not Ours" is put before.
Unless we do these things, we will not be able to fulfil the aims of our
Constitution.
Again I come to the great doctrine of fraternity which is allied with
democracy. It means that we are all sons of the same God, as the religious
would say, but as the mystic would say, that there is one life pulsating
through us all, or as the Bible says. "We are one of another". There can
be no fraternity without this. So I want this House to remember that what
we have enunciated are not merely legal, constitutional and formal principles,
but moral principles; and moral principles have got to be lived in life.
They have to be lived whether it is private life or it is public life,
whether it is commercial life, political life or the life of an administrator.
They have to be lived throughout. These things, we have to remember if
our Constitution is to succeed.
Sir, one word more and I have done. I think the amendment proposed by
Smt. Purnima Banerji should be accepted, because it really describes the
true position and as such it should be enunciated in the Preamble. On formal
occasion, on great occasions, on important occasions, we have to remind
our selves that we are here as the representatives of the people. More
than that, we have to remind ourselves that we are the servants of the
people. We often forget that we are here as the representatives capacity.
We often forget that we are the servants of the people. It always happens
that our language, because of our thoughts and actions, gives little countenance
to this basic idea. A Minister says "Our Government" not "The Peoples
Government". The Prime Minister says "My Government". Therefore, on this
solemn occasion, it is necessary to lay down clearly and distinctly, that
sovereignty resides in and flows from the people. (Cheers) I hope therefore,
this House will carry Smt. Purnima Banerjis amendment.
Mr. President: Are there some other people who want to speak?
Mr. Naziruddin Ahmad: Mr. President, Sir, the eloquent words
of Acharya Kripalani require one explanation. He seems to think and I
speak with great respect-that the success of a democracy depends upon the
introduction of some sweet and palatable words in the Constitution. I however,
submit that the success of a democracy depends on how it is practically
worked. It has nothing to do whatever with what we may state in the Preamble
or in the Constitution. On the actual working of democracy its success
depends.
Honourable Members: Closure, closure.
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 dont 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, his day, do hereby adopt, enact and
give to ourselves this Constitution Reading it in that fashion.
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 reads 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 nothing 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"-I am not reading the other parts-"We
the people of the 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
a 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 that is a right
view to take every independent country must have some 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 fear. (Interruption).
Smt. 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
ground I think there is no justification for altering the language which
has been used by the Drafting Committee.
Mr. President: The question is:
"That in amendment No. 2 of the List of Amendments (Volume
I), for the first paragraph in the proposed Preamble, the following be
substituted:-
We, on behalf of the people of India from whom is derived
all power and authority of the Independent India, its constituent parts
and organs of government, having solemnly resolved to constitute India
into a Sovereign Democratic Republic and to secure to all its citizens".
The amendment was negatived.
Mr. President: There is no other amendment. The Preamble, as
it is now open to discussion, if any Member wishes to say anything.
Honourable Members: The question may now be put.
Mr. President: If nobody is willing to speak, I shall put the
Preamble to the vote. The question is:
"That the Preamble stand part of the Constitution".
The motion was adopted.
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 all 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 Singha: 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.