Clause wise Discussion on the Draft Constitution
15th November 1948 to 8th January 1949
Democracy is a form and a method of Government whereby revolutionary changes in the economic and social life of people are brought about without bloodshed.
-from Dr. Ambedkars address at Poona District Law Library on December 22, 1952.
"That after article 31, the following new article he added: " 31-A. The State shall take steps to organise village panchayats and endow them with such powers and authority as may he necessary to enable them to function as units of self-Government."
(An Honourable Member rose to speak.)
Mr. Vice-President : In this matter my decision is final. I have not yet found anybody who has opposed the motion put forward by Mr. Santhanam. There might be different ways of praising it, but at bottom and fundamentally, these speeches are nothing but praising the amendment.
The motion was adopted.
Article 31-A was added to the Constitution.
(b) that for the words ' of. undeserved want ' the words ' deserving relief ' be substituted."
" And in particular the State shall endeavour to promote cottage industries on cooperative lines in rural areas."
That is the language of the amendment moved by Mr. Chettiar.
Therefore, it is in order. Now the article is open for general discussion.
[f6] Shri S. Nagappa (Madras : General) : Sir, I do not want to take time of the House. I just want to make an amendment. After the words ' to all workers, industrial ', the word ' agricultural ' may be added. Sir, I need not say that the bulk of the working population consists of agricultural workers.
Mr. Vice-President : This is out of order.
The Honourable Dr. B. R. Ambedkar : Mr. Vice-President, Sir, as there is a considerable amount of feeling that the Directive Principles should make some reference to cottage industries, I am agreeable in principle to introduce in article 34 some words to give effect to the wishes of the Members of this House. I am therefore prepared to accept the amendment moved by my friend Mr. Ramalingam Chettiar, subject to the substitution of one or two words. One substitution that I would like to make is this. After the words " cottage industries on " I would like to add the words " individual or ". I would like to substitute his word ' lines ' by the word ' basis '. So that the amendment would read as follows:
That, I think, would meet the wishes of most of the Members who are particularly interested in the subject.
The Honourable Dr. B. R. Ambedkar : I have no objection if you allow that. I think Mr. Nagappa's suggestion that agricultural labour is as important as industrial labour and should not be merely referred to by the word ' otherwise ' has some substance in it. However, it is a matter of ruling and it is for you to decide.
Shri L. Krishnaswami Bharathi : (Madras : General) : Sir, may I suggest that we may stop with the word cottage industries and omit the rest. Why do you want the words ' on individual or co-operative basis ' ? There is no point in adding these words unless you want to lay special emphasis on co-operative basis. I would like these words ' on individual or co-operative basis ' to be omitted.
Honourable Dr. B. R. Ambedkar : May I explain. Sir? I find among the Members who are interested in the subject, there are two divisions : one division believes in cottage industries solely on a cooperative basis ; the other division believes that there should be cottage industries without any such limitation. In order to satisfy both sides. I have used this phraseology deliberately, which, I am sure, will satisfy both views that have been expressed.
Shri Mahavir Tyagi : In the hope that this will all be done on the basis of self-sufficiency, I accept the amendment to my amendment as Imally proposed by Dr. Ambedkar and in that case I shall have to withdraw mine.
The amendment was, by leave of the Assembly, withdrawn.
Mr. Vice-President : It has not been included but I am quite prepared to go back on my ruling provided the House as a whole, without any dissension, accepts the suggestion of Dr. Ambedkar. Honourable Members : Yes.
The amendment, as amended, was adopted.
The amendment, as further modified by Mr. Nagappa was adopted.
Article 34, as amended, was added to the Constitution.
Mr. Vice-President : This article is allowed to stand over for consideration later. Is it agreed to by the House ?
Honourable Members : Yes.
Sir, I will strictly obey the injunction given by you regarding curtailment of speeches. I will put in half a dozen sentences to explain the purpose of this amendment. If this amendment is accepted by the House, as I hope it will be, then the article will read as follows: " The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years." ......
" That in article 36, for the word ' education ', the words ' primary education ' be substituted."
[f8] The Honourable Dr. B. R. Ambedkar : Sir, I accept the amendment proposed by my friend, Mr. Maitra, which suggests the deletion of the words " every citizen is entitled to free primary education and ". But I am not prepared to accept the amendment of my Friend, Mr. Naziruddin Ahmad. He seems to think that the objective of the rest of the clause in article 36 is restricted to free primary education. But that is not so. The clause as it stands after the amendment is that every child shall be kept in an educational institution under training until the child is of 14 years. If my Honourable Friend, [f9] Mr. Naziruddin Ahmad had referred to article 18, which forms part of the Fundamental Rights, he would have noticed that a provision is made in article 18 to forbid any child being employed below the age of 14. Obviously, if the child is not to be employed below the age of 14, the child must be kept occupied in some educational institution. That is the object of article 36, and that is why I say the word " primary " is quite inappropriate in that particular clause, and I therefore oppose his amendment.
Article 36, as amended, was added to the Constitution.
" Provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law."
[f11] The Honourable Dr. B. R. Ambedkar : Sir, I am afraid I cannot accept the amendments which have been moved to this article. In dealing with this matter, I do not propose to touch on the merits of the question as to whether this country should have a Civil Code or it should not. That is a matter which I think has been dealt with sufficiently for the occasion by my Friend, Mr. Munshi, as well as by Shri Alladi Krishnaswami Ayyar. When the amendments to certain fundamental rights are moved, it would be possible for me to make a full statement on this subject, and I therefore do not propose to deal with it here.
My friend, Mr. Hussain Imarn, in rising to support the amendments, asked whether it was possible and desirable to have a uniform Code of laws for a country so vast as this is. Now I must confess that I was very much surprised at that statements, for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts ; and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country. The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about that change. Therefore, the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have, as a matter of fact, covered the whole tot of the field which is covered by a uniform Civil Code in this country. It is therefore too late now to ask the question whether we could do it. As I say, we have already done it.
Coming to the amendments, there are only two observations which I would like to make. My first observation would he to state that members who put forth these amendments say that the Muslim personal law, so far as this country was concerned, was immutable and uniform through the whole of India. Now I wish to challenge that statement. I think most of my friends who have spoken on this amendment have quite forgotten that up to 1935 the North-West Frontier Province was not subject to the Shariat Law. It followed the Hindu Law in the matter of succession and in other matters, so much so that it was in 1939 that the Central Legislature had to come into the field and to abrogate the application of the Hindu Law to the Muslims of the North-West Frontier Province and to apply the Shariat Law to them. That is not all.
My Honourable friends have forgotten, that, apart from the North-West Frontier Province, up till 1937 in the rest of India, in various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law in the matter of succession. In order to bring them on the plane of uniformity with regard to the other Muslims who observed the Shariat Law, the Legislature had to intervene in 1937 and to pass an enactment applying the Shariat Law to the rest of India.
I am also informed by my friend, Shri Karunakara Menon, that in North Malbar the Marumakkathayam Law applied to allnot only to Hindus but also to Muslims. It is to be remembered that the Marumakkathayam Law is a Matriarehal form of law and not a Partriarehal form of law.
The Mussulmans, therefore, in North Malbar were up to now following the Marumakkathayam law. It is therefore no use making a categorical statement that the Muslim law has been an immutable law which they have been following from ancient times. That law as such was not applicable in certain parts and it has been made applicable ten years ago. Therefore if it was found necessary that for the purpose of evolving a single civil code applicable to all citizens irrespective of their religion, certain portions of the Hindu Law, not because they were contained in Hindu Law but because they were found to be the most suitable, were incorporated into the new civil code projected by article 35, I am quite certain that it would not be open to any Muslim to say that the farmers of the civil code had done great violence to the sentiments of the Muslim community.
My second observation is to give them an assurance. I quite realise their feelings in the matter, but I think they have read rather too much into article 35, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that the future Parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary. Parliament may feel the ground by some such method. This is not a novel method. It was adopted in the Shariat Act of 1937 when it was applied to territories other than the North-West Frontier Province. The law said that here is a Shariat law which should be applied to Mussulmans provided a Mussulman who wanted that he should be bound by the Shariat Act should go to an officer of the State, make a declaration that he is willing to be bound by it, and after he has made that declaration the law will bind him and his successors. It would be perfectly possible for Parliament to introduce a provision of that sort ; so that the fear which my friends have expressed here will be altogether nullified. I therefore submit that there is no substance in these amendments and I oppose them.
Sir, "Scheduled Castes " has been defined in article 303 (w) of this Draft Constitution as castes and races specified in the Government of India (Scheduled Castes) Order 1936. In that Order, most of the tribes, castes and subcastes are described and include Bawaria, Chamar, Chuhra, Balmiki, Od, Sansi, Sirviband and Ramdasis. It would be conceded that they have different faiths and beliefs. For instance, there are considerable numbers of Sikh Ramdasis, Odes, Balmikis and Chamars. They are as backward as their brethren of other beliefs. But, so far, these Sikh backward classes have been kept out of the benefits meant for Scheduled Castes. The result has been either conversion in large numbers or discontent.
I do realise that so far as election to legislatures was concerned, there could be some justification as the Sikhs had separate representation and the Scheduled Castes got their reservation out of General Seats. There is the famous case of S. Gopal Singh Khalsa who could not be allowed to contest a seat unless he declared that he was not a Sikh. Such cases have led to disappointment and discontent on account of a general belief that some sections were being discriminated against.
Now the underlying idea is the uplift of the backward section of the community so that they may be able to make equal contribution in the national activities. I fully support the idea. I may be confronted with an argument that at least there is the first part of the article which provides for promotion " of educational and economic interests of ' weaker sections ' of the people ". So far it is quite good and it can apply to every class. But, as the " weaker sections " are not defined anywhere, the apprehension is that the whole attention would be directed to the latter part relating to ' Scheduled Castes ' and ' weaker sections ' would not mean anything at all. Even the article lays the whole stress on this latter portion by centralising attention through the words ' in particular ' of the' Scheduled Castes '.
I may not be misunderstood in this respect. I do not grudge this special care of the State being directed towards "Scheduled Castes ". Rather, I would support even greater concessions being given and more attention being paid to backward classes. My only object is that there should be no discrimination. That is not the intention of the article either. But, as I have said, so far the " Scheduled Castes " have been understood by general masses to exclude the members of the same castes professing Sikh religion. We should be particular in guaranteeing against any misconstruction being placed or any discrimination being exercised by those who would be responsible for actual working of it. Under the present article, it is the " educational and economic interests " that are to be promoted and therefore it should be made clear that it is to be done for all backward classes, and not for persons professing this or that particular religion or belief. I commend this motion for the acceptance of the House.
The Honourable Dr. B. R. Ambedkar : May I just make a statement ? I believe both these amendments dealing with the backward classes, etc. would be more appropriate to the Schedule and could be better considered when we dealt with the Schedule. I would suggest that the consideration of these amendments may be postponed.
Mr. Vice-President : Dr. Ambedkar proposes to give the fullest possible consideration to these in the Schedule.
Mr.Vice-President : He can hardly agree to anything now. The matter is open to discussion later.
Shri A. V. Thakkar : Then I do not move my amendment now.
Mr. Naziruddin Ahmad : Sir, I am not moving my amendment No. 985. It merely seeks to use capital letters in the case of the Scheduled Castes. I would respectfully draw the attention of the Chairman of the Drafting Committee to article 303 (1), items (w) and (x) on page 147 of the Draft Constitution. We have there specified two definitions, ' Scheduled Castes ' and ' Scheduled Tribes '. ' Scheduled Castes ' have everywhere been spelt with capital letters, but ' Scheduled tribes ' have been spelt with small letters.
The Honourable Dr. B. R. Ambedkar : We shall consider that.
Article 37 was added to the Constitution.
[f13] Mr. Vice-President : We shall commence today's proceedings with the consideration of the particular article with which we are concerned today in the Draft Constitution. The introduction of the Bill will be taken up after a little while.
Prof. Shibban Lal Saksena : (United Provinces : General) : I am tabling an amendment which is an amendment of Mr. Mahavir Tyagi's. I hope it will he acceptable to him, because in his amendment, he has not included the words ' except for medicinal purposes '. I think that if the amendment of Mr. Mahavir Tyagi is accepted as amended by my amendment, it would become much better. I wish Dr. Ambedkar to accept my amendment which is mentioned in No. 86 of list IV.
Sir I beg to move :
' and shall endeavour to bring about prohibition of the consumption of intoxicating drinks and drugs which are injurious to health except for medicinal purposes "'.
[f14] The Honourable Dr. B. R. Ambedkar : Mr. Vice-President, I accept the amendment of Prof. Shibban Lal Saksena subject to a further amendment, namely, that after the word ' and ' at the beginning of his amendment (86 of List IV) the words " in particular " be added.
Mr. Vice-President : Mr. Tyagi is a great stickler for rights.
Mr. Vice-President : That puts the matter in a new light.
The Honourable Dr. B. R. Ambedkar : I do not think the House would have found any difficulty in accepting this amendment. Two points have been raised against it. One is by Prof. Khandekar who represents Kolhapur in this Assembly. I am sure that Mr. Khandekar has not sufficiently appreciated the fact that this clause is one of the clauses of an Article which enumerates what are called Directive Principles of Policy. There is therefore no compulsion on the State to act on this principle. Whether to act on this principle and when to do so are left to the State and public opinion. Therefore, if the State thinks that the time has not come for introducing prohibition or that it might be introduced gradually or partially, under these Directive Principles it has full liberty to act. I therefore do not think that we need have any compunction in this matter. But, Sir, I was quite surprised at the speech delivered by my friend Mr. Jaipal Singh. He said that this matter ought not to be discussed at this stage, but should be postponed till we take up for consideration the report of the Advisory Committee on Tribal Areas. If he had read the Draft Constitution, particularly the Sixth Schedule, paragraph 12, he would have found that ample provision is made for safeguarding the position of the tribal people with regard to the question of prohibition. The scheme with regard to the tribal areas is that the law made by the State, whether by a province or by the Centre, does not automatically apply to that particular area. First of all, the law has. to be made. Secondly, the District Councils or the Regional Councils which are established under this Constitution for the purposes of the administration of the affairs of these areas are given the power to say whether a particular law made by a province or by the Centre should be applied to that particular region inhabited by the tribal people or not, and particular mention is made with regard to the law relating to prohibition. I shall just read out sub-paragraph (a) of paragraph 12 which occurs on page 184 of the Draft Constitution. It says:
" Notwithstanding anything contained in this Constitution
(a) no Act of the legislature of the State in respect of any of the matters specified in paragraph 3 of this Schedule as matters with respect to which a District Council or a Regional Council may make laws, and no Act of the Legislature of the State prohibiting or restricting the consumption of any non-distilled alcoholic liquor shall apply to any autonomous district or autonomous region unless in either case the District Council for such district or having jurisdiction over such region by public notification so directs, and the District Council in giving such direction with respect to any Act may direct that the Act shall in its application to such district or region or any part thereof have effect subject to such exceptions or modifications as it thinks fit; "
Now, I do not know what more my friend, Mr. Jaipal Singh, wants than the provision in paragraph 12 of the Sixth Schedule. My fear is that he has not read the Sixth Schedule : if he had read it, he would have realised that even though the State may apply its law regarding prohibition in any part of the country, it has no right to make it applicable to the tribal areas without the consent of the District Councils or the Regional Councils.
Mr. Vice-President : I want to know whether you want that your amendment should be put separately to the vote.
Shri Mahavir Tyagi : Yes, Sir, of course. As I have said, I want to abolish liquor altogether. He wants to add the words " except for medical purposes ". Therefore my amendment is the original amendment.
Shri Mahavir Tyagi : I accept his amendment also, Sir.
Mr. Vice-President : This particular amendment as amended is now put to the vote.
The amendment was adopted.
[Article 38 an amended, was added to the Constitution.]
" 38-A. The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall in particular take steps for preserving and improving the breeds of cattle and prohibit the slaughter of cow and other useful cattle, specially milk and draught cattle and their young stock '. "
At the very outset I would like to submit that this amendment...
Shri S. Nagappa : (Madras : General) : Sir, on a point of order, my Honourable friend, who can speak freely in English, is deliberately talking in Urdu or Hindustani which a large number of South Indians cannot follow.
Mr. Vice-President : The Honourable Member is perfectly entitled to speak in any language he likes but I would request him to speak in English though he is not bound to speak in English.
Pandit Thakur Dass Bhargava : I wanted to speak in Hindi which is my own language about the cow and I would request you not to order me to speak in English. As the subject is a very important one, I would like to express myself in the way in which I can express myself with greater ease and facility. I would therefore request you kindly to allow me to speak in Hindi.
*[Mr. Vice-President, with regard to this amendment I would like to submit before the house that in fact this amendment like the other amendment, about which Dr. Ambedkar has stated, is his manufacture....
Mr. Vice-President : I shall now put the amendments one by one to the vote. The amendment of Pandit Thakur Dass Bhargava. That is No. 72 in List II. [The motion was adopted.] Article 38-A, as amended, was added to the Constitution.
[f18] Mr. Vice-President : Shall we now go on to the next item in the agenda ? No. 1003 has been covered by one of the previous amendments. No. 1004 has also been disposed of. Then No. 1005. The first part of it cannot be moved, but the second part can be moved. (Not moved.)
Then the motion before the House is that article 39 forms part of the Constitution. There are several amendments to this.
(Nos. 1006,1007 and 1008 were not moved.) No. 1009 by Dr. Ambedkar and his colleagues.
Prof. Shibban Lal Saksena : I am glad that Dr. Ambedkar is going to accept it. Because this article is to be a directive principle, it should not mention about laws of Parliament and so we must omit the words " to preserve and maintain according to law made by Parliament all such monuments or places or objects."
Mr. Vice-President : I am now putting the amendments one by one.
The motion was adopted.
Mr. Vice-President : There is the amendment of Prof. Shibban Lal Saksena.
Mr. Vice-President : There is no second part so far as I am aware. It only refers to deletion of certain words. The first part is the same. Begum Aizaz Rasul : I wish to oppose that motion. Mr. Vice-President : I am afraid it is too late now.
The motion was adopted.
Article 39, as amended, was added to the Constitution.
" That after article 39, the following new article he inserted:
' 39-A. That State shall take steps to secure that, within a period of three years from the commencement of this Constitution, there is separation of the judiciary from the executive in the public services of the State. '. "
I do not think it is necessary for me to make any very lengthy statement in support of the amendment which I have moved. It has been the desire of this country from long past that there should be separation of the judiciary from the executive and the demand has been continued right from the time when the Congress was founded. Unfortunately, the British Government did not give effect to the resolutions of the Congress demanding this particular principle being introduced into the administration of the country. We think that the time has come when this reform should be carried out. It is, of course, realised that there may be certain difficulties in the carrying out of this reform ; consequently this amendment has taken into consideration two particular matters which may be found to be matters of difficulty. One is this : that we deliberately did not make it a matter of fundamental principle, because if we had made it a matter of fundamental principle it would have become absolutely obligatory instantaneously on the passing of the Constitution to bring about the separation of the judiciary and the executive. We have therefore deliberately put this matter in the chapter dealing with directive principles and there too we have provided that this reform shall be carried out within three years, so that there is no room left for what might be called procrastination in a matter of this kind. Sir I move.
so that the article 39-A, with this amendment would read as follows:
The House will see that the object of this amendment is to eliminate the period of three years which has been stated in the original article as proposed by 39-A. The reasons why I have been obliged to make this amendment are these. There is a section of the House which feels that in these directive principles we ought not to introduce matters of details relating either to period or to procedure. These directive principles ought to enunciate principles and ought not to go into the details of the working out of the principles. That is one reason why I feel that the period of three years ought to be eliminated from article 39-A.
The second reason why I am forced to make this amendment is this. The expression " three years " has again brought about a sort of division of opinion amongst certain members of the House. Some say, if you have three years period, then no government is going to take any step until the third year has come into duration. You are practically permitting the provincial legislatures not to take any steps for three years by mentioning three years in this article. The other view is that three years may be too short. It may be that three years may be long enough so far as provinces are concerned, where the administrative machinery is well established and can be altered and amended so as to bring about the separation. But we have used the word " State " in the directive principles to cover not only the provincial governments but also the governments of the Indian States. It is contended that the administration in the Indian States for a long time may not be such as to bring about this desired result. Consequently the period of three years, so far as the Indian States are concerned, is too short. All these arguments have undoubtedly a certain amount of force which it is not possible to ignore. It is, therefore, thought that this article would serve the purpose which we all of us have in view, if the article merely contained a mandatory provision, giving a direction to the State, both in provinces as well as in the Indian States, that this Constitution imposes, so to say, an obligation to separate the judiciary from the executive in the public services of the State, the intention being that where it is possible, it shall be done immediately without any delay, and where immediate operation of this principle is not possible, it shall, nonetheless, be accepted as an imperative obligation, the procrastination of which is not tolerated by the principles underlying this Constitution. I therefore submit that the amendment which I have moved meets all the points of view which are prevalent in this House, and I hope that this House will give its accord to this amendment.
Prof. Shibban Lal Saksena (United Provinces : General) : Sir, Dr. Ambedkar has already moved an amendment, that is he has added a new article No. 39-A. Is it permissible to a member to amend his own amendment ?
Mr. Vice-President : Yes. I would request you all to bear in mind that we have to go to the fundamentals and not to technicalities.
Shri R. K. Sidhwa (C. P. and Berar : General) : Mr. Vice-President, Sir, I am very glad that Dr. Ambedkar has moved this amendment and that at this late stage better counsels and sense have prevailed....
The motion was adopted.
Article 39-A was added to the Constitution.
The amendment was negatived.
" 40. The State shall
(c) endeavour to sustain respect for international law and treaty obligations in the dealings of organised people with one another. "
Sir, this, amendment merely simplifies the original article 40 and divides it into certain parts separating each idea from the other so that any one who reads the article will get a clear and complete idea of what is exactly intended to be covered by article 40. The propositions contained in this new article are so simple that it seems to be super-arrogation to try to explain them to the House by any lengthy speech. Sir, I move.
"That in amendment No. 1018 of the list of amendments, in article 40, after the words " The State shall " and before sub-clause (a), this new clause be inserted and the existing clause be renumbered accordingly : (a) foster truthfulness, justice, and sense of duty in the citizens. "
"That in amendment 1018 of the list of Amendments in article 40, after the word, ' shall ' the words ' endeavour to ' be inserted, in clause (b) the words ' seek to ' be deleted in clause (c) the words ' endeavour to ' he deleted. "
Mr Vice-President : The question is that for the existing article 40,
the following be substituted :
So that if this amendment be accepted by the House the amendment of the Drafting Committee will read as follows :
" 40. The State shall endeavour to
(a) promote international peace and security ;
(b) maintain just and Honourable relations between nations ;
(c) foster respect for international law and treaty obligations in the dealings of organised people with one another, and
(d) encourage the settlement of international disputes by arbitration." This amendment seek only a slight structural change in the amendment brought forward by Dr. Ambedkar so as to bring out or indicate the directive character of the principle embodied in article 40......
" and (d) to encourage the settlement of international disputes by arbitration. "
The motion was adopted.
[f26] The Honourable Dr. B. R. Ambedkar : Sir I accept Mr. Kamath's three amendment's. I accept Dr. Subbarayan's amendment and I accept the amendment moved by my Honourable friend, Mr. Ananthasayanam Ayyangar. I do not accept any other amendment.
The motion was negatived.
Sir, this amendment was thought necessary because apart from the territories which form part of India, there may be other territories which may not form part of India, but may none-the-less be under the control of the Government of India. There are many cases occurring now in international affairs where territories are handed over to other countries for the purposes of administration either under a mandate or trusteeship. I think it is desirable that there ought to be no discrimination so far as the citizens of India and the residents of those mandated or trusteeship territories are concerned in fundamental rights. It is therefore desirable that this amendment should be made so that the principle of Fundamental Rights may be extended to the residents of those territories as well.
The Honourable Dr. B. R. Ambedkar : Mr. Vice-President, I must confess that although I had concentrated my attention on the speech of my friend who moved this amendment, I have not been able to follow what exactly he wanted to know. If his amendment is to delete the whole of article 7, I can very easily explain to him why this article must stand as part of the Constitution.
The object of the Fundamental Rights is two-fold. First, that every citizen must be in a position to claim those rights. Secondly, they must be binding upon every authority1 shall presently explain what the word " authority " meansupon every authority which has got either the power to make laws or the power to have discretion vested in it. Therefore, it is quite clear that if the Fundamental Rights are to be clear, then they must be binding not only upon the Central Government, they must not only be binding upon the Provincial Government, they must not only be binding upon the Government established in the Indian States, they must also be binding upon District Local Boards, Municipalities, even village panchayats and taluk boards, in fact, every authority which has been created by law and which has got certain power to make laws, to make rules, or make by-laws.
If that proposition is acceptedand I do not see anyone who cares for Fundamental Rights can object to such a universal obligation being imposed upon every authority created by lawthen, what are we to do to make our intention clear ? There are two ways of doing it. One way is to use a composite phrase such as " the State ", as we have done in article 7 ; or, to keep on repeating every time, " the Central Government, the Provincial Government, the State Government, the Municipality, the local Board, the Port Trust, or any other authority ". It seems to me not only most cumbersome but stupid to keep on repeating this phraseology every time we have to make a reference to some authority. The wisest course is to have this comprehensive phrase and to economise in words. I hope that my friend will now understand why we have used the word " State" in this article and why this article must stand as part of this Constitution.
The question is:
" That with reference to amendment No. 246 of the List of Amendments, in article 7 the words" and all local or other authorities, within the territory of India or under the control of the Government of India " he deleted. "
The motion was negatived.
" or under the control of the Government of India. "
The motion was adopted.
[Two more amendments were negatived.]
Article 7, as amended, was added to the Constitution.
Mr. Vice-President : Our time is valuable. We should not waste a quarter of an hour.
' (3) In this article
(b) the expression ' laws in force ' includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas."
Sir, the reason for bringing in this amendment is this: It will be noticed that in article 8 there are two expressions which occur. In subclause (1) of article 8, there occurs the phrase " laws in force ", while in sub-clause (2) the word's " any law " occur. In the original draft as submitted to this House, all that was done was to give the definition of the term " law " in sub-clause (3). The term " laws in force " was not defined. This amendment seeks to make good that lacuna. What we have done is to split sub-clause (3) into two parts (a) and (b). (a) contains the definition of the term " law " as embodied in the original sub-clause (3), and (b) gives the definition of the expression " laws in force " which occurs in sub-clause (1) of article 8. I do not think that any more explanation is necessary.
[f30] Mr. Naziruddin Ahmad : Sir, before I move my amendment, I beg to point out that as a comprehensive amendment has been moved by the Honourable Dr. Ambedkar, I think the present amendment should be suitably adapted to apply to that amendment. I wish to move the second part of it only.
I beg to move:
That in amendment No. 260 which has been moved by Dr. Ambedkar, the
words " custom or usage having the force of law in the territory of India or any part thereof" be deleted.
Mr. Vice-President : All right.
[f31] Mr. Naziruddin Ahmad : I am very glad for the kind interruption. It does not remove my difficulties at all. Does it mean to say that the State ' makes ' a custom or usage ? Still you have the difficulty to face that the State has to make a law including custom or usage.
The Honourable Dr. B. R. Ambedkar : Probably he may not find it necessary to continue his speech if I refer to him this fact, namely, that the expression "law " in (3) (a) has reference to law in 8 (1).
The Honourable Dr. B. R. Ambedkar (Bombay : General) : Mr. Vice-President, the amendment of Mr. Naziruddin Ahmad, I think, creates some difficulty which it is necessary to clear up. His amendment was intended to remove what he called an absurdity of the position which is created by the Draft as it stands. His argument, if I have understood it correctly, means this, that in the definition of law we have included custom, and having included custom, we also speak of the State not having the power to make any law. According to him, it means that the State would have the power to make custom, because according to our definition, law includes custom. I should have thought that that construction was not possible, for the simple reason, that subclause (3) of article 8 applies to the whole of the article 8, and does not merely apply to sub-clause (2) of article 8. That being so, the only proper construction that one can put or it is possible to put would be to read the word ' Law ' distributively, so that so far as article 8, sub-clause (1) was concerned, ' Law ' would include custom, while so-far as sub-clause (2) was concerned, ' Law ' would not include custom.
That would be, in my judgement, the proper reading, and if it was read that way, the absurdity to which my Friend referred would not arise.
But I can quite understand that a person who is not properly instructed in the rules of interpretation of Statute may put the construction which my Friend Mr. Naziruddin Ahmad is seeking to put, and therefore to avoid this difficulty, with your permission, I would suggest that in the amendment which I have moved to sub-clause (3) of article 8, I may be permitted to add the following words after the words " In this article ". The words which I would like to add would be
" Unless the context otherwise requires "
' In this article, unless the context otherwise requires
I need not read the whole thing.
So, if the context in article 8(1) requires the term ' law ' to be used so as to include custom, that construction would be possible. If in subclause (2) of article 8, it is not necessary in the context to read the word ' law ' to include custom, it would not be possible to read the word ' law ' to include custom. I think that would remove the difficulty which my Friend has pointed out in his amendment.
" That the proviso to clause (2) of article 8 he deleted."
The amendment was adopted.
' (3) In this article, unless the context otherwise requires,
(a) The expression ' law ' includes any Ordinance, order, bye-law, rule,
regulation, notification, custom, or usage having the force of law in the territory of India or any part thereof;
(b) the expression ' laws in force ' includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repeated, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas '. "
The amendment was adopted.
Article 8, as amended was added to the Constitution.
RIGHT OF SUFFRAGE AND ELECTION
8-A. (1) Every citizen who is not less than 21 years of age and is not otherwise disqualified under this Constitution or any law made by the Union Parliament or by the Legislature of his State on any ground, e.g., non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at such elections.
(2) The elections shall be on the basis of adult suffrage as described in the next preceding sub-clause but they may be indirect, i.e., the Poura and Grama Panchayts or a group of villages, a township or a part of it having a particular number of voters or being an autonomous unit of local self-government shall be required to elect primary members, who in their turn, shall elect members to the Union Parliament and to the State Assembly.
(3) The Primary Members shall have the right to recall the member they elected to the Parliament or the Assembly of the State.
(4) A voter shall have the right to election and the cost of election shall be met by the State.
My first reason for doing so is that it has no relation to the question raised here. Matters relating to elections have been dealt with in the Draft Constitution at other places where it has been stated as to how the Legislature shall be formed; who shall be the members of the Legislatures ; what shall be their rights ; what shall be the procedure of their elections. Amendments of this nature may be moved in the article dealing with such things. This amendment is totally irrelevant to Fundamental Rights of the Draft Constitution....
...This amendment should be rejected outright and should never be accepted.
Shri H. V. Kamath : Mr. Vice-President, Sir, may I ask whether this is merely a verbal or at best a formal amendment liable to be disallowed ? It merely seeks to substitute the words ' State funds ' in place of the words ' the revenues of the State '.
Mr. Vice-President : I shall keep that in mind. Dr. Ambedkar, will you please deal with that point also '?
revenues of the State ' the words ' State funds ' he substituted. "
The reason why the Drafting Committee felt that the words " the revenues of the State " should be replaced by the words " State funds " is a very simple tiling. In the administrative parlance which has been in vogue in India for a considerably long time, we are accustomed to speak of revenues of a Provincial Government or revenues of the Central Government. When we come to speak of local boards or district boards, we generally use the phrase local funds and not revenues. That is the terminology which has been in operation throughout India in all the provinces. Now, the Honourable members of the House will remember that we are using the word ' State ' in this Part to include not only the Central Government and the Provincial Governments and Indian States, but also local authorities, such as district local boards or taluka local boards or the Port Trust authorities. So far as they are concerned, the proper word is ' Fund '. It is therefore, desirable, in view of the fact that we are making these Fundamental Rights obligatory not merely upon the Central Government and the Provincial Governments, but also upon the district local boards and taluka local boards, to use a wider phraseology which would be applicable not only to the Central Government, but also to the local boards which are included in the definition of the word ' State '. I hope that my Honourable Friend Mr. Kamath will now understand that the amendment which I have moved is not merely verbal, but has some substance in it.
Sir, I move.
[f38] (0ne or two Honourable Members rose to speak.)
Shri Syamanandan Sahaya : It was no fault of the member concerned.
The Honourable Dr. B. R. Ambedkar : I cannot help it. I accept the amendment of Mr. Rouf adding the words " place of birth ". I also accept the amendment (No. 37 in List 1) by Mr. Subramaniam to amendment No. 276 dropping the words " In particular " in clause (1) of article 9.
The Honourable Dr. B. R. Ambedkar : Then, among the many amendments which I am sorry I cannot accept. I think it is necessary for me to say something about two of them. One is amendment No. 315 moved by Mr. Tahir which requires that any contravention of the provisions contained in article 9 should be made a crime punishable -by law. My friend Mr. Tahir who moved this amendment referred particularly to the position of the untouchables and he said that in regard to these acts which prevent the untouchables from sharing equally the privileges enjoyed by the general public, we will not be successful in achieving our purpose unless these acts, preventing them from using places of public resort, were made offences. There is no doubt that there is no difference of opinion between him and other Members of this House in this matter because all of us desire that this unfortunate class should be entitled to the same privileges as members of the other communities without any let or hindrance from anybody. But he will see that that purpose is carried out entirely by the provisions contained in article 11 which specifically deals with untouchability : instead of leaving it to Parliament or to the State to make it a crime, the article itself declares that any such interference with their rights shall be treated as an offence punishable by law. If his view is that there should be a provision in the Constitution dealing generally with acts which interfere with the provisions contained in article 9, I would like to draw his attention to article 27 in the Constitution which places an obligation on Parliament to make laws declaring such interferences to be offences punishable by law. The reason why such power is given to Parliament is because it is felt that any offence which deals with the Fundamental rights should be uniform throughout the territory of India, which would not be the case if this power was left to the different States and Provinces to regulate as they like. My submission therefore is that, so far as this point is concerned, the Constitution contains ample provision and nothing more is really necessary.
With regard to amendment No. 323 moved by Professor K. T. Shah, the object of which is to add " Scheduled Castes " and " Scheduled Tribes " along with women and children, I am afraid it may have just the opposite effect.
The object which all of us have in mind is that the Scheduled Castes and Scheduled tribes should not be segregated from the general public.
For instance, none of us, I think, would like that a separate school should be established for the Scheduled Castes when there is a general school in the village open to the children of the entire community. If these words are added, it will probably give a handle for a State to say, " Well, we are making special provision for the Scheduled Castes ". To my mind they can safely say so by taking shelter under the article if it is amended in the manner the Professor wants it. I therefore think that it is not a desirable amendment.
Then I come to my Friend Mr. Nagappa. He has asked me to explain some of the words which have been used in this article. His first question was whether " shop " included laundry and shaving saloon. Well, so far as I am concerned, I have not the least doubt that the word ' shop ' does include laundry and shaving place. To define the word ' shop ' in the most generic term one can think of is to state that ' shop ' is a place where the owner is prepared to offer his service to anybody who is prepared to go there seeking his service. A laundryman therefore would be a man sitting in his shop offering to serve the public in a particular respect, namely, wash the dirty clothes of a customer. Similarly, the owner of a shaving saloon would be sitting there offering his service for any person who enters his saloon.
I should like to point out therefore that the word ' shop ' used here is not used in the limited sense of permitting entry. It is used in the larger sense of requiring the services if the terms of service are agreed to.
The second question put to me was whether ' place of public resort ' includes burial grounds. I should have thought that very few people would be interested in the burial ground, because nobody would care to know what happens to him after he is dead. But, as my Friend Mr. Nagappa is interested in the point should say that I have no doubt that a place of public resort would include a burial ground subject to the fact that such a burial ground is maintained wholly or partly out of public funds. Where there are no burial grounds maintained by a municipality, local board or taluka board or Provincial Government or village panchayat, nobody of course has any right, because there is no public place about which anybody can make a claim for entry. But if there is a burial ground maintained by the State out of State funds, then obviously every person would have every right to have his body buried or cremated therein.
Then my Friend asked me whether ponds are included in tanks. The answer is categorically in the affirmative. A tank is a larger thing which must include a pond.
The other question that he asked me was whether rivers, streams, canals and water sources would be open to the untouchables. Wells, rivers, streams and canals no doubt would not come under article 9 ; but they would certainly be covered by the provisions of article II which make any interference with the rights of an untouchable for equal treatment with the members of the other communities an offence. Therefore my answer to my Friend Mr.Nagappa is that he need have no fears with regard to the use of rivers, streams, canals, etc., because it is perfectly possible for the Parliament to make any law under Article II to remove any such disability if found.
The Honourable Dr. B. R. Ambedkar : I cannot add anything to the article at this stage. But I have no doubt that any action necessary with regard to rivers and canals could be legitimately and adequately taken under article II.
The Honourable Dr. B. R. Ambedkar : My Friend Mr. Sidhwa read out some definition from the Indian Penal Code of the word ' public ' and said that the word ' public ' there was used in a very limited sense as belonging to a class. I should like to draw his attention to the fact that the word ' public ' is used here in a special sense. A place is a place of public resort provided, it is maintained wholly or partly out of State funds. It has nothing to do with the definition given in the Indian Penal Code.
Shri Mahavir Tyagi (united Provinces : General) : May I know what is to happen to the amendments which have been declared by you as verbal amendments ? Among them I fear there are some which really aim at making a substantial change in the meaning of the clause or article concerned.
Mr. Vice-President : In that matter I am the sole judge. You have given me discretionary power and I propose to exercise that power in my own way.
Shri Mahavir Tyagi : I want information. I do not dispute your judgement or your right. I only want to know whether the sense of the House will be accommodated in regard to the amendments ruled out or whether such amendments will be considered by the Drafting Committee or some other body ? My suggestion is that you will be doing well the House if you will kindly appoint a small sub-committee which will go into these verbal amendments and find out whether some of them at least aim at effecting a change in the meaning of the clause concerned. I do not dispute what you said. They are out of order because you have ruled them as such. But even commas and fullstops have some value. My only request is that ...
Mr. Vice-President : May I suggest a better way which might appeal to you, a way which is better than the appointment of a sub-committee ? Those who think that their amendments are of some substance may approach the Drafting Committee directly themselves. If they do so I am sure due consideration will be shown to them.
Shri Mahavir Tyagi : Now I am satisfied, Sir.
The amendment was, by leave of the Assembly, withdrawn.
[Following amendments were adopted as per suggestion of Dr. Ambedkar.]
Mr. Vice-President : The next one is No. 280 which, I understand
(2) No. 280
" That in article 9, after the word ' sex ' wherever it occurs, the words ' place
of birth ' be inserted. "
"That in sub-clause (a) of clause (1) of article 9, after the words ' restaurants,
(5) No. 314
[Rest of the amendments were negatived.]
Article 9, as amended, was added to the Constitution.
[f1] lbid., p. 520.
[f2] CAD, (Official Report). Vol. VII, 22nd November 1948, p. 527.
[f3] Ibid, 23rd November 1948, p. 329.
[f4] Ibid., p. 529.
[f5] Ibid., p. 532.
[f6] Ibid, pp. 534-35.
[f7] CAD, (Official Report), Vol. VII, 23rd November 1948, p. 538.
[f8] CAD, (Official Report), Vol. VII, 22nd November1948, p. 538.
[f9] Ibid., 540
[f10] CAD, Vol. VII, 23rd November 1948. p. 540.
[f11] Ibid., p. 550.
[f12] CAD. Vol. VII, 23rd November 1948, pp. 552-53.
[f13] CAD, Vol. VII, 24th November 1948, p. 555
[f14] CAD, Vol. VII, 24th November 1948, pp. 566-67.
[f15] CAD, Vol. VII, 24th November 1948, p. 568.
[f16] Translation of Hindustani speech.
[f17] CAD, Vol. VII, 24th November 1948, p. 580.
[f18] Ibid.. p. 581.
[f19] CAD, Vol. VII, 24th November 1948, p. 582.
[f20] CAD, Vol. VII, 25th November 1948, pp. 585-86
[f21] CAD, Vol. VII, 25th November 1948, p. 593.
[f22] Ibid., p. 594.
[f23] Ibid.. p. 595.
[f24] CAD, Vol. VII, 25th November 1948, p. 596.
[f25] lbid., pp. 595-605.
[f26] lbid., p. 604.
[f27] CAD, Vol. VII, 25th November 1948, p. 607..
[f28] Ibid. 610.
[f29] CAD, Vol. VII, 26th November 1948, p. 640.
[f30] CAD, Vol. VII, 26th November 1948, p. 641.
[f31] CAD, Vol. VII, 26th November 1948, p. 642.
[f32] lbid., Vo. VII, 29th November 1948, pp. 644-45.
[f33] CAD, Vol. VII, 26th November 1948, p. 645.
[f34] CAD, Vol. VII, 29th November 1948, p. 646.
[f35] Ibid.. p. 646.
[f36] Translation of Hindustani speech.
[f37] CAD, Vol. VII, 96th November 1948, pp. 653-54.
[f38] CAD, Vol. VII, 29th November 1948, p.p. 660-64.