DR. AMBEDKAR: THE PRINCIPAL ARCHITECT OF THE CONSTITUTION OF INDIA

 

Clause wise Discussion on the Draft Constitution

SECTION SEVEN

17th September 1949 to 16th November 1949.

ABOLITION OF PRIVY COUNCIL JURISDICTION BILL

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[f1]  Mr. President : The first item is the Bill. Dr. Ambedkar.

The Honourable Dr. B. R. Ambedkar (Bombay: General): Mr. President, Sir, I move:

" That the Bill to abolish the jurisdiction of His Majesty in Council in respect of Indian appeals and petitions introduced on the 14th' September 1949, be taken into consideration by the Assembly."

I would like to say just one or two words and inform the House as to why this Bill has become a necessity and what the Bill proposed to do in substance. The necessity for the Bill arises because of two circumstances. One is the provision contained in clause (3) of the proposed Article 308. This article 308 is to be found in the midst of what are called transitional provisions. Clause (3) of article 308 provides that:

" On and from the dale of commencement of this Constitution the jurisdiction of His Majesty in Council to entertain and dispose of appeals and petitions from or in respect of any decree or order of any court within the territory of India, including the jurisdiction in respect of criminal matters exercisable by His Majesty by virtue of His Majesty's prerogative, shall cease, and all appeals and other proceedings pending before His Majesty in Council on the said date shall be transferred to and disposed of, by the Supreme Court,"

which means that on the date on which the Constitution comes into operation, the jurisdiction of the Privy Council will completely vanish.

The second circumstance which has necessitated the Bill is that it is proposed that this Constitution should come into operation sometime about the 26th January 1950. The effect of these two circumstances is that the Privy Council will have no jurisdiction to entertain any appeal or petition after the 26th January 1950, assuming that that becomes the date of the commencement of the Constitution. But what is more important is this that the Privy Council will not even have jurisdiction to deal with and dispose of appeals and petitions which may be pending before it on the 26th January 1950. Now taking stock of the situation as it will be on the 26th January 1950 the position is this. There are at present seventy civil appeals and ten criminal appeals pending before the Privy Council. The Calendar of cases, which is prepared for, the next sitting of the Privy Council has set down twenty appeals for hearing and disposal. It is also a fact that that is probably the only sitting which the Privy Council will hold for the purposes of disposing of the Indian appeals before the date on which the Constitution comes into operation.

According to the information which we have, this list of cases which is prepared for hearing at the next session of the Privy Council contains about twenty appeals, which means that on the 26th January, 1950, sixty appeals will remain pending undisposed of; and the question really that we are called upon to consider is this. What is to be done with regard to these sixty appeals which are likely to remain pending before the Privy Council on the 26th January 1950?

There are, of course, two ways of dealing with this matter. One-way was to continue the jurisdiction of the Privy Council and dispose of all the appeals that are now pending before it. That was the procedure that was adopted in the Irish Constitution by article 37 whereby it was stated that nothing in their Constitution would affect the jurisdiction of the Privy Council to deal with matters that may be pending before them on the date of the Constitution. But as I pointed out, in the proposed article 308 clause (3), we do not propose to leave any jurisdiction to the Privy Council. We propose to terminate the jurisdiction of the Privy Council on the 26th January 1950. The only way out, therefore, is to provide that the jurisdiction of the Privy Council shall terminate, that their jurisdiction shall be conferred on the Federal Court and that they shall transfer all the cases which are pending before them on the 10th October, except the twenty cases to which I made a reference earlier to the jurisdiction of the Federal Court. This is what the Bill does.

Now, Sir, coming to the specific provisions of the Bill, it will be noticed that clause 2 abolishes the jurisdiction of the Privy Council over all courts in the territory of India. Clause 3 abolishes the jurisdiction of the Privy Council over the Federal Court, and clause 5 is the converse of clauses 2 and 3, because it proposes to confer the Privy Council jurisdiction on the Federal Court. Clause 4 deals with the matters that are pending before the Privy Council. Although clause 5 confers the Privy Council's jurisdiction on the Federal Court, clause 4 is a saving clause and saves the jurisdiction of the Privy Council in certain appeals and petitions which are pending before it. They may be classified under four heads: (1) Appeals and petitions in which judgement has been delivered, but Order in Council has not been made before the 10th October, (2) appeals entered in the Cause List for Michaela’s sitting which begins on the 12th October, (3) petitions which are already lodged and may be lodged before the 10th October, and (4) appeals and petitions on which judgement has been reserved by the Privy Council although the hearing has been completed. In clause 6, all those matters which do not come under clause 4 stand automatically transferred to the Federal Court even though they may be pending before the Privy Council. Clauses 7 and 8 are mere matters of construction.

While curtailing the jurisdiction of Privy Council, it is felt that it is desirable to repeal and amend certain sections of the Government of India Act, 1935 which are necessary as a matter of consequence and which are also necessary to remove some of the anomalies in the Government of India Act with regard to the jurisdiction and powers of the Federal Court. As I have said, clause 3 repeals Sections 208 and 218 of the Government of India Act which deal with the Privy Council and appeals from the Federal Court, and appeals from a court outside India. Both these changes are consequential.

It is proposed to amend Section 205 which deals with the appellate jurisdiction of the Federal Court, and Section 209 which deals with the form of judgement and the' drawing up of decrees, 210 which deals with jurisdiction of the Federal Court over other courts and Section 214 which deals with jurisdiction of the Federal Court over courts outside India.

It is proposed, therefore, by these consequential and other necessary amendments to make the jurisdiction of the Federal Court complete and independent. This measure, undoubtedly, is an interim measure, because these powers will last only upto the 26th January 1950 when the Constitution comes into operation. On the 26th January 1950, the powers of the Federal Court will be those that are set out in the Constitution.

Sir, I move.

 

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Clause 2

 

[f2]  The Honourable Dr. B. R. Ambedkar: Sir, it is contained in clause 3 if my friend will read it. ' Federal Court ' is provided for in sub-clause (2} of clause 3. That is why the words "(other than the Federal Court)" are there in clause 2.

Pandit Thakur Das Bhargava: In this list it is in clause 2 and my amendment applies to it only.

Mr. President; You can leave it out for the present.

The Honourable Dr. B. R. Ambedkar: I do not accept the amendment. It is quite unnecessary.

Shri B. Das (Orissa: General): I beg to move:

" That is sub-clause (1) of Clause 2, the words ' or otherwise ' be deleted."

Sir, it is very humiliating to me...

[f3]  The Honourable Dr. B. R. Aberdare: Sir, I do not think this amendment is very necessary, because the jurisdiction of the Privy Council may be derived also from the prerogative conferred by Statute. Therefore the words ' or otherwise ' are quite necessary. We want to put an end completely to the jurisdiction not merely arising from the prerogative but from other sources also.

Mr. President: I will now put the amendments to vote.

[All amendments were rejected; clause 2 was added to the Bill]

 

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Clause 3

 

[f4]  Shri T. T. Krishnamachari (Madras: General): My friend's remarks can be cut short if I explain there are really no appeals pending before the Privy Council from the Federal Court.

The Honourable Dr. B. R.Ambedkar: There is no pending appeal.

Pandit Thakur Das Bhargava: I heard from Dr. Ambedkar and Dr. Bakhshi Tek Chand that there is no appeal pending, but there may be other proceedings. My submission is that if there are proceedings whereby remedy is possible to be given the persons concerned should not be deprived of their rights, merely because we are doing away with the jurisdiction of the Privy Council.

 

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[f5]  The Honourable Dr. B. R. Ambedkar: I do not think it is necessary to accept the amendment moved by my Friend, Pandit Thakur Das Bhargava. As my Friend, Mr. Krishnamachari, has stated, there arc really no appeals pending before the Privy Council from the Federal Court, and consequently it is quite unnecessary to make any saving as proposed by my Friend, Pandit Thakur Das Bhargava, because nobody is really adversely affected, there being no pending cases.

With regard to the amendment moved by my Friend, Mr. Naziruddin Ahmad, I cannot understand why we should depart from the principle which has been laid down that any criminal matter which is lodged before the Privy Council before the appointed day may be heard by them for purposes of admission but they would be returned to the Federal Court for Final disposal. He wants to make a departure from it but I have not been able to see that the reasons he has advanced warrant it. Therefore I cannot accept his amendment.

[Amendment of Pandit Thakur Das Bhargava was rejected and that of Naziruddin Ahmed was withdrawn. Clause 3 was added to the Bill]

 

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Clause 4

 

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[f6]  The Honourable Dr. B. R. Ambedkar: Sir, I move:

" That for sub-clause (b) of clause 4, the following sub-clauses be substituted: —

(b) Any Indian appeal or petition on which the Judicial Committee has, after hearing the parties, reserved judgment or order; or

(c) Any Indian appeal which has been entered before the appointed day in the list of business of the Judicial Committee for the Michaelmas sittings of the year 1949 and which after that day is not directed to be removed there from by or under the authority of the Judicial Committee, or',

and sub clause (c) be re-lettered as sub-clause (d)."

What probably requires some explanation is sub-clause (c). Although we have stated in the main clause that business or cases entered upon the calendar for the Michaelmas term may be left with the Privy Council for disposal, it is not quite certain how many of them may remain undisposed of. Therefore, we propose to give permission to the Privy Council at the outset to say that, although a matter or a case is entered upon the cause list for the Michaelmas term, they will not be able to hear some of the matters, so that there may be no balance of pending cases left. In that event, those cases that the Privy Council directs that they will not be able to hear would also become automatically transferred to the Federal Court. It is to provide for that sort of contingency that I am adding this sub-clause (c) in terms of the amendment.

Pandit Thakur Das Bhargava: Sir, I move:

" That sub-clause (c) of clause 4 be deleted ".

...The Honourable Dr. B. R. Ambedkar: Sir, I do not accept the amendment of Pandit Thakur Das Bhargava.

[Amendment of Pandit Bhargava was rejected. Dr. Ambedkar's amendment was adopted. Clause 4 was added to the bill]

 

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Clause 5

 

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[f7]  The Honourable Dr. B. R. Ambedkar: Sir, I move:

" That in sub-clause (3) of Clause 5, for the brackets, letters and word '(b) or (c) ' the brackets, letters and word ' (b), (c) or (d) ' be substituted."

It is purely consequential.

[The amendment was adapted and clause 5, was added to the bill]

 

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Clause 7

 

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[f8]  Mr. Naziruddin Ahmad: Sir, I beg to move:

"That is Clause 7, the comma after the word ' effect ' be deleted."...

Mr. President: I do not think this need be put to vote, this question of ' comma '.

The Honourable Dr. B. R. Ambedkar: This will be looked into. This need not be put to vote.

[Clause 7 was added to the Bill]

 

Clause 8

 

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[f9]  The Honourable Dr. B. R. Ambedkar: I do not accept the amendment.

[The amendment of Mr. B. Das was negatived. Clause 8 was added to the Bill]

 

Clause 9

 

[f10]  The Honourable Dr. B. R. Ambedkar: Sir, with your permission, I would like to move the amendment which have been put in a somewhat different form because I thought that the amendments as tabled rather create a confusion. If you will allow me, I have put all these in a consolidated form. There is no substantial change at all. It is just a matter of form and I thought that the House would be in a better position to get at the idea of what we are doing in clause 9.

Mr. President: Yes.

The Honourable Dr. B. R. Ambedkar : Sir, I move :

For clause 9, the following clause be substituted :—

(Amendments of the Government of India Act, 1935)

"9. (1) In section 205 of the Government of India Act, 1935 (hereinafter referred to as the said Act), for sub-section (2) the following sub-section shall be substituted, namely-

"(2) Where such certificate is given, any party in a case may appeal to the Federal Court on the ground that any question as aforesaid has been wrongly decided and, with the leave of the Federal Court, on any other ground."

2) In section 209 of the said Act, for sub-sections (1) and (2) the following sub-sections shall be substituted, namely :—

 

(Act V of 1908)

"(1) The Federal Court in the exercise of its appellate jurisdiction may pass . such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, including an order for the payment of costs, and any decree so passed or order so made shall be enforceable throughout the territory of India"."

I should like to add one or two words to be interpolated, which have been omitted:

" In the manner provided in that behalf in the Code of Civil Procedure, 1908, or in such other manner as may be prescribed by or under a law of the Dominion Legislature, or subject to the provisions of any such law, in the manner prescribed by rules made by the Federal Court."

" (3) In clause (a) of sub-section (3) of Section 210 of the said Act, for the word, brackets and figure " sub-section (2)", the word, brackets and figure " sub-section (1)" shall be substituted."

"(4) In section 214 of the said Act, after sub-section (1) the following sub-section shall be inserted, namely :—"

I should like to add a few words at the beginning.

(Act V of)

" (IA) Subject to the provisions of the Code of Civil Procedure, 1908, or any law made

by the Dominion Legislature, the Federal Court may also from time to time, with the approval of the Governor-General, (1908)

make rules of court for regulating the manner in which any decree passed or order made by it in the exercise of its appellate jurisdiction may be enforced."

The object of clause 9 is to make the Federal Court a complete and independent Court. There were certain limitations under the existing Government of India Act, 1935 which prevented the Federal Court from drawing up its own decrees. It had to send the matter to the Trial Court. All these limitations it is necessary to withdraw because the Federal Court is going to take the place of the Privy Council.

 

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[f11]  The Honourable Dr. B. R. Ambedkar : That amendment, I submit, is outside the scope of the Bill. The Bill deals merely with the transfer of jurisdiction.

Pandit Thakur Das Bhargava ; It is not a question of transfer of jurisdiction. I only give what is contained in clause 5 and am defining what jurisdiction shall be conferred, not leaving it to investigation as to what the prerogative of His Majesty was, I am only making these powers in a concrete form from what it is in the abstract...

The Honourable Dr. B. R. Ambedkar : This Bill does not propose to give any direction to the Federal Court as to the manner in which they should exercise the jurisdiction with which they become vested under the present Bill.

 

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Clause 11

 

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[f12]  The Honourable Dr. B. R. Ambedkar: Sir, I do not accept that amendment, it is quite unnecessary.

[The amendment of Mr. Naziruddin Ahmad was negatived.]

 

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Clause I

 

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[f13]  Mr. President : Do you wish to say anything about this ?

The Honourable Dr. B. R. Ambedkar: The emphasis is on the abolition of the jurisdiction of the Privy Council, and obviously that emphasis could not be realised if the words " abolition of jurisdiction " were put in brackets.

Mr. President : Do you wish to say anything about the 7th amendment ?

The Honourable Dr. B. R. Ambedkar : Sir, the acceding States were never subject to the jurisdiction of the Privy Council. But as a measure of extreme caution, it will be seen that in sub-clause (2) (he words used are " within the territory of India ". Therefore, it is unnecessary to make any mention of the acceding States.

Mr. President : I shall now put the amendments to vote.

[All amendments were rejected. Clause I was added to the Bill.]

 

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The Honourable Dr. B. R. Ambedkar : Sir, I move :

" That the Bill, as amended, be passed ".

{The motion was adopted.]

 

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ARTICLE 303— (contd.)

 

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[f14]  The Honourable Dr. B. R. Ambedkar: I move :

" That after sub-clause (1) of clause (1) of article 303, the following sub-clauses be inserted, namely :-

(II) " High Court " means any court which is deemed for the purposes of this Constitution to be a High Court for any State and includes—

(i) any court in the territory of India constituted or re-constituted under this Constitution as a High Court and

(ii) any other court in the territory of India which may be declared by Parliament by law to be a High Court for all or any of the purposes of this Constitution.

(Ill) " Indian State " means—

(i) as respects the period before the commencement of this Constitution, any territory which the Government of the dominion of India recognised as such a State; and

(ii) as respects any period after the commencement of this Constitution, any territory not being part of the territory of India which the President recognises as being such a State.' "

 

Mr. President : There is no amendment to this. As no one wishes to speak on this I will put it to vote.

[The motion was adopted]

 

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[f15]  The Honourable Dr. B. R. Ambedkar : I beg to move :

" That after sub-clause (n) of clause (i) of article 303, the following subclause be inserted, namely :—

'(nn) 'Ruler ' in relation to a State for the time being specified in Part III of the First Schedule means the person who for the time being is recognised by the President as the Ruler of the State and includes any person for the time being recognised by the President as exercising the powers of the Ruler of the State, and in relation to an Indian State means the Prime. Chief or other person recognised by the Government of the Dominion of India or the President as the Ruler of the State'"

 

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Mr. President: There is no amendment to this. I will put it to vote.

[The amendment was adopted.]

[f16]  The Honourable Dr. B. R. Ambedkar: Sir, I move:

"That with reference to amendment No. 147 of List IV (Eighth Week), for sub-clause (w) of clause (1) of article 303, the following sub-clause be substituted:—

' (w) ' Scheduled Castes ' means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 300A of this Constitution to be Scheduled Castes for the purposes of this Constitution.' "

The only change is, the word ' specified ' has been changed to ' deemed ',

Sir, I move:

" That with reference to amendment No. 148 of list IV (Eighth Week), for sub-clause (x) of clause (1) of article 303, the.following sub-clause be substituted :—

' (x) ' Scheduled tribes ' means such tribes or tribal coiTimunities or parts of or groups within such tribes or tribal communities as are deemed under article 300B of this Constitution to be scheduled tribes for the purposes of this Constitution,"

I am incorporating the other amendment which has also been tabled. Shall we take up, the two other articles also at the same time ?

Mr. President: Yes.

 

NEW ARTICLE 300A and 300B

 

The Honourable Dr. B. R. Ambedkar: Sir, I move:

" That after article 300, the following articles be inserted:—

(Scheduled Castes)

300A. (1) The President may, after consultation with the Governor or Ruler of a state public notification specify the castes, races or tribes or parts of or groups within castes, races or tribes, which shall for purposes of this Constitution be deemed to be Scheduled Castes in relation to that State.

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued by the President under clause (1) of this article any caste, race or tribe or part of or group within any caste, race or tribe, but save an aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

Scheduled Tribes

300B. (1) The President may after consultation with the Governor or Ruler of a State, by public notification specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for purposes of this Constitution be deemed to be scheduled tribes in relation to that State.

(2) Parliament may by law include in or exclude from the list of scheduled tribes specified in a notification issued by the President under clause (1) of this article any Tribe or Tribal community or part of or group within any Tribe or Tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."

The object of these two articles, as I stated, was to eliminate the neccessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State should have the power to issue a general notification in the Gazette specifying all the Castes and Tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the Government of each State, thereafter, if any elimination was to be made from the List so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President.

 

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[f17]  Mr. President: Does anyone else wish to speak ? Do you wish to say anything Dr. Ambedkar ?

The Honourable Dr. B. R. Ambedkar: I do not accept the amendment of Pandit Thakur Das Bhargava.

Mr. President: Then I put the amendments

[Both the above amendments of Dr. Ambedkar were adopted. Following amendment of Pandit Bhargava was negatived.]

 

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" That in amendment No. 201 of list V (Eighth Week), in clause (2) of the proposed new article 300A, the following be added at the end :— ' for a period of ten years from the commencement of this Constitution.'

 

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[f18]  Mr. President : Then I put Mr. Krishnamachari's amendment which has really been accepted by Dr. Ambedkar—218A. The question is:

"That in amendment No. 201 of List V (Eighth Week), in the proposed new article 300B—

(a) in clause (1), for the word ' communities ' in the two places where it occurs, the words ' tribal communities ' be substituted;

(b) in clause (2) for the word ' community ', in the two places where it occurs, the words ' tribal community ' be substituted." (The amendment was adopted.)

Mr. President: Then I put article 300B as proposed by Dr. Ambedkar.

(Article 300B was adopted and added to the Constitution)

 

EIGHTH SCHEDULE

 

[f19]  The Honourable Dr. B. R. Ambedkar: Sir, I move:

" That the Eighth Schedule be deleted."

Mr. President : There are certain amendments to the Eighth Schedule. They would not arise now.

The Honourable Dr. B. R. Ambedkar : No. Sir, they would not arise.

(Schedule Eight was deleted from the Constitution).

 

ARTICLE 303— (contd.)

 

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[f20]  The Honourable Dr. B. R. Ambedkar : Sir, I move :

" That in clause (2) of article 303, the following words be added at the end :—

' as it applies for the interpretation of an Act of the Legislature of the Dominion of India.' "

The reference is to the General Clauses Act.

Shri Jaspat Roy Kapoor : I wonder whether there is any real necessity for making this. Even if it is, I do not know how far it would be correct if you have it like this " as it applies for the interpretation of an Act of the Legislature of the Dominion of India ". Because, hereafter when the Constitution has come into force, there shall be no law which has been made by ' the Legislature of the Dominion of India '. The Dominion of India will cease then and all the Acts in force within the ; Dominion of India will automatically become Acts of the Union.

The Honourable Dr. B. R. Ambedkar: The point is this that the l General Clauses Act applies to Acts, Regulations and Ordinances. It is therefore necessary to say to which class of these laws this will apply. That is the reason why this amendment is proposed.

 

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Shri Jaspat Roy Kapoor : What I mean to submit is that after the Constitution comes into force there shall be no law in existence which could be said to be a law of the ' Dominion of India '. So I think our purpose would be fully served if we say " as it applies for the interpretation of any existing Act."

The Honourable Dr. B. R. Ambedkar: I am afraid you have not examined the General Clauses Act.                                     '

Shri Jaspat Roy Kapoor : It is no use introducing some provision without carefully scrutinising it                               -

The Honourable Dr. B. R. Ambedkar : It had better be left to the draftsmen as to what is necessary and what is not.                   

Shri Jaspat Roy Kapoor: I agree that any necessary corrections should be left to the Drafting Committee. But there is no harm in submitting a mistake if it is a mistake.

The Honourable Dr. B. R. Ambedkar : I refuse to accept, it is a mistake.

Shri Jaspat Roy Kapoor : I know it is not easy to convince you.

 

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[f21]  The Honourable Dr. B. R. Ambedkar: Sir, I have said what I had to say and after having seen the General Clauses Act right here, I am quite convinced that the amendment I have moved is a very necessary amendment.

Mr. President : The question is :

" That in clause (2) of article 303, the following words be added at the end :—

' as it applies for the interpretation of an Act of the Legislature of the Dominion of India.' "

(The amendment was adopted)

Mr. President : Then clause (3). There is amendment No. 156.

The Honourable Dr. B. R. Ambedkar : Sir, I move :

" That in clause (3) of article 303—

(i) after the word and figure ' Part I ' the words and figures ' or Part III' be inserted.

(ii) for the words ' as the case may be, to an Ordinance made by a Governor ' the words ' to an Ordinance made by a Governor or Ruler, as the case may be ' be substituted."

It is purely consequential.

The amendment was adopted.

[Article 303, as amended, was added to the Constitution.]                           

 

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ARTICLE 304

 

[f22]  The Honourable Dr. B. R. Ambedkar : Sir, I move

"That for article 304, the following be substituted:—

(Procedure for amendment of the Constitution)

' 304. An amendment of the Constitution may be initiated by the introduction of a Bill for the purpose in either House of Parliament and when the Bill is passed in each House by a majority of die total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in—

(a) any of the Lists in the Seventh Schedule, or

(b) the representation of States in Parliament, or

(c) Chapter IV of Part V, Chapter VII of Part VI, and article 213A of this Constitution,the amendment shall also require to be ratified by the Legislatures of not less than one half of the States for the time being specified in Parts I and III of the First Schedule.' "

I will move my other amendment also. No. 207. I move :

"That in amendment No. 118 of List III (English Week), for the proviso to the proposed article 304 the following proviso be substituted:— '

Provided that if such amendment seeks to make any change in—

(a) article 43, article 44, article 60, article 142 or article 213A of this Constitution, or

(b) Chapter IV of Part V, Chapter VII of Part VI, or Chapter I of Part IX of this Constitution, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one half of the States for the time being specified in Parts I and III of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.' "

Sir, I do not wish to say anything at this stage because I anticipate that there would be considerable debate on this article and I propose to reserve my remarks towards the end so that I may be in a position to explain the points that might be raised against this amendment.

Mr. Naziruddin Ahmad: It is far better to give the arguments in advance to avoid any unnecessary debate.

The Honourable Dr. B. R. Ambedkar: If my friend will guarantee to me that he will not take time, I will do it, but I know my friend will have his cake and eat it too.

Mr. Naziruddin Ahmad : Sir, Dr. Ambedkar will give no argument at the beginning, saying that he will await arguments and speak in reply. But in the end on hearing arguments, he will merely say " I oppose the amendments and reject the arguments"!

Mr. President: We shall take up the amendments. No. 119.

Shri T. T. Krishnamachari: Sir, I am not moving amendment No. 119 because it is incorporated in Dr. Ambedkar's amendment. It is covered by No. 207.

 

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[f23]  The Honourable Dr. B. R. Ambedkar: Mr. President, Sir, of the many amendments that have been made and the speeches made thereon, it is not possible for me to pursue every amendment and to pursue every speaker. But I am going to take as a general alternative suggested by the various speakers that our Constitution should be made open for amendment by the future Parliament either by a simple majority or by a method which is much more facile than that embodied in article 304.

Sir, before I proceed to explain the provisions contained in article 304, I should like to remind the House of the provisions which are contained in other constitutions on the question of amending the Constitution. I should begin by telling the House that the Canadian Constitution does not contain any provision for the amendment of the Canadian Constitution. Although Canada today is a Dominion, is a sovereign State with all the attributes of sovereignty and the power to alter the Constitution, the Canadians have not thought it fit to introduce a clause even now permitting the Canadian Parliament to amend their Constitution. It has also to be remembered that the Canadian Constitution was forged as early as 1867 and there is not the slightest doubt about it in the mind of anybody who has read the different books on the Canadian Constitution that there has been a great deal of discontent over the various clauses in the Canadian Constitution and even on the interpretation given by the Privy Council on the provisions of the Canadian Constitution; nonetheless the Canadian people have not thought fit to employ to powers that have been given to them to introduce a clause relating to the amendment of the Constitution.

I come to the Irish Constitution. In the Irish Constitution there is a provision that both Houses by a simple majority may alter, or repeal any part of the Irish Constitution provided that the decision of the Houses to amend, repeal or alter the Constitution is submitted to the people in a referendum and approved by the people by a majority.

Then let us take the Swiss Constitution. In that constitution too, the legislature may pass an amending Bill, but that amendment does not have any operative force unless two conditions are satisfied: one is that the majority of the cantons accept the amendment, and secondly—there is a referendum also—in the referendum the majority of the people accept the amendment. The mere passing of a Bill by the Legislature in Switzerland has no effect so far as changing the Constitution is concerned.

Let me now take the Australian Constitution. In that Constitution the provision is this : That the amendment must be passed by an absolute majority of the Australian Parliament. Then, after it has been so passed, it must be submitted to the approval of persons who are entitled to elect representatives to the Lower House of the Australian Parliament. Then again it has to be submitted to areferendum of the people or the electors. A further condition is this : that it must be accepted by a majority of the States and also by a majority of the electors.

In the United Constitution the provision is that an amendment must be accepted by two-thirds majority of both Houses subject to the fact that the decision of both Houses by two-thirds majority must be ratified by the decision of two-thirds majority of the States in favour of the amendment. I cite these facts in order to point out that in no country to which I have made reference it is provided that the Constitution should be amended by a simple majority

Now let me turn to the provision of our Constitution. What is it that we propose to do with regard to amendment of our Constitution ? We propose to divide the various articles of the Constitution into three categories. In one category, we have placed certain articles which would be open to amendment by Parliament by a simple majority. That fact unfortunately has not been noticed by reason of the fact that mention of this matter has not been made in article 304, but in different other articles of the Constitution. Let me refer to some of them. Take for instance articles 2 and 3 which deal with the States. So far as the creation of new States in concerned or the re-constitution of existing States is concerned, this is a matter which can be done by Parliament by a simple majority. Similarly, take for example article 148-A which deals with the Upper Chambers in the provinces. Parliament has been given perfect freedom to either abolish the Upper Chamber or to create new Second Chambers in provinces which do not now have them by a simple majority. Now take article 213 which deals with the States in Part II. With regard to the constitution of the States, the draft Constitution also leaves the making of constitution of States in Part II and their modification to Parliament to be decided by a simple majority.

Again take Schedule V and VI. They are also left to be amended by Parliament by a simple majority. I can cite innumerable articles in the Constitution, such as article 255, which deals with grants and financial provisions which leave the matter subject to law made by Parliament. The provisions are ' until Parliament otherwise provides '. Therefore in many matters—1 have not had time to examine the whole of the draft Constitution and so I am only just illustrating my point—we have left things in our Constitution in a way which is capable of being amended by a simple majority. If my friends who have been persisting in the criticism that Parliament should have more extensive powers of amending or altering the Constitution by a simple majority had suggested to me a concrete case and referred to any definite article that that should also be put in that category, it would have been open to the Drafting Committee to consider the matter. Instead of that, to say that the whole of the Constitution should be left liable to be amended by Parliament by majority is, in my judgement, too extravagant and too tall an order to be accepted by people responsible for drafting the Constitution.

Therefore, the first point which I wanted to emphasise was that it is absolutely a misconception to say that there is no article in the constitution which could not be amended by Parliament by a simple majority. As I said, we have any number of articles in our Constitution which it would be open for Parliament to amend by a bare majority.

Now, what is it we do? We divide the articles of the Constitution under three categories. The first category is the one which consists of articles which can be amended by Parliament by a bare majority. The second set of articles are articles which require two-thirds majority. If the future Parliament wishes to amend any particular article which is not mentioned in Part III or article 304, all that is necessary for them is to have two-thirds majority. Then they can amend it.

Mr. President : Of Members present.

The Honourable Dr. B. R. Ambedkar : Yes. Now, we have no doubt put certain articles in a third category where for the purposes of amendment the mechanism is somewhat different or double. It requires two-thirds majority plus ratification by the States. I shall explain why we think that in the case of certain articles it is desirable to adopt this procedure.-lf Members of the House who are interested in this matter are to examine the articles that have been put under the proviso, they will find that they refer not merely to the Centre but to the relations between the Centre and the Provinces. We cannot forget the fact that while we have in a large number of cases invaded provincial autonomy, we still intend and have as a matter of fact seen to it that the federal structure of the Constitution remains fundamentally unaltered. We have by our laws given certain rights to provinces, and reserved certain rights to the Centre. We have distributed legislative authority; we have distributed executive authority and we have distributed administrative authority. Obviously to say that even those articles of the Constitution which pertain to the administrative, legislative, financial and other powers, such as the executive powers of the provinces should be made liable to alteration by the Central Parliament by two-thirds majority, without permitting the provinces or the States to have any voice, is in my judgement altogether nullifying the fundamentals of the Constitution. If my honourable Friends were to refer to the articles which are included in the proviso they will see that we have selected very few. Article 43 deals with the election of the President; article 44 deals with the manner of election of the President. It was the view of the Drafting Committee that the President, while no doubt in charge of the affairs of the Centre, none the less was the head of the Union, and as such, the provinces were as much interested in his election and in the manner of his election as the Centre. Consequently we thought that this was a proper matter to be included in that category of articles which would require ratification by the provinces.

Take article 60 and article 142. Article 60 deals with the extent of the executive authority of the Union and article 142 deals with the extent of the executive authority of the State. We have laid down in our Constitution the fundamental proposition that executive authority shall be co-extensive with legislative authority. Supposing, for instance, the Parliament has the power to make an alteration in article 60 for extending the executive authority beyond the provisions or the limit contained in article 60, it would undoubtedly undermine or limit .the executive authority of the States as defined in article 142 and we therefore thought that that also was a fundamental matter and ought to require the ratifications of the States.

Chapter IV, Part V, deals with the Supreme Court. There can be no doubt about it that the Supreme Court is a court in which both the Centre and the provinces or the units and every citizen of this country are interested, and it was therefore a matter which ought not to be left to be decided merely by a two-thirds majority. The same about the High Courts, mentioned in Chapter VII of Part VI.

Chapter I of Part IX which is included in the third category, deals with the distribution of legislative power, and (a) deals with the lists of the Seventh Schedule. Nobody can deny that the provinces have a fundamental interest in this matter and that they should not be altered without their consent. Similarly the representation of the States in the Council of States which is dealt with in article 67.

I think honourable Members will see that the principles adopted by the Drafting Committee are unquestionable, except in the sight of those who think that the Constitution should be liable, should be open to be amended every article of that—by a simple majority. As I said, I am not prepared to accept that position. The Constitution is a fundamental document. It is a document which defines the position and power of the three organs of the State—the executive, the judiciary and the legislature. It also defines the powers of the executive and the powers of the legislature as against the citizens, as we have done in our Chapter dealing with Fundamental Rights. In fact, the purpose of a Constitution is not merely to create the organs of the State but to limit their authority, because if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression. The legislature maybe free to frame any law; the executive may be free to take any decision; and the Supreme Court may be free to give any interpretation of the law. It would result in utter chaos. Sir I have not been able to understand when it is said that the Constitution must be made open to amendment by a bare majority. I can, applying my mind to this particular feeling, conceive of only three reasons. One is that the Drafting Committee has prepared a draft which from the drafting point of view is very bad. I can quite understand that position. If that is the thing.... [f24] 

Shri Mahavir Tyagi : It is not so.

The Honourable Dr. B. R. Ambedkar : It may not be so. If it is so, I as Chairman of the Drafting Committee and I think my other colleagues of the Drafting Committee would not at all object if this Constituent Assembly were to appoint another Drafting Committee or to import a Parliamentary draftsman submit this draft to him and ask him to suggest and find out what defects there are. That would be an honest procedure and I have no objection to it at all.

If that is not the ground on which the argument rests, then the other ground is that this Constitution proceeds on some wrong principles. Sir, so far as this matter is concerned, it seems to me that a modem constitution can proceed only on two bases: One base is to have a parliamentary system of government. The other base is to have a  totalitarian or dictatorial form of government. If we agree that our Constitution must not be a dictatorship but must be a Constitution in which there is parliamentary democracy where government is all the time on the anvil, so to say, on its trial, responsible to the people, responsible to the judiciary, then I have no hesitation in saying that the principles embodied in this Constitution are as good as, if not better than, the principles embodied in any other parliamentary constitution.

The other argument which perhaps might have been urged—1 was not able to hear every Member who spoke—is that this Assembly is not a representative assembly as it has not been elected on adult suffrage, that the large mass of the people are not represented in this Constitution. Consequently this Assembly in framing the Constitution has no right to say that this Constitution should have the finality which article 304 proposes to give it. Sir, it may be true that this Assembly is not a representative assembly in the sense that Members of this Assembly have not been elected on the basis of adult suffrage. I am prepared to accept that argument, but the further inference which is being drawn that if the Assembly had been elected on the basis of adult suffrage, it was then bound to possess greater wisdom and greater political knowledge is an inference which I utterly repudiate.

Mr. Naziruddin Ahmad: It would have been worse!

The Honourable Dr. B. R. Ambedkar : It might easily have been worse, says my Friend Mr. Naziruddin Ahmad, and I agree with him. Power and knowledge do not go together. Often times they are dissociated, and I am quite frank enough to say that this House, such as it is, has probably a greater modicum and quantum of knowledge and information than the future Parliament is likely to have. I therefore submit. Sir, that the article as proposed by the Drafting Committee is the best that could be conceived in the circumstances of the case. Mr. President : I shall now put the amendments to vote.

[The amendments were negatived and those of Dr. Ambedkar, as mentioned earlier were adopted. Article 304, as amended, was added to the Constitution.]

 

*           *           *           *           *

[f25]  Shri Brajeshwar Prasad : Sir, now the time is seven o'clock.

Seth Govind Das : There is so much still to be done that I do not think that we shall be able to finish It. So, I propose that either we should sit at nine o'clock tonight and go on till twelve o'clock or we may sit tomorrow morning.

The Honourable Dr. B. R. Ambedkar: We have got only three articles.

Shri T. T. Krishnamachari ; We have only three articles, two of which are of a formal nature.

Mr. President : I think it would be very inconvenient to adjourn now and come back again to the House. So we have to sit until we finish or we have to sit tomorrow.

The Honourable Dr. B. R. Ambedkar : We have got two or three articles and I am sure they are non-contentious and it would not take even half an hour.

Seth Govind Das : I do not think we can finish in one hour. There is the question of the name of the country in article I to be settled. I do not think we shall be able to finish all these.

Mr. President : The majority of the House seems to think that we shall continue. Am I correct ?

Many Honourable Members : Yes, Sir.

The Honourable Dr. B. R. Ambedkar : We can finish the thing.

Mr. Naziruddin Ahmed : It cannot be done. There is article I and unless the sweets are arranged by Dr. Ambedkar, the nmakaranam ceremony cannot be done today.

 

ARTICLE 99

 

Mr. President : Then we shall take articles 99 and 184.

[f26]  The Honourable Dr. B. R. Ambedkar : Sir, I move.

" That for article 99, the following article be substituted :—

(Language to be used in Parliament)

' 99. (1) Notwithstanding anything contained in Part XIVA of this constitution but

subject to the provisions of article 301-F there of business in Parliament shall be translated in Hindi or in English.

Provided that the Chairman of the Council of States or Speaker of the House of the People or person acting as such, as the case may be, may permit any member, who cannot adequately express himself in either of the languages aforesaid to address the House in the mother tongue.

(2) Unless Parliament by law otherwise provides, this article shall, after the expiration of a period of fifteen years from the commencement of this Constitution, have effect as if the words ' or in English ' were omitted therefrom.' "

May I move the other one also. This is an analogous thing.

Mr. President : I suppose the argument will be the same in respect of both.

The Honourable Dr. B. R. Ambedkar : They are substantially the same.

Mr. President : I shall put them separately to vote.

The Honourable Dr. B. R. Ambedkar : We can have one discussion. So far as the discussion is concerned, the argument will be more or less the same. Sir, I move :

' That for article 184, the following article be substituted :— '

(Language to be used in the Legislatures of States)

184. (1) Notwithstanding anything contained in Part XIVA of this Constitution but

subject to the provisions of article 301-F thereof, business in the Legislature of a State shall be transacted in the official language or languages of the State or in Hindi or in English.

Provided that the Speaker of the Legislative Assembly or Chairman of the Legislative Council or person acting as such, as the case may be, may permit any member who cannot adequately express himself in any of the languages aforesaid to address the House in his mother tongue.

(2) Unless the Legislature of the State otherwise provides, this article shall, after the expiration of a period of fifteen years from the commencement of this Constitution, have effect as if the words ' or in English ' were omitted therefrom'." Sir, I think no observations are necessary. The articles are very clear in themselves.

 

*           *           *           *           *

[f27]  Mr. Nazaruddin Ahmad : ...If you do not allow the regional languages also to develop, their contribution towards the development of the official language will be very small.

Mr. President : Is that not given in the amendment as proposed now ?

Mr. Naziruddin Ahmad: I shall ask the Drafting Committee to consider that. This is only a suggestion; it should fit in somehow. I know this is only a pious sentiment on my part because it is not going to be accepted.

Pandit Lakshmi Kanta Maitra : Are you going to allow discussion on the language question ? The whole language question is coming before the House.

The Honourable Dr. B. R. Ambedkar : No, No. The whole question has been discussed and decided.

[Amendments of Dr. Ambedkar mentioned above were adopted. Articles 99 and 184, as amended were added to the Constitution.]

 

*           *           *           *           *

ARTICLE  I

 

[f28]  Mr. President : There is one more article, article 1.

The Honourable Dr. B. R. Ambedkar: Sir, I propose to move amendment No. 130 and incorporate in it my amendment No. 197 which makes a little verbal change in sub-clause (2).

Sir, I move:

" That for clauses (1) and (2) of article I, the following clauses be substituted :—

" (1) India, that is, Bharat shall be a Union of States.

(2) The States and the territories thereof shall be the States and their territories for the tune being specified in Parts I, II and III of the First Schedule.' "

 

*           *           *           *           *

[f29]  Mr. President : If I adjourn at all, it will be for the next session. It will be best to adjourn till the next session.

The Honourable Dr. B. R. Ambedkar ; Sir, this can be finished in a short time.

Mr. President: What can we do? It is open to any Member to obstruct. Eighty six Members are present and under our rules one-third of the total number of Members should constitute the quorum, and that is about 97. So now, there is no quorum. I have to adjourn the House, there is no help.

An Honourable Member : Let this article go to the next session.

Another Honourable Member : We can meet to-morrow.

Another Honourable Member : There is no guarantee of quorum even tomorrow.

The Honourable Dr. B. R. Ambedkar : We can bring some Members who may be outside. The bell may be rung.

 

*           *           *           *           *

[f30]  Shri H. V. Kamath : ...Some ascribe it (name of Bharat) to the son of Dushyant and Shakuntala who was also known as " Sarvadamana " or all conqueror and who established his suzerainty and kingdom in this ancient land. After him this land came to be known as Bharat. Another school of research scholars hold that Bharat dates back to Vedic....

The Honourable Dr. B. R. Ambedkar (Bombay: General): Is it necessary to trace all this ? I do not understand the purpose of it. It may be well interesting in some other place. My friend accepts the word " Bharat ". The only thing is that he has got an alternative. I am very sorry but there ought to be some sense of proportion, in view of the limited time before the House.

Shri H. V. Kamath: I hope it is not for Dr. Ambedkar to regulate the business of the House. Mr. President: What amendment are you moving ?

 

*           *           *           *           *

[f31]  Mr. President: You can move one. I permitted you to move both of them, but I find that the two amendments are contradictory.

Shri H. V. Kamath: Are they contradictory. Sir ? If you say they are contradictory, I have nothing to say.

Mr. President: Yes, if one is accepted, the other is ruled out.

Shri H. V. Kamath: My object is that if one is not accepted, the other may be accepted.

The Honourable Dr. B. R. Ambedkar: Why all this eloquence over it ?

Shri Shankarrao Deo (Bombay: General): There should be no arguing with the Chair.

Shri H. V. Kamath: I know the rules, Mr. Shankarrao Deo.

Mr. President: You can move one.

 

*           *           *           *           *

[f32]  The Honourable Dr. B. R. Ambedkar: It is proposed to alter the clause in article 3 dealing with the reorganisation of the provinces and States. States in both Parts I and III will be brought on the same level. There is an amendment to the article and that difference is going to be eliminated and it will disappear.

Shri B. M. Gupte: That is alright but as I was saying I am not against making the Centre strong. But at the same time we have given a glorified name to the units. We are taking away the powers of the States and bringing them in the Central or Concurrent list; and yet we have adopted the word State for the unit....

 

*           *           *           *           *

[f33]  The Honourable Dr. B. R. Ambedkar: Sir, this matter was debated at great length last time. When this article came before the House, it was kept back practically at the end of a   very long debate because at that time it was not possible to come to a decision as to whether the word " Bharat " should be used after the word " India " or some other word, but the whole of the article including the term " Union "—if I remember correctly— was debated at great length. We are merely now discussing whether the word " Bharat" should come after " India ". The rest of the substantive part of the article has been debated at great length.

Shri B. M. Gupte: I do not say that we should go back upon what we have done. I am merely pointing out the implications and the result of all this....

[f34]  Shri Kamalapati Tripathi: ...When we pronounce this word (Bharat) we are reminded of Shankaracharya, who gave a new vision to the world. When we pronounce this word, we are reminded of the mighty arms of Bhagwan Rama  which by twanging the chord of the bow sent echoes through the Himalayas, the seas around this land and the heavens. When we pronounce this word, we are reminded of the wheel of Lord Krishna which destroyed the terrible Imperialism of Kshatriyas from India and relieved this land of its burden.                                    ;

The Honourable Dr. B. R. Ambedkar: Is this all necessary, Sir?

Shri Kamalapati Tripathi: I am just telling you to hear relevant things, Sir.

The Honourable Dr. B. R. Ambedkar: There is a lot of work to be done.

Shri Kamalapati Tripathi: When we pronounces this word we are reminded of Bapu who gave a new message to humanity.

We are pleased to see that this word has been used and we congratulate  Dr. Ambedkar on it. It would have been very proper, if he had accepted the amendment' moved by Shri Kamath, which states "Bharat as is known in English language 'India"'... etc.

ARTICLE 306

[f35]  Mr. President : We shall now proceed with the consideration of the articles relating to transitory provisions. Article 306.

The Honourable Dr. B. R. Ambedkar (Bombay : General) : Sir, I Move:

" That for clauses (a), (b) and (c) of article 306, the following clauses be substituted:—

" (a) trade and commerce within a State in, and the production, supply and distribution of, cotton and woollen textiles, raw cotton (including ginned cotton and unginned cotton or Kapas). cotton seed, paper (including newsprint), foodstuffs (including edible oilseeds and oil), coal (including coke and derivatives of coal), iron steel and mica ;

(b) offences against laws with respect to any of the matters mentioned in clause

(a), jurisdiction and powers of all courts except the Supreme Court with respect to any of those matters, and fees in respect of any of those matters but not including fees taken in any court.' "

The only changes which the amendment seeks to make in the original article 306 are these. From sub-clause (a), it is now proposed to omit petroleum and petroleum products and mechanically propelled vehicles. The reason why petroleum and petroleum products are sought to be omitted from sub-clause (a) is because that item is now included in List I of the Seventh Schedule. Mechanically propelled vehicles are omitted because they are at present de-controlled and they are placed in the Concurrent List. If the Centre wishes to legislate, it can legislate. Sub clause (b) of the original article, relief and rehabilitation of displaced persons, is no longer necessary because that is also put in the Concurrent List. In regard to sub-clause (c). Inquiries and Statistics is also included in the Concurrent List and therefore this is also omitted. It is only a consequential thing. These are all the changes which this amendment seeks to make in the original article 306.

Mr. President : May I enquire of Dr. Ambedkar ? My impression is that cattle fodder including oil cakes and other concentrates was one of the things, adequate control over which was at one time felt necessary. The Government of India Act was sought to be amended; but it would not be amended at the time and considerable difficulty was being felt. I do not know whether you have considered that.

The Honourable Dr. B. R. Ambedkar : This article was re-drafted in consultation with the Industry and Supply Department. We have put in these matters which they thought were necessary to be controlled by the Centre, for a period of five years. If the House thinks that any particular addition may be made to the items included in sub-clause (a), I certainly have no objection.

Mr. President : I speak from my experience which is now rather out of date.

The Honourable Dr. B. R. Ambedkar : I think it is rather desirable to include that item.

Dr. P. S. Deshmukh (C.P. & Berar : General) : That may be done in consultation with the Agriculture Department.

Mr. President : That is what I suggest.

The Honourable Dr. B. R. Ambedkar : I think we shall add that. I can put in, foodstuffs including cattle fodder.

Mr. President: Cattle fodder including oil cakes and other concentrates.

 

*           *           *           *           *

[f36]  Mr. President : Does anyone else wish to speak ? Dr. Ambedkar ?

The Honourable Dr. B. R. Ambedkar : Sir, I have only to say this much. I am not able to accept the amendment moved by Shri Brajeshwar Prasad. With regard to the other amendment suggested by yourself and by my Friend Dr. Kunzru, I may say that I have an open mind and I am prepared to introduce the necessary amendments after consulation with the Ministry of Industry and Supply. Therefore my amedment may be put through now.

Mr. President : And the Ministry of Agriculture also. You may consult that Ministry also.''           

The Honourable Dr. B. R. Ambedkar : Yes, Sir, I will consult the Ministries concerned.

Mr. President : Subject to what Dr. Ambedkar has said, I will put the article to vote. I take up the amendments first. Amendment No. 2 of Dr. Deshmukh is more or less verbal and he may leave it to the Drafting Committee also No. 3. What about No. 4 ?

Dr. P. S. Deshmukh : I am not moving it.

 

*           *           *           *           *

[Amendment of Dr. Ambedkar was adopted. Article 306, as amended was added to the constitution.]

 

*           *           *           *           *

ARTICLE 309

 

[f37]  Mr. President : Then we take up article 309.

The Honourable Dr. B. R. Ambedkar : There is an amendment by Shri Brajeshwar Prasad adding a new article 307 A.             

Mr. President : But shall we take it up now ?

The Honourable Dr. B. R. Ambedkar : It may be kept back.      

 

*           *           *           *           *

 [Article 309 was adopted and added to the Constitution]

 

ARTICLES 310-A and 310-B

 

[f38]  Shri T. T. Krishnamachari : The next article viz., 310 is linked to article 308. These two may be considered together.

Mr. President : Consideration of article 310 is postponed. Then the House will take up consideration of the next articles 310-A and 310-B.

The Honourable Dr. B. R. Ambedkar : Sir, with your permission I move amendment No. 12 in a slightly amended form, thus :

" That after article 310, the following new articles be inserted :—

 

(Provisions as to Comptroller & Auditor-General of India.)

 

' 310 A. The Auditor-General of India holding office immediately before the date of commencement of this Constitution shall, unless he Provisions as to Comptroller and has elected otherwise, become on that date the Comptroller auditior general   of India' and Auditor-General of India and shall thereupon be entitled to such salaries and allowances and to such rights in respect of leave and pension as are provided for under clause (2) of article 124 of this Constitution in respect of the Comptroller and Auditor-General of India and shall be entitled to continue to hold office until the expiration of his term of office a.; determined under the provisions (?) which were applicable immediately before such commencement '.

(Provisions as to Public Service Commission)

310 B, (i) The members of the Public Service Commission for the Dominion of India holding Office immediately before the date of commencement of this Constitution shall, unless they have elected otherwise, become on that date the members of the Public Service Commission for the Union and shall, notwithstanding anything contained in clauses (1) and (2) of article 285 of this Constitution but subject to the proviso to clause (2) of that article continue to hold office until the expiration of their term of office as determined under the rules which were applicable immediately before such commencement to such members.

(2) The members of a Public Service Commission of a Province or of a Public Service Commission serving the needs of a group of Provinces holding office immediately before the date of commencement of this Constitution shall, unless they have elected otherwise, become on that date the members of the Public Service Commission for the corresponding State or the members of the Joint Public Service Commission serving the needs of the corresponding States, as the case may be, and shall, notwithstanding anything contained in clauses (/) and (2) of article 285 of this Constitution but subject to the proviso to clause (2) of that article, continue to hold office until the expiration of their term of office as determined under the rules which were applicable immediately before such commencement to such members."

Sir, these articles merely provide for the continuance of certain incumbents of the posts which are regulated by the Constitution such as the members of the Public Service Commission and the Auditor-General. There is no matter of principle involved in these articles.

 

*           *           *           *           *

[f39]  The Honourable Dr. B. R. Ambedkar : I do not propose to accept the amendment of Dr. Deshmukh. It is unnecessary.

Mr. President : I will first put the amendment of Dr. Deshmukh to vote.

The question is:

"That in amendment No. 12 of List I (First Week), in the proposed new article 310-B, after the words ' commencement of this Constitution ' wherever they occur, the words ' whose services have not, for any reason, been terminated ' be inserted. "

The amendment was negativated.

Mr. President : I will now put the articles contained in the amendment of Dr. Ambedkar one by one to vote.

[All amendments of Dr. Ambedkar were carried. Articles 310-A and 310-B were added to the constitution.]

 

ARTICLE 3 II-A

 

[f40]  The Honourable Dr. B. R. Ambedkar : Sir, I move :

" That after article 311, the following new article be inserted :

(Provisions as to Provisional President)

' 311 A. (1) Such person as the Constituent Assembly of the Dominion of India shall have elected in this behalf shall be the Provisional Provisions as  to Provisional  President of India until a President has been elected in President   accordance with the provisions contained in Chapter I of Part V of this Constitution and has entered upon his office.

(2) In the event of the occurrence of any vacancy in the office of the Provisional President by reason of his death, resignation, or removal, or otherwise, it shall be filled by a person elected in this behalf by the Provisional Parliament functioning under article 311 of this Constitution, and until a person is so elected, the Chief Justice of India shall act as the Provisional President '. "

Mr. President : There are two amendments to this. One is for the deletion of the word " provisional " before the word " President ".

The Honourable Dr. B. R. Ambedkar : Sir, I move :

" That in amendment No. 28 of List II (First Week), in clause (1) of the proposed article 311 A the word ' Provisional ' be deleted."

" That in amendment No. 28 of List D (First Week), in clause (2) of the proposed article 311 A, for the words ' provisional President ' in the first place where they occur, the words ' President so elected by the Constituent Assembly of the Dominion of India ', be substituted."

" That in amendment No. 28 of List II(First Week), in clause (2) of the proposed article 311 A, for the words ' the provisional President ' in the second place where they occur, the word ' President ' be substituted. "

Dr. P. S. Deshmukh : Since the principle underlying my amendment has been accepted, I do not see any reason for moving my amendment.

Mr. President : The article and the amendments are now open to discussion.

 

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[f41]  Prof. Shibban Lal Saksena : Mr. President, Sir, ...I hope Dr. Ambedkar will see the reasonableness of this suggestion and will omit the word " provisional " before the word " Parliament ", as he has done in the case of the President.

The Honourable Dr. B. R. Ambedkar: I do not think there can be any great objection to the retention of the words " provisional Parliament ". I do not propose to make any change in that. It would not be called the " Provisional Parliament " but for purposes of the language of this article I think it is necessary to say that it is the Provisional Parliament.

Shri R. K. Sidhva: But I thought that Dr. Ambedkar has agreed to omit the word " Provisional ".

Mr. President: No, this is with reference to the Parliament. Mr. Shibhan Lal Saksena wanted that the word " Provisional " should be omitted before the word " Parliament ",

Dr.P.S.Deshmukh: If that is so  I would like to move my amendment for the deletion of the word " Provisional " in the other place also. Mr. President : Does your amendment refer to Parliament also ?

Dr. P. S. Deshmukh : Yes, Sir.

Mr. President : Mr. Shibhan Lal Saksena has moved it. That will be put to the vote. I will now put the various amendments to vote. The question is:

" That ill amendment No. 23 of List D (First Week), in clause (/) of the propsed article 3 II-A the word ' provisional ' be deleted."

The amendment was adopted.

 

The Honourable Shri K. Santhanam (Madras : General) : Does it mean the word " Provisional " will be deleted before the word " Parliament " also ?

Mr. President : No ; that comes later on.

The question is—

" That in amendment No. 28 of List II(First Week), in clause (2) of the proposed article 3 II-A, for the words 'provisional President ' in the fast place where they occur, the words ' President so elected by the Constituent Assembly of the Dominion of India ' be substituted."

The amendment was adopted.

 

Mr. President : The question is :

" That in amendment No. 28 of List D (First Week), in clause (2) of the proposed article 3 II-A, for the words ' the provisional President ' in the second place where they occur, the word ' President ' be substituted."

The amendment was adopted.

Mr. President : Then I take up the amendment which was sought to be moved by Dr. Deshmukh but which was actually moved by Mr. Shibban Lal Saksena.

The question is:

" That in clause (2) of the proposed new article 311-A, the word ' provisional ' occurring before the word ' Parliament ' be deleted."

The amendment was negatived.

(Article 3 II-A, as amended, was added to the Constitution.)

 

ARTICLE 311-B

 

[f42]  The Honourable Dr. B. R. Ambedkar : Sir, I move :

" That after article 3 II-A the following new article be inserted :

(Council of Ministers of the Provisional President)

' 311-B. Such persons as the provisional President may appoint in this behalf shall become members of the Council of Ministers of the provisional President under this Constitution, and until appointments are made, all persons holding office as Ministers for the Dominion of India immediately before the commencement of the Constitution shall become and shall continue to hold office as members of the Council of Ministers of the Provisional President under the Constitution."

Dr. P. S. Deshmukh : Sir ,1 thank you for giving me this opportunity of moving this amendment of mine. I move :

" That ill amendment No. 13 above, in the proposed new article 311-B, the word ' provisional ' wherever it occures, be deleted."

May I add that since the Honourable Dr. Ambedkar has accepted the sense behind this amendment I do not wish to take up the time of the House any more. It becomes more or less a consequential amendment.

(Amendment No. 15 was not moved.)

Mr. President : I take it that Dr. Ambedkar accepts the amendment.

The Honourable Dr. B. R. Ambedkar : Yes, Sir, I do.

 

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[f43]  The Honourable Dr. B. R. Ambedkar: Mr. President, Sir, this article 311-B is merely a formal article permitting the President, so to say, to carry over the Ministry that may be existing immediately before the commencement of the Constitution. This article is analogous to the other article which we have already passed, relating to members of the Public Service Commission and to the Auditor-General. Consequently there is really no fundamental difference between those articles and this article. If those who have commented upon the provisions of this article 311-B contend that no Ministry ought to be appointed or function on the 26th of January, 1950, unless that Ministry has the confidence of the Parliament, I am quite prepared to accept that contention. But I do not quite understand how this article makes it impossible either for the Parliament or for the Ministry to obtain what might be called a vote of confidence. If the members of Parliament do not think that the existing Ministry is competent enough to discharge the functions which it has to perform, it is open to this House before the 26th of January to pass a vote of no confidence in the Ministry and thereby dismiss the Ministry. It would be equally open to the Prime Minister, before submitting the names of the members of the Cabinet to the provisional President, to obtain also a positive vote of confidence in himself and his Ministry from the House. If neither the Prime Minister nor the House desires to apply the test of no confidence or confidence before the 26th of January, 1950—assuming that to be the date for the operation of the Constitution—this article 311 -B does not take away the power from the House after the 26th of January to table a no-confidence motion and to dismiss that Ministry. Nor is the Prime Minister prevented by this article from coming forward after the appointment of the Ministry to obtain a positive vote of confidence in himself and the Ministry.

Therefore it seems to me that those who have commented upon the provisions of article 311-B, probably under the impression that this is a surreptitious attempt on the part of the existing Ministry to smuggle themselves, so to say, under the new Constitution, have been labouring under a misapprehension. The doors are perfectly open at present, and even after the 26th of January, for the House to take such action as the House prefers and to dismiss the Ministry if they do not like it. Therefore, this article is merely, as I said, a formal article permitting the carrying over of the existing Ministry into the New Constitution.

Shri H. V. Karnath : The Honourable Dr. Ambedkar has not answered the points raised by me. What about the oath of office I referred to ?

The Honourable Dr. B. R. Ambedkar : That will be taken undoubtedly. " Appointment " means taking the oath of office. Otherwise there is no apppointment.

Shri H. V. Kamath : On that very day ?

The Honourable Dr. B. R. Ambedkar : Yes, certainly. On that very day. " Appointment " includes oath of office.

Mr. President: I shall put Dr. Deshmukh's amendment to vote—1 take it that it has been accepted by the Mover.

[The amendment was adopted. Article 311-B, as amended, wan added to the Constitution.]

 

ARTICLE 312

 

[f44]  The Honourable Dr. B. R. Ambedkar : Sir, I move :

" That for article 312, the following article be substituted :—

(Provisions as to Provincial Legislature in each State)

' 312. (1) Until the House or Houses of the Legislature of each State for the time being specified in part of the First Schedule has or have been duly constituted and summoned to meet each State for the first section under the provisions of this Constitution, the House or Houses of the Legislature of the corresponding Province functioning immediately before the commencement of this Constitution shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of such State.

(2) Notwithstanding anything contained in clause (1) of this article, where a general election to reconstitute the Legislative Assembly of a Province was ordered before the commencement of this Constitution, the election may be completed after such commencement as if this Constitution has not come into operation and the assembly so reconstituted shall be deemed to be the Legislative Assembly of that Province for the purposes of that clause.

(3) Any person holding office as Speaker of the legislative Assembly or President of the Legislative Council of a Province immediately before the commencement of this Constitution shall after such commencement be the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case maybe of the corresponding State for the time being specified in Part I of the First Schedule while such Assembly or Council functions under clause (7) of this article :

Provided that where a general election was ordered for the reconstitution of the Legislative Assembly of a Province before the commencement of this Constitution and the first meeting of the Assembly as so reconstituted is held after such commencement the provisions of this clause shall not apply and the Assembly as reconstituted shall elect a member of the Assembly as the Speaker thereof.' "

The provisions are quite clear and I do not think that they require any explanation.

Mr. President : Are there any amendments to this ? I do not see any.

 

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[f45]  Shri M. Ananthasayanam Ayyangar : It all depends how long the interim period lasts, if it is a short one, there may not be any need for the dissolution. But what if it is otherwise '? We know every sitting Member will be anxious to continue and every other person who has not had a chance may like to have the House dissolved. I am not casting any aspersions on any particular Member. I only say that in the circumstances I have mentioned, there must be some provision whereby, if necessary, an opportunity can be had of changing the Assembly and going to the electorate.

The Honourable Dr. B. R. Ambedkar: Sir, after what has fallen from you, I do not think it is necessary for me to pursue the matter any further. So far as the merits of the amended article are concerned, I do not think anything has been said which calls for a reply.

Shri H. V. Kamath : What about the clause concerning the Speaker ?

The Honourable Dr. B. R. Ambedkar : That was there in the original draft.

Mr. President : I will now put article 312 to vote. The question is :

" That the proposed article 312 stand part of the Constitution."

The motion was adopted.

Article 312 was added to the Constitution.

 

ARTICLES 312-A TO 312-E, 312G AND 312-H

 

[f46]  The Honourable Dr. B. R. Ambedkar : Sir, I move :

" That after article 312, the following new aticles be inserted :-

(Provisions as to provincial Governor of Provinces)

' 312A.   Any person holding office of  Governor in   any Province immediately before the commencement of this constitution shall after such Governor of    commencement be the provisional the corresponding State for the time being specified in Part I of theFirst Schedule until a new Governor has been appointed in accordance with the provisions of chapter II of Part VI of this Constitution and has entered upon his office.

(Council of ministers of provisional Governor)

312B. Such persons as the provisional governor of a State may appoint in this behalf shall become members of the council of Ministers of the under this Constitution, and until Governors, appointments are so made, all persons holding office as Ministers for the corresponding State immediately before the commencement of this constitution shall become and shall continue to hold office as members of the Council of Ministers of the provisional Governor of the State under this Constitution.

(Provisions as to provisional  Legislatures in States in Part III of the First Schedule)

312C. Until the House or Houses of the Legislature of a State for the time being specified in Part III of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body or authority functioning immediately before such commencement as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified.

(Council of Ministers for States in Part III of the First Schedule)

312D. Such persons as the Rajpramukh of a State for the time being specified in Part III of the First Schedule may appoint in this behalf shall become members of the council of Ministers of such Rajpramukh under this Constitution and until appointments are so made, all persons holding office as Ministers immediately before the commencement of this Constitution in the corresponding Indian State shall become and shall continue to hold office as members of the council of Ministers of such Rajpramukh under this Constitution.

For article 312E I propose amendment No. 21 :

" That in amendment No. 16 above, for the proposed new article 3] 2E, the following be substituted :-

" 312E. For the purposes of elections held under any of the provisions of this Constitution during a period of three years from the commencemet of this Constitution the population of India or any part thereof may, notwithsanding anything contained in this Constitution, be determined in such manner as the President may by order direct.' "

(Provisions as to Bills pending in the dominion Legislature & in the Legislatures of Provinces & Indian States)

" 312G. A Bill which immediately before the commencement of this Constitution was pending in the Legislature of the Dominion of India or in the legislature of Province or Indian State may, subject to any provision to the contrary, which may he included in rules made by Parliament or the Legislature of the corresponding State under this Constitution, be continued in Parliament or the Legislature of the corresponding State, as the case may be, as if the proceedings taken with reference to the Bill in the Dominion Legislature or in the Legislature of the Province or Indian State had been taken in Parliament or the Legislature of the corresponding State.

(Transactions occurring between the commencement of the constitution & the 31st of March 1950)

312H. The provisions of this Constitution relating to the Consolidated Fund of India or of any State and appropriation of moneys out of such fund shall not apply in relation to moneys received or raised or expenditure incurred by the Government of India or the Government of any State between the commencement of this Constitution and the thirty-first day of March. 1950, both days inclusive, and any expenditure incurred during that period shall be deemed to be duly authorised if the expenditure was specified in a scheduled in a schedule of authorised expenditure athenticated in accordance with the provisions of the Government of India Act, 1935, by the Governor-General of the Dominion of India or the Governor of the correspoding Province or is authorised by the Rajprmukh of the State in accordence with such rules as were applicable to the authorisation of expenditure from the revenues of the corresponding Indian Slate immediately before such commencement"

I do not think there is anything necessary to say by way of explanation of these articles.

There are two amendments Nos. 18 and 19 on the Notice Paper proposing to omit the word ' provisional ' in articles 312A and 312B. I propose to accept these amendments in consonance with what we have already done.

Dr. P. S. Deshmukh ; Mr. President, I move :

" That in amendment No. 16 above, in the proposed new article 312B, the word ' provisional '„ wherever it occures, be deleted."

" That in amendment No. 16 above, in the proposed new article 312A, the word ' provisional ' where it occurs be deleted."

I am glad that the amendments are acceptable to Dr. Ambedkar. My reason for these are that it would be derogatory to the dignity of the President or the Governor to be described as ' provisional '. I commend the amendments for the aceptance of the House.

 

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[f47]  The Honourable Dr. B. R. Ambedkar : I cannot accept this amendment. My Friends Mr. Kamat and Prof. Saksena have read a great deal into this article 312-E. As a matter of fact the article is of very limited importance and the question that is dealt with in this article is the determination of the population of any particular area. My friends very well know that according to the article which we have already passed the population for purposes of election is to be taken as determined by the last census. It is also accepted that having regard to the partition of India the census fgures for 1941 cannot be taken as accurate, and consequently the delimitation of constituencies and the Fixation of seats cannot be based upon the truncated provinces whose population figures have been considerably disturbed. Therefore, it is as well to have some one in authority to determine what the population should be taken to be and whether the population is to be taken as enumerated in the census or by a fresh enumeration or, as I said, by merely determining the population on the basis of the voting strength. These are the matters that are left to the President and I do not see what the approval of Parliament is going to do in a matter of this sort. It is a purely administrative matter necessitated by the special circumstances of the case and I think it is much more desirable to leave the matter to the President, if we want really that the elections should be expedited. I am therefore unable to accept the amendment moved by my Friend Mr. Kamath.

Shri H. V. Kamath : Has Dr. Ambedkar any objection to the principle of my amendment ?

The Honourable Dr. B. R. Ambedkar : I do not accept it. The import of this article is very limited. It is the determination of the population, not delimitation of constituencies. The delimitation of constituencies will take place according to the provisions of the Constitution.

[Articles 312-A to 312-E, 312-G and 312-H as proposed by Dr. Ambedkar and as amended by Dr. P. S. Deshmukh's amendment were adopted and added to the Constitution. ]

 

ARTICLE 313

 

[f48]  The Honourable Dr. B. R. Ambedkar : Sir, I move :

" That for article 313, the following be substituted :—

(Power of the President to remove difficulties.

 

313.   (1) The President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order, direct that this Constitution shall, during such period as may be specified in the Order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient :

Provided that no such order shall be made after the First meeting of Parliament duly constituted under Chapter II of Part V of this Constitution.

(2) Every order made under clause (1) of this article shall be laid before each House of Parliament. "

This is a reproduction of the provision contained in the Government of India Act, which is necessary for the transition period.

 

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[f49]  The Honourable Dr. B. R. Ambedkar : Sir, there seems to be considerable missapprehension as to the necessity of the provisions contained in article 313. My Friend Dr. Deshmukh who has moved his amendment very kindly said that if I gave a satisfactory explanation as to the provisions contained in article 313 he would not press his amendment. With regard to article 3131 think certain facts will be admitted. The first fact which I expect will be admitted on all hands is this. During the transition period there are bound to arise certain difficulties which it is not possible for the Drafting Committee, or for the matter of that any Member of this House, to fully foresee right now and to make any provision. Therefore, It is necessary that there should reside somewhere some power to resolve these unforeseen difficulties.

The question therefore is to what extent and up to what period these powers should be lodged in that particular authority. My friend. Dr. Deshmukh, said that under section 310 of the Government of India Act, the power was to last for six months. I think he is under a mistake. The power was to last for six months after Part III had come into operation. Ours is a very limited provision. The power to resolve difficulties by constitutional provisions vested by articles 313 would automatically come to an end on the day of which the new Parliament under the new provisions comes into existence. We therefore do not propose under this article to allow the President to exercise the powers given to him under 313a day longer than the proper authority entitled to make amendments comes into being. That is one feature of this article 313.

Admitting the fact that difficulties will arise and that they must be resolved and the power must vest with somebody, the question that really arises for consideration is this : whether this power should vest in the President or it should vest in the provisional Parliament. There cannot be any other alternative. The reason why the Drafting Committee has fell that it would be desirable to adopt the provisions contained in article 313 and vest the power in the President is because the duration of the transitional Parliament is so small and it might be busy with so many other matters requiring Parliamentary legislation that it would not be possible tor the Parliament sitting during the transitional period to grapple with a matter which must be immediately solved.

Let me give one or two illustrations of the difficulties that are likey to arise. By our Constitution we have made considerable changes in the powers of taxation of the States and Centre. On the 26th January next, when the Constitution comes into existence, the powers of taxation of the Indian States enjoyed by them under the existing Government of India Act would automatically come to an end. It would create a crisis and therefore this matter should be regularised. If we were to get it regularised by the provisional Parliament, I think my friend would realise that it would take such a long time that the crisis would continue. Therefore, rather than adopt the ordinary Parliamentary procedure of having a Bill read three times, sent to Select Committee, having a consideration motion, circulation and so on, I think it is desirable, for the purpose of saving the Constitution from difficulties, to lodge this power with the President so that he may expeditiously act. Therefore, as I said, on the merits the provision is necessary. Comparing it with the provisions contained in section 310, ours is a much limited proposal, and I submit that having regard to these circumstances there cannot be any serious or fundamental objection to the House accepting article 313.

With regard to the point made by my Friend Mr. Kamat, I think he will realise that there is no error on the part of the Drafting Committee in referring to the Government of India Act, 1935, without making a distinction between the original Statute and the Statute as adapted, because he will see that the Statute as adapted itself provides that its short title shall be, " Government of India Act, 1935 ", and I have no doubt that it is in that sense that it will be understood when this article comes to be interpreted.

Dr. P. S. Deshmukh : May I ask a question ? If the Parliament is asked to approve the order passed by the President would there be any harm ?

The Honourable Dr. B. R. Ambedkar : But " approval " means what ? It may nullify the action taken by the President, and the object of this provision is to provide an effective remedy. That way it cannot come into force quickly while what we want is that the matter should come into force at once.

Mr. President : I shall put the amendments now. Amendment No. 37 moved by Dr. Ambedkar.

The question is:

" That in amendment No. 23 of List I (First Week), in clause (2) of the proposed article 313, the words ' each House of ' be deleted." The amendment was adopted.

Dr. P. S. Deshmukh : Sir, I beg leave to withdraw my amendments Nos. 30, 31 and 32 but not 33.

Amendments Nos. 30, 31 and 32 were, by leave of the Assembly, withdrawn.

Article 313, as amended, was added to the constitution.

 

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ARTICLE 307

 

[f50]  Shri Biswanath Das : My complaint in this regard is that neither the Law Department nor the office of the Constituent Assembly have moved an inch in this regard. I expect that they should have kept ready the adaptations and examined the laws in operation. Mr. President : Without knowing what the Constitution is going to be!

The Honourable Dr. B. R. Ambedkar : (Bombay : General) : MyFriend is thoroughly misinformed. He does not know what is being done.

 

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[Article 307 as amened was added to the Constitution.]

 

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ARTICLE 308

 

[f51]  Mr. President : We go to article 308. Dr. Ambedkar.

The Honourable Dr. B. R. Ambedkar : Sir, I move :

" That for clause (3) of article 308 the following clause be substituted :—

' (3) Nothing in this Constitution shall operate invalidate the exercise of jurisdiction

by His Majesty in Council to dispose of appeals and petitions from, or in respect of, any judgement, decree or order of any court within the territory of India in so far as the exercise of such jurisdiction is authorised by law, and any order of His Majesty in Council made on any such appeal or petition after the commencement of this Constitution shall for all purposes have effect as if it were an order or decree made by the Supreme Court in the exercise of the jurisdiction conferred on such court by this Constitution."

Also :

" That after clause (3) of article 308, the following new clause be inserted :—

'(3a} On and from the date of commencement of this Constitution the jurisdiction of the authority functioning as the Privy Council in a State for the time being specified in Part III of the First Schedule to entertain and dispose of appeals and petitions from or in respect of any judgement, decree or order Of any court within that State shall cause, and all appeals and other proceedings pending before the said authority on the said date shall be transferred to, and disposed of, by the Supreme Court."

Sir, the purpose of the first amendment is merely to continue the authority of the Privy Council to dispose of certain appeals which might be pending before it under the law which the Constituent Assembly very recently passed section 4—in case they are not finally disposed of before the 26th January, assuming that to be the date on which this Constitution comes into existence. The important words are—" to dispose of the appeal ". There is no power to entertain an appeal. And the other important words are—" such jurisdiction authorised by law ", that is to say, references to the recent Act that was passed. The Privy Council will have no other jurisdiction, no more jurisdiction than what we have confeired. It has been so arranged by consultation that in all probability, on the date on which this Constitution comes into existence the Privy Council would have disposed of all the cases which had been left to them for disposal under that particular enactment. But it might be that either a case remains part-heard, or a case has been disposed of in the sense that the hearing has been closed, but the decree has not been drawn, and in that sense it is pending before them. It was felt that rather than to provide for a transfer of undisposed of part-heard cases to the Supreme Court which would cause a great deal of hardship to litigants, it was desirable, to make an exception to our general rule, that the jurisdiction of the Privy Council will end on the date on which the Constitution comes into existence. That is the main purpose of amendment No. 6.

With regard to amendment No. 7, it is well-known that in some of the Indian States there are Privy Councils which supervise the judgements of their High Courts, for the reason that they did not recognise the jurisdiction of the Privy Council or rather, the Privy Council of His Majesty in England. They, therefore, had their own Privy Council. Now it is felt that in view of the provision in the Constitution that there should be direct relationship between the Supreme Court and the High Court, in the different States, both in Part III and in Part I, this intermediary institution of a Privy Council of an Indian State in Part III should be statutorily put an end to, so that on the 26th January, all appeals in any State from a High Court in a State in Part III will automatically come up to be disposed of by the Supreme Court.

I am told that these Privy Councils are called by different names in the different States. If that is so, the Drafting Committee proposes to get over that difficulty by having definition of Privy Council in our article 306 so as to cover the different nomenclatures and variations of these institutions.

 

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[f52]  Mr. President : Dr. Ambedkar, would you like to say anything ?

The Honourable Dr. B. R. Ambedkar