Evidence
before Joint Committee on Indian Constitutional Reform
______________________________________________
Contents
Evidence before Joint Committee on Indian Constitutional
Reform—Witnesses examined by Dr. Ambedkar—
PART
II
(15) Lieut. Col. C.E.Bruce and others, 6-10-1933
(16) Wing Commander A. W. H. James and Dr. J. H. Hutton,
16-10-1933.
(17) Right Hon. Sir Winston Churchill .. 24-10-1933 and
25-10-1933
(18) Lieut. Col. Sir Henry Gidney, 10-11-1933
(19) Mr. J. C. French and Mr. S. H. Mills, 13-11-1933
(20)
Right Hon. Sir Samuel Hoare and others, July, October and
November 1933
Lieat.-Colonel C. E. Brace, C.S.I., C.I.E., C.B.E., Lieut.-General Sir George Macmunn, K.C.B., K.C.S.I., D.S.O., Mr. F. F. Lyall, C.I.E., Mr. Wans Ameer Ali, I.C.S., Mr. O. C. G. Hayter, and Hon. Mr. Justice W. A. Le Rossignol.
[f1]12,465.
Dr. B. R. Ambedkar: Were there
Ministers in India at the time when you were District Judge ?
Lt. Col. C. E. Brace :
There were, but they were not concerned with me ; I should say, not elected
Ministers, but I am referring now to the future in this Memorandum when, as I understand,
the proposed Constitution—
12,466.
Dr. B. R. Ambedkar:
I thought you were speaking from your experience?
Lt.
Col. C. E. Bruce:
May I explain to you ? This refers to the future when the
proposal is to place Ministers under elected Legislatures and responsible to elected Legislatures and liable to stand or fall with their
Cabinets.
Sir
Hari Singh Gour:
Your words are prophetic.
Wing
Commander A. W. H.
James, M.P., and Dr. J. H. Hutton, C.I.E., I.C.S.
[f2]D29.
Dr. B. R. Ambedkar:
Cannot they plead tribal law as their customary law ?
Wg. Comdr. A. W. H. James :
No ; it is not recognised by the High Court.
Dr.
B. R. Ambedkar:
The High Court would recognise any custom ?
Wg.
Comdr. A. W. H. James:
It is not necessary to establish that it is a Hindu or Mohammedan custom. If there is no
law laid down in that sense, the custom would govern. Ordinarily, that would be the thing.
I am not speaking with first hand knowledge.
* * * * *
[f3]D222.
Dr. B. R. Ambedkar:
Dr. Hutton, in reply to a question by Major Attlee, I think you stated that you would prefer that the
administration of the excluded areas should be a Central subject, rather than a Provincial
subject ?
Dr.
J. H. Hutton:
That is my own feeling.
* * * *
D224.
Dr. B. R. Ambedkar : I just want to turn to some other matters which have
been discussed in your paper. I think you are proceeding upon the basis that these people
should under no circumstances come within the purview of the new constitution
Dr.
J. H. Hutton:
That is so.
D225.
Dr. B. R. Ambedkar : That is the
hypothesis and the basis upon which you are proceeding ?
Dr.
J. H. Hutton:
I admitted that in some circumstances where they are very
scattered living among other populations, it would be
otherwise.
D226.
Dr. B. R. Ambedkar: But in the
main, that is the hypothesis upon which you are proceeding ?
Dr.
J. H. Hutton:
Yes, in the main.
D227.
Dr. B. R. Ambedkar:
What is the ideal that you have before you for these people ?
I will crystallise my question so that you may answer it better.
Dr.
J. H. Hutton:
The minimum of interference by anybody.
D228.
Dr. B. R. Ambedkar:
Let me put it in the way I visualise the question. Is it your ideal that these primitive people should continue to remain primitive
people without having anything to do with the affairs of the rest of India, or do you
propose that the destinies of these people should be so
regulated that in course of time they should cease to be an isolated part of humanity and
take part in the public affairs of their country as the rest of Indians are doing now ?
Dr.
J. H. Hutton:
I think that the second is my ideal.
D229.
Dr. B. R. Ambedkar :
That they should not continue permanently as primitive
people ?
Dr.
J. H. Hutton:
The question would have to be that, if possible, ultimately they should take a part in the life of their
country.
D230.
Dr. B. R. Ambedkar: That is what I say ?
Dr.
J. H. Hutton:
But it is possible that in some cases you might never be able to achieve that ideal.
D231.
Dr. B. R. Ambedkar: Let us, first of all,
ascertain what the ideals are ?
Dr.
J. H. Hutton:
Yes.
D232.
Dr. B. R. Ambedkar: I am not introducing the
religious question at all, whether they should be this or that ?
Dr.
J. H. Hutton:
No.
D233.
Dr. B. R. Ambedkar:
What you do point out is this : You do say, and I think it
is your ideal, that they should become part and parcel of the civil society ? Dr. J. H. Hutton:
Yes.
D234.
Dr. B. R. Ambedkar:
And outgrow their tribal condition ?
Dr.
J. H. Hutton:
Yes, I think that is necessary.
D235.
Dr. B. R. Ambedkar: Let me therefore proceed
further. If that is the view, is it not desirable that there should be a common cycle of
participation both for the civilised people of India and for these primitive people ?
D236.
Dr. B. R. Ambedkar :
So that there may be a percolation of the ideas which are agitating the minds of the
civilised part of Indian society into this primitive class of people ?
Dr.
J. H. Hutton:
I think the ideas will percolate without any difficulty.
D237.
Dr. B. R. Ambedkar : How ?
Dr.
J. H. Hutton:
What troubles me is that unless they are separated they arc likely to be destroyed by too
abrupt contact. That is what has happened nearly everywhere else in the world.
D238.
Dr. B. R. Ambedkar:
I do not know but I do want to submit to you for your consideration whether if, as you
have admitted, that is your ideal, namely, that they shall some day become part of the
Indian society, segregation, and so complete and so rigid a
segregation as you propose, is the proper way for the realisation of that ideal ?
Dr.
J. H. Hutton:
I think it is the only possible one myself.
D239.
Sir Reginald Craddock: Might I put a question ? There are various educational agencies going on in some of
those tribes. Is not that the case ?
Dr.
J. H. Hutton:
Yes, certainly....
D240.
Sir Reginald Craddock:
Are they chiefly missions, or has the Government any schools ?
Dr.
J. H. Hutton:
The Government has a number of schools.
D241.
Sir Reginald
Craddock: That would be one of the points that you would refer to in connection with
the improvement of these classes would not you ?
Dr.
J. H. Hutton :
I should.
D242.
Dr. B. R. Ambedkar:
I want to proceed a little further. I see from your paper (correct me if I am wrong) that
you are troubled about two things. You think that a contact or incorporation, if I may use
that term, of the educated or the advanced or the civilised Indians, and of the primitive
people in one constitution is likely to result, first of all, in their exploitation by the
advanced classes or shall I say, the civilised part of the Indian society ?
Dr.
J. H. Hutton:
Yes.
D243.
Dr. B. R. Ambedkar:
Secondly, I suppose I am right in summarising it thus, that you are afraid that sufficient
attention will not be paid to them in the new Council ?
Dr.
J. H. Hutton:
Yes.
D244.
Dr. B. R. Ambedkar:
Let me put to you one question. I will take the case of their land. Is it not a fact that
this question, namely, of keeping the land in. the hands of
the primitive people as far as possible that they may not be rendered a class of landless
labourers, is also the problem which is before many of the agricultural classes in India
and that even for their protection it has become necessary to pass Acts like the Deccan Agricultural Relief Act in Bombay and the Alienation of
Land Act in the Punjab and several other cases ?
Dr.
J. H. Hutton :
I believe such Acts have been passed.
D245.
Dr. B. R. Ambedkar : My suggestion is this, that if these primitive people
are brought under the same constitution as the rest of India they would not be quite alone
in their demand for keeping the moneylender out and seeing
that the land remains in the hands of those who cultivate it. "There would be many others who would have a similar demand to
make in the Legislature. The point I want to make is that
they would not be isolated ?
Dr.
J. H. Hutton:
The point which I should be inclined to answer was that the proof of the pudding was in
the eating, and, as far as experience went, it has shown that they always have been done
out of their land.
D246.
Dr. B. R. Ambedkar: But, Dr. Hutton, would you mind making this distinction, that the
Legislatures, as they are composed today, and as they were composed some time ago, are not
going to be the same as the Legislatures that will be
composed under the White Paper ?
Dr.
J. H. Hutton:
Yes.
D247.
Dr. B. R. Amhedkar:
You would have a certain amount of representation drawn from the general electorate who
would favour the poorer classes. The experience of the last Legislatures would be no safe guide in a matter of this kind?
Dr.
J. H. Hutton :
I would sooner be on the safe side and exclude them.
D248.
Dr. B. R. Ambedkar : I do not know, but you are not prepared to deny the fact
that they would have many friends in the Legislature ?
Dr.
J. H. Hutton:
I would not admit that. I should like to be convinced first that they would have many
friends. There may be others with similar interests, but they would have very little in
common with them individually.
D249.
Dr. B. R. Ambedkar: Yes, but I mean so far as
the general question of protection for a class similarly situated is concerned ?
Dr.
J. H. Hutton:
I can conceive that a Musselman cultivator in Sihat would
demand the maximum of protection for himself and the maximum of non-protection for his
neighbours.
D250.
Dr. B. R. Amhedkar :
Do you think the Legislature would go to the length of saying that certain laws which are
necessary in the interests of Indians are not to be extended, and that the protection of
those laws is not to be given to the primitive classes ?
Dr.
J. H. Hutton:
No, I do not think they would go as far as that.
D251.
Dr. B. R. Ambedkar: How would the discrimination
arise?
Dr.
J. H. Hutton:
I think the primitive classes might have extreme difficulty in obtaining the necessary
protection. There is no guarantee with the depressed classes that the cultivator will
obtain the necessary protection under the new constitution.
D252.
Dr. B. R. Ambedkar:
Quite true; I agree with you. There can be no protection
that the other classes probably would not club together and prevent protection being given
to some other minorities ? The fear is legitimate, but
taking into calculation all the forces on the one side and all the forces on the other, the point I want to make to you is that the fear, that one or
two, or a few representatives of the primitive classes in the Provincial Council will feel
that they are overwhelmed by the forces on the other side, is
not quite justified by an analysis as I am presenting it to you of the composition of the
future Legislatures as it will be under the White Paper proposal ?
Dr.
J. H. Hutton:
In view of the difference of race, I think it is possibly justified, at any rate in
certain places.
D253.
Dr. B. R. Ambedkar: Take the
question again of education. I happen to know something about these primitive people in
the Bombay Presidency. We have a backward classes ?
Dr.
J. H. Hutton:
Yes, I know.
D254.
Dr. B. R. Ambedkar:
We ourselves are not very far divided from them ? Dr. J. H. Hutton: I
know.
D255.
Dr. B. R. Ambedkar:
Educationally speaking, one could not really say that a good many people in India are in
less need of education than the primitive or the backward people ?
Dr.
J. H. Hutton:
You could not say what ?
D256.
Dr. B. R. Ambedkar : You could not say (take, for instance, the depressed
classes) that bare educational need is less ?
Dr.
J. H. Huttton:
You could not say that it was less.
D257. Dr. B.
R. Ambedkar : One could
not say it ?
Dr. J. H. Hutton:
No.
D258.
Dr. B. R. Ambedkar : I have been sitting on the
backward class board in Bombay, which is a composite board for the depressed classes and
these primitive people ?
Dr.
J. H. Hutton:
Yes, in certain cases the primitive people are very much
more educated.
D259.
Dr. B. R. Ambedkar : Therefore, as I say, taking their educational need, in
the Legislative Council, they would not find themselves isolated ?
Dr.
J. H. Hutton:
They might do.
D260.
Dr. B. R. Ambedkar:
You would desire that they should be completely excluded, and their need, such as
education, which I think is the greatest need of these people should be met entirely by
revenues supplied by the Governor under his special responsibilities ?
Dr.
J. H. Hutton:
Yes.
D261.
Dr. B. R. Ambedkar:
I want to put this to you: whether a Governor would at all go to the length of providing what he
thought was a sufficient amount of funds for the education
of the primitive classes if his Ministers did not support him?
Dr.
J. H. Hutton :
That is a serious difficulty.
D262.
Dr. B. R. Ambedkar:
If there is something in the point that I have put to you, would not it be desirable that
some representatives of these people should be in the
Legislative Council so that a Minister may be dependent upon their votes, and may be
amenable to their wants ?
Dr.
J. H. Hutton:
An odd vote or two would not be likely to affect a Minister.
D263.
Dr. B. R. Ambedkar: I do not say
one or two. You may have a small number, but, assuming they have adequate representation
in the Legislature, would not the Minister be dependent upon their votes, and, therefore,
he might be more amenable to their wants ?
Dr.
J. H. Hutton:
Theoretically, but not in practice. Their numbers would be so small.
Dr.
B. R. Ambedkar:
In politics a single vote might turn the balance.
D264.
Lord Eustace Percy:
I thought Dr. Hutton's recommendation was that they should
be excluded from the purview not only of the Province but of the Governor also, and that
they should be administered from the centre. Is not that so ?
Dr.
J. H. Hutton:
That is what I should, on the whole, prefer. I have stated
in my memorandum that in the case of the proposals of the White Paper for the totally
excluded areas in which the Governor acts as the agent of the Governor-General, the White
Paper proposal is satisfactory. I do not say I should prefer it.
D265.
Lord Eustace Percy:
I thought from your proposals for setting up petty States that you intended that it should
as far as possible be a central function ?
Dr.
J. H. Hutton:
My intention was that it should be central as far as possible, certainly.
D266.
Dr. B. R. Ambedkar:
Even in that case, the criticism I have offered would be equally applicable even if the
subject was made central, because the Governor would have to certify the amount necessary
for the administration of the subject and, if the Ministers in the Central Government
objected to spending that amount of money, the conflict would still be there; it would only be transferred from the Provincial Field to
the Central Field ?
Dr.
J. H. Hutton:
I am assuming the Minister would not have a word in it.
Dr.
B. R. Ambedkar:
But my point is that the Minister would have a word, because there would be other rival
claims for the expenditure, and a Minister cannot be expected to be interested in
primitive peoples who are not part of the Legislature.
Dr.
Shafa'at Ahmad Khan:
Would not the representatives of the primitive people in the Legislature generally combine
with the depressed classes ?
D267.
Dr. B. R. Ambedkar:
That is what I am visualising, and, therefore, they would have many friends.
Dr.
J. H. Hutton:
I do not think the representation would be affected.
D268. Dr. B. R. Ambedkar : If I felt as pessimistic as you feel I should at once
say : " I do not want
this constitution at all"?
Dr.
J. H. Hutton:
But I do not, for the primitive tribes.
*
*
*
*
*
D284.
Major Attlee: I
do not think the Simon Commission recommended the forests from your point of view at all.
The forests were recommended by the Simon Commission to be transferred ?
Dr.
J. H. Hutton:
No. I put that forward as a suggestion for the economical
administration of an excluded area.
Lord
Eustace Percy :
Perhaps Dr. Hutton will deal with this difficulty, because I do not understand what a
totally excluded area is in which the provincial forest official and the provincial forest
policy prevails.
D285.
Dr. B. R. Ambedkar : If I may say so, the area is not excluded, it is the
people who are excluded ?
Dr.
J. H. Hutton :
No, the area is excluded, as I read the White Paper. Is
there any definition of a totally excluded area in the White Paper ?
The
Right Honourable Sir Winston
Spencer Churchill, C.H. Member of the House of Commons
[f4]14,681.
Dr. B. R. Ambedkar: Mr. Churchill, the White
Paper does not propose to establish Dominion Constitution ?
Sir
Winston Churchill:
No.
14,682.
Dr. B. R. Ambedkar: Therefore I do not propose
to trouble you with any questions with regard to the logical and metaphysical position, whether one could draw a distinction between Dominion
Status as a ceremonial affair and Dominion Status as a Dominion Constitution. I propose to
ask you just one or two questions with regard to the White Paper itself without confusing
the issue by bringing in anything with regard to the distinction that you propose to make. May I draw your
attention, therefore, to the debate that took place in Parliament on December 1st, 1931,
when the Prime Minister moved the resolution; it was in
these terms : " That
this House approves the Indian policy of His Majesty's Government as set out in Command
Paper No. 3972 — Indian Round Table Conference — presented in Parliament on the
1st December, 1931." That is the first White Paper-not
the full scheme ?
Sir
Winston Churchill:
You mean the Prime Minister's speech ?
14.683.
Dr. B. R. Ambedkar :
The Prime Minister's speech.
Sir
Winston Churchill :
Quite.
14,684.
Dr. B. R. Ambedkar: The Constitution adumbrated
in the White Paper which was presented to the House included in the main the proposals
which are contained in the White Paper as it is presented to the Joint Select Committee.
There was to be Provincial responsible government in the Provinces with the transfer of
Law and Order, and there was to be a sort of dyarchy at the
Centre, in which Defence and Foreign Relations were to be
reserved subjects. Is that right?
Sir
Winston Churchill:
I find no need to interrupt you at this point.
14,685.
Dr. B. R. Ambedkar : Then the next
point I wish to ask about this. The Prime Minister made his object clear in moving this
resolution in the House of Commons. I am reading his words :
"the statement which I made to the Round Table Conference yesterday had the full
authority of the Cabinet, and we now wish, having communicated that statement to the
House, to ask the House by its vote to associate itself with that policy." That was
the object of the Prime Minister in moving this resolution in the House of Commons. Now,
as you know you moved an amendment to the resolution. That amendment was in these terms : " Mr. Churchill : I beg to move in line 3 at end to add the words, provided
that nothing in the said policy shall commit this House to the establishment in India of
Dominion Constitution as defined by the Statute of Westminster;
provided also that the same policy shall effectively safeguard the British trade in and
with India from adverse or prejudicial discrimination, and provided further that no
extensions of self-government in India at this juncture shall impair the ultimate
responsibility of Parliament for the peace, order and good Government
of the Indian Empire."
14,686.
Dr. B. R. Ambedkar :
The impression that I have formed, after reading this debate that took place in the House
of Commons on the 3rd December 1931, was this, that if the Prime Minister had accepted
your amendment you were willing to vote with the Government in support of the resolution
moved by the Prime Minister. Is that correct ?
Sir
Willston Churchill:
I think it very difficult to say what would have happened in these hypothetical
circumstances, but, undoubtedly it would have been a very
great relief to the great mass of Conservative Members in the House of Commons if the
Government had seen eye to eye with those who supported me in that amendment—a very
great relief, and altogether more agreeable atmosphere would have followed immediately and
would have been created.
14,687.
Dr. B. R. Ambedkar:
Fortunately for me, I do not think the matter is really hypothetical because I find you
have taken a very definite attitude with regard to your amendment in the course of that
debate and I want to call your attention to one or two statements you made in the course
of your speech. I think the one fact which has puzzled me, I must admit, is that, first of
all, according to the impression of most Members then
present in the House, there was really no distinction between what the Government was
asserting and what you proposed to state in your amendment. Is it not so ? Let me read a passage of
yours. The point I want to make is this : A subject which
has always puzzled me is this, that having read the statement of the Prime Minister and the amendment which you proposed to move
on that day in the House of Commons, I, at any rate, did
not see any distinction, and that, I say, was your position as well, because I propose to
read a passage which will make it clear. You say at column 234:
"I have finished and I am most grateful to the House for permitting me to intrude for
so long upon. their attention. What can we do but to
preserve with our amendment. It is not a vote of confidence in His Majesty's Government " and this is the important point, " On the contrary, it merely asserts the principles which
they themselves affirm and which both the Prime Minister and the Secretary of State have
affirmed." So you yourself really saw no distinction between the proposals as put
forth in the statement of the Prime Minister and the substance of your amendment ?
Sir
Winston Churchill:
Of course, I thought it was unfortunate that the Government did not take proper view of
the proposal. I should have been very glad to get that amendment on the paper.
14,688.
Dr. B. R. Ambedkar: Let me quote
another passage of what you said on the same day. You said your second alternative to the
Government on that day was that if your amendment was not accepted you would be content to vote with the Government provided the
pronouncement of the Prime Minister was accompanied by the speech of the Secretary of
State that was made on that day in the House of Commons ?
Sir
Winston Churchill:
Yes.
14,689.
Dr. B. R. Ambedkar:
My point is this : If that is your position, namely, that
you were content to vote with the Government on that particular debate, provided the Prime
Minister's announcement was accompanied by the speech made by the Secretary of State in
the House of Commons, what I wish to understand from you is this : What is the difference
between the White Paper as it is presented to this Committee and the statement of the
Prime Minister combined with the speech of the Secretary of State ? Could you give us any difference that you see between the
White Paper as presented to the Committee and the pronouncement of the Prime Minister as
interpreted by the Secretary of State in the House of Commons ?
Sir
Winston Churchill:
In the case of a difference which arises in a Parliament or in a House of Commons between
two sides of a debate, it is difficult for outsiders to appreciate what the difference was
unless they understand all the circumstances which influence and affect our debates, but
that there was a great and real difference between the amendment which I sought to have
put upon the paper and the resolution which the Government passed over our heads is
indisputable. There was a sharp difference. Each side naturally presents its case in the
manner least likely to deter support, but the difference is there all the same and remains
quite clear, and I do not suggest to Dr. Ambedkar that in justice to our Parliamentary institutions, he
should remember that we still have a bicameral Parliament and that the debates in the House of Lords must be read in conjunction with those in the House of Commons.
14,690.
Dr. B. R. Ambedkar: If I may say
so respectfully, I wish to understand your position alone, irrespective of the position of
the House of Lords or other members of the Party. You stated definitely that you would
vote with the Government, provided the Prime Minister's statement was issued in
conjunction with the speech made by the Secretary of State. The point which I wish to
submit to you respectfully is this : Do you see any
difference in the White Paper as presented to the Joint Parliamentary Committee, and the
statement by the Prime Minister as interpreted that day by the Secretary of State in the
House of Commons ? If there is, of course, you have every
ground to differ ?
Sir
Winston Churchill: I
can assure Dr. Ambedkar that I have never been in favour of
a federal system being erected at this time at the Centre of India nor of transferring law
and order in the Provinces, and nothing that I have ever said in this controversy is in
conflict with that.
Dr.
B. R. Ambedkar:
I have no more questions to ask.
* *
*
*
*
[f5]14,945.
Dr. B. R. Ambedkar :
My Lord Chairman, may I ask a question with your permission
? Chairman: If
you please.
14,946.
Dr. B. R. Ambedkar:
I just want to ask you one question, Mr. Churchill. Do you make any distinction between
responsible government and Dominion Status ?
Sir
Winston Churchill:
Oh, yes. Responsible government has many interpretations, many that we know in practice
and we have seen. Responsible government may mean serious,
real, important functions transferred to the discretion of a Provincial, or local body, or
it may mean the various degrees of responsible government which have a technical
understanding in the language of the Dominions and Colonial Offices, namely. Ministers responsible to the Assembly and so forth, but
there are very considerable gradations in the history of our outlying Dominions and Empire
in the exact form of institutions, which would be covered by the term "responsible
government ".
* * * * *
[f6]15,147.
Dr. B. R. Ambedkar: Would you agree that the
masses should be given adult suffrage ?
Sir
Winston Churchill:
No. 15,148.
Dr. B. R.
Ambedkar: Why not ?
Sir
Winston Churchill:
Because I think it quite impracticable.
Lieut.-Colonel Sir Henry Gidney,
M.L.A., I.M.S. (Retired), on behalf of the Anglo-Indian and Domiciled European Association of India
[f7]16,241.
Dr. B. R. Ambedkar: I realise from
your Memorandum that you are very apprehensive of what may happen to your community under
the new Constitution. I believe your apprehensions are shared by many other minorities.
Therefore, the question I want to put to you is this :
Would it serve any purpose which you have in view if a provision was made in the
Constitution that there should be some officer or some Department in the future Central
Government of India which was charged with the statutory duty of presenting to Parliament
annually a Report on the moral and material condition of the various communities in India ? Do you think that proposal would be of any use to your
community in drawing the attention of Parliament to anything that may have occurred in the
course of the administration of various provinces affecting
your material interests?
Sir
Henry Gidney:
That proposal meets with my entire approval as the ultima
thule of what would be the protection of minorities,
but, as a preliminary canter to that the minorities, in my humble submission, demand
protection not in so far as someone can report to the Houses of Parliament annually, but a
practical protection.
16,242.
Dr. B. R. Ambedkar:
Let me make myself clear. What I am suggesting is not in substitution of what you are
asking; it may be supplemental
to what you are asking ?
Sir
Henry Gidney :
Yes.
16,243
Dr. B. R. Ambedkar:
Do you agree with me that this opportunity, or this method of exposing possible abuses of
power in itself serve as a check against any possible abuse ?
Sir
Henry Gidney :
I certainly think it would be a means of bringing to the Houses of Parliament anything in
the way of a prejudicial effect on Communities.
16,244.
Dr. B. R. Ambedkar : Not merely yours, but of many others ?
Sir
Henry Gidney :
Of all minorities.
Mr.
Zafrulla Khan:
What would Parliament be expected to do there" upon ?
Dr.
B. R. Ambedkar:
It would lie there. Parliament would take note of the various Governments. Not only should
the Governor-General know, but Parliament should know how the various Governments are
executing their responsibilities to the various minorities which are placed under their
charge.
Sir
Hari Singh Gour :
And you would call that Provincial autonomy ?
Dr.
B. R. Ambedkar:
Yes; I certainly would.
Mr. J. C. French and Mr S. H. Mills on behalf of Indian Police
[f8]16,904.
Dr. B. R. Ambedkar: Mr. Mills, there is just one question I should like to ask you,
because I am rather interested in getting your view of this
matter. You stated somewhat emphatically that under the proposed Constitution in Bengal,
Muslims and the Depressed Classes would be under the influence of the Congress ?
Mr.
S. H. Mills:
I think there is every chance of their being under the influence of the Congress—a
percentage of them.
16,905.
Dr. B. R. Ambedkar:
You said about 20 of the Depressed Classes ?
Mr.
S. H. Mills:
Yes.
16,906.
Dr. B. R. Ambedkar:
I suppose it is not your suggestion that as it is today there are any Depressed Classes or
there are any Muhammadans who are in sympathy with the
terrorist movement ?
Mr.
S. H. Mills:
We have quite a large number of Depressed Classes who have been arrested as terrorists.
16,907.
Dr. B. R. Ambedkar: From what community?
Mr.
S. H. Mills:
We have had some from peculiar communities and there have been a number of Shahas ; then from Midnapore quite a number of the
Depressed Classes have been arrested—particularly Midnapore.
16,908.
Dr. B. R. Ambedkar: Shaha
is not a scheduled caste of the Depressed Classes ?
Mr.
S. H. Mills:
No. In the Midnapore district there have been quite a number of the Depressed Classes who
have been arrested.
16,909.
Dr. B. R. Ambedkar :
Now the next point that I want to draw your attention to is this:
May I just put it? Is it your experience, for instance, that a large community like the Namasudras in Bengal are in any way connected with the
terrorist movement ?
Mr.
S. H. Mills :
Yes, they are.
16,910.
Dr. B. R. Ambedkar:
The next question that I want to ask you is this : You know
that under the White Paper proposals the minorities of Bengal have separate electorates ?
16,911.
Dr. B. R. Ambedkar: Do you still think that,
notwithstanding the separate electorates, the Congress will have any influence in the
election of the members of these communities ?
Mr.
S. H. Mills:
I think it is highly probable.
16,912.
Dr. B. R. Ambedkar:
How would that influence be felt ?
Mr.
S. H. Milts:
Because the Congress having the terrorists behind them is very greatly feared in the
Province, and that fear would tend to dominate them.
Secretary of State for India's
Evidence betore the Joint Committee on Indian Constitutional
Reform
[f9]The
Right Hon. Sir Samuel Hoare, Bt. G.B.E., C.M.G., M.P., Sir Malcolm Hailey, G.C.S.I., G.C.I.E., and Sir Findlater Stewart, K.C.B.,
K.C.I.E., C.S.I.
[f10]6394.
Dr. B. R. Ambedkar : I have not followed it. I think even under Proposals 92
and 95, although the Legislature may be in Session, the Governor will not be bound to put
his legislation before the Legislature if he so thinks ?
Sir
Samuel Hoare :
That is perfectly true. The Governor has full discretion.
6395.
Dr. B. R. Ambedkar : The Governor has full discretion ?
Sir
Samuel Hoare :
Whether for ordinances or for legislation, on his own initiative.
[f11]6440.
Dr. B. R. Ambedkar : I want to pursue this point a stage further. You said
that would depend on the circumstances of the case. That was not the question of Sir Tej Sapru. The question is, is
this Clause wide enough to give the power to intervene and say :
" No, this will interfere with peace and tranquillity,
and I will not allow you to introduce this legislation "
?
Sir
Tej Bahadur Sapru:
The Clause is merely wide enough to allow the Governor to
take action if he is convinced that it will lead to a grave menace to the peace and
tranquillity of the Province, not mere that he thinks such legislation is undesirable in
the interests of one class or another.
6441.
Dr. B. R. Ambedkar : If he comes to that conclusion this clause is wide
enough for him to say : "
I will not allow you to proceed with such legislation "
?
Sir
Samuel Hoare:
I can only say we have had in the United Provinces within the last two years the menace of
very grave trouble indeed arising out of the agrarian situation, and dealing with the
rental question. There was a stage then when, in my opinion, this clause would undoubtedly
have applied, but it would have applied because there was threatening of actual risings of
tenants in certain parts of the Province. I would not have held that it would have applied
if it had been merely the case that one class or
other
would have been prejudicially affected by the Legislature.
[f12]6533.
Dr. B. R. Ambedkar : I want to know whether the Secretary of State desires me
to reserve any questions upon Second Chambers for the
Provinces ?
Sir
Samuel Hoare:
I would suggest, so far as the Constitution of the Second Chambers goes (the membership),
perhaps it would be better to take that with the franchise generally.
6534.
Dr. B. R. Ambedkar: This franchise
question ought to be excluded at this stage ?
Sir
Samuel Hoare :
Whatever the Committee thinks, I should have thought it came better into the franchise.
Dr.
B. R. Ambedkar:
I will not ask any questions of the Secretary of State.
Chairman:
I think the Secretary of State's suggestion is a practical one. I hope you will not put
questions at this stage.
6535.
Dr. B. R. Ambedkar:
I was going to ask the composition of the Second Chamber. Would it be better to reserve it
?
Sir
Samuel Hoare:
Yes, I think perhaps that would be better.
6536.
Dr. B. R. Ambedkar: You said in the course of a
reply to a question put last time, that you contemplated that in the Provinces the
Ministers could be drawn from either Chamber, both the Lower and the Upper ?
6537.
Dr. B. R. Ambedkar :
You remember that in the Second Chamber, as suggested in the White Paper, there are to be
10 nominated Members ?
6538.
Dr. B. R. Ambedkar :
Is it the proposal that these 10 nominated members who will
sit in the Upper Chamber will also be eligible for being Ministers ?
Sir
Samuel Hoare:
Yes, I would not draw any distinction between them and the others.
6539.
Dr. B. R. Ambedkar :
The nominated members would be eligible for being Ministers ?
Sir
Samuel Hoare :
Yes, certainly; that is how I conceive it to be.
6540.
Dr. B. R. Ambedkar: In the present Government of
India Act there is a distinct provision that any member who is a nominated member of the
Provincial Legislature is not eligible for being a Minister ?
Sir
Samuel Hoare:
I take it from Dr. Ambedkar that is so.
6541.
Dr. B. R. Ambedkar :
I stand subject to correction, but I believe that is the position ?
6542.
Dr. B. R. Ambedkar :
So you are really introducing the very important change by allowing nominated members in
the Upper Chambers to be Ministers in the new Government ?
Sir
Samuel Hoare:
It is, of course, a very different kind of Government.
6543.
Dr. B. R. Ambedkar :
I am not going into the reasons, but I am only stating the
facts ?
Sir
Samuel Hoare :
Yes. I think there is a great deal to be said for giving
the Governor a free choice, always assuming. Dr. Ambedkar, that the Cabinet is collectively responsible and
there would be no intention of imposing a Minister against
the wish of the Cabinet in case of this kind.
[f13]6549.
Sir Tej Bahadur Sapru : Is Sir Samuel right in conceding that the present Government of India Act makes a distinction between elected and
nominated members for appointment as Ministers ?
Sir
Malcolm Hailey :
It was new to me, but I took it from Dr. Ambedkar.
Dr.
B. R. Ambedkar:
I used it in the sense that it must be 'an elected member
within six months.
Sir
Tej Bahadur Sapru :
So far as I can see the Government of India Act makes no
distinction between elected and nominated members for the purpose of appointment as
Ministers. The Section which deals with that matter is Section 52.
Dr.
B. R. Ambedkar:
He has to get himself elected.
6550.
Sir Tej Bahadur Sapru: I thought Dr. Ambedkar
put it to Sir Samuel, and suggested that the Government of India Act makes a distinction
between elected and nominated members in the matter of being Minister ?
Sir
Malcolm Hailey:
It only does so to the extent of laying down that a Minister shall not hold office for a
longer period than six months unless he becomes an elected member.
6551.
Sir Tej Bahadur Sapru :
But if there is a nominated member there already, there is nothing to prevent you from
appointing him Minister ?
Sir
Malcolm Hailey :
That is so.
6552.
Sir Tej Bahadur Sapru :
And that has been done ?
Sir
Malcolm Hailey :
Yes.
Sir
Tej Bahadur Sapru:
The law, as I understand it, is this: It is open to the
Governor to appoint any outsider a Minister, provided that outsider gets elected to the
Legislative Council within a period of six months. Similarly, it is open to the Governor
to appoint a Minister from the block of nominated members who are already there. The Act
does not make any distinction.
6553.
Mr. Zafrulla Khan : Once a nominated member is appointed, does he continue
to be nominated member all the time or must he seek election ?
Sir
Samuel Hoare:
No, I thought that was quite clear. A nominated member is treated just like anyone else.
Dr.
B. R. Ambedkar:
He cannot continue to be a Minister after six months unless he gets elected.
[f14]6558.
Dr. B. R. Ambedkar : May I read the section ?
Sir
Samuel Hoare:
Does it really very much matter with what the position is now?
6559.
Dr. B. R. Ambedkar : It matters because I want
to ask what the exact position is. Section 52, sub-section
2 is : " No Minister
shall hold office for a longer period than six months unless he is or becomes an elected
Member of the Local Legislature." All I wanted to
suggest was that the Act does not contemplate the continued holding of a nominated member
as a Minister, which would be the case if the suggestions in the White Paper were adopted,
that a nominated Member of the Second Chamber would be entitled to be a Minister. With
respect to the appointment of the Ministry, I want to draw your attention to the
recommendation of the Sub-Committee on Provincial Constitution. They said: " The Sub-Committee is
of the opinion that in the discharge of that function the Governor should ordinarily
summon the Member possessing the largest following in the Legislature and invite him to
suggest the Ministers and submit their names for approval." Paragraph 67 says that he
shall make "his best endeavours to select his Ministers in the following
manner"—which I regard as a considerable departure from the recommendation of
the Provincial Constitution Committee ?
Sir
Samuel Hoare:
I do not think there is any departure at all. The Committee said ' ordinarily ', and this is, I
imagine, what will ordinarily happen.
6560.
Dr. B. R. Ambedkar: You do not think it would be necessary, in the
interests of fostering collective responsibility, to impose an obligation upon the
Government that he should follow a particular course in the formation of the Ministry ?
Sir
Samuel Hoare:
The Round Table Committee that Dr. Ambedkar quotes did not
think so.
6561.
Dr. B. R. Ambedkar:
I thought that was the thing ?
Sir
Samuel Hoare:
You have just read a quotation from them saying "
ordinarily " they thought so.
6562.
Dr. B. R. Ambedkar: Or that they should do
it—not "best endeavour "
?
Sir
Samuel Hoare:
It is a question of words.
6563.
Dr. B. R. Ambedkar :
The next question I want to ask is on the question of this
ordinance power of the Ministers under Proposal 104. What I
want to know is this : Why is it necessary to make a
provision of this sort in the Constitution itself ? Would
not it be possible for a Ministry in a Provincial Legislature to have an Emergency Act
passed by the Legislature itself similar, for instance, to that of 1920 in this country,
and to derive its powers from the Acts passed by the Legislature ? I am talking about No. 104 :
Would not it be possible for the Provincial Ministry to
have an Act passed by the Provincial Legislature giving them the necessary powers to act
in a specified emergency ?
Sir
Samuel Hoare :
I should have thought this was essentially a power that every government must possess, namely, of taking emergency action when
the Legislature is not sitting and particularly necessary
in a country like India where there are great distances and where it may take some time to
get the Legislature sitting.
6564.
Dr. B. R. Ambedkar: I suggest the
Provincial Ministry can get an Act passed from the
Provincial Legislature defining the emergencies in which they may be called upon to act,
and the Legislature may give them the powers. Why is it necessary to make a provision of
this sort in the Constitution itself?
Sir
Samuel Hoare:
Because I regard it as an essential power that a Government should have, and as we are
dealing with the whole field of the Constitution it is the kind of power that ought to be
inserted in the Constitution Act.
Dr.
B. R. Ambedkar:
It is a power that is intended to be given to a responsible Ministry and it is, in the
nature of things, that the responsible Ministry should draw its powers, whether emergency
or otherwise, from the Legislature to which it is
responsible.
Lord
Eustace Percy:
May I remind Dr. Ambedkar that the Act of 1920 in this
country only regularized a power which Ministers frequently exercised in the past without
legislation ? It has always been the practice in this
country, that, subject to be a sequent Parliamentary indemnity, a Ministry can issue an
Emergency Order.
Dr.
B. R. Ambedkar:
That is all I ask.
* * * * *
[f15]6870.
Sir Hubert Carr:
No. 44 gives the Governor-General power in his discretion, "
in any case in which he considers that a Bill introduced, or proposed for introduction, or
any clause thereto, or any amendment to a Bill moved or proposed would affect the
discharge of his ' special responsibility ' for the prevention of any grave menace to the peace or
tranquillity of India, to direct that the Bill, clause or amendment shall not be further
proceeded with." That, I understand, is only in the case of his special
responsibility for the peace or tranquillity of India being threatened. Does any such
power exist for him in the case of his other special responsibilities being threatened ?
Sir
Samuel Hoare:
No, I think not.
6871.
Sir Hubert Carr:
For instance, (b):
"The safeguarding of the financial stability and
credit of the Federation " ?
Sir
Samuel Hoare :
No ; it is limited to the special responsibility for grave
menace to peace and tranquillity.
Sir
Malcolm Hailey :
I think I could give Sir Hubert the reason for that. It is
a practical repetition of Section 67 (2a) of the existing Act
which only refers to the safety and tranquillity in British India, and it has been
repeated almost in terms.
6872.
Sir Hubert Carr: It is not considered necessary to give the Governor-General
that power to prevent his responsibilities being threatened other than peace and
tranquillity ?
Sir
Findlater Stewart:
No. He could, of course, refuse his assent to the Bill as passed by the House.
6873.
Sir Hubert Carr:
But he cannot stop the discussion ?
Dr.
B. R. Ambedkar:
I would like to reserve my questions for the Secretary of State because they are questions
of policy.
* * * * *
[f16]7016.
Dr. B. R. Ambedkar :
Arising out of the questions that were put by Mr. Morgan Jones regarding the pledges, you
stated that no responsible statesman in this country has bound himself to time and pace.
Is that so ?
7017.
Dr. B. R. Ambedkar: But I think there is a
general agreement that the ultimate goal of India's Constitution is to be Dominion status ?
Sir
Samuel Hoare:
It has constantly been so stated.
7018. Dr. B.
R. Ambedkar : So that on the question of the ultimate
goal, there is really no dispute ?
Sir
Samuel Hoare:
That would be so, yes.
7019.
Dr. B. R. Ambedkar:
Now what I want to ask you is this : In view of that, would
you be prepared to put this in the Preamble to the Government
of India's Constitution that India would be Dominion status, leaving the question of the
time and the pace to be determined by circumstances as they arise ?
Sir
Samuel Hoare:
I do not think here and now I would like to give a pledge as to what is or is not put in the Preamble of, an Act of
Parliament. I, myself, am prejudiced against Preamble of Acts of Parliament, for reasons
good or bad, and I would rather say neither yes nor no to Dr. Ambedkar's
question. It is a point that ought to be considered by the Committee. I would not
regard it as a question of principle, one way or the other;
I think it is essentially a matter for discussion. Upon the face of it, I am against these
general declarations in Preambles.
7020.
Dr. B. R. Ambedkar:
I want to say this, that this is not a point in dispute now, and, in view of the fact that
it would have a reassuring effect on the Indian people, it would be desirable to have this
embodied in the Preamble to the Government of India Act ?
Sir
Samuel Hoare:
We must take note of what Dr. Ambedkar has said upon the point.
7021.
Dr. B. R. Ambedkar: Now the next question that I
propose to ask you is with regard to the date of the Federation :
that in view of certain uncertain elements connected with the entry of the Princes into
the Federation, it was not desirable to give a date for the inauguration
of the Federation. Now the point that I propose to put to you is this : What would you say to a proposal like this—1 am making
it as my own : Supposing you started the Federation without
waiting for the Princes, and had a nominated bloc appointed by the Viceroy or the Governor-General,
it may be officials or non-officials, it may be partly from officials and partly from
non-officials, and then inaugurate your Federation, and then, as the Princes come in,
eliminate the nominated bloc to make room for such Princes as begin to come in ? Have you any objection to a proposal of this sort ?
Sir
Samuel Hoore:
Yes, I have several objections to it. I think that, perhaps, the strongest that occurs to
me offhand is that it is a completely new one. Here for the last three years we have been
considering no other kind of Federation than an All-India Federation, with the
Princes adequately represented in it.
7022.
Dr. B. R, Ambedkar : Quite true, but let me pursue this point ?
Sir
Samuel Hoare:
May I just finish my answer? Secondly, I would say, even apart from that every formidable
objection, an objection that would mean that we should have to start all our discussions
over again, there is the further objection that I do not see what is to happen supposing
when you had got your nominated bloc. the Princes then do not come into the Federation at
all.
7023.
Dr. B. R. Ambedkar: I will put my next question. You want the
Princes' representation as a stabilising element ?
Sir
Samuel Honre:
No ; more than that. Dr. Ambedkar;
I would not restrict myself to that at all. I want the Princes' accession for a number of
reasons. I believe, quite apart from the stabilising element of the Princes'
representation, they can bring into the Government of India
many very valuable influences.
7024.
Dr. P. R. Ambedkar: But my point is this, I am not making this
suggestion as a permanent part of the Constitution. I am making the suggestion for the
transitional period until the Princes come in. I am only trying to get over the difficulty
that you would say would arise if the Princes do not make up their minds to come in a
stated period. I am only trying to get over the difficulty as to date ?
Sir
Samuel Hoare:
I quite see that. None the less. with the best will in the world, I do see the very
formidable objections that I have just mentioned to a transitional plan of this kind.
Nowab
Sir Liaqat Hayat Khan:
In any case, if I might interject, had that not better be
brought out when you meet again, in the event of such a contingency arising. It has been
promised that when a contingency arises we meet again. I think a suggestion of that nature
would be more appropriate then rather than now.
Sir
A. P. Patro:
You will not be there when it comes.
Sir
Samuel Hoare :
I have always thought that it is really a great mistake,
particularly for those who are really interested in setting up an All-India Federation, to
concentrate upon setting up some kind of provisional government upon the assumption either
that Federation is never coming into existence, or that Federation is only coming into
existence in the very indefinite future. I believe myself that Members of the Committee
and Indian Delegates who make proposals of that kind, although they do not wish the result
of their proposals to be in the least what it will be, are really putting Federation
further and further into the distance. I only go on repeating my own opinion, and I must
rely upon my British and Indian friends to see that time after time it is not
misrepresented by our enemies outside.
Dr.
B. R. Ambedkar:
May I pursue this a little further. Do you think Federation is more important, or
responsibility is more important ?
7025.
Sir Tej Bahadur Sapru : Or neither ?
Sir
Samuel Hoare:
I do not see the point of Dr. Ambedkar's question.
7026.
Dr. B. R. Ambedkar :
My point is this : If you are not prepared to consider any
alternative for a transitional period the conclusion is that there can be no
responsibility unless there is Federation ?
Sir
Samuel Hoare:
Really now Dr. Ambedkar is raising issues that we have been discussing for three years.
For three years we have assumed in every discussion we have had that these proposals are
based upon a foundation of All-India Federation, and I am not prepared today, after three
years of these discussions, to reopen this question.
Dr.
B. R. Ambedkar:
It is true. I do not want to pursue the matter. I am only suggesting an alternative for your consideration. I have two more questions to
ask, but I do not know whether they will be within the ambit of the topic we are
discussing. One is in relation to the qualifications of candidates for the Federal Upper
Chamber.
Archbishop of Canterbury:
I think that' would more properly come under franchise,
would it not ?
Dr.
B. R. Ambedkar:
I would like to ask a question or two about financial safeguards.
Archbishop
of Canterbury:
I think that clearly comes within finance.
7027.
Dr. B. R. Ambedkar:
I want to ask a question or two about defence. You remember that the Sub-Committee on
Defence in its report recommended that there should be a Military Council. I do not find
any proposal in the White Paper dealing with that ?
Archbishop
of Canterbury:
For the very good reason that we do not think that is a constitutional proposal. It is an
administrative proposal.
7028.
Dr. B. R. Ambedkar: Are you going to have it?
Archbishop
of Canterbury:
I have always myself been in favour of having in India something in the nature of the
Committee of Imperial Defence here. I believe in actual practice it will be found to be
necessary. It is very important to bring not only the Defence Ministers, and the Defence
officials, in touch with Defence problems, but now that Defence covers so very wide a
field of the life of a nation we have found here it is of great value to have a Committee
of some kind in which the appropriate Ministers can be had in for specific discussions, and
there is a strong body, not only of civil opinion, but also of military opinion in India
that is in favour of the development of some such Committee as this, but essentially it is
an administrative question rather than a question that can be dealt with in an Act of
Parliament.
* * * * *
7033.
Dr. B. R. Ambedkar: With regard to
the reserved subjects, you do not propose to make that part
of the budget votable ?
Sir
Samuel Hoare:
That is so.
7034.
Dr. B. R. Ambedkar : That is opposed to the theory of Reserved Departments as
it exists now under the Government of India Act ?
Sir
Samuel Hoare:
It is based upon all our previous discussions and I thought, although there was a good
deal of discussion at the Round Table Conferences about certain features of Defence, there
was a very general agreement upon the point that the monies should not be votable.
7035.
Dr. B. R. Ambedkar:
Do you see any very great danger if the Legislative Assembly vote upon it, and the Viceroy
had the power to certify, if he found any drastic cut was made ?
Sir
Samuel Hoare :
I think it is better in a matter of this kind, in which the responsibility of the Viceroy
is clear and unquestioned, that whilst opportunities should be given for discussion, the
necessary expenditure should be non-votable.
Dr.
B. R. Ambedkar :
The next question is with regard to the appointment of the commander-in-chief. I do not
find any specific proposals dealing with that in the White Paper. Section 19 of the
Government of India Act merely states that commander-in-chief shall be appointed by His
Majesty by warrant under the Royal Sign Manual.
7036.
Sir Tej Bahadur Sapru: It is a curious accident that in the
present Government of India Act there is no reference to the appointment of the
commander-in-chief. All it does is to provide that if the commander-in-chief is a Member
of the Executive Council he should take precedence over the other Members of the Executive
Council. White Paper or not, it is intended to continue the appointment of a
commander-in-chief.
7037.
Dr. B. R. Ambedkar : Section 19(7) of the present Government of India Act
says : " The Commander-in-Chief of His Majesty's Forces in India is appointed by His Majesty by warrant under the Royal
Sign Manual " ?
Sir
Samuel Hoare:
Yes; that would probably go on in much the same way.
7038.
Lord Irwin: Is
not the matter referred to in Proposal 6 at the foot of page 39 of the White Paper ?
Sir
Samuel Hoare :
Yes, paragraph 6, page 39.
7039.
Dr. B. R. Ambedkar : Paragraph 6 does not say how his appointment is going to
be made — on whose advice ?
Sir
Samuel Hoare :
By the Crown.
7040.
Dr. B. R. Ambedkar :
On whose advice ?
Sir
Samuel Hoare :
The appointment is made by the Government here.
7041.
Sir Austen Chamberlain: By His Majesty acting
on the advice of Ministers
at home ? Sir Samuel Hoare : Yes.
7042.
Dr. B. R. Ambedkar :
I look up the other day the Debates in the Legislative
Assembly dated the 17th February, 1921 and Sir Godfrey Fell described the circumstances
under which the Commander-in-Chief was appointed in these
terms : " The
appointment of the Commander-in-Chief is made by His
Majesty the King on the advice of the Cabinet, and the Cabinet naturally turns to the
Chief of the Imperial General Staff, the highest military authority in the British Empire,
for advice." So the position is that the Commander-in-Chief under the present law or
practice is appointed by the Cabinet on the advice of the Chief of the Imperial General
Staff ?
Sir
Samuel Hoare :
He is not appointed by the Cabinet; he is appointed by the
Crown, on the advice of the Prime Minister, or whatever it may be— the Secretary of
State for India here.
7043.
Dr. B. R. Ambedkar:
The point I want to put to you is this : Do you think this
practice is consistent with the new sort of Government we are contemplating, considering
that Defence is to be largely a responsibility of the Indian people and the Indian
Legislatures ?
Sir
Samuel Hoare :
I think it is quite inevitable with Defence a Reserved Department.
7044.
Dr. B. R. Ambedkar:
But it is also going to be a responsibility of the Indian people and the Indian
Legislatures. How is the appointment of an important officer who is going to be in charge
of a very important Department under the new Government, who is appointed not on the
advice of the Secretary of State, not on the advice of the Governor-General, but on the
advice of the Cabinet in consultation with the Chief of the Imperial General Staff,
compatible with a Government whose Defence will be a responsibility of the Indian people ?
Sir
Samuel Hoare:
Surely, if Defence is a Reserved Department the Government to whom those Reserved
Departments are responsible should make the appointment.
7045.
Dr. B. R. Ambedkar: I can understand the Viceroy
making this appointment; I can understand the Secretary of
State making the appointment ?
Sir
Samuel Hoare:
That is what it comes to
[f17]7125.
Marquess of Salisbury :
Your plan, as I understand (or I ought to say
the plan you prefer of three
plans), was to add to the representation of the Princes already in the Assembly a
proportion of the other Princes' representation on the same proportion as those already
admitted. Is that so?
Sir
Samuel Hoare :
I do not know what Lord Salisbury means by saying "
upon the same proportion as those already admitted."
7126.
Marquess of Salisbury :
I understand one of the States which came in would have say, 10 seats ?
Sir
Samuel Hoare:
I see what Lord Salisbury means. I think very likely it would work out on those lines.
7127.
Marquess of Salisbury:
There is only one other question I want to put as regards the Provincial distribution,
that is to say, the distribution of seats in the Provinces. He is aware, of course, that
there is a great deal of difference of opinion on that. I am not going into the difference
of opinion, as to whether the communities are properly represented in Bengal under the Poona Pact. I am not going into it;
but I am going to put this question to the Secretary of State :
Whether he has any statement at all to make upon that subject ?
Sir
Samuel Hoare :
Upon the Communal decision of the Government ?
7128.
Marquess of Salisbury:
In the case of Bengal, I am speaking especially ?
Sir
Samuel Hoare:
No, I have nothing to add to the Memorandum that I circulated to the Committee and
Delegates on the 26th May upon the Government's Communal decision. The Government made it
quite clear that they regarded their decision as final and they were only prepared to
accept a variation if it was clear to them that the variation had been agreed by the
accredited leaders of the various communities; and, as a
Member of the Government, I am not prepared to add anything further to that statement of
Government policy.
Chairman:
Secretary of State, do you desire to hand in the Memorandum to which you have just
referred ?
Sir
Samuel Hoare:
Yes, the Memorandum is as follows : —
MEMORANDUM—COMMUNAL
AWARD
I
think it may be useful to my colleagues on the Joint Select Committee who have not been
familiar with the developments leading up to the White Paper, if I give for their
information a very brief account explaining the scope of what is known as the
"Communal Award", the history of its origin, and why it stands, so far as the
Government is concerned, on a different footing from the other proposals in the White
Paper.
2.
Both the first and second sessions of the Round Table Conference found progress much
impeded through the failure among the Indian delegates to reach mutual agreement both on
the number of seats which the various great communities in India were to secure in the
Legislature and on the method of election to those seats. The main issue as regards
election was whether separate electorates were to be
maintained or the system of. joint electorates
with reserved seats; employed. (For an explanation of these terms see paragraphs 149 and 150 of Vol. I of the
Statutory Commission's Report). Repeated failure, after many attempts, to reach agreement
on these problems had not only left this vital gap in the Constitution so far outlined,
but was preventing some of the minority communities from proceeding any further with
discussion of other aspects of the Constitution which had a communal bearing until they
knew where they stood as regards their representation in the Legislatures.
3.
Accordingly, in order to remove this obstacle to progress, the Government were very
reluctantly compelled to give a decision on these points which was more or less of the nature of an arbitral award. The Government
undertook to incorporate the provisions of the award in their proposals to Parliament.
This award covered the composition of the Provincial Legislatures and the method of
election to them. It was found impossible to isolate the more purely communal questions
involved from such matters as the number of seats for special interests, and the size of
the Legislatures. On such points, however, the Government
had had the benefit of the advice of the Indian Franchise (Lothian) Committee. The award
was issued on the 16th August, 1932, and presented to Parliament as Cmd. 4147.
4.
Subject to an alteration in respect of the Depressed Classes explained further below, the
provisions of the Award are reproduced on pages 91 and 93 of the White Paper (those
regarding election on page 91 being a slightly abridged version).
5.
The announcement prefaced to the Award contained the following very important passage :—
Paragraph
4. " His Majesty's Government wish it to be most clearly understood that they themselves can be no parties to any
negotiations which may be initiated with a view to the revision of their decision, and
will not be prepared to give consideration to any representation aimed at securing the
modification of it which is not supported by all the parties affected. But they are most
desirous to close no door to an agreed settlement should such happily be forthcoming. If,
therefore, before a new Government of India Act has passed into law, they are satisfied
that the communities who are concerned are mutually agreed upon a practicable alternative
scheme, either in respect of any one or more of the Governor's Provinces or in respect of
the whole of British India, they will be prepared to recommend to Parliament that
alternative should be substituted for the provisions now outlined."
6.
Since the Award there has been one important modification in respect of the representation
of the Depressed Classes, the history of which is shortly as follows: On the issue of the Award Mr. Gandhi
expressed his intention to fast
against it in view of his objection to the provisions made regarding representation
of the Depressed Classes, which, in his view, would have produced an artificial splitting
of the Hindu community. In published correspondence the Prime Minister gave the reasons
why the Government were unable to take the same view, but Mr. Gandhi
remained unconvinced and began his fast. Negotiations now began, under Mr. Gandhi's auspices, between the representatives of caste-Hindus
and representatives of the Depressed Classes led by Dr. Ambedkar.
As a result an agreement was reached, now known as the Poona
Pact, by which the number of the Depressed Classes seats in each province were increased
above that recommended by the Communal Award, while a different system of election was
substituted. The total number of Hindu seats (known technically as "general"
seats) for caste-Hindus and Depressed Classes taken together remained the same under the
Poona Pact as under the original Communal Award. The
Government accepted the provisions of this Pact in modification of their Communal Award as
being a mutually agreed practicable alternative under the provisions of paragraph 4 quoted
above, and on this being announced Mr. Gandhi broke off his fast. The White Paper
proposals on pages 91 and 93 incorporate the terms of the Poona Pact.
7.
The position of the Government, therefore, as regards the proposals of the White Paper
which cover the composition of Provincial Legislatures and the method of election thereto[f18]
is that they themselves are specifically pledged not to recommend to Parliament any
variation of these proposals except such as may be mutually agreed upon by the communities
concerned, and they are also pledged as a Government not to participate in any
negotiations for the purpose of reaching such a change. The Government
interpret this pledge as covering the provisions of the Poona Pact which they have
themselves accepted in the circumstances explained above.
8.
The original Communal Award was concerned only with the Provincial Legislatures owing to
the fact that corresponding provisions for the Centre could not very well be settled
pending a decision on the numbers to be assigned in the Federal Legislature to British
India and British Indian States respectively. The proposals in Appendices I and II of the
White Paper, which should be read with paragraph 18 of the Introduction to the White
Paper, now contain the Government's proposals on this subject. These proposals are in
effect supplementary to the original Communal Award. The Government have, however, not
given in respect to them a specific pledge similar to that contained in paragraph 4 of the
original announcement quoted above. While, therefore, they are not anxious to see a fresh
investigation de novo into these
proposals for allocation between the communities of seats in the Central Legislature, they
do not consider these proposals to stand as regards their own attitude, in exactly the
same position as the Provincial Communal Award, but they see the gravest objection to any
change on two points, viz., the allocation of one-third of
the British India seats in the Federal Legislature to Muslims, and the percentages of the
seats allocated to British India and the States
respectively[f19]
9.
To summarise, it will be clear from the above that the Communal
Award has reference only to the composition of the Legislatures, and is not concerned with
the whole of the manifold points in the Constitution which have a communal aspect (e.g.
special responsibilities of Governors and Governor-General,
relations between Centre and Provinces, fundamental rights, etc.) and also that in respect
of the matters provided for in the Communal Award, the Government have clearly defined
their position and the conditions upon which alone they would think it justifiable to
depart from it.
*****
[f20]
7231. Sir Austen
Chamberlain: Is it the intention of the Secretary of State at sometime during our
proceedings to make proposals of that kind to us ?
Sir
Samuel Hoare:
Certainly; I think it is quite essential that in any
Constitution Act, somewhere or other, there should be provision for constituent powers.
7232.
Dr. B. R. Ambedkar: I may draw
attention to similar provisions in the present Government of India Act. There are certain
sections mentioned in an appendix.
Sir
Samuel Hoare:
It is I think following the lines of every Constitution
Act
and following the lines of the Government of India Act itself.
*****
7236.
Lord Salisbury: I
have read it as well as I can at the moment, but I have not been able to appreciate it
fully ?
Sir
Samuel Hoare :
If Lord Salisbury will look at it again, always keeping in mind the fact that this is one
of the questions which we have to consider and for which we have eventually to make some
kind of provision in the Constitution Act, I think he will fully appreciate it.
Dr.
B. R. Ambedkar:
It is the Fifth Schedule to the Government of India Act : " The provisions of this Act which ,may be repealed or altered by the Indian Legislature."
[f21]7260.
Marquess of Zetland: May I ask one supplementary
question? With regard to those four constituencies which will return Depressed Class
representatives, will they overlap territorially ?
Sir
Samuel Hoare:
I do not think it has been worked out, but I think they
will be chosen not to overlap. The whole area of Madras will be divided up into 15 areas; II of these, as I see it, will be of the ordinary kind
7261.
Dr. B. R. Ambedkar : Fifteen will
be general ?
Sir
Samuel Hoare:
I make II ordinary, making 19 in all; II single members and four double members.
7262.
Mr. Zafrulla Khan: May I put one question to Sir Findlater
Stewart to clear up one aspect of it? I merely want to
understand it. Supposing a panel of four is chosen and then they proceed to contest or
this particular constituency reserved for them amongst themselves. One knows if a contest
comes forward, everybody will vote who can vote in a general constituency, but supposing
three of them say : "
We do not wish to contest this election," would it be
possible for them to withdraw before the election takes place ?
Sir
Findlater Stewart:
It is an interpretation of the Poona Pact.
Sir
Samuel Hoare:
What does Dr. Ambedkar say ?
Dr.
B. R. Ambedkar:
That is the view, that it is not obligatory upon all four of them to contest.
Sir
N. N. Sircar:
That is the view, but that is not the language used.
Mr.
Zafrulla Khan:
Another aspect is, are the Depressed Classes in any of these particular constituencies
bound to put forward four candidates ? Supposing they put
forward only one, will the terms of the Pact be complied with ?
What does His Majesty's Government understand the Pact to mean in that respect ?
Sir
A. P. Patro:
The purpose of preliminary election will be defeated. What
is meant by preliminary election is electing four people for a seat ?
Sir
N. N. Sircar :
Dr. Ambedkar will vouch that I am putting the interpretation which was understood at the
time of the making of the Poona Pact. It was understood that the Depressed Classes should
have the liberty, instead of electing four, to elect one only. In that case, automatically
the one got through.
Dr.
B. R. Ambedkar:
That is quite right.
Mr.
Zafrulla Khan:
If they put forward four, one could withdraw.
Dr.
B. R. Ambedkar:
Yes.
* * * * *
[f22]748
8. Sir N. N. Sircar:
May I get some facts before the Committee ? I am not
putting any argument; I only want to put some facts so that
the Committee can get them in a short compass. The communal decision is dated the 17th
August, 1932 ?
Sir
Samuel Hoare:
August 16th.
7489.
Sir N. N. Sircar: In my copy it is the 17th. One
day does not matter. Under this award or decision the net result of that was, as regards
the depressed classes, that they would vote in the general constituencies, and their
number of seats would be 10, and
the arrangement would come to an end after 20 years. To put
it very shortly that was the decision ?
Sir
Samuel Hoare:
Yes.
7490.
Sir N. N. Sircar: The other date
is the 18th August, 1932. That is the date on which Mahatma
Gandhi wrote his letter to the Prime Minister— (I am quoting the words)—threatening a fast and saying : " This fast will cease
if the British Government will revise their decision and withdraw their scheme of
representation for the depressed classes." Mahatma Gandhi wrote this letter to the Prime Minister threatening a fast
and the consequences. Does that date agree with your information?
Sir
Samuel Hoare:
I have not got the dates here. I take it the dates are accurate.
7491.
Sir N. N. Sircar:
Will the Secretary of State accept this course ? May I put
all these dates in my questions, and, if there is any mistake it can subsequently be
pointed out either by communication or by some other means ?
7492.
Sir N. N. Sircar: I am giving the dates. On the
18th August that letter was written by Mahatma Gandhi to
the Prime Minister. On the 8th September, 1932, the Prime Minister wrote back to Mahatma
Gandhi pointing out that the Prime Minister's scheme, that
is to say, the communal decision, had not separated the depressed classes from the Hindu
community. The point is the date; on the 8th September the
Prime Minister tried to reason with Mahatma Gandhi that nothing wrong had been done. On the 15th September, 1932, Pandit Madan
Mohan Malaviya issued a
notification in some of the newspapers calling a Conference to be held at Delhi on the 17th and 18th September. The invitation as it appeared in
the Press was stated to be "To a few friends." That is the 18th September, 1932.
On the 16th September, 1932, another announcement was made by the same gentleman, Pandit
Madan Mohan Malaviya, in the Press that the venue had been changed from Delhi to Bombay,
and, on the 20th September, 1932, the fast which later on was described as the fast unto
death, began. On the 24th September the condition of Mahatma Gandhi was announced to be
very serious, and on the 25th September, 1932, the Pact was
singned. These are the dates
I am giving to you. You can subsequently either correct them or accept them ?
7493.
Sir N. N. Sircar:
In my next question I am giving you some other dates, and I will not press for an answer
if you are not prepared with an answer just now, but I am only indicating my case broadly
because I shall call witnesses on these points to prove these facts. The Pact was signed
at Poona on the 25th September, 1932. In this Pact there
are many signatories. I do not want to read out all the names. There is no signatory
representing the Bengal Hindus, and the very next day, on the 26th September, 1932, at
Delhi, at II o'clock, the Home Member announced the acceptance of the Pact by His
Majesty's Government, and he said : " His Majesty's Government has learned with great satisfaction that an agreement
has been reached between the leaders of the depressed classes and the rest of the Hindu
community." That was the very next day it was announced in the Assembly. These are
the dates if you will kindly check them. May I take it, judging by those, as also by your
answers, which you were pleased to give yesterday, that the
Government here was under the impression that an agreement
had been reached between the leaders of the depressed classes and the rest of the Hindu
community ? That must have been your impression ?
Sir
Samuel Hoare :
I will answer your question when you have finished it.
7494.
Sir N. N. Sircar: I have finished this question.
Sir
Samuel Hoare:
The Government, rightly or wrongly, have, under the terms of paragraph 4 of their original
Communal Award, accepted the Poona Pact as an All-India
agreement between the parties concerned, that is to say,
between the depressed classes and other Hindus. Everyone in public life in India must have
known that the negotiations from which the Poona Pact emerged were in progress, and it was
to be presumed that any interested parties would take steps to secure that their views
were not overlooked. It is perhaps not without significance (and I would draw the
attention of the Committee to this fact) that no protest from Bengal sees to have come for a considerable time after the
announcement of the Pact. Indeed, during the course of the discussions we received scores
of telegrams in favour of the Pact; not a telegram against
it, and, amongst those scores of telegrams, I remember
offhand a telegram from a very distinguished Hindu in Bengal, Sir Rabindranath Tagore. I do not
know when protests first began to be made in Bengal, and I cannot trace that any
representations were made to His Majesty's Government until something like three months
after their acceptance of the Poona Pact. The Government expresses no opinion on the
merits of the Pact in relation to Bengal. They would, of course, be perfectly ready to
accept any modification in respect of Bengal reached by mutual agreement between the
parties concerned, but the Government, as a Government, is precluded by the terms of its
original communal award, from itself taking part in any negotiations towards that end.
7495.
Mr. M. R. Jayakar: What was the
nature of the telegram sent by Sir Rabindranath Tagore ?
Did he approve of the Pact ?
Sir
Samuel Hoare:
Urging the Government to accept the Pact.
Sir
Tej Bahadur Sapru:
May I, Sir Samuel Hoare, tell you and the Committee one
thing with regard to this matter ? Both Mr. Jayakar and I
happened to be in Poona for about four or five days during the progress of these
negotiations. I have a very distinct recollection that telegrams were received from
Bengali Hindus. I, personally, received a telegram from two or three important Bengali
Hindus. I have not got those telegrams here, but I will further
add that Sir Rabindranath did pay a visit to Mr. Gandhi in jail at the time or shortly after the opening of the
fast. That is my recollection. I am speaking subject to correction. Sir Hari Singh Gour : He did.
Sir
Tej Bahadur Sapru:
There was some sort of ceremony held. I left Poona
immediately after the signing of the Pact; all this
happened after I left. Probably, Mr. Jayakar was there, and
he will be able to make a statement.
Mr.
M. R. Jayakar:
I was not there when Sir Rabindranath Tagore called : I was not
present in Poona.
7496.
Sir N. N. Sircar: Is Sir Samuel Hoare aware that Sir Rabindranath Tagore is a Brahmin ?
Sir
Samuel Hoare:
I take it from Sir Nripendra Sircar that that is so. The
indisputable fact, however, is that for many weeks we received almost countless telegrams
and letters from India urging the acceptance of the Pact and not a single protest against
it.
7497.
Sir N. N. Sircar:
I will not go into minute details, because I am waiting for evidence to be called upon
this point, but have you scrutinised those telegrams ?
Whether they were all coming from Congress people ?
Sir
Samuel Hoare:
They were all coming from Hindus, and I would not for a moment accept the suggestion that
they came exclusively from Congress Hindus.
7498.
Sir N. N. Sircar:
As regards the sufficient protest not having been made at or about the time and telegrams
coming from some people, may I put this situation to you, that when Mahatma Gandhi uttered that
threat, it was not a question merely of a large section of the Hindu being ground down. Is
it not right to say that was the position also of His Majesty's Government ?
Sir
Samuel Hoare:
That never entered into our minds at all.
7499.
Sir N. N. Sircar :
Let me put it to you, if it strikes you now in that way. When he said : " I am going to fast
myself to death unless the British Government do this, that, and the other ", you did not point out to him section 508 of the Indian
Penal Code and say : "
This is a crime but we propose now to let you out of jail." Was not that His
Majesty's Government's understanding also, because of overriding considerations, because
if the man had been allowed to carry out his fast, tremendous consequences might have
arisen. Therefore, you not merely acquiesced in what was an offence under the Indian Penal
Code, but your offer was that a man who ought to be kept in jail for other reasons, should
now come out into the open. I am putting to you this ?
Sir
Samuel Hoare :
Sir Nripendra Sircar can rest assured that we did not in any way act under any sort of
threat or in any atmosphere of emergency. The only aspect of the question to which we
looked was this : Was the agreement reached an agreement
such as we had contemplated under the communal decision judged by all the evidence that
was available to us ?
Then,
and for many weeks subsequently, it seemed to us quite conclusive that it was such an
agreement.
7500.
Sir N. N. Sircar: I think you are
aware that a representation was made to the Prime Minister by a letter from me in
December, 1932, enclosing certain telegrams which had come here in November from members
of the Bengal Council ?
Sir
Samuel Hoare :
I am aware that Sir Nripendra Sircar has taken a very close
interest in the question from start to finish.
Sir
N. N. Sircar :
I sent that letter on to the Prime Minister as requested by the Members of the Council,
and you will find that before I sent to the Prime Minister this telegram of protest from
the 25 Members of the Bengal Council, that Bengal are not represented, and so on, it was
shown to Dr. Ambedkar, who sent a telegram to Bombay to
find out what their reply to this telegram was. I thought it fair to show it to him, so
that he could get his version from Bombay, and this is the reply which he got.
Dr.
B. R. Ambedkar: I
assure I did not do anything of the sort, if Sir Nripendra Sircar will forgive me. Sir
Nripendra Sircar represented that he showed to me a certain telegram and asked me to get
certain information about it from Bombay. I did not do anything of the sort.
Sir
N. N. Sircar:
I have got the copy which was handed over to me by Dr. Ambedkar,
and I will read to you the reply which he got.
Dr.
B. R. Amhedkar :
It is not a reply ; it is an independent telegram sent to
me.
Sir
N. N. Sircar:
The point is the contents of the telegram, which said that the Bengal Hindus are bound by
reason of their default in not appearing at Bombay, that is to say, it was put on the
ground that we were bound because we had not taken part in
the Pact. I think you must have found that in the telegrams that were sent to the Prime
Minister.
Sir
Samuel Hoare:
I think it is very unfortunate that those telegrams were only sent in December, and were
not sent when the negotiations were actually in progress.
7501-2.
Dr. B. R. Ambedkar:
The telegram was in November. It was sent in December, because I was waiting for the
replies, and so on, and the Bengal Council met for the first time after these negotiations
in November. As soon as they met, 25 members sent this telegram, or representation, to the
Prime Minister. I only wanted to point out to you that whatever may be said, it has been
the case that Bengal has gone by default. The case of Bengal has never been made, even in
that telegram. Now the next matter to which I draw your attention, is a very short one.
Does Sir Samuel Hoare agree with the view that the situation which has been created as the
result of the Poona Pact and the communal decision, will
lead to very terrible and serious consequences in Bengal ?
Sir
Samuel Hoare :
No, I do not think. Sir N. N. Sircar: I do.
7503.
Dr. B. R. Ambedkar: Is it your
opinion that if the vastly preponderating majority of seats
of the Mohammedans, 119 seats, are reduced by 10 or 12
seats, that will lead to terrible consequences in Bengal ?
Sir
N. N. Sircar:
I do not accept the phrase, "vastly preponderating majority ", nor do I think that the result will be disastrous.
7509.
Dr. B. R. Ambedkar : My Lord Chairman, may I have your attention for a moment to make a very brief statement with regard to
a question or two that was put by Sir Nripendra Sircar, in
view of the fact that he may not be here when my turn comes ?
Sir Nripendra Sircar said that he got a telegram during the course of the Third Round
Table Conference last year and that he showed it to me and that I made inquiries with
regard to that telegram, and that I got a certain telegram in reply to that. The point
that I would like to make clear so that Sir Nripendra may have an opportunity to correct
me if I am mis-stating anything is this: The telegram which I got was not a telegram in reply to any
inquiry that I made.
Sir
N. N. Sircar:
I may cut the matter short.
Dr.
B. R. Ambedkar:
T just want to say a word.
Chairman:
Please let Dr. Ambedkar make his statement.
Dr.
B. R. Ambedkar:
The telegram to Sir Nripendra Sircar was published in the Indian papers and when the
members of the Anti-Untouchability Board that was
established by Mahatma Gandhi
after his fast was over, learned that this telegram was sent to Sir Nripendra Sircar
protesting against the Poona Pact, they, of their own
accord, sent me the telegram to which Sir Nripendra Sircar has made reference. It was not
in reply to any inquiry that I made. The next point I want to bring to the notice of the
Committee is that when Sir Nripendra Sircar showed me the telegram he got from his Bengal
friends protesting against the Poona Pact, he told me that all he was going to do was to
send that telegram to the Prime Minister, without any comment, for his information. On the
day before he left he very kindly sent me a copy of the letter which he addressed to the
Prime Minister. In that letter I found that Sir Nripendra Sircar had not only forwarded
the letter to the Prime Minister, but had urged upon the
Prime Minister to make an inquiry as to whether the Bengal caste-Hindus were represented
at the time when the Poona Pact was settled. In view of that I also immediately wrote a
letter to the Prime Minister, a copy of which I shall present to the Committee when my
turn comes, in which I also forwarded the telegrams which I had received, and I also
stated that the fact mentioned in the telegram that the Bengal caste-Hindus were not
represented when the Poona Pact was made was not correct to my knowledge, because I knew,
as a fact, that several members from the Bengal caste-Hindus were present when the Pact
was made, that they had had conversations with me and had presented me to come to terms.
That is all T want to say at this stage.
[f23]7533.
Sir Mirza Ismail: What Lord Lothian said was that the Legislature
which appoints the Government will appoint the members to the Upper House. Once these
members are elected by the Legislature they cease to have any responsibility. They can
express their own views, and they do not go and consult the Legislature on every point
which comes up before the Federal Government. Once they are elected they are independent,
but what the Federal Government would like to know would be the views of the Government of
the Province.
Dr.
B. R. Ambedkar :
The Government of the day of the Province ?
Dr.
B. R. Ambedkar:
And if there were a change of Government of the Province
there would be a change of representation at the Centre ?
Sir
Mirza Ismail:
At the Centre. If you want to prevent this extreme provincialism that is already
developing in India this seems to me to be the best way of doing it. You have already the
popular element in the Lower House; from the democratic
standpoint there should be no objection to it because of the democratic Governments in the
Provinces.
Dr.
B. R. Ambedkar:
Send them with mandates to vote on a particular issue.
Mr.
M. R. Jayakar:
If this scheme were adopted, would it not come to this, that although normally the life of
the Provincial Legislature would end in five years and, as Mr. Zafrulla
Khan pointed out, the life of the Upper House would be seven years, there must be
necessarily one change in the personnel.
[f24]7746.
Dr. B. R. Ambedkar:
I would like to ask the Secretary of State whether the Instruments of Accession that would
be passed by the different States on entering the Federation would find a place in the
Constitution Act?
Sir
Samuel Hoare:
The answer is : No, they would not.
7747.
Dr. B. R. Ambedkar : How would it be possible, supposing a dispute arose in a
Federal Court, for the Court to determine whether any particular subject which was the
subject-matter of dispute was within the competence of the Federation ?
Sir
Samuel Hoare :
I imagine—here I speak as a layman—they would take into account the treaty, just
as they take into account treaties now.
7748.
Dr. B. R. Ambedkar : But it would not be part of the Constitution Act?
Sir
Samuel Hoare :
No ; it would not be in the Constitution Act ; neither are the treaties now in any Act of Parliament, yet
(Sir Tej Sapru and other Indians will correct me if I am wrong) treaties have been
constantly taken into account.
Sir
Tej Bahadur Sapru :
Yes. Treaties are part of the municipal law everywhere.
* * * * *
[f25]8102.
Dr. B. R. Ambedkar : May I draw the attention of the Secretary of State to
the fact that under Proposal 70 of the White Paper, the Governor has the special
responsibility to secure the execution of orders lawfully issued by the Governor-General ?
Sir
Samuel Hoare:
Yes.
8103.
Dr. B. R. Ambedkar:
If the Governor-General issued any orders with respect to
finance which required the Provincial Governments to execute them, the Governor would see
that they were executed ?
Sir
Samuel Hoare :
Yes ; in the field of Federal taxation that would be so.
8104.
Dr. B. R. Ambedkar:
Any orders issued by the Federation which required that they were to be executed by the
Provincial Government, there is a special responsibility on the Governor to see that those
orders are executed ?
Sir
Samuel Hoare:
Yes, Orders issued by the Governor-General.
Sir
Hari Singh Gour:
Lawfully issued.
8105.
Dr. B. R. Ambedkar :
Lawfully issued, of course. Another question. In that section of the White Paper proposals
which deals with the administrative relations of the Provinces and the Centre—1 am
speaking offhand— I think provision is made that whether the Provincial agency will
be utilised by the Centre in carrying out the
administration of Central subjects is a matter for the Province :
it may employ its own: agency ?
Sir
Samuel Hoare :
Yes, I have always hoped, judging from the experience of other Federations, that we should
duplicate as little as possible administrations, and speaking generally, it is much better
that the Provincial administration should carry out the directions of the Federation
within the Federal field rather than that you should duplicate these administrations all
over India.
8106.
Dr. B. R. Ambedkar: What I was trying to point
out was this. that if the Provincial Governments turned out
to be recalcitrant and not amenable to the control of the Central Government, the Centre
is not bound to employ the agency of the Province and can employ their own agency in the
administration of Central subjects ?
Sir
Samuel Hoare:
That is so.
* * * * *.
[f26]8138.
Dr. B. R. Ambedkar: I want to suggest that the
standard of administration in Bengal is low because Bengal has not been able to raise sufficient revenue by reason of the Permanent Settlement. It is
another way of stating the same thing ?
Sir
Samuel Hoare :
It is one of the reasons, but we have to accept the fact that the Permanent Settlement is
there.
Dr.
B. R. Ambedkar:
That is so.
*[f27]8527.
Dr. B. R. Ambedkar : Under the White Paper there is no means raising, say,
one anna for Provincial purposes without raising in those circumstances another anna,
which ex-hypothesis is not needed, for Federal purposes. The other hypothesis is that the
Provinces do not need any more income-tax, but the Federal Government does and you then
have to raise double the amount (assume that the percentage prescribed is 50 : 50) you have to raise two annas in order that the Federal
Government may get one because, for every one it takes, it must give one to the Provinces,
even though they do not want it ?
Sir
Samuel Hoare:
I will take all these points into account. I would ask the members of the Committee to
remember that there must be (whatever the arrangements) anomalies. I do not say exactly of
the kind contemplated in the White Paper, but anomalies of some kind under any system
under which the income-tax is shared between the Centre and the Provinces.
Dr.
B. R. Ambedkar:
May I draw the attention of the Secretary of State and Sir Austen
Chamberlain to two points ? Sir Austen
said there is no provision for the Province to raise any income-tax if it wanted it for
its own purposes. I wish to draw his attention to Proposal 139, and what appears in the
brackets, " A prescribed percentage, not being less
than 50 per cent, nor more than 75 per cent of the net revenues derived from the sources
specified in the margin."
Sir
Samuel Hoare :
That is the income-tax—" (exclusive of any
surcharges imposed by the Provinces)." I take it from
that the Provinces will have the right to levy a surcharge on the income-tax for their
purposes.
Sir
A. P. Patro:
In addition.
8528.
Dr. B. R. Ambedkar : That is Proposal 139 ?
Sir Samuel Hoare:
That is so, and the Committee will see that we alluded to it at the top of page 30 of the
Introduction.
8529.
Dr. B. R. Ambedkar:
May I draw the attention of the Secretary of State to a statement that he made just now,
that with regard to the imposition of surcharges for Federal purposes on the income, I
think he said the key to the position was the previous sanction of the Governor-General. I
would like to draw his attention to the fact that Proposal 141 does not stipulate that the
previous sanction of the Governor-General will be required to surcharges for Federal
purposes. The previous sanction of the Governor-General
refers to revenues assigned to the Provinces, namely, those enumerated in Proposals 138
and 139. Paragraph 141 is not made dependent on the previous consent of the
Governor-General ?
Sir
Samuel Hoare:
I think Dr. Ambedkar is quite right, and I must look into
my answer in connection with the note I will circulate.
Sir
Akbar Hydari:
There is also Head 49 in the exclusively Federal heads where definitely it is said: "Imposition and administration of taxes on income other
than agricultural income or the income of corporations, but subject
to the power of the provinces to impose surcharges "
under the exclusively Federal heads.
Lord
Eustace Percy:
I do not think that exhausts it because all the evidence we
have received, and all the evidence I ever heard in India was violently opposed to
Provincial surcharges.
Dr.
B. R. Ambedkar:
That was the view of the business people, I am sure.
Lord
Eustace Percy:
It was the opinion of every single Indian to whom I had the opportunity of putting
questions.
Dr.
B. R. Ambedkar:
No, indeed, they were not.
*
*
*
*
8537.
Lord Rankeillour:
May I ask a question arising out of Dr. Ambedkar's. I think
it is of some importance. With regard to the consent of the Governor-General, surely all
Federal taxation will be subject to the consent of the
Governor-General. It can only be on his initiation, and a resolution such as we have here,
that any tax can be considered ?
Sir
Samuel Hoare :
Yes, but I think Lord Rankeillour really is confusing the two positions. There is the
general constitutional position under which money votes originate with the initiative of
the Crown. That position, of course, stands. I was contemplating the other position in
which the Governor-General intervenes under some special obligation in the Indian
Constitution.
8538.
Lord Rankeillour:
I felt sure that was the meaning, but the actual answer given to Dr. Ambedkar would seem
to suggest that under paragraph 141 the Federal Legislature would have the power to act
without the Governor-General's previous recommendation.
Mr.
M. R. Jayakar :
May I ask Lord Rankeillour's attention to Proposal 45,
which deals with this question. " A recommendation of
the Governor-General will be required for iany proposal in
either Chamber of the Federal Legislature for the imposition of taxation." Lord Rankeillour: Yes, so I thought. I quite agree.
Dr.
B. R. Ambedkar:
That relates to the special power of the Governor-General,
and that is made so because the taxes contemplated in paragraph 138 are not to go to the
Central fisc, but they are to be distributed amongst the
Provinces.
* * * * *
[f28]8575.
Dr. B. R. Ambedkar:
My Lord Chairman, may I just intervene for a moment for the purpose of asking for
information, not for raising any controversy. The Committee knows that there is a certain
amount of difference of opinion on the expression "
existing and accruing rights ". The Civil Service
takes one view, the Law Officers of the Crown take another view, and I believe this
Committee will have to give some sort of opinion upon that subject before the clause is
drafted. I find exactly the same expression " existing
and accruing rights " used in the South African
Constitution of 1909, and I wonder whether it would not be possible for Your Lordship and
the Secretary of State to obtain the Memorandum from the Dominions Office to find out
exactly how that clause has been acted upon, and interpreted by the South African
Government ?
Sir
Samuel Hoare :
I will certainly look into that suggestion. In any case, it is a question which we must
deal with when we come to the Services. It is not quite the same question though that Sir Purshotamdas put to us.
8576.
Dr. B. R. Ambedkar: No; that is why I said I did not want to raise any controversy.
I am simply asking for information as to whether that would
not be possible as a sort of comparative view ?
Sir
Samuel Hoare:
Yes.
* * * * *
[f29]8633.
Dr. B. R. Ambedkar : I would like to ask one question about the statement
made by Sir Akbar Hydari on
the application of paragraph 141. You said yesterday.
Secretary of State, in making your brief observations on that statement that you were glad
that the States bad accepted, at a certain point, to bear the burden of the Federal
Government ?
8634.
Dr. B. R. Ambedkar:
What I would like to know is this — you can give the answer now, or, if you like to
refer to it later I hove no objection—whether you
agree that the stage which has been described by Sir Akbar Hydari is the stage at which
the States should begin to bear the burden of the Federation ?
He has, as you know, described certain stages through which the Federal finance must go
before the States could be called upon to bear their share ?
Sir
Samuel Hoare :
Yes.
8635.
Sir Akbar Hydari: Additional burden?
Sir
Samuel Hoare:
There are really three burdens. There was first of all the burden of indirect taxation
that they undertake from the start; secondly, there was the
burden of the Corporation Tax, or the equivalent of the Corporation Tax that they
undertake after a definite terms of years ; and, thirdly,
there was the surtax that they undertake in the event of an emergency.
8636.
Dr. B. R. Ambedkar : I thought he laid down certain conditions ?
Sir
Samuel Hoare:
He laid down certain conditions — Sir Akbar will correct me if I am wrong for the
third of these burdens, namely, the surtax.
8637.
Dr. B. R. Ambedkar:
I wanted to know whether you agree that those were the appropriate conditions under which
the Federation will resolve to surcharge ?
Sir
Samuel Hoare:
I think so. I do not want to tie myself down to the exact words, but I think, generally,
that seems to me to be a fair basis of an arrangement.
8638.
Dr. B. R. Ambedkar: The next
question I want to put to you, arising out of that, is this :
that if that position is maintained or even the position as it is under Proposal 141 is
maintained, would it not be the fact that the Federation will have
to carry on its finances entirely on the basis of indirect taxation ?
Sir
Samuel Hoare:
Not entirely on the basis of indirect taxation.
8639.
Dr. B. R. Ambedkar:
To a very large extent ?
Sir
Samuel Hoare:
Obviously, to a large extent. Indirect taxation will then, as it does now, play a very
prominent part in the Indian revenue.
8640.
Dr. B. R. Ambedkar :
What I want to put to you is this. Sir Samuel Hoare, that it will be more so under the Federation than it is
now, for the simple reason that the British Indians would not consent to direct taxation,
because the States will not consent, and, consequently both of them would rather go in for
indirect taxation, to be borne by both apart, rather than agree to direct taxation, which
would be borne by British India alone. From that point of
view indirect taxation would be more and more forced upon them than is now the case ?
Sir
Samuel Hoare :
From the other point of view, I can imagine the States very often on the side of the less
indirect taxation.
8641.
Dr. B. R. Ambedkar :
That is because they do not have their finger in the pie now. Would it be the same thing
afterwards when, if they are opposed to indirect taxation they have to bear the brunt of
the taxation ?
Sir
Samuel Hoare:
Dr. Ambedkar will also remember in this triangle of forces that the Provinces will have an
interest in direct taxation, as they have a share in it.
8642.
Dr. B. R. Ambedkar:
Yes, that may be so, but the Province also will see that the
Federation is not entirely a charge on Indian Revenue raised in British India. It is a
pure matter of speculation, but I want to pay attention to what would be the drift of the
finance under the Federation. If I may say so, the Federation would entirely have to build
a tariff wall round itself in order to carry on ?
Sir
Samuel Hoare:
Dr. Ambedkar says it is a subject of speculation. I am inclined to agree with him, but I am not inclined, having assumed it is a subject of
speculation, then to prophesy exactly what is going to happen.
8643.
Dr. B. R. Ambedkar: I will leave it at that. The
next question I would like to ask of Sir Samuel Hoare
arising out of the same proposal, 141, is this : You said that the States will
contribute an equivalent amount to the Federal Revenues on a sum to be assessed on a
prescribed basis. Of course, you have explained this morning how the word " prescribed " is
used, and I am not going to ask you any questions upon that, but what I would like to ask
you is this. Is there any provision made in the White Paper to see that the sum assessed
on this prescribed basis, which becomes payable by a particular State, will be ultimately
paid to the Federation ?
Sir
Samuel Hoare:
It would then mean a default, would it not, on the part of a State ?
8644.
Dr. B. R. Ambedkar: Yes, supposing
the State does not pay. I am assuming only one case now, for the moment ?
Sir
Samuel Hoare:
The Viceroy then, I assume, could intervene.
8645.
Dr. B. R. Ambedkar:
The Viceroy, as you know, is outside the Federal Constitution ?
Sir
Samuel Hoare:
If Dr. Ambedkar will look at paragraph 129, he will see
there : " The
Governor-General will be empowered in his discretion to issue general instructions to the
Government of any State-Member of the Federation for the purpose of ensuring that the
Federal obligations of that State are duly fulfilled."
8646.
Dr. B. R. Ambedkar:
Yes. What I want to say is this. Paragraph 129, if I may make the distinction, only gives
the Governor-General the power to give a direction. It does
not give the Governor-General the power to take remedial measures, if the directions are
not obeyed ?
Sir
Samuel Hoare:
The Act nowhere provides explicit sanctions in situations of that kind either for the
Provinces or for the States.
8647.
Dr. B. R. Ambedkar:
For the Provinces it does, because the Governor has a special responsibility to see that
the orders of the Governor-General are carried out and obeyed, and to that extent he will
be directly under the control of the Governor-General, and
so provision does there exist, so far as the relations between the Provinces and the
Centre are concerned, that his orders will be carried out ?
Sir
Samuel Hoare:
I think there is just the same sanction. Is there not, with the Governor-General and the
States ?
8648.
Dr. B. R. Ambedkar:
No, if I may say so, as you explained on the Memorandum on the Instrument of Instructions
if he disobeyed, the Governor could be recalled. There is no such provision in the
relations between the States and the Centre ?
Sir
Samuel Hoare:
In each case the responsibility is the responsibility of the Governor-General at his
discretion, that is to say, subject to his instructions from here.
Dr.
B. R. Ambedkar :
But my point is that just as the Governor would be subject to the power of the
Governor-General with respect to the administration of the Province, the ruler of a State
is not subject to the directions of the Governor-General beyond, I suppose, the
administration of such matters which appertain to the
Federation; that is with the Viceroy.
8650.
Dr. B. R. Ambedkar:
But, as you said, the paramountcy will be assigned to the
Viceroy, and not to the Governor-General ?
Sir
Samuel Hoare:
Yes, but nevertheless the result will be the same.
Mr.
Zafrulla Khan:
The Governor-General will formally make a request to the Viceroy and the Viceroy will
thereupon act.
Dr.
B. R. Ambedkar :
May I ask another question arising out of the same ? There
is another aspect of it. It is assumed that the States that would be liable to make this
contribution would be solvent at the time when the contribution is called for. Is there
any provision in the White Paper to see that the Governor-General whose finances would, to
some extent, be dependent upon these contributions coming from the Indian States, has
power to see that these contributories will be solvent on
the days when the contributions fall due ?
Rao Bahadur Sir Kishnama Chari:
What is the provision with regard to the Provinces ? Is
there any such provision with regard to the Provinces ?
Dr. B. R. Ambedkar:
Yes, the Governor can certify that a certain amount is due
to the Federation and shall be paid, and it will be paid.
Mr.
Zafrulla Khan:
May I recall a suggestion I made during the preliminary discussions here that the Viceroy
might task the States who are units of the Federation to
submit for his information every audited copies of their accounts ?
8651.
Dr. B. R. Ambedkar: There is one more point, and
I think the Secretary of State may give a combined answer. If you will refer to paragraph
146 dealing with the borrowing powers you will see there it is provided that the Federation may borrow Upon the security of Federal
revenues. The contributions to be made under Proposal 141 will be part of the Federal
revenues which will be the security for the loans which the Federation will raise. Do you
think it would sufficiently add to the credit of the Federation if part of the revenues
which the Federation can call upon in order to give security for the Federal loans are
left in this uncertain state both as to capacity to pay and the willingness to pay ?
Sir
Samuel Hoare:
I would have thought really that the contingency Dr.
Ambedkar is contemplating is a contingency that is not very likely to arise often, and
that, if it does arise, it is not the kind of contingency that is going substantially to
alter the credit of the Federation. After all, these amounts taken altogether are very
small amounts.
8652.
Dr. B. R. Ambedkar:
I do not know what they would be ?
Sir
Samuel Hoare:
And in the event of a single default.
8653.
Dr. B. R. Ambedkar:
I hope they will not be very
small ?
Sir
Samuel Hoare :
I cannot imagine that that would make much difference to the credit of India.
Sir
Akbar Hydari:
Is not the financial position of the States, through the exercise of paramountcy, in a much better condition than that of the
Provinces through the exercise of the special responsibilities of the Governor ?
Dr.
B. R. Ambedkar :
I thought the statement made by Sir Mirza Ismail yesterday disclosed a most pathetic state of affairs.
Sir
Akbar Hydari: It
was still a balanced budget by which he could pay up his tribute all right
[f30]11,297.
Dr. B. R. Ambedkar : My Lord Chairman, I would like to point out to the
Secretary of State that the expression which we find in the Government of India Act—" existing and accruing rights "—is
an expression which is also found in the South African Constitution Act. I was wondering
whether it would not be possible for us to get a statement from the Dominion Office to
find out exactly how that expression has been acted upon in South Africa ?
Sir
Samuel Hoare :
We made an inquiry upon this very point. Dr. Ambedkar, I
think, did allude to it during the summer and I have asked the Dominion Office for the information. I have not yet got it, but I am
told that the cases are separate and distinct. In the case of South Africa there is no
promise of compensation at all.
Sir
Manubhai N. Mehta :
I think they have it in Australia as well. 11,298.
Dr.
B. R. Ambedkar:
I simply wanted to know how the expression, " accruing
rights ", had been interpreted in South Africa by the
South African Government. The expression is exactly the same ?
Sir
Samuel Hoare:
I will see if I can get it. I asked about South Africa and Australia as well.
* * * * *
[f31]11,438.
Dr. B. R. Ambedkar:
There is nothing to prevent a Public Service Commission being appointed for one province
or for two provinces ?
Sir
Samuel Hoare:
No ; we do make provision for that purpose.
*
*
* *
[f32]11,526.
Dr. B. R. Ambedkar:
Might I intervene just for a moment to point out that the result to which Sir Malcolm Hailey has referred, namely, the denudation of the services of
the local element, as soon as they are transferred to ministerial control is largely due
to the fact that this transfer has also been accompanied by
a reduction in the scale of salary. When a service has become provincialised the Minister
has adopted a lower scale of salary than was obtainable formerly, and, consequently, the
smaller scale of salary has not attracted European candidates?
Sir
Samuel Hoare :
Yes ; they have substituted, in other words, ' Imperial ' for 'Provincial' services.
Dr.
B. R. Ambedkar:
It is the salary that has made the difference—not the
transfer.
*
*
*
*
*
[f33]11,669.
Dr. B. R. Ambedkar : Might I make a suggestion for consideration on this
matter ? Instead of giving the right outright to the new
entrant would it not be better for the Secretary of State to retain a discretion in his
own hands which he may exercise in a genuine case where a man wants to retire because he has really been suffering under the new
conditions, and does not really want to take advantage of this rule ?
Sir
Samuel Hoare:
We can consider a suggestion of that kind. I assume Dr. Ambedkar's
suggestion refers to the new entrants ?
11,670.
Dr. B. R. Ambedkar: Yes, I am
talking of the new entrants. In that case the Secretary of State may retain in his own
hands a certain amount of discretion which he may exercise in favour of a man who has
genuinely proved to the Secretary of State and his advisers that the reasons of his
retirement is discontent and dissatisfaction with the new conditions ?
Sir
Samuel Hoare:
I should like to consider a suggestion of that kind. The doubt that is in my mind is
whether the mere fact that there is this discretion will take away the assurance from the
mind of the parent, or the university, or the school from which the young man is coming,
but I will consider it.
*
*
*
*
*
[f34]12,025.
Dr. B. R. Ambedkar :
I want to ask one question. Sir Samuel, on these provisions
in general. The ultimate purpose of these previous sanction rules would also of course be
achieved by the power of veto—the subsequent power of veto which the Viceroy and the
Governors have got; so, from
that point of view, there is really not much to be gained by these provisions. I mean
although the Viceroy may give his previous sanction he is not thereby bound to adopt the
Bill when it is finally passed; he has the power of veto.
So, from that point of view, there is not much to be gained by the rules of previous
sanction, which could not ultimately be gained by the power of veto ?
Sir
Samuel Hoare :
I am not sure that I should agree with Dr. Ambedkar. The veto is a sanction of a somewhat
different kind. It seems to me it is a bigger and more serious sanction. It comes after
the Legislature has formally pledged itself to certain proposals;
I think therefore it is a more serious sanction.
12,026.
Dr. B. R. Ambedkar:
Apart from all that, so far as the main object is to prevent anything affecting adversely
the special responsibilities of the Viceroy, the veto is an effective measure ?
Sir
Samuel Hoare:
I was just coming to that second consideration. The veto has a long history behind it, and
judged by British experience generally, the veto becomes more and more in course of time
something in the nature of a constitutional formality.
12,027.
Dr. B. R. Ambedkar :
But what I wanted to say was this. So far as I am able to judge the only distinction that
one could draw between the effect of a previous sanction rule and ultimate veto is that
the one, namely, the previous sanction, prevents discussion, while the veto does not. Is
that not so ?
Sir
Samuel Hoare:
It is a difference.
12,028.
Dr. B. R. Ambedkar : That is a difference. Now, what I want to pomt out to you. Sir Samuel Hoare, is this : Surely if discussion is to be prevented because it is going
to attack the special responsibility of the Viceroy, you will bear in mind that this
previous sanction rule certainly cannot operate to prevent discussion, either in the Press
or on the public platform outside the Legislature, and cannot even prevent a public
demonstration on an issue that would legitimately be brought under a previous sanction
rule, so the only thing really that would happen under this is that while the public and
the Press may be free to agitate and to demonstrate on a matter covered by the previous
sanction rule, the only body that would be muzzled would be the Legislature ?
Sir
Samuel Hoare:
That is one way of putting it; it is Dr. Ambedkar's way of
putting it.
12,029.
Dr. B. R. Ambedkar : Is it not a fair way of putting it ? Surely the Viceroy's previous sanction powers are not going
to be so widely extended in their operation as to cover the prevention of any discussion
of a matter subject to previous sanction, either in the Press or in public meetings, or
anywhere else ?
Sir
Samuel Hoare :
I think these certainly will be discussion of that kind. None the less, I do think there
is a difference between discussion in the Legislature, and the comparatively irresponsible discussion outside. Secondly, this sanction of the
previous consent has been in operation for some time and it was accepted generally as a
Part of the New Constitution at each of the Round Table Conferences. Thirdly, if Dr. Ambedkar will look at the categories set out in paragraph 119
he will see that for each of them there is a considerable demand for some kind of special
precautions. For instance, if he will take the question of religious rights and usages; there he must have noticed the very strong feeling that
certain sections of the orthodox Hindus have upon the subject. He does not agree with them; he thinks they are all wrong. At the same time, they do hold
these views very strongly, and they would like questions of that kind excluded from the
Indian Legislature altogether. Now, we have attempted to adopt a midway attitude between
the two points of view and so on. With each of those categories I could make a similar
defence, that there is a considerable body of opinion asking for some special precautions
in these directions.
12.030.
Dr. B. R. Ambedkar:
What I was trying to drive at was this that while a member of the Legislative Council and
a member of the Legislative Assembly may be free to discuss these matters outside in
public, they will not be free to discuss them when they come inside the Legislative House.
That is the only difference you are making by this previous sanction rule ?
Sir
Samuel Hoare:
They can have resolutions, but that is substantially the case.
12,031.
Dr. B. R. Ambedkar : Now I just want to make one suggestion with regard to
the point raised by Mr. Jayakar regarding the use of the
expression " religion and religious usages ", because that is a thing in which I am so vitally
concerned. I am just making the suggestion whether it would not be sufficient to use the
expression " articles of faith " rather than the phrase "
religion and religious usages " ?
Sir
Samuel Hoare:
I would have thought that articles of faith would have occasioned almost the same kind of
controversy.
12,032.
Sir Hari Singh Gour: More so?
Sir
Samuel Hoare:
And the trouble of a new phrase of that sort, I would have thought, would have
concentrated upon it more varieties of interpretation even than the old phrase.
12,033.
Dr. B. R. Ambedkar : I suggest that as far as possible the word "usage" ought to be
avoided ?
Sir
Samuel Hoare:
I will take note of what Dr. Ambedkar has said.
*
*
*
*
*
[f35]12,751.
Lord Rankeillour: Secretary of State, on that would not it be possible
for the Central Government to carry out the contemplated
orders arising out of Federal legislation and to charge the Province with the cost ?
Sir
Samuel Hoare:
There is no machinery for getting the money.
12,752.
Lord Rankeillour:
But the money for the Provinces comes through the Central Exchequer, does it not ?
Sir
Samuel Hoare:
Income Tax would.
Dr.
B. R. Ambedkar:
I think the answer to Sir Austen Chamberlain's question may be given somewhat in this form. So far as
the concurrent legislation is concerned, it is, I think, laid down in one of the
paragraphs of the White Paper that any law in the concurrent field passed by the Federal
Legislature will override a similar law passed by the Provincial Government. Consequently,
if there was a conflict of law passed in the concurrent field between a law passed by the
Centre and one passed by the Province, ipso facto, by the
provisions of the White Paper itself the Federal Law will have an overriding force as
against the Provincial Law.
Sir
Austen Chamberlain:
That is so. That is the point that I put earlier to the Secretary of State.
Dr.
B. R. Ambedkar :
That is I think the position so far as the legislation is concerned.
Sir
Austen Chamberlain:
So I understand.
Dr.
B. R. Ambedkar:
So far as administration is concerned, I think the position
will be that the Federal Executive will have the authority to issue directions and
instructions to the Provincial Government through the Provincial Governors with regard to
the administration of a concurrent law passed by the Federal Legislature, and the
Governors, I think, would be bound to obey them.
Marquess
of Reading :
That is exactly the point upon which the Secretary of State has given an answer in the
negative.
Sir
Hari Singh Gour:
There would be the penal clause that he who runs an unauthorised paper will be punished.
Dr.
B. R. Ambedkar:
Might I give another example which comes to my mind ?
Supposing for instance in a state of emergency the Central Government
passes a Press Act under which provision is made that no paper may be started unless it
deposits a certain amount of security. Now that sort of legislation is not going to affect
any particular private individual. Supposing there is a paper in a particular province
which is helping the Government of the day—a Party paper. Supposing that paper is
influencing the Press Act passed by the Central Legislature, and supposing on account of
that affiliation between the particular newspaper journal and the Government of the Province, the Government refuses to take any
action against that particular paper, what is the position ?
Surely no individual is affected in this particular case ?
Sir
Hari Singh Gour :
There would be the penal clause that he who runs an unauthorised paper will be punished.
Dr.
B. R. Ambedkar :
That is exactly the point.
Sir
Austen Chamberlain:
And has to have the information and all the machinery for reaching the Government.
Dr.
B. R. Ambedkar:
If he charges a particular officer to carry on the prosecution and the local government
pays the expenses of that prosecution and does not make
provision for it in the budget, what is to happen ?
Sir
Samuel Hoare:
I see all those difficulties. At the same time I cannot help seeing the difficulties on
the other side. The case mentioned by Dr. Ambedkar is
essentially a case of law and order, and law and order is a provincial subject and
interest. The interest of the Federation is the interest of uniformity, but that does not
affect the fact that primarily that case is a provincial case. If the argument suggested
in Dr. Ambedkar's question and in Sir Austen Chamberlain's
question, too, if I may say so, is pressed to its logical conclusion, it really does mean
that the Federation will control the law and order in the Provinces, and that is directly
contrary to the principles as at present drafted in the White Paper.
Dr.
B. R. Ambedkar:
I beg your pardon. My point is this, if I may submit it;
either you must make law and order a purely provincial matter, a provincial concern which
the Centre has nothing to do with, and then, of course, you can have the argument which
you urged just now, but if you make it a matter of
concurrent legislation, then I think the Federation must be
in the position to see that the law is corrected.
* * * * *
[f36]13,129.
Dr. B. R. Ambedkar:
Secretary of State, I just want to draw your attention to the present position of the
concurrent field under the Government of India Act. I am anxious to do so because it was
suggested to you that under the present Government of India Act only certain subjects or
parts of certain subjects are made subject to the Central Legislature.
The
point that I wish to draw your attention to is that, first of all, there are some
Provincial subjects which are made specifically concurrent under Part II of Schedule I to
the Devolution Rules ?
Sir
Samuel Hoare:
Yes.
13,130.
Dr. B. R. Ambedkar: While subjects
although they are made Provincial are controlled by the proviso that they are subject to
the Central Legislature ?
Sir
Samuel Hoare:
Yes.
13,131.
Dr. B. R. Ambedkar:
I have made a computation that out of the 51 subjects which are included in Part II of the
Schedule to the Devolution Rules, 14 are made expressly subjects to the Central
Legislature, or to rules made by the Central Government or the Secretary of State. That is
one thing. The second thing is this : That all Provincial
matters are subject to concurrent jurisdiction by the Central Government under section 67, sub-clause (2) of the Government of India Act by previous sanction. Although any subject
is regarded under Part II as a Provincial subject, it is none the less open to the Central
Government to legislate upon the whole of that Central subject provided previous sanction
is obtained from the Governor-General ?
Sir
Samuel Hoare:
Yes.
13,132.
Dr. B. R. Ambedkar :
On the side of the Provincial Government control is exercised by the Central Government on the concurrent field under section 80(a), whereby the local legislature
of any Province may not without the previous sanction of the Governor-General make or take
into consideration any law for regulating any Central subject or regulating any Provincial
subject which has been declared by rule or law as being subject to the Central expressly
reserved to the Governor-General in Council by the law for the time being in force. That
is the present position ?
13,133.
Dr. B. R. Ambedkar: That is practically all of
the Provincial field as also the concurrent field provided the sanction of the
Governor-General is obtained ? Sir Samuel Hoare:
Yes; that is so.
13,134.
Dr. B. R. Ambedkar: Now under the present
proposals the whole thing is completely altered. I mean the concurrent power of the Central Legislature is proposed to be taken away in
most of the matters ?
Sir
Samuel Hoare :
Except in the List 3, yes.
13,135.
Dr. B. R. Ambedkar: I want next to draw your
attention to List 3. I am sorry I lost my paper which I completed, but I think I am right
in suggesting that a great many of the subjects included in List 3 are today either
exclusively Central or concurrent ?
Sir
Samuel Hoare :
Yes ; I think it might be said that a number of them
certainly are.
13,136.
Dr. B. R. Ambedkar: Consequently it would be
fair to suggest that under the present Government of India Act. Your Concurrent List has
always been treated as predominantly of All-India importance, under the Government of India Act as it is today, they being included either
in the purely Central List or in the Concurrent List. My suggestion is that under the
Government of India Act the field which is now concurrent was regarded in the Government
of India Act as of All-India importance ?
Sir
Samuel Hoare :
Yes ; I think that generally is so. I think it is
inevitable under a unitary form of Government.
13,137.
Dr. B. R. Ambedkar: Quite so. My
suggestion, therefore, Secretary of State, is this : That
it would not be quite correct to say that a field of legislation which was under the
Government of India Act regarded as of All-India importance is administratively to be
hereafter regarded as purely provincial ?
Sir
Samuel Hoare:
No; I should draw a great distinction between the
conditions under a unitary form of Government and the
conditions under a Federation in which the Provinces are autonomous. We are quite
definitely changing the form of Indian Government from a highly centralised Government
into a Federal Government.
13,138.
Dr. B. R. Ambedkar: But I am only
talking about the importance of the subject, a subject which, upto
1901, was regarded as of All-India importance, could not
all of a sudden cease to be of All-India importance and become purely a local matter. I am
aware that a great deal of concession has to be made for the new Provincial Government; the fact that the Government of India has upto now been
regarded as more than of local importance has always to be recognised ?
Sir
Samuel Hoare:
I think it is very difficult to make such a comparison when
it is admitted that the form of Government proposed is a very different type of
Government. I think new conditions enter into the problem as soon as you move away from a
unitary Government to a Government of Federation with autonomous Provinces.
13,139.
Dr. B. R. Ambedkar:
I will not press the point further, but I wanted to draw your attention to the fact that
these subjects have hitherto been regarded as of more importance than purely Provincial
subjects ?
Sir
Samuel Hoare:
I suppose, however, it would be fair to say that in most of them administration even under
a highly centralised Government, has been Provincial.
13,140.
Dr. B. R. Ambedkar : Yes ; subject to the
control of the Centre ?
Sir Samuel
Hoare: There again, I do not think that Dr. Ambedkar's comment
upon my answer quite covers the whole field. It would not cover the transferred field in
the Provinces.
13,141.
Dr. B. R. Ambedkar:
No; that is so. Next, I want to draw
your attention to Proposal 125 and to Section 45 of the Government of India Act.
Section 45 of the Government of India Act is what is called the Obedience Clause, and lays
down that a Provincial Government shall be under the superintendence or the control in all
matters relating to the Government and its Province and
will also diligently and constantly inform the Government of India of its proceedings in
all matters which ought in its opinion to be reported so as to give the required
information. Now, what I would like to know from you.
Secretary of State, is this. What is it that you wish to
delete from the provisions and requirements of this Section 45 ?
I see you do not want superintendence. That, of course, is obvious when the Provinces
become autonomous. You want to retain direction only with regard to those matters which would be non-concurrent?
Sir
Samuel Hoare:
Yes.
13,142.
Dr. B. R. Ambedkar : And there is to be no control ?
Now the question that I want to ask is this : Do you desire
that the Central Government should be kept informed of what is happening under the field
of Provincial administration, and do you desire that the Central Government should have
the power to call for information will regard to the administration of any Provincial
subject, so that it may inform itself of what is happening ?
Sir
Samuel Hoare:
No; we do not have any such general intention. We assume
that as soon as you set up a Federal Government you must
then have a definite allocation of powers between the Federation and the units. In many
respects, the clearer you keep that division, the less likely it is that responsibility
should be blurred, and the less likely it is that there will be incessant between the two
kinds of Government. Quite definitely, under our scheme—indeed, it is one of the
basic principles of it—we now divide up these various duties between the Federation,
the Provinces, and the Imperial Parliament.
13,143.
Mr. N. M. Joshi: May I ask a
supplementary question? As regards the point of information raised by Dr. Ambedkar, I want
to ask you this: In some cases, the compilation of statistics relating to All-India will
be valuable. Such, for instance, as figures of All-India as regards Education. At present,
although education is a transferred subject, the Government of India issues an All-India
Report. Will the future Government of India possess power to collect information as
regards transferred and spend money upon the compilation of an All-India Report ?
Sir
Samuel Hoare:
Only within the specified Federal field; anything outside
the Federal field must be done by agreement.
Mr.
N. M. Joshi :
Education is not in the Federal field ?
Lord
Eustace Percy:
I am sure, Secretary of State, you are bearing in mind that
in every Federation, for instance, in America, the research and statistical departments of
the Federal Government go far beyond the Federal field.
13,144.
Mr. N. M. Joshi: For instance, in America, they
do publish an Educational Report for the whole of the United States ?
Sir
Samuel Hoare:
Yes. If Lord Eustace will look now at Appendix VI List I,
he will see there that we have covered his point, that the Census and so on included in
the Federal field, and there, I think, we must consider the point of All-India statistics
generally—statistics, that is to say, for the purpose of Federation.
13,145.
Lord Eustace Percy: I do not understand quite
why it is necessary to limit it in that way. There is no reason why a Federal Government
should not publish information and why its information should be entirely confined to the
Federal field. It is not so in any other Federation I have ever heard of ?
Sir
Samuel Hoare:
But, surely a Federal Government can only act for the purposes of Federation. A Federal
Government has no locus standi outside the field of Federation.
13,146.
Lord Eustace Percy:
Of course, it cannot publish a report on the intellectual
and moral progress of India if the Provincial Governments will not supply the information,
I agree, but that hardly need be anticipated ?
Sir
Samuel Hoare:
I do not think there is any difference of opinion between Lord Eustace and myself; my comment was only directed towards keeping this kind of
activity within reasonable limits. If a Federal Government constantly worried Provincial
Governments for all sorts of information that had nothing to do with the Federal
Government. Then, I can foresee constant difficulties
arising between them.
13,147.
Dr. B. R. Ambedkar: Might I give
this instance which comes to my mind? Supposing, for
instance, in a particular Province, criminal proceedings are taken against a foreigner and
reference is made by his Government to the Government of India with regard to the
proceedings taken against this particular foreigner in a Province, and the Government of
India needs information in order to deal with the subject. Would the Government of India
be in a position to require the Provincial Government to
furnish information with regard to that subject ?
Sir
Samuel Hoare:
Yes, and also to take action. It would come within the field of foreign affairs.
13,148.
Dr. B. R. Ambedkar:
I submit that law and order would be a transferred subject ?
Sir
Samuel Hoare:
That may be so, but foreign affairs have special reservation. This Clause 125, which you
are discussing now, I think, would cover that. Foreign affairs is a Federal subject. Under
the second paragraph of Clause 125 the Federal Government could give directions to the
Provincial Government.
13,149.
Dr. B. R. Ambedkar:
I mean, you see the necessity of the Central Government obtaining such information as
is necessary for its purpose ?
Sir
Samuel Hoare:
Certainly, and I accept the need.
13,150.
Dr. B. R. Ambedkar : I thought I would draw your attention to it because I do
not find the information in Proposal 125 ?
Sir
Samuel Hoare:
I think that presupposes obtaining the necessary information from the Provincial
Government. It is intended to anyhow.
13,151.
Dr. B. R. Ambedkar: Now, with
regard to Proposal 114, there is a proviso tacked on to it that the concurrent power shall not be exercised so as to impose a
financial burden. What I would like to know is this. If
there is a dispute that a particular proposal does impose a financial burden, one party
contending that it does not, another party contending that it does, now is this dispute to
be resolved ? Largely and broadly, for instance, the
Central Government proposes new service to be carried on by the new Provinces, one could
draw the conclusion that such a thing would impose a financial burden, but there might be
cases on the border-line where there might be a dispute ?
Sir
Samuel Hoare:
As the provisions stand at present, recourse would be to the Federal Court. That may not,
however, be sufficiently comprehensive a method and, as I said the other day, we are
considering the possibility of some kind of arbitral procedure to apply in cases that were
not suited for settlement by the Federal Court.
13,152.
Mr. M. R. Jayakar: It would fall at present under paragraph 155(i) ?
Sir
Samuel Hoare:
Yes, the Federal Court.
13,153.
Dr. B. R. Ambedkar: There is just one more
question I would like to ask you. Secretary of State,
because I am not clear about it. What I want to know is this :
With regard to these administrative relations, first of all, is the Central Government
bound to employ the Provincial Governments as its agents ?
Sir
Samuel Hoare :
Yes, in the concurrent field.
13,154.
Dr. B. R. Ambedkar: It is bound to ?
13,155.
Dr. B. R. Ambedkar:
It cannot employ its own agents ?
Sir
Samuel Hoare:
It is our intention that the administration in the concurrent field should be Provincial.
13,156.
Dr. B. R. Ambedkar: Subject to a question of
whether its directions can be given or not—that is another matter ?
13,157.
Dr. B. R. Ambedkar: Then it would also follow
that the Provincial Governments are bound to take up the work of the agency of the Central Government if they are called upon ?
Sir
Samuel Hoare:
Yes, under the Federal Law.
[f37]13,411.
Dr. B .R. Ambedkar:
Also the fact that the backward classes are included in the Communal Award by having a
certain number of seats assigned to them. Would that not also bring them under the
definition of "
minorities " ? I mean
if, as you said just now, the minorities would be those communities that are covered by
and included in the Communal Award. I should imagine the Backward Classes also would be
included in the Communal Award ?
Sir
Samuel Hoare:
I think after this discussion I had better look once again into this very difficult
question of these comparatively small bodies of people scattered about outside the
Excluded Areas, and perhaps Members of the Committee and the Delegates, will also think
over the best way of meeting what appears to be a rather general desire.
13,412.
Dr. B. R. Ambedkar : Might I draw your attention.
Secretary of State, to the peculiar position occupied by the Criminal Tribes. The Criminal
Tribes are more or less scattered in the general population. I am speaking of the
particular experience of Bombay ; I suppose it is so in
other Provinces. Now in order to protect the Criminal
Tribes, which are, as I say, scattered in the general mass of the population, there is, I
think, a Government of India Act called the Criminal Tribes Act. I am giving an
illustration in order to suggest a method of protecting them. That Act gives the Governors some powers to make regulations with regard to the
movements of these people and their interests. Would it not be possible for the Governor
under paragraph 108 to pass some such regulation affecting
the mode of living or protection of these people, although
they may be scattered ?
Sir
Samuel Hoare:
It would only be possible under these clauses in the Excluded and partially Excluded
Areas.
13,413.
Dr. B. R. Ambedkar:
What I wish to put to you is this : Would it not be open,
for instance, to the Governor under paragraph 108, once he has got a definition of a
person belonging to a tribal area or an aboriginal class, to make certain legislation
affecting him whether he stayed in the Excluded Area or whether he stayed in the
population, as is the case with the Criminal Classes ? The
legislation of the Criminal Classes affects the members of the particular tribe no matter
where he stays ?
Sir
Malcolm Hailey:
The Criminal Tribes Act is no longer a Government of India Act They have become matters of
Provincial Legislation. The Criminal Tribes Act gives to the Local Government not
specifically to the Governor, power to control the movements, to register and restrict in
various ways persons who fall within the definition of Criminal Tribes as notified by the
Local Government. Therefore it would be difficult to apply that analogy to the extension
of the special protection of the scattered aboriginals or
Backward Classes. In any case, that is a matter which the
local Legislature could undertake now of its own initiative. My point was that it gives no
special power to the Governor as apart from the Local
Government.
13,414.
Dr. B. R. Ambedkar:
But under paragraph 108 the Governor could, for instance, by notification classify people
as belonging to aboriginal or Backward Areas, and then pass legislation affecting them, no
matter where they stayed ?
Sir
Samuel Hoare :
I do not think he could do that under paragraph 108.
Under paragraph 108 he could only deal with people living in the scheduled
territory.
[f38]13,530.
Dr. B. R. Ambedkar : I want to ask you one or two questions to clear up the
financial side of this problem. I want to ask a question, first of all, with regard to
financing what are called the partially excluded areas ?
Sir
Samuel Hoare:
Yes.
13,531.
Dr. B. R. Ambedkar: I take it that there would
be a common budget, the provincial budget, in which the moneys
provided for the partially excluded area would also be included ?
13,532.
Dr. B. R. Ambedkar :
In that case, the whole budget, of course, would be open to discussion by the Legislature ?
Sir
Samuel Hoare:
Yes, subject to paragraph 109.
13,533.
Dr. B. R. Ambedkar :
I am coming to that. It is only when the Governor exercises his special responsibility
under paragraph 70 that they would go outside the purview of the Legislature ? Is not that so ?
Sir
Samuel Hoare:
Yes, and paragraph 109.
13,534.
Dr. B. R. Ambedkar: But ordinarily they would be
part of the provincial budget ? Sir Samuel Hoare:
Yes.
13,535.
Dr. B. R. Ambedkar: I want to ask a similar
question with regard to the wholly excluded areas. I find that the special responsibility
of the Governor under paragraph 70(f), is confined to partially excluded areas only?
13,536.
Dr. B. R. Ambedkar:
That means that for the administration of the wholly
excluded areas the Governor could not draw upon the provincial funds ?
Sir
Samuel Hoare
: Dr. Ambedkar's very acute
mind has discovered a gap in the White Paper. That is so.
13,537.
Dr. B. R. Ambedkar: He could not draw upon them ?
Sir
Samuel Hoare:
As drafted he could not draw upon the provincial funds. It is an omission that we propose
to set right in any final draft.
13,538.
Dr. B. R. Ambedkar:
Another paragraph is 49 to which I also want to draw your attention in this connection.
There sub-clause (v) says that the expenditure required for
excluded areas shall be the special responsibility of the
Governor-General ?
Sir
Samuel Hoare:
Yes.
13,539.
Dr. B. R. Ambedkar: Do I take it that in the
administration of the wholly excluded area the Governor, who presumably would be the agent
of the Governor-General, would have to depend upon such moneys as may be supplied to him
by the Governor-General in the exercise of his special responsibility ?
Sir
Samuel Hoare:
No; the Governor himself
will ask for the money from the Province.
13,540.
Dr. B. R. Ambedkar: So you do
propose to amend the provision dealing with the special responsibilities of the Governor
to enable him to draw upon provincial funds for the administration of the wholly excluded
areas also ?
Mr.
M. R. Jayakar:
Does it not now fall under paragraph 96, subparagraph (b): "The Governor will cause a statement
of the estimated revenues ", etc., and then you have
given power to specify separately those additional proposals (if any), whether under the votable or non-votable heads,
which the Governor regards as necessary for the fulfilment of any of his " special responsibilities ".
Special responsibilities include expenditure to be spent on the partially excluded areas.
13,541.
Dr. B. R. Ambedkar : I am talking about wholly excluded areas ?
Sir
Samuel Hoare :
The point Dr. Ambedkar has raised deals with totally
Excluded Areas and, by an error in drafting (it is nothing more than that) it would appear
that the Provincial Governor, while he could draw upon the
provincial funds for partially Excluded Areas, could not
draw upon the provincial funds for the totally Excluded Areas. That is an omission in
drafting.
* * * * *
[f39]13,722.
Dr. B. R. Ambedkar : Might I ask just one question arising out of the
questions put by Mr. Joshi. I just want to draw the
attention of the Secretary of State to a difficulty which I feel. Under paragraph 109 as
drafted the distinction made between the Excluded Area and the partially Excluded Area is
on the basis that in the partially Excluded Area discussion
is possible or the Governor has the power to disallow it, while in the case of an Excluded
Area, the Governor is prohibited from allowing any discussion. My difficutly is this: Yesterday,
I think in answer to a question by Major Attlee, you stated. Secretary of State, that the contribution which the Centre
was bound to make to Assam in order to cover the deficit arising out of the Excluded Area
there was not to be an earmarked amount but was to be part of the general revenues of the
Province of Assam. I suppose I am correct in saying that that was what you stated ?
Sir
Samuel Hoare:
I think I left the question somewhat open as to whether it should be a specific grant or
whether it should be merged in the general grant.
13,723.
Dr. B. R. Ambedkar:
The impression that I formed was that you said you did not think
that it would be an earmarked amount ?
Sir
Samuel Hoare:
No. I think what I said, or anyhow what I intended to say, was that in the figures that we
had been discussing we had assumed that it would be part of the general fund, but as to
whether that was the best way of dealing with it I had an open mind.
13,724.
Dr. B. R. Ambedkar:
Very well. I will take another aspect of the thing. In answer to a question which I put
you stated that so far as the financing of the Excluded Area was concerned you were going
to rectify the omission in the White Paper and allow the Governor of the Province to draw
upon the general fund of the Province of Assam for the expenditure that he was likely to
incur under the Excluded Area ?
Sir
Samuel Hoare:
Yes.
13,725.
Dr. B. R. Ambedkar: The difficulty
that I feel is this, that if the Governor is to have the power to draw money from the
Provincial Fund of Assam in order to carry on that administration in the Excluded Area, is
it consistent with this provision in paragraph 109 that the Legislature should be
altogether prohibited from discussing the affairs of the Excluded Area which is supposed
to provide that money ?
Sir
Samuel Hoare :
I think Dr. Ambedkar does raise a difficult case. It is not a case in which a very large
sum is involved, for this reason, that by far the greater part of the expenditure upon the
totally Excluded Area of Assam will be found from Federal funds, but I think it may be
assumed that there will be a sum in addition to that needed.
13,726.
Dr. B. R. Ambedkar: As you said yesterday, in
all these areas where there will be partially Excluded Areas the Budget would be a common
Budget, unless, of course, the Governor certified an extra amount under his extra
responsibility, in which case the Budget as a whole would be placed before the Legislature
and open to discussion. I do not see how the difficulty would be got over ?
Sir
Samuel Hoare:
We had considered the advantage in a case of that kind of proceeding, say, by a contract
but get over a period of years. What I am anxious to avoid are frequent discussions.
13,727.
Dr. B. R. Ambedkar: I suppose the purpose could
be best served by having a common provision for both, prohibiting discussion and allowing
the Governor the power to prohibit it or disallow it, whichever he thought necessary ?
Sir
Samuel Hoare:
It was pressed upon us very strongly by the people working in these tracts that there was
a great advantage in excluding discussions in the case of the totally Excluded Areas, but
I have always seen the difficulty of the expenditure in Assam from provincial funds. I
think the Committee and the Delegates might consider whether supposing there was a
contract budget for a period of years when the contract was renewed there might then be a
discussion; but even that (I say it so that the Committee
should know the whole position) is contrary to the views of a good many of the experts.
13,728.
Dr. B. R. Ambedkar: But I suppose the purpose of
the experts and the purpose that you have in view would be very well served by having this
power of the Governor to
allow a resolution and discussion ?
Sir
Samuel Hoare:
What we wanted to avoid was the Governor constantly having to refuse discussions of this
kind. It would put him into a difficult position, and we do not contemplate in the case of
totally Excluded Areas that there would be discussions, and we do not want to take any
action that would appear to permit discussions that we think
would be harmful to the area ; that is what it comes to.
Dr.
B. R. Ambedkar:
I was only suggesting that the Governor's power would be adequate protection against that. That is all I ask.
* * * * *
[f40]13,923.
Dr. B. R. Ambedkar : Might I ask one question on that point ? As I understand it in the concurrent field there will be an
appeal to the Privy Council from the decisions of the High Court ?
Sir
Samuel Hoare:
Yes.
13,924.
Dr. B. R. Ambedkar : What I do not understand is this, if there can be an appeal to the Privy Council in an issue
arising out of an interpretation of the concurrent law in the concurrent field, what
difficulty can there be in allowing such an appeal to the Federal Court ?
Sir
Samuel Hoare :
One of our reasons anyhow is that we do not want to flood the Federal Court with an
enormous amount of work and the demand
for
a very large number of Judges at the beginning.
[f41]l4,373.
Dr. B. R. Ambedkar : Secretary of State, I just want to ask one question
about paragraph 155. This para 155 relates to exclusive
original jurisdiction of the Federal Court. I do not understand the distinction that seems
to be made there. I find on reading paragraph 155 that you make a distinction in the
matter of the exclusive original jurisdiction of the Federal Court on the basis that where
the parties to the dispute are as there mentioned in sub-clauses (a) and (b), the exclusive original jurisdiction is given to the Federal
Court, but the Federal Court cannot have an exclusive original jurisdiction if the parties
are private individuals. Now the question I would like to ask is this. The issue in both
cases is the same, namely, the constitution issue involving the interpretation of the
Constitution Act What I do not understand is this. Why there should be this distinction in
the matter of an exclusive original jurisdiction of the
Federal Court based on parties when the issue is the same ?
Sir
Samuel Hoare:
I think this is what usually happens with Federal Courts that the original jurisdiction is
jurisdiction between units, and it is in the appellate jurisdiction that the individual
comes into it as of right.
14,374.
Dr. B. R. Ambedkar : I mean, if the intention is that where, for instance,
the interpretation of the Constitution Act is involved, the matter should at once go to
the Federal Court, then I think there can be no distinction made whether the parties are
parties which are units of the Federation or of individuals
?
Sir
Samuel Hoare:
I would have thought that this was one of the necessary working conditions of a Federal
Court. I think if it had original jurisdiction in individual cases as well it would be
entirely swamped with cases.
Dr.
B. R. Ambedkar:
But, all the same, the issue in both cases would be the
same, namely, the interpretation of the Constitution Act. I can quite understand the
distinction being based upon different causes of action, but where the cause of action is
the same, or rather the plea is the same, namely, that
there is a breach of the constitution, I do not see any justification in making this
distinction based upon units and parties.
[f42]14,380.
Dr. B. R. Ambedkar: Now there is another
question which I wish to ask the Secretary of State, and it is this. I do not! find any
provision in the White Paper about it. Do not you think, Secretary of State, it is
desirable that there should be provision made allowing private individuals to sue for a
declaration that a particular act is unconstitutional, although he is not seeking any
specific relief ? I mean, all the cases that you have
provided for I find are cases in which some specific relief is asked for. It may be
desirable that a private party, in order to safeguard his future, may like to test at once
if he has any doubts whether the particular proposal made by the Federation or by a
Province is unconstitutional so that he may safeguard his position for the future, although, at the moment, when he is filing the suit
for the proceedings, he has no reason to seek any specific relief ?
Sir
Samuel Hoare:
I have some hesitation, not being a lawyer, in answering a question of that kind, but if I
may give offhand the answer of a layman I would have said that it was extraordinarily
difficult to allow a general right of that kind without any specific issue affecting the
individual.
Marquess
of Reading:
May I make the observation that what you have said is really the law as it is applied in
this country ? We do not allow these applications of what
are called Qia timet, that
is to say, merely a case of difficulty hereafter to get a declaration when there is no
substantial dispute and the moment there is a dispute it can be done. We never allow it,
and I do not think they do in India.
Sir
Hari Singh Gour :
No cause of action; no right of suit.
Mr.
Zafrulla Khan:
Indeed there would be very great difficulties if such a provision were inserted in the
Constitution. You would start a million suits being instituted in India the moment the Act
was passed.
14,381.
Dr. B. R. Ambedkar: I do not know whether
everybody will exercise his right ?
Sir
Samuel Hoare :
It would be an excellent affair for the legal profession in India.
* * * *
*
[f43]15,741.
Dr. B. R. Ambedkar: Just one question. Secretary of State, dealing with the exceptions in (c), " Special Powers " (Special powers of the Governor-General) as I
understand, the position is this: Generally speaking, the Legislature cannot pass a discriminatory Act. I am
speaking quite generally ?
15,742.
Dr. B. R. Ambedkar: Administratively the Government of the day cannot discriminate unless it
satisfies the Governor that there is no discrimination in fact?
Sir
Samuel Hoare :
No.
Mr.
M. R. Jayakar:
The Governor-General.
15,743.
Dr. B. R. Ambedkar:
The Governor-General or the Governor, because the provision refers to both. That is
theoretically and generally the position, is it not?
Sir
Samuel Hoare :
Yes.
15,744.
Dr. B. R. Ambedkar:
Now under sub-clause (c) the Governor-General will have the
power to pass a legislative enactment making a discrimination if it came within the terms
of this proviso. I mean, this power you give to the Governor not only for administrative
purposes, but also for legislative purposes ?
Sir
Samuel Hoare:
It is the general power under Proposal 18 of the White Paper.
15,745.
Dr. B. R. Ambedkar:
Governing both; so that the Governor may discriminate
although the Government may not ?
Sir
Samuel Hoare:
For the prevention of any grave menace to peace and tranquillity.
15,746.
Dr. B. R. Ambedkar:
Yes; Now I want to ask what is the import of this. I will
put one or two specific illustrations to see if that is what you mean. I suppose under
this clause it would be possible for the Governor-General, by way of prevention of any
grave menace, to say that certain persons shall not be employed in the Army. Would it be
open to the Governor to do so under this ?
Sir
Samuel Hoare:
I suppose theoretically it would be, but the case would be very remote in connection with
a grave menace to peace and tranquillity. I cannot, for instance, imagine putting the
concrete case which is perhaps in Dr. Ambedkar's mind, a
Governor-General saying that a proposal to start a unit endangered the peace and
tranquillity of India.
15,747.
Dr. B. R. Ambedkar:
I am glad to hear that. That is what rather disturbed me ?
Sir
Samuel Hoare:
I am not saying whether from a military point of view it would be a good or a bad plan but
I cannot see that this would come within the scope of this safeguard.
15,748.
Dr. B. R. Ambedkar:
Nor would it come within the special powers of the Governor
in this clause to say that the Depressed Classes shall not be employed in the Police ?
Sir
Samuel Hoare:
No.