Constituent Assembly Debates
Constituent Assembly Debate On 14 November, 1949
CONSTITUENT ASSEMBLY OF INDIA - VOLUME XI
Monday, the 14th November 1949
The Constituent Assembly of India met in the Constitution Hall, New Delhi at
Eleven of the Clock, Mr. President (The Honourable Dr. Rajendra Prasad) in
the,. Chair. *
TAKING THE PLEDGE AND SIGNING THE REGISTER
Mr. President : I understand that there are two Members who have to take the
Pledge and sign the Register.
The following Member took the pledge and signed the register
Shri M. R. Masani (Bombay General).
Mr. President : We have now to take up the consideration of the Draft
Shri R. K. Sidhva C.P. & Berar : General) : Mr. President I wish to draw
your attention to the Resolution I have given notice of in connection with the
sending of a message by the Constituent Assembly to the people of Indonesia
for their having achieved their freedom after a great struggle. I think the
proper body to send such a message is the Constituent Assembly of India who
have achieved freedom and are preparing the Constitution. The Indonesian
people are also preparing their Constitution. Sir, if my Resolution is not to
taken up here, I request you as President to send a telegram of congratulation
Mr. President : I propose to place the notice of that Resolution before a
meeting of the Steering Committee and take such steps as we are adviced by
We have now to take up the consideration of the Report or the Drafting
Committee together with the amendments made by the Drafting Committee and
other amendments of which we have received notice. I propose to explain the
procedure which I wish to follow in this connection. After the motion for the
consideration of the Report has been passed the amendments will be taken up.
Those amendments of which notice has been given by the Drafting Committee will
be taken as moved and there will be no formal motion with regard to the
amendments included in the Report of the Drafting Committee,
As regards the amendments of the Drafting Committee, they are of two kinds.
Many amendments have been incorporated in the Report and printed in italics in
the copy of the Constitution which is now in the hands of the honourable
Members. There arc certain other amendments of which we have received notice
from the Drafting Committee but which are not included in the Report or
printed in the Draft Constitution. So far as those amendments arc concerned
which are included in the Report and indicated in italics, the Members have
had an opportunity to send in amendments and they have given notice of
amendments to them. But so far as these new amendments of which the Drafting
Committee has given notice now are concerned, the Members have had no notice
and no opportunity of giving notice of amendments. I would allow amendments to
those amendments which are now included in the Second List of Amendments till
we start work tomorrow morning. Honourable Members will thus have time to
consider these new amendments and give notice of amendments, if they wish,
till tomorrow morning. As regards the procedure to be followed in considering
the amendments, under the rules which were adopted in the last session, I
think no amendment which does not arise out of any amendment which is moved on
behalf of the Drafting Committee will be in order. So I propose not to take
those amendments unless in the case of any particular amendment I find that
there is any special reason to make an exception. The rules have given me that
discretion and I shall consider any particular amendment which does not come
under the rules but which I consider to be reasonable and necessary and permit
it to be moved. At present I must say that I do not feel it advisable to admit
any of those amendments which arc outside the rules. But I art, open to
consider the matter further and if any honourable Member draws my attention
not in the House but in writing-to any particular amendments to which he
attaches special importance, I shall consider that amendment specially and
allow that to be moved or not as I deem fit.
When an amendment to an amendment is moved, I do not know whether Members
would like to discuss each separately, but then we have a limited time at our
disposal and all this process of disposing of all the amendments must be
finished by one o'clock day after tomorrow. Under the rules I could give only
two days for this business, but I have stretched the point in favour of the
Members by fixing the time up to one o'clock on Wednesday. I have done this
because I feel that the previous consideration of the motion might take a
little time today and it would not be fair to the Members to give them less
than two days for considering all the amendments. Therefore I would suggest
that if any Member wishes to speak about any amendment of his own, he will
confine his remarks to the barest minimum possible, so that we may have more
time for other Members.
I hope all the amendments to the amendments of the Drafting Committee, except
those contained in List 11, will be moved in the course of this day and
tomorrow we may take up the amendments to List 11 of Amendments. We may have a
discussion of all the amendments tomorrow. I must put them all to vote day
after tomorrow, say by about twelve of the clock, and finish the voting by one
of the clock day after tomorrow. This is the procedure which I propose to
follow. I trust this will give an opportunity for all important amendments to
be discussed and also for expediting the work.
Shri R. K. Sidhva : I want to know whether we will have two sittings today.
Mr. President : We shall sit every day from tomorrow from 10 o'clock to 1
o'clock and from 3 o'clock to 5 o'clock.
Shri R. K. Sidhva : Why not today also.
Mr. President : Yes, today also.
Shri H. V. Kamath (id. P. & Berar : General) : With regard to the time
fixed for the consideration of the amendments to the Draft Constitution as
revised, under the rules adopted in the Assembly last time you have powers to
relax or suspend any of the rules.
Mr. President : I am not inclined to extend the time beyond I o'clock day
after tomorrow. Within that time I shall be prepared to relax any of the rules
which I consider need relaxation.
Shri Mahavir Tyagi (United Provinces : General) : Sir, are you going to take
the amendments in italics article by article ? If you do, it will be difficult
for us to finish the work within the prescribed time. Moreover, in certain
cases, the changes are such that they are absolutely new and which we have not
discussed before. Some changes have been introduced which were not discussed
in the House at all. In such cases Members may like to oppose those
Mr. President : Members may depend upon my discretion to decide such cases.
Mr. Naziruddin Ahmad (West Bengal : Muslim) : I have a point of order.
Pandit Lakshmi Kanta Maitra (West Bengal : General) : How can a point of order
be raised on the observations of the Chair ?
Mr. Naziruddin Ahmad : I have nothing to say against the observations of the
Shri R. K. Sidhva : How can a point of order be raised when there is nothing
before the House ?
Mr. President : I think the honourable Member only wants to make some
observations as some other Members have done.
Mr. Naziruddin Ahmad : I do not want to obstruct the proceedings. Sir, you
have kindly observed that the amendments put before the House today during
this session should be relevant to the amendments made by the Drafting
Committee. That I submit, should apply not only to out amendments but also to
the amendments proposed by the Drafting Committee. If any amendment of ours is
outside the scope of being relevant to the amendments already suggested by the
Drafting Committee, it should go. I quite agree; but along with it, I think,
must also go the amendments proposed by the Drafting Committee which were
circulated last night. Amendments to amendments again must be governed by the
same rules. Our rules do not make any distinction between further amendments
to be moved by the Drafting Committee and the amendments to be moved by the
Members. So they should either
sink or swim together. I ask you whether you would consider the later
amendments suggested by the Drafting Committee on the same basis as our
So far as the amendments suggested by the Drafting Committee in the revised
draft are concerned, in some cases the changes have not been indicated in the
text. In some cases they have been shown in italics, In some cases important
changeshave not been indicated at all. So, it would be extremely difficult for
you and for the office to find out whether our amendments are relevant
amendments to the amendments made. This is a very difficult matter. I ask you
to consider all these.
Then I should like to make a suggestion that amendments which may be strictly
outside the scope of the rules may be considered by the draftsmen. I would
like the draftsmen to consider them and in case they are agreeable, I submit
that those amendments, although they are strictly outside the rules, may be
allowed to be moved. I submit that they any improve the text and they should
not be allowed to be ruled out on mere technical grounds. I think these things
should be carefully considered.
Mr. President : As regards the first point raised by Mr. Naziruddin Ahmad with
regard to the amendments of which notice has been given by the Drafting
Committee now and which are contained in List II, I think the discretion given
to me under the rules is intended to cover such cases and I shall use my
discretion. in regard to those amendments and also in regard to other
amendments too, but naturally the amendments of which notice has been given by
the Drafting Committee have a certain value which does not attach to every
amendment of which notice has been given by every private member. Subject to
that, I shall consider those amendments also and use my discretion. If I find
that any amendment really does not arise, I will rule that out.
Mr. Naziruddin Ahmad : What about my other point, Sir, that the draftsmen
should consider all formal amendments and if they are acceptable to them they
should be allowed ?
Mr. President : As regards those amendments, I expect that the Drafting
Committee has been considering all these amendments and if they have not done
so up till now, they will do that. It is for that reason that I do not wish to
put any amendment to the vote now but put them to the vote only day after
tomorrow so that in the meantime the Drafting Committee may have time to
consider those amendments on their merits. If it is inclined to accept any of
them, they may be accepted, or if the Drafting -Committee is inclined to
accept any of the amendments which do not come under the first class of
amendments but are amendments to amendments, they can do so. I shall take up
on Wednesday all these amendments at one time. For this reason I think I would
not put to the vote any amendment at this stage, in order to give time to
everybody to consider the amendments so that we may have the best
consideration given to each amendment.
Now, as regards the time for moving any amendment, I would not like to ,give
more than five minutes. If on the other hand, as has been pointed out by Mr.
Mahavir Tyagi, there is any amendment which is a substantial amendment and
which goes beyond the decision of the Constituent Assembly in its previous
session, probably I might give a little more time for discussion. I might
allow some speeches on those amendments.
The Honourable Shri K. Santhanam (Madras : General) : Members should not make
speeches on merely formal amendments.
Mr. President : I hope that Members will not insist on delivering speeches
because they will remember, as I have already said, that we have got to finish
by I o'clock day after tomorrow. If they insist on making speeches on
amendments which are of an inconsequential or unnecessary nature, they will be
only taking up the time of the House which should actually be reserved for
discussion of the more important ones.
Pandit Thakur Das Bhargava (East Punjab : General) : Sir, the amendments of
the Drafting Committee leave one rather cold in respect of
some matters. The Drafting Committee has gone beyond its powers in putting
forth amendments which are against the considered verdict of the House. The
House defeated some amendments but those amendments have been re-
incorporated. My humble submission is that in the third reading it is beyond
the powers of the Drafting Committee so to arrange matters that the previous
amendments which were carried by the House are tampered with. My humble
submission is that those amendments which were defeated before and which were
the subject matter of discussion in the House should not be touched in the
third reading at all.
The Drafting Committee were only allowed to make formal and consequential
amendments and such amendments which were absolutely necessary. Necessary
amendment does not mean that they sit as a revising body over the considered
verdict of the House, and therefore my humble submission is that so far as
these amendments are concerned, they ought to be ruled out as inadmissible.
When the amendments come, it must be decided on merits whether those
amendments should be allowed or not.
Mr. President : As I have said, I shall consider each amendment on its 'merits
and Mr. Thakur Das Bhargava has not said anything which requires any further
reconsideration. What he has said is covered by what I have said already.
Shri H V. Kamath : Is Wednesday I o'clock absolutely final ?
Mr. President : Yes, it is final.
The Honourable Dr. B. R. Ambedkar (Bombay : General) : Mr. President, Sir. I
have to present the report of the Drafting Committee together with the Draft
Constitution of India as revised by the Committee under rule 38-R or the
Constituent Assembly rules. Sir, I move-
"That the amendments recommended by the Drafting Committee in the Draft
Constitution of India be taken into consideration."
Sir, I do not propose to make any very long statement on the report or on the
recommendations made by the Drafting Committee for the purpose of revising or
altering the articles as they were passed at the last session of this
Assembly. The only thing that I wish to say is that I would not like to
apologise to the House for the long list of corrigenda which has been placed
before the House or the supplementary list of amendments included in List 11.
In my judgment it would have been much better if the Drafting, Committee had
been able to avoid this long list of corrigenda and the supplementary list of
amendments contained in List 11, but the House will realise the Stress Of time
under which the Drafting Committee had been working. It is within the
knowledge of all the Members of the House that the fast session of the
Constituent Assembly ended on the 17th or October. Today is the 14th of
November. Obviously, there was not even one full month available for the
Drafting Committee to carry out this huge task of examining not less than 395
articles which are now part of the Constitution. As I said, the Drafting
Committee had not even one month, but that even is not a correct statement,
because according to Rule 38-R and other rules, the Drafting Committee was
required to circulate the Draft. Constitution as revised by them five days
before this session of the House.. A a matter of fact the Constitution was
circulated On the 6th of November, practically eight days before the
commencement of this session. Consequently the time available for the Drafting
Committee was shorter by eight days. Again, must be taken into consideration
that in order to enable the Drafting Committee to send out the Draft
Constitution in time, they to hand over the drift they had prepared to the
printer some days in advance to be able to obtain the copies some time before
they were actually despatched. The draft was handed over to the printer on the
4th of November. It will be seen that the printer bad ,only one day
practically to carry out the alterations and the amendments suggested by the
Drafting Committee. It is impossible either for the printer or for the
Drafting Committee or the gentleman in charge of proof corrections to produce
a correct copy
of such a huge document containing 395 articles with in one day.
That, in my judgment, is a sufficient justification for the long corrigenda
which the Drafting- Committee had to issue in order to draw attention to the
omissions and the mistakes which had been left uncorrected in the copy as was
presented to them by the printer on the 5th. Deducting all these days, it will
be noticed that the Drafting Committee bid barely ten days left to them to
carry out this huge task. It is this shortness of time. practically ten days,
which in my judgment Justifies the issue of the second list of amendment now
embodied in List 11. If the Drafting Committee had a longer time to consider
this matter they would have been undoubtedly in a position to avoid either the
issue of the corrigenda or the Supplementary List of Amendments, and I hope
that the House will forgive such trouble as is likely to be caused to them by
having to refer to the corrigenda and to the Second List of Amendments for
which the Drafting Committee is responsible.
Sir, it is unnecessary for me to discuss at this stage the nature of the
amendments and changes proposed by the Drafting Committee in the Draft
Constitution. The nature of the changes have been indicated in paragraph 2 of
the Report. It will be seen that there are really three classes of changes
which the Drafting Committee has made. The first change is merely remembering
of articles, clauses, sub- clauses and the revision of punctuation. This has
been done largely because it was felt that the articles as they emerge from
the last session of the Constituent Assembly were scattered in different
places and could not be grouped together under one head of subject-matter. It
was therefore hold by the Drafting Committee that in order to give the reader
and the Members of the House a complete idea as to what the articles relating
o an,, particular subject-matter are, it was necessary to transpose certain
articles from one Part to another Part, from one Chapter to another Chapter so
that they may be conveniently ground together and assembled for a better
understanding and a better presentation of the subject-mattcr of the
The second set, of changes as are described in the report are purely formal
and consequential, such as the omission of the words "of this
Constitution" which occurs in the draft articles at various places.
Sometimes capital letters had been printed in small type and that correction
had to be made. Other alterations such is reference to Ruler and Rajpramukh
had to be made because these changes were made towards the end when we were
discussing the clauses relating to definition. The other change may be
compendiously called 'necessary alterations.' Now those necessary alterations
fall into two classes, alterations which do not involve a substantial change
in the article itself. These are alterations which are necessary because it
was found that in terms of the language used when the articles were passed in
the last session. the meaning of some articles was not clear. or there was
some lacuna left which had to be made good. That. the Drafting Committee has
endeavored to do without making any substantial change in the content of the
articles affected by those changes. There arc, however, other articles where
also necessary changes have been made, but those necessary changes are changes
which to some extent involve substantial change. 'the Drafting Committee felt
that it was necessary to make these changes although they were substantial,
because if much substantial changes mere not made there would remain in the
article as passed in the last session various defects and various omissions
which it was undesirable to allow to continue, and the Drafting Committee has
therefore taken upon itself the responsibility of suggesting such changes
which are referred to in sub- clause (d) of paragraph2, and I hope that this
House will find it agreeable to accept those changes. As to the substantial
alterations that have been made, in regard to some of them sufficient
explanation has been
given in paragraph 4. and I need not repeat what has been said in the report
in justification of those charges.
Sir, I do not think it is necessary for me to add anything to the report of
the Drafting Committee and I hope that the House will be able to accept the
report as well as the changes recommended by the Drafting Committee both in
the report as well as in List II which has already been circulated to the
Members of the House.
Amendments of Articles
Mr. President: Dr. Ambedkar has presented the report and the motion now before
the House is that the amendments recommended by the Drafting Committee, and
the Draft Constitution be taken into consideration..........
Shri H. V. Kamath: I have got an amendment, Sir.
Mr. President: I think it is only a verbal amendment.
Shri H. V. Kamath: This is with reference to Rule 38-R and I shall take only
half a minute.
Mr. President: I shall be looking at the clock; take half a minute.
Shri H. V. Kamath: Sir, I shall not read the amendment* to the House. While
moving this amendment. I would only endorse the remarks made by my
*That in the motion, for the words "the amendments recommended by the
Drafting Committee in the Draft Constitution of India," the words
"the amendments to the Draft Constitution of India, as recommended by the
Drafting Committee under sub-,rule (1) of Rule 38-R of the Constitutional
Assembly Rules," be substituted.
honourable Friend Pandit Thakur Das Bhargava and state before the House that
so far as the amendments suggested by the Drafting Committee are concerned
they have more or less acted like, may I say, chartered liberties. I would
therefore request you, Sir, to be so good as to exercise your discretion
generously so far as the amendments suggested by us other than to those
recommended by the Drafting Committee are concerned. That is my only
Mr. President : You have not spoken anything about your amendment to this
Mr. Naziruddin Ahmad : May I know, Sir, whether the amendments include also
the huge number of corrigenda and whether they have also to be read as part of
the Constitution ?
Mr. President : Corrigenda are corrigenda and they are included.
Since Mr. Kamath has insisted upon moving his amendment, I would put his
amendment first to the vote.
Shri H. V. Kamath : Since it is more or less of a drafting nature, I do not
Mr. President : I put the motion moved by Dr. Ambedkar .
The question is :
"That the amendments recommended by the Drafting Committee in the Draft
Constitution of India be taken into consideration."
The motion was adopted.
Mr. President : We shall now take up the amendments. Preamble. There is no
amendment by the Drafting Committee to the Preamble and I cannot take up any
amendments to tile Preamble. Then, we go to article 1. There is an amendment
by Mr. Naziruddin Ahmad and by Mr. Kamath*. Mr. Kamath, do you wish to move
and do you require to make any speech ?
Mr. Naziruddin Ahmad : Sir, so far as my punctuation amendments are concerned,
I should rather leave them all to the draftsmen.
Mr. President : (To Shri H. V. Kamath) It is only a punctuation here also. You
will remember that you are taking the time of more important amendments.
Shri H. V. Kamath : I should like to know whether the Drafting Committee is
Mr. President : Nobody is accepting or rejecting any amendment.
Shri H. V. Kamath : Sir, the Draft as passed by the House reads, "India,
that is, Bharat The revised draft presented to the House says, "India,
that is Bharat That I do not think is what was intended' by the House when we
accepted article 1. What was meant was, India, that is to say. Bharat. That is
why two commas were inserted and the phrase was interposed. I does not mean,
"India, that is Bharat,". This is wrong English, so far as the
meaning intended is concerned. I think the original was perfectly correct and
it was absolutely wrong on the part of
the Drafting Committee to change the wording.
Mr. Naziruddin Ahmad : Sir, I should rather suggest that some of my formal
amendments may be put to the draftsmen and if they agree to accept, shall move
them; otherwise, I am not moving.
Mr. President : Let them consider and if they are inclined to accept, they
will accept them even without being moved.
*That in clause (1) of article 1, after the words that is a comma be inserted
and the camma after the word "Bharat" be deleted.
We now pass on to article 5. There is no amendment by the Drafting Committee
and these amendments do not arise.
Shri B.Das (Orissa : General) : I am not moving the amendment. (Amendment No.
Mr. President : It is covered by article 9.
Article 13 : Sri Raj Bahadur, amendment No. 33.
Shri Raj Bahadur : (United State of Matsya) : Sir, I move: "That in
sub-clause (a) of clause (3) of article 13.
(i) after the word 'having the words the force of law' be inserted;
(ii) after the word 'India' the words 'or any part thereof' be inserted ; and
(iii) the words 'the force of law' be deleted.'
It is obviously for the purpose of making the object of the article clearer
that I beg to move this amendment.
Mr. President : We pass on to article 14 : Mr. Naziruddin Ahmad.
Mr. Naziruddin Ahmad : Sir, I do not wish to move it formally; I only wish to
point out one or two things for the consideration of the draftsman. So far as
the definition of a State is concerned, in article 12 as well as in article 36
the word 'State' has been defined as "the State". That binds the two
words in a rather tight union. As a result of this, we have to use the
expressions, the State has this right, the State has that and so forth.
Remembering that the expression "the State" as defined in articles
12 and 36 includes not only the Government of India, but also the Government
of the Provinces, the Government of the States, District Boards and
'Municipalities, Local Boards, and Union Boards and others, there will be
hundreds of thousands of similar institutions which would be comprehended
within the expression "the State." As we have defined the expression
used in Part IV beginning with article 37 up to article 50. we have always
used the expression. "The State shall, etc."
The word "the State" would be really appropriate if there was only
one State to which we refer. But in view of the multiplicity of States which
would be meant and in order to enable us to use freely the expression-, 'this
State', 'that State', 'any State', 'every State' and so forth, in order to
give us full latitude to use any article or word that may suit the context,
the word 'the' should be separated from the definition. The words 'the', 'any'
or 'every' must depend on the context and should not be prejudiced by the
definition. do not want to move the amendment but, as I have suggested, this
is a matter of drafting and can be more profitably left over to the Drafting
Committee for consideration, and if they agree, then these things can be taken
Mr. President : Amendments Nos. 35 and 36 are not moved. We pass to article
:think No. 54 is covered by what you said just now, Mr. Naziruddin Ahmad ?
Mr. Naziruddin Ahmad : Yes.
(Amendment No. 55 was not moved.)
Mr. President : We pass on to article 22. Mr. Shibban Lal Saksena.
Prof. Shibban Lal Saksena (United Provinces : General) : Sir, in clause (4)
and clause (7) I have some amendments. I beg to move :
"That in clause (4) of article 22, for the words 'No law providing for
preventive datention, the words, brackets. letters and figure 'Nothing in
sub-clause (b) of clause (3)' be substituted;and at the end of sub-caluse (b)
of clause(4),the following be added:-
'authorising such longer detention."
My other amendment is :
"That in clause (7) of article 22, the words 'for a period longer than
than months be deleted."
I only want that the phraseology of clause (4) should be improved and in
clause, (7) I want that the words 'for a period longer than three months'
should be deleted. Parliament must have the power to make laws for shorter as
well as longer detention periods.
Mr. President : Mr. Saksena, as regards No. 82, does it not go against a
Prof. Shibban Lal Saksena : That means Parliament can make law for less than
three months or more than three months. I do not want to restrict the power of
Parliament only to periods above three months. I do not want the Executive to
use the power.
Mr. President : How will it stand if it is read along with clause (4) ?
Prof. Shibban Lal Saksena : It will read-
"Parliament may be law prescribe the circumstances under which and the
class or clause of cases in which A person may be detained under any law
providing for preventive detention etc."
What I want is that Parliament should have power to legislate authorising
Government to detain persons either for less than three months or more than
three months. According to this Parliament will not have power to make laws
for less than three months.
(Amendments Nos. 83 and 84 were not moved.)
Mr. President : We proceed to article 31.
(Amendment No. 115 was not moved.)
Mr. Naziruddin Ahmad : Sir, in connection with my amendment No. 116 I wish to
draw the attention of the House, the Drafting Committee and especially the
draftsman to the use of the word 'Government of India'. In fact this is to
distinguish this expression from Dominion of India'. I would submit that the
word 'Dominion of India' really covers the period from 15th August 1947 tip to
the 25th January, 1950. Before that we had the expression Government of
India', the expression 'Government of India' should be confined to Government
before the 'Dominion' stage came in. After the Dominion stage is over, I
submit that the expression 'Union Government' or the 'Government of the Union'
should be used. This would be in accord with what we have done. We have
already used "The Union of India' in article 300 clause (i) and in other
places. Then we have used in some articles the expression 'Affairs of the
Union.' We have also used in other places the expression 'the Union'. So we
have already described the Government of India as the Union. So I submit that
instead of using the expression 'Government of India', which would also
include the Government before the Dominion stage, there should be some
distinctive expression which may be fittingly described as the Union
Government or the Government of the Indian Union. We have already in article I
said that India shall be a 'Union' of States. So in the new set-up-things
instead of the expression 'Government of India', the expression Union
Government or 'The Government of Indian Union', or similar expression should
be used. I have suggested some amendments. only desire that this may be
considered by the drafting Committee.
Mr. President - No. 117-Mr. Sidhva.
Shri R. K. Sidhva : I understand that the word 'otherwise' as suggested by the
Drafting Committee covers the contention of my amendment. Therefore I do not
propose to move the amendment.
Mr. President : Then I come to amendment No. 118, standing in the name Mr.
Mr. Naziruddin Ahmad : Sir, with regard to amendment No. 118, it is merely a
drafting amendment, and I should leave it to the draftsman.
Mr. President : Then I come to article 34 which is a new article, and we have
a number of amendments to it. Mr. Das. That is for deletion.
Shri B. Das : Sir, I do not move it.
Prof. Shibban Lal Saksena Sir, I Want to move it.
Mr. President : You want to move for its deletion ?.
Prof. Shibban Lal Saksena : Yes, Sir, this article 34 is a new article. It
says that when martial law is declared, then Parliament will have the power to
indemnify the officers. I think that this new article should be ruled out of
order. it was never passed by the Assembly before. Secondly, I think the
provision of this article will encourage officers working in the martial law
area to commit excesses and hope for
indemnification by an Act of Parliament. Therefore, I say it is not proper.
Martial law whenever proclaimed, should be proclaimed according to the law
about it. It should not be permitted to go beyond the law. So I think this
article is not necessary and it should be removed from the Constitution, and
also as I said, it is out of order. I move :
"That article 34 be deleted."
Shri. Brajeshwar Prasad (Bihar : General) : May I speak on this amendment,
Mr. President : We shall have all the amendments first, and then Members can
Amendment No. 122, Mr. Kamath.
Shri H. V. Kamath : May I know move all the three amendments together ?
Mr. President : Yes.
Shri H. V. Kamath : Mr. President, Sir, I move -amendments Nos. 122, 123 and
"That in article 34, the words 'or any other person' be deleted."
"That in article 34, for the word 'order' the words 'public order' be
And the last one is No. 124 which says-
"That in article 34. for the words 'done under martial law' the words
'done by such person under martial law' be substituted."
Sir, at the very outset, let me make it clear that I would welcome the
deletion of any reference to martial law in the Constitution, as suggested by
my Friend Prof. Shibban Lal Saksena. There are sufficient provisions in the
Constitution for the maintenance of public order and peace and tranquility in
the country. We have also adopted Chapter I dealing with emergency provisions
in the Constitution. But once we accept, or assume that a situation may arise
when martial law will have to be proclaimed, then certain consequences follow.
There are certain acts done during the administration of martial law. We are.
all very well aware of the operation of marital law, and there are acts done
by persons in charge, or in authority which strictly under the law of the
Constitution may be illegal, and so those persons may have to be indemnified
later on so as to safeguard their position against any undue penalty or
punishment for acts done by them. It is with a view to this that I submit
these amendments to the House.
Article 34, as moved by the Drafting Committee, seeks to indemnify any person
in the service of the Union or of a State, and any other person also. I do not
desire that we should go so far as to indemnify any person, whoever he may be.
We may make an exception of persons who arc in the service of the Union or of
a State. But the change proposed is to insert a provision with regard to all
persons. Such a change is far too sweeping, and must not be allowed to find a
place in the Constitution. Therefore, I have moved this amendment, that the
words "or any other person" be deleted. If we indemnify at all, we
should indemnify only those persons who are in the service of the Union or of
a State during the administration of martial law in any area.
The other two amendments are, more or less, formal ones. The first one seeks
to bring article 34 in conformity with the phraseology of article 33, where
the words used are "public order" and therefore, I have suggested
that this article also may be on the same lines as article 33 and the word
"order" be replaced by the words "public order".
The last amendment follows from the wording of the first part of article 34.
When we refer to acts done by any person in the service of the Union or of a
State, it is necessary to make it specifically clear in the latter part of the
article as well, when we refer to the acts of such persons. Therefore, the
word "such" in my judgment, is necessary so as to avoid any
confusion with regard to acts done by any person other than the public
servants referred to in the first part of the article.
Sir I move amendments Nos. 122, 123 and 124 and I commend them to the House
for its earnest consideration.
Mr. President: As this is a new article altogether, the question arises
whether I should allow it to be moved by way of an amendment. I think in all
Constitutions, either written or unwritten, I do not know, but my idea is that
all Constitutions allow such indemnity Acts to
be passed after martial law has been in force; and difficulty might arise if
there was no specific provision in our Constitution for indemnifying acts done
during the period of martial law, if we do not have a specific provision here.
And therefore, I allow this amendment of the Drafting Committee.
As regards the other amendments which have been moved, they are now for
discussion. Members, if they wish, can speak now on this article as well as on
the amendments which have been moved.
Shri Brajeshwar Prasad: Mr. President, Sir, I rise to support this new article
will not traverse the ground already covered, or repeat the arguments in
favour of it, as you have, Sir, already admitted this article. The Drafting
Committee had the power to suggest the necessary amendments. Therefore, I
think that they have not gone out of the scope of their jurisdiction. I think,
that when a revolutionary situation has arisen in the country, then the
Government may be forced to resort to martial law. And extraordinary
situations cannot be tackled by the ordinary law of the land. It is only when
a revolutionary situation has arisen that martial law is enforced.
Revolutionary situations can only be tackled by revolutionary methods. The
danger that all officers will escape scot-free is not a real danger or a
serious danger at all. I say this because Parliament has got the power to
review such cases. If an officer has acted without jurisdiction, if he has
exceeded the requirements of the martial law, then Parliament will not
indemnify those officers. Parliament has got the full right to review the
conduct of these officers who have acted in an arbitrary manner. But it is
only in an arbitrary manner that you can tackle the situation which has arisen
in the country when martial law has been enforced. I support this provision
not merely on the ground that similar provisions exist in other Constitutions
of the world but also because it is a necessary and desirable, provision.
Having due regard to the facts of our political life, I heartily support this
Mr. President: Any other Member wishes to say anything about
Mr. Naziruddin Ahmad: No.
Mr. President: We shall now pass on to the next article. I think Dr. AmbedKar
will reply to this at the end.
We come to article 35, and Mr. Kamath's amendment. But that, I think, is only
a verbal amendment?
Shri H. V. Kamath: Yes, Sir I leave it to the discretion of the Drafting
Mr. President: Then we have to pass on now to article 47. Mr. Kamath and Mr.
Naziruddin Ahmad have their amendment No. 140 to this article.
Shri H. V. Kamath: As far as I am concerned, I shall leave it to the Drafting
Mr. President: So that is left over.
Prof. Shibban Lal Saksena: Sir, I beg to move:
"That in article 48, for the words 'improving the breeds of which and
draught cattle including cows and calves and for prohibiting their slaughter'
the words 'preserving and improving the breeds of cattle and prohibit the
slaughter of cows and other useful cattle, especially milch and draught cattle
and their young stock' be substituted."
Here again there is a substantial alteration in the original article as passed
by this House. Sir, the original article stated:
"The State shall endeavour to organise agricultural and animal husbandry
on modern and scientific lines and shall, in particular, take steps for
preserving and improving the breeds of cattle and prohibit the slaughter of
cows and other useful cattle specially milch and draught cattle and their
So the original article is that "the State shall prohibit the slaughter
of cows". The present article has been watered down. It says:
"The State shall endeavour to organise agricultural' and animal husbandry
on modern and scientific lines and shall' in particular, take steps for
improving the breeds of milch and draught cattle including cows and calves and
for prohibiting their slaughter."
So it does not say "That the State shall prohibit the slaughter of
cows." Here it says "It shall take steps to
improve the breeds of milch and draught cattle including cows and for
prohibiting their slaughter." Here it is said that it shall prohibit the
slaughter of cows and other useful cattle, especially milch and draught
cattle. This is a very substantial alteration and I do not think the Drafting
Committee was authorised to make such an alteration on such a fundamental
thing on which there were strong discussions and it was agreed to after a very
prolonged debate. I do not think anyone has the authority to change things in
this manner and to substitute the original. I appeal that the original should
be kept. It is out of order because the Drafting Committee was not permitted
to make any such alteration as in this article.
Mr. President : Pandit Bhargava, is not your amendment more or less covered by
the amendment of Prof. Shibban Lal Saksena?
Pandit Thakur Das Bhargava : It is partly covered but there are other things.
With your permission, as my amendment No. 142 is not exactly the same as Prof.
Saksena's, I beg to move:
"That in article 48, for the words milch and draught cattle including
cows and calves and for prohibiting their slaughter' the words 'cattle and
pohibit tile slaughter of cows and other useful cattle, especially milch and
draught cattle and their young stock' be substituted."
With your permission I also beg to move:
"That in article 48, for the words 'for prohibiting their slaughter', the
words 'prohibit the slaughter of such cattle' be substituted."
That in article 48, for the words 'and for prohibiting their slaughter, the
words 'and prohibit their slaughter' be substituted"
In dealing with this article I would first of all beg to remind the House that
this article was fairly hotly debated in this House. This article has the
sanction of the whole House and of the largest party in the Assembly.
Moreover, Sir, this article, if I am not encroaching upon any privilege, I may
say, is one which was approved by the Chairman of the Drafting Committee. The
original wording was quite different but we took good care to see that the
drafting was done by such hands that no one could possibly take exception to
it. Previously it was a much stronger one, but ultimately it was drafted in
this form. When it was debated by the House, full reasons were given why these
words were selected. My submission is that in a matter of this kind. when a
particular article has been passed, after being supported or opposed, there is
no reason why the Drafting Committee should tamper with tile wording of such a
section like this. Moreover, if the House will remember, there were many other
amendments moved in this House to this article. Seth Govind Das moved an
amendment from the religious point of view, but it was not accepted. My
submission is that every word in this article is to my mind a sacred one, in
this sense that it has got the imprint of the whole House. Secondly, I submit
that on the basis of this article, some of the Provincial Governments have
taken action. They have gone further and prohibited the slaughter of cows.
Therefore, when this article has practically been acted upon by some of the
provinces, it is not fair now to tamper with it.
Coming to the article which is sought to be amended as it is now before us I
would beg of you to consider it. Now the article runs:
"The State shall endeavour to organise agricultural and animal husbandry
on modern and scientific lines and shall, in particular take steps for
improving the breeds of milch and draught cattle including cows and
The original words were: ".. for preserving and improving the breeds of
May I submit that "improving the breeds of cattle" is different from
"preserving and improving the breeds of cattle. ..". It may be said
that no breed can be improved unless it is preserved but I think it is wrong
to think so.
It may happen that a breed has to be practically destroyed for the purposes of
improvement. It may be argued by some that cattle of a certain breed should be
destroyed so that there
might be subsequent improvement in regard to others. Now this is a matter of
very delicate importance.
Shri Brajeshwar Prasad: What about "prohibiting" ? It means
Pandit Thakur Das Bhargava: In times of famine it is the duty of the
Government to preserve certain breeds though it may not be improving them.
Therefore, these words have a special meaning and they should not be tampered
Now to turn to the point of Mr. Brajeshwar Prasad to which he has drawn my
attention. He says that the word "prohibiting" is there and
therefore it would include "preservation". If he reads into the
section he will find that this "prohibition" has been tampered with
in this way, the words now being:
"....... the breeds of milch and draught cattle including cows and calves
and for prohibiting their slaughter."
If this "their" refers to cows and calves, then what about bulls and
bullocks and buffaloes and he-buffaloes? If it refers to milch and draught
cattle, then the question will have to be gone into as to what is a milch
cattle. Then again "dry" cattle is not milch cattle. Then what is
draught cattle? There are bound to be difficulties about all this. In my
humble submission, a fair reading of article 38-A would mean that so far as
cows and young stock are concerned, there is absolute prohibition. The words
are "and shall prohibit the slaughter of cows." This usefulness of
the cattle relates to drought cattle. The useful cattle should not be
slaughtered. Now the question is what is a useful cattle? In the amendment the
word "useful" does not appear. The House remembers that the
Government appointed a Committee and the report of the Committee was accepted
by the Government. The Government is now committed to the preservation and the
prohibition of slaughter of useful cattle. There are Bills pending before the
Legislative Assembly in regard to these kinds of cattle.
If you compare the wordings, it would appear that in the original article it
".... take steps for preserving and improving, the breeds of cattle and
prohibit the slaughter of cows and other useful cattle, specialty
Now these words shall go away and be replaced by:-
"........ for prohibiting their slaughter". My humble submission is
that though there may not be a violent difference between the two, all the
same the emphasis on the word "shall" which made this directive
principle almost as an imperative article in the Constitution disappears. I
beg Of You not to tamper with it but allow it to remain in its present form.
The first thought which Dr. Ambedkar gave to this provision was a right one
and now if he wants to improve the wording .I submit the meanings also are
altered. In view of this, I would beg of the House not to tamper with this
article. It is a very delicate matter. We have practically substituted this
article for the article which other Members wanted from a religious point of
view. It is now simply a utilitarian measures but still a measure in which the
religious sentiments of crores of people are involved.
I would submit one word more in regard to amendment No. 144. The " and
their slaughter" are capable of more than one meaning. They -----refer
only to cows and calves, they might refer to milch and draught cattle. ----er
they refer to one or both meanings, it is objectionable in both ways. I would
beg of you to consider the more extensive meaning of the original section 38A
which includes both these meanings. No doubt if falls for short of the
expectations of the general populace but it was a measure on which the House
was agreed as a compromise. This compromise ought not to be interfered with.
Mr. President: Mr. Naziruddin.
Mr. Naziruddin Ahmad: I am not moving my amendment.
Mr. President: Does anyone wish to say anything about this article or the
Then we shall pass on to article 53. Amendment No. 151, Mr. Kamath.
Shri H. V. Kamath: Mr. President, I move, Sir, amendments Nos. 151 and 152.
151 to the effect-
"That in clause (i) of article 53, for words this
Constitution' the words 'the Constitution' be substituted."'
Then amendment No. 152 to the effect-
"That in clause (i) of article 53, after the words 'Constitution' the
words 'and the law' be added."
If the amendments moved by me were accepted by the House, this clause (i) of
article 53 would read as follows:-
"The executive power of the Union shall be vested in the President and
shall be exercised by him either directly or through officers subordinate to
him in accordance with the Constitution and the law."
This was the form in which we adopted this"article during the last
session of the Assembly. I see no reason why the changes that are being sought
to be made by the Drafting Committee should be at all made in this clause of
the article. I see no point whatever in the changes that have been suggested
by the Drafting Committee. Let us examine it a little more closely. If the
reference in this clause had been only to the President of the Union, then
perhaps there is some force in not referring to the law of the land, because
so far as the President is concerned he is bound to act under the
Constitution, and we have also a provision for impeachment of the President
for any violation of the Constitution. But during the last session these words
were specifically added-suggested by the Drafting Committee and accepted by
the House. What were those words?
"President......... either directly or through officers subordinate to
We fought against those words, we suggested that these words were absolutely
unnecessary, but the Drafting Committee had its own mind and carried its point
through and inserted these words which even now I feel are unnecessary. But
this phrase "through officers subordinate to him" has been accepted
by the House and if that addition stands then I for one feel that the law must
be specifically mentioned. The House will see that in clause (2) also of the
same article there is a reference to the supreme command of the Defence Forces
by the President and the exercise of the command shall be regulated by law. In
the Constitution itself we have left so many things to the lawmaking power of
Parliament. Our Constitution has not decided everything; so many things are
left to Parliament to be regulated by 'law, and therefore it is absolutely
necessary to say, when you refer to exercise of power through officers
subordinate, that it will be regulated by the Constitution and the law.
The first amendment is merely a verbal one, because I feel that whenever the
Constitution is referred to we need not specifically say "this
Constitution" every time; "the Constitution" means the
Constitution of India. I do not know why the Drafting Committee has tripped in
this fashion about this clause. I commend amendments 151 and 152 to the House
for its earnest consideration.
(Amendment No. 153 was not moved)
Mr. President: Does anyone wish to say anything about the amendments which
have been moved by Mr. Kamath?
Then we pass on to the next article No. 57.
Mr. President: Amendment No. 156*, Mr. Kamath.
Shri H. V. Kamath: That is merely formal, Sir, I leave it to the good sense of
the Drafting Committee.
Mr. President: Very well. Then we go to article 69. Amendments No$. 188 and
189, Mr. Kamath.
Shri H. V. Kamath: Sir, I move amendments Nos. 188 and 189. 188 is to the
"That in the form of oath or affirmation in article 69, the words
"as by law established" be deleted."
And No. 189-
"That in the form of oath or affirmation in article 69, for the words
'the duty upon which I am about to enter' the words the duties of the office
upon which I am about to enter be substituted."
*That in article 57, the words 'subject to the other provisions of this
Constitution', be deleted.
Taking the article as suggested by the Drafting Committee, I think the changes
suggested by me are very necessary. Taking the first amendment first, the oath
as suggested by the Drafting Committee refers to the
"Constitution of India as by law established". It is wholly
redundant to say that the Constitution is established by law. As a matter of
fact the law flows from the Constitution and not vice versa. We adopt the
Constitution and whatever laws we may make flow from the Constitution
subsequently. This is a supreme, sovereign Assembly and certainly this not
necessary for us to say that the Constitution that we have enacted here has
been established by law.
The Honourable Shri K. Santhanam : May I point out to the honourable Member
that the Third Schedule uses this phrase?
Shri H. V. Kamath: May I point out to Mr. Santhanam that the article about the
oath of the President does not mention "the Constitution by law
The Honourable Shri K. Santhanam: It is different altogether.
Shri H. V. Kamath: It is quite the same, in my judgment. Mr. Santhanam may
differ but if he refers to the oath for the President in article 60, he will
find this reference to "the Constitution by law established" is not
there. The Constitution is not established by law. The Constitution is there
for what it is worth. If Mr. Santhanam does not see this fine point, I am
sorry for him. In article 60, the oath for the President reads:-
"I....... will faithfully execute the office of President...... and will
to the best of my ability preserve, protect and defend the Constitution and
"And the law" is a different matter, but the Constitution is not
established by law. That is my point.
The Drafting Committee may look into the amendment and I hope they will see
their way to accepting amendment No. 188, because there is a distinction
between "the Constitution established by law" and "the
Constitution as framed by a sovereign Assembly." It is redundant to say
that it is established by law.
As regards my second amendment I am sorry for the bad English used by the
Drafting Committee. The Committee is composed of several experts, legal,
constitutional and linguistic. I fail to understand why that Committee made
such a mistake, so far as the English language is concerned. The House win see
that a person enters upon "the duties of his office." He does not
enter upon his duty. It is the "duties of the office" that should be
referred to. If the House will turn to article 71 clause (2) the English used
there is correct"duties of the office of President or Vice-
President". I will just refer to another previous article, article 68,
last part of clause (2) where the words used are "from the date on which
he enters upon his office". The correct English is the "duties of
the office upon which he enters" and I think all sensible persons will
agree that that is correct English. If my amendment is accepted by the House
the form of oath or affirmation will read as follows:
"I, A.B., do swear in the name of God that I will bear true faith and
allegiance to the solemnly affirm
Constitution and that I will faithfully discharge the duties of the office
upon which I am about to enter."
I move the amendments, and commend them to the acceptance of the
Mr. President: As Mr. Santhanam has pointed out, the same expression occurs in
Shri H. V. Kamath: That will have to be changed consequentially.
Mr.Naziruddin Ahmad: Sir, I beg to move:
"That in clause (2) of article 71, for the words 'the date of the
decision', the words the time of the decision' be substituted."
Sir,this amendment deals with the termination of the tenure of' office of the
President by reason of the setting aside of his election by the Supreme Court.
The question is whether the tenure of office ends with the date of the
decision or the time of the decision. If the decision is given at twelve
o'clock, it should be in accord reason and logic that the President should
function up to 12 o'clock and cease to be the President after that hour. If we
allow the language to remain as it is, it would mean that if the decision is
passed at twelve o'clock then the President ceases to function with effect
from the previous midnight. The effect of that would be
to invalidate all acts done by the President from the midnight of the previous
night up to twelve o'clock.
The Honourable Shri K. Santhanam: There is already an amendment to that effect
Mr. Naziruddin Ahmad: The difficulty with these amendments is that most of
these amendments have been practically taken from the amendments of Members. I
am of course interested in the correction, but there has been wholesale
'lifting' of amendments of Members and their being passed on a,-; those of the
Drafting Committee. I do not grudge them this distinction. This is not the
first time that this has happened. I have been hinting it all through the
second reading stage. They will not openly accept our amendments, but move
them as their own.
Mr. President: I do not think the Drafting Committee will grudge any credit to
other Members for their amendments.
Prof. Sibban Lal Saksena: Sir, I beg to move:
"That clause (3) of article 77, be deleted."
This again is a new provision, which is an infringement on the responsibility
of the Ministers and should not be allowed to be there. This is either
redundant or mischievous and should not be there.
Shri R. K. Sidhva: Mr. President, Sir, I beg to move:
"That in clause (3) of article 77, for the word 'President' the words
'Prime Minister' be substituted."
Sir, this article relates to the conduct of Government business and Government
business means the functions of Ministries. The Head of the Ministries is the
Prime Minister, and while I know that all orders are made in the name of the
President, this particular article has nothing to do with the President. It is
the internal affairs of the Ministry for which the Prime Minister, in
consultation with the Ministry, itself, is responsible. Therefore, the word
"President" should be substituted by the words "Prime
I do not dispute the fact that under law all the orders are made in the name
of the President. But I do make a difference in this for the reason that this
has nothing to do absolutely with the rules relating to the internal working
of the Ministry and therefore Parliament has no voice in this. Of course
Parliament can criticise it. But this is an internal matter for which the
Minister is responsible and therefore, the Prime Minister should make rules,
in consultation with the Ministry and not the President. The Prime Minister
should be the signatory to that.
Shri H. V. Kamath: Mr. President, Sir, I move amendments No. 203 and 204.
"That in clause (3) of article 77, for the word 'shall' the word 'may',
"That in clause (3) of article 77, for the words 'more convenient' the
words 'efficient and convenient' be substituted".
"That in clause (3) of article 77, the word 'more' be deleted."
I do not agree with my Friend Professor Saksena that there is no need for a
provision of this kind. It is necessary so far as the transaction of the
business of the Cabinet is concerned that there should be certain rules. And
who is to make these rules? The question is whether Parliament should make it
or the President. The Rules of Business should be left to the President,
acting upon the advice, as the Constitution has laid it down, of the
Therefore, there is no force in Professor Saksena's amendment, because when
the word "President" is mentioned, it always means President acting
on the advice of his Council of Ministers.
Prof. Shibban Lal Saksena: But there is nothing to that effect in the
Shri H. V. Kamath: That point was raised by me in the last session, and Dr.
Ambedkar and Shri Alladi Krishnaswami Ayyar assured us that there was no
necessity for a specific provision of that kind.
As regards the amendment moved by me for substituting 'may' for 'shall' the
reason is that 'shall' is somewhat inapt there. As we have 'may' in several
other articles, we may have it here also. It has often the force of 'shall'.
'May' is more appropriate here and conveys the sense of the article much
My second amendment. No. 204,
seeks to change "more convenient" into efficient and
convenient". I believe this clause has been bodily lifted from the
Government of India Act which fortunately or unfortunately has served as a
guide and beacon to the wise members of the Drafting Committee on almost all
occasions. They have told us that such and such is the language used in the
Government of India Act and asked us whether we dare sit in judgment upon the
English used by Sir Samuel Hoare and his cohorts: and who are we, mere
Indians, to find fault with their English? It is now, however, admitted all
over the world that Indians are better linguists than Englishmen. There is a
story that a certain eminent person in England once said that there were only
two persons in the world who spoke perfect English, and they were Indians.
This was said some years ago. (Shri R. K. Sidhava: Who are they?) As Mr.
Sidhva seems to be inquisitive about their names, I may say that the reference
was to the late Srinivasa Shashtri and Sarojini Naidu. When this is the case,
if Indians speak perfect English, why should we swear by the English of the
Government of India Act and take it as one hundred per cent. correct? It would
be wiser to correct the English found there and it would be more sensible if
we say instead of "more convenient", "efficient and
convenient". It is admitted on all hands that there has lately been some
deterioration in efficiency. Let us therefore resolve that we will not merely
arrange for convenient transaction of business, but also for efficient
transaction of business. With these words I move these two amendments and
commend them to the House.
Mr. President: We will now pass on to article 90, Amendment No. 215.
Mr. Naziruddin Ahmad: I wish to move amendment No. 214.
Mr. President: That does not really arise.
Mr. Naziruddin Ahmad: Sir, I am not moving amendment No. 214. I want merely to
explain an anomaly. I only wish to point out that the word 'the' has been
misused in a large number of cases. In many cases where we speak of the Deputy
Chairman, the Chairman or the Speaker and so on, we have not uniformly used
the word 'the'. I have tabled amendments to make them uniform. That may be
taken into account.
I am not moving amendment No. 215.
Mr. President: We will now take up article 96.
Shri H. V. Kamath: Sir, I move:
"That in clause (2) of article 96, for the words 'and shall,
notwithstanding anything in article 100, be entitled to vote only in the first
instance on such resolution or on any other matter during such proceedings but
not in the case of equality of votes', the words 'but, notwithstanding
anything in article 100, shall not be entitled to vote at all on such
resolution or on any other matter during such proceedings' be
My next amendment which I move reads thus:
"That in clause (2) of article 96, for the words and figure anything in
article 100' the words and figure 'anything contained in article 100 be
My second amendment is merely verbal and I leave it to the good sense of the
Drafting Committee to deal with it as they deem fit or necessary. But the
first amendment (227) is a consequential and substantial amendment. Clause (2)
suggested by the Drafting Committee is new. There has been some distinction
made between the procedure for the removal of the Speaker of the House ,of the
People and the procedure for the removal of the Chairman of the Council of
States. The Chairman of the Drafting Committee has made no speech before the
House today why this distinction has been sought to be made.
If the House will turn to article 292 (2), honourable Members will find that
so far as the procedure for the removal of the Chairman of the Council of
States is concerned, he is not entitled to vote at all on a resolution for the
The Honourable Shri K. Santhanam: May I point out that the Chairman is not a
member of the Upper House? He is the Vice-President.
Shri H. V. Kamath: The Vice-President of the Union is Chairman. On merits also
I do not see why when there is a vote of censure
or no-confidence, or other resolution seeking to remove him from office, he
should be given the right to vote at all.
Shri T. T. Krishnamachari (Madras : General): His vote is not being taken
Shri H. V. Kamath: Mr. Krishnamachari may reply to the debate later on. He
need not interrupt me unnecessarily.
When there is a resolution in the House for the removal of the Speaker, the
Speaker can be present in the House, he can take part in the proceedings, he
can defend himself but when it comes to the matter of voting it is absolutely
against all canons of propriety and justice that he should vote. Certainly he
can defend himself, but to allow him to vote is very unfair. The Drafting
Committee may know better, but so far as I know, a Speaker who is sought to be
removed from his office must not be given the right to vote. Supposing there
is a close tie in the first instance, 55 and 56, the Speaker may by his vote
re-instal himself' in office, which is certainly not intended by the article.
It' the House is divided in that fashion, the Speaker by his single vote, by
his own vote in the first instance, can re- instal himself in office, which
certainly the House does not want to happen. Therefore I ask, Sir, that the
Speaker should be divested of his vote during the proceedings for his removal
from office. I move my amendment and commend it to the House for its serious
(Amendment No. 229 was not moved.)
Shri R. K. Sidhva: Mr. President, Sir, this article refers to the discussion
of the conduct of the Speaker in Parliament. Therefore, the new clause (2) is
perfectly correct. Ordinarily the Speaker has no right to speak or take part
in the proceedings of the House, but when his own conduct is being discussed,
it is only fair that he should be given an opportunity to clear his own
conduct, and therefore clause (2) is correct. I only want, Sir, a small change
in the third line. I want to see that the convention that the Speaker in other
cases shall not speak and shall not take part in the proceedings of the House
be maintained. The clause says "shall have the right to speak in, and
otherwise to take part in the proceedings of, the House of the People while
any resolution for his removal, etc." I want that the words "only
when" should be substituted for the word " while". I want to
make it more emphatic. It is a very healthy convention that the Speaker shall
not speak and shall not take part in the proceedings of the House except when
his own conduct is under discussion.
Mr. President: It means that as it is.
Shri R. K. Sidhva: If that is so then it is all right. As regards voting, Mr,
Kamath said that the Speaker should not have the right of voting. I think he
must have the right of voting. After all, he is a member of the House and he
should be allowed to vote in the first instance, but on the second voting he
should not exercise his vote. He must have one vote.
Mr. President: We pass on to article 100. Amendment No. 231.
Shri T. T. Krishnamachari: In view of the Drafting Committee's amendment No.
452 in the Second List, honourable Members may please consider whether it is
necessary to move their amendments.
Mr. President: As regards the amendments of which Mr. Kamath has given notice
with reference to article 100, Mr. Krishnamachari has pointed out that there
are certain amendments with regard to it which are sought to be moved by the
Drafting Committee. They are in the Second List No. 452, and in view of those
amendments perhaps it may be unnecessary for you to move yours.
Shri T. T. Krishnamachari: Many of them can be fitted into that except the one
Mr. President: Mr. Kamath, if you wish to move yours, you are at perfect
liberty to move them. It is only pointed out that it might not be necessary
for you to move them. All right, move them. I think it will save time if you
Shri H. V. Kamath: Sir, I move amendments Nos. 231, 234, 235 and 238 of this
" That in clause (1) of article 100, for the words 'other than the
Speaker' the words
other than the Chairman or Speaker' be substituted."
"That in the second para of clause (1) of article 100, for the words
'acting as such,' the words 'acting as Chairman or Speaker' be
"That in the second para of clause (1) of article 100, for the words 'in
the case of' the words 'in case of' be substituted."
"That in clause (3) of article 100, for the words 'until Parliament by
law otherwise provides. The quorum shall, be one-tenth of the total number of
members of the House.' The following be substituted as second para of that
'Until Parliament by law otherwise provides, the quorum shall be one-tenth of
the total number of members of the House."'
Amendment No. 235 is merely verbal with regard to the article "the".
I leave it to the consideration of the Drafting Committee to be dealt with at
the proper stage. Amendments Nos. 231 and 234 go together. They are similar
and if the House will compare the draft agreed to in the second reading with
the draft now presented, they will see the difference. I do not know whether
it is a printer's devil or something else or whether it is deliberate. Clause
(1) of this article 100 as now presented to the House, in the last part
thereof, refers lo "Other than the Speaker or person acting as the
Chairman or Speaker."
The Honourable Shri K. Santhanam: He is not a member and so he is not given
Shri H. V. Kamath: Is it the position that when the Vice- President act&
as the Chairman of the Council of States, he has no vote at all ?
Shri L. Krishnaswami Bharathi (Madras: General): Except the casting vote as
Shri H. V. Kamath: Then it is all right.
I come to amendment No. 238. Mr. T. T. Krishnamachari has just now told us
that the Drafting Committee has also thought over the matter and after
bestowing due consideration on this clause they have suggested an amendment on
the same lines. I have no desire to withhold from them the credit that is
their due for the hard labour they have put in, and if they want the credit
let them take it, but as the amendment stands in my name, I move it formally
and commend it for the acceptance of the House.
Mr. President: The wording is somewhat different, but the substance is the
same. However, I take it as moved. No. 232 standing in the name of Mr.
Naziruddin Ahmad is a formal amendment.
(Amendment No. 232 was not moved.)
Mr. Naziruddin Ahmad: Sir, with regard to amendment No. 233, I wish to make
this observation that article 100 has four different paragraphs. The first
paragraph is marked as clause (1), the second paragraph does not bear any
number at all, the third paragraph is No. 2 and the fourth paragraph is No. 3.
I submit that paragraph 2 which is unnumbered is a very unusual thing in a
legislative enactment. All paragraphs are either marked as articles or clauses
or in the case of ordinary Acts as sections and sub-sections. It has never
happened in my experience that a complete paragraph remains without any
number. The object of numbering them is to identify them. Unless we number the
second paragraph as No. 2, it will be difficult to refer to that paragraph in
any judgment or any book or argument. One will have to say 'paragraph
following clause (1)'; in order to obviate that I have suggested that
paragraph 2 should be marked as clause (2) and the other paragraphs are re-
numbered accordingly. This has also occurred in article 189. Sir, I formally
move the amendment.
"That in article 100, the second para of clause (1) be numbered as clause
(2) and clauses (2) and (3) be renumbered as clauses (3) and (4)
Shri Raj Bahadur : My amendment No. 236 is covered by amendment No. 452 of the
Drafting Committee. Let the credit for it be entirely theirs, but the pleasure
(Amendments No. 237 and 239 were not moved).
Shri R. K. Sidhva: Sir, my amendment reads thus:-
"That in clause (3) of article 100, for the word 'one-tenth' the word
one-sixth' be substituted."
Sir, I am referring to clause (3) in respect of quorum. We had discussed this
matter threadbare in the last session and after mature consideration the House
came to the decision that there should be one-sixth as the quorum in either
House of Parliament. Now, Sir the Drafting Committee suggests one-tenth. My
point is that in the provisional Parliament with a House of 300 one-tenth
would mean 30 members only and 50 members in a House of 500 thereafter. I ask
in all humility, do the members of the Drafting Committee want, in the name of
35 crores of people, laws to be made by 30 people ? This is most unfair. It
may be that in the House of Commons there is a very small number compared with
the 600 members of the House of Commons. That may be so, Sir. Some good laws
of the House of Commons we have imitated and copied, but if there is a bad
law, I do not want to copy it. On the contrary, you are telling the Members
that they may remain idle, they may come here or they may not come and the
House will manage with 50 or 30 Members. I do not want to cast any reflection
upon any Member but I think it is most unfair that we should lay down such a
small number for the conduct of business. On the ,contrary, there must be such
a provision that Members should be asked to realize their duty and attend all
the sessions, particularly when laws are made, and 1, therefore, contend that
we should not be a party for putting in the Constitution a clause that there
should be only 50 members in a House of 500 to make laws. That is not correct.
Dr. B. Pattabhi Sitaramayya (Madras: General): The rule does not say that
there should be only 50 members.
Shri R. K. Sidhva : It comes to that. We have our own experience also. I do
not say that it says so. Many times we have seen this happening ourselves. May
I ask how many members are present today ? My honourable Friend, Dr. Pattabhi
Sitaramayya, knows it very well. When the Members are not there, we know the
difficulty of having to hunt for them.
Dr. B. Pattabhi Sitaramayya : We do not want to put a premium on idleness and
Shri R. K. Sidhva: The Members should also realize their duty and attend all
the sessions. I do not think there should be a clause necessary to make them
idle or not to attend the session. They have to discharge their respon-
sibilities for they are elected by the people. They must also feel a sense of
responsibility. 1, therefore, contend that we should have a reasonable number
for conducting the business of the House. I do not want 600 members to be
present ; I do not want 500 members to be present; I do not want 250 members
to be present. I only want a reasonable number, i.e., 80 members to be
present. Is that not fair ? I will ask my honourable Friend, Dr. Pattabhi
Sitaramayya, whether he will be satisfied with 50 members. I know he is not
the only member. I ask him-out of 500 members is 30 a sufficient number ? It
is no use quoting the House of Commons. This means 50 members in the permanent
Parliament, but 30 members in the provisional Parliament and we have 300 and
odd in the Provisional Parliament at least. The next year will be a year of
great events and we shall provide in the Constitution that 30 members in the
provisional Parliament will make laws. I express my feeling very strongly on
this matter and if there is going to be a disqualification on the members for
not attending session let it be there. Let there be a clause that those who do
not attend regularly will be disqualified. If the Drafting Committee feels
that there should be such a thing, we could appeal to them to attend. Let the
members also show a sense of duty. After having been elected they should not
be so careless or negligent of their duty that is imposed upon them by the
people in the constituency from which they are returned. 1, therefore, feet,
Sir, that the amendment that I have moved is an amendment. which was discussed
and passed in the last session. It may be that because we feel there is the
difficulty in getting a sufficient number in the House, a small number is
suggested. I say on the contrary it is the greater reason, and one or two
bring their lack of responsibility to the notice of the public. They cannot
remain absent for all time. They have to explain to the people and if once or
twice the House is adjourned, wisdom will dawn upon them and they will attend
the House more regularly for conducting the business for- which purpose they
are returned. I commend my amendment for acceptance of the House.
Shri Brajeshwar Prasad: Sir, I was just thinking what will happen if there is
a walk-out from the House. We have not visualized all the political
possibilities in the country. In case of a walk-out, the Constitution will
come to an end. In order to have a smooth sailing, it is necessary that a low
quorum should be fixed. It does not prevent the Members of the House from
coming and attending. We are not passing any law to the effect that only 30
members should attend the meeting of the Legislature. We are merely fixing the
quo- rum. If we want that there should be no deadlock, we should have a low
Dr. P. S. Deshmukh (C. P. & Berar : General): Mr. President, Sir, I
support the suggestion made by my honourable Friend, Mr. Naziruddin Ahmad,
that all the paragraphs should be numbered.
There is one more suggestion I want to make and that is that the last portion
of this article that "the quorum shall be one-tenth of the total number
of members of the House" should precede clause (3), because in clause (3)
we are determining what would be the consequences of want of quorum. As the
article stands what is to be the quorum follows this. I think that is putting
it in a wrong way. We should determine the quorum first and then the
consequences should be stated. I think this is a small suggestion which should
Mr. President: That has been adopted in amender No. 452.
Dr. P. S. Deshmukh : Secondly. I would supportely honourable Friend, Mr.
Sidhva, in his contention that the quorum should be one-sixth and not
Mr. President: The House will adjourn now; we sit again at 3 o'clock.
The Assembly then adjourned for Lunch till 3 p.m.
The Assembly re-assembled after Lunch at 3 P.M., Mr. President (The
Honourable- Dr. Rajendra Prasad) in the Chair.
Mr. President : We shall now take up the amendments to the remaining articles.
Shri Jaspat Roy Kapoor (United Provinces: General): My I peak a word on
Mr. President : Yes.
Shri Jaspat Roy Kapoor: Mr. President, I am tempted to speak on the amendment
relating to the fixation of the, quorum by the timely warning which the
ringing of the bell has just given us proclaiming that there was no quorum in
the House and inviting people to rush to the House to make up the quorum. I
have also been provoked to speak on this subject by the vehemence with which
my honourable Friend, Mr. Sidhva, has spoken on the subject desiring that the
quorum should not be reduced from one-sixth to one-tenth. The heat and
vehemence with which he made his speech would make one feel as if an attempt
was being made to reduce the powers and privileges and rights of the Members
of this House, which is not a fact. The suggestion contained in the amendment
that the quorum should be reduced is a very wise, necessary and a useful
suggestion which must be accepted. It is based on our past experience not only
in this House but also in the other House when we sit as the Dominion
Parliament. It appears to me that all this experience has been wasted on my
honourable Friend, Mr. Sidhva.
Shri R. K. Sidhva: Is that a creditable experience ?
Shri Jaspat Roy Kapoor: That is an experience which should make us wiser and I
do not think there is anything detestable in it either for the members or to
the House. I think members should not be expected to come and be in at-
tendance here all the time when the Parliament is sitting, whether they are
interested or not in the particular subject that is being discussed on a
particular day or time. It would be sheer waste of time of those Members and
would be also unnecessarily taxing the tax-payer. I think that Members should
be expected to
attend this House only when they feel interested in the particular subject
which is being discussed and otherwise they might profitably employ their time
elsewhere in more profitable and useful engagements-not necessarily personal
engagements-but engagements for the benefit of the country. Why after all is
it expected that all the 500 Members should keep on sitting here from morning
to noon and noon to eve all the year round or for a major part of the year ?
For I think, during the next two years at least and may be even thereafter, if
we have many Members of the views of Mr. Sidhva for Mr. Sidhva has been
frequently pressing that Parliament should be sitting for much longer days or
period -then for eight to ten months in the year Parliament would be sitting;
and to expect 500 Members to be spending all the time here whether they ,are
interested or not in the various subjects that come up for discussion, is to
ask them to neglect the more important duties.
Members who come here as representatives of the people will be all responsible
persons who will have duties to perform, not only here in Parliament, but
outside also, in the political sphere, in the country, and I should have
thought that we would expect them to devote as much time as possible to
constructive work in the country, to look after as many public institutions in
the country as possible, rather than come here and wait here and merely be
silent spectators of things in which they may not be interested. This
amendment which suggests that the quorum should be reduced to one- tenth does
not encroach on the rights and privileges of the Members. Mr. Sidhva and any
other member who wishes to occupy, as much time of the House as he likes, can
very safely do so. Any member who wants to inflict as many speeches as
possible, or put as many questions as possible or bring in as many amendments
as possible, or make speeches of any length or of any quality-good, bad and
indifferent-will always be at perfect liberty to do so. But why should any one
expect that when he is addressing or occupying the time of the House, he
should always have a very full House ? While he may enjoy that privilege, he
cannot always have the satisfaction of having a crowded House, and I say that
it is very necessary, both from the point of view of the Government, from the
point of view of the tax-payer and from the point of view of the Members too,
and from the point of view of solid substantial work for the country, that the
quorum should be fixed at as low a figure as possible. It is so from the point
of view of the Government, because it will be very embarrassing if any
legislation is delayed for want of quorum. It is so from the point of view of
the tax- payer, because if all the Members keep on attending all these
sessions, it will mean a heavy expenditure in the shape of daily allowance,
and also from the point of view of the Members, as I have already said, they
should do as much constructive work outside the Assembly as possible, coming
to the Assembly only when they are interested in particular subjects which may
be before the House.
Dr. P. S. Deshmukh : Or go to Chandni Chowk. (Laughter.) Shri R. K. Sidhva:
Shri Jaspat Roy Kapoor: Dr. Deshmukh can go to Chandni Chowk or to any other
more interesting place where his attractions lie; but then, why should all
members be in Delhi all the time ? They may keep themselves busy in their
respective places, and do more substantial, constructive, political economic
and social work, rather than waste their time here. Therefore, I submit that
the suggestion made to reduce the quorum from one-sixth to one-tenth is a very
wise and very useful suggestion and must be accepted.
(Some Members rose.)
Mr. President: I do not think this simple amendment deserves so many speeches.
Members know all about it, and they can either vote it down or vote for it. So
we now go to article 128, and Pandit Thakur Das Bhargava's amendment No. 288.
(Amendment No. 288 was not moved).
Mr. President: Then amendment No. 289 of Mr. Kamath.
V. Kamath: Mr. President, I move:
"That article 128 for the words 'the President may by order' the words
'Parliament may by law be substituted."
If my amendment is accepted, the article would read as follows:
"Notwithstanding anything in this Chapter, the Chief Justice of India may
at any time, With the previous consent of the President, request any person
who has held the office of a Judge of the Supreme Court or of the Federal
Court, to sit and act as the Judge of the Supreme Court, and every such person
so requested shall, while so sitting and acting, be entitled to such
allowances as Parliament may by law determine.......... etc., etc."
The article corresponding to this in the Draft Constitution as agreed to by
the Assembly at the consideration stage is article 107, and the interpolation
now made consists of the words--"be entitled to such allowances as the
President may by order determine." If the House will turn to article 125,
clause (2). my honourable Colleagues will see that that clause lays down that
Parliament may by law determine the privileges, allowances and rights in
respect of leave of absence, pension etc. which a Judge of the Supreme Court
shall be entitled to. But here-of course this is a temporary measure, I
realise that but here the matter is left to the President of the Union to
regulate. I do not see why this matter also could not be left in the hands of
Parliament, to determined by law. Parliament may provide that when Judges of
the Supreme Court or the Federal Court, or retired judges-the articles deals
with retired judges-when such persons are asked to or requested to sit and act
as Judges. of the Supreme Court, though they may not be deemed Judges of the
Supreme Court, still Parliament may determine what allowance they will be
entitled to. There will be no difficulty for Parliament to legislate in this
matter. It can legislate generally as to what allowances the Judges shall be
entitled to receive. Instead of the President doing it, Parliament may do so.
With these words, Sir, I commend my amendment to the House.
Pandit Balkrishna Sharma (United Provinces: General): Sir, if Mr.
Krishnamachari would be good enough to enlighten us on the point, it would
hell> us. My point is that we are told that in the future Constitution, we
have abolished the office of additional Judges or temporary judges. Then how
does this, article 128 correspond with that decision of ours, or that
intention, if that in tention be in the Constitution that additional judges
should be abolished? In that case, how will this article stand.
Mr. President: It is not a case of additional Judges at all. A retired Judge
may, for a temporary period, be requested to act for a particular period or
for a particular case. It is a retired Judge and not an additional Judge at
all. A person who has acted and held the post of Judge of the Supreme Court or
Federal Court, a person like that, may be requested to attend.
(Amendment No. 290 was not moved.)
(Prof. Shibban Lal Saksena rose.)
Mr. President: We have to finish all the amendments in List 1, and those that
are not moved, may have to be left over altogether.
An Honourable Member: Will they lapse ?
Mr. President : Yes. All these amendments which are in List I should be moved
in the course of the day, and therefore I have been suggesting from the very
beginning to Members to be as short as possible and not to insist on speaking
or even moving amendments which are not of substance.
Prof. Shibban Lal Saksena: I wanted this thing to be deleted because it the
President is permitted to fix the allowances of the Judges, it means they are
subservient to the President and to the Executive. This is most undesirable.
If Parliament does it, it is a different matter.
Sir, I then move:
"That sub-clause (c) of clause (1) of article 145 be deleted and before
clause (1) of article 145, the following be inserted:-
'The Supreme Court shall make rules for regulating the practice and procedure
of the appropriate proceeding relating to the enforcement of rights
conferred under Part Ill.' and the subsequent clauses be renumbered
Part III deals with fundamental rights. According to you, the rules and the
procedure of the Court will be made by the President. I want that the
Fundamental Rights should be within the purview of the Supreme Court. I have
therefore put that this clause (c) should be deleted and that it should be
quite independent and should come before it. This is most important.
Fundamental Rights should not be within the power of the President to approve
Mr. President : But your amendment goes against the previous decision.
Prof. Shibban lal Saksena: No. It is absolutely new. This is clause (c) of
Mr. President: No. It is clause (b) of the article.
Prof. Shibban Lal Saksena: This is clause (c) on page 58.
Mr. President: I see: you are referring to (c).
Pandit Thakur Das Bhargava: Amendments 308 and 309 are practically the same. I
wish to speak on them. Originally I sent in an amendment to the Constitution,
which appeared to the last of amendments as 109A, the first part of which ran
"The Supreme Court shall have, in respect of the enforcement of
Fundamentel Rights generateed by the Constitution jurisdiction and powers to
determine and regulate the manner and method of the appropriate proceedings
mentioned in section 25 of the Constitution."
At the time this was moved, I requested you to hold it back and it was
unfortunate that this amendment was ruled out by you on the last day of the
second reading. I am glad that the Drafting Committee his been pleased to
accept the principle which I wanted to embody in the second reading of the
Bill. Though of am thankful to them for this rule (c), I must say that it is
in its present form soulless. It is a mere shelf. If you kindly see the whole
scheme of this Constitution, it will appear that these fundamental rights are
of such a nature that they curtail the rights of the Executive as well as the
Legislature. The Legislature as well as the Executive cannot temper with these
rights, and in these rights, in my own humble opinion, resides the sovereignty
of the common man. As long as these rights are enforced, every man is safe
from every kind of tyranny. Therefore, I attach the greatest value to these
Fundamental Rights. But now that these new provisions are there, we do not
know how these rights will be worked. It is true that the Supreme Court has
been invested with the jurisdiction to enforce these rights. Yet we have not
yet determined how and in what manner the Supreme Court shall give effect to
these rights. These rights are of a very peculiar and a very imperative
character, and I do not know in regard to the jurisdiction of the other courts
whether in regard to stamps or writs, etc., what course will be adopted by the
Supreme Court. But the Supreme Court has been given power under article 25 to
enforce these rights. As a matter of fact, what is given as an absolute right
here is being taken away in the shape of power being given to frame rules. The
Supreme Court alone should have the power to frame these rules. If this power
is vested in the Legislature or the approval of the President is made
indispensable, I am afraid that it is fundamental to tampering with these
Now, Sir, we know that an attempt has been made by the Drafting Committee in
the later stages to tamper with these Fundamental Rights. Right 16 has been'
taken away. Right 15 has been truncated and in regard to adaptation, power is
taken which takes away from the efficacy of these Rights. What is important
is, when the provisions relating to these rights have been passed, in the
third reading we do not want to have such a drastic provision. These rights
should be maintained in their original purity and in the Supreme Court there
should be no other power which can take away these rights. There the House
will see that what I wanted in my original amendment, 109A, is now given to
us. I want that the Supreme Court alone should have the power to make these
regulating the method and manner of the enforcement of these rights and
therefore I seek to take away sub-clause (c) from clause (1) and add another
separate clause (2), so that the Supreme Court alone in regard to the matters
referred to in Part 1. may have the power to regulate the practice and
procedure of the appropriate proceedings mentioned in article 25 which
guarantees these fundamental rights.
Mr. President: Does any one wish to say anything on this article? Then we
shall pass on to article 148. Amendment No. 312, Mr. R. Das.
Shri B. Das: I am not moving it.
Shri Raj Bahadur: I am also not moving it.
Mr. President: Shrimati Durgabai. She is not present. Then amendment No. 313,
Mr. B. Das.
Shri B. Das: Sir, I move this joint amendment which stands in my name -and in
the name of my Friend, Mr. Raj Bahadur. I beg to move :
"That in clause (5) of article 148, for the words 'persons serving in the
office' the words ,members of the staff' be substituted.-'
This is not my own amendment, this is what the House did pass after great
,deal of discussion and which the Drafting Committee,-by some inadvertence
perhaps, wanted to reduce to the present position. My grounds are the same as
my Friend, Pandit Thakur Das Bhargava, has just now advanced about the status
and dignity of the Supreme Court Judges. If we have to maintain the sovereign
Government of India, we have to see that the Supreme Court, the
Auditor-General and the Federal Public Service Commission are not interfered
with in. any shape or manner by the permanent executive. The House took
considerable time in discussing these articles--old articles 124 and 125,
which have now become Nos. 148 and 149. The House determined that the Auditor
General should maintain the highest dignity of financial integrity by audit
,control and that there should be no interference by the permanent executive
in any shape or manner in exercising the authority of the Auditor-General
regarding the audit control of public finances of the Government of India.
We businessmen who are accustomed to business finance sometimes find that
Boards of Directors of companies try to exercise influence over the auditors
and sometimes wrong reports are published. That practice should not come into
vogue in the Government of India. Unfortunately, under foreign rule, that
practice was in vogue from 1921 up to 1947-only two years ago.- The
Auditor-General became almost a nonentity. There was no audit of public
finances. The former British rulers even decided that unless the Auditor-
General or members of his staff like the Accountant-General or the Director of
Audit, agree with the spending authority such as the Secretary of the
Department or the executive head of the department, the financial irregularity
would not be reported to the Public Accounts Committee or Parliament. This
thing happened some time in 1927 and that practice was very much in evidence
during the second war. In order that a similar practice may not continue we
wanted that the high status and dignity of the Auditor-General should be
maintained. Therefore we do desire the House to pass this amendment
substituting the words "members of the staff" in article 148(5)
whereby every Accountant-General, every first class Accounts Officer is not
subjected, for his promotion, to the sweet will of any departmental head or
executive head of a spending department. I have been assured by the Drafting
Committee that they will accept the amendment which I have just moved. Sir, I
do not wish to speak any further on this issue.
Mr. President: Shrimati G. Durgabai, amendment No. 314 She is not here. No.
315, Mr. Das.
Shri B. Das: I am not moving it.
Mr. President: No. 316.
Shri Raj Bahadur: Sir, I am not moving it. But I want to speak on amendment
It is obvious that by the very nature of the duties and office of the Auditor
General, this officer must be quite independent of the executive. As a matter
of fact, his position is somewhat analogous to the position of the Chief
Justice of the Supreme Court. He is the
custodian, if I may say so, the chowkidar of our finances. He stands between
the executive and the taxpayer. It is he who can successfully prevent our
finances from getting into any sort of corruption or debacle.
Sir, I would simply add this much to the observations made by the previous
speaker that it has been a painful experience to those of us who have happened
to be on the -Public Accounts Committee that during the course of 1945 and
1946 or, should I say, prior 'to partition and independence there have been
such serious defects and irregularities in the accounts of the country that we
have come to the conclusion that in the best interest of the nation this
officer must be completely independent of the executive. I would, in all
humility suggest that he should be absolutely free from the control of the
executive. I had tabled an amendment, No. 312, that even his
"allowances" apart from his salary should be decided hot by the
President or by the Government but by Parliament. We find that in the case of
the judges of 'the Supreme Court, their salaries and allowances are not in the
gift or the Government but are constitutional matters. I would like to go a
step further and say that it Should not have been left to the discretion of
even the Parliament, and the Constitution itself should have provided for it,
because it would be in the interests or the nation if this officer is made
completely independent. At any rate, there should be no wall or screen between
the Legislature and this officer.
In case he has to function effectively and properly, his staff also should be
under him. If the members of his staff are placed under the control of the
Cabinet or the executive and have got to look for their promotions and for
their careers towards the Ministers. it is obvious that the Auditor-General
would not be able to exercise an effective control over the members of his
staff. It was therefore a sort of an unpleasant surprise when we found in the
revised draft that the words "members of the staff" had been changed
to "persons serving in his office", thereby restricting and limiting
the control of the Auditor-General upon those persons who happen to serve at a
given time in his Department as a whole. It was thought proper that the
original words which were approved of by this Assembly during the previous
stages should be retained. Hence this amendment.
Another point on which I want to lay some stress is that because the Auditor
General happens to be one of the highest officials who hold a sacred trust of
the people, it has been made incumbent on him that after having served his
term of office he cannot be absorbed or employed on any other job in the
Government. When that office has been placed so high, it is only meet and
proper that the staff also is entirely controlled by the same office. With
these words I commend this amendment for the. acceptance of the House.
Mr. President: Article No. 154, Mr. Kamath.
Shri H. V. Kamath: Sir, these amendments are identical with the amendments
moved earlier in the morning and I leave them along with the morning ones for
the consideration of the Drafting Committee.
Mr. President: So, I,take both 320 and 321 as not moved. Then article 162.
amendment No. 324 is a similar amendment. Mr. Naziruddin Ahmad: Yes, Sir.
Mr. President: Then amendments Nos. 328 and 329, Mr. Kamath-article 164.
Amendment No. 328 does not arise. Mr. Kamath You may move amendment No. 329.
Shri H. V. Kamath: Sir, I move.
"That in the proviso to clause (1) of article 164 for the words 'Koshal
Vidarbh' the words 'Madhya Pradesh' be substituted."
Shri T. T. Krishnamachari: May I suggest to the honourable Member that he may
move this when we come to the Schedule ? And when we accept that amendment,
the consequential change may be made here as well.
Shri H. V. Kamath: Very well.
Mr. President: There are three amendments of which notice has been given by
Sri A. V. Thakkar, namely amendments 329A, 330 and 331. The honourable Member
is not here; so we may go to Article 166. (Amendment No.
Prof. Shibban Lal Saksena: My amendment *(No. 332) may be taken as formally
Mr. President: In regard to *333, *334 and *335, similar amendments have been
moved in regard to the Central Government. I shall, therefore, take them as
formally moved. It is hardly worthwhile moving 336 to 339. Let us, therefore,
take up 340 and 341 of Mr. Kamath.
Shri H. V. Kamath: Sir, I move:
"That in clause (1) of article 172, after the words 'no longer' a comma
"That in clause (2) of article 172, for the word 'possible' the word
'practicable' be substituted. "
As regards the first, as far as my meagre knowledge of English tens me,
according to the rules or syntax, a comma is indicated after the word
As regards the second amendment (No. 341), I feel that the word
"practicable" is more appropriate in this context than the word
"possible." I think, in the former draft as agreed to by the
Assembly at the consideration stage, the word used was "may be." But
as between "possible", and "practicable" there is a fine
distinction which will not escape the notice of the honourable Members of this
House. Suppose, for instance, there are 32 members in the Legislative Council
of a State. "As nearly as practicable one-third" will definitely
mean eleven. On the other hand "possible" will admit of some
ambiguity, because there is nothing that is not possible. For that matter
everything can be made possible in this world, while "practicable"
will have some relation to reality. We are here dealing with realities, and
the word "practicable" will 'be preferable to the word
"possible" for conveying the precise sense of this clause of the
*332. "That clause (3) of article 166, be deleted."
*333. "That in clause (3) of article 166, for the word 'Governor' where
it occurs for the first time: the word 'Premir' be substituted."
334."That in clause (3) or article 166, for the words 'more convenient'
the word 'efficient' be substituted."
*335. "That in clause (3) of article 166, the words in so Tar as it is
not business with respect to which the Governor is by or under this
Constitution required to action his discretion' be deleted."
Mr. President. Amendments *343, *344, *345 and *346, I shall -take as moved.
Let us now take up Article 189 (amendment 347).
Shri H. V. Kamath : In regard to *347, I would like to make one observation.
Sir, it is understandable that for a big assembly like Parliament a quorum of
one-tenth of its strength may be fixed. But if this is extended to the States,
it may. at times lead to ridiculous results. There are at present States where
the lower House consists of perhaps one hundred or one-hundred and twenty
members, and these are to continue till the New Constitution commences and
they are reconstituted after the General Elections. For instance, the C.P. and
Berar Assembly now consists of about 120 members. If the quorum is fixed at
one tenth of its strength, it would mean that twelve members would be
sufficient to pass any legislation. The argument has been trotted out that the
quorum of the House of Commons is only one-fifteenth. It is understandable
because the House has a strength of six-hundred members. But in the case of
the Mysore Assembly, for instance, which will have a strength of, say, 70
members, the quorum would be seven: we are of course providing that if shall
not be less than ten. Rather than take it to such a farcical extent, let us
say, 'finis' to democracy and go home.
Sir, I personally feel that for legislatures which have a small strength of,
say 60 to 120 members, we should fix the quorum at one-fifth or one-sixth, and
not make ourselves the laughing stock of the world.
Shri R. K. Sidhva : Sir, my amendment to article 189 reads thus:
"That in clause 3 of article 189 for the word 'ten' and 'one-tenth' the
words 'twenty' and 'one-eighth' be substituted respectively.
My arguments in support of this are tile same as those I put forward
in connection with the question of quorum for the Union Parliament. I am not
at all in favour of the arguments put for ward by my Friend, Mr. Kapoor. On
the contrary, it has to be remembered that the future Parliament will have to
sit for at least nine months in the year-. If members have other work to do,
let them attend to it and not monopolise the seats in the Assembly and
imperfectly do the work entrusted to them by the people. I. therefore,: feel
that after the next elections to Parliament, the Members who conic here must
confine themselves to their parliamentary work only. If they really want to do
other work, they may do so, but let them not monopolise the parliamentary
membership and also other political activities. It is high time that we decide
this. At this juncture when we have an opportunity to frame the Constitution,
especially this Part. As my friend said, I do not want 500 members to be
present all the time. I am saying that at least one-eighth should be present,
which would mean only 20.
*343. "That in clause (2) of article 181 for the words 'and shall,
notwithstanding anything in article 189, be entitled to vote only in the first
instance on such resolution or on any other matter during such proceedings but
not in the case of equality of votes' the words 'but, notwithstanding anything
in article 189, shall not be entitled to vote on such resolution or on any
matter during such proceedings be substituted."
*344. "That in clause (2) of article 181, for the words and figure
'anything in article 189' the words and figure 'anything contained in article
189' be substituted."
345, "That in clause (2) of article 185, for the words land shall,
notwithstanding any. thing in article 189, be entitled to vote only in the
first instance on such resolution or on any other matter during such
proceedings but not in the case of equality of votes' the words 'but,
notwithstanding anything in article 189, shall not be entitled to vote on such
resolution or on any matter during such proceedings' be substituted".
*346. "That in clause (2) of article 185, for the words and figure
anything in article 189' the words and figure 'anything contained in article
189 be substituted"
*347. "That in the second paragraph of clause (3) of article 189, for the
words. 'The quorum shall. until the Legislature of the State by law otherwise
provides' the words 'Until the Legislature of the State by law otherwise
provides, the quorum share be substituted."
Shri Mahavir Tyagi : Then the House will be composed of unemployed men. only.
Shri R. K. Sidhva : I am saying twenty. Do they not want twenty for the
quorum? When the question of voting comes, the House should see that the
Drafting committee's proposition is voted down and what the House decided on
the last occasion is accepted.
I then move my next amendment, viz.
"That at the end of clause (1) of article 222, the following words be
,only when urgency arises'."
A judge should be transferred only when urgency arises..
Shri H. V. Kamath : Sir, I move.
"That clause (2) of article 222 be deleted".
This clause empowers the President to fix compensatory allowance for a judge
of a High Court on his transfer from one State to another. I think it will be
a wise rule for us to lay down that we shall not deviate from the provisions
we have already made in the Constitution with regard to salaries and
allowances of High Court Judges. There should be absolute uniformity in regard
to this matter throughout the whole of India. That will conduce, though in a
very small way, to the development of a united national sense throughout the
country. If we make invidious distinctions between the salaries and allowances
of a High court Judge in one State and those of a High Court Judge in another
State it will lead to somewhat vicious results which I for one would not
countenance or encourage. A High Court Judge whether in Madras or Bombay or
the United Provinces should draw
the same salary and allowances fixed for him in the Constitution or by
Parliament. There is no need, in my view, to give him any comPensatory
allowance when a four figure salary is fixed for him in the Schedule. I do not
see any reason why when he is transferred he should get compensatory allowance
in addition to his Rs. 3,000 or 4,000. The judges and all our public servants
are going to be good patriots and will no claim any sort of allowances when
they are, in the public interest, transferred from one State to an other. The
salaries and allowances already drawn by them ought to suffice. I commend my
amendment to the House.
Dr. P. S. Deshmukh : I support with as much strength as I can command, the
arguments advanced by my Friend, Mr. Kamath, but on a different and an
additional ground in favour of the deletion of this sub-clause. In our desire
to, protect the interests of the Judges I am afraid we are overdoing things.
We have already made detailed provisions with regard to their right to leave,
allowances, pensions and other things. We should not overburden our
Constitution with so many and such details. If there is any necessity of
granting any more allowances I do not think there is any constitutional
difficulty in the way of the President granting the same or Parliament
sanctioning it in the case of the Judges. I think this provision is absolutely
unnecessary and should be deleted.
Pandit Thakur Das Bhargava : Sir, I am not moving my amendment No. 355 to
Shri H. V. Kamath : I have already moved an amendment similar to amendment No.
356 I am not, therefore, moving amendment No. 356.
Pandit Thakur Das Bhargava : I am not moving amendment No. 377. I wish to move
amendment No. 383 to article 302. I beg to move:
"That in article 302, for the words 'as may be required in the public
interest' the words 'as may be required in the general public interest' be
"That in article 302, after the words 'may by law' the words enacted by
virtue of power conferred by the Constitution" be inserted.'
If you Will kindly look at article 302, you will be pleased to find that after
the words "Parliament-may by law" there are some (lots and these
dots represent in the second reading the following words -
`enacted by virtue of the power conferred by the Constitution."
Now, this article 302 and the other articles 301, 303, etc. relate to trade,
commence and intercourse within the territory of India. As a matter of fact
originally there was a section in the Fundamental Rights which said that
trade, commerce and intercourse shall be free in the whole of India. That
article has been taken away and some other provisions had been enacted. These
articles 303, etc. also existed in the original provisions but we understood
that they were subject to article 16. Now, it so appears that article .302
seeks to give power to Parliament to impose restrictions on the freedom of
trade, etc. Now, if you will kindly see article 19 (g) which we have already
dealth with, it savs-
"All citizens shall have the right to practise any profession or to carry
on any occupation trade or business."
And the restrictions which could be imposed are given in clause (6). It says-
"Nothing in sub-clause (g) of the said clause shall effect the operation
of any existing law in so far as it imposes or prevents the State from making
any law imposing, in the interests of the general public, reasonable
restrictions on the exercise of the right conferred by this section.."
My submission is that those fundamental rights as a matter of' fact constitute
the minimum and fundamentally characteristic rights of any person living in
India. Every inhabitant of India has got the right to trade in any part of
India as an incideilt of his citizenship. This is only restricted by clause
(6), whereas according to article 302 if the public interests require-and not
the general public interests-then also restrictions could be put by
Parliament. This is the difference between the two. What is quite clear in
and what has been given there as Fundamental Rights is being taken away by
article 302 when these words "in the public interests" are
substituted. I do not want to take the time of the House in explaining the
difference. The words used are "public interest" and not
"General public- interest". Public interests may be sectional
interests inherent in State subjects but general public interest denotes the
interests of the whole general interests of Indians as such.
The Honourable Shri K. Santhanam : This particular amendment does not arise
from any amendment moved by the Drafting Committee, and cannot be ,admitted
under our rules.
Mr. President : I think you are right.
Pandit Thakur Das Bhargava : You may kindly hear me before deciding the
matter. There are two amendments contained in No. 383, 'either add the words
"enacted by virtue of the powers conferred by the Constitution" as
this power is conferred by article 19(6) or you put in the words "in the
general public interest". These amendments -are as a matter of fact the
same. There is no difference between the two. If these words are there, it
means that this is subject to article 19. Therefore, I submit that either
these words "enacted by virtue of the powers conferred by the
Constitution" may be restored in their original form or the words "
general public interest" may be put in. I should think that when we have
passed article 19, there can be no other article which is in abrogation of the
article which we have already passed. There is an inconsistency between the
two and I beg the Drafting Committee and the House to consider this
inconsistency and remove it.
Mr. President : Your argument is that the word "general" represents
the same thing as the words which have been omitted. Either add the word
"general" or restore the words which have been omitted.
Amendment No. 384.
Shri H. V. Kamath : Sir, I move
"That in the proviso to article 309 the words "or such person as he
may direct", wherever they occur, be deleted."
The House will see that the proviso to article 309 empowers the President in
the case of the Union services and the Governor or the Rajpramukh in the case
of the States services to make rules. regarding their recruitment, their
conditions of service and similar matters pending provision by Parliament or
the State legislature, whichever may be the case, in this regard. I'see no
point in the amendment recommended by the Drafting Committee. The amendment is
to the effect that not the President or the Governor or the Rajpramukh alone
is competent but also such person as he may direct. This amendment to my mind
is simply puerile. This morning when we considered an article with regard to
the executive authority, we found that the executive power of the Union shall
be exercised by the President either directly or through officers subordinate
to him. It follows that even if it is not exercised by him directly, it can be
exercised by officers subordinate to him. In this regard also, the rule-making
powers can be exercised by him or by persons authorised by him. I do not know
why the Drafting Committee thinks that it is necessary to specify that it can
be exercised by him or by such person as he may direct. Throughout the
Constitution we have made it clear that whenever the President acts, he does
not act on his-own but acts on the advice of his Cabinet, and may also
delegate his authority to somebody else These words are absolutely redundant,
unnecessary and pointless, without any pur pose, and therefore I suggest that
these words ought to be inserted "or such person as he may direct"
in the case of the President as well as in the case of the Governor and the
Rajpramukh should be deleted, because it is clear beyond any shadow of doubt
that wherever the Governor or the Rajpramukh or the President is mentioned, he
is not mentioned in his personal capacity but as a symbol of the executive
authority of the Union or the State. Therefore I commend my amendment No. 384
to the House for its serious consideration.
Dr. P. S. Deshmukh : Mr. President,
Sir, I once again find myself in complete agreement with the argument advanced
by my honourable Friend, Mr. Kamath, we either give this power to the
President or we do not. If we think that he will not be in a position to cope
with the responsibilities in this respect because'they are too detailed or too
insignificant and it would be necessary forhim to delegate these powers to
somebod else, let us put, that somebody else here rather than put the
President and 'then, allow him to delegatd this authority to somebody else. In
fact, Sir, I totally 'disagree that the importance that has all along been
attached to the protection of the interests of the services in the
Constitution. I for one consider it a reflection of the - days of the
Secretary, of' State when he was the father of all the covenanted services
serving in any part of the world. I think this is also a reflection of the,
idea that the services are such an important part of the country that it is
necessary that nobody else except the President shall interfere with their
terms of appointment, etc. Sir, I think that either the power may be kept with
the President although I would much rather that it should be delegated to
somebody else; or the government of that particular State, whether of the
Union or the State should be competent to do so or the President should be
taken out altogether; but if we want to make of a President a sort of a
Secretary of State in our Constitution, then, let the President remain without
stating that we would have the power of delegation of this authority to any
one. In fact the President does not mean that in every case he acts himself
and personally. In most cases he will be acting through someone else. There
will be notifications that the President is pleased to order so and so but
actually it will probably be one of his under,- graduate stenographers who
will draft the notification in the name of the President. (Laughter).
(Amendment No. 387 was not moved.)
Shri H. V. Kamath : Sir, I move:
"That in clause (3) of article 311 for the words "reasonably
practicable to give to any person an opportunity' the words 'practicable to
give any person a reasonable opportunity' be substituted."
If my honourable Colleagues will turn for a moment to clause (2) of this
article they will see that the language employed in that clause is about
"reasonable opportunity" being given to the person as aforesaid,
etc., that is to say, that unless a person is give a reasonable opportunity to
show cause, no action can be-taken against him but clause (3) introduces a
slight change and we find here the opportunity is no longer
"reasonable" but the practicability is made reasonable That will, in
my humble judgment, make -a very appreciable difference to the means of the
clause If the House accepts my amendment then the opportunity to be given will
have to be a reasonable opportunity. My honourable Friend, Pandit Thakur Das.
Bhargava, who emphasized. the meaning of the word "reasonable" so
very forcibly and vigorously with regard to the old article 13 will agree with
me about the word 'reasonable' in this connection because it may be held that
where the opportunity is not sought to be given by the person taking action
against an officer concerned, if was not reasonably practicable. 'Practicable'
means absolutely practicable. That is what I believe Dr. Ambedkar had in view
when he moved this article at the consideration stage, and it means that when
the officer is not to be found or his whereabouts are not known it is not
possible, to give him any opportunity to show cause and only in that
eventuality, in that contingency can an opportunity be denied to the officer
concerned. Now what we seek to-do in this amendment sought to be moved by the
Drafting Committee is that if the, officer holds that it is not reasonably
practicable to give an opportunity that means to say it may be Practicable,
but it may not be reasonably practicable. Therein, lies the difference which
my honourable Colleagues, I am sure, will understand and appreciate. We must
lay down that only when it is not practicable to give to the officer concerned
a reasonable opportunity, the superior officer's decision shall be final in
this regard. I feel that the Drafting Committee has taken uncalled-for
liberties with -the draft as approved by the Assembly in the last session and
I feet that we must modify it so as to convey the sense of this clause exactly
and completely. I commend my amendment No. 388 to the-House for its
Mr. President : Amendment No. 389.
Shri H. V. Kamath : Sir, I move:
That in the proviso to clause (1) of article 316, for the words 'under an
Indian State the word in an Indian State' be substituted."
I do not presume to be a master, An expert or authority on the English
language and I move it for what it is worth. I hope the Member of the Drafting
Committee who are far wiser than myself in this matter will have due regard to
the meaning that they seek to convey in this proviso and. in the phrase office
under an Indian state. Of course' held office under the crown is a
constitutional term, but I have not heard this phrase 'held office under an
Indian State'. It should be either "under the Government of an Indian
State" or "in an Indian State".
Shri T. T. Krishnamachari : May I tell my honourable Friend that it is
contemplated to change, with the permission of the House. the words to 'under
the Government of an Indian State'.
Shri H. V. Kamath : I am glad that my honourable Friend Mr. T. T.
Krishnamachari, has seen his way to accepting this suggestion of mine and so I
do not propose to press this amendment, Sir.
Mr. President : I do not think amendment No. 392 arises at all.
Shri T. T. Krishnamachari : May I suggest to the honourable Member to see if
it finds a place in the corrigenda? The two commas are there.
An Honourable Member: The Drafting Committee have stolen the amendment.
Shri H. V. Kamath : The word 'stolen' may be unparliamentary; they have
plagiarised the amendment. Amendment No. 392 is also mere punctuation and I
leave it to the punctuating sense of the Drafting Committee.
Sir, I move:
"That in clause (c) of article 319, for the words 'other than a. Joint
Commission' the words or as the Chairman of a Joint Commission' be
This article 319 refers to prohibition as to the holding of office by members
of the Public Service Commission on their ceasing to be such members, that is
members of the Commission. Certain restrictions have been laid down in this
article with regard to members of the Public Service Commission when they
cease to hold office either as Chairman or as member of a particular Public
Service Commission. Clause (c) of this article refers to the restrictions laid
upon a member other than the Chairman of the Union Public- Service Commission
This goes on to say: "such a member on ceasing to hold office shall be
eligible for appointment as the Chairman of a State Public Service Commission
other than a Joint Commission." I see no reason why this taboo should be
there, with regard to a Joint Commission. A person has ceased to be a member
of the Union Commission. Just as there is no prohibition with regard to a
State Commission, so it follows logically, at any rate to my mind, that there
should be no prohibition with regard to his appointment as a member of a Joint
Commission. The only prohibitions should be with regard to his membership of
the Union Public Service Commission or Chairmanship of the Union Commission;
but neither with regard to the State Commission nor with regard to a Joint
Commission should there be any prohibition. I therefore move amendment No.
Mr. President : We proceed to article 320.
Shri H. V. Kamath : This amendment, Mr. T. T. Krishnamachari tells us, has
been accepted by the Drafting Committee.
Shri T. T. Krishnamachari : If my honourable Friend will move amendments 394
and 395, first alternative,-that more or less finds a repetition here-we will
accept his amendments.
Shri H. V. Kamath : I am happy; I move amendments 394 and 395, first
"That in sub-clause (d) of clause (3) of article 320, for the words
'Under an Indian the State the words 'under the Government of an Indian State'
"That in sub-clause (e) of Clause (3) of article 320, for the words
'under an Indian State', words under the Government of an Indian State' be
Pandit Thakur Das Bhargava : Sir, I move:
"That in clause (4) of article 320, the words "the members of the
Scheduled Castes or Scheduled Tribes or' be deleted." If you will kindly
refer to article 320, clause (4) it would appeal that it says :
" Nothing in clause (3) shall require a Public Service Commission to be
consulted as respects the manner in which appointments and posts are to be
reserved in favour of the members of the Scheduled Castes or Scheduled Tribes
or any backward class of citizens in the Union or States". These words
"members of the Scheduled Castes or Scheduled Tribes or" have been
added newly. Previously, these words did not exist. Now, so far as reservation
is concerned, we find mention of this reservation in article 16, where it is
said in clause (1) "There shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any office under
the State," and in clause (4)"Nothing in this article shall prevent
the State from making any provision for the reservation of appointments or
posts in favour of any backward class of citizens which, in the opinion of the
State, is not adequately represented in the Services under the States." A
perusal of these two sections would establish that as a matter of fact. there
is only provision for this reservation in respect of the backward class of
citizens which in the opinion of the State is not adequately represented in
the services of the State. There is absolutely no provision for reservation so
far as members of the Scheduled Castes and Scheduled Tribes are concerned. The
safeguard given by law to this class is contained in articles 335 which says:
"The claims of the members of the Scheduled Castes and the Scheduled
Tribes shall be taken into consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments to services and
posts in connection with the affairs of the Union or of a State."
Therefore, one thin- is absolutely clear, that no reservation was meant to be
made for the members of the Scheduled Castes or Scheduled Tribes as such. I
remember that in the Sub-Committee of the Minorities Committee, this matter
came up and then we decided that there should be no reservation at all. Now,
as if by the back-door, by smuggling, this reservation for the Scheduled
Castes and Scheduled Tribes is being inserted in clause (4) of article 320. My
submission is when there is a positive command of the Constitution to the
members of the Public Service Commission which they must obey that he claims
of the members of the Scheduled Castes and Scheduled Tribes must be considered
consistently with the maintenance of efficiency of administration, this
provision would be useless, and also, in a manner, I should say. this takes
away the effect of article 335 to an extent. I am therefore, anxious that so
far as the Scheduled Castes and Scheduled Tribes are concerned, their claims
must he considered with regard to all appointments and not only with regard to
reserved appointments. Because, if they are reserved, it means that the claims
of other people for these appointments will not be considered, and their
claims only will be considered. The likelihood is that their claims will be
confined only to the reserved posts and in regard to other posts, their claims
will not be considered.
Now, as the House knows, the provision contained in article 16 clause (4) is a
sort of a negative provision to 'counterpoise the equality of opportunity for
all citizens, some of whom are very Much developed and others not so
developed, and provision is made that the State is not prevented from making
any provision for the reservation of appointments or posts. I do not know
whether the State is
going to reserve any posts. Supposing no posts are reserved, this provision
will neither benefit the backward classes nor any other class. When
reservation of posts has not been decided by this House, I do not think we are
justified in having in this clause (4) a contingency for which reservation
could be made. When the House has decided once for all that no reservation is
to be made, then these words would give rise to the impression that
reservation is possible.
I am anxious that whatever rights have been given by the Constitution they
should be enjoyed by the members of the Scheduled Castes and Scheduled Tribes
and no more or no less In regard to article 335, I beg to submit that this is
a very positive and extensive provision. It I were a member of the Public
Service Commission, I would like to give every post to the members of the
Scheduled Castes and Scheduled Tribes consistently with the maintenance of
efficiency of administration for at least five or ten years so that they may
Shri T. T. Krishnamachari. Will the honourable Member please say how article
335 could be implemented?
Pandit Thakur Das Bhargava. Can it only be implemented by reservation? it that
is so, why did we not so decide? We decided against that; we were against
that, The 'Drafting Committee is smuggling in some provision which is against
the verdict of the Assembly. Why was this point not raised before? I think
reservation is entirely a wrong thing. Under article 335, their claims can
certainly be considered. After all, 'a Commission is to be appointed and
welfare officers are going to be appointed. The President has to see whether
the rights of these communities are safeguarded. We are all here to see that
the rights of these communities will be safeguarded. I have no reason to
believe that article 335 will not, be implemented. It -must be implemented;
but this is not the way to implement it.
Shri V. I. Muniswamy Pillay (Madras: General): Mr. Presider Sir, I think it is
an irony of fate that hurdles of this sort are-sought to be placed even in
regard to the meagre facilities that have, been adopted in this House. I do
not agree with my honourable Friend Pandit Thakur Das Bhargava's amendment
since the implementation of article 335, which was formely article 296, is
sought in this clause (4) of article 320. Sir, if I were to tell him, the
backward communities which lie referred to is not a comprehensive term or
adopted by all-the provincial Governments in India. In Madras, backward
communities refer to certain sections, of the people and the Scheduled Castes
and Scheduled Tribes form a separate class from the, backward communities. If
it is the idea of my enlightened friend that the backward classes alone must
remain in this Constitution for any reservation, the Scheduled Castes and
Scheduled Tribes will not find reservation for appointments either in Madras
or in some other provinces. So, I feel what the Drafting Committee has done
for implementing and also making it clear what obtains in article 335 in
clause (4) of article 320 is correct. My friend was saying that no reservation
was made: but if he studies article 335, there is reservation services for
Scheduled Tribes and Scheduled Castes. This clause (4) gives power of
consultation with the Public Service Commission which is ultimately the
authority that will be advising the Governors and the President of the Union
on what basis the members of Scheduled Castes or Tribes are to be taken in
service. So I feel very strongly that if my honourable Friend's amendment is
accepted, it will mean that the Scheduled Castes or Tribes will not count for
reservation in the So I oppose this amendment.
Shri Mahavir Tyagi : Sir, I propose that this may be held over. It is very
Mr. President : I would allow discussion of this. Those who wish to speak may
speak now. Voting will be taken at the end, of course.
Dr. P. S. Deshmukh: I am glad the importance of this article is being
appreciated by many honourable Members. It is certainly very very important. I
for one do
not oppose the changes made by the Drafting Committee in this article, but I
would appeal to the Members and to the representatives of Scheduled Castes and
Tribes that the should not also object to the insertion of the words
"backward classes" in article 335. It was very unjustly and unfairly
omitted from that article and it was no gain to anybody, especially to Members
representing the Scheduled Castes or Tribes. Just as in this article 320 we
propose to add the words 'the Members of the Scheduled Castes and Scheduled
Tribes and retain the words, 'Backward classes of citizens', similarly the
words 'backward classes' should be added to article 335. That will be entirely
fair and consistent and if that is accepted, I would strongly oppose the
amendment that has been just moved. If, for the purpose of even carrying
greater assurance to Members of Scheduled Classes, it is necessary to mention
certain safeguards specifically, I do not think we should fight shy of it. We
are trying too much to ask people to have faith in our liberal, intentions and
generous motives but in many respects it is better to come down to practical
politics and embody what we mean in a concrete shape, understandable by the
ordinary citizen. If for that purpose the Drafting Committee has suggested the
addition of the two classes of Communities in article 320, I for one would not
quarrel with it. But I would appeal to the House and to everybody that the
words "backward classes" should be added to article 335. There is a
little history so far as this article is concerned and the omission is, I
believe, as accidental as some other things that have happened in regard to
the provisions in the Constitution. Backward classes were omitted from article
335 in this way. The omission was never contemplated. Mr. Munshi had attempted
amendments of the proposed article several times, but in none of them
"backward classes" was omitted. But suddenly at a very late stage,
when unfortunately I happened to be out of Delhi, I discovered that these
words happen to be omitted. The best solution which is acceptable to everybody
is that the proposed addition to article 320 should stay and honourable
Members of this House should insist that the words 'backward classes' should
be added to article 335 and the status quo maintained which was deliberate,
intentional and which was really the demand of everybody, especially of
Members representing the backward classes and also, if I may say so, of the
representatives of the Scheduled Castes and Tribes. There has never been any
conflict of interests between the various groups of communities and I hope the
Scheduled Classes and the Scheduled Tribes will not bring about this conflict
which will be of evil consequences to the whole nation. I would, therefore,
appeal that whatever has been embodied in article 320 should now stay and in
article 335 the word 'backward ...
Mr. President : There is no amendment for 335.
Dr. P. S. Deshmukh: I have given an amendment to that effect somewhat late. I
was away from home and I was not able to table it in time but as soon as I got
it, I sent the amendment in. I would beg of you that this amendment of mine
may be permitted. It is No. 530. I have said "that in article 335 after
the word 'members, the words backward classes' be inserted."
Shri H. J. Khandekar (C.P. & Berar: General): Mr. president, Sir, I stand
here to oppose the amendment moved by my Friend, Mr. Thakur Das Bhargava. The
draft that has been put forward by the Drafting Committee is with certain
reasons. Because this House has adopted article 335 last time as article 296
and in order to give effect to that article, this article 324 has been
submitted to the House.. According to article 335 the seats have been reserved
for members of the Scheduled Castes in services and posts, but that article
does not give power to the Public Service Commission -or the Federal Public
Service Commission We had to bring that article into effect and for this
purpose this amendment has been moved by the Drafting Committee and then only
F.P.S.C or P.S.C. of the States will Consider the claims of the Scheduled
Caste. I am very sorry to say that such amendments as have been moved by Shri
Bhargava regarding the Scheduled Castes are being moved at this stage to bury
down the Harijans. There are certain people in the country from the caste
Hindus-I am not of course criticising them-but I would like to tell certain
facts that they do not want to give facilities to us
Certain members of the Hindu society will only be satisfied when the Scheduled
Castes and Scheduled Tribes are buried. I think, Sir, these amendments are
brought with these motives. I, therefore, feel very sorry and pity for such
caste Hindu friends. With these words, I oppose the amendment moved by my
Friend, Mr. Bhargava.
Shri R. K. Sidhva: Mr. President, all along during the discussions and start
of this Constitution I have held the view that if anybody deserves protection
of special rights or privileges, it is the Scheduled Castes only and I hold to
day the same view that none but the Scheduled Castes should have a special
right for the reasons that I frequently stated that we have done certain
injustice to that class and for the purpose of undoing that injustice, we
specially gave them this protection. I have all along extended my support to
this on this ground. I am not in favour of giving any protection to the
so-called backward classes. Backward classes were introduced by the British
Government, and I do not want that blot to be continued in this Constitution.
Backward classes exist in all communities, and in the directive policy and the
fundamental policy we have decided that within ten years everybody shall be
made literate, and with literacy nobody will remain backward. I would like to
know what is the meaning of "backward class".
An Honourable Member: Those not in service.
Shri R. K. Sidhva: With education such service also will automatically come
in. When proper education has been provided fro, automatically their rights to
entry into the services ill also come in. Therefore, I do not approve of my
Friend Dr. Deshmukh's proposal to introduce the words "backward
class" in article 313 which we have after full consideration decided
should not be there. Therefore, I say that the amendment of the Drafting
Committee is a perfectly correct one and that is the only amendment which we
should support, without any other amendment. I do not think any one in this
House would take away the powers or the rights which we have given to the
Scheduled Castes. My Friend, Pandit Thakur Das Bhargava, said--I do not think
he means it--that the word should be deleted. I strongly oppose it. Why should
it be deleted when we have fundamentally accepted it in our Constitution.
Therefore, I support the amendment of the Drafting Committee and I oppose any
kind of amendment. Although the words " Backward class" are there, I
am obliged to reluctantly accept it, and if I had my way, I would have said
that there shall be no such thing as "backward classes". Within the
next five years, I would make them all literate, so that they may be able to
occupy any 0lace in our society. We have to undo what has been done during the
past 150 years, and we have to undo it as early as possible. Sir, with these
words I strongly support the Drafting Committee's amendment.
Shri Mahavir Tyagi; Sir, I do not know whether I am really right in
interpreting the procedure of the third reading of such Bills. As far as I
know, in the Legislative Assembly of the Province, the third reading is only.
Shri R. K. Sidney: This is not a third reading.
Shri Mahavir Tyagi: What reading is it then? The second reading has been
finished and only such amendments as are of a consequential nature or as
accrue from our past decisions are to come at this stage. If, however, matters
which were closed after protracted deliberations and heated discussions, were
to be raked up again at this stage, I am afraid, your time limit for the
discussion and decision will be rather very unfair. Sir, my submission is that
all such matters, which
were once discussed and closed here, and which were also discussed among
Members mutually, either in the shape of different parties or groups, and
particularly such matters which were as a result of compromise resolved as
unanimous decisions, were to be reopened for discussion, I assure you, Sir,
that it will take a very long time and it will not be possible for you with
due fairness, to finish the discussions according to the schedule which you
have kindly prescribed. I submit that the amendment tinder discussion was
neither consequential nor was there any necessity for introducing the
question. of reservation of offices or posts for Scheduled Castes, here. Sir,
the House ha,-, expressed itself a number of times in the past that our people
do not want any reservations for anybody. And particularly in the case of the
Scheduled Castes, the House had agreed, after heated discussions, and passed
article 335, as it is at present numbered, to the effect that "the claims
of the members of the Scheduled Castes and the Scheduled Tribes shall be taken
into consideration, consistently with the maintenance of efficiency of
administration, in the making of' appointments to services and posts in
connection with the affairs of the Union or a State." That was quite
enough and that was the last word unanimously agreed upon by the House. And
the Members of the Scheduled Castes were also satisfied with this article. Why
introduce the same communal virus into another article? Is not one enough? To
bring it here again means raking tip the old controversy again. That
representation of Scheduled Castes shall be so and so, the manner of giving
it'shall be such and such, that the rules of giving this representation in the
services or posts to the Scheduled Castes shall not be made in consulta- tion
with the Public Services and so on. All this. I say is absolutely unnecessary.
and surely it does not benefit the Scheduled Castes people at all, Ever,
article 335 was a matter of' controversy, and it was opposed. Some of us felt
that the special reservation was forced against their wishes. But then we were
told that it was only a directive article, and that it directs the policy of
future Governments. The House agreed to have it only as a directive. And now
you want to bring it in another article. The Constitution is in your hands and
you can introduce controversial matters in any article and it will be
discussed here as a basic proposal and then amendments will come in. Sir, I
submit that you might kindly rule such matters as out of order. Matters once,
twice and thrice discussed cannot be brought in again. How long can the House
go on discussinq these matters?
Shri Jaipal Singh (Bihar General): Mr. President, Sir, I feel I must come for
ward to congratulate the Drafting Committee for having made a point more clear
than it might have been. had they not introduced the amendment in clause (4)
of article 320, I must confess that I have been -very much surprised by the
amendment that my honourable Friend, Pandit Thakur Da-, Bhargava, has beer,,
pleased to place before the House. My memory is not -very weak. Not many
months ago, lie was the one who congratulated himself and the House for
atoning for what had not been done for centuries, but, now, some-how or other,
he swallows his words and tries to accuse the Drafting Committee and the
Scheduled Castes and the Scheduled Tribes and any other back-ward classes of
aligning ourselves as a communal group. The hint has already been made by my
predecessor just now. Sir, we are not asking for this from any communal angle.
We do not want anything. If you do not want to give it, do not give it. We are
not asking for it. Do not give with your right hand and take away with your
left. I have said every time that it has been my privilege to come and plead
for the most backward group in our country, and made it quite emphatic and
quite clear that I am not here with a beggar's bowl. If you give it, give it
without any mental reservations.
As far as I can see, all that the Drafting Committee has done is to
elucidate ,%,-hat were the intentions in the Fundamental Rights and the
directive principles of the Constitution. Beyond that they have not gone. My
friends will be the first to admit that the Scheduled Castes and the Scheduled
Tribes are among the backward classes. Well. they have already accepted in
their previous speeches and the previous consideration stage that the Backward
Classes have to be brought up to the general level. How else can you do it
unless there is some way of implementing that intention? We have had enough or
words. We have had them for centuries and centuries. In this Constitution we
are providing the wherewithal& for materialising those intentions. You
have appealed to us not to talk at length. I have no- desire to do so: all
that I say is-be generous and mean it.
The Honourable Shri K. Santhanam: I am afraid the scope of -this particular.
clause has been widely exaggerated by almost every speaker. It -does not
prescribe by itself any kind of reservation or any privilege which has not
been. given by the other articles of the Constitution, What all it attempts
to. do is to decide whether the Public Service, Commissions shall have
anything to do with either the reservation of the Backward Class or of the
Scheduled Tribes. If by-the application of article 335 such reservation
becomes necessary. No one will contend that in attempting to apply 335, in.
considering the claims of scheduled castes, 'no reservations will be made. If
any one comes to that conclusion that no reservation shall be made, I believe
that 335 cannot be implemented to any extent. But whether in any particular
service the Scheduled Castes should be represented and to what extent-all that
may be a matter of argument, consideration and discretion. But to say that at
no point whatsoever any reservations shall be made, is, I think, wholly
inconsistent with either the letter or spirit of - article 335
Assuming that in some matters some kind of reservation will have to De made,
the question here is whether it shall be done by the rules of the Public
Service Commissions or by the Government directly. That is the short issue of
this particular clause. It is our policy that the Public Service Commissions
should be kept out of all these communal and other considerations.
Pandit Thakur Das Bhargava: May I know if the provisions of 335 are not
binding upon the Public Service Commissions? They must take it into
The Honourable Shri K. Santhanam: Here the point is whether the rules to be
made should be by the Public Service Commissions or by the Government. We do
not want the Public Service Commissions to be brought into these matters it
only says that "nothing in clause 3 shall require the Public Services to
Shri Mahavir Tyagi: Why not make it clear. Was it incumbent on the Government
to consult the Public Services Commission, that you want to have an exemption?
The Honourable Shri- K. Santhanam: My honourable Friend, Mr. Tyagi, is
altogether wrong in thinking that this is a new insertion. This is purely
consequential to article 335.
Shri Mahavir Tyagi: I want to put one question. Is there any compulsion on us
that we must approach the Public Service Commissions for rules?
The Honourable Shri K. Santhanam: If lie reads clause (3), he will find that
for all these matters, the Public Service Commissions should be consulted.
Therefore, if clause (4) were not there, then the Public Service Commissions
would be involved in the controversy regarding the manner in which
reservations should be carried out. We do not want our Public Service
Commissions to be brought in. If any reservations are to be made, that should
be done purely at the discretion and judgment of either the Central or Local
Government. It is Only to prevent the Public Seryice Commissions from being
brought into the controversy that clause (4) is brought in. Without it, if at
any time reservations become necessary, consultation with the Commission is
also necessary and the public will begin to blame the Public Service
Commissions either for
the manner or the extent Of the reservations. It is only to preserve the
purity of the Public Service Commissions that this is inserted, and so
whatever objections one may have to reservation is quite a different matter.
One may contend that no Government should interpret 335 as getting them
reservations. That is a matter for the Supreme Court and for anyone to argue
out. It is not possible for the Drafting Committee or for this Assembly to
assume that no reservations can be made under article 335 and, therefore, this
preservation of the purity of the Public Service Commissions need not be
undertaken. As a matter of fact, if the Drafting Committee had not put this
forward they would have failed in their duty.
Pandit Hirday Nath Kunzru (United Provinces: General): Mr. President, the
question before us has been discussed by those who have favoured the amendment
made in clause (4) of article 320 by the Drafting Committee with reference to
Article 335. I think, Sir, that we should refer to clause (4) of article 16
before we refer to any other article. It says: "Nothing in this article
shall prevent the State from making any provision for the reservation of
appointments or posts in favour of any backward class of citizens which in the
opinion of the State is not adequately represented in the services under the
State." Under this clause, it is not necessary for the Central Government
or the Government of a State to consult the Public Service Commissions with
regard to the reservation of posts for any or all of the Backward Classes. The
question then before us reduces itself to the proposition whether the
Scheduled Castes and the Scheduled Tribes should be included among the
Backward Classes or not. Now it may be said that these classes have been
specially mentioned in various parts of the Constitution and that, therefore,
they should not be included among the Backward Classes. It is hard for me to
accept any such interpretation. The Scheduled Caste and the Scheduled Tribes
have been specifically mentioned in several places because they are believed
to the more backward than the classes called backward according to the
official terminology of the Provincial Governments. That is the only reason, I
believe, why they have been selected for special mention in several articles.
It seems to me, therefore, that even if clause (4) of article 320 were not
amended in the manner that it has been by the Drafting Committee, a State
would not be under any compulsion to consult the Public Service Commissions
with regard to the reservation of posts for the Scheduled Castes or the
Scheduled Tribes. Article 335 has been referred to but that is of limited
application. All that it says is that..........
Pandit Balkrishna Sharma: May I draw the attention of the Honourable Member to
one point? He says the Government is not in duty bound to consult the Public
Service Commission. but if he would only refer to article 320(3)(a) there he
will find that the Public Service Commission should be consulted on all
matters relating to the methods of recruitment to civil service and for civil
posts, and this might be interpreted as involving the Public Service
Commission in a sort of a controversy regarding the reservation of seats for
Scheduled Castes, Scheduletd Tribes and other Backward Classes. In order to
avoid that contingency, "that amendment has been brought in"
Pandit Hirday Nath Kunzru: I am aware of the provisions of clause (3) but what
I meant to say was that the provisions of clause (3) must be regarded As
subject to the provisions of clause (4) of article 16 which embodies a
The Honourable Shri K. Santhanam: It is really supplementary.
Pandit Hirday Nath Kunzru: In any case what I have tried to say is that the
amendment made in clause (4) of article 320 does not confer any power on the
State with regard to the reservation of posts for any Backward Class that it
did not have before.
Sir, I was referring to article 335. It merely says that the claims of the
members of tile Scheduled Classes and the Scheduled Tribes
shall be taken into consideration consistently with the maintenance of
efficiency of administration, etc. It may be found on examination that it is
not possible -to take the claims of the members of these classes into
consideration without reserving a certain proportion of posts for them.
Therefore. in my opinion, the more important article that we should consider
in this connection is article 16. Article 335 seems to me to be of more
limited application than article 16. We may draw an inference from article 335
that the State has the power to reserve posts for the Scheduled Castes and the
Backward Tribes but I think that clause (4) of article 16 lays down very
clearly and in express terms that the State has tile power to make
reservations of appointments or posts in favour of any backward class of
citizens. Even if it be held that the amendment of clause (4) of article 320
is unnecessary, it is clear that it is in accord with or that it is
consequential to the power given to the State by article 16.
Mr. President: We shall continue the discussion tomorrow,
I said at one stage of the proceeding this afternoon that I would like to
finish all the amendments. but since this particular article has taken more
time than we anticipated I would like to extend the time for moving the other
Pandit Balkrishna Sharma: Sir, in List I there are certain amendments which
ire also connected with the amendments that have been received in List II
therefore, I believe if the amendments are not reached during the time
available you will kindly allow these amendments from List I..........
Mr. President: We shall consider that.
The Assembly then adjourned till 10 A.M. on Tuesday, the 15th November, 1949.