DR. AMBEDKAR: THE
PRINCIPAL ARCHITECT OF THE CONSTITUTION OF INDIA
Clause wise Discussion on the Draft
Constitution
SECTION FIVE
Clause-wise
Discussion
16th
May 1949 to 16th June 1949
____________________________________________________________
Contents
Discussion
on the Articles:
PART
II
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ARTICLE 127
[f1]
The Honourable Dr. B. R. Ambedkar : Sir I move :
"That
in article 127, for the word 'Parliament' the words 'each House of
Parliament ' be substituted. "
It
is only a formal amendment.
The amendment was adopted.
****
ARTICLE 130
[f2]
The
Honourable Dr. B. R. Ambedkar :
Sir, this article is an exact reproduction of article 42 which deals with the executive
power of the Union. There is no change made at all. Word for word this article is a
reproduction of article 42. I find from the book of amendments that exactly similar
amendments were tabled to article 42 and they were debated at great length. I do not think
I can usefully add anything to what I said in the course of the debate on article 42 and
the amendments thereon. Therefore, I submit that I am not prepared to accept any of the
amendments that have been moved here.
[All
the three amendments moved by Prof. K. T. Shah, Mr. Mod. Tahi and Mr. Nasiruddin Ahmad were rejected by the
House.]
****
ARTICLE 131
[f3]
Mr. President:
It is only a question of the order in which the amendments are taken. I want to dispose of
the question of election first.
Shri
T. T. Krishnamachari : The choice of the alternative may be left to the mover. Dr. Ambedkar
may say which he proposes to move. Normally the procedure will be to move a particular
article. The Chairman of the Drafting. Committee will be the person to make the choice, if
you allow it to him, that will solve the problem. He might move one of the alternatives.
This procedure is going to come in the way of normal procedure later on. So, I think the
best thing is to leave the discretion to the mover. If you recognise Dr. Ambedkar as mover, then he may be asked to move one or other
of the alternatives.
Mr.
President :
Is Dr. Ambedkar prepared to accept one of the other
alternatives ?
The
Honourable Dr. B. R. Ambedkar : Sir, I want to say a word regarding procedure to be
followed. Taking the article 131, as it is, no doubt it is put in an alternative form. The
two alternatives have one thing in common viz., that they propose the Governor to be elected. The form
of election is for the moment a subsidiary question. As against that, there are three or
four amendments here which set out a principle which is completely opposed to the two
alternative drafts of 131 and they suggest that the Governor should be nominated. If the
amendment which proposes that the Governor should be nominated were to be accepted by the
House, then both the alternatives would drop out and it will be unnecessary for the House
to consider them. Therefore my suggestion would be that it would be desirable to take up
No. 2010 of Mr. Gupte, and then Mr. Kamath and then No. 2015. If
this matter was taken up first and the House came to the conclusion on whether the
principle of appointment by the President should be accepted, then obviously there would
be no purpose served in discussing article 131 in either of its alternative forms. That would be my suggestion subject to your ruling in the
matter.
Mr.
President:
There are several amendments which support the idea of election or appointment by
President. The other amendments are regarding the method of election. First I want to get
rid of the question of election so' that all amendments
relating to method of election will go. Then we can take up the question of appointment
and the appointment in that case will be by the President.
Shri
Alladi Krishnaswami Ayyar (Madras: General): If the question of
appointment or not is taken up first, that will automatically eliminate the election
question. I agree with Dr. Ambedkar's views in the matter.
****
[f4]
The Honourable Dr. B. R. Ambedkar
(Bombay : General) : Mr.
President, Sir after such a prolonged debate on the amendment I think it is quite
unnecessary for me to take the time of the House in making any prolonged speech. I have
risen only to make two things clear; one is to state to the House the exact co-relation
between the two alternatives that have been placed by the Drafting Committee before the
House and amendment No. 2015 which has been debated since yesterday. My second purpose is
to state the exact issue before the House, so that the House may be able to know what it
is that it is called upon to bear in mind in deciding between the alternatives presented
by the Drafting Committee and the new amendment.
Sir, the first alternative that has been put by the Drafting Committee is an alternative which is exactly in terms of the decision made by this House some time ago in accordance with the recommendations of a Committee appointed to decide upon the principles governing the Provincial Constitution. The Drafting Committee had no choice in the matter at all, because according to the directions given to the Drafting Committee it was bound to accept the principle which had been sanctioned by the House itself. The question, therefore, arises : why is it that the Drafting Committee thought it fit to present an alternative ? Now, the reason why the Drafting Committee presented an alternative is this. The Drafting Committee felt, as everybody in this House knows, that the Governor is not to have any kind of functions—to use a familiar phraseology, " no functions which he is required to discharge either in his discretion or in his individual judgement." According to the principles of the new Constitution he is required to follow the advice of his Ministry in all matters. Having regard to this fact it was felt whether it was desirable to impose upon the electorate the obligation to enter upon an electoral process which would cost a lot of time, a lot of trouble and I say a lot of money as well. It was also felt, nobody, knowing full well what powers he is likely to have under the Constitution, would come forth to contest an election. We felt that the powers of the Governor were so limited, so nominal, his position so ornamental that probably very few would come forward to stand for election. That was the reason why the Drafting Committee thought that another alternative might be suggested.
It
has been said in the course of the debate that the argument against election is that there
would be a rivalry between the Prime Minister and the Governor, both deriving their
mandate from the people at large. Speaking for myself, that was not the argument which
influenced me because I do not accept that even under election there would be any kind of
rivalry between the Prime Minister and the Governor, for the simple reason that the Prime Minister would be elected on the basis of
policy, while the Governor could not be elected on the basis of policy, because he could
have no policy, not having any power. So far as I could visualise, the election of the
Governor would be on the basis of personality : is he the
right sort of person by his status, by his character, by his education,
by his position in the public to fill in a post of Governor ?
In the case of the Prime Minister the position would be; is his programme suitable, is his
programme right ? There could not therefore be any conflict
even if we adopt the principle of election.
The
other argument is, if we are going to have a Governor, who is purely ornamental, is it
necessary to have such a functionary elected at so much cost and so much trouble ? It was because of this feeling that the Drafting Committee
felt that they should suggest a second alternative. Now, so far as the course of debate
has gone on in this House, the impression has been created in my mind that most speakers
feel that there is a very radical and fundamental difference between the second
alternative suggested by the Drafting Committee and this particular amendment. In my
judgement there is no fundamental distinction between the second alternative and the
amendment itself. The second alternative suggested by the Drafting Committee is also a
proposal for nomination. The only thing is that there are certain qualifications, namely, that the
President should nominate out of a panel elected by the provincial Legislature. But
fundamentally it is a proposal for nomination. In that sense there is no vital and
fundamental difference between the second alternative
proposed by the Drafting Committee and the amendment which has been tabled by Mr. Brajeshwar Prasad. In other
words, the choice before the House, if I may say so, is between the second alternative and
the amendment. The amendment says that the nomination should be unqualified. The second alternative says that the nomination should
be a qualified nomination subject to certain conditions.
From a certain point of view I cannot help saying that the proposal of the Drafting
Committee, namely that it should be a qualified nomination is a better thing than simple
nomination. At the same time I want to warn the House that the real issue before the House
is really not nomination or election—because as I said this functionary is going to
be a purely ornamental functionary; how he comes into being, whether by nomination or by
some other machinery, is a purely psychological question—what would appeal most to
the people—a person nominated or a person in whose nomination the Legislature has in
some way participated. Beyond that, it seems to me it has no consequence. Therefore, the
thing that I want to tell the House is this : that the real
issue before the House is not nomination or election, but what powers you propose to give
to your Governor. If the Governor is a purely constitutional Governor with no more powers
than what we contemplate expressly to give him in the Act, and has no power to interfere with the internal administration of a Provincial
Ministry, I personally do not see any very fundamental objection to the principle of
nomination. Therefore my submission is.........
Shri
Rohini Kumar Chaudhari :
Can he contemplate any situation, where a Governor—whether you call him a mere symbol
or not—will not have the power to form the first Ministry ?
Will he not be competent to call upon any one, whether he has a big majority or a
substantial minority ? And that is a very big power of
which he cannot be deprived under any circumstances.
The
Honourable Dr. B. R. Ambedkar : Well that power an elected or a nominated Governor will
have. If he happens to call the wrong person to form a Ministry, he will soon find to his
cost that he has made a wrong choice. That is not a thing that could be avoided by having
an elected Governor. Such a Governor may have a friend of his choice whom he can call in
to form a Ministry and that issue can be settled by the House itself by a motion of
no-confidence or confidence. But that is not the aspect of
the question which is material. The aspect of the question which is material is. Is the
Governor going to have any power of interference in the
working of a Ministry which is composed of a majority in the local Legislature ? If that Governor has no power of interference in the
internal administration of a Ministry which has a majority,
then it seems to me that the question whether he is nominated or elected is a wholly
immaterial one. That is the way I look at it and I want to tell the House that in coming
to their decision they should not bother with the more or less academic
question—whether the Governor has to be nominated or to be elected—they should
bear in mind this question : What are the powers with which
the Governor is going to be endowed ? That matter, I
submit, is not before us today. We shall take it up at a later stage when we come to the
question of articles 175 and 188 and probably by amendment or the addition of some other clause which would
give him powers.
The House should be careful and
watchful of these new sections that will be placed, before
them at a later stage. But today it seems to me, if the Constitution remains in principle
the same as we intend that it should be, that the Governor should be a purely constitutional Governor, with no power of interference in the
administration of the province, then it seems to me quite immaterial whether he is
nominated or elected.
Shri
L. Krishnaswami Bharathi:
Is the honourable Member accepting the amendment ?
The
Honourable Dr. B. R. Ambedkar : I am leaving it to the House. Mr. President: I shall then put amendment 2015 moved by Shri Brajeshwar Prasad to the vote.
The question is:
"That
for article 131, the following be substituted :-~
'
131. The Governor of a State shall be appointed by the
President by warrant under his hand and seal. '. "
The
amendment was adopted.
Mr.
President:
I think after this all the other amendments to this article fall to the ground and
therefore I shall put the article as amended to the vote. Article 131, as amended, was
added to the Constitution.
[f5]
Mr. President :
There is an amendment by Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar :Sir,
I move:
" That with reference to amendments Nos. 2033 and 2041 of the
List of Amendments for article 132, the following article be substituted :—
' Term of office of Governor.—132.
(1) The Governor shall hold office during the pleasure of the
President.
(2)
The Governor may, by writing under his hand addressed to
the President, resign his office.
(3)
Subject to the foregoing provisions of this article, a
governor shall hold office for a term of five years from the date on which he enters upon
his office :
Provided
that a Governor shall, notwithstanding the expiration of his term, continue to hold office
until his successor enters upon his office '. "
Now,
Sir, this article......... [f6]
Prof.
Shibban Lal Saksena :
On a point of order. Amendment No. 2033 has not been moved. There is another amendment
2041, to which this is an amendment. But even that has not been moved.
Mr.
President :
But that has not been moved.
Shri
T. T. Krishnannachari
: Amendment No. 2041, stands in the name of Dr. Ambedkar.
Mr.
President :
Well, he may formally move it.
The
Honourable Dr. B. R. Ambedkar :
I have said that I am moving this in place of that amendment.
Mr.
President: Dr.
Ambedkar is moving No. 2041.
****
[f7]
The
Honourable Dr. B. R. Ambedkar :
Sir, the position is this : This power of removal is given
to the President in general terms. What Professor Shah wants is that certain grounds
should be stated in the Constitution itself for the removal
of the Governor. It seems to me that when you have given the general power, you also give
the power to the President to remove a Governor for corruption, for bribery, for violation
of the Constitution or for any other reason which the President no doubt feels is
legitimate ground for the removal of the Governor.
It seems, therefore, quite unnecessary to burden the Constitution with all these limitations stated in express terms when it is perfectly possible for the President to act upon the very same ground under the formula that the Governor shall hold office during his pleasure. I, therefore, think that it is unnecessary to categories the conditions under which the President may undertake the removal of the Governor.
[Amendment
of Dr. Ambedkar as given above, wax accepted. Article 132, as amended was added to the Constitution.]
ARTICLE 134
[f8]
Mr. President :
We have dropped the first alternative, and we have to take the amendments only to the
second alternative, and I think amendment No. 164 standing in the name of Dr. Ambedkar would cover.
The
Honourable Dr. B. R. Ambedkar: Sir, I move:
"
That with reference to amendment
No. 2061 of the List of Amendments, for article 134, the
following he substituted :—
Qualifications
for appointment an Governor.— -'
No person shall he eligible
for appointment as Governor unless he is a citizen of India has completed the age of
thirty-five years '."
Sir,
may I take it that the
amendment is moved ?
Shri
T.
T. Krishnamachari : Mr. President, the Chair
and the House can permit the substitution of an amendment.
Mr.
President:
You need not read the amendment in full.
The
Honourable dr. B. R. Ambedkar :
Sir, I move Amendment No. 2061, Sir, I also move that for amendment No. 2061, the
following be substituted:—
"
Qualification for appointment
as Governor.--" No person shall he eligible for appointment as Governor unless he is a citizen of India has completed the age of thirty-five years.' "
[Motion
was accepted. Article 134 was added to the Constitution.]
ARTICLE 135
[f9]
The
Honourable Dr. B. R. Ambedkar:
Sir, I move :
" That in clause (1) of
article 135. for the words ' either of Parliament or, ' the words of either House of Parliament or of a House ' he
substituted."
This
is a formal amendment.
Sir,
I move:
"That
in clause (1) of article 135—
(a)
for the words ' member of Parliament or ' the words '
member of either House of Parliament or of a House ' be substituted,
(b) for the words ' in Parliament or such legislature as the
case may be ' the words ' in that House ' be substituted."
Sir,
I move:
"
That in clause (2) of article 135, for the words or position of emolument ' the words ' of profit ' he substituted."
Shri
H.
V. Kamath : (C. P. Berar : General) : Mr. President, I
move :
"
That in clause (3) of article 135 the words " the Governor shall have an official residence, and ' he
deleted. "
Mr.
President
: " There " also must be deleted.
Shri
H.
V. Kamath : " There " will
remain. ......I do not know which constitution has given
inspiration to Dr. Ambedkar and his colleagues of the Drafting Committee.
An
Honourable
Member : Irish constitution.
The
Honourable Dr. B. R. Ambedkar
: We have passed article 48 exactly in the same terms with
reference to the President. Here, we are merely following
article 48.
****
(All amendments of Dr. Ambedkar were accepted.
Other rejected.)
****
[Article 135 as amended
was adopted and added to the
Constituted.}
[f10]
Mr. President :
There is notice of an amendment by Professor Shah suggesting the addition of a new article
after article 135.
The
Honourable Dr. B. R. Ambedkar :
Before we go to the next amendment I would like to suggest that in article 135, the word " elected " be
dropped.
Mr.
President
: That is understood.
ARTICLE 136
[f11]
The
Honourable Dr. B. R. Ambedkar :
Sir, I move:
"That in article 136 for the words in the presence of the members of the Legislature of the
State ' the words ' in the presence of the Chief Justice or, in his absence, any other
judge of the High Court exercising jurisdiction in relation to the
Stale ' be.
substituted."
****
Mr.
President :
As amendments Nos. 2107, 2108
and 2109 are not, I understand, being moved, does Dr. Ambedkar wish to make any reply to
the amendments moved ?
The
Honourable Dr. B. R. Ambedkar :
Sir, I accept the amendment moved by Shri T. T. Krishnamachari and also the
one moved by my friend Mr. Kamath.
(The amendments which were accepted by Dr. Ambedkar were as under
"
That for amendment No. 2104 of the List of Amendments, the following be substituted:—
"
That in article 136, for the words ' in the presence of the
members of the Legislature of the State ' the words ' in the presence of the Chief Justice
of the High Court exercising jurisdiction in relation to the State or, in his absence the
senior-most judge of that Court available ' be substituted'."
"
That for amendment No. 2106 of the List of Amendments, the
following be substituted:—
"
That in article 136, for the words ' I, A, B., do solemnly
affirm (or swear) ' the following be substituted :—-
I,
A, B., do swear in the name of God "
solemnly affirm
Pandit
Hirday
Nath Kunzana : (United Provinces ; General) : How does the oath read '? Is it, "
I do swear in the name of God, or I do solemnly affirm. "
or not ? The question is this :
Some people may think that the Governor should take the in the name of God. There may
however be people in this country who are atheists.
(Interruption). (Mr. President read out the oath.) I see that there is an alternative.
That is what I wanted to know. Nobody should be compelled to swear in the name of God if
he does not want to do so.
The question is:
"That
article 136. as amended, stand part of the Constitution."
(The
motion was adopted.)
****
Article
136, as amended, was added to the Constitution. Assembly then adjourned till Eight of the
clock on Wednesday, the
1st
June, 1949.
ARTICLE 137
[f12]
Mr. President:
We begin with article 137 today. There is an amendment to this of which notice has been
given by Mr. Brajeshwar Prasad, but that is a negative one.
(Amendment
No. 2111 was not moved.)
Shri
T. T. Krishnamachari
(Madras : General) : This
article cannot be moved in view of the decision that has been made earlier.
Shri
Brajeshwar Prasad
(Bihar : General) : It must be put to the vote of the House.
The
Honourable Dr. B. R. Ambedkar
(Bombay : General) : It may
be put to the vote.
Mr.
President :
None of the other amendments is going to be moved, I take it.
[Article
137 wax deleted from the Constitution]
****
[f13]
The
Honourable Dr. B. R. Ambedkar : Mr. President, Sir, I did not think that it would have been
necessary for me to speak and take part in this debate after what my friend, Mr. T. T. Krishnamachari, had said on this amendment of Mr. Kamath, but as my Friend,
Pandit Kunzru, pointedly asked me the question and demanded
a reply, I thought that out of courtesy I should say a few words. Sir, the main and the
crucial question is, should the Governor have discretionary powers? It is that question
which is the main and the principal question. After we come to some decision on this
question, the other question whether the words used in the
last part of clause (1) of article 143 should be retained in that article or should be
transferred somewhere else could be usefully considered. The first
thing, therefore, that I propose to do is to devote myself to this question which, as I
said, is the crucial question. It has been said in the course of the debate that the
retention of discretionary power in the Governor is contrary to responsible government in
the provinces. It has also been said that the retention of discretionary power in the
Governor smells of the Government of India Act, 1935, which in the main was undemocratic.
Now, speaking for myself, I have no doubt in my mind that the retention in on the vesting
the Governor with certain discretionary powers is in no sense contrary to or in no sense a
negation of responsible government. I do not wish to take up the point because on this
point I can very well satisfy the House by reference to the provisions in the Constitution
of Canada and the Constitution of Australia. I do not think anybody in this House would
dispute that the Canadian system of government is not a fully responsible system of
government, nor will anybody in this House challenge that the Australian Government is not
a responsible form of government. Having said that, I would like to read section 55 of the
Canadian Constitution.
"
Section 55.---Where a Bill passed by the
Houses of Parliament is presented to the Governor-General
for the Queen's assent, he shall, according to his discretion and subject to provisions of
this Act, either assent thereto in the Queen's name or withhold the Queen's assent or
reserve the Bill for the signification of the Queen's pleasure."
Pandit
Hirday Nath Kunzru : May I ask Dr. Ambedkar when
the British North America Act was passed ?
The
Honourable Dr. B. R. Ambedkar :
That does not matter at all. The date of the Act does not matter.
Shri
H. V. Kamath: Nearly a century ago
The
Honourable Dr. B. R. Ambedkar:
This is my reply. The Canadians and the Australians have not found it necessary to delete
this provision even at this stage. They are quite satisfied that the retention of this
provision in section 55 of the Canadian Act is fully compatible with responsible
government. If they had felt that this provision was not compatible with responsible
government, they have even today, as Dominions, the fullest right to abrogate this
provision, They have not done so. Therefore, in reply to Pandit Kunzru,
I can very well say that the Canadians and the Australians do not think that such a
provision is an infringement of responsible government.
Shri
Lokanath Misra (Orissa : General) : On a point of order, Sir, are we going to have the status of
Canada or Australia ? Or are we going to have a Republican
Constitution ?
The
Honourable Dr. B. R. Ambedkar
:
I could not follow what he said. If, as I hope, the House
is satisfied that the existence of a provision vesting a
certain amount of discretion in the Governor is not incompatible or inconsistent with
responsible government, there can be no dispute that the retention of this clause is
desirable and, in my judgement, necessary. The only question that arises is......
Pandit
Hirday
Nath Kunzru : Well, Dr.
Ambedkar has missed the point of the criticism altogether.
The criticism is not that in article 175 some powers might
not be given to the Governor, the criticism is against vesting the Governor with certain
discretionary powers of a general nature in the article under discussion.
The
Honourable Dr. B. R. Ambedkar :
I
think he has misread the article. I am sorry I do not have the draft Constitution with me.
" Except in so far as he is by or under this
Constitution, " those are the words. If the words were
" except whenever he thinks that he should exercise
this power of discretion against the wishes or against the advice of the ministers ", then I think the criticism made by my honourable
Friend Pandit Kunzru would have been valid. The clause is a very limited clause; it says : " except in so far as he
is by or under this Constitution ". Therefore, article
143 will have to be read in conjunction with such other articles which specifically reserve the power to the Governor. It is not a general
clause giving the Governor power to disregard the advice of his ministers in any matter in
which he finds he ought to disregard. There, I think, lies the fallacy of the argument of
my honourable Friend, Pandit Kunzru.
Therefore,
as I said, having stated that there is nothing incompatible with the retention of the
discretionary power in the Governor in specified cases with the system of responsible
Government. The only question that arises is, how should we provide for the mention of
this discretionary power ? It seems to me that there are
three ways by which this could be done. One way is to omit
the words from article 143 as my honourable Friend, Pandit Kunzru, and others desire and to add to such articles as 175,
or 188 or such other provisions which the House may hereafter introduce, vesting the Governor with the discretionary power, saying notwithstanding
article 143, the Governor shall have this or that power. The other way would be to say in
article 143 '' that except as provided in articles so and
so specifically mentioned—articles 175, 188, 200 or whatever they are ". But the point I am trying to submit to the House is
that the House cannot escape from mentioning in some manner that the Governor shall have
discretion.
Now
the matter which seems to find some kind of favour with my
honourable Friend, Pandit Kunzru and those who have spoken in the same way is that the
words should be omitted from here and should be transferred
somewhere else or that the specific articles should be mentioned in article 143. It seems
to me that this is a mere method of drafting. There is no question of substance and no
question of principle. I personally myself would be quite willing to amend the last
portion of clause (1) of article 143 if I knew at this stage what are the provisions that
this Constituent Assembly proposes to make with regard to the vesting of the Governor with
discretionary power. My difficulty is that we have not as yet come either to article 175
or 188 nor have we exhausted all the possibilities of other
provisions being made, vesting the Governor with discretionary power. If I knew that, I
would very readily agree to amend article 143 and to mention the specific article, but
that cannot be done now. Therefore, my submission is that no wrong could be 'done if the words as they stand in article 143 remain as they
are. They are certainly not inconsistent.
Shri
H. V. Kamath :
Is there no material difference between article 61 (1) relating to the President vis-a-vis his ministers and this article ?
The
Honourable Dr. B. R. Ambedkar : Of course there is, because we do not want to vest the
President with any discretionary power. Because the provincial Governments are required to
work in subordination to the Central Government and therefore, in order to see that they
do act in subordination to the Central Government the Governor will reserve certain things
in order to give the President the opportunity to see that the rules under which the
provincial Governments are supposed to act according to the Constitution or in
subordination to the Central Government are observed.
Shri
H. V. Kamath :
Will it not be better to specify certain articles in the Constitution with regard to
discretionary powers, instead of conferring general discretionary powers like this ?
The
Honourable Dr. B. R. Ambedkar :
I said so, that I would very readily do it. I am prepared to introduce specific articles,
if I knew what are the articles which the House is going to incorporate in the
Constitution regarding vesting of the discretionary powers in the Governor.
Shri
H. V. Kamath :
Why not hold it over ?
The
Honourable Dr. B. R. Ambedkar :
We can revise. This House is perfectly competent to revise article 143. If after going
through the whole of it, the House feels that the better way would be to mention the
articles specifically, it can do so. It is purely a logomachy.
[two amendments were rejected. Article 143 was added to the Constitution.]
****
ARTICLE 144
[f14]
The Honourable Dr. B. R. Ambedkar:
Sir, I move:
"That
for clause (1) of article 144, the following be substituted
:—-' 144. (1) The Chief
Minister shall be appointed by the Governor and the other ministers shall he appointed by the Governor
on the advice of the Chief Minister and the ministers shall hold office during the
pleasure of the Governor:
Provided
that in the States of Bihar, Central Provinces and Berar and Orissa there shall be
a minister in charge of tribal welfare who may in addition be in charge of welfare of the
Scheduled Castes and Backward classes or any other work.
(la)
The Council shall be collectively responsible to the Legislative Assembly of the state'."
Shri
T. T. Krishnamachari :
May I suggest that the Honourable Dr. Ambedkar might vary
the wording in clause (la) of article 144 by the addition of the words " Of ministers " to
the words " The Council "?
The
Honourable Dr. B. R. Ambedkar :
That is all right. It will bring it into line with article 62. I move that amendment.
Shri
Mahavir Tyagi: May I know what is the method for the
appointment of that particular Minister for Bihar and other places ? Whether the minister will be appointed by the Governor on the advice of the Chief Minister—that
is clear certainly, because you say " Provided " and this means that whatever we have said before will
not apply in the case of these ministers.
The
Honourable Dr. B. R. Ambedkar
:
What it says is among the ministers appointed under clause (1) which means they are
appointed by the Governor on the advice of the Chief Minister, one minister will be in
charge of this portfolio.
*****
[f15]
The Honourable Dr. B. R. Ambedkar:
Mr. President, I beg to move:
"
That in clause (4) of article
144, for the words ' In choosing his ministers and in his
relations with them ' the words ' In the choice of his ministers and in the exercise of
his other functions under the Constitution ' be
substituted."
Sir,
this is nothing but a verbal amendment.
****
[f16]
The
Honourable Dr. B. R. Ambedkar :
Sir, I move :
"
That clause (6) of article 144 be omitted."
Shri
Brajeshwar Prasad :
Why ?
The
Honourable Dr. B. R. Ambedkar :
Because we do not want to give more discretionary powers than has been defined in certain
articles, we are trying to meet you.
****
[f17]
Shri
Jaspat Roy Kapoor: If any member has any technical objection
it is another matter but this is an amendment which is acceptable to Dr. Ambedkar and most
other Members whom I have consulted. There seems to be no harm in permission being given
to this. If Dr. Deshmukh is opposed to this amendment, of
course he will have his say on the merits of it, and he will have an opportunity to
convince the house to reject it.
Mr.
President :
Would that not open up discussion again '?
Dr. P. S.
Deshmukh : Yes. If Dr. Ambedkar is prepared to accept
it, there is another way out of it. The proviso could be separately put and if it is
defeated, it will be deleted.
Mr.
President :
Yes, that is a way out.
The
Honourable Dr. B. R. Ambedkar:
I am not accepting the omission of the proviso but I am quite prepared to have the proviso
transferred from this article to the Instrument of Instructions.
Pandit
Thakur Das Bhargava :
May I propose that this article be held over '?
The
Honourable Dr. B. R. Ambedkar :
Why, after having debated so long ?
Mr.
President :
The question is whether it should stand here or it should be transferred to the Instrument
of Instructions....
****
[f18]
Mr. President:
...Dr. Ambedkar.
[f19] The Honourable Dr. B. R. Ambedkar: Mr. President, in the course of this debate
on the various amendments moved I have noticed that there are only lour points which call for a reply. The first
point raised in the debate is that instead of the provision that the Ministers shall hold
office during pleasure it is desired that provision should
be made that they shall hold office while they have the confidence of the majority of the
House. Now, I have no doubt about it that it is the
intention of this Constitution that the Ministry shall hold office during such time as it
holds the confidence of the majority. It is on that
principle that the Constitution will work. The reason .why
we have not so expressly stated it is because it has not been stated in that fashion or in
those terms in any of the Constitutions which lay down a parliamentary system of
Government. ' During pleasure '
is always understood to mean that the ' pleasure ' shall not continue notwithstanding the
fact that the Ministry has lost the confidence of the majority. The moment the Ministry
has lost the confidence of the majority it is presumed that the President will exercise
his ' pleasure ' in dismissing the Ministry and therefore
it is unnecessary to differ from what I may say the stereotyped phraseology which is used
in all responsible governments. The amendment of my Friend
Prof. Saksena, substituting the words " Lower House " I am
afraid, cannot be accepted, because under the provisions of the Constitution, it is open to the Prime Minister not only to select
his Ministers from the Lower, but also from the Upper House. It is not the scheme that the
Minister shall be taken only from the Lower House and not from the
Upper House. Consequently the provision that the Minister shall be appointed for six
months, although he is not elected must be so extensive as
to cover both cases, and for that reason I am unable to
accept his amendment.
The third amendment which has been considerably debated was moved by my Friend Mr. Kamath and Prof. Shah. With minor amendments, they are more or less of the same tenor. In that connection, what I would like to say is this, that the House will recall that amendment No. 1332 to article 62, which is a provision analogous to article 144, was moved by Prof. Shah and was debated at considerable length. On that occasion I expressed what views I held on the subject, and it seems to me, therefore, quite unnecessary to add anything to what I have said on that occasion.
Shri
H. V. Kamath :
My honourable Friend Dr. Ambedkar did not accept the amendment on that occasion because in his view it was not
comprehensive enough. Now it is more comprehensive.
Mr.
President :
You have already said all that.
The
Honourable Dr. B. R. Ambedkar :
The fourth point is the one
which have been raised by my Friend Mr. Jaipal Singh, and to some extent by
Mr. Rohini Kumar Chaudhuri. The reason why
this particular clause came to be introduced in the Draft Constitution is to be
found in the recommendations of the sub-committee on tribal people appointed by the Minorities Committee of the Constituent Assembly. In the report made by that committee, it will
be noticed that there is an Appendix to it which is called "Statutory Recommendation ".
The proviso which has been introduced in this article is the verbatim reproduction of the
suggestion and the recommendation made by this particular committee. It is said there, that in the Provinces of Bihar,
Central Provinces and Berar and Orissa,
there shall be a separate Minister for tribal welfare,
provided the Minister may hold charge simultaneously of welfare work pertaining to
Schedule Castes and backward classes or any other work. Therefore, the Drafting Committee had no choice except to introduce this
proviso because it was contained in that part of the report of the Tribal Committee which
was headed " Statutory Recommendation ". It was the intention of
this committee that this provision should appear in the Constitution itself, that it
should not he relegated to any other part of it. That is why this has come from the
Drafting Committee and it merely follows the recommendation
of the other Committee.
With
regard to the suggestion of my Friend Mr. Jaipal Singh, that Bombay should be included on
account of the fact that as a result of the mergers that have taken place into the Bombay
Presidency, the number of tribal
people has increased. I am sorry to say that at this stage, I cannot accept it because
this is a matter on which it would be necessary to consult the Ministry of Bombay and
unfortunately my Friend the Honourable Mr. Kher who was
present in the Constituent Assembly during the last few
days is not-here now, and I am therefore not able to accept
this amendment.
Shri
H.
V. Kamath : With reference to my amendment, may I know if Dr. Ambedkar has realised from the view that he expressed
previously—if he has recanted ?
Mr.
President :
I do not think that kind of cross-examination can be allowed. Now I shall take up the
amendments.
There
are two amendments moved by Mr. Tahir and Mr. Mohd. Ismail Nos. 2174 and 2175
which relate to this article 144, clause (1).
If
Dr. Ambedkar's amendment No. 2165 is carried, probably they
will drop automatically. Therefore, I would put Dr. Ambedkar's
amendment to vote.
[Dr.
Ambedkar's all
amendments mentioned herein
before were adopted, rest
were negatived. Article 144, as amended was added to the Constitution.]
ARTICLE 145
****
The
Honourable Dr. B. R. Ambedkar : I do not think I need add anything to the debate that has taken place. All that I want to say
is this : I am prepared to accept the amendment of Mr. Naziruddin Ahmad No. 2210.
[f20]
Mr. President : Then I put Amendment No. 2210 which includes within itself
2211 also.
[Following
amendment of Naziruddin Ahmed was accepted by Dr. Ambedkar and the House.]
"
That for clauses (2) and (4) of article 145. the following be substituted
:—
'
(3) The Advocate-General shall hold office during the
pleasure of the Governor, and shall receive such remuneration as the Governor may
determine ' ."
[Article
145, as amended was added to the Constitution.]
ARTICLE 146
****
[f21]
The
Honourable Dr. B. R. Ambedkar
(Bombay : General) : Sir, I
do not accept the amendment. Article 146 is only a logical consequence of article 130.
Article 130 says that the executive power of the State
shall be vested in the Governor. That being so, the only logical conclusion is that all
expression of executive action must be in the name of the Governor as is provided for in
article 146.
In regard to the observations made by my Honourable Friend Prof. K. T. Shah that under the old regime, all executive action was expressed in the name of the Government of India, my reply is that that was due to the fact that under the old system, the civil and military Government of India was vested not in the Governor-General, but in the Governor-General in Council, and consequently, all action had to be expressed in the name of the Government of India. Today, the position has altogether changed so far as article 130 is concerned.
[No amendment was
accepted. Article 146 was added to the constitution.]
ARTICLE 147
****
[f22]
The Honourable Dr. B. R. Ambedkar :
Mr. President, Sir, I must say that I am considerably surprised at the very excited debate
which has taken place on this article 147. I should like, at the very outset, to remind
the House that this article 147 is an exact reproduction of article 65 which this House
has already passed. Article 65 gives the President the same power as article 147 proposes
to give to the Governor. Consequently, I should have thought that all the debate that took
place, when article 65 was before the House, should have sufficed for the purpose of
article 147.
Shri
H. V. Kamath : May I remind the Honourable Dr. Ambedkar that the President
is elected and the Governor nominated...... (Interruption).
The
Honourable Dr. B. R. Ambedkar:
As the debate has taken place and as several Members of the House seem to think that there
is something behind this article 147 which would put the position of the Ministers and of
the Cabinet in the provinces in jeopardy, I propose to offer
some explanation.
The first thing I would like the House to bear in mind is this. The Governor under the Constitution has no functions which he can discharge by himself; no functions at all. While he has no functions, he has certain duties to perform, and I think the House will do well to bear in mind this distinction. This article certainly, it should be borne in mind, does not confer upon the Governor the power to overrule the Ministry on any particular matter. Even under this article, the Governor is bound to accept the advice of the Ministry. That, I think, ought not to be forgotten. This article, nowhere, either in clause (a) or clause (b) or clause (c), says that the Governor in any particular circumstances may overrule the Ministry. Therefore, the criticism that has been made that this article somehow enables the Governor to interfere or to upset the decision of the Cabinet is entirely beside the point, and completely mistaken.
Shri
H.
V. Kamath : Won't he be able to delay or obstruct...... ?
The
Honourable Dr. B. R. Ambedkar :
My friend will not interrupt while I am going on. At the end, he may ask any question and
if I am in a position to answer, I shall answer.
A
distinction has been made between the functions of the Governor and the duties which the Governor has to perform. My submission is that although the Governor has no
functions still, even the constitutional Governor, that he is, has certain duties to
perform. His duties, according to me, may be classified in
two parts. One is, that he has to retain the Ministry in office. Because, the Ministry is
to hold office during his pleasure, he has to see whether and when he should exercise his
pleasure against the Ministry. The second duty winch the Governor has, and must have, is to advise the
Ministry, to warn (he Ministry, to suggest to the Ministry an alternative and to ask for a
reconsideration. I do not think that anybody in this House will question the fact that the
Governor should have this duty cast upon him; otherwise, he would be an absolutely
unnecessary functionary : no good at all. He is the
representative not of a party; he is the representative of the people as a whole of the
State. It is in the name of the people that he carries on the administration. He must see
that the administration is carried on a level which may be regarded as good, efficient,
honest administration. Therefore, having regard to these two duties which the Governor
has, namely to see that the administration is kept pure, without corruption, impartial,
and that the proposals enunciated by the Ministry are not
contrary to the wishes of the people, and therefore to
advise them, warn them and ask them to reconsider—1 ask the House, how is the
Governor in a position to carry out his duties unless he has before him certain
information ? I submit that
he cannot discharge the constitutional functions of a Governor which I have just referred
to unless he is in a position to obtain the information. Suppose, for instance, the
Ministers pass a resolution,—and I know this has happened in many cases, in many
provinces today,—that no paper need be sent to the Governor, how is the Governor to
discharge his functions ? It is to enable the Governor to
discharge his functions in respect of a good and pure administration that we propose to
give the -Governor the power to call for any information.
If I may say so, I think I might tell the House how the affairs are run at the Centre. So
far as my information goes all cabinet papers are sent to the Governor-General. Similarly,
there are what are called weekly summaries which are prepared by every Ministry of the
decisions taken in each Ministry on important subjects relating to public affairs. These
summaries which come to the Cabinet, also go to the Governor-General. If, for instance,
the Governor-General, on seeing the weekly summaries sent up by the departments finds that
a Minister, without reference to the cabinet has taken a decision on a particular subject
which he thinks is not good, is there any wrong if the Governor-General is empowered to
say that this particular decision which has been taken by an individual Minister without
consulting the rest of the Ministers should be reconsidered by the Cabinet ? I cannot see what harm there can be, I cannot see what sort
of interference that would constitute in the administration of the affairs of the
Government. I therefore, submit that the criticisms levelled against this article are
based upon either a misreading of this article or upon some misconception which is in the
minds of the people that this article is going to give the Governor the power to interfere
in the administration. Nothing of the sort is intended and such a result I am sure will
not follow from the language of the article 147. All that the article does is to place the
Governor in a position to enable him to perform, what I say, not functions because he has
none, but the duties which every good Governor ought to discharge. (Cheers.)
Shri
H. V. Kamath:
May I ask Dr. Ambedkar some questions ?
Mr.
President :
What is the use of asking question now ? You had your
chance.
Shri
H. V. Kamath :
Dr. Ambedkar said that I could put questions at the end of his speech.
Mr.
President : I
do not like this practice of putting questions at the end of the discussions. All
questions have been answered. I will now put the article to vote as there is no amendment
to this.
Mr. President : The
question is :
"That
article 147 stand part of the Constitution. "
The
motion was adopted.
Article
147 was added to the Constitution.
****
****
[f23]
Mr. President :
2308.—Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar: Sir I move:
" That in clause (2) of article 151, for the words ' third year ' the words ' second year ' be substituted.
"
****
[f24]
The
Honourable Dr. B. R. Ambedkar:
The article has been passed that
the Second Chamber shall he there. This article deals only with how the Members will re-elect themselves.
Prof.
Shibban Lal Saksena :
We have to decide whether a particular Council should live for nine years or six years,
and that will depend upon the composition of the Council.
The composition will determine the period at the end of which one-third of the members should retire.
Mr.
President :
That does not depend on the composition of the Council. Whatever
may be the life of the House, the composition will be according to the decision we may take on article 150.
Prof.
Shibban Lal Saksena:
Well Sir, I bow to your ruling.... Then it has been said
that one-third of the Council will retire every third year. I am glad Dr. Ambedkar has now proposed that the period will now be two years instead of three. That will make the life of the
Council only six years which is almost equal to the life of
the Assembly. It also ensures greater freshness to the
Council. I therefore, support the amendment of Dr. Ambedkar.
Mr.
President :
Dr. Ambedkar, do you wish to say anything ?
The
Honourable Dr. B. R. Ambedkar: I
accept Mr. Gupte's amendment.
Mr.
President :
Now I shall put Mr. Gupte's amendment which has been accepted
by Dr. Ambedkar, to vote. It becomes
the original amendment.
The question is:
" That with reference to amendment No. 2304 of the
List of Amendment, after clause
(1) of article 151, the following
proviso he inserted :
'
Provided that the said period may, while a Proclamation of
Emergency is in operation, lie extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond
a period of six months after the Proclamation has ceased to operate. ' "
The
amendment was adopted.
Mr.
President :
Mr. Brajeshwar Prasad's
amendment.
The
amendment was, by leave of the Assembly, withdrawn.
Mr.
President :
Then I put Dr. Ambedkar's amendment, No. 2308.
The
amendment was adopted.
Article
151, as amended, was added to the Constitution.
ARTICLE 152
[f25]
Mr. President :
Then we come to article 152. To this article, there is the amendment of Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar: Sir, I move:
"That
for article 152, the following be substituted :—
'
152. qualifications for membership of the State Legislative.—A
person shall not he
qualified to be chosen to fill a seat ill the Legislature of a Slate unless
he—
(b) is. ill the case of a seat in a Legislative Assembly, not less than twenty-five years of age and,
in the case of a seat in the Legislative Council, not less
than thirty-live years of age. and
(c)
possesses such oilier qualifications as may be prescribed
in that behalf by or under any law made by the Legislature of the Stale '."
****
[f26]
The
Honourable Dr. B. R. Ambedkar :
Sir, I accept the amendment moved by Shrimati Purnima Banerji. With regard to
the tear that she expressed about clause (c) that this clause might enable the
prescription of properly qualifications by Parliament for candidates, I certainly can say that such is not the intention
underlying sub-clause (c). What is behind this clause is the provision of such
disqualifications as bankruptcy, unsoundness of mind, residence in a particular
constituency and things of that sort. Certainly there is no
intention that the property qualification should be
included as a necessary condition for candidates.
Then, with regard to the amendment of Professor K. T. Shah about literacy. I think that is a matter which might as well be left to the Legislatures. If the Legislatures at the time of prescribing qualifications feel that literacy qualification is a necessary one, I no doubt think that they will do it.
Sir,
there is only one point about which I should like to make a specific reference. Sub-clause
(c) is in a certain manner related to articles 290 and 291 which deal with electoral
matters. We have not passed those articles.
If
during the course of dealing with articles 290 and 291, the House comes to the conclusion that the provision contained in clause (c)
should be prescribed by the law made by Parliament, then I should like to reserve for the
Drafting Committee the right to reconsider the last part of sub-clause (c). Subject to that,
I think the article, as amended, may be passed.
[Article
152 as amended was added to the Constitution.]
****
ARTICLE 153
[f27]
The Honourable Dr. B. R. Ambedkar:
Sir, I move:
"
That clause (3) of article 153 be omitted."
This
clause is apparently inconsistent, with the scheme for a Constitutional Governor.
****
[f28]
Shri
Gopal Narain : (United Provinces : General) , Mr. President, Sir, before speaking on this article, I wish
to lodge a complaint and seek redress from you. I am one of those' who have attended all the meetings of this Assembly and sit
from beginning to the end, but my patience has been exhausted now. I find that there are a
few Honourable members of this House who have monopolised all the debates, who must speak
on every article, on every amendment and every amendment to amendment. I know. Sir, that you have your own limitations and you cannot stop
them under the rules, though I see from your face that you also feel sometimes bored, but
you cannot stop them. I suggest to you. Sir, that some time-limit may be imposed upon some Members. They should not be allowed to speak for
more than two or three minutes. So far as this article is concerned, it has already taken
fifteen minutes, though there is nothing new in it, and it only provides discretionary
powers to the Governor. Still a member comes and oppose it. I seek redress from you, but
if you cannot do this, then you must allow us at least to sleep in our seats or do
something else than sit in this House. Sir, I support this article.
Mr.
President : I
am afraid I am helpless in this matter. I leave it to the good sense of the Members.
Shri
Brajeshwar Prasad:
(Rose to speak).
Mr.
President :
Do you wish to speak after this ? (Laughter)
The
Honourable Dr. B. R. Ambedkar :l
do not think I need reply.
This
matter has been debated quite often.
[Except
Dr. Ambedkar's amendment,
none else was accepted.
Article 153 wax added to the Constitution.]
ARTICLE
153-A
[f29]Mr.
President:
Does any one wish to say anything about this amendment ?
The
Honourable Dr. B. R. Ambedkar:
Sir, I do not accept the amendment.
[The
amendment of Prof. K. T. Shah was negatived and Article 154 was added to the Constitution.]
****
ARTICLE 160
****
[f30]
Mr.
President:
Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar:
I have nothing to say. .Article 160 was adopted and added
to the Constitution.
NEW ARTICLE 163-A
[f31]
Mr.
President :
There is the new article 163-A which has to be moved. That is amendment No. 39 List 1.
The
Honourable Dr. B. R. Ambedkar :
Sir, it has to be held over.
****
ARTICLE 165
****
Shri
T. T. Krishnamachari :
The Chair has on previous occasions permitted
Dr. Ambedkar to move such amendments, and I think the same practice may be continued and
it may be moved formally.
The
Honourable Dr. B. R. Ambedkar: Sir, I move:
"
That in article 165 fur the words
' a declaration ' the words ' an affirmation or
oath ' he .substituted. "
The
motion was adopted.
****
ARTICLE 166
[f32]
The Honourable Dr. B. R. Ambedkar:
Sir, I move:
"
That after clause (1) of
article 166, the following new clause be
inserted :—
'
(la) No person shall be a member of the Legislature of two or more States and if a person
is chosen a Legislatures of the Legislatures of two or more States, then at the expiration
of such period as may he specified in rules made by the
President that person's seat ill the Legislatures of all the States shall become vacant, unless he has previously resigned his seat in
the Legislatures of all but one of the States '. "
This is a clause which provides for a case where a person is a member of the Legislatures of two States; the former clause dealt with a person who is a member of the Legislature of a State and of Parliament.
Mr.
President :
There is the amendment of Mr. Naziruddin Ahmad, No. 2403, hut that is
covered by the one now moved.
No. 2404.
The
Honourable Dr. B. R. Ambedkar: I move:
"
That clause (2) of article 166 he deleted."
****
[f33]
Mr. President: I
shall put the amendments moved by Dr. Ambedkar, one by one.
Shri
H.
V. Kamath : Will not Dr. Ambedkar answer the point raised by me ?
The
Honourable Dr. B. R. Ambedkar:
I
do not consider it necessary.
[All
amendments by Dr. Ambedkar mentioned herein before wen' accepted. Article 166, wax added to the Constitution.]
****
ARTICLE 167
[f34]
The
Honourable Dr. B. R. Ambedkar:
Sir, I move:
"
That for sub-clause (1) of article 167, the
following be substituted :— '
(d)
if he has ceased to be a citizen of India or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgement
of allegiance or adherence
to a foreign State '."
Shri
Mahavir Tyagi: What will he our position in regard to
England, now that we are in the Commonwealth ? Will our
allegiance to the King he also a disqualification ?
Mr.
President :
That is a matter of interpretation of the Constitution.
The
Honourable Dr. B. R. Ambedkar :
That will he dealt with by the Nationality Act. (Amendments Nos.
2420 to 2423 were not moved.)
Shri
H.
V. Kamath : I
think my amendment No. 2424 is a purely verbal amendment
and I leave it to the Drafting Committee.
Mr.
President: I
think it is of a substantial
nature.
Shri
H.
V. Kamath: If
that be so, I will move it.
I
move:
"That
in sub-clause (d) of clause (1) of article 167, after the semi-colon
at the end, the word ' or ' he added."
...Whether
the word 'and' is deleted, or in its place 'or' is substituted, more or less
comes to the same thing, according to my untrained mind.
That is why I said I leave it to the wise men of the
drafting Committee, because I am a mere novice in these matters. I thought ' or ' would he more appropriate, because
if any one of these disqualifications arises—if a person disqualified for any of these reasons—then the article will apply.
Mr.
President:
Dr. Ambedkar might consider
it.
Shri
H. V. Kamath :
As I said, I leave the decision to the wise men
of the drafting committee.
The
Honourable Dr. B. R. Ambedkar :
I think it is perfectly all right. Sir.
Mr.
President :
Won't they read cumulatively
?
Honourable Dr. B. R. Ambedkar
: No, Sir, they won't read cumulatively.
Mr.
President
: If ' or ' is added it will put it beyond all doubt.
The
Honourable Dr. B. R. Ambedkar
: I do not think
it necessary.
(Amendments
Nos. 2425, 2426 and 2427 were not moved.)
****
[f35]
The
Honourable Dr. B. R. Ambedkar
: I rise only for the sake of
my Friend. Mr. Tyagi, as lie has asked me one or two pointed questions. As he himself
says that he is an illiterate, I can very well understand his difficulty in understanding
the word ' adherence '. I would therefore explain to him what the word ' adherence '
means. When one country is invaded by another country, what happens is this that the local
people either out of fear or out of martial law sometimes give obedience to the laws made
by the military governor who acts in the name of the invading country. Such a conduct is
often excused while the invasion continues and the military occupation continues. It often happens that when there
is no real necessity to obey the invader or the military
governor, either because there has been a relaxation of control or because the hostility has ceased, certain people still continue to render obedience to the military
governor or the invader. Their conduct under law is referred to as ' adherence '. It is
distinct from acknowledging. It is to protect this kind of case that the word ' adherence
' has been used.
Mr. Friend, Mr. Tyagi, was also very much agitated over the question of who are to be regarded as foreign countries. I am sure about it that it is not the intention of my Friend, Mr. Tyagi, to involve me in any discussion about Commonwealth relationship which is a matter which has already been discussed and disposed of in the House, but I would like to tell him that I propose to introduce an amendment to article 303, sub-clause (1), to define what would be regarded as foreign country, and if my friend, Mr. Tyagi has got Volume II of the printed List of amendments, he will see what the proposed amendment is. The proposed amendment gives power to the President to declare what are not foreign countries, and that declaration would govern whether a particular country is or is not a foreign country. For the benefit of my Friend, Mr. Tyagi, I would also like to add one word of explanation. Many people seem to he rather worried that when a country is declared not to he a foreign country under the proposed amendment, or the Commonwealth Agreement, all such people who are inhabitants of those countries would ipso facto acquire all the rights of citizenship which are being conferred by this Constitution upon the people of this country. I want to tell my friends that no such consequence need follow. The position under commonwealth relationship would be this; In all the dominion countries, the residents would be divided into three categories, citizens, aliens and a third category of what may be called Dominion residents residing in a particular country. All that would mean is this, that the citizens of the dominions residing in India would not be treated as aliens, they would have some rights which aliens would not have, but they would certainly not be entitled, in my judgement, to get the full rights of citizenship which we would be giving to the, people of our country. I hope my friend, Mr. Tyagi, has got something which will remove the doubts which he has in his mind.
Shri
Mahavir Tyagi : I heartily thank you for the interesting speech that you
have made.
[The amendments moved by Dr. Ambedkar and that of Shri T. T.Krishnamachari were carried. Article 167, wax accordingly added to the Constitution.]
****
ARTICLE 169
****
[f36]
The
Honourable Dr. B. R. Ambedkar : (Bombay : General) : Sir, not very long ago this very matter was debated in this
House, when we were discussing the privileges of Parliament and I thought that as the
House had accepted the article dealing with the privileges and immunities of Parliament,
no further debate would follow when we were really reproducing the very same provision
with regard to the State legislature. But as the debate has been raised and as my Friend
Mr. Kamath said that even the press is agitated, I think it
is desirable that I should state what exactly is the reason for the course adopted by the
Drafting Committee, especially as when the debate took place last time I did not intervene
in order to make the position clear.
I do not know how many Members really have a conception of what is meant by privilege. Now the privileges, which we think of, fall into two different classes. There are first of all, the privileges belonging to individual members, such as for instance freedom of speech, immunity from arrest while discharging their duty. But that is not the whole thing covered by privilege.
Dr.
P. S. Deshmukh:
We do not want any enumeration of the privileges or any lecture on how they are exercised.
What we want to know is whether it is not possible to embody them into the Constitution.
That is the real question.
Mr.
President:
He is dealing with the matter.
The
Honourable Dr. B. R. Ambedkar: I
am mentioning the difficulty. If we were only concerned with these two filings, namely freedom of speech and immunity from arrest,
these matters could have been very easily mentioned in the article itself and we would
have had no occasion to refer to the House of Commons. But the privileges'
which we speak of in relation to Parliament are much wider than the two privileges
mentioned and which relate to individual members. The privileges of Parliament extends, for
instance, to the rights of Parliament
as against the public. Secondly, they also extend to right as against the individual
members. For instance, under the House of Commons' powers and privileges it is open to
Parliament to convict any citizen for contempt of Parliament and when such privilege is
exercised the jurisdiction of the court is ousted. That is an important privilege. Then
again, it is open to Parliament to take action against any individual member of Parliament
for anything that has been done by him which brings Parliament into disgrace. These are
very grave matters—e.g., to commit to prison. The right to lock up a citizen for what
Parliament regards as contempt of itself is not an easy matter to define. Nor is it easy
to say what are the acts and deeds of individual members which bring Parliament into
disrepute.
Pandit
Thakur Das Bhargava:
We are only concerned with the privileges of members and not with the privileges of
Parliament.
The
Honourable Dr. B. R. Ambedkar :
Let me proceed. It is not easy, as I said, to define what are the acts and deeds which may
be deemed to bring Parliament into disgrace. That would require a considerable amount of
discussion and examination. That is one reason why we did not think of enumerating these
privileges and immunities.
But
there is not the slightest doubt in my mind and I am sure
also in the mind of the Drafting Committee that Parliament must have certain privileges, when that Parliament would he so much
exposed to calumny, to unjustified criticism that the
parliamentary institution in this country might be brought
down to utter contempt and may lose all the respect which
parliamentary institutions should have from the citizens
for whose benefit they operate.
I
have referred to one difficulty why it has not been possible to categorise. Now I should
mention some other difficulties which we have felt.
It
seems to me, if the proposition was accepted that the Act itself should enumerate the
privileges of Parliament, we would have to follow three
courses. One is to adopt them in the Constitution, namely
to set out in detail the
privileges and immunities of Parliament and its members. I have very carefully gone over May's
Parliamentary Practice which is the source book of
knowledge with regard to the immunities and privileges of Parliament. I have gone over the
index to May's Parliamentary Practice and I have noticed
that practically 8 or 9 columns of the index are devoted to the privileges and immunities of Parliament. So that if you were to enact a complete code of
the privileges and immunities of Parliament based upon what
May has to say on this subject, I have not the least doubt in my mind that we will have to add not less than twenty or twenty-live pages
relating to immunities and privileges of Parliament. I do
not know whether the members of this House would like to
have such a large categorical statement of privileges and
immunities of Parliament extending
over twenty or twenty-live pages. That I think is one reason why we did not adopt that
course.
The
other course is to say, as has been said in many places in the Constitution, that Parliament may make provision with regard to a
particular matter and until Parliament makes that provision
the existing position would stand.
That is the second course which we could have adopted. We could have said that Parliament may decline the
privileges and immunities of the members and of the body
itself, and until (hat happens the privileges existing on the date on which the Constitution comes into existence shall continue to operate. But
unfortunately for us, as Honourable Members will know, the 1935 Act
conferred no privileges and no immunities
on Parliament and its members. All that it provided for was
a single provision that there shall he freedom of speech
and no member shall he prosecuted
for anything said in the debate inside Parliament. Consequently that course was not open, because the existing Parliament or Legislative Assembly possesses no privilege and no immunity.
Therefore we could not resort to that course.
The
third course open to us was the one which we have followed, namely, that the privileges of Parliament shall be the privileges of
the House of Commons. It seems to me that except for the sentimental objection to the reference to the
House of Commons I cannot see that there is any substance in the argument that has been advanced against the
course adopted by the Drafting Committee. I
therefore suggest that the article has adopted the only
possible way of doing it and there is no other alternative way open to us. That being
so, I suggest that this article be adopted in the way in which we have drafted it.
Dr.
P. S. Deshmukh:
The honourable Member has said nothing about my other suggestion.
The
Honourable Dr. B. R. Ambedkar :
As I said, if you want to categorise and set
out in detail all the privileges and immunities it will take not less than twenty-five pages......[f37]
Mr.
President :
Dr. Deshmukh's suggestion was that in this article which
deals with the legislatures of the States we might only say that the members of a State
legislature will have the same privileges as Members of our
Parliament.
The
Honourable Dr. B. R. Ambedkar:
That .is only a drafting
suggestion. For instance, it can he said that most of the
articles we are adopting for the State Legislatures are more or less the same articles
which we have adopted for the Parliament at the centre. We
might as well say that in most of the other cases the same
provisions will apply to the State Legislature but as we have not adopted that course, it would be rather odd to adopt it in this
particular case.
Mr.
President : I
shall first put the
amendment of Mr. Jaspat Roy
Kapoor to the House.
"That in clause (4) of article 169..after
the words 'a House of the Legislature of a
Stale the words ' or any
committee thereof ' he inserted.
"
The
amendment was adopted.
Article
169, as amended, was added
to the constitution.
****
ARTICLE 170
[f38]
Shri L. Krishnaswami Bharathi
(Madras : General) : Sir, I
beg to move:
"
That in article 170, after the words ' so made ' the words ' salaries and ' he inserted."
****
[f39]
Mr.
Naziruddin Ahmad :
We have not had notice that article 109 will be taken up today.
The
Honourable Dr. B. R. Ambedkar:
What does it matter
****
ARTICLE 109
[f40]
The
Honourable Dr. B. R. Ambedkar: Mr. President, Sir, I move:
"
That in article 109 for the words ' if in so far as ' the words ' if and in so far as ' he
substituted. "
(Amendments
Nos. 1896 and 1897 were not moved.)
****
[f41]
The
Honourable Dr. B. R. Ambedkar: I
do not think it is necessary to say anything. I accept Mr. T.
T. Krishnamachari's amendment
(The
amendment was as under) :—
"
That for the proviso to article 109, the following be substituted :— '
Provided
that the said jurisdiction shall not extend to a dispute to which any State is a party, if
the dispute arises out of any provision of a treaty agreement, engagement, sanad
or other similar instrument which provides that the said jurisdiction shall not extend to
such dispute."
[The
amendment was adopted along
with that of Dr. Ambedkar as shown earlier.]
Article
109, as amended, was added to the Constitution.
****
[f42]
Mr. President :
Does No. 111 cover cases of criminal nature also ?
Mr.
Naziruddin Ahmad :
No.
The
Honourable Dr. B. R. Ambedkar :
We are making provision for that by a separate article.
Mr.
Naziruddin Ahmad : I
am very grateful to you Sir, for pointing out that article 111 does not make any provision
for criminal case.......
****
[f43]
The Honourable Dr. B. R. Ambedkar: I move :
"
That in clause (3) of
article 110, for the words '
not only on the ground that any such question as aforesaid has been wrongly decided, but also, the words on the ground that any such question
as aforesaid has been
wrongly decided and with the leave of the Supreme Court,' he substituted."
The
existing language is somewhat awkward and that is the reason why we are putting it in a
different way so that it may read without any difficulty. The clause now will read as
follows :—
"
Where such a certificate is given, or such leave is granted, any party in the case may
appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided, and with the leave of the Supreme Court,
on any other ground."
****
[f44]
The
Honourable Dr. B. R. Ambedkar :
Sir, I cannot help saying that the debate has really gone off the track and the Members have really wandered far away from the immediate point
raised by my Friend Mr. Naziruddin Ahmed in Ms amendments Nos.
1904 and 1907. All that is before us is amendment No. 1904. According to that amendment
what my friend Mr. Naziruddin Ahmed wants to do is to suggest that the last few words of
sub-clause (1) of article 110, namely the words as to the interpretation of this
Constitution should be deleted. I am sorry I was not able to hear exactly the grounds
which he urged for the deletion of the phrase ' as to' the interpretation of this Constitution '. Although I tried hard to catch his very words, all that I
could hear him say as the reason for moving amendment No. 1904 was that he felt that those
words were words of limitation, and that if those words remained there would be no
provision for an appeal to the Supreme Court in cases where a question of constitutional
law did not arise.
Mr. Naziruddin Ahmad: I believe I am right.
The
Honourable Dr. B. R. Ambedkar :
No question of certificate arises.
Mr.
Naziruddin Ahmad:
You wanted to delete that yesterday.
The
Honourable Dr. B. R. Ambedkar:
I think my honourable Friend Mr. Naziruddin Ahmad has
probably not grasped the scheme of the articles which deal with the Supreme Court.
Mr.
Naziruddin Ahmad:
That is your stock argument.
The
Honourable Dr. B. R. Ambedkar:
We have in this Draft Constitution made separate provision for appeal in cases where
questions of constitutional law
arise, and cases where no such question arises. Appeals
where constitutional points arise are provided for in article 110. Questions where
Constitutional law are not involved are provided for in article III.. The reason why this
separation is made between the two sorts of appeals is also
probably not realised by my Friend Mr. Naziruddin Ahmed. I should
therefore like to make that point clear. There is going to
come an amendment to article 121 which deals with the rules to be made by the Supreme
Court. I have tabled an amendment to clause (2) of article 121 which says that
wherever an appeal comes before the Supreme Court and it involves questions of
Constitutional law, the minimum number of judges, which
would sit to hear such a case shall be five, while in other cases of appeals where no
question of Constitutional law arises, we have left the matter
to the Supreme Court to constitute
the Bench and define the number of judges who would be required to sit on it by rules made
there under. Now that is an important distinction, namely, that a Constitutional matter
coming before the Supreme Court will he decided by a number of judges not less than five,
while other cases of appeals may be decided by such number of judges as may be prescribed
by rule. My friend therefore will understand that the existence of
the words ' as to the
interpretation of this Constitution ' does not in any way
debar appeals other than those in which Constitutional law
is involved, and he will also understand why we propose to put these
two types of appeals in two separate articles, the number
of judges being different in
the two cases.
Now
I come to the other point which has been debated at great length, namely, whether the
Supreme Court should have criminal jurisdiction or not. As
I said, so far as article 110 is concerned and the amendment moved by my Friend Mr. Naziruddin Ahmad is concerned, all this debate is absolutely irrelevant
and beside the point and really ought not to influence our decision so far as article 110
is concerned. But in as much as a great deal of debate has taken place, I would like to
say a few words. Members will Find that there is provision in article 110 for a criminal matter coming
before the Supreme Court if that matter involves a question of Constitutional law.
Therefore that is one of the ways by which criminal matters may come up and the criminal
matters that may come up under article 110 may be very small matters.
Again,
there is article 112 where the jurisdiction of the Privy
Council has been vested in the Supreme Court. For the moment I would like to draw the
attention of honourable Members to the words ' decree or final order in any case or matter whether civil or criminal '
so that the Supreme Court may, by special leave, draw to itself even a criminal matter
under the provisions of article 112.1 have noticed that there is considerable feeling
among criminal lawyers that there ought to be a provision......[f45]
Pandit
Lakshmi Kanta Maitra:
Practising criminal law.
The
Honourable Dr. B. R. Ambedkar: I
am sorry, ' practising criminal law ', that just as article I I I confers upon the Supreme
Court powers of hearing civil appeals, civil only, there ought to be a conferment of power
upon the Supreme Court to hear criminal appeals, if not all appeals, at least appeals of a
limited character such as involving death sentences. Now, I do not want to say that there
is no force in the argument that has been used in support of this plea that the Supreme
Court should have criminal jurisdiction but the question is
how is it to be done '! Should we do it by a
specific clause in the Constitution itself that in the following matter there shall be
right to appeal to the Supreme Court, or should we permit Parliament to confer criminal
jurisdiction of an appellate sort upon the Supreme Court ?
I am office opinion for the moment—1 do not wish to
dogmatise nor do I wish to say anything positive at this stage;
I have an open mind although, if I may say so, it is not an empty
mind—that it might be enough at this stage to confer
upon Parliament the power to vest the Supreme Court with jurisdiction in matters of criminal appeals. Parliament may then, after due
consideration, after investigation, after finding out how much work there will be for the
Supreme Court if it is conferred jurisdiction in criminal matters and how much work it
will be possible for the Supreme Court to handle, having regard to the number of judges that the finances of this country could provide
to cope with that work— I think it would be much
better to leave it to Parliament because this is a matter which would certainly require some kind of statistical investigation. My other view is
that rather than have a provision for conferring appellate
power upon the Supreme Court to whom appeals in cases of
death sentence can made, I would much rather support the abolition of the death sentence,
itself. (Hear, hear.)
That, I think, is the proper course to follow, so that it will end this controversy. After all, this country by and large
believes in the principle of non-violence. It has been its ancient tradition, and although
people may not be following it in actual practice, they
certainly adhere to the principle of non-violence as a moral mandate which they ought to
observe as far as they possibly can and I think that, having regard to this fact, the
proper thing for this country to do is to abolish the death sentence altogether.
[f46]
Pandit Lakshmi Kanta Maitra:
All the criminal courts also.
The
Honourable Dr. B. R. Ambedkar :
I think we ought to confine ourselves to the amendment moved to article 110 and the
amendments moved by my Friend Mr. Naziruddin Ahmed.
****
[Following amendments were adopted.]
(1)
"That in clause (1) of
article 110, for the word '
State ' the words ' the territory of India ' he substituted."
(2)
"That in clause (3) of article 110, for the words '
not only on the ground that any such question as aforesaid
has been wrongly decided, hut also, ' the words ' on the ground that any such question as aforesaid has been wrongly decided
and with the leave of the Supreme Court ' be substituted."
[Article
110, (is amended, was added to the Constitution.]
ARTICLE 111
[f47]
The
Honourable Dr. B. R. Ambedkar:
Sir, I move:
"That
with reference to amendments Nos. 1916 to 1919 of the List
of Amendments, in sub-clause (a) of clause (1) of article III. after
the words ' twenty thousand rupees ', the words ' or such other sum as may be specified in
this behalf by Parliament by law, ' be inserted."
****
The Honourable Dr. B. R. Ambedkar: Sir, I beg to move:
"That
to clause (1) of article III the following proviso be added
:—-
"
Provided that no appeal shall lie to the Supreme Court from
the judgement, decree or order of one Judge of a High Court
or of one Judge of a Division Court thereof, or of two or more Judges of a High Court, or
of a Division Court constituted by two or more Judges of a High Court, where such Judges
are equally divided in opinion and do not amount in number to a majority of the whole of
the Judges of the High Court at the time being.' "
****
[f48]
The
Honourable Dr. B. R. Ambedkar
(Bombay : General) : Sir, I
move:
"That
in clause (2) of article III, for the words ' the case involves a substantial question of
law as to the interpretation of this Constitution which has been
wrongly decided ', the words '
a substantial question of
law as to the interpretation of the Constitution has been wrongly decided ' be
substituted."
****
[f49]
The Honourable Dr. B. R. Ambedkar:
Sir, I move:
"That
with reference to amendments Nos. 1916 to 1919 of the List
of Amendments, in sub-clause (a) of clause (1) of article III, after the words ' twenty
thousand rupees ' the words ' or such other sum as may be specified in this behalf by Parliament by law ' he inserted."
****
[f50]
The
Honourable Dr. B. R. Ambedkar:
Sir, I would begin by reminding the House as to exactly the point which the House is
required to consider and decide upon. The point is involved between two amendments : one is the amendment moved by my Friend Prof. Shibban Lal Saksena, which is
in a sense an exudation of amendment 1911 and my own amendment, which is amendment No. 25
in List No. I of the Fourth Week. Before I actually deal with the point that is raised by
these two amendments, I should like to make one or two general observations.
The
first observation that I propose to make is this. Article III is an exact reproduction of
sections 109 and 110 of the Civil Procedure Code. There is,
except for the amendments which I am suggesting, no difference whatsoever between article
111 and the two sections in the Civil Procedure Code. The House will therefore remember that so far as article I II is concerned, it
does not in any material or radical sense alter the position with regard to appeals from
the High Court. The position is exactly as it is stated in the two sections of the Civil
Procedure Code.
The
second observation that I would like to make is this. Sections 109 and 110 of the Civil
Procedure Code are again a reproduction of the powers conferred by paragraph 39 of the
Letters Patent by which the different High Courts in the Presidency Towns were constituted
by the King. There again. Sections 109 and 110 are a mere
reproduction of what is contained in paragraph 39.
The third point that I should like to make is this : that these Letters Patent were instituted or issued in the year 1862. These Letters Patent also contain a power for the Legislature to alter the powers given by the Letters Patent. But although this power existed right from the very beginning when the Letters Patent were issued in the year 1865, the Central Legislature, or the Provincial Legislatures, have not thought fit in any way to alter the powers of appeal from the decree, final order or judgement of the High Court. Therefore, the House will realise that these sections which deal with the right of appeal from the final order, decree and judgement of the High court have history extending over practically 75 to 80 years. They have remained absolutely undisturbed. Consequently, in my judgement, it would require a very powerful argument in support of a plea that we should now, while enacting a provision for the constitution of the Supreme Court, disturb a position which has stood the test of time for such a long period.
It
seems to me that not very long ago, this House sitting in another capacity as a
Legislative Assembly, had been insisting that these powers which under the Government of
India Act were exercised by the Privy Council, should forthwith, immediately, without any
kind of diminution or denudation be conferred upon the
Federal Court. It therefore seems to me somewhat odd that when we have constituted a
Supreme Court, which is to take the place of the Federal Court, and when we have an
opportunity of transferring powers of the Privy Council to the Supreme Court, a position
should have been taken that these provisions should not be reproduced in the form in which
they exist today. As I say, that seems to me somewhat odd. Therefore, my first point is
this that there is no substantial, no material, change at all. We are merely reproducing
the position as between the High Court and the Privy Council and establishing them as
between the High Court and the Supreme Court.
Now,
Sir, I will come to the exact amendments of which I made mention in the opening of my
speech, namely. Prof. Shibban
Lal Saksena's amendment and my amendment No. 25. If my
amendment went through, the result would be this : that the
Supreme Court would continue to be a Court' of Appeal and
Parliament would not be able to reduce its position as a Court of Appeal, although it may
have the power to reduce the number of appeals, or the nature of appeals that may go to
the Supreme Court. In any case, sub-clause (c) of article
111 would remain intact and beyond the power of Parliament. My view is that although we
may leave it to Parliament to decide the monetary value of cases which may go to the Privy
Council, the last part of clause (1) of article 111, which is (c),
ought to remain as it is and Parliament should not have power to dabble with it because it
really is a matter not so much of law as a matter of inherent jurisdiction. If the High
Court, for reasons which are patent to any lawyer does certify that notwithstanding that
the cause of the matter involved in any particular case does not fall within (a) and (b) by reason of the fact that the property qualification is
less than what is prescribed there, nonetheless it is a cause or a matter which ought to
go to the Supreme Court by reason of the fact that the point involved in it does not
merely affect the particular litigants who appear before the Supreme Court, but as a
matter which affects the generality of the public, I think it is a jurisdiction which
ought to be inherent in the High Court itself and I therefore think that clause (c) should not be placed within
the purview of the power of Parliament.
On
the other hand if the amendment moved by my friend Prof. Saksena
were to go trough, two things will happen. One thing that
will happen has already been referred to by my friend Bakshi
Tek Chand that Parliament
may altogether take away the Appellate jurisdiction of the Supreme Court in civil matters.
It seems to me that that would be a disastrous consequence. To establish a Supreme Court
in this country and to allow any authority in Parliament to denude and to take away
completely all the powers of appeal from the Supreme Court would be to my mind a very
mendacious thing. We might ourselves take courage in our own hands and say that the
Supreme Court shall not function as a court of appeal in civil matters and confine it to
the same position which has been given to the Federal Court.
The
other thing will be that Parliament would be in a position to take away sub-clause (c)
which, as I said, ought to remain there permanently, because it is really a matter of
inherent jurisdiction. Therefore it seems to me that the plea that the appellate power of
the Supreme Court should be made elastic is completely satisfied by ,my amendment No. 25, because under my amendment it would be
open to Parliament to regulate the provisions contained in (a) and (b) without in any way
taking away the appellate jurisdiction of the Supreme Court completely or without
affecting the provisions contained in (c). Sir, I therefore oppose Mr. Saksena's amendment.
[In
all 4 amendments were adopted, one
was rejected. Article III, as amended, was added to the Constitution.]
[f51]
The Honourable Dr. B. R. Ambedkar: I do not think there is anything for me to
say.
Mr.
President
: The question is :
"
That in article 112, the words ' except the States for the
time being specified, in Part III of the First Schedule, in
cases where the provisions of article 110 or article 111 of this Constitution do not apply
' be deleted."
The
amendment was adopted.
Article
112, as amended, was added to the Constitution.
NEW ARTICLE 112-A
[f52]
Mr.
President :
There is notice of a new article to be moved by Dr. Ambedkar,
amendment No. 191.
The Honourable Dr. B. R. Ambedkar: Sir, I beg to move:
" That with reference to amendment No. 1932 of the List
of Amendments, after article 112, the following new article be inserted:—
(Review of judgements or orders passed by the Supreme Court)
' 112-A Subject to the provisions of any law made by
Parliament or any rule made under article 121 of this Constitution, the Supreme Court shall have power to review any
judgement pronounced or order passed by it.' "
Sir,
the draft Constitution, as it stands now............................
[f53]
Prof.
Shibban Lal Saksena :
On a point of order, Sir, amendment No. 1932 has not been moved............
Mr.
President:
That has not been moved: I am taking this as a fresh
article.
Shri
T. T. Krishnamachari :
May I mention, Sir, that amendment No. 1932 is exactly the same as amendment No. 1928 ? Actually, if amendment 1928 is moved, amendment 1932 cannot
be moved.
Mr.
President : I
have already said that I have taken it as a fresh article.
The
Honourable Dr. B. R. Ambedkar:
The Draft Constitution contains no provision for review of its judgements. It was felt
that that was a great lacuna and this new article proposes to confer that power upon the
Supreme Court.
The
Honourable Shri K. Santhanam
(Madras : General): Sir, I
am afraid that the drafting of this is not quite as happy as it should be. For one thing,
I do not think it is right to put an article in the Constitution giving a power to the
Supreme Court and say that that power shall be limited by rules made by the Supreme Court.
I think it is bad law. Parliament has no right to interfere even with its ordinary power
of review.
Mr.
President:
This refers to its own decisions.
The Honourable Shri K. Santhanam : I am coming to that. I think there is a greater reason
why the Supreme Court should be left unfettered to review
its own judgement. In these two respects, the thing is rather defective. I would suggest
to Dr. Ambedkar to see if it should go in this form or
whether the form should not be reconsidered.
The
Honourable Dr. B. R.
Ambedkar:
I think my friend Mr. Santhanam is completely mistaken in the observations that he has
made. First of all, we are not conferring any power to the Supreme Court to make any
rules. That power is being delegated by article 121. If he refers to that article, he will
see that it reads thus :
''
Subject to the provisions of any law made by Parliament,
the Supreme Court may from time to time with the approval of the President, make rules for
regulating generally the practice and procedure of the Court including, etc., etc. "
Therefore
it is not correct to say that we are giving power to the Supreme Court. The power is with
the Supreme Court and is to be exercised with the approval of President. Another thing which has misled Mr. Santhanam is that he has not
adverted to the fact that I proposed by amendment 42 in List I to add one more clause to
article 121 which is (bb) and which deals with the rules to
be made with regard to review. Therefore, having regard to these two circumstances, it is
necessary that the review power of the Supreme Court must be made subject both to article
121 and also the amendment contained in No. 42.
[Article
112-A wax adopted and added
to the Constitution]
ARTICLE 113
Mr.
President :
No. 113.
Shri
T. T. Krishnamachari:
The house has expressly excluded reference to State in Part III of the First Schedule all
along and therefore this article may not be necessary. You can formally put it to the
House so that the House can negative it.
The
Honourable Dr. B. R. Ambedkar:
That is so.
[Article
113 was deleted from the Constitution.]
****
ARTICLE 114
Mr.
President
: Article 114. There is one amendment by Mr. Gupte.
(The
amendment was not moved.)
"
Does anyone wish to speak ?
[f54]
The Honourable Dr. B. R. Ambedkar:
My attention has been drawn by my friend Shri Alladi Krishnaswami Ayyar that the articles of this Draft Constitution dealing
with powers of the Supreme Court do not expressly provide for appeals in income-tax cases.
I wish to say that I am considering the matter and if on examination it is found that none
of the articles could be used for the purpose of conferring such an authority upon the
Supreme Court, I propose adding a special article dealing with that matter specifically. But this article may go in.
[Article
114 was added to the Constitution.]
ARTICLE 121
[f55]
The
Honourable Dr. B. R. Ambedkar: Sir, I move:
"That
for clause (3) of article 121, the following be substituted :—
'
(3) No judgement shall be delivered by the Supreme Court save in open court, and no report
shall be made under article 119 of this Constitution save
in accordance with an opinion also delivered in open court.'
'"
Sir, I shall move also amendment No. 1966 :
"That
for clause (4) of article 121, the following be substituted :—
'
(4) No judgement and no such opinion shall be delivered by the Supreme Court save with the
concurrence of a majority of the judges present at the hearing of the case but nothing in
this clause shall be deemed to prevent a judge who does not concur from delivering a
dissenting judgement or opinion.' "
****
[f56]
The
Honourable Dr. B. R. Ambedkar:
Mr. President, I regret very much that I cannot accept the amendment moved by my Honourable Friend Mr. Lari.
It seems to me that he has completely misunderstood what is involved in his amendment.
The
reason why it is necessary to make the rule- making power of the Supreme Court subject to
the approval of the President is because the rules may, if they were left entirely to the
Supreme Court, impose a considerable burden upon the revenues of the country. For
instance, supposing a rule was made that a certain matter should be heard by two Judges.
That may be a simple rule made by the Supreme Court. But, undoubtedly, it would involve a
burden on public revenues. There are similar provisions in the rules, for instance,
regarding the regulation of fees. It is again a matter of public revenue. It could not be
left to the Supreme Court. Therefore, my submission is that the provisions contained in
article 121 that the rules should be subject to the approval of the President is the
proper procedure to follow. Because, a matter like this which imposes a burden upon the
public revenues and which burden must be financed by the legislature
and the Executive by the imposition of taxation could not be taken away out of the purview
of the Executive.
I
may also point out that the provisions contained in article 121 are the same as the
provisions contained in article 214 of the Government of India Act, 1935 relating to the
Federal Court and article 224 relating to the High Courts. Therefore, there is really no
departure from the position as it exists today. With regard to the comments made by my
Honourable Friend, Mr. Santhanam relating to amendment No.
42 moved by Honourable Friend. Mr. T. T. Krishnamachari, I am afraid,
I have not been able to grasp exactly the point that lie
was making. All that, therefore, I can say is this, that this matter will be looked into
by the Drafting Committee when it sits to revise the Constitution, and if any new
phraseology is suggested, which is consistent with the provisions in the article which we
have passed conferring power of review by the Supreme Court, no doubt it will be
considered.
There
is one other point to which I would like to refer and that is amendment No. 43. In
amendment No. 43, which has been moved by my Honourable Friend, Shri
Alladi Krishnaswami Ayyar, and to which I accord my wholehearted
support, there is a proviso which says that if a question about the interpretation of the
Constitution arises in a matter other than the one provided in article 110, the appeal
shall be referred to a Bench of five judges and if the question is disposed of it will be
referred back again to the original bench. In the proviso as enacted, a reference is made
to article III, but I quite see that if the House at a later stage decides to confer
jurisdiction to entertain criminal appeals, this proviso will have to be extended so as to
permit the Supreme Court to entertain an appeal of this sort even in a matter arising in a
criminal case. I, therefore, submit that this proviso also will have to be extended in
case the House follows the suggestion that has been made in various quarters that the Supreme Court should have criminal
jurisdiction.
[5
amendments including 2 of Dr. Ambedkar were adopted. One wax negatived.
Article 121 as amended was added to the Constitution.]
[f57]
The Honourable Dr. B. R. Ambedkar:
Sir, I formally move.
"That
in sub-clause (a) of clause (1) of article 191, for the words '
the High Court of East Punjab, and the Chief Court in Oudh
' the words ' and the High Courts of East Punjab, Assam and
Orissa ' be substituted."
Sir,
I move:
" That with reference to amendments Nos. 2567 and 2570 of the
List of Amendments, for article 191, the following article he substituted:—
' 191. (1) There shall be a High Court for each State.
(2)
For the purposes of this Constitution the High Court existing in any Province immediately
before the commencement of this Constitution shall be deemed to be the High Court for the
corresponding State.
High
Courts for State
(3)
The provisions of this Chapter shall apply to every High Court referred to this article'."
Shri
T. T. Krishnamachari :
We might take up the discussion of this amendment first because if this is accepted by the House all the other amendments will be unnecessary.
This alters the entire contour of the article while, it also simplifies it.
Mr.
President :
There are some amendments of which I have got notice, I shall run over them and see.
(Amendments
Nos. 2568 to 2577
were not moved.)
Mr.
President : There is therefore no other amendment except the one moved
by Dr. Ambedkar. Does anyone wish to say anything about the
amendment or the article ?
The
amendment was adopted.
[Article
191, as amended, wan added to the Constitution.]
ARTICLE 192
(Amendments
2578 to 2580 were not moved.)
[f58]
Mr.
President :
Amendment No. 2581 is in Dr. Ambedkar's name. This has to
be formally moved.
The
Honourable Dr. B. R. Ambedkar:
Sir, I formally move:
" That in the proviso to article 192. the words beginning
with 'together with any ' and ending with ' of this chapter
' be deleted, and after the word ' six ' the words 'from
time to time ' he inserted." Sir, I move:
" That with reference to amendment No. 2581, of the List of Amendments, for article 192, the following new articles be substituted:— (High Courts of Record).
'
192. Every High Court shall be a court of record and shall have all the powers of such a
court including the power to punish for contempt of itself.
' 192-A.
Every High Court shall
consist of a chief Justice and such other judges as the President may from time to time
deem it necessary to appoint:
' Provided that the judges so appointed shall at no time
exceed in number such maximum at the President may, from time to time, by order fix in relation to that Court.' "
****