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
PART
III
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Discussion
on the Articles:
HINDI
NUMERALS ON CAR NUMBER PLATES
****
[f1]
Pandit Balkrishna Sharma :
...My submision to him has always been that Delhi as a
Province is surrounded on all sides by Provinces which have declared Hindi as their
Government language and Deva-nagari as the Government
script.
Mr.
President :
Order, order. I have got the information which you wanted to give me. As I said. Honourable Members will not insist upon my giving a ruling
on the question of privilege. It may not be in their interest. As I have said, the matter
will be taken up with the Government.
The
Honourable Dr. B. R. Ambedkar
(Bombay : General) : There
is no privilege to break the law.
****
The
Honourable Dr. B. R. Ambedkar: Sir, I move:
I. " That in sub-clause (h) of clause (3) of article 92, for the words ' emoluments ' the
words ' salaries' be substituted."
That
is the usual wording we are using.
****
[f2]
The
Honourable Dr. B. R. Ambedkar:
Sir, I beg to move:
2.
"That in sub-clauses (a) and (h) of clause (2) of article 92, for the words '
revenues of India ' the words ' Consolidated Fund of India ' be substituted."
3.
" That in clause (3) of article 92. for the words '
revenues of India ' the words ' Consolidated Fund of India ' be substituted."
4.
" That after sub-clause (d)
of clause (3) of article 92, the following sub-clause be inserted:—
'
(dd) the salary, allowances and pension payable to or in
respect of the Comptroller ' and Auditor-General of India'."
With regard to 9, all I, need say is that the House has already passed article 124, clause (5) which contains the present amendment. It is therefore here, because, it was felt that all items which are declared to be charges on the Consolidated Fund of India had better be brought in together, rather than be scattered in different parts of the Constitution.
[All
four amendments of Dr. Ambedkar as shown above were
accepted others were rejected. Article 92 as amended was added to the constitution.]
****
[f3]
The
Honourable Dr. B. R.
Ambedkar: Sir, I move :
"
That in clause (1) of article 93, for the words ' revenues of India ' the words '
Consolidated Fund of India ' lie substituted."
[Amendment
was carried. Article 93, as amended, was added to the constitution.]
[f4]
The Honourable Dr. B. R. Ambedkar:
Sir, I move:
"
That for article 94, the following article be substituted :—( Appropriation Bills).
'
94. (1) As soon as may be after the grants under the last preceding article have been made
by the House of the People there shall be introduced a Bill to provide for the appropriation out of the
Consolidated Fund of India all moneys required to
meet—
(a)
the grants so made by the House of the People: and
(b)
the expenditure charged on the Consolidated Fund of India hut not exceeding in any case the amount shown in the statement previously laid before
Parliament.
(2)
No amendment shall be proposed to any such Bill in either House of Parliament which will
have the effect of varying the amount or altering the destination of any grant so made or of
varying the amount of any expenditure charged on the Consolidated Fund of India, and the decision of the person presiding as to
the amendments which are admissible under this clause shall be final.
(3)
Subject to the provisions of the next two succeeding articles no money shall be withdrawn
from the Consolidated fund of India except under
appropriation made by law passed in accordance with the provisions of this article.' "
As
I explained yesterday the object of this new article 94 is to replace the provisions
contained in the old article relating to the certification of a schedule by the Governor-General.
****
[f5]
The
Honourable Dr. B. R. Ambedkar:
Mr. President, Sir, I thought that the observations made by my Friend Mr. T. T. Krishnamachari would have been regarded as sufficient to meet
the objections raised by my Friend Mr. Santhanam, but since
my Friend Mr. Bharathi by his speech has indicated that at
any rate his doubts have not been cleared, I find it necessary to rise and to make a few
observations. My Friend Mr. Santhanam said that we were unnecessarily borrowing the
procedure of an Appropriation Bill and that the existing procedure of an authenticated
schedule should have been sufficient for our purposes. His argument if I understood him
correctly was this : that an Appropriation Bill is
necessary in the House of Commons because the supply estimates are dealt with by a
Committee of the whole House and not by the House itself. Consequently the Appropriation
Bill is, in Ins opinion, a necessary concomitant of a procedure of estimates being dealt
with by sort of Committee of the House. Personally, I think there is no connection between
the Committee procedure of the House of Commons and the necessity of an Appropriation
Bill. I might tell the House as to how this procedure of the House of Commons going into a
Committee of Supply to deal with the estimates came into being. The House will remember
that there was a time in English political history when the King and the House of Commons
were at loggerheads. There was not such pleasant feeling of trust and confidence which
exists now today between the House of Commons and the King. The King was regarded as a
tyrant, as an oppressor, as a person interested in levying taxes and spending them in the
way in which he wanted. It was also regarded that the Speaker of the House of Commons
instead of being a person chosen by the House of Commons enjoying the confidence of the
House of Commons was regarded as a spy of the King. Consequently, the members of the House
of Commons always feared that if the whole House discussed the estimates, the Speaker who
had a right to preside when the House as a whole met in session would in all probability,
to secure the favour of the King, report the names of the members of the House to the King
who criticised the King's conduct, his wastefulness, his
acts of tyranny. In order therefore to get rid of the Speaker who was, as I said in the beginning, regarded as a spy of the King carrying tales of
what happened in the House of Commons to the King, they devised this procedure of going
into a Committee; because when the House met in Committee the Speaker has no right to
preside. That was the main object why the House of Commons met in Committee of Supply. As
I said, even if the House did not meet in Committee of Supply, it would have been
necessary for the House to pass an Appropriation Bill. As my Friend—at least the
lawyer friends—will remember, there was a time when the House of Commons merely
passed resolutions in Committee of Ways and Means to determine the taxes that may be
levied, and consequently the taxes were levied for a long time—I think up to 1913 on
the basis of mere resolutions passed by the House of Commons Committee of Ways and Means.
In 1913 this question was taken to a Court of law whether taxes could be levied merely on
the basis of resolutions passed by the House of Commons in the Committee of Ways and
Means, and the High Court declared that the House of commons had no right to levy taxes on
the basis of mere resolutions. Parliament must pass a law in order to enable Parliament to
levy taxes. Consequently, the British Parliament passed
what is called a Provincial Collection of taxes Act.
I
have no doubt about it that if the expenditure was voted in Committee of Supply and the
resolutions of the House of Commons were to he treated as final authority, they would have
also been condemned by Courts of law, because it is an
established proposition that what operates is law and not resolution. Therefore my first
submission is this : that the point made by my Friend Mr. Santhanam, that the Appropriation Bill procedure is somehow an
integral part of the Committee procedure of the House of Commons has no foundation
whatsoever. I have already submitted why the procedure of an authenticated schedule by the Governor-General is both uncalled for, having regard to
the altered provision of the President who has no function in his discretion or in his
individual judgement, and how in matters of finance the authority of Parliament should be
supreme, and not the authority of the executive as represented by the President. I therfore need say nothing
more on this point.
Then
my Friend, Mr. Santhanam, said, if I understood him correctly, that article 95—1 do
not know whether he referred to article 96; but he certainly referred to article
95—would nullify clause (3) of the new article 94. Clause (3) stated that no money
could be spent except under an appropriation made by law. He seemed to be under the
impression that supplementary, additional or excess grants which are mentioned in new
article 95, and votes on account, or votes on credit or exceptional grants mentioned in
the new article 96 would be, voted without an Appropriation law. I think he has not
completely read the article. If he were to read sub-clause (2) of the new article 95 as
well as the last para of new article 96 and also a further
article which will be moved at a later stage—which is article 248A—he will see that there is a provision made that the moneys can be drawn, whether for supplementary or additional
grants or for votes on account or for any purpose, without a provision made by law for
drawing moneys on Consolidated Fund. I can quite understand the confusion which probably
has arisen in the minds of many Members by reason of the fact that in some place we speak
of a Consolidated Fund Act while in another place we speak of an Appropriation Act. The
point is this : fundamentally, there is no difference
between a Consolidated Fund Act and an Appropriation Act. Both have the same purpose,
namely, the purpose of authorising an authority duly constituted to draw moneys from the
Consolidated Fund. The difference between a Consolidated Fund Act and the Appropriation
Act is just this. In the Consolidated Fund Act a lump sum is mentioned while in the
Appropriation Act what is mentioned is all the details— the main head, the sub-heads
and the items. Obviously, the procedure of an Appropriation Bill cannot be brought into
operation at the stage of a Consolidated Fund Bill because Parliament has not gone through
the whole process of appropriating money for heads, for sub-heads and for items included
under the sub-heads. Consequently when money is voted under
a Consolidated Fund Act, it means that the executive may draw so much lump sum out of the
Consolidated Fund which will at a subsequent stage be shown in what is called the final
Appropriation Act. If Honourable Friends will remember that there is no authority given to
the executive to draw money except under a Consolidated Fund Act or under an Appropriation
Act, they will realize that so far as possible an attempt is made to make these provisions
as fool-proof and knave-proof as one can possibly do.
[Dr.
Ambedkar's motion wax adopted. Article 94,
as amended was added to Constitution.]
[f6]
The Honourable Dr. B. R. Ambedkar: Sir, I move:
"
That for article 95, the
following article be substituted : (Supplementary, additional or excess grants).
'95(1)
The President shall—
(a)
if the amount authorised by any law made in accordance with the provisions of article 94
of this Constitution to be expended for a particular service for the current financial
year is found to be insufficient for the purposes of that year or when a need has arisen
during the current financial year for supplementary or additional expenditure upon some
new service not contemplated in the annual financial statement for that year; or
(b)
if any money has been spent on any service during a financial year in express of the
amount granted for that service and for that year, cause to be laid before both the Houses
of Parliament another statement showing the estimated amount of that expenditure or cause,
to be presented to the House of the People a demand for such excess, as
the case may be.
(2)
the provision of the last three preceding articles shall have effect in relation to any
such statement and expenditure or demand and also to any law to be made authorising the
appropriation of moneys out of the Consolidated Fund of
India to meet such expenditure or the grant in respect of such demand as they have effect
in relation to the annual financial statement and the expenditure mentioned therein; or to
a demand for a grant and the law to be made for the authorization of appropriation of
moneys out of the Consolidated Fund of India to meet such expenditure or grant.' "
****
[f7]
The Honourable Dr. B. R. Ambedkar :
Mr. President, Sir, I find that the financial provisions which are placed before this
House have given considerable worry to the Members. I can
appreciate that, for I remember that when Mr. Churchill's
father became the Lord Chancellor, a budget was placed before him showing figures in
decimals and dots thereon. Evidently he was not a student of mathematics and could not
understand what the figures meant with a dot in it. So he wrote on the file, " what do these damned dots mean ?", asking for an explanation from the Secretary of the
Finance Department. Having regard to such difficulty of
understanding from persons so highly placed as Mr. Churchill's father, I am not at all
surprised if the members of this House also find similar difficulty
in understanding these provisions. I should therefore like to go somewhat into elementary
propositions in order to place the House in a right frame of mind.
Sir,
I should like to tell the House the effect of the provisions contained in article 92,
article 93(2) and article 94. Article 92 places upon the President the obligation to lay
before Parliament a financial statement for the year—1 would like to emphasise the
words " for the year "—showing
the expenditure in certain categories, those charged on the revenues of India and those
not charged on the revenues of India. After that is done, then comes into operation
article 93(2), which states how the estimates are to be dealt with. It says that the
estimates shall be presented to the House in the form of demands and shall be voted upon
by the House of the People. After that work is done, article 94 comes into operation, the
new article 94 which says that all these grants made by the House of the People shall be
put and regularised in the form of an Appropriation Act No. I would like to ask the
Members to consider what the effect is of articles 92, 93 (2) and 94. Suppose We did not enact any other article, what would be the effect ? The effect of the provisions contained in articles 92,93(2)
and 94 in my judgement would be that the President would not be in a position
constitutionally to present before Parliament any other estimates during the course of the
year. Those are the only estimates which the President could present according to law.
That would mean that there would be no provision for, submitting supplementary grants,
supplementary demands, excess grants on the other grants
which have been referred to such as votes on credit and things of that sort. If no
provision was made for the presentation of supplementary grants and the Other grants to
which I have referred, the whole business of the executive would be held up. Therefore,
while enacting the general provision that the president shall be bound to present the
estimates of expenditure for the particular year before Parliament, he is also authorised
by law to submit other estimates if the necessity for those estimates arises. Unless
therefore we make an express provision in the Constitution for the presentation of
supplementary and excess grants, articles 92,93(2) and 94 would debar any such
presentation. The House will now understand why it is necessary to make that provision for the presentation of these supplementary
demands.
The
question has been raised as to excess grants. The difficulty, I think, is natural. Members
have said that when it is stated that no moneys can be spent by the executive beyond the limits fixed
by the Appropriation Act, how is it that a case in excess grants can arise ? That, I think, is the point. The reply to that is this. We
are making provisions in the terms of an amendment moved by my Friend Pandit Kunzru, which is new article 248-B
on page 27 of List I, where there is a provision for the establishment of a Contingency
Fund out of the Consolidated Fund of India. Personally myself, I do not think that such a
provision is necessary because this question had arisen in Australia, in litigation
between the state of New South Wales and the Commonwealth of Australia and the question there was whether the
Commonwealth was entitled to establish a Contingency Fund when the law stated that all the
revenues should be collected together into a Consolidated Fund, and the answer given by
the Australia-Commonwealth High Court was that the establishment of a Consolidated Fund
would not prevent the legislature of the Parliament from establishing out of the
Consolidated Fund any other fund, although that particular fund
may not be spent during that year because it is merely an appropriation although in a
different from. However to leave no doubt on this point that it would be open to
Parliament notwithstanding the provision of a Consolidated Fund to create a Contingency
Fund. I am going to accept the amendment of my Friend, Pandit Kunzru
for the incorporation of a new article 248-B. It is, therefore, possible that appart from
the Fund that is issued on the basis of an Appropriation Act to the executive, the
executive would still be in possession of the Consolidated Fund and such other fund as may be
created by law from time to time. It would be perfectly
possible for the executive without actually having any intention to break the
Appropriation Act to incur expenditure in excess of what is voted by Parliament and draw
upon the Contingency Fund or the other fund. Therefore a breach of the Act has been
committed and it is possible to commit such an act because the executive in an emergency
thinks it ought to be done and there is provision of fund for them to do so. The question,
therefore, is this : when an
act like this is done, are you not going to make a provision for the regularisation of that act ? In
fact, if I may say so, the passing of an excess grant is nothing else but an Indemnity Act
passed by Parliament to exonerate certain officers of government who have in good faith
done something which is contrary to the law for the time being. There is nothing else in
the idea of an excess grant and I would like to read to the Members of the House paragraph
230 from the House of Commons—Manual of Procedure for the public business. This is what paragraph 230 says :—
"
An excess grant is needed when a department has by means of
advances from the Civil Contingencies Fund or the Treasury
Chest Fund or cut of funds derived from extra receipts or otherwise spent the money on any
service during any financial year in excess of the amount granted for that service and for
that year."
Therefore,
there is nothing very strange about it. The only thing is that when there is a
supplementary estimate the sanction is obtained without excess expenditure being incurred.
In the case of excess grant the excess expenditure has already been incurred and the
executive comes before Parliament for sanctioning what has already been spent. Therefore,
I think there is no difficulty; not only there is no difficulty but there is a necessity,
unless you go to the length of providing that when any executive officer spends any money
beyond what is sanctioned by the Appropriation Act, he shall be deemed to be a criminal
and prosecuted, you shall have to adopt this procedure of excess grant.
The
Honourable Shri K. Santhanam:
May I ask if under the provisions of the law as stated in the new
article 95(2) the three preceding articles will have effect
? Does it mean that every supplementary demand should be
followed by a supplementary Appropriation Act.
The
Honourable Dr. B. R. Ambedkar:
Yes; that would be the intention.
The Honourable Shri K. Santhanam :
The appropriation will not be for the whole year ?
The
Honourable Dr. B. R. Ambedkar :
There may be supplementary appropriation. That always happens in the House of Commons.
Prof.
Shibban Lal Saksena:
What about my amendment, Sir ?
The
Honourable Dr. B. R. Ambdkar: I
am very sorry. Prof. Shibban Lal
Saksena says that the financial year should be changed.
Well, I have nothing to say except that I suspect that his motives are not very pure. He
perhaps wants a winter session so that he can spin as long as he wants. If he wants longer
sessions, he must sit during summer months as we are now doing.
[Dr.
Ambedkar's amendment was accepted. Article 95, as amended, as mentioned earlier wax added
to the Constitution.]
****
[f8]
The
Honourable Dr. B. R. Ambedkar:
Sir, I move:
"
That for article 96. the following
article lie substituted :— (Votes on account, votes on
credit & exceptional grants).
'
96 (1) Notwithstanding anything contained in the foregoing provisions of this Chapter, the
House of the People shall have power—
(a)
to make any grant in advance in respect of the estimated expenditure for a part of any
financial year pending the completion of the procedure
prescribed in article 93 of this Constitution for the voting of such grant and the passing
of the law in accordance with the provisions of article 94 of this Constitution in
relation to that expenditure;
(b) to make a grant for meeting an unexpected demand upon the
resources of India when on account of the magnitude or the indefinite character of the
service the demand cannot be stated with the details ordinarily given in an annual
financial statement;
(c) to make an exceptional grant which forms no part of the
current service of any financial year;
and
to authorise by law the withdrawal of moneys from the
consolidated Fund of India for the purpose for which the
said grants are made.
(2)
The provisions of articles 93 and 94 of this Constitution shall
have effect in relation to the making of any grant under clause (1) of this article and to
any law to be made under that clause as they have effect in relation to the making of a
grant with regard to any expenditure mentioned in the annual financial statement and the
law to he made for the authorisation of appropriation of moneys out of the Consolidated
Fund of India to meet such expenditure.' "
The
Honourable Shri K. Santhanam :
Sir, I do not want to reopen the general principle which has been accepted; but I wish to
say that the drafting of this article is rather defective.
For
instance, in clause (1) it says, " the House of the
People shall have power " and this is followed by,
after sub-clause (c), " and to authorise by law......" I think according to the Constitution, the House
of the People cannot authorise by law.
The
Honourable Dr. B. R. Ambedkar :
I should say. Sir, that the Drafting Committee reserves to
itself the liberty to re-draft the last three lines following sub-clause (c).
The
Honourable Shri K. Santhanam:
Sir, I am unable to understand this. In the House here we pass something which is
obviously wrong and unconstitutional and then leave it to the Drafting Committee. I do not
think we can leave it to the Drafting Committee to tamper with the provisions we are
making unless there is some lacuna or a mistake. We do
not want to be
faced with a new Constitution altogether and subjected to
the trouble of looking at it article by article again. I do not think it is right for this
House to pass a clause which is obviously wrong. Either he must say Parliament shall have
power......
The Honourable Dr. B. R. Ambedkar : I am prepared to accept the amendment right now. You may
suggest it. " Parliament shall have power to authorise
by law.
The
Honourable Shri K. Santhanam :
Sir, the amendment may be, " and Parliament shall have power to authorise by law the withdrawal of moneys from the Consolidated Fund of India for the purposes
for which the said grants are made. "
Coming
to clause (2), it says " that the provisions of
articles 93 and 94 of this Constitution shall have effect
in relation to the making of any grant...;" I want to
know if this means that there will have to be an Appropriation Act for this and that
Appropriation Act will also show all the divisions, charged and non-charged, votable and non-votable, as stated in the previous article. If that is the
implication......
The Honourable Dr. B. R. Ambedkar: That cannot be.
The
Honourable shri K. Santhanam:
Article 93 says......
Shri
T. T. Krishnamachari
: If it will help the Honourable Member, we can say, there
will be a Consolidated Fund Bill No. I before an Appropriation Act, which will have the
main skeleton.
The
Honourable Shri K. Santhanam:
What I want to know is whether the Consolidated Fund Bill
No. I will also consist of the charged and non-charged amounts and voted and non-voted
amounts, or will give only the' votable portion.
The
Honourable Dr. B. R. Ambedkar :
The charged portion occurs only in the final Appropriation Act. This voting account gives
what in the technical language of the House of Commons are called supply services as
distinct from services charged on the revenues.
The
Honourable Shri K. Santhanam:
This article says that the provisions of articles 93 and 94 will have to be complied with.
The
Honourable Dr. B. R. Ambedkar :
Articles 93 and 94 mean the voting of Appropriation Act.
The
Honourable Shri K. Santhanam :
Article 93, first part, says that the charged portion would
be shown and the second part says that such portion as is votable
shall he presented to the vote. I want to know whether both these portions will be appplicable to the voting account.
The
Honourable Dr. B. R. Ambedkar: Article 93 says that the vote of the House
is not necessary for services charged on the revenues of India.
The
Honourable Shri K. Santhanam :
But, they will have to be shown in the Appropriation act.
The
Honourable Dr. B. R. Ambedkar
:
When passed. This is what is called Consolidated Fund Act 1.
The
Honourable Shri K. Santhanam :
Article 94 does not deal with Consolidated .Fund Act.
The
Honourable Dr. , B. R. Ambedkar:
That is also the Appropriation Act. As I stated before, there is no distinction. The Appropriation Act shows the details while the Consolidated Fund Act
does not show details.
The
Honourable Shri K. Santhanam :
I
do not think Dr. Ambedkar's explanations can override the
precise provisions of an article. As the article stands, all the provisions of articles 93
and 94 will apply to this Consolidated Fund as to the other. Therefore, the entire budget
procedure will have to be duplicated.
The
Honourable Dr. B. R. Ambedkar :
If the honourable Member will read carefully sub-clause (2), he will see what sub-clause
it deals with. It says, " The provisions of articles
93 and 94 of this Constitution shall have effect in relation to the making of any grant
under clause (1).
The
Honourable shri K. Santhanam:
Please read on..
The
Honourable Dr. B. R. Ambedkar:
As I stated, there
is no question of grant with regard to services charged on the revenues.
[f9]
The Honourable Dr. B. R. Ambedkar
:
Sir, I do not think there is any necessity to say anything more. I am only moving an
amendment :
"That
after sub-clause (c), of
clause (1), the following words he added alter ' and ' and before ' to ' :—
'
Parliament shall have power. ' "
[Amendment
was accepted along with Dr. Ambedkar's previous motion. Article 96, as amended, was added to the constitution.]
[f10]
The Honourable Dr. B. R. Ambedkar : I
do not think any reply is called fur, but I would like.
Sir, with your permission to move one amendment myself. I move :
"That
with reference to amendment No. 1723 of the List of
Amendments, in clause (3) of article 97, for the words '
revenues of India ' the
words ' Consolidated Fund of
India ' be substituted."
Shri
H.
V. Kamath : The words at the end of the clause have been needlessly
repeated.
The
Honourable Dr. B. R. Ambedkar: I
do not think so.
Mr.
President: I
shall now put Dr. Ambedkar's amendment.
The question is:
"That
with reference to amendment No. 1723 of the List of Amendments, in clause (3) of article
97, for the words ' revenues of India ' the words '
Consolidated Fund of India ' be substituted."
The
amendment was adopted.
Article 97, as amended, was added to the Constitution.
****
[f11]
The
Honourable Dr. B. R. Ambedkar :
All that I can say is that I cannot accept Mr. Jaspat Roy Kapoor's amendment. It is much better that the matter be left
elastic to be provided for by rules. With regard to Mr. Kamath's
amendment, I certainly feel drawn to it. But for the moment I cannot commit myself, but I
can assure him that this matter will be considered by the Drafting Committee.
Mr.
President
: Then I do not put Mr. Kamath's
amendment to the vote. I treat it as a drafting amendment
which the Drafting Committee will consider.
With regard to Mr. Jaspat Roy Kapoor's amendment No. 15 I would like to draw Dr. Ambedkar's attention to one point. In clause (2) of article 98 we have the words:
"
With respect to the Legislature of the Dominion of
India."
In
another place we have used the expression "
Constituent Assembly of India". I suppose Dr. Ambedkar
would like to have the same expression here also ?
The Honourable Dr. B. R. Ambedkar: Yes.
Mr.
President :
I was pointing out that here in this clause (2), the expression "
Legislature of the Dominion of India " occurs.
Perhaps, the expression ' Constituent Assembly of India ' will be better ?
The
Honourable Dr. B. R. Ambedkar:
We have now got two Assemblies so to say, the Constituent Assembly sitting as Constituent
Assembly and the Constituent Assembly sitting as legislature. We have rules on both sides.
I think therefore it would be desirable to retain the words '
Dominion of India ', so that we could adopt the rules which
are prevalent on the other side.
Shri
Jaspat Roy Kapoor:
My submission is that for the words ' Legislature of the
Dominion of India ' we may have the words ' Constituent Assembly of India
' and the words ' Legislative ' within brackets. That is how we have describing our
Constituent Assembly when it functions as Legislature.
The Honourable Dr. B.
R. Ambedkar: We have to use the language of the India
Independence Act. We have to restrict ourselves to the terminology of the Act.
Mr.
President :
If it will not create any difficulty, I do not mind it. I will put the amendment moved by
Shri Jaspat Roy Kapoor to vote.
Shri
Jaspat Roy Kapoor :
Sir, I seek leave of the House to withdraw it. I do not want it to have the fate of a defeated amendment.
'
Mr. President: If the House .grants him leave to withdraw his amendment, it may be
withdrawn.
[The amendment wax, by leave of the Assembly, withdrawn. Article 98 wax added to the Constitution.]
****
[f12]
Mr. President :
We have notice of an amendment to insert a new article by Dr. Ambedkar. '
The Honourable Dr. B. R. Ambedkar: I move:
"
That after article 98, the following new article he inserted :—-( Regulation by law of
procedure in Parliament in relations to financial business).
'
98-A. Parliament may. for the purpose of the timely completion of the financial
business, regular by law the procedure of, and the conduct of business in, each House of Parliament in relation to any financial matter or to any Bill for appropriation of moneys out of the Consolidated Fund of India ' and, if and in
so far as the provision of any law so made is in consist
with any rule made by a House of Parliament under the last
preceding article or with
any rule or standing order having effect in relation to Parliament under clause (2) of that article, such
provision shall prevail.'
"
Mr. President : As no
Member desires to speak on this amendment, I shall put the motion to vote.
The
motion was adopted.
Article
98-A was added to the Constitution.
****
[f13]
Mr. President : ...Dr. Ambedkar may move the
next amendment, No. 2464.
The
Honourable Dr. B. R. Ambedkar : Sir, I move :
"
That in clause (4) of article 173, after the words ' deemed
to have been passed ' the
words by ' both Houses in the form in which it was passed '
be inserted."
[The
amendment of Dr. Ambedkar was accepted. ]
Article
173, as amended, was added to the Constitution.
[f14]
Mr.
President : Dr. Ambedkar, there are two
amendments in your name Nos. 69 and 70 of 'List 1. These are only to bring this article into line with the provisions which we have already adopted.
The
Honourable Dr. B. R. Ambedkar
: Sir, I move :
" That for sub-clause (c)
and (d) of clause (1) of article 174, the following be
substituted:
(c)
the custody of the Consolidated Fund or the Contingency fund of the State, the payment of moneys into or
the withdrawal of moneys from any such fund:
'(d) the appropriation of moneys out of the Consolidated Fund
of the State'."
and
also-—
" That in sub-clause (e)
and (f) of clause (1) of article
174, for the words ' revenue of the State ' the words ' Consolidated Fund of the State '
be .substituted. "
[f15]
Mr.
President :
There are no other amendments to this article. I shall now put it to vote.
Shri
H. V. Kamath :
Does not Dr. Ambedkar want to say anything in the matter ?
The
Honourable Dr. B. R. Ambedkar : All I can say is
that I shall look into the matter when we take up the revision of the Constitution.
[Dr.
ambedkkar amendments were adopted.]
****
[f16]
Shri H. V. Kamath : As Dr. Ambedkar has promised to look into the matter, I will leave it to his
wisdom. He might exercise it at a later stage.
Mr. President : Both
the amendments ?
The
Honourable Dr. B. R. Ambedkar:
There is only one amendment.
Shri
H.
V. Kamath : May
I ask which one he promised to look into ? Perhaps he will
make it clear.
The
Honourable Dr. B. R. Ambedkar :
Amendment No. 2466.
Mr.
President :
Very well, then, I will not put them to vote.
Article
174, as amended, was added to the Constitution.
****
[f17]
The Honourable Dr. B. R. Ambedkar
: I
want article 175 to beheld over.
Shri
T. T. Krishnamachari :
I suggest articles 175 and 176 may be held over as they affect some problems which the
Drafting Committee are still considering. Article 177 may
be taken.
Mr.
President :
Then we shall take up article 177.
[f18]
The
Honourable Dr. B. R. Ambedkar :
Sir, I move :
"That in sub-clauses (a) and (h) of clause (2) of article 177, for the words ' revenues of the State ' the
words ' Consolidated Fund of
the State ' .he substituted."
I
move:
"
That in clause (3) of article 177, for the words ' revenues
of each State ', the words ' Consolidated Fund of each
State ' he substituted."
Sir,
I also move :
"
That in sub-clause (b) of clause (3) of article 177, for
the word ' emoluments ' the word ' salaries ' be
substituted. "
[Dr.
Ambedkar's all amendments were carried.]
[f19]
The
Honourable Dr. B. R. Ambedkar : Sir, I move :
"
That in clause (1) of article 17S. for the words ' revenues
of a State ', the words ' Consolidated Fund of a State ' be substituted."
(Amendment
No. 2490 was not moved).
Mr.
President :
The question is :
''
That in clause (1) of article 178, for the words ' revenues of a State ', the words '
Consolidated Fund of a State ' be substituted."
The
amendment was adopted.
Mr.
President :
The question is :
"
That article 178, as amended, stand part of the Constitution."
The
motion was adopted.
Article
178, as amended, was added to the Constitution.
[f20]
The Honourable Dr. B. R. Ambedkar :
Sir, I move:
"
That for article 179, the following be substituted :—( Appropriation Bills).
'179.
(1) As soon as may be after the grants under the last preceding article have been made by
the Assembly there shall be introduced a Bill to provide for the
appropriation out of the Consolidated Fund of the State all money required to meet—
(a)
the grants .so made by the Assembly, and
(b)
the expenditure charged on the Consolidated Fund of the State but not exceeding in any
case the amount shown in the statement previously laid before the
House or Houses.
(2)
No amendment shall be proposed to any such Bill in the House or either House of the
Legislature of the State which will have the effect of varying the amount or altering the
destination of any grant so made or of varying the amount
of any expenditure charged on the Consolidated Fund of the State, and the decision of the
person presiding as to the amendments which are admissible under this clause shall be
final.
(3)
Subject to the provisions of the next two succeeding
articles no money shall be withdrawn from the Consolidated Fund of the State except under
appropriation made by law passed in accordance with the provisions of this article'."
Mr.
President :
There is no other amendment to this article.
[The
motion was adopted. Article 179, ax amended, wax added to the Constitution. ]
****
[f21]
The
Honourable Dr. B. R. Ambedkar :
Sir I move :
"
That for article 180, the following article be substituted :—-( Supplementary additional or excess grants).
‘180
(1) The Governor shall—
(a)
if the amount authorised by any law made in accordance with
the provisions of article
179 of this Constitution to be expended for a particular
service for the current financial year is found to be insufficient for the purposes of
that year or when a need has arisen during the current financial year for supplementary or
additional expenditure upon some new service not contemplated in the annual financial
statement for that year, or
(b)
if any money has been spent on any service during a
financial year in excess of the amount granted for that service and for that year, cause
to he laid before the House or the Houses of
the Legislature of the State another statement showing the estimated amount of that
expenditure or cause to be presented to the Legislative Assembly
of the State a demand for such excess, as the case may be.
(2)
The provisions of the last three preceding articles shall have effect in relation to any
such statement and expenditure or demand and also to any law to be, made authorising the
appropriation of moneys out of the Consolidated Fund of the
State to meet such expenditure or the grant in respect of such demand as they have effect
in relation to the annual financial statement and the expenditure mentioned therein or to
a demand for a grant and the law to he made for the authorisation of appropriation of
moneys out of the consolidated Fund of the State to meet such expenditure or grant. ' "
Article
180, as amended, was added to the constitution
Amendment
was adopted
[f22]
The
Honourable Dr. B. R. Ambedkar :
Sir, I move :
" That for article 181, the following article be
substituted : (Votes on account,
votes on credit & exceptional grants).
181.
(1) Notwithstanding anything contained in the foregoing provisions of this Chapter, the
Legislative Assembly of a state shall have power.
(a) to make any grant in advance in respect of the estimated
expenditure for a part of any financial year pending the completion
of the procedure prescribed in article 178 of this
Constitution for the voting of such grant and the passing of the law in accordance with
the provisions of article 179 of this constitution in relation
to that expenditure;
(b) to make a grant for meeting an unexpected demand upon the
resources of the State when on account of the magnitude or
the indefinite character of the service the demand cannot he stated with the details
ordinarily given in an annual financial statement;
(c) to make an exceptional grant which forms no part of the
current service of any financial year :
and
the Legislature of the state shall have power to authorise by
law the withdrawal of moneys
from the Consolidated Fund of the State for the purposes for which the said grants are
made.
(2)
The provisions of articles 178 and 179 of this Constitution shall have effect in relation
to the making of any grant under clause (1) of this article
and to any law to be made under that clause as they have effect in relation to the making
of a grant with regard to any expenditure mentioned in the annual financial statement and
the law to be made for the authorisation of appropriation
of moneys out of the Consolidated Fund of the State to meet
such expenditure.' "
[Motion
was adopted. Article 181 as amended, was added to the Constitution.]
[f23]
Mr. President :
The question is :
"
That article 182 form part of the constitution."
The
Honourable Dr. B. R. Ambedkar :
With your permission. Sir. I seek to move a small amendment.
"
That in article 182, for the words ' revenues of the State ', the words ' Consolidated
fund of the State ' be substituted. "
Mr.
President :
There is no other, amendment.
****
[The
amendment was adopted. Article 182, as amended wax added to
the Constitution.]
[f24]
Mr.
President :
Does anyone else wish to say anything ?
The
Honourable Dr. B. R. Ambedkar :
I do not accept this amendment. (of Mr. Sidhwa)
Mr.
President :
The question is :
"
That in clause (1) of article 183, the word ' shall ' be substituted for the word ' may '
and the following be added at the end :—-'
within
6 months from the date of the first session of the assembly. '
The
amendment of Mr. R. K. Sidhva
was negatived.
Article
183 was added to the Constitution.
****
[f25]
Mr.
President:
There is a new article 183-A proposed by Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar :
Sir, I beg to move :
"
That after article 183, the following new article he
inserted :—( Regulation by
law of procedure in the Legislature of the State in relation to financial business).
'183-A.
The Legislature of a State may, for the purpose of the timely completion of the financial
business, regulate by law the procedure
of, and the conduct of business in, the House or Houses of the Legislature of the
State in relation to any financial matter or to any Bill
for the appropriation of moneys
out of the Consolidated Fund of the State, and, if in so far as the provision of any law
so made is consistent with any rule made by the House or either House of the Legislature
of the State under the last preceding article or with any rule or standing order having
effect in relation to the Legislature of the state under clause (2) of that article, such
provision shall prevail.' "
Mr.
President :
Does anyone wish to say
anything ? The question is :
"
That new article 183-A be
added to the constitution."
The
motion was adopted.
Article
183-A, was added to the Constitution.
****
****
[f26]
Mr. President : I
have not seen any amendment.
Prof. Shibban Lal Saksena : I gave notice of it this morning. I beg to move......
The
Honourable Dr. B. R. Ambedkar
(Bombay: General) : We have
not got copies of his amendment.
Shri
L. Krishnaswami Bharathi
(Madras : General): We
cannot follow what he is moving.
Mr.
President :
He gave notice of his amendment a few minutes before we actually sat. But I am told it is
more or less word for word the same as No. 2741.
[f27]
Prof.
Shibban Lal Saksena : Sir, I feel that articles of this fundamental importance
should not go unnoticed in this House merely because certain amendments are not moved by
Members who gave notice of them. The Honourable Dr. B. R. Ambedkar : I would like to
raise one or two points about this. This seems to be a rather important matter. The first
tiling I want to know is whether this is an amendment or an
amendment to an amendment. If it is an amendment to an amendment, it cannot be moved
unless the main amendment is moved.
Mr.
President :
It is an amendment to amendment No. 2743 which has been moved by Mr. Naziruddin Ahmad. The
Honourable Member in his notice says that his amendment is an amendment to Nos. 2741,2742, 2743,2744 or 2745.
The
Honourable Dr. B. R. Ambedkar : If it is to be taken as an amendment to No. 2743, then
obviously, as this goes far beyond the scope of 2743, it cannot be moved unless the Member
satisfies you that he is not substantially changing the original amendment. As it is, it
is a pure reproduction of the amendment which stands in the names of Messrs. Santhanam, Ananthasayanam Ayyangar and others.
Following
amendments moved by Mr. T. T.
Krishnamachari were adopted.
"
That in clause (2) of article 217, after the word and figure '
Part I ' the words and figures ' or Part III ' be inserted. "
"
That in clause (3) of article 217, after the word and figure ' Part I ' the words and figures " or Part III ' be
inserted. "
Article
217, as amended, was added to the Constitution.
****
[f28]
The Honourable Dr. B. R. Ambedkar :
I wish that article 224 and 225 be held over.
Mr.
President : Article 224 and 225 are held over.
The Honourable Dr. B. R. Ambedkar : I formally move amendment No. 2775.
Then
I move an amendment to this.
Sir
I move:
"
That for amendment No. 2775 of the List of Amendments, the following be substituted:—
"
That article 226 be renumbered as clause (1) of article 226, and
(a)
at the end of the said clause as so renumbered the words ' while the resolution remains in
force ' be added : and
(b)
after clause (1) of article 226, as so renumbered, the following clauses be added:—-
(2)
A resolution passed under clause (1) of this article shall remain in force for such period
not exceeding one year as may be specified therein :
Provided
that if and so often as a resolution approving the continuance in force of any such
resolution is passed in the manner provided in clause (1) of this article, such resolution
shall continue in force for a further period of one year from the date on which under this
clause it would otherwise have ceased to be in force.
(3)
A law made by Parliament which Parliament would not but for the passing of a resolution
under clause (1) of this article have been competent to make shall
to the extent of the incompetency cease to have effect on the expiration of a period of
six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of
the said period'."
****
[f29]
Mr.
President :
Before I put the amendment to the vote, do you wish to say anything. Dr. Ambedkar ?
The
Honourable Dr. B. R. Ambedkar : Much has already been said. Unless you desire me to speak, I
would rather not say anything.
Mr.
President : That is your choice.
[Article 226, as amended by Dr. Ambedkar's amendment was adopted and added to the
Constitution.]
****
****
[f30]
The Honourable dr. B. R. Ambedkar
: Sir, I move :
"
That with reference to amendments Nos. 27KI and 2783 of the List of Amendments, for clause (1) of article 229, the following clause be substituted :—-
'(
I ) If it appears to the Legislatures of two or more States
to he desirable that any of the matters with respect to
which Parliament has no power to make laws for the States except as provided in article 226 and 227 of this Constitution should be regulated in
such States by Parliament by law, and resolutions to that effect are passed by the House
or. where there are two Houses, by both the Houses of the Legislature
of each of the States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly and any Act so passed shall apply to
such States and to any other State by which it is adopted afterwards by resolution passed
in that behalf by the House or, where there are two Houses,
by each of the Houses of the Legislature of that State.' "
I
would like to explain this amendment in a few brief sentences. The original article as it
stood said: " If it
appears to the Legislature or Legislatures of one or more States to be desirable,
etc." The new amendment said " if it appears to
the Legislatures of two or more States to be desirable etc." Under the new amendment
it would be open to invoke the aid of Parliament to make a law only if two or more States
join, and sent a resolution. The other changes in sub-clause (1) of article 229 are merely
consequential to this principal amendment, namely, that the power can be invoked only if
two or more States desire, but not by a single State.
****
[f31]
The
Honourable Dr. B. R. Ambedkar :
Sir, I quite appreciate the point raised by my Honourable
Friend Mr. Santhanam; but I think he has not carefully read
sub-clause (2). The important words are : ' in like manner ', so that if
the State legislatures in whose interest this legislation is passed in like manner, that
is to say by resolution, agree that such legislation be amended or repealed, Parliament
would be bound to do so.
The Honourable Shri K. Santhanam :
" May be amended ".
The
Honourable Dr. B. R. Ambedkar :
' May ' means shall. There is no difficulty at all.
[Dr.
Ambedkar's amendment was
adopted. Article 229as amended, was
added to the Constitution. ]
[f32]
The Honourable Dr. B. R. Ambedkar :
Sir, I move :
"
That in article. 230, for the words ' for any State or part thereof ',
the words ' for the whole or
any part of the territory of India ' he substituted."
[The
amendment was adopted without further discussion. Article
230, as amended, wax added to
the Constitution.]
[f33]
The
Honourable Dr. B. R. Ambedkar :
Sir, I move :
"
That with reference to amendment No. 2788 of
the List of amendments, in clause (2) of article 231.
after the word and figure ' Part I ' the words and figures
' or Part III ' be inserted."
****
[f34]
The
Honourable Dr. B. R. Ambedkar :
Sir, I agree that Mr. Thanu Pillars
point requires explanation. Now the explanation is this. I am sure he will agree that the
rule regarding repugnancy which is mentioned in article 231 must be observed so far as future laws made by Parliament
are concerned. He will see that the wording in article 231 is ' whether passed before or after '. Surely with regard to laws made by Parliament alter the commencement of this Constitution, the rule of
repugnancy must have universal application with regard to laws
made both by the States in Part I and by the States mentioned in Part III. With regard to the question
of repugnancy as to the laws made before the passing of this Constitution, the position is
this. As I have said so often in this House, it is our desire and I am sure the desire of
the House that all articles in the Constitution should be made generally applicable to all
States without making any specific differentiation between Stales in Part I and Part III.
It is no good that whenever you pass an article you should have added to that article a
proviso making some kind of saving in favour of States in Part III, although there is no
doubt about it that some savings will have to be made with
regard to laws made by States in Part III. That is proposed to be done, as I said, in a
new Part or a new Schedule where the reservation in respect of States in Part III will be
enacted, so that so far as laws made before the Constitution comes into existence are
concerned, they would be saved by some provision enacted in that special form or special
Schedule. I should like to add to that one more point viz., that while it is proposed to make reservations in that
special part in favour of Part
III States, nonetheless that reservation could not be absolute because the reservations
made therein, at any rate some provisions in that special
part, will be governed by article 307 which gives the President the power to make
adaptations. Now that adaptation will apply both to States in Part I as well as to States in
Part III. Therefore so far as regards laws made by Parliament or the Legislatures of
States in Part III before the commencement, they will in the first instance be saved from
the operation of article 231 but they will also be subject to the provisions of article
307 dealing with adaptation.
[Dr.
Ambedkar's amendment, as mentioned earlier was accepted.
Article 231, as amended, was added to the Constitution.]
[f35]
Mr. President :
We take up article 232.
The
Honourable Dr. B. R. Ambedkar :
Sir, I beg to move :
"
That the heading to article 232 ' Restriction on
Legislative Powers ' be omitted."
With
your permission I move my new amendment :
"
(i) That after the word and figure ' Part I ' the words and
figures ' or Part III ' be inserted; and
(ii)
after clause .(a) of article 232. the following clause be
inserted :— '
(aa)
where the recommendation required was that of the Ruler, either by the Ruler or by the
President'."
Now
Sir, I have come to understand that there is some sentimental objection to the use of the
word ' ruler '. I am prepared to yield to that sentiment and what I therefore propose is
that the House should accept this amendment for the moment and leave the matter to the
Drafting Committee to find abetter word to replace the word
' ruler '. Otherwise the whole of the article would have to
be unnecessarily held over for no other reason except that we cannot find at the moment a
better word to substitute for the word ' ruler '.
[An
the above amendments of Dr. Ambedkar were adopted. Article 232, as amended, was added to
the Constitution.]
Mr.
President :
We take up No. 234.
[f36]
The
Honourable Dr. B. R. Ambedkar :
Sir, I move :
That
the following new clause be added to article 234 :—
(3)
Where by virtue of any direction given to a State as to the construction or maintenance of
any means of communication under the last pretending clause of this article costs have
been incurred in excess of those which would have been incurred in the discharge of the normal duties of
the State if such direction had not been given, there shall be paid by the Government of
India to the State such sum as may be agreed or, in default of agreement, as may be
determined by an arbitrator appointed by the Chief Justice of India in respect of the
extra costs so incurred by the State.
[The
amendment was adopted. Article 234, as amended was added to the Constitution.]
[f37] The Honourable Dr. B. R. Ambedkar: Sir, I formally move No. 2807:
"
That in the proviso to article 238, for the words ' under
the terms of any agreement entered into in that behalf by
such State with the Union' the words ' under the terms of
any instrument or agreement entered into in that behalf by such State with the Government
of the Dominion of India or the Government of India or of
any law made by Parliament under article 2 of this Constitution ' be substituted."
I
move further:
"(1)
That with reference to amendment No. 2807 of the List of Amendments, in clause (2) of
article 238, after the words ' by law ' the words ' made by Parliament ' be added.
(2)
That with reference to amendment No. 2807 of the List of Amendments, the proviso to
article 238 be deleted."
The
amendment was adopted.
Article
238, as amended, was added to the Constitution.
[f38]
The
Honourable Dr. B. R. Ambedkar :
Sir, I move :
" That in article 239, before the word ' State ' where it
occurs for the second time in line 29, the word ' other ' be inserted. "
The
amendment was adopted.
Article
239, as amended, was added to the Constitution.
[f39]
The
Honourable Dr. B. R. Ambedkar :
Sir, I move :
"
That for clause (1) of article 240, the following new clauses be substituted :—
'(1)
If the President receives such a complaint as aforesaid, he
shall, unless he is of opinion that the issues involved are
not sufficient importance to warrant such action, appoint a Commission to investigate in accordance with such
instructions as he may give to them, and to report to him on the matters to which the
complaint relates, or that of those matters as he may refer to them.
(1a)
The Commission shall consist of such persons having special knowledge and experience in
irrigation, engineering, administration, finance or law as the President may deem
necessary for the purposes of such investigation'."
[The
amendment was adopted. Article 240
as amended, was added to the Constitution.]
****
[f40]
The Honourable Dr. B. R. Ambedkar :
Sir, I move :
"
That for amendment No.23, the following amendment be substituted
:—
"
That after the new article 112-A, the following article be
inserted :---( Conference on the
Supreme Court of Appellate jurisdiction with regard to criminal matters).
112-B
Parliament may by law confer on the Supreme Court power to entertain and hear appeals from
any Judgement final order or sentence of a High Court in the territory of India in the exercise of its criminal Jurisdiction
subject to such conditions and limitations as may be specified in such law.
****
[f41]
Mr.
President : Dr.
Ambedkar will now move his amendment.
The
Honourable Dr. B. R. Ambedkar
(Bombay : General) : Sir, I
move:
" That with reference to amendments Nos. 23 and 24 of List I (Fifth Week) for the new article I 11-A, the following be substituted :—( Appellate jurisdiction of Supreme Court with regard to criminal matters).
111-A
(1) The Supreme Court shall have power to entertain and
hear appeals from any judgement, final
order or sentence in a criminal proceeding of a High Court in the territory of India—
(a)
if the High Court has on appeal reversed the order of
acquittal of an accused person and sentenced him to death; or
(b)
if the High Court has withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial convicted the accused person and
sentenced him to death; or
(c)
if the High Court certifies that the case is a fit one for appeal to the Supreme Court:
Provided
that an appeal under sub-clause (c) of this clause shall lie subject to such rules as may
from time to time be made by the Supreme Court and to-such
conditions as the High Court may establish or require.
(2)
Parliament may by law confer on the
Supreme Court any further powers to entertain and hear appeals from any judgement, final
order or sentence in a criminal proceeding of a High Court in the territory of India
subject to such conditions and limitations as may he specified in such law."
I
do not wish to say anything at this stage but I shall reserve my
remarks towards the end after hearing the course of debate on my new amendment.
****
[f42]
The
Honourable Dr. B. R. Ambedkar
: Mr. President, Sir, I rise to
make just a few observations in order to give the House the correct
idea of what is proposed to he done by the introduction of this new article 111-A. The first thing which I should make
clear is that it is not the intention of article 111-A to confer general
criminal appellate jurisdiction upon the Supreme Court. The
jurisdiction sought to he conferred is of a very limited
character.
In showing the necessity why it is desirable in my judgement to confer appellate criminal jurisdiction upon the Supreme Court as specified in the sub-clauses of article 111-A, I propose to separate sub-clauses (a) and (b) from sub-clause (c) because they stand on a different looting. As the House knows, (a) and (b) confine the appellate jurisdiction of the Supreme Court only to those cases where there has been a sentence of death : in no other case the Supreme Court is to have criminal appellate jurisdiction. That is the first point that has to be borne in mind.
I
shall state briefly why it is necessary to confer upon the Supreme Court this limited
appellate jurisdiction in cases where there has been a sentence of death passed upon an
accused person. The House should note that so far as our criminal jurisprudence, as it is
enshrined in the Criminal Procedure Code, is concerned, there is one general principle
which has been accepted without question and that principle is this that where a man has
been condemned to death he should have at least one right
Of appeal, if not more.
Mr.
President :
May I just point out one thing? Your amendment does not cover the case of a person whose
sentence has been enhanced to a sentence of death.
The
Honourable Dr. K. R. Ambedkar : We do not propose to give such a thing. That is the point.
With regard to enhancement of the
sentence we do not propose to confer criminal jurisdiction of an appellate nature on the
Supreme Court. We do it with open eyes and I think everybody ought to know it. That is not the intention. It must be
generally accepted that where a man has been condemned to
death lie should have at least one right of appeal.
Starting with that premise and examining the provisions of the Criminal Procedure Code it
will be found that there are three cases where this principle is, so to say, violated or
not carried into effect. The first case is the case where, for instance, the District
Judge acting as a Sessions Judge acquits an accused person; the Government which has been
invested with a right of appeal against the acquittal appeals to the High Court, and the
High Court in its appellate jurisdiction condemns the man to death. In a case like this no
appeal is provided. That is one exception to the premise.
The
second case is the case of the Sessions Judge in the High Courts of Bombay, Calcutta and
Madras, where sitting in a Sessions Court he acquits a criminal; then the government takes
an appeal to the High Court on its appellate side and the appellate side on hearing the
appeal condemns the man to death. There again there is no appeal. Then there is the third case, which is worse, namely, that under section 526 of
the Criminal Procedure Code a High Court, in exercising of the powers conferred upon it by
that section, withdraws a case to itself and passes a sentence of death. There again there
is no appeal.
Mr.
Naziruddin Ahmad :
There is a right of appeal in such cases.
The
Honourable Dr. B. R. Ambedkar :
No. No appeal from the High Court.
Mr.
Naziruddin Ahmad: Under section 411-A of the Criminal Procedure Code.
The
Honourable Dr. B. R. Ambedkar :
Section 411-A applies only to the High Courts of Calcutta, Bombay
and Madras. Even there it does not apply to all cases or to cases where such High Courts
have acted under section 506. Section 411-A is confined to appeals from the judgement of
High Courts sitting on the original side, in sessions. Therefore, Sir ......[f43]
Pandit
Lakshmi Kanta
Maitra: Section 526 generally refers to transfer of cases.
The
Honourable Dr. B. R. Ambedkar :
When a case is transferred and tried by the High Court, there is no right of appeal. It has extraordinary jurisdiction. Therefore these are three
flagrant cases where the general principles that a man who has been condemned to death
ought to have at least one appeal is not observed. I think, having regard to the
enlightened conscience of the modern world and of the Indian people, such a provision ought to be made. The
object of sub-clauses (a) and (b) therefore is to provide a
right of appeal to a person who has been acquitted in the first instance and has been
condemned to death finally by the High Court. I do not think that on grounds of conscience
or of humanity there would be anybody who would raise objection to the provisions
contained in sub clauses (a) and (b).
Now
I come to sub-clause (c). With regard to this the House
will remember that it has today an operative force under
the Criminal Procedure Code, section 411, so far as the High Courts of Calcutta, Madras
and Bombay are concerned. This right of appeal to the Privy
Council on a certificate from the High Court that it is a fit case was conferred by the
Legislative Assembly in the year 1943, and very
deliberately. We have therefore before us two questions
with regard to the provision contained in section 411 of the criminal Procedure Code.
There are two courses open to this House : either to take
away this provision altogether or to extend this provision to all the High Courts. It
seems to me that if you take away the provisions contained in section 411 which permit an
appeal on a certificate from the High Court, you will be deliberately taking away an
existing right which has been exercised and enjoyed by people, at any rate, in three
different provinces. That seems to me an unnatural proceeding—to take away a judicial
right which has already become, so to say, a vested -right.
The only alternative course therefore is to enlarge the provisions in such a manner that
it will apply to all the High Courts. And the course that has been adopted in my amendment
is the second course, namely, to extend it to all the High Courts. My Friends who are
agitated that this might open the flood-gates of criminal appeals to the Supreme Courts
have, I think, forgotten two important considerations. One important consideration is that
the power of hearing appeals which is proposed to be conferred on the Supreme Court under
sub-clauses (a) and (b) of clause (1) of the new article
may vanish any moment that the legislature abolishes the death penalty. There will be no
such necessity left for appeals to the Supreme Court if the legislature, thinking of what
is being said in other parts of the world with regard to death
penalty, and taking into consideration the traditions of this country, abolishes the death
penalty; in that case sub-clauses (a) and (b) would ultimately fall into desuetude and the
work of the Supreme Court so far as criminal side is concerned will diminish if not
vanish.
With
regard to sub-clause (c) it will be noticed that it has
been confined in very rigid limits by the proviso which goes along with it, namely " Provided that an appeal under sub-clause (c) of this
clause shall lie subject to such rules as may from time to time be made by the Supreme
Court and to such conditions as the High Court may establish or require." Therefore,
the certificate is not going to be an open process available merely for the asking. It
will be subject at both ends to the conditions and limitations laid down by the High Court
and the rules made by the Supreme Court. Therefore it will be realised that sub-clause (c)
is a very rigid provision. It is not flexible and not as wide as people may think.
Pandit
Lakshmi Kanta
Maitra : Modified by the
proviso.
The
Honourable Dr. B.R. Ambedkar :
Yes, us modified by the proviso.
Now,
I come to clause (2) of my amendment.
There you have got the general power given to Parliament to enlarge the criminal
jurisdiction of the Supreme Court beyond the three cases laid down in my amendment. There
was a point of view that the three cases mentioned in
clause (1) of my amendment ought to he enough and that
there ought not to he a door kept open for Parliament for enlarging the criminal
jurisdiction of the Supreme Court and that sub-clauses (a),
(h) and (c) ought to he the
final limit of criminal jurisdiction of the High Court.
Well, the only answer I could give is this : It is difficult to imagine what
circumstances may arise in future. I think it would be better
to believe it if a man said that there would he no circumstances arising at all requiring
Parliament to confer some kind of criminal appellate jurisdiction
upon the Supreme Court. Supposing such a contingency did arise and if the provisions of
clause (2) of my new article were not there, what would be the position ? The position would be that the Constitution would have to be amended
by the procedure we are proposing to lay down in a subsequent part of this Constitution.
The question therefore is this
: should we made it as hard as that, that the Parliament
should also not have the power unless the Constitution is
amended, or should we leave the position flexible by enabling
Parliament to enact such law, leave the time, the
circumstances and the choice to the Parliament of the day ?
The
Honourable Shri K. Santhanain
(Madras : General) May I point out that under article 114 Parliament will still
have the power to invest the Supreme Court with jurisdiction.
The
Honourable Dr. B. R. Ambedkar :
I am afraid 114 does not deal with that matter. I have not
got the copy with me; otherwise I would have replied. It is only with regard to the Union List.
The
Honourable Shri K. Santhanam :
It deals with the jurisdiction of the Supreme Court in relation to matters contained in
the Union List.
The
Honourable Dr. B. R. Ambedkar
: Yes, but supposing they want to enlarge
the jurisdiction with regard, for instance, to the Concurrent List, List III, they cannot
use article 1 14.
Now, Sir, I come to some of the observations which were made by my Friend, Mr. Alladi Krishnaswami Ayyar. His observations related mostly to sub-clause (3). His first question was, what is the use of having subclause (3) if the provisions of sub-clause (3) are hedged round by the provisions contained in the proviso which goes with it, viz., rules to be made by the Supreme Court.
Pandit
Lakshmi Kanta
Maitra : It is sub-clause (c) and not sub clause (3).
The
Honourable Dr. B. R. Ambedkar : I
am sorry, it is sub-clause (c). His point is that there is no use of having sub-clause (c)
hedged as it is by the provisions laid down in the proviso. The first thing I would like
to remind my Friend, Mr. Alladi Krishnaswami
Ayyar is this, that the proviso which is attached to
sub-clause (c) is word for word the proviso attached to Section 411 of the Criminal
Procedure Code and word for word the proviso contained in article
109 of the Civil Procedure Code. My Friend, Mr. Alladi Krishnaswami
Ayyar, will remember that we have introduced in the appellate civil jurisdiction of the
Supreme Court a clause which is absolutely word for word the same as sub-clause (c) of
clause ( 1) of article 111-A. Now, I should have thought
that if there was some residue of good in sub-clause (c) of clause ( 1) of article 111, hedged as
it is with all the limitations as to the rules to be made by the Supreme Court, as a man of commonsense, I should think, that there must be some residue of good left in sub clause (c)
here, notwithstanding the limitations
contained in the proviso. My Friend also stated that there is a provision contained in
article 112 which confers upon the Supreme Court the right
to admit an appeal by special leave, which article is not limited to civil appeal but is a
general article which speaks of any cause or in alter. His
point was that if that is there, why have
sub-clause (c) ? My answer to him is again the same. If 112
defines the jurisdiction which the Supreme Court has over the High Courts, if that is
there in civil matters, why have sub clause (c) in clause (1) of Article 11 I -A ? My answer to him is this : If
we can have sub-clause (c) in civil matters, notwithstanding
the fact that we have 112, what objection can there be to
have sub-clause (c) though we have 112 ? The point to be
home in mind is this
that with regard to 112 we have left the Supreme Court with perfect freedom to lay down the conditions on which they will admit appeals. The law does
not circumscribe their jurisdiction in the matter.
Shri
Alladi Krishnaswami
Ayyar : There is
a condition in the case of civil appeals.
The
Honourable Dr. B. R. Ambedkar :
It is true. Now, I do not know how this article 112 will be interpreted by the Supreme
Court. We have left it to them to interpret it. They may
interpret it in the way in which the Privy Council has interpreted it or they may
interpret it in any manner they choose ; either they may
put a limited interpretation or they may put a wider interpretation. In case they put a
limited interpretation, then I have no doubt about it that sub-clause (c) will have some value. I therefore submit. Sir, that my amendment is such that it meets the exigencies
of the cases, satisfies the conscience of some people who object to people being hanged
without having any right of appeal. I think it is so worded that the Supreme Court will
not administratively or otherwise be overburdened with criminal appeals. I hope my Friends
will now withdraw their amendments and accept mine.
Shri
C. Subramaniam
(Madras : General) : On a
point of clarification, as to the implication of the difference of language......
The
Honourable Dr. B. R. Ambedkar :
It is too late now.
Mr.
President :
The Honourable Doctor has not shown in Ins reply why he
makes a distinction between cases in which death sentence has been passed for the first
time by the High Court in revision byway of enhancement of
sentence and cases in which death sentence is passed in reversal of a judgement of
acquittal.
The Honourable Dr. B. R. Ambedkar
: The case of an appeal
against enhancement of sentence differs from a case of an appeal against acquittal in two
respects. When the High Court enhances the sentence against an accused
person it is not convicting him for the first time. The accused already stands convicted.
In the case of an appeal against acquittal the High Court is reversing the finding of the
trial court and convicting the accused. The second point of
difference is that in the case of enhancement the proceedings are
converted into regular appeal so that in an enhancement proceedings the accused gets a
statutory right of appeal under the Criminal Procedure Code to show that not only
enhancement of sentence is not warranted but even his conviction is not justified by the
facts of the case. In enhancement cases there is already one appeal. That being so, no
further appeal is necessary. Thirdly, the amendment recognizes conviction or acquittal as
the basis for a right of appeal to the Supreme Court. It does not recognize the nature of sentence or the type of punishment as the basis for a
right of appeal.
Mr.
President :
Supposing in a case the trial court holds that it is a case of grievous hurt, although it
has resulted in death and passes a sentence of imprisonment and supposing there is an
appeal to the High Court which by way of revision holds that it is a case of murder and
not grievous hurt and gives a sentence of death. For the first time, the conviction is for
murder by the High Court and the sentence of death is also passed for the first time.
The
Honourable Dr. B. R. Ambedkar :
For the moment I am not prepared to go beyond the proposition as set out in my amendment.
If Parliament later on thinks that such a case ought to be provided, it has perfect
liberty under clause (2).
Mr.
President :
It is a different matter and is for the House to decide. For myself, I have not been able
to find the distinction.
Shri
H. V. Pataskar
(Bombay : General) : I have
moved amendment No. 25 to the original amendment No. 24 of the Honourable Dr. Ambedkar.
Mr.
President :
There is no time for that. I think you are too late now. We cannot allow it at this stage.
I have to put the various amendments now and those Honourable Members who think that their amendments are covered by the new amendment of Dr. Ambedkar, I hope, would withdraw them.
[The amendment of Dr. Ambedkar was
adopted. Other amendments were mostly
withdrawn. One was rejected. Article 111 'A as amended, was added to the Constitution.]
****
[f44]
The Honourable Dr. B. R. Ambedkar : Sir, I move :
"
That in clause (1) of article 164 for the words ' Save as provided ' the words ' Save as otherwise provided ' he substituted."
[Without
discussion Amendment was accepted. Article 164, as amended was added to the Constitution.]
****
[f45]
The
Honourable Dr. B. R. Ambedkar :
Sir, various points have been raised in the course of this
debate and I should like to deal with them one by one. If I heard my Friend Mr. Sidhva correctly he referred to article 165 dealing with the
question of the taking of the oath or making the affirmation. The point about article 165
is this that if the provisions of article 165 are not
complied with it does not cause a vacancy—the seat
does not become vacant. All that 165 says is that no person can take part in the voting or
in the proceedings of the House unless he has taken the
oath. That is all. Therefore I do not see any difficulty about it at all.
Shri
R. K. Sidhva :
Why should it go to the Election Commission ?
The Honourable Dr. B.
R. Ambedkar : I am coming to that. So far as 165 is concerned I think
he will understand the fundamental distinction between that article and article 167. In
the case of 165, there is no vacancy caused: there is only
disability of taking part in the proceedings of the House.
Now,
I come to the main amendment moved by my Honourable Friend Mr. T.
T. Krishnamachari and that
is article 167-A. Except for one point to which I shall refer immediately I think the amendment is well founded. The reason why the
decision is left with the Governor is because the general rule is that the determination of disqualification involving a vacancy of a seat is left with that
particular authority which has got the power to call upon the constituency to elect a representative to fill that seat. Although it is not so expressly stated, it is
well. understood that the question whether a seat is vacant or not by reason of any
disqualification such as those mentioned in article 167
must lie with that authority which has got the power to call upon the constituency to elect a representative to fill that seat. There is no doubt about it that in the new
Constitution it is the Governor who has been given the power to call upon a constituency
to choose a representative. That being so, the power to declare a seat vacant by reason of
disqualification must as a consequence rest with the Governor. For this reason so far as
clause (1) of article 167-A is concerned, I find no difficulty
in accepting it.
Now,
I come to clause (2). This is rather widely worded. It says
that any question regarding disqualification shall be decided by the Governor provided he
obtains the option of the Election Commission and that he
is bound to act in accordance with such option. If members
will turn to article 167, they will find that, so far as the disqualifications mentioned
in (a) to (d) are concerned, the Commission is really not
in a position to advise the Governor at all, because they are matters outside the purview of
the Election Commission. For instance, whether any
particular person holds an office of profit or whether a person is of unsound mind and has been
declared by a competent court to be so, or whether he is an
undischarged insolvent or whether he is under any acknowledgment or adherence to a foreign
power are matters which are entirely
outside the purview of the Election Commission. They therefore could not be the proper
body to advise the Governor. But when you come to sub-clause (e)
I think it is a matter which is within the purview of the Election Commission, because
under (e) disqualifications might arise by reason of any corruption or any un-professional practice that a candidate may have engaged
himself in and which may have been made a matter of disqualification by the Electoral Law.
Shri
L. Krishnaswami Rharathi :
Cannot the Election Commission make the necessary enquiries ?
The
Honourable Dr. B. R. Ambedkar:
There is no question of making any enquiry here. To ascertain whether a man is an
undischarged insolvent no enquiry is necessary. Therefore my submission is that while
clause (2) of article 167-A is right, it ought to be confined to circumstances
falling within sub-clause (e) of article 167.1 would therefore with your permission
propose to amend clause (2) thus : " Before giving any
decision on any question relating to disqualifications
arising under sub clause (e) of clause (1) of the last preceding article, the Governor
shall obtain the opinion office Election Commission and
shall act according to such opinion." ,
Mr.
President :
As I read the amendment proposed by Shri T. T. Krishnamachari, it seems to me that it does not contemplate
a case which has happened before the election or during the election. It contemplates
cases arising after the election where a man after becoming
a member of the legislature incurs certain disqualifications. These will be dealt with by the Election Commission.
The
Honourable Dr. B. R. Ambedkar : What happens is that, after filing a petition, the Commission may find a candidate guilty of certain offences
during the course of the election, after the election has
taken place and the member has taken his seat.
Mr.
President :
Is not the Election Commission entitled to deal with such cases?
The
Honourable Dr. B. R.
Ambedkar : Yes, but what happens is that a man as soon as he is elected
is entitled to take his seat on taking the oath or making
the affirmation. He does so and subsequently his rival files an election petition and he
is dislodged on the finding of the Court that he has committed offences under the Election
Act. That would also come under (e). After a man has taken
his seal.........
Mr.
President : It
seems to me that there are two kinds of disqualifications. A member may have incurred
certain disqualifications before he became a member or during the course of the election.
The election tribunal will be entitled to deal with such
cases.
The
Honourable Dr. B. R. Ambedkar
: That would depend upon what sort of procedure we lay down
at a later stage.
Mr.
President :
But a man may become subject to a disqualification after
taking his seat in the House.
The
Honourable Dr. B. R. Ambedkar :
That is what (e) provides for.
Mr.
President :
Then other disqualification may also come in. He might become unsound in mind and might be
declared as such or he might become an undischarged
insolvent.
The
Honourable Dr. B. R. Ambedkar :
Those are dealt with here. They are all about sitting members.
Shri
L. Krishnaswami Bharathi :
Please read the amendment.
The
Honourable Dr. B. R. Ambedkar:
There are two sorts of disqualifications :
disqualifications which are attached to the candidature as such, namely, that such and
such persons who are disqualified shall not stand for election. Then, after they are
chosen, certain persons shall not sit in the House if they incur the disqualifications in
167. Let us not confuse the two things.
The
Honourable Shri K. Santhanam
:
Both are covered by 167-A.
The
Honourable Dr. B. R. Ambedkar:
That may be so. Let me explain. It all depends on what kind of procedure we adopt. If we
adopt the procedure that whether a candidate is qualified for election
or not shall be treated as a preliminary issue, that will
not be a disqualification under article 167. If on the other hand we have the procedure,
which we now have, that every question relating to election, including the question
whether a candidate is a qualified candidate or not, can be taken up, then article 167
will apply. My intention as well as the intention of the Drafting Committee is to make a provision permitting the
Election Commission to dispose of certain preliminary questions so that the election issue
may be fought only on the question whether the election was properly conducted or not.
Today we have the things lumped together.
****
Mr.
President
: Then Mr. T. T. Krishnamachari's amendment.
"That
for amendment No. 2441 of the List of Amendments, the
following be substituted:—
" That after article 167, the following new article be
inserted :— (Decision on
questions as to disqualification of members).
'167-A. (1) If any question arises to whether a member of a
House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of the last
preceding article, the question shall be referred for the decision of the Governor and his
decision shall final.
(2)
Before giving any decision on any such question, the Governor shall obtain that opinion of the Election Commission and shall
act according to such opinion. "
The
amendment was adopted.
New
Article 167-A was added to the Constitution.
[Article
167-A, as amended by Dr. Ambedkar's amendment was added to the Constitution.]
****
[f46]
Mr. President
: We take up 203.
The
Honourable Dr. B. R. Ambedkar
: It is to be held over.
Shri
T. T. Krishnamachari :
203 (2) (b)—there is the question of whether the
particular sub-clause should be retained or modified. We
require some time and we might be ready with it tomorrow.
****
[f47]
Mr.
President :
There are certain new articles proposed. No. 209-A.
The
Honourable Dr. B. R. Ambedkar :
209-A is to be held over.
Mr.
President :
Mr. Shibban Lal Saksena has given notice of one.
Prof.
Shibban Lal Saksena :
That also may be held over.
****
[f48]
The
Honourable Dr. B. R. Ambedkar
(Bombay : General) : Mr.
President,
Sir,
I move :
"
That in article 203, for the marginal heading, the following be substituted :—
'
Power of superintendence over all courts by the High Court '."
I also move:
"
That in clause (2) of article 203, before the words ' The High Court may ', the words ' Without prejudice to the generality of the foregoing provisions ',be inserted."
I further move:
"
That with reference to amendment No. 2664 of the List of Amendments—
(i)
in clause (1) of article 203, after the words ' all courts'
the words ' and tribunals ' be inserted;
(ii)
in clause (2) of article 203, sub-clause (b) he omitted."
****
Amendments
were adopted.
****
[Article
203, as amended by the above
amendments was added to the Constitution.]
****
****
[f49]
The Honourable Dr. B. R. Ambedkar : Sir, I move :
"
That with reference to amendments Nos. 2975 and 2976 of the
List of amendments, inarticle270, for the words ' assets and liabilities' the words ' assets, liabilities and obligations ' be
substituted."
Now, as regards the amendment moved by Mr. Naziruddin Ahmad, may I say that he has evidently forgotten that we are using the words " Government of India " to indicate the Government that will come into existence under the new Constitution, while the " Government of the Dominion of India " is a term which is being used to indicate the Government at the present moment. Consequently, if his amendment is accepted , it would mean that the Government of India is succeeding to the liabilities, obligations and assets of the Government of india. It would make absurd reading. Therefore the words as they are there, are very appropriate and ought to be retained.
The
Honourable Shri K. Santhanam
(Madras: General): I am
afraid we are passing this article in a hurry. As it has been our attempt to bring the
Indian States into line with the provinces, we are here simply providing that the old
provinces will be continued while no such provision is made for the States.
The
Honourable Dr. B. R. Ambedkar :
What is your amendment ?
The Honourable Shri K. Santhanam : I am not moving any amendment....
****
[f50]
The Honourable Dr. B. R. Ambedkar
: Mr. President, Sir, I did not think that this article
would raise so much debate as it has in fact done, and I therefore feel it necessary to
say a few words in order to remove any misapprehension or doubts and difficulties to which reference has been made.
The
first question that is asked is, why is it necessary to have article 270 at all in the
Constitution ? The reply to that is a very simple one.
Honourable Members will remember that before the Act of 1935 the assets and liabilities
and the properties belonging to the Government of India were vested in a Corporation
called the Secretary of State-in-Council. It was the
Secretary of State-in-Council
which held all the revenues of India, the properties of India and was liable to all the
obligations that were contracted on behalf of the Government of
India. The Government of India before 1935 was a unitary Government. There was no such
thing as properties belonging to the Government of India and properties belonging to the
Provinces. They were all held by that single Corporation which was called the Secretary of
State-in-Council which was liable to be sued and had the
right to sue. The Government of India Act, 1935 made a very significant change, viz., it divided the assets and liabilities held by the Secretary
of State-in-Council on behalf of the Government of India
into two parts—assets and liabilities, which were apportioned and set apart for the
Government of India and the assets and liabilities and properties which were set apart for
the Provinces. It is true that as the Secretary of State had not completely relinquished his control over the
Government of India, the properties so divided between the Government of India on the one
hand and the different Provinces on the other were said in the Government of India Act,
Section 172 which is the relevant section, that they shall be held by His Majesty for the
Government of India and they shall also be held by His Majesty for the different
Provinces. But apart from that the
fact is this, that the
liabilities, assets and properties were divided and assigned to the different units and to
the Government of India at the Centre. Now let us understand what we are doing by the
passing of this Constitution. What we are doing by the passing of this Constitution is to abrogate and repeal the Government of India Act, 1935. As you
will see in the Schedule of Acts repealed, the Government of India Act, 1935 is mentioned.
Obviously when you are repealing the Government of India
Act which makes a provision with regard to assets and liabilities and propel tics, you
must say somewhere in this Constitution that notwithstanding the repeal of the Government of India Act, such
assets as belong to the different Provinces do belong notwithstanding the repeal of the
Government of India Act to those Provinces. Otherwise what would happen is this, that there would be no provision at all with regard to the assets and
liabilities once the Government of India Act 1935 is repealed.
In fact we are doing no more than what we
commonly do when we repeal an Act that notwithstanding the repeal of certain Acts, the
acts done will remain therein. It is the same sort of thing. What this article 270 practically says
is that notwithstanding the repeal of the Government of India Act, 1935, the assets and liabilities of the different units and the Central Government will continue
as before. In other words they will be the successor of the former Government of India and
the former Provinces as existed and constituted by the Act
of 1935. I hope the House will now understand why it is necessary to have this clause.
Now
I come to the other question which has been raised that
this article 270does not make any reference to I the liabilities and assets and properties of the Indian
States. Now, there are two matters to be distinguished.
First, we must distinguish the case of Indian States which are going to be incorporated
into the Constitution as integral entities without any kind of modification with regard to
their territory or any other matter. For instance, take Mysore, which is an independent
State today and will come into the Constitution as an integral State without perhaps any
kind of modifications. The other case relates to States which have been merged together
with neighbouring Indian Provinces; and the third case
relates to those States that are united together to form a larger union but have not been
merged in any of the Indian Provinces. Now in regard to a State like Mysore there is no
doubt that the Constitution of Mysore will contain a similar provision with regard to
article 270 that the assets and liabilities and properties of the existing Government of Mysore shall continue to be
the properties, assets and liabilities of the new Government. Therefore it is not
necessary to make any provision for a case of the kind in article 270. Similarly about States which have
been united together and integrated, their Covenant will undoubtedly provide for a case
which is contemplated in article 270. Their Covenant may well state that the assets and
liabilities of the various States which have joined together to form a new State will
continue to be the assets and liabilities of the new integrated State which has come into
being by the joining together of the various States.
Then
we come to the last case of States which have been merged
with the Provinces. With regard to that I see no difficulty
whatever about article 270. Take a concrete case. If a State has been merged in an Indian
Province obviously there must have been some agreement between that State which has been merged in the neighbouring Province and that neighbouring
Province as to how the assets and liabilities of that merged State are to be carried
over,— whether they are to vanish, whether the merged State is to take its own
obligations, or whether the obligations are to be taken by the Indian Province in which
the State is merged. In any case what the article says is that from the commencement of
this Constitution—these words are important and I will for the moment take it that it
will commence on 26th January—any agreement arrived at before that date between the Indian Province and the State that has merged into it will
be the liability of the Province at the commencement of the
Constitution, If for instance, no agreement has been reached before the
commencement of the Constitution, then the Central
Government as . well as the Provincial Governments would be
perfectly free to create any new obligations upon
themselves as between them and the unit or merged State or any other unit that you may
conceive of. Therefore, with regard to any transaction that is to take place after the
commencement of the Constitution it will be regulated by the agreement which the Provinces
will be perfectly free under the Constitution to make, and we need therefore make no
provision at all. With regard to the other class of States, as I said, in a case like
Mysore it will be independent to make its own arrangement. When that arrangement is made
we shall undoubtedly incorporate that in the special part which we propose to enact
dealing with the special provisions relating to States in Part III. Therefore, so far as
article 270 is concerned, I think there can be no difficulty in regard to it and I think
it should be passed as it stands.
Shri
Mahavir
Tyagi : May I know if
the agreement mentioned here relates only to financial agreement or does it relate to
territorial agreement also ?
The
Honourable Dr. B. R. Ambedkar:
It speaks of assets and liabilities and obligations. If, for instance, a Province has
admitted a certain State and has undertaken an obligation to pay the Ruler a certain
pension .that will be an obligation within the meaning of
article 270. The transfer of territory will be governed by other provisions.
Shri
H.
V. Kamath : May I know why the word "
rights " mentioned in the marginal sub-head is omitted
in the article ?
The
Honourable Dr. B. R. Ambedkar
:
The Drafting Committee will look into it.
Shri
B. Das :
With regard to properties possessed by India in foreign countries, specially in the U. K. may I know why those are
not included among properties in article 270 ?
The
Honourable Dr. B. R. Ambedkar:
I think that property is subject to partition between India and Pakistan, e.g., the India Office Library, etc., I understand
that is being discussed.
Shri
B. Das :
What about the Sterling Balances ?
The
Honourable Dr. B. R. Ambedkar:
My Honourable Friend knows more about it than I do.
[Article
270, as amended by the only amendment of Dr. Ambedkar, was
added to the Constitution.]
[f51]
The Honourable Dr. B. R. Ambedkar :
Sir, I move :
"
That in article 271—
(i)
the words ' for the purposes of the Government of that
State ', in the two places where they occur, be omitted;
(ii)
the words ' for the purposes of the Government of India ',
in the two places where they occur, be omitted."
[Amendment
was carried. Article 271, as amended was added to the
Constitution.]
****
[f52]
The
Honourable Dr. B. R. Ambedkar :
Sir, I beg to move :
" That the following new article lie added after article 271— (All
lands, minerals & other things of value lying within territorial waters vest in the
Union.).
271-A.
All lands minerals and other things of value underlying the ocean within the territorial
waters of India shall vest in the Union and be held for the purposes of Union' "
This
is a very important article. We are going to have integrated into the territory of India
several States which are for the time being maritime States and it may be quite possible
for such States to raise the issue that anything underlying the ocean within the
territorial waters of such States will vest in them. In order to negative any such
contention being raised hereafter it is necessary to incorporate this article.
****
[f53]
Shri
H. V. Kamath
: ...Then again, the article says " All lands, minerals and other things of value
underlying the ocean within the territorial waters of India ". In Schedule I we
have defined the States and the territories of India. But nowhere in this Constitution
have we defined what the ' Indian territorial waters ' are. The Constitution is silent on
this point.
Mr.
President :
It is a well-understood expression in International Law.
The
Honourable Dr. B. R. Ambedkar :
It is unnecessary to define it separately.
****
[f54] Shri H. V. Kamath : I hope Dr. Ambedkar will
clarify the position before the House proceeds to vote on
this article.
Shri
A. Thanu Pillai (Travancore States) : Mr.
President, Sir, I hope Dr. Ambedkar will enlighten the
House as to the necessity for this provision in the form in which it is worded.
The
Honourable Dr. B. R.
Ambedkar :
May I ask what exactly I have to explain ?
****
[f55]
Shri M. Ananthasayanam Ayyangar: I
would say " all lands, minerals and other things of
value underlying the ocean within the territorial waters and the territorial waters of
India shall vest in the Union and be held for the purposes of the Union."
An
Honourable Member :
What about the air ?
Another
Honourable Member :
What about the heavens ?
The
Honourable Dr.B.R.Ambedkar:
Sir.I gave in my speech when I moved the
amendment the reasons why we thought such an article was necessary. There seems to be some
doubt raised by my Honourable Friend Mr. Pillai that this might also include the right to
fisheries. Now I should like to draw his attention to the fact that fisheries are included
in List II—entry No. 29.
Shri
A. Thanu Pillai :
My objection related to other matters as well. The
Honourable Dr. B. R. Ambedkar : I will come to that. I
am just dealing with this for the moment. Therefore this entry of fisheries being included
expressly in List No. II means that whatever jurisdiction the Central Government would get
over the territorial waters would be subject to Entry 29 in
List No. II. Therefore, fisheries would continue to be a provincial subject even within
the territorial waters of India. That I think must be quite clear to my Honourable Friend,
Mr. Pillai, now.
With
regard to the first question, the position is this. In the United States, as my Honourable
Friend, Shri Alladi Krishnaswami
Ayyar said, there has been a question as to whether the
territorial waters belong to the United States Government or whether they belong to
several States, because you know under the American Constitution, the Central Government
gets only such powers as have been expressly given to them. Therefore, in the United
States it is a moot question as yet, I think, whether the territorial waters belong to the
States or they belong to the Centre. We thought that this is such an important matter that
we ought not to leave it either to speculation or to future litigation or to future
claims, that we ought right now to settle this question, and therefore this article is introduced. Ordinarily it is always
understood that the territorial limits of a State are not confined to the actual physical
territory but extend beyond that for three miles in the sea. That is a general proposition
which has been accepted by International Law. Now the fear is—1 do not want to hide
this fact—that if certain maritime States such as, for instance, Cochin, Travancore or Cutch came into
the Indian Union, unless there was a specific provision in the Constitution such as the
one we are trying to introduce, it would be still open to them to say : " Our accession gives
jurisdiction to the Central Government over the physical territory of the original States;
but our territory which includes territorial waters is free from the jurisdiction of the
Central Government and we will still continue to exercise our jurisdiction not only on the physical territory, but also on the
territorial waters, which according to the International Law and according to our original
status before accession belong to us." We therefore want to state expressly in the
Constitution that when any maritime States join the Indian Union, the territorial waters
of that Maritime State will go to the Central Government. That kind of question shall
never be subject to any kind of dispute or adjudication.
That is the reason why we want to make this provision in article 271-A.
Shri
M. Ananthasayanam
Ayyangar : What about the
ownership of the waters themselves ?
The
Honourable Dr. B. R. Ambedkar :
What do you want to own water for ? You may then want to
own the sky above.
Shri
M. Ananthasayanam
Ayyangar: For the manufacture of salt, etc.
The
Honourable Dr. B. R. Ambedkar
: Your laws will prevail over that area. Whatever law you
make will have its operation over the area of three miles from the physical territory.
That is what is wanted and that you get by this.
Shri
Mahavir Tyagi :
Waters have not been included.
The
Honourable Dr. B. R. Ambedkar :
According to the International Law, the territory of a State not only includes its
physical territory, but also three miles beyond. Any law that you make will operate over
that area.
Shri
Mahavir
Tyagi : What about the
rest of the waters ?
The
Honourable Dr. B. R. Ambedkar:
Anything below the air you get.
Shri
Mahavir Tyagi : What about waters beyond three
miles ?
Shri
M. Ananthasayanam Ayyangar : May I ask Dr. Ambedkar if the is
not aware that water is as much a property as anything else, if not better property and
disputes over water have arisen inplenty ? To avoid
disputes between a Province and the Union, is it not desirable to include waters also in
the property of the Indian Union ?
Mr.
President :
He has answered that; he thinks it is not necessary to say that.
The
Honourable Dr. B. R. Ambedkar : Anything above the land goes with the land. If there is a
tree above the land, the tree goes with the land. Water is above the land and it goes with
the land.
An
Honourable Member : Sir..................
Mr.
President: I think we have sufficiently discussed and Dr. Ambedkar has
replied to the debate. We need have no further discussion. I will put the article to vote.
Shri
K. Hanumanthaiya
(Mysore State) : I want one clarification, Sir. As Dr.
Ambedkar says if territorial waters, that is, land three miles beyond the coast-line,
belongs to the Union, where is the necessity for this section at all ?
Mr.
President : That is the question which he has answered.
Shri
K. Hanumanthaiya: If the interpretation of Dr. Ambedkar holds good.
Mr.
President :
No more discussion about it. Dr. Ambedkar has said what he has to say. Members have to
take it.
I
shall now put the article to vote.
The
question is:
" That the following new article be added, after article
271 :—( All lands, minerals
& other things of value lying within territorial Waters vest in the Union.).
271-A.
All lands, minerals and other things of All value underlying
the ocean within the territorial waters of India shall vest in the Union and be held for the purposes of
the Union. Waters vest in
the Union.
The
motion was adopted.
Article
271 -A was added to the Constitution.
[f56]
The Honourable Dr. B. R. Ambedkar : Sir, I move :
"
That in article 272, after the word and figure ' Part I ' in the two places where they occur, the words and figures '
or Part III ' be inserted."
****
[f57]
Mr.
President :
Would you like to speak, Dr. Ambedkar ?
The
Honourable Dr. B. R. Ambedkar :
I
think Mr. Munshi has clearly explained and I do not like to
add anything to it.
The
amendment was adopted.
Article
272, as amended, was added to the Constitution.
[f58]
Mr.
President :
We take up 273. Dr. Ambedkar.
The
Honourable Dr. B. R. Ambedkar :
Sir, I beg to move :
"
That in clause (1) of article 273, after the word and
figure ' Part I ' the words and figures ' or Part III ' be
inserted.
That with reference to amendment No. 201 above, in clause (1) of
article 273, after the word ' Governor ' in the two places where it occurs, the words ' or the Ruler ' be
inserted.
That
with reference to amendment No. 201 above, in clause (2) of
article 273, for the word ' the Governor of a state ' the words ' the Governor or the
Ruler ' be substituted."
****
[f59]
The
Honourable Dr. B. R. Ambedkar :
Sir, my Honourable Friend Mr. Kamath had something to say
about the use of the word " assurances ", and I think his argument was that we were using the
word " contracts "
in one place and "
assurances " in another. "
Assurance " is a very old word in English
conveyancing; it was used and is being used to cover all kinds of transfers and therefore the word " assurance " includes
the word" contract ". So there is no difficulty if both these words are used because assurance as a transfer of
property has the significance of a contract.
Shri
H. V. Kamath :
My difficulty was about the
language. The article. starts with " all contracts " and
then we have " all such contracts and all assurances
of property ", etc.
The
Honourable Dr. B. R. Ambedkar :
If there is any difficulty about the language it will be looked into by the Drafting
Committee. I was explaining the technical difference between assurance and contract.
Then
Mr. Tyagi asked why a person should be freed of liability
if he signs a contract. I think much of the objection raised by Mr- Tyagi would fully disappear if he were made a member of the
Cabinet : I should like him to answer the question whether
any contract that he has made on behalf of the Government of India should impose a
personal liability on him. I am sure he knows the ordinary commercial procedure. A
principal appoints an agent to do certain things on his behalf. Unless the agent has acted
outside the scope of the authority conferred upon him by the principal, the agent has no
personal liability in regard to any contract that he has made for
the benefit of the principal. It is the same principle here. My Honourable Friend Mr.
Tyagi does not know that there is a well established system in the Government of India
whereby it is laid down that it is only a document or letter issued by an (officer of a certain status that binds the Government of
India; a document or letter issued by any other officer does not bind the Government of
India. We have therefore by rule specifically to say whether it is the Under-Secretary who
would have the power to bind the Government of India, or the Joint Secretary or the
Additional Secretary or the Secretary alone. Therefore I do not see why the person who is
acting merely on behalf of the Government of India as a signing agency should be fastened upon for personal
liability, because he is acting on the authority of the Government of India or within the
authority of the Government of India. If the Government of India approves of any
particular transaction to which the legislature raises any objection as being unnecessary,
unprofitable or outside the scope of the legislative authority conferred by Parliament
upon the executive Government, it is a matter between the Government and the Parliament.
Parliament may either remove the Government or repudiate the contract or do anything it
likes. But I do not understand how a personal liability can
be fixed upon a man who is merely appointed as an agent to assure the other party that he
is signing in the name of the Government of India. There is no substance in the objection
raised by my friend Mr. Tyagi.
Mr.
President : I
will now put the various amendments to vote.
[All
the three amendments by Dr. Ambedkar
were accepted. Article 273, as amended, was added to the Constitution.]
[f60]
Mr. President :
Article 274 is now for discussion.
The
Honourable Dr. B. R. Ambedkar : Sir, I move :
"
That in clause (1) of article 274, for the words '
Government of India ', in the second place where they
occur, the words ' Union of India ' he substituted."
Sir,
with your permission I will also move my other amendments to this article now.
I
move:
"
That in sub-clause (a) of clause, (2) of article 274, for the words ' Government of India
' the words ' Union of India ' be substituted."
I
move:
"
That with reference to amendment No. 2980 of the List of Amendments, in clause (1) of article 274, after the word and figure ' Part I ' the words
and figures 'or Part III be inserted."
I
move:
"
That with reference to amendments Nos. 2980 and 2981 of the
List of Amendments, in clause (1) of article 274, for the
words ' by the Legislature ' the words ' of. the Legislature ' be substituted."
I
move:
"
That with reference to amendment No. 204 above, in clause (1) of article 274, after the
words ' corresponding Provinces ' the words ' or the corresponding Indian States ' be
inserted."
I
move:
"
That with reference to amendment No. 206 above, in sub-clause (2) of article
274—
(i)
after the words ' a province ', the words ' or an Indian
State ' be inserted; and
(ii)
after the words 'the Province
' the words ' or the Indian State ' be inserted."
Shri
Jaspat Roy Kapoor
(United provinces : General) :
I am not moving my amendments Nos. 2981 and 2984. They may well be referred to the
Drafting Committee for consideration.
[f61]
The
Honourable Dr. B. R. Ambedkar :
Sir, perhaps it might be desirable if I read to the House how the article would stand if
the various amendments which I have moved were incorporated in the article. The article
would read thus :
"
The Government of India may sue or be sued in the name of the Union of India, and the
Government of a State for the time being specified in Part I or Part III of the First
Schedule may sue or be sued in the name of the State and may, subject to any provisions
which may be made by Act of Parliament or by the Legislature of such State, enacted by virtue of the powers conferred by this Constitution sue or
be sued in relation to their respective spheres in the like cases as the Dominion of India
and the corresponding Provinces or the corresponding Indian
States might have sued or been sued if this Constitution had not been enacted.
(2)
if at the date of commencement of this Constitution—
(a)
any legal proceedings are pending to which the Dominion of India is a party, the Union of
India—"
that
it is the new thing—
"
shall be deemed to be substituted for the Dominion in those proceedings; and
(b)
any legal proceedings are pending to which a Province or an Indian State is a party, the
corresponding State shall he deemed to be substituted for
the province or the Indian State in those proceedings."
Now
this article, as it will be seen, merely prescribes the way in which suits and proceedings
shall be stated. This has no other significance at all. The original wording was that it
shall be sued in the name of the Government of India. Obviously the Government of India, that is to say, the executive
government, is a fleeting body, being there at one time and then disappearing and some
other people coming in and taking charge of the executive.
Shri
H. V. Kamath :
The Government is not fleeting; the personnel of the
government may be fleeting.
The
Honourable Dr. B. R. Ambedkar
:
There is a difference between the Government of India and the Union of India. The Government of India is not a legal entity ;
the Union of India is a legal entity, a sovereign body which possesses rights and
obligations and therefore it is only right that any suit brought by or against the Central
Government should be in the name of the Union or against the Union.
Now,
with regard to the term " corresponding States " some difficulty was expressed. It may no doubt be quite
difficult to say which State corresponds to the old State.
In order to meet this difficulty, provision has been made in article 303 (1) (g), which you will find on page 145 of the Draft
Constitution, where it has been provided that a corresponding Province or corresponding
State means in cases of doubt such Province or State as may be determined by the President
to be the corresponding Province or, as the case may be, the corresponding State for the
particular purpose in question. Therefore this difficulty—since the exact equivalent
of an old Province or State is difficult to judge as there are bound to be some variations
as to territory and so on—can be solved only by giving power to the President to
determine which new particular State corresponds to which particular old State. So that
provision has been made.
Sub-clause
(2) deals with pending proceedings and all that sub-clause (2) suggests is this : that when any proceedings are pending, where the entities to
sue or be sued are different from what we are providing in subclause (1), the Union of
India or the corresponding State shall be inserted in the old proceedings, so that the
States may he sued in accordance with 274 (1). With regard to the objection taken by my Honourable Friend, Mr. Santhanam that the words "
enacted by virtue of powers conferred by this Constitution "
as being superfluous, all I can say is I disagree with him and I think these are very
necessary.
[All
the amendments of Dr. Ambedkar were accepted and Article
274 was added to the Constitution.]
[f62]
The Honourable Dr. B. R. Ambedkar :
Sir, I would like this article to be held over.
Mr.
President :
Then there is a long amendment, a new part to be added by Mr. Sidhva.
Shri
T. T. Krishnamachari : May I suggest that the House may take up Part XIII—the
election chapter, article 289 and onwards as put in the Order Paper ?
Shri
R. K. Sidhva :
Sir, this new article which I seek to move relates to the delimitation in local areas,
urban and rural of the entire territory of India.
The
Honourable Dr. B. R. Ambedkar :
This is to be held over.
****
****
[f63]
The
Honourable Dr. B. R. Ambedkar :
Mr. President, Sir, I move :
"
That for article 289. the following article be substituted :—( Superintendence directions & control of elections to be vested in an
election commission).
289.
(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of
every State and of elections to the offices of President and Vice-President held under this Constitution, including the appointment of election tribunals for the decision of doubts and
disputes arising out of or in connection with elections to Parliament and to the
Legislatures of States shall be vested in a Commission referred
to in this Constitution as the Election Commission) to be
appointed by the President.
(2)
The Election Commission shall consist of the Chief Election
Commissioner and such number of other Election Commissioners, if any, as the President
may, from time to time appoint, and when any other Election Commissioner is so appointed,
the Chief Election Commissioner shall act as the Chairman
of the Commission.
(3)
Before each general election to the House of the People and to the Legislative Assembly of
each State and before the first general election and thereafter before
each biennial election to the Legislative Council of each State having such Council, the
President shall also appoint after consultation with the Election Commission such Regional
Commissioners as he may consider necessary to assist the Election Commission in the
performance of the functions conferred on it by clause (1)
of this article.
(4)
The conditions of service and tenure of office of the Election Commissioners
and the Regional Commissioners shall be such as the President may by rule determine :
Provided
that the Chief Election Commissioner shall not be removed from office except in like
manner and on the like grounds as a judge of the Supreme Court and the conditions of the
service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment :
Provided
further that any other Election Commissioner or a Regional Commissioner shall not be
removed from office except on the recommendation of the Chief Election Commissioner.
(5)
The President or the Governor or Ruler of a State shall, when so requested by the Election
Commission, make available to the Election Commission or to a Regional Commissioner such
staff as may be necessary for the discharge of the functions conferred on the Election
Commission by clause (1) of this article."
Mr.
President : I
have notice of a number of amendments, some in substitution
of the articles 289,290 and
291 and some amendments to the amendments which are going to be moved. I think I had
better take the amendments which are in the nature of substitution of these articles. Dr. Ambedkar has moved one. There is another amendment in the name
of Pandit Thakur Das Bhargava.
Pandit
Hirday
Nath Kunzru (United Provinces :
General) : May I ask. Sir,
whether Dr. Ambedkar is not going to say anything in
support of the proposition that he has moved ? It concerns
a very important matter. Is it not desirable that Dr. Ambedkar who has put forward an
amendment to article 289 should say something in support of his amendment. I think he
would be proceeding on sound lines if he took the trouble of explaining to the House the
reasons for asking it to replace the old article 289 by a new article. The matter is of
the greatest importance and it is a great pity that Dr. Ambedkar has not considered it
worth his while to make a few remarks on this proposition.
The
Honourable Dr. B. R.
Ambedkar :
Mr. President, Sir, I did not make any observation in support of the motion for two
reasons. One reason was that if a debate took place on this article,—it is quite
likely that a debate would undoubtedly take place—there would be certain points that
will be raised in the debate, which it would be profitable for me to reply to at the close
so as to avoid a duplication of any speech on my part. That is one reason.
The
second reason was that I thought that everybody must have read my amendment; it is so
simple that they must have understood what it meant. Evidently, my Honourable Friend
Pandit Kunzru in a hurry has not read my new Draft.
Pandit
Hirday
Nath Kunzru : I have read every line of it; I only want that the
Honourable Member should treat the House with some respect.
The
Honourable Dr. B. R. Ambedkar :
The House will remember that in a very early stage in the proceedings of the Constituent
Assembly, a Committee was appointed to deal with what are called Fundamental Rights. That
Committee made a report that it should be recognised that the independence of the
elections and the avoidance of any interference by the executive in the elections to the
Legislature should be regarded as a fundamental right and provided for in the chapter
dealing with Fundamental Rights. When the matter came up before the House, it was the wish
of the House that while there was no objection to regard this matter as of fundamental
importance, it should be provided for in some other part of the Constitution and not in
the Chapter dealing with Fundamental rights. But the House affirmed without any kind of
dissent that in the interests of purity and freedom of elections to the legislative
bodies, it was of the utmost importance that they should be freed from any kind of
interference from the executive of the day in pursuance of the decision of the House, the
Drafting Committee removed this question from the category of Fundamental rights and put
it in a separate part containing articles 289,290 and so on. Therefore, so far as the
fundamental question is concerned that the election machinery should be outside the
control of the executive government, there has been no dispute. What article 289 does is
to carry out that part of the decision of the Constituent
Assembly. It transfers the superintendence, direction and control of the preparation of
the electoral rolls and of all elections to Parliament and the Legislatures of States to a
body outside the executive to be called the Election Commission. That is the provision
contained in sub-clause (1).
Sub-clause
(2) says that there shall be a Chief Election Commissioner and such other Election
Commissioners as the President may, from time to
time appoint. There were two alternatives before the Drafting Committee, namely, either to
have a permanent body consisting of four or five members of the Election Commission who
would continue in office throughout without any break, or to permit the President to have
an ad hoc body appointed at the time when
there is an election on the anvil. The Committee, has steered
a middle course. What the drafting committee proposes by sub-clause (2) is to have
permanently in office one man called the Chief Election Commissioner so that the skeleton
machinery would always be available. Elections no doubt will generally take place at the
end of five years; but there is this question namely that a bye-election may take place at
any time. The Assembly may be dissolved before its period of five
years has expired. Consequently, the electoral rolls will have
to be kept up to date all the time so that the new election
may take place without any difficulty. It was therefore felt that having regard to these exigencies, it would be
sufficient if there was permanently in session one officer to be called the Chief Election Commissioner,
while when the demons are coming up, the President may
further add to the machinery by appointing other members to the Election Commission.
Now,
Sir, the original proposal under article 289 was that there should be one Commission to
deal with the elections to the Central Legislature, both the Upper and the Lower House,
and that there should be a separate Election Commission for each province and each State,
to be appointed by the Governor or the Ruler of the State. Comparing that with the present
article 289, there is undoubtedly, a radical change. This article proposes to centralise
the election machinery in the hands of a single Commission to be assisted by regional
Commissioners, not working under the provincial Government, but working under the
superintendence and control of the Central Election Commission. As I said, this is
undoubtedly a radical change. But, this change has become necessary because today we find
that in some of the provinces of India, the population is a mixture. There are what may be
called original inhabitants, so to say, the native people of a particular province. Along
with them there are other people residing there, who are either racially,
linguistically or culturally different from the dominant
people who are the occupants of that particular Province. It has been brought to the
notice both of the Drafting Committee as well as of the central Government that in these
provinces the executive Government is instructing or managing things in such a manner that
those people who do not belong to them either racially, culturally or linguistically, are
being excluded from being brought on the electoral rolls. The House will realise that
franchise is a most fundamental thing in a democracy. No
person who is entitled to be brought into the electoral rolls on the grounds which we have
already mentioned in our Constitution, namely, an adult of 21 years of age, should be
excluded merely as a result of the prejudice of a local Government,
or the whim of an officer. That would cut at the very root of democratic Government. In order, therefore, to prevent injustice being done
by provincial Governments to people other than those who
belong to the province racially, linguistically
and culturally, it is felt desirable to depart from the original proposal of having a
separate Election Commission for each province under the guidance of the Governor and the
local Government. Therefore, this new change has been brought about, namely, that the
whole of the election machinery should be in the hands of a central Election Commission
which alone would be entitled to issue directives to returning officers, polling officers
and others engaged in the preparation and revision of electoral rolls so that no injustice
may be done to any citizen in India, who under this Constitution is entitled to be brought
on the electoral rolls. That alone is, if I may say so, a radical and fundamental
departure from the existing provisions of the Draft Constitution.
So
far as clause (4) is concerned, we have left the matter to the President to determine the
conditions of service and the tenure of office of the members of the Election Commission,
subject to one or two conditions, that the Chief Election
Commissioner shall not be liable to be removed except in
the same manner as a Judge of the Supreme Court, If the object of this House is that all
matters relating to elections should be outside the control of the Executive Government of
the day, it is absolutely necessary that the new machinery which we are setting up,
namely, the Election Commission should be irremovable by the executive by a mere fiat. We have
therefore given the Chief Election Commissioner the same status so far as removability is concerned as we have given to the Judges
of the Supreme Court. We, of course, do not propose to give the same status to the Other members of the Commission. We have left the matter to
the President as to the circumstances under which he would deem fit to remove any other member of the
Election commission, subject to one condition that the Chief Election Commissioner must
recommend that the removal is just and proper.
Then
the question was whether the Electoral Commission should
have authority to have an independent staff of its own to carry on the work which has been
entrusted to it. it was felt that to allow the Election
Commission to have an independent machinery to carry on all the work of the preparation of
the electoral roll, the revision of the roll, the conduct of the elections and so on would
be really duplicating the machinery and creating unnecessary administrative expense which
could be easily avoided for the simple reason, as I have stated, that the work of the
Electoral Commission may be at times heavy and at other times it may have no work.
Therefore we have provided in clause (5) that it should be open for the Commission to
borrow from the provincial Governments such clerical and ministerial agency as may be
necessary for the purposes of carrying out the functions with which the Commission has
been entrusted. When the work is over, that ministerial staff will return to the
provincial Government. During the time that it is working under the Electoral Commission,
no doubt administratively, it would be responsible to the Commission and not to the
Executive Government. These are the provisions of this article and I hope the House will
now realise what it means and in what respects it constitutes a departure from the
original articles of the draft Constitution.
****
[f64]
The Honourable Dr. B. R. Ambedkar (Bombay
: General) : Mr. President,
Sir, this amendment of mine has been subjected to criticism from various points of view.
But in my reply I do not propose to spread myself over all the points that have been
raised in the course of the debate. I propose to confine myself to the points raised by my
Friend Professor Shibban Lal
Saksena and emphasized by my
Friend Pandit Hirday Nath
Kunzru. According to the amendment moved by my Friend Professor Saksena, there are
really two points which require our consideration. The one point is with regard to the
appointment of the Commissioner to this Election Commission and the second relates to the
removal of the Election Commissioner. So far as the question of removal is concerned, I
personally do not think that any change is necessary in the amendment which I have
proposed, as the House will see that so far as the removal of the members of the Election
Commission is concerned the Chief Commissioner is placed on the same footing as the Judges
of the Supreme Court. And I do not know that there exists any measure of greater security in any other Constitution which is better than the one
we have provided for in the proviso to clause (4).
With
regard to the other Commissioners the provision is that, while the power is left with the
President to remove them, that power is subjected to a very important limitation, viz., that in the matter of removal of the other
Commissioners, the President can only act on the recommendation of
the Chief Election Commissioner. My contention therefore is, so far as
the question of removal is concerned, the provisions which are incorporated in my
amendment are adequate and nothing more is necessary for that purpose.
Now
with regard to the question of appointment I must confess that there is a great deal of
force in what my friend Professor Saksena said that there
is no use making the tenure of the Election Commissioner a fixed and secure tenure if
there is no provision in the Constitution to prevent either a fool or a knave or a person
who is likely to be under the thumb of the Executive. My provision—1 must
admit—does not contain anything to provide against nomination of an unfit person to
the post of the Chief Election Commissioner or the other Election Commissioners. I do want
to confess that this is a very important question and it has given me a great deal of headache and I have no doubt
about it that it is going to give this House a great deal of headache. In the U.S.A. they
have solved this question by the provision contained in article 2 Section (2) of their
Constitution whereby certain appointments which are specified in Section (2) of article 2
cannot be made by the President without the concurrence of the Senate; so that so far as
the power of appointment is concerned, although it is vested in the President it is
subject to a check by the Senate so that the Senate may, at the time when any particular
name is proposed, make enquiries and satisfy itself that the person proposed is a proper
person. But it must also be realised that that is a very dilatory process, a very
difficult process. Parliament may not be meeting at the time when the appointment is made
and the appointment must be made at once without waiting. Secondly, the American practice
is likely and in fact does introduce political considerations in the making of appointments. Consequently, while I think that the provisions contained
in the American Constitution is a very salutary check upon the extravagance of the
President in making his appointments, it is likely to create administrative difficulties
and I am therefore hesitating whether I should at a later
stage recommend the adoption of the American provisions in our Constitution. The Drafting
Committee had paid considerable attention to this question because as I said it is going
to be one of our greatest headaches and as a via media it was
thought that if this Assembly would give or enact what is called an Instrument of
Instructions to the President and provide therein some machinery which it would be
obligatory on the President to consult before making any appointment, I think the
difficulties which are felt as resulting from the American Constitution may be obviated
and the advantage which is contained therein may be secured. At this stage it is
impossible for me to see or anticipate what attitude this House will take when the
particular draft Instructions come before the House. If the House rejects the proposal of
the Drafting Committee that there should be an Instrument of Instructions to the President
which might include. among other things, a provision with regard to the making of
appointments, this problem would then be solved by that method. But, as I said, it is
quite difficult for me to anticipate what may happen.
Therefore in order to meet the criticism of my Honourable Friend Prof. Saksena, supported by the criticism of my Honourable Friend
Pandit Kunzru, I am prepared
to make certain amendments in amendment No. 99. I am sorry I did not have time to
circulate these amendments, but when I read them the House will know what I am proposing.
My
first amendment is :
"
That the words ' to be appointed by
the President ' at the end of clause (1) be deleted."
"
In clause (2) in line 4, for the word ' appoint ' substitute the word ' fix ' after which
insert the following :—
"The
appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in this behalf by Parliament, be made by the President."
"
The rest of the clause from the words ' when any other Election Commissioner is so
appointed ' etc., should be numbered clause (2a).
Shri
M. Ananthasayanam Ayyangar (Madras
: General) : Sir, on a point
of order, new matter is being introduced which ought not to be allowed at this stage.
Otherwise there will have to be another debate.
The
Honourable Dr. B. R. Ambedkar :
I hope the Chair will allow other members to offer there views.
Mr.
President:
In that case I think the best course would be to postpone
consideration of this article.
The
Honourable Dr. B. R. Ambedkar
:These amendments are quite inoffensive; they merely say
that anything done should be subject to laws made by Parliament.
. .
Shri
T. T. Krishnamachari
(Madras : General) : I
suggest that these amendments may be cyclostyled and
circulated, and they may be taken up later on.
The
Honourable Shri K. Santhanam
(Madras : General) : I
suggest that these may be considered by the Drafting Committee. Even if they are merely
technical we must have an opportunity of considering them.
The
Honourable Dr. B. R. Ambedkar :
These amendments have been brought after consultation with the Drafting Committee.
****
[f65]
Mr. President :
Let the amendments be moved.
Thed
Honourable Dr. B. R. Ambedkar :
My next amendment is :
"That
in the beginning of clause (4) the following words should
be inserted :—
'
subject to the provisions of any law made in this behalf by Parliament '."
The
Honourable Shri K. Santhanam :
Sir, this is a material amendment because the President's
discretion may be fettered by parliamentary law.
Mr.
President : I
do not think any further discussion is necessary; let these be moved.
The
Honourable Dr. B. R. Ambedkar:
You cannot deal with a Constitution on technical points. Too many technicalities will
destroy constitution-making.
Shri
H. V. Kamath :
Sir, you ruled some days ago that substantial amendments would be postponed.
Mr.
President
: If these are considered to be substantial amendments they
will be held over. As there seems to be a large body of opinion in the House in favour of
postponement, the discussion will be held over.
[f66]
The
Honourable Dr. B. R. Ambedkar :
Sir, I move :
"That
with reference to amendment No. 110 of List I (Fifth Week), for the proposed new article
289-A, the following article be substituted :—-
|
(
No person to be ineligible for inclusion in, or to claim to be excluded from the electoral roll on grounds of religion, race, caste or sex ).289-A.
There shall be one general electoral roll for every territorial constituency for election
to either House of Parliament or to the House or either House of the Legislature of a
State and no person shall be ineligible for inclusion in, or claim to be excluded from,
any such roll on grounds only of religion, race, caste, sex or any of them.”
Sir,
the object of this is merely to give effect to the decision of the House that there shall
hereafter be no separate electorates at all. As a matter
of fact this clause is unnecessary because by later amendments we shall be deleting the
provisions contained in the Draft Constitution which
make provision for representations of Muslims, Sikhs, Angle-Indians and so on. Consequently this is unnecessary. But it
is the feeling that since we have taken a very important decision which practically
nullifies the past it is better that the Constitution should in express terms State and
that is the reason why I have brought forward this amendment.
Mr.
President :
Do I take it that only for the purpose of discussion you have brought it up and that you
do not want it to be passed ?
The
Honourable Dr. B. R. Ambedkar :
No, Sir, not like that. I have moved the amendment. I was only giving the reasons why I
have brought it up.
I shall move the other amendment also for inserting new article 289-B, I move:
"
That for amendment No. 3087 of the List of Amendments, the following be substituted:—
"
That after article 289-A, the following new article be
inserted :—( Elections to the House of the people & to the
Legislative Assemblies of States to be on the basis of adult suffrage).
289-B. The elections to the House of the People and to the
Legislative assembly of every State shall be on the basis of adult suffrage, that is to say, every
citizen, who is not less than twenty-one years of age on
such date as may be fixed in this behalf by or under any law made by the appropriate
Legislature and is not otherwise disqualified under this
Constitution or any law made by the appropriate Legislature on the ground of
non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be
entitled to be registered as a voter at any such election."'
[Amendment
was adopted. Article 289-B was added to the Constitution.]
****
[f67]
The Honourable Dr. B. R. Ambedkar :
Sir, I move :
"
That for article 290, the following article be substituted :—( Power of
Parliament to make provisions with respect to elections to Legislatures).
290.
Subject to the provisions of this Constitution, Parliament
may from time to time by make provisions with respect to all matters relating to, or in connection with, elections to either House of
Parliament or to the House or either House of the Legislature of a State including matters
necessary for securing the due constitution of such House or Houses and the delimitation
of constituencies.'"
Sir,
with your permission I would also like to move the other amendment which amends this. I
move :
''
That with reference to amendment No. 123 of List I (Fifth Week) in the new article 290, after the
word ' including ' the words
' the preparation of electoral rolls and all other ' be
inserted."
****
[f68]
Mr. President : I
find that there is notice of an amendment by Prof. Shibban Lal Saksena to article 290. He
was not here at the time the amendments were moved. Anyhow it is not an amendment of
substantial character.
If Dr. Ambedkar does not want to say anything in reply I shall put the amendment to vote.
The
Honourable Dr. B. R. Ambedkar :
I have nothing to say, Sir.
[Above
mentioned amendments of Dr. Ambedkar were adopted. Article
290, as amended was added to the Constitution.]
[f69]
The
Honourable Dr. B.R.Ambedkar:
I move:
"
That for article 291, the following article be substituted :—(
Power of Legislature of a State to make
provisions with respect to election to such Legislature).
291. Subject to the provisions of
this Constitution and in so far as provision in that behalf is not
made by Parliament, the Legislature of a State may from
time to time by law make provisions with respect to all matters relating to, or in connection with, the elections
to the House or either House of the Legislature of the State including matters necessary
for securing the due Constitution of such House or Houses."
Sir,
with you permission I move also amendment No. 211 of List VI Fifth week.
The
amendment runs thus :
"
That with reference to amendment No. 128 of List I (Fifth Week) in the new article 291., after the word ' including ' the words ' the preparation of
electoral rolls and all other ' be inserted."
****
[f70]
The
Honourable Dr. B. R. Ambedkar :
I think Mr. Kamath has not properly read or has not
properly understood the two articles 290 and 291. While 290 gives power to Parliament, 291
says that if there is any matter which is not provided for by Parliament, then it shall be
open to the State Legislature to provide for it. This is a sort of residue which
Parliament may leave to the State Legislature. This is a residuary article. Beyond that,
there is nothing.
Shri
A. Thanu Pillai
(Travancore State) : When
steps have to be taken according to the time schedule, is the local Legislature to wait
and see what the Central Parliament does ?
The
Honourable Dr. B. R. Ambedkar :
Primarily it shall he the duty of the Parliament to make provision under 290. The obligation is
squarely placed upon Parliament. It shall be the duty and the obligation of the Parliament
to make provision by law for matters that are included in 290, In making provisions for
matters which are specified in 290, if any matter has not been specifically and expressly
provided for by Parliament, then 291 says that the State Legislature shall not be excluded
from making any provision which Parliament has failed to
make with regard to any matter included in 290.
Shri
A. Thannu Pillai :
May I know from Dr. Ambedkar
whether it would not be better for either the central legislature
or the Local Legislature to be charged with full responsibility in this matter so that
elections may go on according to the time schedule ?
The Honourable Dr. B. R. Ambedkar : I do not-agree. There are
matters which are essential and which Parliament might think should be provided for by
itself. There are other matters which Parliament may think are of such local character and
liable to variations from province to province that it would be better for Parliament to
leave them to the Local Legislature. That is the reason for the distinction between 290
and 291.
[Amendments
of Dr. Ambedkar were adopted. Article 291 as amended was
added to the Constitution.]
[f71]
The Honourable Dr. B. R. Ambedkar :
Sir, I move :
"
That after article 291, the following new article be inserted :—
Bar
to jurisdiction of courts in electoral matters.( Bar to
jurisdiction of courts in electoral matters).
291-A.
Notwithstanding anything contained in this Constitution—
(a) the validity of any law relating to the
delimitation of constituencies or the allotment of seats to such constituencies, made or
purporting to be made under article 290 or article 291 of this Constitution shall not he
called in question in any court;
(b)
no election to either House of Parliament
or to the House or either House of the Legislature of a State shall he called in question
except by an election petition presented to such authority
and in such manner as may be provided for by or under any .
law made by the appropriate Legislature;
(c)
provision may be made by or under any law made by the appropriate Legislature for the
finality of proceedings relating to or in connection with any such election at any stage
of such election."
Sir,
I also move :
"
That with reference to amendment No. 132 of List I (Fifth Week) in the new article 291-A,
clause (c) be omitted."
[Article
291-A, an amended by Dr. Ambedkar's amendment was added to the Constitution.]
[f72]
Shri H.
V. Kamath : Mr. President, Sir, I move :
"That
in clause (2) of article 297, for the words ' if such
members are found qualified for appointment on merit as compared with the members of other communities ', the
words ' provided that such appointment is made on ground only
of merit as compared with the members of other communities ' be substituted."
I
think. Sir, that this is an amendment more or less of a
drafting nature and I leave it to the cumulative wisdom of the Drafting Committee to
consider it at the appropriate stage.
The
Honourable Dr. B. R. Ambedkar : I do not see that it is of a drafting nature. However we
shall consider it later on.
[Article
297 was added to the Constitution.]
****
[f73]
The
Honourable Dr. B. R. Ambedkar :
Sir, I move :
"
That with reference to amendment No. 3186 of the List of Amendments clause (1) of article
300 after the word and figure ' Part I ' the words and figure ' Part III ' be
inserted."
[f74]
Mr.
President :
Dr. Ambedkar, do you wish to say anything '!
The
Honourable Dr. B. R. Ambedkar :
No. Sir.
[Dr.
Ambedkar's above amendment was adopted. Article 300, as amended, was added to the Constitution.]
****
****
[f75]
The Honourable Dr. B. R. Ambedkar
: Sir, I move :
"
That in clause (3) of article 301 for the word ' Parliament
' the words ' each House of Parliament ' be substituted."
[Article 301, as amended by Dr. Ambedkar's amendment was added to the Constitution.]
****
[f76]
Mr. President :
You are again assuming that it will be a session of the House.
Shri
Jaspat Roy Kapoor :
My submission were based on that assumption surely, but I
do not know if there can be
any other assumption. We find everywhere that members shall be electing the President,
Vice-President and members of the Council of States as members of the legislature and in
no other capacity. For instance, we find in article 55 that the Vice-President will be
elected by members of both Houses of Parliament in a meeting.
The
Honourable Dr. B. R. Ambedkar :
The wording is "
at a joint meeting " and not " sitting ".
Shri
Jaspat Roy Kapoor :
It will be all right if that point is authoritatively stated on the Floor of the House so
as to avoid the possibility of this article being interpreted differently....
****
[f77]
Mr.
President : I
will first put the amendment which Dr. Ambedkar has moved last.
The
question is:
"
That in amendment No. 99 of List I in the proposed article 289—
(i)
ill clause (1) the words ' to be appointed by the President '
occurring at the end be deleted.
(ii)
for clause (2), the following clauses be substituted :—
'(2)
The election Commission shall consist of the Chief Election Commissioner
and such number of other Election
Commissioners, if any. as the President may from time to time fix and the appointment of
the Chief Election Commissioner and other Election
Commissioners shall, subject to the provisions of any law
made in this behalf by Parliament, be made by the
President."
'(2a) When any other Election
Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of
the Commission.'
(iii)
in clause (4), before the words " The conditions of
service ' the words ' subject to the provisions of any law made by Parliament ' be
inserted."
The
amendment was adopted.
[Six
amendments by other members were negatived.]
[Article 289, as amended was added to the Constitution.]
[The
Assembly was adjourned until a date in July 1949 to he fixed by the President.]
[f1] CAD, Vol. VIII, I0th June 1949, pp. 746-48.
[f2] Ibid., p. 750.
[f3] Ibid., p. 754.
[f4] CAD, Vol. VIII, 10th June 1949, pp. 754-55.
[f5] Ibid, pp. 762-64.
[f6] CAD, Vol. VIII. 10th June 1949, p. 765.
[f7] CAD, Vol. VIII, 10th June 1949, pp. 768-70.
[f8] CAD, Vol. VIII, l0th June 1949. pp. 711-713.
[f9] CAD, Vol. VIII, 10th January 1949, p. 774.
[f10] CAD, Vol. VIII,. 10th January 1949, pp. 777-78
[f11] Ibid.,pp.780-81.
[f12] CAD, Vol. VIII, 10th June 1949, p. 781.
[f13] CAD, Vol. VIII, 10th June 1949, p. 782.
[f14] Ibid., pp. 782-83.
[f15] Ibid.. p. 783.
[f16] Ibid.. p. 784.
[f17] CAD, Vol. VIII, 10th June 1949, p. 784.
[f18] Ibid., p. 784.
[f19] Ibid. pp. 785-86.
[f20] Ibid.. pp. 785-86.
[f21] CAD, Vol. VIII, 10th June 1949, pp. 786-87.
[f22] Ibid., pp. 787-88.
[f23] CAD. Vol. .VIII. 10th June 1949, p. 788.
[f24] Ibid., p. 789.
[f25] IBID., p. 790.
[f26] CAD, Vol. VIII, 13th June 1949, p. 793.
[f27] Ibid.. p. 794.
[f28] CAD, Vol. VIII, 13th June 1949, pp. 799-800.
[f29] Ibid., p. 809.
[f30] CAD, Vol. VIII, 13th June 1949, p. 811.
[f31] Ibid.,p.812.
[f32] CAD, Vol. VIII, 13th June 1949, p. 813.
[f33] Ibid.P.813.
[f34] Ibid..pp.814-15.
[f35] CAD, Vol. VIII, 13th June 1949, p. 815.
[f36] Ibid., p. 816.
[f37] CAD, Vol. VIII 13th June 1949, p. 817.
[f38] Ibid., p. 817.
[f39] Ibid., p. 818.
[f40] CAD, Vol. VIII. 13th June 1949, p. 824.
[f41] Ibid., 14th.June 1949, p. 840.
[f42] Ibid., i4th June 1949, pp. 853-57.
[f43] Dots indicate interruption.
[f44] CAD, Vol. VIII, 14th June 1949, p. 860.
[f45] Ibid., pp. 865-67.
[f46] CAD, Vol. VIII, 14th June 1949, p. 873.
[f47] Ibid., p. 873.
[f48] Ibid, 15th June 1949, p. 875.
[f49] Ibid., p. 877.
[f50] CAD. Vol. VIII, 15th June 1949, pp. 883-85.
[f51] CAD, Vol. VIII, 15th June 1949, p. 886.
[f52] Ibid., p. 887.
[f53] Ibid., p. 887.
[f54] Ibid.. p. 888.
[f55] CAD, Vol. VIII, 15th June 1949, pp. 891-93.
[f56] CAD, Vol. VIII, 15th June 1949, p. 893.
[f57] Ibid., 895.
[f58] Ibid., p. 895.
[f59] Ibid.. pp. 898-99.
[f60] CAD, Vol. VIII, 15th .Tune 1949, p. 900.
[f61] Ibid., pp. 901-02.
[f62] CAD, Vol. VIII, 15th June 1949, p. 903.
[f63] Ibid., pp. 904-07.
[f64] CAD, Vol. VIII, 16th June 1949, pp. 928-30.
[f65] CAD, Vol. VIII, 16th June 1949, p. 930.
[f66] Ibid. pp. 930-31.
[f67] CAD, Vol. VIII, 16th June 1949, p. 932.
[f68] CAD, Vol. VIII, 16th June 1949, p. 933.
[f69] Ibid., p. 934.
[f70] Ibid.. p. 935.
[f71] CAD, Vol. VIII, 16th June 1949, p. 936.
[f72] CAD, Vol. VIII, 16th June 1949, p. 937.
[f73] Ibid., p. 942.
[f74] Ibid., p. 943.
[f75] Ibid.. p. 945.
[f76] CAD, Vol. VIII, 16th June 1949, p. 952.
[f77] Ibid., p. 958.