CONSTITUENT ASSEMBLY DEBATESVolume 10
10 Oct 1949
The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock, Mr. President (The Honourable Dr.Rajendra Prasad) in the Chair.
TAKING THE PLEDGE AND SIGNING THE REGISTER
The following Member took the pledge and signed the Register:-
Shri Hira Vallabh Tripathi (United Provinces : General).
New Article 283-A
We shall now go on with the consideration of the articles, 283A-Mr. Munshi.
Mr. President, Sir I beg to move the new article 283A which is on List I of the Second Week. The article which I submit to the House runs as follows:- Provision for protection of existing officers of certain services.”283.A. Except as otherwise expressly provided by this Constitution, every person who, being a member of a service specified in clause (2) of article 282-B of this Constitution or a service which was known before the commencement of this Constitution as an AR India service continues on and after such commencement to serve under the Government of India or of a State shall be entitled to receive from the Government of India and the Government of the State, which he is from time to time serving, the same conditions of service as remuneration, leave and pension, and the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances may permit as that person was entitled to immediately before such commencement.”
Sir, as honourable Members will see, the original draft article which was circulated had these words: “been a member of the service specified in clause (2) of article 282B of this Constitution or a Service which was known before the commencement of this Constitution as an All India Service.”
This included a much wider category of civil servants and it has now been restricted only to members of the Civil Service of the Crown in India who continue on and after the commencement of this Constitution to serve under the Government of India or of a State. Therefore, there is no material change except that the guarantee that was given by the Independence Act to certain members of the Civil Service has been continued and the wider implications of the clause as originally submitted has now been restricted.
In this connection, I wish to draw the attention of the House that in view of certain guarantees that were given before 15th August, 1947 by the leaders of the Nation who negotiated with the British Government some assurances found a place in Section 10 of the Independence Act. Section 10(2) of the Independence Act runs as follows:-
I am only reading the material part: “Every person who having been appointed by the Secretary of State, or Secretary of State in Council, to a civil service of the Crown in India continues on and after the appoint. ad day to serve under the Government of either of the now Dominions of of any Province or part thereof;”
(b) is not material for the purpose of this article- “shall be entitled to receive from the Governments of the Dominions and the Provinces or parts which he is from time to time serving or, as the case may be.”
The same words are adopted in article 283A. Practically this is a reproduction of clause 2 (a) of Section 10 of the Independence Act and follows the assurances that have been given again and again by our national leaders before 15th August and by our Government from time to time. I therefore submit that this article should be accepted.
There are several amendments to this article. 124-Mr. Kamath.
General Mr. President, I am missing Dr. Ambedkar today and I hope if he is unwell………
He is engaged elsewhere.
I move amendments *124 up to 131 inclusive.
You need not read them. You may read the article as it would emerge after incorporating your amendments.
If the amendments that I propose were accepted by the House, this article 283A would read as follows:- “Except as otherwise provided by this Constitution, every person who, having been appointed by the Secretary of State or the Secretary of State in Council to the Civil of the Crown in India continues on and after the commencement of this Constitution to serve under the Government of India or of a State, shall be entitled to receive from the Government of India or the Government of the State as the case may be, conditions of service as regards salary, leave and pension and rules of conduct and discipline, as similar as the changed circumstances may permit, to what that person was entitled to immediately before such commencement.”
Sir, when I read this article 283A my first reaction was that it had been in a hurry. The construction of the article is, to my mind execrable, and I will not be far wrong if I say that the last portion of it seems to have been messed up very badly. I am talking about the construction of it, and I feel that if it is left as it is, the Drafting Committee and ultimately the Assembly which passes it will be held up to ridicule. Perhaps partly be cause this is a foreign language, it is so, and this is an argument in itself to promote our Rashtra Bhasha as soon as possible so as to enable us to express ourselves much better in our own language.
Sir, the first amendment is a merely verbal one and I shall not bother to speak about it very much. I would leave it to the good sense of the Drafting Committee.
The second amendment-No. 125-deals with the antecedent of the words “Government of India and of a State.” Naturally, to my mind, the sequence of that also must be “the Government of India or of a State” on the fines of their antecedent. Why put in the word “and”. The correct word should be “or”.
Amendment No. 126 seeks to substitute the phrase “as the case may be” for the words “which he is from time to time serving.” It is not necessary to say “which he is from time to time serving”. It may be that he is serving the Government of India or the Government of a State. But if you use the phrase, “as the case may be” it brings out the meaning equally well, and from the point of view of constitutional terminology or parlance also, I think it is a far better and a far happier expression.
Then I come to another verbal amendment which seeks to substitute the word “salary” for the word “remuneration.” I feel that so far as the civil servants and public servants are concerned, “salary” is a much more dignified term than “remuneration.” In all the other articles, I believe, we have used the word “salary” wherever this meaning was implied. We have been speaking of salary of judges, salary of the President and so also, I believe, the salary of the Ministers and the salary and allowances of the M. L. As. Here also, therefore, I think the more appropriate word would be “salary” and not “remuneration.”
Now I come to that part of it which I said was messed up very badly. If my Friend Mr. Munshi and his colleagues on the Drafting Committee care to follow me in what I say, I am sure they will realise the mistake that has been committed, if their minds be open and not closed to any change. Here the language used is very very inaccurate and unhappy. The House will follow what I say when I refer to the part of the article beginning with “the same conditions ……………… ” up to the end of it. But before I come to that I would like to say a word about the word “receive”. I could not find an appropriate substitute for that, but I feel it is a very inaccurate word in this context. Receive what? Receive conditions of service? Receiving rights as regards disciplinary matters or rights? That is a very inapt expression. I have never seen the word “receive”, used in this context, though unfortunately I could not myself find another word for it. I would, however request the Drafting Committee to look into the matter again and when the third reading comes, I hope the word “receive” would be substituted by some other and better word.
If the House will carefully peruse the last part of the sentence, it will see the bad construction of it. It speaks of tame conditions and similar conditions or similar rights as respects disciplinary matters and all that. Now if it is the same, it is identical, but not similar. You cannot have both same and similar together. So one or the other has to be omitted. I have therefore suggested the word ‘similar’, so that the conditions may be as similar as possible, to those that existed, as circumstances permit. My amendments Nos. 131 and 128 refer to this part of the article. I have sought to say that what is intended is something similar to what existed before the commencement of the Constitution and not the same. I am also sure that the Drafting Committee will agree with me that that is what they imply. Therefore, it will be more correct to say conditions and rules as similar to those existing, as the changed circumstances may permit.
Amendment No. 130 refers to the portion of the article which speaks of rights as respects disciplinary matters or rights. What exactly is meant, God only knows. The word “rights” is repeated. “Rights as regard disciplinary matters or rights”. But there are no rights regarding disciplinary matters. There are rules of discipline, there is a code of conduct and there are regulations regarding discipline. But what is meant by “rights as respects disciplinary matters or rights” ? I have seen the service from the inside for some years, and I do not know what such rights are. There is only a code of conduct, there are no rights about discipline. When I read it once, twice, thrice, I wondered whether really the eminent draftsmen of the Drafting Committee had drafted it or somebody else had done it and the Committee had not looked into it closely.
One word more. Mr. Munshi has told us that Civil servants were given a guarantee by Government as soon as the Independence Act was passed on 15th August, 1947. So, that matter is not at all in dispute. But the whole article has been drafted so incorrectly that I would humbly request the Drafting committee to reconsider the whole matter and bring it up afresh, in correct and accurate language and with a happier construction, when it comes tip for the Third Reading.
No. 132, Mr. Naziruddin Ahmad.
What about amendment No. 14?
Amendment 14 refers to the previous draft.
Mr. President, Sir, some of my amendments are of substance and some others are merely formal. I shall move only sub- numbers (iii), (iv) and (vii). Sir, I move: “That in amendment No. 1 of List I (Second Week), in the proposed new article 283A—for the word ‘continues’ the words ‘shall continue’ be substituted;for the words ‘shall be entitled’ the words ‘and shall be entitled be substituted; andfor the words the is from time to time serving’ the words the shall from time to time be serving’ be substituted.”
My object in suggesting these amendments is that we are providing for the future of certain services. It seems to me that the provisions should tic in the future tense, but the present tense has been used here all along. Omitting a number of conditions, the bare sentence, article 283A is that “every persons who having been appointed by the Secretary of State or the Secretary of State in Council to a civil service of the Crown in India continues on or after the commencement of this Constitution……..” Instead of the word “continues” I propose that the words should be “shall continue”. My idea is that we are providing for the future of these services, and therefore the verb should be in the future tense. The other amendments are of a similar nature and do not require any further argument.
On a careful consideration of article 283A, it seems that the article, as has already been pointed out by Mr. Kamath, has been very hastily drafted. One glaring inconsistency from a drafting point of view has been pointed out by Mr. Kamath, namely the word “receive”. The word seems to be totally inappropriate. I suggest that the Drafting Committee should reconsider the drafting in the light of some of the amendments and comments suggested and made in the House.
A further difficulty in the way of Members dealing with these articles is that these articles were circulated only yesterday at about nine or ten P.M. and then there was no time to consider the articles and to suggest amendments and to submit amendments to the office by five o’clock yesterday. That is the reason why some of the amendments have not been well-considered, and the word “receive” escaped my attention on account of hurry. I suggest that the Drafting Committee should reconsider the drafting of this article. There are a number of other small improvements which I have suggested and which I have not moved but I think they deserve the consideration of the Drafting Committee.
There is an amendment, notice of which has been given by Mr. Sidhva this morning.
I am not moving it, Sir.
Now the article and the amendments are open to discussion. There are one or two amendments proposing deletion. I do not take them as amendments.
: Sir, on principle I do not agree that any such commitments should be made by this Constituent Assembly, the liability of which goes to the coming Parliaments. In the case of these few civil service people, only some guarantees are being transferred over, I have no objection to that, but they should be transferred from Parliament to Parliament. If these guarantees are now confirmed by this Constituent Assembly they will go as a perpetual liability to the coming Parliaments. At this stage I do not think that any opposition to this move will have much backing; still I want to ask a few questions before I vote for these guarantees.
As it happens, in India today persons of the Civil Service having only seven, eight or nine years’ service are acting in the Secretariat as Secretaries and Joint Secretaries and getting much higher pay, a pay which, if India were not, independent, they would get after serving for eighteen or nineteen years. So, speedy elevation has been given to many Civil Service people. I want to know as to what will happen to those Secretaries who are more than the minimum guaranteed number of “eight”. As far as I know, only eight posts of Secretaries had been guaranteed. These posts cannot be reduced from eight to seven or six, but at present there are twenty-one Secretaries. Now, the original liability was to pay Rs. 4,000 per month to each of these eight Secretaries. Now, we are paying the same rate of pay to twenty-one Secretaries. I want to know whether after passing this article we will be entitled or not to reduce the number of Secretaries from twenty-one to eight. Now, if this is also a commitment that the coming Governments will have to pay twenty-one Secretaries and a number of Joint Secretaries at the present scale of pay–a number, which is much bigger than the number originallyguaranteed–is this not an extra liability on the future Parliament? Or will the future Parliament be free to reduce the number of the Secretaries?
Today, it seems to me that the bulk of benefit of independence bag gone to the Service people, and the other classes of people have gone down. The Service people are getting much bigger pay than they would otherwise get it if India were not independent. In understand that in Pakistan they have made a rule that every Civil Servant will either get the salary of the higher grade achieved by him after independence, or only thirty per cent. more than the pay he was getting before independence was achieved whichever is less.
There is no civil servant in Pakistan whose pay has been increased more than by thirty percent of what he was getting before the 15th of August 1947. But here, even very junior officers have got accelerated promotions on senior scales of pay on account of the opting of Muslim officers to Pakistan and the retirement of the European members of the Civil Services.
I would appreciate if Mr. Munshi would clarify as to whether, after the passing of this provision, it will be incumbent upon the future Parliament of India to maintain the same number of Secretaries on high salaries, or whether they will be free to reduce the number of Secretaries in the Secretariat, and pay them lower pay. Almost all the vested interests like the Princes and the Zamindars have gone. It is only the vested interests of the few Civil Servants that we are perpetuating by guaranteeing their interests. Will they be a perpetual liability on the future Parliaments?
If it would help my honourable Friend to cut his argument short…………
I have had my say. If the honourable Member wants to enlighten me on this issue he may kindly explain to me as to what the position really is.
Mr. President, Sir, I welcome this new article which has been placed before the House by Mr. Munshi. I welcome it because it enables us to maintain that standard of conduct which any civilised Government ought to maintain with regard to Civil Services which co-work under them.
In considering this article before the House, we have to bear one, fact in mind–that although a revolution has been going on in our country for a long time, the immediate reason for the transfer of power was not a revolution, a revolution which would justify our upsetting everything that had existed before. We should remember that the power that the previous Government had exercised was peacefully transferred to us, and, therefore, the obligations which they had entered into should be respected, as far as possible. In this particular case not only that obligation should influence our conduct, but there is a consideration, and that is that a guarantee was given by our leaders–leaders who had taken the most prominent part in achieving for us the liberty of the country. No matter whatever may be the criticism against us, we must respect and honour the guarantees given by our leaders.
While I fully support this article, I would like to make a humble appeal to the members of the services. I would ask them to remember whether it would not be proper for them as a return of the gesture which we have shown by accepting this article, to renounce a percentage of the remuneration which has been given to them and which they will get by reason of the acceptance of this article. I remember, Sir, in 1931 when there was talk of retrenchment all over the country, the members of the I. C. S. whose salary could not be retrenched by the India Government, voluntarily submitted themselves to a cut in their salaries and allowances. While the European members of the Indian Civil Service could show such a gesture in the interests of this country, I am sure the Indian members of the Indian Civil Services, would not be found wanting in their sense of patriotism to their motherland. I believe, Sir, that there will be very little objection on their part in doing so, because they should remember that while the leaders of the Congress had given up their earning, had given up their vacation had given up their position in life and had gone into jail, the Civil Servants had remained quietly at their own desk, earning their own bread and doing their ordinary work. We did not grudge their doing so. If at that time all the members of the Civil Service had also resigned, there might have been great difficulty for us to carry on the work in the period of transition. I do not grudge their having done so at that time. But now as they are enjoying with us the liberty for which they have not made any sacrifice-of course, I am not talking of men like Subhash Chandra Bose and Mr. Kamath–who had resigned the coveted position out of a great sense of patriotism–now submit to a voluntary reduction of their remuneration.
Sir, in this connection we have to remember the position of some of the ministers vis-a-vis the status of their Secretaries. While the Ministers were drawing a salary ranging from Rs. 750 to 1,000 their I. C. S. Secretaries were drawing salaries ranging from Rs. 2,000 to 3,000. While the Ministers were trying to push their old motor-cars on the road in order to get a start-because they could not afford to have new motor cars-these Secretaries would pass by the Ministers in their new beautiful motor cars and just wave their hands to the ‘Minister and say “Cheerio”. He does not care to stop because his fashionable wife is sitting by his side. That sort of thing should not be repeated now. There should not be such a difference of status between the Minister and his Secretary. The only way of putting a stop to that would be to provide all Ministers with State cars. I had also seen that the Secretaries would not like to visit Ministers in their houses, because the Ministers of those days would not be able to furnish their houses in the manner in which I. C. S. Secretaries could do.
Therefore, while accepting this article, I would make an appeal to the services, once more, to give up their excessive income if they can do so. Let them come to the level of ordinary gentlemen and give up whatever they can. Even if they cannot give up whatever they can, do not let them have any luxury but try to invest their income in objects of national welfare. Give some charity for educational institutions or something of that kind or help in the uplift of the masses. That is what I would appeal. I support this article.
: Mr. President, Sir, while I believe entirely in the desirability of keeping the services of the State contented, the limit of that contentment should not be crossed over by the services. In this respect, it has been done so. With due respect to the members of that great service who are really serving the country, I would have preferred that this article should not have found a place in our Constitution. If we have made an agreement, we certainly are bound to carry it out and that would be a matter between the leaders and the services and it will be Known that it is faithfully carried out. Why should it find a place in the Constitution?
Then again, this article is not happily worded. Probably the Drafting Committee has not paid proper attention to the wording. For instance, take this word “remuneration”. Even in the case of the Prime Minister, the Ministers, the Speaker, the Deputy Speaker, the word “salary” is mentioned. But why is the word “remuneration” mentioned here? It is a little better word. It has better pomp than “salary”. That is why it has been put in. The services people want something extraordinary for themselves.
Then they want the same rights as respects discipline. Now, we know what discipline means. It means conduct within the four walls of the rules. The words as put in here will create complications for the future governments. This Government knows what are these conditions, but if you put it into the Constitution, the future government would be embarrassed considerably if the services are permitted to do things as they like and at the same time demand the same disciplinary rights along with continuity of their terms. I know that we are bound to give the services the things for which we have made commitments. do not dispute that. But I feel that they should not find a place in the Constitution. The services should be content with trusting our leaders that they will faithfully carry out the commitments.
We are proud of the services. But is it desirable that they should dictate to us the terms on which they would serve ? It is very unfair. If you study the language of this article, you will see that they want to dictate the terms under which they want to serve us in the future. I had sent in an amendment. I did not move it, because if I did not want to embarrass the services. My amendment states that after five years of this Constitution, Parliament shall have the right to make any law relating to the conduct of the services. But I have not moved it, because I do not wish it to be understood by the services that we want to embarrass them, that we do not want to fulfill the promises that have been made. We are a nation trained to fulfil a commitment if it has been made. That is what we have been taught by our leader and we do want to do that. At the same time, I do desire that our services should not dictate to us. With these words, I hope the Drafting Committee will reconsider this matter.
: Mr. President. Sir, I am afraid I cannot resist the temptation of submitting to this House that it is not not very proper to continue to have a provision of this nature in our Constitution. It was well and good for those Constitutions which were framed by the British people or the British Parliament to have a clause like this. We are now framing a Constitution of Free India. Indians are framing their own Constitution for themselves. Under these circumstances, I do not think any guarantees of this nature were at all necessary. If there is a guarantee, if we have given our word, that word as it stands should be quite sufficient not only for the I. C. S. and other covenanted services but for the whole nation, for every one of us. If we do not value that word, then there is not much to be gained either by the nation or by the Civil Services by relying on an article which is embodied in the Constitution. Even from the point of view of appearances, it does not look nice that you should go out of your way to single out a certain service which is really the remnant of the days of our slavery, of our dependence, and that, to be incorporated almost bodily, in the same fashion as it existed ill the Act of 1935. I do not think this was at all necessary. I do not think that the services are really, as described by Mr. Sidhva, insistent upon this. I for one do not think they are insistent. I do not think the Civil Service as a whole have been consulted recently after the attainment of freedom or that they have passed any resolution or made any demand that their contractual relationship should remain intact. At least that is not my information. If they are given a chance. I have no doubt that they will probably be the first to say that they do not need any constitutional safeguard for their rights.
Secondly, if we really want to have a provision like this, then why should we have added these words “same rights as respects disciplinary matters… as similar thereto as changed circumstances many permit. ….”. In my view this negatives the guarantee altogether. What is the meaning of “changed circumstances”? If the change in circumstances is going to enable any Government to change the contractual relationship that exists or the promises that have been made, then what is the guarantee worth? Any circumstances can at any time be utilised to go back upon the promises ? So I think we have created somewhat anomalous position. On the one hand we are solicitious of giving satisfaction to the Civil Service and they are a very intelligent class of people and on the other we are taking away all that we have given. I am sure they will know what we really mean by the use of the words “as changed circumstances may permit.” Actually, we are trying to out-do the Britishers in following and imitating the 1935 Act. The I. C. S. was originally created by the British out of British personnel and they, at every stage when the political rights of Indian advanced, wanted more and more guarantees for those people who had come out of their country and were serving here. I am sure no Secretary of’ State at any time was interested to the same extent in the Indian personnel. He was interested in the British personnel and these guarantees were intended for the British personnel. I am certain no Indian is so unpatriotic as to demand a constitutional guarantee nor so ignorant is to how our government may behave in such a matter that he will have much faith in a guarantee of this kind, especially when we take away the whole effect of the article by putting in the words “as changed circumstances may permit”. Actually, what is the history of this Civil Service and the sanctity of contracts entered into with them? The history reveals that although the Civil Services were regarded as the steel frame and the contractual relationship between the Government of India and the Civil Service were always to be considered sacrosanct, there was at least one occasion when this sanctity of contract was completely violated.
In 1931 the same British Government itself had to come down and impose a cut of 10 per cent and this was done on the ground of a change in the circumstances. Some tried to give this the colour of a voluntary cut. Actually the sanctity of contract had to give way to the exigencies of the situation is early as 1931. So that, having regard to all this that has gone in the past. this contractual relationship is liable to be altered from time to time and I do not think therefore that it is wise or necessary to put in this article. If the guarantee is necessary, then whatever guarantee it is said we have already given are already there. They have not been taken away. Nobody has suggested that they should be withdrawn or abrogated and that I believe should be quite sufficient for the Civil Service.
Sir, there is also another reason and that is that the inclusion of this article especially with these words–“as changed circumstances may permit”–would really lead to a fresh grievance which does not exist. We are at the present moment passing through a financial crisis. It may be very necessary within about three months time hence to cut down the salaries of all people who are getting Rs. 1,500 or more. Actually we have set at nought our own solemn decision of the Pay Commission proposals. We accepted their recommendations not to pay any person a salary of more than Rs. 2,200 or so, and yet we have got the spectacle of having to pay 50 to 75 per cent. morethan the maximum which we have accepted on the recommendations of the Pay Commission. So, in view of the present financial crisis and in view of the recommendations which we have accepted, it may be necessary for us within the next few months to come before Parliament and say that no one in India shall get more than such and such salary. We shall then have to have recourse to changed circumstances as the ground to justify our action. We will have to say that we cannot pay you anything more than Rs. 2,000 as the circumstances have now altered. What is the use giving a bombastic promise and then going back on it? It is no use.
Anyone can see that the present circumstances of India are such that you cannot afford to pay salaries at this rate to the civil servants at which we are paying today. When we are in the throes of these difficulties what is the use of contaminating our Constitution with a promise which we cannot fulfil? So I submit that this article should be reconsidered and as far as possible held back. If the civil servants insist on the guarantee, by all means give it to them. But it is not necessary to include it in the Constitution for that purpose.
: I also thought that I should be is vehement in this matter as my Friend, Dr.Deshmukh, and others. I do agree that though a contented Civil Service is the very backbone of the administration in any country, this particular service for whom we are making provision here was the heaven-born service of the previous regime and will continue to be the heaven-born service for some time to come. We have not been able to give a guarantee for food and clothing to the ordinary masses of this country. We have not given a guarantee to the Under-dogs in the administration. The other day was passed certain articles whereby we have stated in this Constitution that all servants of the State will ‘hold office only during the pleasure of the Government. This is an extraordinary guarantee that we are giving under this article. This guarantee means that they were the rulers under the old regime and that they will continue to be so in this regime. This guarantee asks us to forget that these persons who are still in the service-400 of them- committed excesses thinking that this was not their country.
This guarantee gives a guarantee to those persons who have played into the hands of others. My Friend, Mr. Kamath, and a few persons like him, who had the courage of their convictions, resigned in the cause of this country. All those people are honourable men, who at that time tried to muster courage and throw in their lot with the rest of the community in this country who was struggling hard for freedom. This is not to the credit of this service. They cared more for their money and the salaries they got. The European Government that ruled over us sometime ago could not rely upon the loyalty of any citizen in this country, because their loyalty and our loyalties were different. They belonged to a different country from ours and therefore that prejudiced their loyalty. It was the money that could attract loyalty of any citizen of this country to the King of England and therefore the salaries they gave and the scales they fixed knew no bounds. The Governor-General got Rs. 21,000 a month : a Governor got Rs. 10,000 a month a Secretary got Rs. 4,000 a month,-out of all proportion to our national income.
Our national income is not more than Rs. 100 per annum, whereas the national income of Great Britain is Rs. 1200 per annum. America is diffent. So far as salaries ire concerned, they ire on a much higher scale in this country than in part of the world with respect to the Civil Service. So far as national income is concerned, ours is the lowest. These persons had to be purchased to serve by the previous British Government. The best of our intellects had to be drawn away and they were made to do whatever things the previous Government asked them to do, irrespective of the place in which they were born and irrespective of any patriotic instinct.
But I am asking honourable Members of this House to have regard for certain things which our people had to do. The persons, who are our leaders and the winners of freedom of this country say that they have given a guarantee collectively and individually to every one of these people that this was a condition of the transfer of power by the British Government into our hands. They wanted these conditions, particularly in the interests of the Europeans, not so much in the interests of the Indians. Possibly they wanted the interests of the Indian bureaucrat to be safeguarded because they were loyal to them and they did not want to let them down when our own Government came in. I am not in favour of any provision in this Constitution. We could as well incorporate it in an Act of Parliament later on. But we must have the power to regulate,. are. becoming super-sovereigns of this country.
I am aware of all that but it serves no useful purpose to enter into recriminations against ourselves when our own responsible leaders, who have spent their lives in the cause of winning freedom, have given this assurance. Let it not be said that we intervened in this matter, and went back on this assurance. If I support this clause it is in that spirit that I am supporting it. It is not in the spirit that all these people served our country for freedom in our time. I might say that those members who are still opposing, and quite legitimately too, may have this consolation-they may feel that they have legitimate objection to the wording of the clause as originally drafted. But the amendment made later is not so wide. I would request the attention of, the honourable Members to amendment No. 11 in List II of the Second Week’. This has since been replaced by amendment. No. 1 in List I and we have changed it out of recognition. This amendment follows section 247 of the Government of India Act as adapted by the Indian Independence Act. It was not the intention even of our leaders who gave the guarantee that the Civil Servants under the new Constitution should have greater privileges than they had during the previous regime. Therefore, not to give them any further privileges, this amendment has been moved. As I read it, this amendment says, that as in the previous regime the Governor-General had the power to frame rules and regulations so as to modify the conditions of their service from time to time, as circumstances may permit, the Government may have similar power now. Therefore, under the amended clause, I do not think as we suffer much. There may be extraordinary cases where we may have to interfere; there is ample provision for that here. We need not therefore be touchy about this. No doubt, we can do without this. But, in regard to the guarantees and assurances given not merely to these services, but to the other persons who have left us, I wow earnestly appeal to all the Members of the House who have either tabled amendments or have spoken, not to press the amendments or to oppose this article.
Sir, I know that in the previous Government there were only eight Secretaries getting a salary of Rs. 4,000. Now, that number has been increased to 19 or 21. Honourable Member might remember that my honourable Friend Mr. N. Gopalaswami Ayyangar was appointed to go into the reorganisation of the Secretariat. The matter is still pending with him. I am sure that though, under the guarantee that has been given, the salary of 4,000 Rupees ought not to be reduced, it is not incumbent upon us to a point every one of these people as Secretary or increase the number of secretaries from 8 to 21. It is still open to Mr. N. Gopalaswami Ayyangar to suggest that in the interests of our country there ought to be only eight posts of Secretary, the others being made joint secretaries. That could be done. The people who insist upon the guarantees must themselves hesitate to ask for a guarantee. What does this guarantee mean? thathe must get Rs. 4,000 instead of Rs. 3,000. Is he working for bread or is he hungering otherwise? Till now, they have not shown a gesture, they have not shown that they are members of the Independent Sovereign Republic. They must also contribute their mite to its growth. We assume that they are still sticking to their pound of flesh. Even then it is open to us to reduce our number and we are not helpless. Mr. Gopalaswami Ayyangar may consider this matter of the reduction of the number of secretaries posts from 21 or 19 to 8.This does not form part of the guarantee.
I have also got some other figures to show how much this Civil Service have got bloated. In the very bad times, the critical times that we are passing through,’ it is absolutely necessary that we must take the axe in our hand and Cut off some of the unnecessary officer that have been created. Under the previous regime, there were only five Joint Secretaries. Today, we have got 30 Joint Secretaries. Each Joint Secretary is entitled to a salary of Rs. 3,000. 1 am not speaking to you alone here, but I am speaking to those people who think that they must have the guarantees and benefit by it. After all, the good-will of the Government and the good-will of the people at large are the suggest guarantees any man can have. Without that good- will, if they merely insist upon their salaries only, they cannot long count upon that. Now, Sir, five Joint Secretaries have been increased to thirty.
There is a further point. Under the previous regime, the Europeans became Secretaries after 25 years of service, became Joint Secretaries after 20 years of service. Now, on account of the Europeans having gone away, persons who were in the lower rungs of the ladder, Deputy Secretaries, with ten and twelve years of service, have immediately become Joint Secretaries, because the place has fallen vacant. This is wrong in principle. We ought not to have appointed them Joint Secretaries straightaway. Even now, it is not too late. In spite of this guarantee we can tell them, “you must have put in so many years of service to be entitled to a salary of Rs. 3,000.” Therefore, even if we pass this article, we are not helpless. The rigors of this article and the exactitude with which they may claim these moneys can be mitigated by suitable action taken in the Committee that has been appointed under Mr. Gopalaswami Ayyangar’s chairmanship.
I have one more word with regard to the services. We are making an exception in their favour. We are pampering them. But, even today, I am sorry to say that some of them have not changed their manners. They have not reconciled themselves to the new situation. They do not feel that they are part and parcel of this country. We hear so much about corruption. If there is corruption in any department, who is responsible for this? If the head of the department makes up his mind that he will root out corruption, cannot he do so? Can I or any of the Ministers who have no knowledge of the working of the administration, look into this? The Civil Service has got a claim to continue because it has got experience. The best talents have been drawn to this service. If today’ in a department of which a Secretary drawing Rs. 14,000 is the head, there is corruption, he must be ashamed of himself. Am I to be going about asking for legislation that corruption should be put an end to? Who is corrupt? If in my household there is anything going wrong, the manager of the family must be held legitimately responsible for that. Like that, we do not grudge paying them a thousand Rupees more, for some time more, until this old band is exhausted. But.’ we in return expect that they should root out corruption. Otherwise, they are not entitled to this salary.
If we have put in the Constitution that we have to have a greater majority for amending the Constitution, in Parliament we need have only a simple majority. Under the rules and regulations we have to have a greater majority to change the Constitution. If in spite of all we have done, in spite of these assurances given in spite of their having their salaries at an enormous level which we cannot afford, there is corruption in any department, we know how to deal with them. Even if the Constitution were written on stone, hard stone, indelibly, we may alter it.
With these remarks, I appeal to the members and I also appeal to the Home and request that all the amendments may be withdrawn and this article may be passed though not without hesitation.
Mr. President, Sir, I rise to support this article. I have not been able to follow the speech of my honourable Freind Mr. Ananthasayanam Ayyangar. He began by opposing this article; but, somehow, in the middle, he changed his course and began to support it. If I am opposed to any article, I will oppose it. If I am in favour of it, I will support it. I cannot sail in two boats.
Sir, there is one important reason in my mind why I am in favour of this article. The objection of some of the Members in this House that this article should not be incorporated in the Constitution gives rise to a suspicion in my mind. What is it at the back of their minds? Why is it that they are opposing this article? Do they want to honour their pledged word or not? A nation that sacrifices vital principles, that does not stand by its pledged word, has no future in politics. We have given our pledged word to certain authorities that existence before the transference of power. I know fully well that if we do not abide by that word, nothing will happen to us. But, it will create a very bad impression. Therefore, I am in favour of this article. What we have pledged, we must stand by.
There is another reason why I am in favour of this article. If there would have been a gaurantee that those who have pledged their word of honour to the British Government would remain in power so long as these services are in employment of the Government of India, I would not be in favour of this article. But we have made a democratic Constitution. We do not know whether we will remain in power tomorrow or not. There is another reason why I am in favour of incorporating this article in the Constitution itself. I have no faith in adult franchise. I do not know what kind of people will come in the future Parliament of India. In the heat of extremism or at the altar of some radical ideology, they may like to do away with the provision that we have made in the articles of the Constitution in favour of the services. Therefore I want that this thing should be made a part of the Constitution so that the amendment being not easy it will be difficult for them to undo what we are doing today.
A point was raised by Mr. Tyagi that this Constituent Assembly has made certain commitments and we should not bind the discretion of the future Parliament of India I say that we have not made any commitments. Our leaders have made certain commitments. We stand by them and there is no question of binding the discretion of the Parliament because the future Parliament will not be a sovereign body. What we are doing today is in the nature of either expanding or restricting the power of Parliament and other different authorities in the Constitution. We are Sovereign and not the future Parliament. We tan fetter the discretion of the Executive, Judiciary or Parliament. It is for this purpose that we are drawing up the Constitution.
Having these in my mind I am of opinion that this House should unanimously support this article so that the impression may gotabroad that we stand by our words. This is only the first step-we do not know how many commitments we will have to make in the course of our international relations. One false step will lead to disaster. This step is not of a very important nature. We must learn how to practice the part of conducting ourselves in our relations with the foreign nations of the world. Therefore I take a very strong view of this question and attach the greatest importance to it. I am entirely in favour of this article.
: Mr. President Sir, I had given my amendment No. 12 for deletion of this clause. The more I study it the more I am surprised that it should have found a place for being made a part of the Constitution. I can understand the future Parliament giving to the incumbents of the old Civil Service their old conditions of service but that the Constitution should provide all guarantees which they enjoyed before is something which I cannot understand. Since the very beginning of its movements the Congress regarded the Civil Service as the Steel frame which enslaved us and criticised its conditions of service and the way in which it was pampered. It was regarded as the “heven-born” service. I think now when we have come into our own we should not perpetuate what we have criticized so far an plainly say that there is no reason whatsoever for perpetuating the same conditions. I am told that some guarantees and assurances have been given to them. I do not know of any, but if there are would suggest that Parliament should try to fulfil those conditions, but to bind the future Parliament and to say they shall not have the right to determine the conditions of service of its servants is something that will be derogatory to the, sovereignty of Parliament.
Then I am not happy even with the work of the old Civil Servants. I know there are many amongst them who have done wonderful work, who as Sardar said once, are worth their weight in gold but the same cannot be said about all and my own complaint is that many of the ills of our country at present are due to the way in which they are still behaving. I do not think that the Civil Services should be treated differently from the Services whom we are creating now–the Administrative Services–otherwise it will result in bad blood. They must all be placed on an equal footing. In fact their record is not what one would like it to be. Mr. Ananthasayanam Ayyangar said how they have been guilty of stabbing the Nation during our freedom struggle. Therefore I think this article is an anachronism. It must not find a place in our Constitution and it should be removed.
Mr. President, I think the clause as it stands is rather difficult to support; but all the same our words have been pledged by distinguished leaders who have sacrificed their lives and leisure for the attainment of liberty an independence and their words must be respected. Then there is the other side that we are in a sort of Scylla and Charybdis. We want to support the clause because our distinguished leaders have pledged their words, but at the same time we have been speaking to our Constituents that when we attained liberty we will reduce the salaries of the different services to such an extent as to be consistent with their power to pay. As Mr. Brajeshwar Prasad said we are bound to support the words which have been given and we are bound to carry it out in a way that will give confidence to the Services. We feel for the Services because they have done something without which it would not be possible for the Government to carry on. They are one of the best services in the world and in the international situations they have given a good account of themselves. Yet, they for themselves have to consider that the condition of the country is such that it is necessary for them to sacrifice and to forego the conditions which have been given to them and also the terms under which they wanted to work. That heven-born service has been pampered to such an extent by the Lee Commission and even then we cried hoarse. So if we have made any commitments we should honour them. As Mr. Ayyangar said, in the matter of food we have not been able to commit ourselves, and yet we are committing ourselves in this matter Are we justified in doing it? Are we not bound to carry out the recommendations of the Economy Committee? Mr. Ayyangar said the other day, the Committee has recommended many things but we have not carried them out. Are we not bound by those guarantees which have been given to the people.
If we look into the whole circumstances, I think we ought to put a step to the increment of the salaries and we should rather try to follow in this matter the Pakistan ideal that they have given only 30 per cent, increment, which they are entitled to. When a man becomes Joint Secretary he gets Rs. 3,000. Why should so much be given? If he is given 30 per cent, of his salary as addition, that should suffice. I do not know the exact words in which this guarantee or pledge was given, but I agree with Prof. Shibban Lal Saksenathat it would be better not to tie down the hands of future generations by having a provision of this sort in the Constitution. I agree in a many matters that Mr. Ananthasayanam Ayyangar said, and I hope the Drafting Committee will consider this and see it if it could bemodified in such a manner that future generations may not be tied down to it.
:Mr. President, sometimes such questions come up for consideration before the House, to which is very difficult to lend our support. I do not, however, intend to oppose the provision under consideration, since a guarantee has been given on behalf of the Nation to the members of Civil Services hat their interests will be secure, and that the emoluments and privileges, they were so far entitled to, will remain unchanged. In fact every sort of assurance is being given to them. But I, for one, fail to understand the need for such guarantees at a the present juncture. Such assurances might have been needed at the time the British left this land, for them the civil servants were apprehensive about their future; they were afraid that they might be removed from the services. But no such apprehension exists now. The position is quite changed. Now they feel that the administration of the country cannot be run without them. There is no need, therefore, for any such guarantee at this time.
If, however, you want to give them guarantees I have no objection to that course being adopted. But we must know and I may add, every Member of the House should note it in his heart that the English regime was some time ago maintained by these very services; we were maltreated, oppressed and jailed by them. What I mean to convey is this, that the civil servants in our country were for the British rule here. But now they must know that we do not want any one’s rule. We have achieved and established Swarajya. (Self Government.) Under Swarajya, Civil Servants must offer to the community the assurance that they would serve the country sincerely. On our part we are today giving them assurance that their future will be safeguarded, but no reciprocal assurances are coming from them to the effect that they would serve the country sincerely, honestly and incorruptibly. It is common knowledge now that not even an iota of change has come in their behaviour and that still they are what they had been.
In the past–I am speaking of the recent past of two years ago–they thought that they were masters of the country, they would remain masters and that they would continue to rule the people. This mentality is still lingering in them. Now that the Britishers have gone and popular government has been established here, the Civil Servants should change their behaviour and outlook, so that the people may feel that they are not out to oppress and rule them but to serve an protect them. But I am sorry to no such assurances are being given by them. I may submit that the observations made by Shri Ananthasayanam Ayyangar are quite correct. We will also have to consider as to what extent these people can serve and protect the people properly. The Civil Servants must know that they have not so far changed themselves and unless they do so, the guarantees that are sought to protect them in the Constitution will have no value. They have to give their sincere services to the nation and to achieve this end they have to follow the wishes of the people. They must take note that unless they change their age-long policy and their behaviour the guarantees provided for them in the Constitution will do them no good.
I have nothing more to add but that I hope they would properly serve the country through their actions and behaviour and would always consider themselves as servants and never as masters. The idea of mastership must go now.
: Sir, I am distressed that a senior Member like Mr. AnanthasayanamAyyangar, a responsible Member of this House, who is the Deputy Speaker of the Assembly considers and expresses the opinion that the members of the service were carrying on a very difficult administration for the last two or three years, and at the same time harbours the feeling that they are enemies of our country. If that is so, it was his business and the business of those people who think on those lines to move first a resolution to dispense-with them and run the administrations in vaccum–for there is no substitute of which he has thought of except the Congressmen or the Congress workers. I feet very said that the very instruments from whom we have to take work, we have been continuously quarrelling with. If that is so, we are not doing a service to the country. We are doing great disservice.
Now, he made a point that this guarantee should not have been given. What was he doing all this while? To those people who think on those lines, I say, this was not done in secret. No arrangement that was made with the British Government was done in secrecy, not done by an individual, but by the representives, by all the duly recognised representatives of the Nation. When Mr. Henderson came here to settle this question of the Services, he had long discussions with me. He said that before the transference of power arrangements should be made to the satisfaction of the Parliament, that transference of power will take place only when guarantees are given to the members of the Secretary of States’ services, each individual member of which has a Covenant with the Secretary of State for permanency and for certain other guarantees. More than fifty per cent of the Secretary of State’s services were Europeans. Britishers,and the rest were Indians. It was then suggested by him that there should be a treaty between England and India on this question. The suggestion was also made that they should be given due compensation if they have to leave the Services because they would not like to serve in the Indian administration, and that they should be given proportionate pension. Their status, their time-scale of pay, everything was to be settled before any question of transfer of power could be considered. Now, I had long negotiations and it was then a joint Government of the Muslims and the Non-Muslims. It was an all-India Government at that time and these negotiations resulted in certain conclusions which were placed before the Cabinet–it was a joint Cabinet at the time–and they were accepted by them. Then those conclusions were sent to Parliament and it was accepted there. Many of the Europeans who were in the services here have left now, but when the negotiations were going on, I told them to leave the case of Indians to us, that we shall deal with them as we deemed just, that they will trust us and we will trust them; and finally they agreed on certain conditions.
Now, I wish to point out that hardly anybody raised any objection to the arrangements that we were making at that time, but if they had suspected us, then there was plenty of scope at that time for them to come out and get better terms from outside agencies. Even now, if you are not willing to keep them, find out your substitute and many of them will go; the best of them will go. I wish to assure you that I have worked with them during this difficult period–I am speaking with a sense of heavy responsibility–and I must confess that in point of patriotism, in point of loyalty, in point of sincerity and in point of ability, you cannot have a substitute. They are as good as ourselves, and to speak of them in disparaging terms in this House, in public, and to criticise them in the this manner, is doing disservice to yourselves and to the country. This is my considered opinion.
Now, I will give you another series of facts which will convince you why guarantees were given. You had seen what was happening in the Punjab. In the five districts where havoc was being wrought, five British officers were in power and nothing could be done. I tried to get the District Magistrate of Gurgaon transferred. I could not succeed, and the British officer there arrested leading Congressmen when they were not at fault and put them in jail as hostages; he had the cheek to write on the application presented to him by the President of the Bar Association there to the effect that those were innocent and they should not be arrested and that they should be released immediately, that those people were being kept as hostages. This is the way he was doing this business. I was shocked and I went toGurgaon. I saw him coming on the way and I asked him, “Have you arrested people as hostages?” He said, “No, who told you?” Fortunately, I had the document with me on which he had made that endorsement, and I showed him the endorsement. He asked, “How did you get this?” I said,” That is not the question. Is this your endorsement or not?” After that, I tried hard, I wrote to the then Governor of the Punjab, I pleaded with the Viceroy, but I found it difficult to remove him, and you know the havoc that was played in Gurgaon an these other districts. It was not in the Punjab alone; in other places also many such things were done. It was a time of touch and go and we could have lost India. Then we insisted that we had come to a stage when power must be transferred immediately, whatever happens, and then we decided to resign. It was at that time that Lord Mountbatten came.
I give you this inner history which nobody knows. I agreed to Partition as a last resort, when we had reached a stage when we could have lost all. We had five or six members in the Government, the Muslim League members. They had already established themselves as members who had come to partitions the country. At that stage we agreed to Partition; we decided that Partition could be agreed upon on the terms that the Punjab should be partitioned–they wanted the whole of it–that Bengal should be partitioned–they wanted Calcutta and the whole of it. Mr. Jinnah did not want a turncated Pakistan, but he had to swallow it. We said that these two provinces should be partitioned. I made a further condition that in two months’ time power should be transferred and an Act should be passed by Parliament in that time, if it was guaranteed that the British Government would not interfere with the question of the Indian States. We said, “we will deal with that question; leave it to us; you take no sides. Let paramountcy be dead; you do not directly or indirectly try to revive it in any manner. You do not interfere. We shall settle our problem. The Princes are ours and we shall deal with them.” On those conditions we agreed to Partition and on those conditions the Bill in Parliament was passed in two months, agreed to by all the three parties. Show me any instance in the history of the British Parliament when such a Bill was passed in two months. But this was done. It gave birth to this Parliament.
You now say, why did the leaders give these guarantees? In order to allow you to have an opportunity to attack the leaders on this very point. What else? You are responsible Members of the Parliament of a huge country. The Leader of this Parliament has been invited to America, the highest honour that could be done to him. He is treated with great respect. They are giving him all honours. You here say, “Why did the leaders give these assurances?” Think of the past. Why do you forget it? Have you read your own recent history ?
What is the use of talking that the service people were serving while we were in jail? I myself was arrested, I have been arrested several times. But that has never made any difference in my feeling towards people in the services. I do not defend the black sheep; they may be there. But are there not many honest people among them? But what is the language that you are using? I wish to place it on record in this House that if, during the last two or three years, most of the members of the services had not behaved patriotically and with loyalty, the Union would have collapsed. Ask Dr. John Matthai. He is working for the last fortnight with them on the economic question. You may ask his opinion. You will find what he says about the Services. You ask the Premiers of all provinces. Is there any Premier in any province who is prepared to work without the Services? He will immediately resign. He cannot manage. We had a small nucleus of a broken Service. With that bit of Service we have carried on a very difficult task. And if a responsible man speaks in this ton about these Services, he has to decide whether he has a substitute to propose, and let him take the responsibility. This is not a Congress platform. It is said that we promised Rs. 500 for the Ministers in the Karachi resolution. There is a long distance between Karachi and Delhi today. It is a different thing. You want Rs. 45 a day free of income-tax. What is the use of taking about Rs. 500 today? It is very wrong.
But I am prepared to admit that if the Indian Government is to be run today on the basis of Gandhian philosophy without army, I am prepared to change the whole thing. You are today spending 160 to 170 crores of rupees per year on the army. Are you going to change that set-up? Tomorrow the whole of India will be run over from one end to the other, if you have not got a strong army.
The Police which was broken has been brought to its proper level and is functioning fairly efficiently. The Heads of the Departments of the Police in every province are covered under this guarantee. Are you going to change that? Are you going-to put your Congress volunteers as captains? What is it that you propose to do?
I am grieved to find that in a Parliament of this kind, Members, senior Members, speak in this strain. I would refer to you to the Indian Independence Act which gave birth to this Parliament and you find that the guarantees have been included there. When the Indian Independence Act was to be passed in Parliament the draft was sent here. The leaders of the nation were called for; the Cabinet was there, the Congress President was there, your President was there and your Leader today was there. Mahatma Gandhi was also present. Every section was scrutinised and the draft was approved. After that it was passed in Parliament. Now, these guarantees were circulated before that to the provinces. All provinces agreed. It was also agreed to incorporate these into the Constituent Assembly’s New Constitution. That is one part of the guarantee. Have you read that history? Or, you do not care for the recent history after you began to make history. If you do that, then I tell you we have a dark future. Learn to stand upon your pledged word, and, also; as a man of experience I tell you, do not quarrel with the instruments with which you want to work. It is a bad workman who quarrels with his instruments. Take work from them’. Every man wants some sort of encouragement. Nobody wants to put in work when every day he is criticised and ridiculed in public. Nobody will give you work like that. So, once and for all decide whether you want this service or not. If you have done with it and decide not to have this service at all, even in spite of my pledged word, I will take the Services with me and go. The nation has changed its mind.
The Services will earn their living. They are capable people. They were trained in a different setting. I know a senior Member of the Service with about twenty-five years service who went to England for higher education and training in the Civil Service, spent about fifty thousand rupees. He took a loan; he had not the money. But there is a glamour for the Civil Service on the part of the Indian youth. He went there, he passed with distinction and came here. He served very ably, very loyally the then Government and later the present Government. His business is to serve the Government-that he is serving. He had a sense of patriotism. Often he came into difficulties with the then Government when he had to carry out orders against the Congress people, putting them in jail and otherwise. But he could not go beyond a certain limit. Now all his balance today at the end of twenty-five years’ service is ten thousand rupee, and his wife and children, when he dies, will get some provident fund.
These were the circumstances in which many of the service people took their training, came here and served. Now we can say “Very well, they did it with open eyes, let them suffer.” Then you make up your mind to prepare for a substitute. We have already a substitute. We have started a training school here in India: we have fixed the cadre, proposals for which have been approved by Provinces–your know all that.
If you want an efficient all-India service, I advise you to allow the services to open their mouth freely. If If you are a Premier it would be your duty to allow your Secretary, or Chief Secretary, or other services working under you, to express their opinion without fear or favour. But I see a tendency today that in several provinces the services are set upon and told. “No, you are servicemen, you must carry out our orders.” The Union will go-you will not have a united India, if you have not. a good all-India service which has the independence to speak out its mind, which has a sense of security that you will stand by your word and, that after all there is the Parliament, of which we can be proud, where their rights and privileges are secure. If you do not adopt this course, then do not follow the present Constitution. Substitute something else. Put in a Congress Constitution or some other Constitution or put in R. S. S. Constitution–whatever you like–but not this Constitution. This Constitution is meant to be worked by a ring of Service which will keep the country intact. There are many impediments in this Constitution which will hamper us, but in spite of that, we have in our collective wisdom come to a decision that we shall have this model wherein the ring of Service will be such that will keep the country under control.
As I told you, this agreement and these guarantees were circulated to the provinces and to individual members of the Service. Their agreement has been taken and signed by the provinces. They have agreed–both of them. Can you go behind these things? Have morals no place in the new Parliament? Is that how we are going to begin our new freedom? I have seen people who express their opinion about this Service as they used to talk in old fashion when 50 or 60 per cent were British element who dominated the Service and our members of the Service bad hardly any freedom to express their opinion and they were not independent. Today my Secretary can write a note opposed to my views. I have given that freedom, to all my Secretaries. I have told them, “If you do not give your honest opinion for fear that it will displease your Minister, please then you had better go. I will bring another Secretary,” I will never be displeased over a frank expression of opinion. That is what the Britishers were doing with the Britishers. We are now sharing the responsibility. You have agreed to share responsibility. Many of them with whom I have worked, I have no hesitation in saying that they are as patriotic, as loyal and as sincere as myself. Those who think that the leaders were mistaken in giving these guarantees, they do not know their mind. They do not know what would have happened. They do not even now know. Yet we have difficult times ahead. We are talking here under security kept in very difficult circumstances. These people are the instruments. Remove them and I see nothing but a picture of chaos all over the country. I have difficulty because we have paucity of men. Provinces also suffer and they ask for more men. We have appointed a Special Commission to recruit about three hundred to four hundred men. They have just been selected. They are not selected from the, I. C. S. cadre. They have no experience. But yet we want instruments. They will learn from these people.
Now, what is it that you want to do? You decide. My advice to you is all Members of the Parliament should support the Services, except where any individual member of the Service may be misbehaving or erring in his duty or committing a dereliction of his duties. Then bring it to my notice. I will spare nobody, whoever he is. But if these service people are giving you full value of their Services and more, then try to learn to appreciate them. Forget the past We fought the Britishers for so many years. I was their bitterest enemy and they regarded me as such but I am very frank and they consider me to be their sincere friend. What did Gandhiji teach us? You are talking of Gandhian ideology and Gandhian philosophy and Gandhian way of administration. Very good. But you come out of the jail and then say, “These men put me in jail. Let me take revenge.”, That is not the Gandhian way. It is going far away from that.
Therefore for God’s sake, let us under stand where we are. Today, if you want to take anything from the Service, you touch their heart but do not take a lathi and say, “Who is to give you guarantee? We are a Supreme Parliament.” You have supremacy for this kind of thing? To go behind your words? That supremacy will go down in a few days if you do that. That is my appeal to you and sincere appeal to you. You remember that and carry that to the provinces also and to the Congressmen also who are working outside. That is the way of administration. Otherwise, it will go gown. And when the country is stabilised and when it is strong enough, then if you want to make any change, it would not be difficult for the service people to be persuaded. If the Princes could be persuaded to give up their kingdoms, how could it be otherwise with the services who are our own people, whose children will be also serving with us, and who have laboured all day and night for the country? They are men who prefer honour, dignity, prestige and deserve the affection of the people. Very few people would like to serve only to be considered as enemies of the country. So, do not speak in those terms and I appeal to you to consider my word and give your judgment,
I want to know whether the question which I posed while speaking will be answered by Mr. Munshi or by the Honourable Sardar Patel ? May I repeat the question ?
It is not necessary. Your question has been put and if the Member in charge of the article wishes to reply, he will reply.
: I move that the question be now put.
The question is: “That the question be now put.”The motion was adopted.
: Mr. Munshi.
I do not think I should say anything after Sardars’ speech.
I have now to put the amendments to vote.
I do not wish amendments Nos. 124, 125 and 128 to be put to the vote. I would rather leave them for the consideration of the Drafting Committee.
The question is: “That in amendment No. 1 of List I (Second Week), in the proposed now article 283A for the words ‘which he is from time of time serving’ the words as the case may be’ be substituted.The amendment was negatived.
The question is: “That in amendment No. 1 of List I (Second Week), in the proposed new article 283A, ‘or the words ‘the same conditions’ the word ‘conditions’ be substituted.”The amendment was negatived.
The question is: “That in amendment No. 1 of List I (Second Week), in the proposed now article 283A, for the words ‘and the same rights’ the words ‘and rules’ be substituted.”The amendment was negatived.
The question is: “That in amendment No. 1 of List I (Second Week), in the proposed new article 283A, for the words as respects disciplinary matters or rights’ the words of conduct and discipline be substituted.”The amendment was negatived.
The question is: “That in amendment No. 1 of List I (Second Week), in the proposed new article 283A, for the words ‘as similar thereto as changed circumstances may permit as that person was entitled to immediately before such commencement’, the words ‘as similar, as changed circumstances may permit to what that person was entitled to immediately before such commencement’ be substituted.”The amendment was negatived.
: I think you will agree that this article is badly drafted Do you not, Sir?
It is no use my agreeing or disagreeing. We have the vote of’ the House.
The next are the amendments of Mr. Naziruddin Ahmad.
I am not pressing them. I leave them for consideration of the Drafting Committee.
The question is: “That the proposed article 283A stand part of the Constitution.”The motion was adopted.Article 283A was added to the Constitution.Article 307
Sir, I move: “That for clause (2) of article 307, the following clauses be substituted:-‘(2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such, adaptation or modification shall not be questioned in any court of law. (3) Nothing in clause (2) of this article shall be deemed–(a) to empower the President to make any adaptation or modification of any law after the expiration of two years from the commencement of this Constitution; or(b) to prevent any competent legislature or other competent authority to repeal or amend any law adapted or modified by the President under the said clause.” “That in Explanation I to article 307, the words ‘but shall not include an Ordinance promulgated under section 88 of the Government of India Act, 1935’ be added at the end.” “That in Explanation 11 to article 307, for the word ‘has’ the word ‘had’ be substituted and after the words ‘continue to have’ the word ‘such’ be inserted.” “That for Explanation III to article 307, the following be substituted.- Explanation III.– Nothing in this article shall be construed as continuing any temporary law in force beyond the date fixed for its expiration or the date on which it would have expired if this Constitution had not come into force.'”
Sir, the intention of the Drafting Committee is that clause (1) of article 307 is kept intact. Clause (2) has been varied for one particular purpose. There was some doubt whether the President may make adaptations, modifications, amendments or repeals of existing laws and in so doing whether his action could be questioned in a court of law and how for his action would attract judicial interference. Actually, the original clause (2) says that such adaptations could not be questioned in a court of law. But the idea of the Drafting Committee was that it should be made clear that what should not be questioned should merely be the form and adaptation or modification and an examination of the purpose underlying such action should be left open. For that purpose we have begun this article in clause (2) with these words: “For the purpose of bringing the provisions of any law in force in the territory of India into :accord with the provisions of this Constitution………..
That is the basic purpose and if the adaptation or modification has been for any other purpose, undoubtedly that will be a matter which will come within the purview of the courts. So far as that purpose has been granted if any question of wording or minor variations are questioned, they cannot be taken to a Court, of law.
The second modification that has been admitted in this amendment is to limit the power of the President, in this behalf to a period of two years after the commencement of this Constitution by clause (3) (a). The other sub-clause (b) is taken out from the body of the original clause (2) and it has been made clear that nothing that the President might do shall prevent the appropriate authority from changing any law in force as it wishes to even if it had been adapted by the President. This will not act as a bar to any legislation being brought up before Parliament or before the legislature of a State.
So far as the modifications of the Explanations are concerned, the modification with respect to Explanation I is to restrict its meaning.This shall not apply in regard to ordinances promulgated under section 88 of the Government of India Act a provision, which should have been there. It is a lacuna which we are now seeking to rectify.
So far as the new Explanation (iii) is concerned, it is an amplification of the present Explanation.
Before I resume my seat, I would like to mention that this article should not be confused with article 313, which was passed the other day, where the President has been given power to modify the provision of this Constitution in case of any difficulty. The article under consideration gives the President a very restricted power and it is only in regard to those laws about which the President is advised that they come into conflict with the purpose of the Constitution that a modification will become necessary. It is very necessary because we have provided in article 307(1) that all the laws in force in the territory of India shall continue to remain in force subject only to the fact that they do not offend the provisions of this Constitution. This is a very necessary article and the modifications I have suggested are necessary in view of the fact that a certain lacuna in the original draft of the article has been brought to our notice and I do hope that the House will understand that the purpose we have in mind in suggesting these amendments is limited. The President’s Powers are such that they can be overruled by Parliament or the appropriate legislature and it is only intended to serve during a period of time when neither Parliament nor probably the Legislatures of the States would have enough time to devote the detailed attention that is necessary toamend ,certain laws in force in our country. Some such action was taken in regard to certain laws when the Government of India Act, 1935, was adapted following the Indian Independence Act and this would follow the same lines.
By and large, the main modifications will be of it formal nature. Possibly, in many cases the words “Governor- General” will hive to go, and the word “President” will have to be put in and other similar changes will have to be made Substantial changes are not likely to happen except so far as we have provided in this Constitution. It is possible certain changes have to be made arising out of the fundamental rights, embodied in the Constitution.
There is one argument I would like to anticipate in view of the fact that certain amendments have been tabled. It has been suggested in these amendments that Parliament should do these adaptations. Well, if Parliament should do it, or Parliament should ratify the action taken by the President in their behalf then Parliament can undertake this question of modification by passing amending legislation. It is because we feel that Parliament will not have the time during the initial period for this purpose that we have provided this article.
Certain suggestions have been made that a tribunal or a committee may be appointed to go into the matter. That is to be left to the proper authorities who undertake this adaptation at the proper time. Whether they would think that the machinery in the hands of Government is suitable for this purpose, or that the machinery can carry out minor modifications, and if there are to be modifications of a major character that public opinion should be consulted or judges should be consulted, it will be for the appropriate executive authority to do what it feels is necessary. There is nothing to bar a tribunal being appointed, or an examination of the existing laws being made by either the Government of India or by the provincial Governments in the future. I hope these arguments will satisfy those people who have tabled amendments and this article will be passed as amended by the amendments that have been moved by me. Sir. I move.
Mr. President, Sir, I move: “That in amendment No. 2 of List I (Second Week), in the proposed clause (2) of article 307, after the words ‘President may’ the words ‘in consultation with the Chief Justice of the Supreme Court and the Chief Justices of the High Courts of Bombay, Madras and Bengal, be inserted.’
Sir, there is a provision in article 307, I refer to the last line of clause (2), which says that any such modification or adaptation shall not be questioned in a court of law. I am not opposed to this provision; I am in favour of this. But, if we are going to pass such a drastic provision, it is necessary that an such adaptations or modifications which the President may make should be at least in consultation with the highest judicial authorities of the land. We are debarring the courts of law from going into the question. Here, the word President means the Minister for Law. It is he and he alone who will be in charge of modifications and adaptations. The President will have neither the time nor the inclination to go into these questions at all. I want that the Minister for Law should have the assistance of these Chief Justices. It is in no way a criticism or lack of confidence in the merit of the Law Minister, but it is only with a view to strengthen his hands, so that nothing should be left to chance. It is with that end in view that I have suggested this amendment.
Mr. President, Sir, I am one of the people, to use the language of my honourable Friend Mr. T. T.Krishnamachari,–Who have tabled amendments. I wish he had used a better term in conformity with parliamentary practice and decorum and referred to those who have tabled amendments as Members if not honourable Members. I think it is not proper to use the word ‘people’ in reference to my honourable colleagues who have tabled amendments. That is, however, by the way.
I move amendments 134 and 137 together by your leave: “That in amendment No. 2 of List I (Second Week), in the proposed clause (2) of article 307, for the words ‘repeal or amendment’ the words ‘alteration or repeal or amendment’ be substituted.” “That in amendment No. 2 of List I (Second Week), in sub-clause (b) of the proposed clause (3)of article 3O7, forth on words repeal or amend the words ‘alter or repeal or amend’ be substituted.”
They are more or less formal amendments and they are on the lines of the original draft article 307. Article 307 as it stood in the Draft Constitution reads as follows: “(1). Subject etc., etc., all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.” I think this is a very comprehensive statement of any changes that may be made. I feel, therefore, that the commission of the word ‘altered’ is a lacuna which this House would do well to remove. I have therefore moved amendments 134 and 137 so as to bring this new draft in conformity with the original draft article 307. I feel they are a more comprehensive and much happier expression of the meaning that we seek to convey.
Mr. President, Sir, I move the amendments that stands in my name, No. 135: “That in amendment No. 2 of List I (Second Week), in the proposed clause (2) of article 307, the following words be added at the end:-‘but placed before the Parliament for ratification.”
Sir, I feel that some principle is involved in the amendment that I have given notice of. While speaking on this article, my honourableFriend Mr. T. T. Krishnamachari told us that such a provision has been made in the Constitution to empower the president at times of emergency and also when the legislatures are not in session. I feel, Sir, taking into account what is happening in the provinces where the Governors who promulgate Ordinances feel in their duty to place before the concerned legislature when it meets in session what they have done in the matter of Ordinances or laws which are necessary in the interest ; of the country. The President as envisaged in the Constitution can look to Parliament as the body which has to ratify whatever action he has taken when the Parliament was not in session. We are only asking the President to place what adaptations or changes he has made in conformity with the constitution so that not only the country, but also the representatives in Parliament should know what the President has done during the absence of the legislature or Parliament. I feel, Sir, that this is as a matter of right due to the legislature or Parliament of the country because every Member is expected to know what the President has as an emergency measure done during the absence of the Parliament. I am sure that the Drafting Committee will consider this matter and accept my amendment. Moreover, it is made clear in clause (3)(b) that “nothing in this clause (2) shall be deemed to prevent any competent legislature or other competent authority to repeal or amend any law adapted or modified by the President under the said clause.” Therefore, I feel, Sir, that this amendment can be accepted by the Drafting Committee.
Mr. President “That in amendment No. 2 of List I (Second Week), in the proposed clause (3) of article 307:-(i) in sub-clause (a), for the words ‘after the expiration of two years from the commencement of this Constitution’ the words ‘after the constitution of the ministries of the Government of India or of the States as the case may be, after the first general election under this Constitution’ be substituted; and(ii) in sub-clause (b), the words ‘or other Competent authority’ be deleted.”
Sir, in moving these two amendments, I must say that I am in full agreement with the principle of the two clauses which have been moved. In the interim period when we pass through a very rapid transition, numerous anomalies and difficulties will arise and it is therefore necessary to authorise the President to make adaptations and modifications as may be required. The existing laws must be adapted and modified so as to conform to the standard laid down in the new Constitution. That was done when the Government of India Act, 1935, was passed. While agreeing with this principle, my amendment would try to limit the period during which the President may exercise these powers of adaptation and modification. In clause (3), sub-clause (a) it is proposed that the power of the President to make these adaptations and modifications shall be limited to two years. By my amendment instead of this period of two years I want to limit it to a period during which the general elections will be held and ministries will be constituted at the Centre and in the States. After that the Legislatures at the Centre and in the States will be in full operation. We may have general election under the Constitution within a period of two years. If so, there would be anomaly that the legislatures both at the Centre and in the States, will be in full operation and yet the President will be given power to make amendments and changes and modifications in the Constitution. When these legislatures will come into operation, the President’s power should cease. The Legislatures alone should thereafter be entitled to make modifications. Therefore the power to make these modifications should last till the next general elections are held and ministries ,constituted. There is no occasion to extend it beyond that. It may be that elections may be delayed and in that case there would be a gap after two years and the time when the new Legislatures would come into force when there will be no authority to make these adaptations. In these circumstances, I should like to place the period till the period when elections are held and ministries. constituted.
My second amendment relates to the proposed clause (3) which runs thus; “Nothing in clause (2) of this article shall be deemed to prevent any competent legislature, or other competent authority to repeal or amend any law adopted or modified by the President under the said clause.”
I would like to delete the words ‘or other competent authority’. I call well appreciate that the adaptation made by President may be changed by any competent legislature, but I fail to see what other competent authority there would be to make necessary changes. Therefore, we should leave this power to make changes in the decisions of the President to the competent legislatures and not to any other authority. I would ask for a clarification as to what competent authority beyond the legislatures may be empowered or should be empowered to make the necessary changes.
Mr. President, I move “That in amendment No. 2 of List I (Second Week), in the proposed clause (2) of article 307, the words ‘and any such adaptation or modification shall not be questioned in any court of law’ be deleted.”
This is a very important article by which we want to bring all the present existing law in consonance with the provisions of the Constitution and we are, only providing the machinery for the adaptation. The President is hereby authorised to do it. I have no objection to that. I think it is merely bringing the law which in existence today in consonance with the Constitution and I, therefore entirely agree that the President is the proper authority. But what I object to is this, that the adaptation which he may make should not be questionable in any Court of Law. Suppose by mistake or any other reason the modification made is not really in consonance with the purport of this clause and goes beyond this, then where is the authority which will pronounce that the adaptation is not in consonance with the intention of this article, which read& thus– “For the purpose of bringing the provisions of any law in force in the territory of India into with the provisions of this Constitution, etc.”
But what is the machinery provided for seeing that the purpose of this clause at the beginning is given effect to. If the intention is that every such case has to go, to the Supreme Court, it will be very troublesome and costly, because the law ‘to be’ amended will be very wide. I therefore think that the courts which administer that law should be empowered to judge whether the adaptation is, proper or not. The President will not have the time to go through all the law and see it adapted in accordance with the Constitution. The Law Department will do it and even the Law Minister will not have the time to go through it all. This will be done by the clerks of the Department. We do not want that Acts of Parliament passed by former legislatures to be amended and adapted by ordinary clerks and they should not be liable to be challenged in a court of law even on the ground that they are not in consonance with the provisions of the Constitution. —
I, therefore, wish that the normal machinery of law should be trusted to see that if any mistake is made in adaptation then courts should be empowered to correct it. If this is not done, many mistakes will be committed which could not be corrected by anybody in the country. If you want the Supreme Court to be approached, then I do not think every litigant will have the power to do it. I do not know whether the Supreme Court will also have the power. But I think the Supreme Court has inherent powers to go into anything. But still in this Constitution we should provide definitely that the the adaptation shall be with the purpose mentioned in the first clause and the Court shall be empowered to judge the correctness of the adaptation. The other amendments I do not object to, but I do think that the Drafting Committee will explain what machinery they are providing to see that adaptation made will be only in consonance with the provisions of this Constitution. —
Sir, I beg to move: — “That in amendment No. 2 of List I (Second Week), for the proposed clause (2) of article 307 the following be substituted:- “The President shall, as soon as may be after the commencement of this Constitution, by order, appoint a Committee of experts to examine all the laws in force in the territories of India by whichsoever authority enacted and to report to him within a period of 8 months if any or any portion of the laws in force is inconsistent with the provisions of this Constitution and what adaptations and modifications are necessary to bring into accord the inconsistent portions with the provisions of this Constitution. The Government shall forthwith take steps to repeal or such laws or portions of them as are not in accord with the provisions of this Constitution and unless such laws or portions of laws are repealed or amended by being brought within a further period of one year and four months from the date of report in accord with the provisions of this Constitution, they shall cease to be in force unless they are repealed or amended earlier by any competent authority or declared void by the courts.'”
I also beg to move: — “That in amendment No 2 of List I (Second Week), for the proposed clause (3) of article 307 the following be substituted:- “(3) For the purpose of bringing the provisions of the laws in force in the territory of India relating to fundamental rights guaranteed by this Constitution into accord with the provisions of this constitution, the President shall, after the commencement of this Constitution, appoint, as soon as may be, a Committee of experts to examine the laws in force in the territory of India with instructions to report if any or any portion of them is inconsistent with the provisions rotating to fundamental rights and what adaptations and modifications are necessary to bring such inconsistent laws or portions of laws in accord with the provisions of this Constitution. The Government shall, on the receipt of the report, forthwith take steps to avoid, repeal or amend such laws or portions of them as are not in accord with the guaranteed fundamental rights. Such laws or portions of them as are reported to be inconsistent and not in accord with the guaranteed fundamental rights shall cease to be in force after an year of the commencement of this Constitution if they are not avoided, repealed or amended earlier.”‘
I also beg to move: — “That in amendment No. 2 of List I (Second Week), in clause (2) of article 307, for the words ‘made, and any such adaptation or modification shall not be questioned in any court of law’ the word made be substituted.”
Also– “That in amendment No. 2 of List I (Second Week), in the proposed clause (2) of article 307, for the words ‘and any such adaptations or modifications shall not be questioned in any court of law’ the words ‘except in so far as they are inconsistent with the provisions of this Constitution’ be substituted.”
I also move: “That in amendment No. 2 of List I (Second Week), in clause (2) of article 307, the words ‘except on the ground that the law so adapted or modified is not in accord with the provisions of this Constitution’ be added at the end.”
And- “That in amendment No. 2 of List I (Second Week), the proposed clauses (2) and (3) of article 307, be deleted.”
Sir, my purpose in moving these amendments is to give full effect to the provisions that we have already passed, vide article 8. Now, these existing laws can easily be divided into two kinds of laws–laws relating to fundamental, guaranteed rights, and the laws with regard to other matters. I want to make a distinction between these two, and as would appear from the amendments I have proposed, some of them relate only to the guaranteed rights and the other relate to the other laws in force. Now, I take very serious exception to the words–“any such adaptation or modification shall not be questioned in any court of law.” And that is why I have proposed these amendments, so that such words may be taken away and such other words substituted as would make the meaning absolutely clear. I am almost despaired of getting the objectionable provision of this section cleared out and I have therefore even proposed that the entire cause (2) be deleted. Sir, I feel full thought has not been given to this matter, I mean as much thought as should have been given to it. If the proposition is accepted as it is, if the proposal of Shri Krishnamachari is carried, the result will be this. Not the legislature, but the Government through its department of law, not the law Member, but the Secretary or clerks will make these adaptations and, modifications and all these adaptations and modifications will never come before any Assembly or Legislature. The substantive law of the land will, ipso facto, by the Executive fiat, be adapted or modified and become the law of the land. The law shall stand modified or adapted and after that, that law becomes so immutable that the courts will not be able to question them. My submission is, we have passed article 8 already which says: — “All laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are inconsistent with the provisions of this Part, shall to the extent of such inconsistency be void.”
Now, all those laws which the Courts are today empowered to declare void are sought to be sanctified and made “pucca” by these adaptations. And it is not in accordance with clause (2) of article 8, which says: “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
What would happen it a modification or adaptation is made which is really in contravention of the clause? That law cannot be questioned,no court will be able to question it, which means in plain English, that what we give by virtue of article 8(2) and 8(1) is being taken away by this back-door method. I do not say that is the desire of those who have framed this proposal, but my humble submission is, that that is the result, that it will result in a situation like that.
Let me just illustrate this point. Take article 13. We have practically changed the definition of sedition, by the provisions made under this article. Under article 13(3) we have put in “reasonable” before “restrictions on the exercise of the right…….. and thereby we have given the courts of the country the opportunity to find if the particular laws which are harsh and onerous should be void or not. They come within the purview of the courts’ jurisdiction and any court can declare that such and such law is against the letter and the spirit of article 13 and therefore, void. But as soon as the adaptation is made and it will not be something enacted by the legislature, but something done by the Executive–and if the adaptation fails to carry out the purpose, if it is not in consonance with article 8, no court will have the power or the authority to declare such adaptation to be wrong, which means that we give such power to the Executive as we have not entrusted to the legislature even. If this Parliament, after 26th January, 1950, passes any law in respect of these fundamental rights which abridges the liberty of the people, that can be questioned in a court of law, and any court of law can say that Parliament was wrong in so far as it contravened the provisions relating to the fundamental rights. If the adaptation is made in such a manner that it does not carry out the full purpose, then we are absolutely helpless. It is said that there is provision that any legislature can take such action as it deems necessary and repeal the law. Quite right. This is so. May I ask if this right is not completely illusory? Where is the Provincial Legislature which will come to the conclusion that the adaptation or modification made by the President is wrong and sit as a court of appeal on the decision of the President, and go ahead to frame the laws afresh? Where is the individual Member who will be given the facilities to bring in the necessary new provisions? We all know how many obstacles there are in the way of those who want to enact a law. My submission is that when once these adaptations or modifications are made, it will be very difficult to change them. Government will not change them. The local legislatures will not change them, and no private member will have the chance of changing them. It means in plain English that these adaptations or modifications will be there for all time, whether they are in accord with the Constitution or not. Who makes the law of the land? The legislature and not the executive or Secretary or Clerk in the office of the law Member. Even if the President were to pass any Ordinance, that Ordinance Will again be placed before the legislature within two months, but so far as these adaptations or modifications are concerned, they will never be placed before the Legislature. Therefore, my submission is that these adaptations will be defective in more ways than one. They will not receive the seal of the Legislature and the courts will not be competent to question those modifications.
Now, Sir, it is said that the first sentence “For the purpose of bringing the provision of any law in force in the territory of India into accord with the provisions of this Constitution” is sufficient guarantee. My submission is that this is no guarantee. My point is that the purpose is there, but what if the purpose is not carried out, if the adaptations or modifications are not good or do not go to the same extent that the Fundamental Rights do? The courts have no power to interfere. If you say, “necessary or expedient” are there, and the courts can go into the question of whether the adaptations are necessary or expedient, my submission is, what is the sense in having these words “shall not be questioned in any court of law”? I understood Mr. Krishnamachari to say that minor things should not be questioned but that only the purpose should be seen. The adaptations can say that for such and such purpose the adaptations are made, but that is not sufficient. The courts will not be able to go into the question of the purpose also. The purpose is there, but there is no guarantee that the adaptations will carry out the purpose. It may be said that such a provision in the shape of section 293 existed in the old Government of India Act of 1935. No doubt that section was there in the Government of India Act; but then the purpose is absolutely different. Here in this Constitution the main change that we have made is that we have given certain Fundamental Rights. In the Act of 1935 there were no Fundamental Rights. I would not care if you make adaptations to the ordinary laws of this country provided you do not touch the rights of the people. You may bring all the laws of the land in accord with the Constitution, but when you go and touch the very delicate rights of the people in general and touch their fundamental rights, then my submission is that the matter becomes of very great importance. In section 293 even these words ‘shall not be questioned by any court do not appear. In the old section 293 you will find that the powers of the courts were not taken away. There the laws were subject to the jurisdiction of the court as before. Now these words have been specifically added that the adaptations or modifications shall not be called in question in any court of law. My main objection is to these words.
It is a secondary objection, though of equal import, that the executive should not be given the right to adapt these laws. I propose that in regard to these Fundamental Rights, a Committee of Experts should be appointed to go into the question. This will be an important Committee and the best heads of the country should be on it. They will go into all the laws and make a report to the President that he may be pleased to see that such and such Acts are enacted, because the law-making power is that of the Legislature and we cannot delegate this power to any President or any other set of people. After the Committee has reported, the Government will take steps to see that such inconsistent laws are repealed. In this I beg to submit that the authority of the court will not be taken away. It is the essence of these Fundamental Rights that the courts are the ultimate authority and possess ultimate sanctions and jurisdiction. After all, if the courts will not safeguard these rights, what chances are there that the executive will do it ? Really, you are putting the cart before the horse. In section 293 of the Government of India Act such rights were not touched at all. Only the existing laws were taken into consideration; there was no reference to Fundamental Rights and therefore also no taking away of the jurisdiction of the courts. It is possible that the rights guaranteed by article 13 may be so tampered with in the way of adaptations that we will not be able to change them for years to come.
Therefore it seems to me, Sir, that you have only trumpeted to the whole world that you have given these Fundamental Rights. I do not say that the, Law Minister will behave in this manner. I think he will not behave in this manner but he might ask someone in his chamber to go into this matter. I cannot possibly agree to delegate this power to any authority, even including the President or the Law Minister. Let the legislature go into these laws and find out whether adaptations are necessary or not. The executive should not change the law of the land in this manner. Mr. Krishnamachari said that these words are not important. All right, take them away, and my main objection would go away. Sir, in 1947 we had a Bill before the Assembly in which many old laws were sought to be repealed by the legislature. Why cannot you bring in a Repealing Bill before the Assembly again? In regard to these Fundamental Rights, people will go to court and the court will be able to hold that such and such law is not in accordance with the provisions of the Constitution. Why not give this power to the Courts? If you want to benefit the people, benefit them in a direct manner. As it is, you may abuse your position and bring disaster to the people.
Mr. President, Sir, a great deal of the criticism of the amendment moved by my Friend, Mr. Krishnamachari, proceeds on an entire misapprehension. It is necessary to have in view what exactly is the object of this clause. Our Constitution has made certain fundamental changes in the structure of the Constitution, in the distribution of powers, in the powers vested in particular authorities, in the relation between the Unit Legislatures and the Central Legislature. At the same time, it is not our object to start afresh our career in legislation, but to take over all the enactments under the previous Constitution subject only to the prohibitions and to any special provisions in the present Constitution. It is necessary to have an idea of the number of Statutes, Ordinances, Acts, subordinate Acts, and rules there have been made in all these twenty years after the first adaptation in the year 1935. If every Act, every rule, and every order, is to be subject to the scrutiny of courts and this adaptation is to be canvassed from court to court, it will no doubt afford plenty of opportunities for lawyers and litigants, but it will not be in the larger interests of the country. Therefore, in taking over the whole body of legislation to the new Constitution you first provide that that legislation shall continue to operate unless it is repugnant to the principles of the Constitution.
That is the first principle and having laid that down, it becomes necessary to provide for adaptation. If that adaptation is to be made within the two years when Parliament is overloaded with work in regard to various matters consequent upon the new Constitution, to trouble Parliament with the work of adaptation will be an unwise task. Under those circumstances, what is provided is there will be adaptation by the Government. You need not proceed on the footing that the Governor-General or the President sitting at Delhi is going to make all the adaptations. The Government will be assisted by an expert body. The advisory bodies which my friend suggested may, beutilised for the purpose of making the adaptation, provided they do not become unwieldy and hamper the work of adaptation. The adaptation will have to be done quickly in addition to other work which the Constituent Assembly may have to take upon itself soon after the passing of the Constitution in order to bring the Constitution into effect.
Before I make my comment upon the article as put forward before the House, it is necessary to have in mind what exactly section 293 of the Government of India Act which has been adapted in this article 283 provides. Under the section 293, His Majesty was given the power of adaptation. No limit of time was imposed. The President of the Drafting Committee who was responsible for putting the limitation of these two years thought that a power for an indefinite length of time should not be vested in the President. It must be expedited and the adaptation must be finished within two years. Therefore the limit of two years was placed. Under section 293, the question came up before the Federal Court in the very first case after the new Constitution of 1935 whether an adaptation can be questioned in a court of law. Sir Maurice Gwyer, the then Chief Justice, delivering the judgment in the U. P. Cantonment Case stated that adaptation could not be questioned at all. We put a limitation in the present article in the opening words, “for the purpose of bringing the provisions of any law enforced in the territory of India in accord with the provisions of this Constitution.” It is only for that purpose that this power is to be exercised by the President. This is a very necessary, wholesome, and salutary provision. With my experience in courts in regard to other provisions and bye-laws, I am bold enough to state that there is a general tendency to attack every rule and every Act, and I can say that this provision is most wholesome and salutary. Instead of leaving it to the Supreme Court or Federal Court again to deal with the point whether Sir Maurice Gwyer’s decision is to be followed or not or whether some dissenting opinion expressed in the Lahore High Court is to be followed, the position is made clear that the adaptation shall not be questioned in a court of law. It was advisedly, deliberately put in in order to prevent frivolous, immaterial objections being taken. But if the adaptation is so alien to the main provisions of the Constitution to the very purpose of the Constitution, then the court will have the necessary jurisdiction to hold the adaptation invalid. It does not mean that every bye-law, every clause, every sub-clause, every expression, has to be canvassed in the court of law. If the main purpose is kept in view and if the adaptation is not alien to the purpose, it shall not be questioned in a court.
After all, the adaptation is not immutable. It is subject to the intervention of the legislature. If the legislature is vigilant, and sensitive to public opinion as to scrutinise every adaptation, I think there is nothing to prevent it from passing a law when an adaptation is not in accordance with the spirit of the Constitution. We are proceeding on the assumption that the legislature is quite alive to its duty, it is very vigilant, very capable, hard-working, and with the host of lawyers in the country who will surely canvass every bye-law and with a large public who are likely to be affected by it, there is no danger of its not being noticed by the vigilant public or equally vigilant lawyers or equally vigilant legislators. The legislators will be on the watch. The lawyers will be on the watch and the courts are sure to find any lacuna in legislation. Under these circumstances, I submit this is the most salutary provision. Already there is great criticism that the Constitution itself is intended for the benefit of lawyers. The provision in the Constitution that adaptation of the Constitution shall not be questioned in court is a most wholesome one.
Regarding the power of the legislature to intervene, it can do so at any moment. The provision does not stand in the way of the President constituting a body of able advisers like my Friend, Pandit Thakur Das Bhargava who certainly will have the public spirit to assist the President in making the necessary modification and at the same time, as a temporary phase it enables the President to make the necessary adaptation. Unless the President is mad or his Cabinet is mad, they will not violate Fundamental Rights. Of course, here and. there in respect of a particular clause, it is possible that the legislature may take a different view, but if there is a tenable ground, the legislature can look after it and it will be competent for the Government or the parties concerned to, alter that provision. Under these circumstances, I am sorry that this provision should be taken exception to,
It is suggested that we should meet in the afternoon, so that we might make more progress. So we shall sit again at 4 o’clock.The Assembly then adjourned for lunch till 4 P.M.The Assembly re-assembled after lunch at 4 P.M., Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair.
Sir, the proposed amendment follows very closely the Government of India Act of 1935. If at all there is any difference, it is on the side of stringency. In the Act of 1935, as adapted, this section–I mean section 293–was omitted. We have naturally a right to expect an explanation why this omission was made and why a departure has now been felt necessary in this regard.
Sir, my honourable Friend, Pandit Thakur Das Bhargava, has clearly stated his objections. Most of those are our objections. Myhonourable Friend, Shri Alladi Krishnaswami Ayyar, representing the Drafting Committee, treated us to some homilies. He stated that the power of the Legislature has not been taken away by this amendment. I want to ask him whether it is necessary that an eminent lawyer like him to explain these elementary principles to us, as it the Members of the Assembly do not know that tinder a system of responsible Government the ‘President’ means the Cabinet or the Prime Minister himself. Then again he stated that it is in consonance with the spirit of section 293 that the Orders in Council were being issued by the British Cabinet. When you were trusting the British Government, why cannot you trust your own Government? If at all there is any element of distrust, I say that the boot is on tile other leg. So, it is unfair and unfortunate to state that we want a change in the section merely because we do not trust the Ministry. It is not a question of our trusting the Ministry. What has been proposed in this article is that the Honourable Dr. Ambedkar, the Chairman of the Drafting Committee, will transfer all the powers of the Legislature to the Honourable Dr. Ambedkar, the Law Minister of India. Here again we would not probably have so much bother, it lie or his Cabinet handled the whole question themselves. Sir, it is a well known fact that Cabinet Ministers are busy-bodies. It is not possible for them to go closely through all the Acts that have to be adapted in this regard.
While discussing this question we have to keep two or three things in view. The first thing is that you have in the Constitution the Fundamental Rights which, were never contemplated; nor were they conceived in the Act of 1935 and much less thought of by the British Government or the British Cabinet. Secondly you have barred the Jurisdiction of the courts by a specific provision in the Constitution. A point has been made out by our Friend, Shri Alladi Krishnaswami Ayyar, that it is the judicial pronouncement of the highest court. I must tell him again–as I have already suited–that my confidence in the pronouncements of the British judiciary under a system of imperial administration is not as it would be under the pronouncement of a free judiciary in a free India. Until that is done I must plead with him and with the honourable Members of this House that my confidence in the judiciary will be within its limitations.
Sir, a period of limitation of two years has been laid down–I do not known, for what reason. The enormous powers that are vested in the Executive are not at all desirable. When my honourable Friend Shri Alladi Krishnaswami Ayyar was thrusting his homilies on us to trust the executive, it took my breath away. I hardly expected that an eminent jurist and lawyer as he would teach me about our confidence in our Executive. I would plead with him to carry his logic further. By all means have all confidence. Why then have any law? Leave everything to the administration. Have no laws at all. Have no constitution; no Fundamental Rights are called for because we have it responsible Government and a popular Ministry. This is hardly expected of a very wise and sound jurist of his eminence.
Sir, I must complain in this connection that the Government have not placed all their cards before us. I do realise the fact that the Government is not represented here and the Members of Government are here in their capacity as Members of the House. But it is no doubt a fact that Dr. Ambedkar is also the Law Minister of India, and it is his responsibility and duty to explain to us what steps he has taken tip till now in this regard. This is, a very big order that he wants to be given to him. There ire thousands of laws, Central and Provincial in operation, including the Regulations passed by the British Government. All these have to continue in operation. Is it possible for ordinary Members, I ask, to undertake the private legislation to modify all these? What has been done by the Ministry of Law? I plead again with the Drafting Committee that the position they have taken so far, as also the action taken by the Law Ministry so far in this regard has not been helpful. My Honourable Friends have made various suggestions.
What is the kind of action which you expect from the Law Ministry on this subject?
I am coming to it. In fact I will be failing in my duty if I do not state it and I will iterate. The British Government, before any adaptations were undertaken asked the Government of India and the Law Department of the Government of India to examine all the necessary Statutes. The Government of India were suggesting adaptations and the adaptations suggested by the Law Ministry, then, the Law Department of the Government of India, were being approved and published as the adaptations of the British Government in an Order-in-Council. My complaint in this regard is that neither the Law Department nor the office of tile 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.
Without knowing what the Constitution is going to be.
My Friend is thoroughly misinformed. He does not know what is being done.
I will be glad if I am misinformed and I will be glad If all this has been done. In which case, my Honourable Friend ought to have placed the whole thing at least by this time–as I said and I repeat–all the cards on the table, and said “I have got them ready, give me the order and I will publish.” I do not agree with those who think that consultations with Chief Justice will improvethe matter nor do I agree with those honourable friends who feel that reactions are to be placed before Parliament. The adaptations under the Indian Independence Act were placed before Parliament. But to what effect? Where has the legislature time for private Members to undertake this stupendous task? Under these circumstances, placing of adaptations for the reactions of Parliament will not help.
Another proposal has been placed before honourable Members and that is an Expert Committee. That would be certainly useful and helpful. But I would suggest that we are giving a big order and placing very responsible power and authority with the Executive. Therefore, I think it will be fair to the Legislature also if some of the eminent jurists, who happen to be Members of the Legislature, are constituted into a Committee to place recommendations before the Law Ministry so that the Ministry gives them merely legal shape. It should be the responsibility of the Law Ministry to put them into legal form. I am not inclined to place all other powers, importance and responsibility as they are, in the hands of the Executive. In this view of the question, for myself will be fully satisfied if the Honourablethe Law Minister or the Drafting Committee say that they are willing and anxious to have an Expert Committee of the Constituent Assembly and the Legislature examines all the laws, and if necessary, asks the Provincial Governments to undertake examination of all the laws and all the adaptations to be put together. It would be unthinkable after responsible Government in a free India to have laws irresponsible in themselves and most of which are out of date and at antediluvian and which do not suit the present-day needs of the people to co-exist and operate. In these circumstances, I plead with the Drafting Committee and also with the honourable Members of the Constituent Assembly to consider this important question.
The question may now be put.
Sir, after listening to this debate carefully, I am inclined to support the view expressed by my honourable Friend, Pandit Thakur Das Bhargava. It seems rather preposterous that if a Legislature passes any provision which is inconsistent with the Constitution then any one aggrieved by that would be entitled to bring that fact to the notice of the Court and the Court will not be precluded from considering that question. Supposing any legislation was passed which was inconsistent with any of the Fundamental Rights of the Constitution, then it was up to anybody to move the Court to have that legislation declared illegal and void. It seems rather strange when a similar order or provision was made by the President by virtue of the power of his adaptation and modification–which was inconsistent with the Constitution, we could have no remedy in a court of law. I thought, Sir, there it was not necessary to abrogate this new provision because so long as the adaptation order was inconsistent with any provision of the Constitution, the lower court would have full jurisdiction. But my honourable Friend, Shri Alladi says that in a recent ruling the Federal Court has held that any suit brought to set aside or to declare an adaptation invalid would be out of court. Therefore, Sir, I consider it would be safe and in the interests of all concerned that an amendment of the nature which has been proposed by Pandit Thakur Das Bhargava should be accepted.
I would also like to say that the period of two years prescribed by this article is rather too long. If such a period is there, in some instances the President or his advisers may not taken steps as early as they should. In my opinion, immediate action would be necessary after the passing of the Constitution so far as administration of justice in the tribal areas is concerned. It will be within the recollection of the House that in paragraph 5 of Schedule VI, certain provisions have been laid down on the strength of which the Code of Civil Procedure and the Code of Criminal Procedure could be made enforceable in the tribal areas.
But honourable Members will be surprised to learn that even though there may be a litigation between persons who do not belong to the tribal community, in areas which are not inhabited by tribal people at all, but are within the jurisdiction of the hill area, the Code of Civil Procedure and the Code of Criminal Procedure are not in force. For instance, there any Assistant to Deputy Commissioner who may not have any legal academical qualifications is competent to punish an accused with any sentence up to seven years; and under the present rules if the sentence is more than three years then only an appeal can be field. Otherwise, there is no right of appeal. I regard to other matters also, the Civil Procedure Code or the Criminal Procedure Code is not in force. It has been laid down that the courts will be guided by the spirit of the Code of Civil Procedure or the spirit of the Code of Criminal Procedure. This spirit, Sir, it has been very difficult to find at all. Sometimes, the spirit of the Criminal Procedure Code is interpreted in not following the Criminal Procedure at all; sometimes it is interpreted in following the Criminal Procedure Code strictly. Even if my honourable Friend. Dr. Ambedkar or AlladiKrishnaswami Ayyar had been practising in these bills, they would have found it difficult to see where the spirit of the Civil Procedure Code or the spirit of the Criminal Procedure Code lay. Under this paragraph, it is within the competence of the Governor to declare that the Criminal Procedure Code will be enforced in respect of the trial of offences which involve a sentence of imprisonment of five years or more, or transportation or capital sentence. But, unless the law is adapted immediately, this provision of the Constitution will remain merely as a dead letter. This is a very small mercy. Just for a moment, fancy that anybody living in Delhi or Ajmer Merwara being tried,convicted and sentenced to death also without the Criminal Procedure Code being followed. I could have quite this law was applicable in those cases where the indigenous or the tribal people were the parties. But it is not so. Even if it is a case purely between non-tribals or between a tribal and a non-tribal the Criminal procedure Code is not applicable and in that case no legal procedure is followed; at any rate the right of appeal will not be allowed.
I submit that in order to bring the present law in line with those provisions which have given a small mercy in that the Governor may declare certain provisions of the Criminal Procedure Code to be enforced in a particular area in respect of certain cases, steps should be taken by an amendment or modification of that law so that that law may come into force at an early date. Therefore, I welcome this article which allows an alteration or modification of the existing law so as to bring it in line with the provisions of the Constitution. At the same time, we must be safeguarded against the application of these provisions for adaptation or modification in such a way as may interfere with the fundamental rights given by this Constitution. In such cases of interference, it should be made clear that we should have the right to go to the court, in order to have that adaptation declared invalid. Otherwise, if you leave it at that, in view of the ruling that has been cited, we shall be absolutely powerless to take any step when the President would be pleased to make such an adaptation as would be inconsistent with the provisions of the Constitution.
Closure has already been moved. The question is: “That the question be now put.”The motion was adopted.
Mr. President, let me, at the outset apologise to my honourable Friend, Mr. Kamath, who is not here I see, who took objection to a slip of the tongue on my part when I referred to those honourable Members who moved amendments as people who moved amendments.
The House may recollect that I had tried to anticipate the amendments that were being moved and answer those amendments in advance. The bulk of them, at any rate so far as the amendments moved by my honourable Friends, Mr. Kamath, Mr. Muniswami Pillai, and Prof. Shibban Lal Saksena, I have attempted to answer in advance. I think that so far as the wording of clause (2) as it now stands is concerned, It is so clear that no mischief can possibly arise out of the wording appearing at the end of that clause, namely, that such modifications and adaptations shall not be questioned in a court of law. Ample pro vision has been made by the opening words which specifically state that the that the adaptation should be made only for the purpose of bringing the provisions of the law in force in the territory of India into accord with the provisions of this Constitution.
It is only this group of amendments which were tabled by my honourable Friend, Pandit Thakur Das Bhargava which probably require some reply. In his amendment No. 188, in which he seeks to substitute clause (2) by another clause, he has failed to understand the purport of clause (2). The purport of clause (2) is that in so far as it is possible, the machinery at the disposal of the Government would prepare the necessary amount of material for adaptations to be made which will, in all probability, be published as an Order by thePressident immediately after the Constitution is promulgated. That would be necessary because there will be a number of details, minor in some cases, of a different character in certain other cases which will have to be dealt with in order to bring the laws in force in tune with the provisions of the Constitution.
In the amendment proposed by my honourable Friend, he suggests that a committee should be appointed and that that committee should report within a period of eight months, and that action should be taken later on. What is to happen in the period between the time of the promulgation of the Constitution and the eight months that will naturally elapse until the committee reports? It is obviously impossible that any such thing could possibly be done, if actually the laws that are in force are to be brought in tune with the provisions of this Constitution. As I said in my remarks at the time of moving these amendments, there is nothing to prevent the Government, to prevent the Parliament, from passing a resolution, or prevent the Government from taking the initiative in this matter and appointing a Committee to review the law structure in this country and modernise it and bring it in tune with the principles that are adumbrated in this Constitution. I think my honourable Friend, Pandit Thakur Das Bhargava must wait until the new Constitution is promulgated and either by means of a Bill or by means of a Resolution get the Government to move in the matter, on the lines that he has suggested.
So far as his amendment to clause (3) is concerned, the amendment is such that it takes away the guarantee that is provided in clause (3) of the amendment moved by me. What he has done is merely he has sought to incorporate in his suggested amendment to clause (3) what he had originally thought of moving as a separate article 307-A. The idea that he had when he framed the amendment that he wanted to move as a new article 307-A has been incorporated in clause (3), namely, that something must be done in regard to the fundamental rights, and the question of relating the laws of this country in tune with the fundamental rights.
I therefore feel that my honourable Friend, Pandit Thakur Das Bhargava who is known to this House as a lawyer of considerable eminence and who puts in a lot of hard work in helping this Constitution to be framed has, in this particular instance, allowed his enthusiasm to outrun his usual discretion and tabled an amendment which does not fit in with the particular amendment before the House. It may fit into something else; it may go in as an independent proposition, but it does not fit in this particular amendment. Because, his amendment No. 188, does not fulfil the purpose of clause (2) of the amendment that I have proposed and his amendment No. 189 does not fulfil the purpose of clause (3), that……
So far as the amendment relating to the proposed clause (3) is concerned, it is a separate thing altogether. It is not an amendment to clause (2).
Actually, his amendment No. 189 says— “That in amendment No.2 for the proposed clause (3) the following be substituted.”
I feel that it is not a substitution because it bears no relation whatever to the provisions of clause (3) as I have moved it, and I think there is no mystery about it because the wording of clause (3) is very clear. The wording seeks to empower the President to make adaptations only for a period of two years.
It is an amendment to the original article.
Then I stand corrected. If my honourable Friend has brought an amendment at 9-35 A.M. today which is something apart from the amendment, which is on the Order Paper, I am afraid that I must withdraw all the remarks that I have made and merely plead that since the thing bears no relation to the amendment that I have moved, I am unable to furnish a reply and the proper authority probably to give a reply will have to be the Honourable Minister for Law of the Government of India or the Law Minister of the Government of India as it is to be after the 26th January. I feel that the article 307 as amended by the amendments proposed by me fulfils a definite purpose which has been amply justified by the learned arguments furnished by my honourable Friend and colleague, Mr. Alladi Krishnaswami Ayyar, and the House would therefore do well to accept his argument in support of this proposal and I would therefore request the House to accept my amendment and pass article 307 as amended by my amendment.
I want a clarification of what is really intended to be meant by the words– “and any such adaptation or modification shall not be questioned in any court of law.“
Because if the President amends or modifies any existing law in accordance with what we have passed in the Constitution then his actions ire intra vires and no question of raising the matter in any court of law arises. But if the President does anything which is against the spirit of clause (2), i.e., if he amends, modifies or repeals any existing law which is it variance with or repugnant to the provisions laid down in the Constitution then his action is ultra vires and certainly it can be questioned in a court of law. What class of cases arereally contemplated to come within the limitation provided in the last two lines. Clearly, the cases in which the President acts precisely within his power conferred by this article do not come under those two lines mentioned above so there is only one class of cases that are likely to be governed by the said lines are in Which the President acts in contravention to what is laid down in this article because you have not laid down any procedure or rules for the President to act in matters of amending or modifying the existing laws and so no question of’ irregular exercise of Power arises.
My honourable friend his not followed perhaps my imperfect explanation of the provisions. I wanted him to consider the opening words. The opening words justify the interference by a court to see whether the adaptation has been made in accordance with the opening words i.e., for the purpose of bringing the provisions of any law in force. If it is felt by a Court that it is not for that purpose, undoubtedly the adaptation will be ultra vires. If on the other hand it is a matter of merely a question of a different point of view in regard to wording of the adaptation, etc., then it certainly is a matter which we feel ought not to be questioned in any court of law. In any event nothing would prevent any court from going into the question whether the adaptation was for the purposeintended by this clause viz., for the purpose of bringing the provisions of any law in force. We cannot really state in a Constitution what particular matter is to be ultra Vires or intra vires. The purpose has been clearly indicated and I do not think we can go beyond the words contained in this clause.
If the cases of irregular exercise of jurisdiction and the cases in which the President’s action is in accordance with this provision do not come under these two last lines, then certainly there is always a danger of interpreting it so as to include the cases in which the President acts without jurisdiction.
I will now put the amendments to vote.
The question is: “That in amendment No. 2 of List I (Second Week), in the proposed clause (2) of article 307, after the words ‘President may’ the words ‘in consultation with the Chief Justice of the Supreme Court and the Chief Justices of the High Courts of Bombay, Madras and Bengal’ be inserted. “The amendment was negatived.
The question is: “That in amendment No. 2 of List I (Second Week), in the proposed clause (2) of article 307, for the words ‘repeal or amendment’ the words ‘alteration or repeal or amendment’ be substituted.”The amendment was negatived.
Sir, I would ask for leave to withdraw my amendment.The Amendment was by leave of the Assembly withdrawn.
136. 1 will put the two parts separately.
The question is: “That in amendment No. 2 of List I in the proposed clause (3) of article 307- “(i) in sub-clause (a), for the words ‘after the expiration of two years from the commencement of this Constitution the words ‘after the constitution of the Ministries of the Government of India or of the States as the case may be, after the first general election under this Constitution’ be substituted.’ “The amendment was negatived.
The question is: “That in sub-clause (b), the words ‘or other competent authority’ be deleted.”The amendment was negatived.
The question is: “That in amendment No. 2 of List I in sub-clause (b) of the proposed clause (3) of article 307 for the words ‘repeal or amend’ the words ‘alter or repeal or amend’ be substituted.The amendment was negatived.
The question is: “That in amendment No. 2 of List I in the proposed clause (2) of article 307, the word ‘and any such adaptation or modification shall not be questioned in any court of law’ be deleted.”The amendment was negatived.
The question is: “That in amendment No.2 of List I (Second Week), the proposed clause (2) and (3) of article 307 be deleted.”The amendment was negatived.
The question is: “That in amendment No.2 of List I (Second Week), the proposed clause (2) of article 307, the following be substituted:–“The President shall, as soon as may be after the commencement of this Constitution, by order, appoint a Committee of experts to examine all the laws in force in the territories of India by whichsoever authority enacted and to report to him within a period of 8 months if any or any portion of the laws in force is inconsistent with the provisions of this Constitution and what adaptations and modifications are necessary to bring into accord the inconsistent portions with the provisions of this Constitution and what adaptations and modifications are necessary to bring into accord the inconsistent portions with the provisions of this Constitution. The Government shall forthwith take steps to repeal or amend such laws or portions of them as are not in accord with the provisions of this Constitution and unless such laws or portions of laws are repealed or amended by being brought within a further period of one year and four months from the date of report in accord with the provisions of this Constitution, they shall cease to be in force unless they are repealed or amended earlier by any competent authority or declared void by the courts.”The amendment was negatived.
The question is: “That in amendment No.2 of List I (Second Week), the proposed clause (2) of article 307, the following be substituted:–(3) For the purpose of bringing the provisions of the laws in force in the territory of India relating to fundamental rights guaranteed by this constitution into accord with the provisions of this Constitution, the President shall, after the commencement of this constitution, appoint, as soon as may be, a Committee of experts to examine the laws in force in the territory of India with instructions to fundamental rights and what adaptations and modifications are necessary to bring such inconsistent laws or portions of laws in accord with the provision of this Constitution. The Government shall, on the receipt of the report forthwith take steps to avoid repeal or amend such laws or portions of them as are not in accord with the guaranteed fundamental rights Such laws or portions of them as are reported to be inconsistent and not in accord with the guaranteed fundamental right shall cease to be in force after one year of the commencement of this Constitution if they are not avoided, repealed or amended earlier.”The amendment was negatived
The question is: “That in amendment No.2 of List I (Second Week), in the proposed clause (2) of article 307, for the words `made and any such adaptation or modification shall not be questioned in any court of law’ the word `made’ be substituted.”The amendment was negatived.
The question is: “That in amendment No. 2 of List I (Second Week), in the proposed clause (2) of article 307, for the words `and any such adaptation or modification shall not be questioned in any court of law’ the words `except in so far as they are inconsistent with the provisions of this Constitution’ be substituted.”The amendment was negatived.
The question is: “That in amendment No. 2 of List I (Second Week), in clause (2) of article 307, the words `except on the ground that the law so adapted or modified is not in accord with the provisions of this Constitution’ be added at the end.”The amendment was negatived.
The question is: “That for clause (2) of article 307, the following clauses be substituted:– (2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law. (3) Nothing in clause (2) of this article shall be deemed-(a) to empower the President to make any adaption or modification of any law after the expiration of two years from the commencement of this Constitution; or (b) to prevent any competent legislature or other competent authority to repeal or amend any law adapted or modified by the President under the said clause.” 3. That in Explanation I to article 307, the words ` but shall not include an Ordnance promulgated under Section 88 of the Government of India Act, 1935′ be added at the end. 4. That in Explanation 11 to article 307, for the word `has’ the word `had’ be substituted and after the words `continue to have’ the word `such’ be inserted. 5. That for Explanation III to article 307, the following be substituted:– Explanation III.– Nothing in this article shall be construed as continuing any temporary law in force beyond the date fixed for its expiration, or the date on which it would have expired if this Constitution had not come into force.”The amendment was adopted.
The question is: “That article 307, as amended, stand part of the Constitution.”The motion was adopted.Article 307, as amended, was added to the Constitution.Article 308
We go to article 308. Dr. Ambedkar.
Sir, I move: “That for clause (3) of article 308 the following clause be substituted:– ‘(3) Nothing in this Constitution shall operate to invalidate the exercise of jurisdiction by His Majesty in Council to dispose of appeals and petitions for, or in respect of, any judgment, decree or order of any court within the territory of India in so afar 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 us 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.'”
“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 judgment, decree or order of any court within that State shall cease, 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 jurisdictionauthorised 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 conferred. 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 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 or 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 India States there are Privy Councils which supervise the judgments 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 Courts 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 a definition of Privy Council in our article 306 so as to cover the different nomenclature and variations of these institutions.
Amendments Nos. 138 and 139- Mr. Naziruddin Ahmad.
Mr. President, Sir, I need not move No. 138 because that means opposition to this clause. With regard to No. 139, it is an amendment of a verbal nature and I shall leave it to the discretion of the Drafting committee.
With regard to clause (3), empowering His Majesty in Council to dispose of appeals and petitions, even after the 26th January, 1950–the date when the Constitution comes into operation–it seem to be some to be somewhat startling. Only the other day we passed an Act in this House transferring all appeals and petitions pending before the Judicial Committee to the Federal Court. There were, however, however certain exceptions. One exception was petition for leave. It was provided that if there was any petition for leave, fixed for hearing during the Michaelmas term which begins form today, in the Privy Council, they may merely grant or refuse leave. So the effect of this was that if the Privy Council did not give any leave, the matter was absolutely concluded and final. But if any leave was given, the Privy Council would not be entitled to hear it further. The further hearing will be held in the Federal Court and later on in the Supreme Court when the Federal Court is converted into the Supreme Court. Then there are certain other matters which may also be taken into consideration by the Privy Council, namely, appeals which have been heard, in which the Judicial Committee has pronounced its judgment, but its final] acceptance by His Majesty has not yet been communicated. In those cases His Majesty would be entitled to accept the recommendations of the Privy Council even after that date.
At the time when the Act was being considered in the House, we were given to understand that there was no appeal which would be pending before the Privy Council from India. The only pending matters would be applications for leave, and if the applications are granted, then of course, the matter will be further heard in India. The only petition pending relates to Godse appeals. No other petition is pending. With regard to appeals, there would be nothing pending, except the acceptance of the recommendations of the Judicial Committee by His Majesty himself. But this acceptance by His Majesty is automatic and is never delayed. So there is no need, for clause (C) which is expressed in a needlessly wide form. This House has repeatedly asserted that all appeals must henceforth be heard by the Federal Court, but still this old idea seems to linger on in one shape or other, and clause (3) perpetuates that old idea which has been definitely given up by the House. During the arguments Dr. Ambedkar has referred to Section 4 of the recently passed Act. Section 4 of the recently passed Act runs thus: “Nothing contained in Section 2 shall affect the jurisdiction of His Majesty in Council to dispose of– (a) any Indian appeal or petition on which the Judicial Committee of the Privy Council has before the appointed date delivered judgement, or as the case may be, reported to His Majesty, but which has not been determined by an order in Council of His Majesty; The appointed day is today, i.e., the 10th October. If any Judgement has been passed before today, i.e., up to yesterday, but His Majesty has not signified his assent thereto the assent may be given. Then we come to clause (b): “any Indian appeal or petition on which the Judicial Committee has, after hearing he parties, reserved judgment or order,”
and (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 therefrom by or under the authority of the Judicial Committee.”
So, if any appeal is pending for the present term in the Privy Council today this will be disposed of unless it is directed to be heard in India, but by virtue of the Act we have passed, the Privy Council will be bound to direct the transfer of these appeals to India. But it is well known that no Indian matters, other than the Godse matter, has been entered in the list. Then we come to clause (d). “any Indian petition which has been lodged before the appointed day in the Registry of the Privy Council.”
That is, petition for leave and other things, will also be merely heard, and special leave may be given or refused. If it is refused, there is an end of the matter. If it is allowed, then also there is an end of the matter, because the matter returns to India.
I submit, therefore, that clause (3) is absolutely too wide and embraces imaginary cases which do not exist. We should have a precise knowledge of what cases are pending before their Lordships of the Privy Council, flow many there are, how many would be automatically transferred after the appointed day, the 10 October, that is, today and if any case would remain. We should have a clear picture of what matters there may possibly be which may be pending before them and which may be disposed of under clause (3) even after the 26th January, 1950, the provisional date on which this Constitution will come into operation. We should really have a clear picture of the existing state of affairs instead of enacting a broad section dealing with all sorts of imaginary and hypothetical cases. I think after the final Independence of India on the 26th January, for these powers to linger in the Judicial Committee would be somewhat extraordinary in view of the Constitution that we have so far adopted and in view of our shedding our Dominion status, and acquiring an Independent status. In these circumstances, Sir, I submit that clause (3) should be deleted and not accepted. The matter should be clearly analysed and the House should be informed as to what are the matters which really might fall within the purview of clause (3). I therefore oppose clause (3) until the matter is clarified.
I am not moving my amendment, Sir.
Mr. Shibban Lal Saksena’s amendment is for deleting it. You can speak on it after the other amendments have been moved.
Mr. Mahavir Tyagi.
I am not moving my amendment, Sir.
Mr. Shibban Lal Saksena, you can speak on it.
Sir, I beg to move:
“That in amendments, Nos. 6 and 7 of List I (Second Week), the proposed clause (3) be deleted, and the proposed new clause 3(a) be re-numbered as (3).“
It is not necessary to move it. You can speak on it.
This amendment is for the deletion of a clause only, not of an article. Sir, my objection to this clause (3) is that after the 26th January, I do not want that His Majesty in Council should have anything to do with this country. We shall become a completely free Republic on that day and the provision of this article which contemplates that His Majesty in Council shall beauthorised to hear appeals pending on that day is, I think, derogatory to our independence. Objection may be raised that some appeals may be pending and that the litigants concerned will be put to great difficulty, but I want to draw the attention of this House to the footnote on page 153 of the Draft Constitution. In fact, the Drafting Committee themselves had originally under clause (3) of article 308 contemplated that the jurisdiction of the Privy Council shall cease on that date. “On and from the date 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.”
So in the original article they had themselves contemplated that the jurisdiction of the Privy Council shall cease on the date on which this Constitution will come into force. The footnote says– “The Committee thinks that all appeals and other proceedings pending before His Majesty in Council shall be finally disposed of by the time the Constitution comes into operation. If, however, some appeals or other proceedings remain pending before His Majesty in Council at the time of the commencement of the Constitution and any difficulty is experienced with regard to their transfer to, or disposal by the Supreme Court, the President may pass necessary orders under the ‘removal of difficulties’ (article 313).”
This is what the Drafting Committee have said in the footnote to the original article 308. I do not see that in view of the fact that we have passed article 313, there is any need for this new clause (3) which contemplates that the jurisdiction of the Privy Council may continue even after the 26th January when we will be a free and independent country. I think that we should not disfigure the Constitution by providing for the intervention of the Privy Council even after we have attained full independence. I think there has been some mistake here, because, article 313 is quite sufficient and there is no need for this clause (3) in article 308. Our Constitution should not be disfigured by this clause.
Dr. Ambedkar, would you like to say anything ?
Sir, I do not think that anything that has been urged in favour of the amendments that have been moved raises any matter of substance. It is a more a matter of sentiment, and I think from the point of view of convenience it is much better that we should have this clause and not feel in any way humiliated in doing it, because even if the Privy Council were to continue to exercise jurisdiction, within the limited terms mentioned in clause (3), it should not be forgotten, and I think my friends who have moved the amendments do seem to have forgotten the fact, that that jurisdiction is not the inherent jurisdiction of the Privy Council but the jurisdiction which this Assembly has conferred upon them. The Privy Council as a matter of fact would be acting as the agent of this Assembly to do a certain amount of necessary and important work. I, therefore, do not think there is any cause for feeling any humiliation or that we are really bartering away our independence.
With regard to the point raised by my Friend Prof. Saksena in which he referred to the footnote to article 308. I am quite free to confess that on a better consideration, it was found by the Drafting Committee that the removal of difficulties clause may not be properly used for this purpose. In order to remove all doubt, we thought it was better to have a separate clause like this to confer jurisdiction by the Constitution itself.
Then I will put the amendments to vote. There is only one moved by Prof. Shibban Lal Saksena No. 177. The question is : “That in amendment Nos. 6 and 7 of List I (Second Week), the proposed clause (3) deleted and the proposed new clause (3a) be renumbered as (3).”The amendment was negatived.
: Then I put the amendment moved by Dr. Ambedkar. The question is: “That for clause (3) of article 308, the following clause be substituted:- ‘(3) Nothing in this Constitution shall operate to invalidate the exercise of jurisdiction by His Majesty in Council to dispose of appeals and petitions from, or in respect of; any judgment, 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 oil 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.'”The amendment was adopted.
: Then I put amendment No. 7. The question is: “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 judgment, decree or order of any court within that State shall cease, 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.”The amendment was adopted.
: The question is: “That article 308, as amended stand part of the Constitution.’The motion was adopted.Article 308, as amended, was added to the Constitution.Article 310
: Sir, I move:– “That for article 310, the following be substituted:– 310.(1) Notwithstanding anything contained in clause (2) of article 193 of this Constitution, the judges of a High Court in any Province holding office immediately before the date of commencement of this Constitution shall, unless they have elected otherwise, become on that date the judges of the High Court in the corresponding State, and shall thereupon be entitled to such salaries and allowances and to such rights in respect of leave and pensions as are provided for under article 197 of this Constitution in respect of the judges of such High Court. (2) The judges of a High Court in any Indian State corresponding to any State for the time being specified in Part III of the First Schedule holding office immediately before the date of commencement of this Constitution shall. unless they have elected otherwise, become on that date the judges of the High Court in the State so specified and shall, notwithstanding anything contained in clauses (1) and (2) of article 193 of this Constitution but subject to the proviso to clause (1) of that article, continue to hold office until the expiration of such period as the President may by order determine. (3) In this article the expression ‘judge’ does not include an acting judge or an additional judge.”
this article is merely what we used to call a “carry over article” merely carrying over the incumbents to the new offices in the new High Courts if they choose to elect to be appointed.
Amendment No. 88.
I am not moving 88. I shall move 141.
Mr. President “That in amendment No. 87 above, in clause (1) of the proposed article 310, after the word and figure ‘article 197’ the words ‘and Second Schedule’ be inserted.”
My amendment is a merely verbal one. My object in moving it is this. Reference has been made to article 197 in connection with the salary of the High Court Judges. The salary of the High Court Judges features in Second Schedule and I thought it advisable to mention it along with the article 197. Schedule is an important part of the Constitution, particularly in reference to this article wherein the salaries, allowances and other subjects relating to pensions will be mentioned. Therefore, in order to make it quite clear I have moved that the words “and Second Schedule” may be added to the words “article 197”.–
Sir, I move: “That in amendment No. 8 of List I (Second Week), in clause (1) of the proposed article, 310, for the words ‘as are provided for under article 197 of this Constitution in respect of the judges of such High Court’ the words as they were entitled to immediately before the said commencement’ be substituted.”
Clause (1) of this article provides that the Judges of a High Court would on the date on which the Constitution comes into force (provisionally on the 26th of January 1950), shall continue to be Judges of the same High Court.
May I draw attention to the fact that this Amendment anticipates Schedule II ? This matter is to be dealt with under Schedule II and the proper time would be when Schedule II is before the House.
: I have carefully considered that also, but the matter would not be fully covered. There the scale of salary of the Judges after the commencement of the Constitution will be provided, but here the matter is entirely different. My amendment says that the pay which they were receiving immediately before the commencement of this Constitution, i.e. on the 25th of January 1950,–they will receive the same pay and enjoy the same conditions from 26th January also. The Schedule deals with the new scale of pay. That is an entirely different matter. :–
I submit there is no need for clause (1). The only need for this clause so far as I can see, is to justify the reduction of the pay of the existing Judges in an indirect manner. In fact, on the 26th of January, it is clear that even apart from this clause (1) of article 310, those Judges will continue to be the Judges of the High Court because the same High Court continues. We have not provided for similar continuance in the case of other public servants. Every one who is a public servant on the 25th of January will certainly continue to be the same servant on the 26th of January unless he is meanwhile dismissed or has resigned or is discharged or is dead. The continuance of his service as a Judge of a High Court from the 25th to the 26th January is automatic and no authority was needed as it is attempted to be given under clause (1). I submit that clause (1) from that point of view is absolutely unnecessary. But it introduces another idea, namely, it is an indirect attempt to reduce the pay of the existing Judges. In fact, so far as the existing Judges are concerned, they have a fixed scale of pay under existing conditions. Even if there was not this clause, they would have been receiving the same pay on and from the 26th January. The real purpose of the clause is to reduce the pay of the existing Judges. I submit that their pay should not be reduced, because they are receiving a particular pay on a contract on which they were appointed. Judges of the High Court are appointed from very good lawyers who must be supposed to have been earning a very decent incomes. There were only two conditions attached to the appointment of the High Court Judges, namely, they were to continue in the usual course till they attained the age of sixty, and secondly, they would not be allowed thereafter to practise in the High Court in which they were Judges and courts subordinate thereto. But today we are enacting conditions that their pay would be reduced and, further, on the attainment of the sixtieth year every High Court Judge would be precluded from practising not only in the High Court to which he is attached, or the subordinate Courts thereto, but in all other Courts, even outside the purview of that High Court, namely in the High Courts of other States and also in the Supreme Court. This would be breach of contract with them in two respects.–
May I make a suggestion ? Will it not be proper to consider this matter when the Second Schedule is being considered ? Amendment No. 11 to the Second Schedule (which stands in the name of Dr. Ambedkar) covers the case of salaries of the Judges who were appointed on or before the 31st day of October 1948. Instead of dealing with this matter piecemeal, will it not be more convenient to deal with this, amendment when the Second Schedule is taken up? As will be seen from amendment No. 11, it does not deal merely with the salaries of Judges who will be appointed under the New Constitution but also has reference to the salary of judges who had been appointed before that date and will be working in the High Courts on the date of the commencement of this Constitution. If this amendment of Mr. Naziruddin Ahmad is lost, this might affect the amendments to the Schedule.
If it is proposed to consider this amendment along with amendments to Schedule IV I have no objection. But this is the proper time to raise the point. As to the contention that if this amendment is lost, the other amendment will also be considered as lost. I do not agree. This is an amendment to save the pay of existing Judges, irrespective of the fact that they were appointed before a certain date. But the loss of this amendment will not mean the loss of the other amendment. As to the suggestion of Dr. Bakhshi Tek Chand that I should move this as an amendment to amendment No. 11, I await your instructions in this matter.
I do not think that the passing of this clause as it is win in any way affect the Schedule. It will not come in the way of the Schedule. In any case, I shall not rule that out on that ground.
That amendment is that the pay of the Judges who were appointed before a certain date would be saved. But my point was that the pay of Judges as they were on the 25th of January 1950 should be saved. There is a slight difference between this and that amendment of Dr. Ambedkar. I submit that the amendment of Dr. Ambedkar has been sent in after my amendment was circulated. It is really an attempt to remedy the situation to a certain extent, but it does not go far enough, to the extent I wish it to go. Sir, I shall certainly abide by your ruling.
If you like you may table another amendment to cover the point which you have now raised. Does anyone wish to say anything about this ?
There is no question of principle here.
There is one amendment moved by Mr. Sidhva; that also is of a verbal character. Shall I put it to vote ?
I leave it to the Drafting Committee.
The question is: “That for article 310. the following be substituted;-Provisions as to Judges of High Courts.’310. (1) Notwithstanding anything contained in clause (2) of article 193 of this Constitution, the judgesof a High Court in any Province holding office immediately before the date of commencement of this Constitution shall, unless they have elected otherwise, become ,on that date the judges of the High Court in the corresponding State, and shall thereupon be entitled to such salaries and allowances and to Such rights in respect of leave and pensions as are provided for under article 197 of this Constitution in respect of the judges of such High Court. (2) The judges of a High Court in any Indian State corresponding to any State for the time being specified in Part III of the First Schedule holding office immediately before the date of commencement of this Constitution shall, ‘unless they have elected otherwise, become on that date the judges of the High Court in the State so specified and shall notwithstanding anything contained in clauses (1) and (2) of article 193 of this Constitution but subject to the .proviso to clause (1) of that article, continue to hold office until the expiration of such period as the President may by order determine. (3) In this article the expression ‘judge’ does not include an acting judge or an additional Judge.”‘The motion was adopted.Article 310 was added to the Constitution.Article 311
Sir, I move: “That for article 31 1, the following article be substituted:-Provisions as to provisional Parliament of the Union and the Speaker and Deputy Speaker thereof.311. (1) Until both Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution shall exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament. Explanation.–For the purposes of this clause, the Constituent Assembly of the Dominion India includes-(i) the members chosen to represent any State or other territory for which representation is provided under clause (2) of this article, and(ii) the members chosen to fill casual vacancies in the said Assembly. (2)The President may by rules provide for–(a) the representation in the provisional Parliament functioning under clause (1) of this article of any State or other territory which was not represented in the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution, (b) the manner in which the representatives of such States or other territories in the provisional Parliament shall be chosen, and (c) the qualifications to be possessed by such representatives. (3) If a member of the Constituent Assembly of the Dominion of India was on the sixth day of October, 1949, also a member of a House of the Legislature of a Governor’s Province or an Indian State, then, as from the date of commencement of this Constitution that person’s seat in the said Assembly shall, unless he has ceased to be a member thereof earlier, become vacant, and every such vacancy shall be deemed to be a casual vacancy. (4) Any person holding office immediately before the commencement of this Constitution as Speaker or Deputy Speaker of the Constituent Assembly when functioning as the Dominion Legislature under the Government of India Act, 1935, shall continue to be the Speaker or, as the case may be, the Deputy Speaker of the provisional Parliament functioning under clause (1) of this article.
Sir, I move: “That in amendment No. 9 of List I (Second Week), for clause (3) of the proposed article 31 1, the following be substituted:– (3) If a member of the Constituent Assembly of the Dominion of India was on the sixth day of October, 1949, or thereafter becomes at any time before the commencement of this Constitution a member of a House of the Legislature of a Governor’s Province or an Indian State corresponding to any State for the time being specified in Part III of the First Schedule or a minister for any such State, then as from the date of commencement of this Constitution the scat of such member in the Constituent Assembly shall, unless he has ceased to be a member of that Assembly earlier, become vacant and every such vacancy shall be deemed to be a casual vacancy’.”
Sir, I move: “That in amendment No. 9 of List I (Second Week), after clause (3) of the proposed article 31 1, the following new clause be inserted:- ‘(3a) Not withstanding that any such vacancy in the Constituent Assembly of the Dominion of India as is mentioned in clause (3) of this article has not occurred under that clause, steps may be taken before the commencement of this Constitution for the filling of such vacancy, but any person chosen before such commencement to fill the vacancy shall not be entitled to take his seat in the said Assembly until after the vacancy has so occurred’.”
The object of this clause is that when constituting a provisional Parliament, It is proposed to dispense with what is called double membership.
The other provisions arc merely ancillary.
Sir, I move: “That in amendment No. 9 of List I (Second Week), in clause (1) of the proposed article 311, after the word ‘Until’ the words ‘such time’ be inserted. ‘
Sir, I move: “That in amendment No. 9 of List I (Second Week). in clause (1) of the proposed article 311, the words ‘the body functioning as’ be deleted.”
Sir, I move : “That in amendment No. 9 of List I (Second Week). in the proposed article 311, for the words ‘Constituent Assembly of the Dominion of India’ wherever they occur, the words Constituent Assembly of India’ be substituted,”
Sir, I move: “That in amendment No. 9 of List I (Second Week), in clause (1) of the proposed article 311, for the words ‘immediately before the commencement of this Constitution shall’ the words ‘shall itself’ be substituted.”
I shall not move amendment No. 147.
Sir, I move: “That in amendment No. 9 of List I (Second Week), in clause (2) of the proposed article 311, after the word ‘rules’ the words which shall as far as practicable, conform to those ,adopted by the Constituent Assembly’ be inserted.”
Sir, I move: “That in amendment No. 9 of List I (Second Week), in clause (3) of the proposed article 311, after the words ‘an Indian State’ the words ‘or Union of States’ be inserted.”
Sir, I move: “That in amendment No. 9 of List I (Second Week), in clause (4) of the proposed article 311, the words ‘or Deputy Speaker’ be deleted.”
Sir, I move: “That in amendment No. 9 of List I (Second Week), in clause (4) of the proposed article 311, the words ‘or, as the case may be the Deputy Speaker’ be deleted.”
If the amendments to clause (1), which appear in List 3, Second Week, are acceptable to the House, then this clause would read as follows: “Until such time as both Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions of this Constitution’, the Constituent Assembly of India shall itself exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament.”
The first amendment is a purely verbal one, in that it introduces a change in the phraseology so as to be more in conformity with constitutional language. I feel it is better to say “until such time as both Houses are summoned” instead of saying “until”. However, I leave that to the collective wisdom of the Drafting Committee to deal with at the proper stage.
With regard to amendment No. 143, this is partly substantial and partly verbal. I fail to see why this Assembly should be described in this cumbrous fashion–“the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution…..” The draft of this article as it originally stood was much simpler. In regard to the words “the Constituent Assembly of the Dominion of India”, I feel that even here the word “Dominion” could be usefully and rightly omitted. If myhonourable Colleagues in this House would turn for a moment to the cover of this book–The Draft Constitution–they will see that the Assembly is described as the “Constituent Assembly of India” and not of the “Dominion of India”. I do not know why some honourableMembers are fond of using this word ‘Dominion’ in season and out of season. Where it is of course necessary in legislation it may be used. I have no quarrel with that. Where it can be omitted without detriment to the meaning of a clause or article, I fail to see why we should go on harping on this word Dominion, Dominion, Dominion. The Constituent Assembly, really speaking is that of a free country. Unfortunately or accidentally, circumstances have so conspired in our country that we had to convene a Constituent Assembly before India became completely free.Historically speaking it is only when a country his shaken itself free of foreign yoke that a Constituent Assembly is convened. We have ourselves in the rules made in this House–rules of procedure and standing orders-referred to the Constituent Assembly of India, and the very first rule says: “In these rules, unless the context otherwise requires, the Assembly means the Constituent Assembly of India”. So there is no justification or necessity for using the word “dominion” in this context and it may be very reasonably and wisely dropped entirely without detriment to the meaning that the clause is intended to convey.
Then, Sir, the next objection is to the cumbrous verbiage that appears in this clause : “body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution”. I do not know why this has been introduced, changing the draft as it stood originally. If my honourable Colleagues turn to article 311, clause (1) as it stood originally, they will see that its description is “the Constituent Assembly of the Dominion of India”. I have already stated that the word ‘Dominion’ should be dropped. Now, I say that this could be more simply described as the Constituent Assembly of India. If the Drafting Committee feels that just because a little more than a hundred seats are going to be declared vacant, this change in the description of the body is necessary, I feel that they are labouring under a misapprehension. So long as the body is not dissolved, it continues to be the Constituent Assembly of India. Even if a very large majority of the members resign from the Assembly and whether their places are filled up or not, it is the same old Assembly which has always been called the Constituent Assembly of India. So long as it is not dissolved, it continues to be called in constitutional parlance the Constituent Assembly of India. Therefore, if there is any misapprehension that on the score of the resignation of more than one hundred members, this body must be described in this fashion and not simply as the Constituent Assembly of India, that misapprehension is not at all justified, and we will not be describing the body wrongly if we refer to it merely as the Constituent Assembly of India. Whether a hundred members resign or even more do so, until the commencement of the Constitution, the body continues to be called the Constituent Assembly of India. Therefore by means of amendments 143, 144, and 145 which go together, I seek to simplify the wording and the expression employed in this article in clause (1), so that we will provide for the Constituent Assembly of India itself exercising all the powers and performing all the duties conferred by the provisions of this Constitution on Parliament. Once the Constitution comes into force, then, of course, under tile Constitution, this Assembly will be called the provisional Parliament. Till then, it is not necessary to say “the body functioning as such and such”. It is enough for our purposes to say “the Constituent Assembly of India”. I hope those members of the Drafting Committee who are fond of using the word “dominion”. and of using more words than are necessary for our purpose, will see the force of these amendments of mine and simplify the wording of this clause.
Now, I come to clause (2). I do not propose to move amendment No. 147. 1 shall move only amendment 148: ‘That in amendment No. 9 of List I (Second Week), in clause (2) of the proposed article 311, after the word ‘rules’ the words ‘which shall, as far as practicable, conform to those adopted by the Constituent Assembly’ be inserted.”
Clause (2) refers to certain rules which the President may make for representation in this provisional Parliament, that is to say, when this Assembly is converted into or reconstituted into our provisional Parliament. This clause provides for the representation in the provisional Parliament, of those States or other territories of India so far not represented. The House is aware that the representative from Bhopal has not yet taken his seat in this Assembly though the firman has gone forth that he should come here as soon as possible. We hope that he or she will be with us during the Third Reading of the Constitution. Hyderabad is still not represented. We do not know whether the steps that have far been taken will fructify so as to enable us to welcome our friends from Hyderabad in this Assembly during the Third Reading. Of course, when this Assembly resolves itself or converts itself into the provisional Parliament, I am sure, the President by Rules will provide for the representation of Hyderabad also in this Assembly. So also, there is the Union of States called Vindhya Pradesh; still unrepresented in this Assembly. During the last session, you, Sir, were good enough to tell us that the Rajpramukhof Vindhya Pradesh and his Chief Minister or Regional Commissioner have been asked by the Secretariat of the Constituent Assembly to take necessary steps for the proper representation of Vindhya Pradesh in this Assembly. I do not know what progress that course of action has made so far as Vindhya Pradesh is concerned. We hope that they will be with us during the next session, the final session of this Assembly. At any rate, I am sure that they will take their places here when the provisional Parliament meets next year. So far, Sir, as regards the States not represented.
Now, this clause (2) provides for rule-making by the President. The House is very well aware that this Assembly has adopted certain rules with regard to the representation of States and other Units in this Assembly. refer to rule 51 of the Rules of this Assembly which we have adopted, I believe, some time last year. Under Rule 51, we have also adopted a Schedule. That Schedule provides or lays down certain rules in regard to representation of States in this Assembly. My amendment No. 148 refers to the rules made by us and incorporated in this little booklet which has been supplied to all Members by the Secretariat,–the Rules of Procedure and Standing Orders. There are certain rules which have been made, as I said, for the representation of States in this Assembly. My amendment seeks to lay down that as far as possible, as far as practicable, the President’s rules shall conform to the rules that this Assembly has already adopted during the last year. It may be, certain circumstances may arise in certain States which may stand in the way of the President conforming to the rules already adopted. That is why I have introduced the phrase ‘as far as practicable!’ I hope the Dr. Ambedkar the Drafting Committee and my honourable Colleagues in this House will see their way to accept this amendment because, after all, it pertains to a matter which has already been decided by the House, and I see no reason why, where it is practicable, the President should depart from the Rules which this Assembly has already adopted.
I now come to No. 155 which is more or less a verbal amendment. I think the Drafting Committee has slightly overlooked this part of the subject. In clause (3) reference is made to a Governor’s province or in Indian State. The House is aware that we have not merely Indian States but also what are called Union of States. I seek by this amendment of mine to introduce this phrase also so that it would read as follows:- “Legislature of a Governor’s province or Indian State or Union of States.”
Madhyabharat and Rajasthan are Unions of States, not merely Indian States. I feel that to be quite correct we must have in addition to ‘Indian State’ this phrase also ‘the Union of States’ as well.
Then as regards the draft which reached us this morning of this clause (3) I had no time to send in amendments, but I would like to draw attention of the Drafting Committee and the House to the point I raised the day before yesterday in connection with the description of Ministers. In an article which we adopted two days ago Ministers were referred to as Ministers for the Dominion of India. I thought it was an inaccurate and incorrect expression and following that very argument I feel it would be more correct to describe the Minister here as ‘Minister of any Indian State’ not ‘for Indian State.’
Lastly, in the same clause I would suggest a very minor verbal amendment in the last but one line. The draft reads thus– “Unless he has ceased to be a member of that Assembly.”
I think it would be sufficient to say ‘the Assembly’ instead of ‘that Assembly’. That is purely verbal, and I leave it to the good sense of the Drafting Committee.
Then I come to the last amendments 161 and 162. If these were to be accepted by the House, clause (4) will read as follows:– “Any person holding office immediately before the commencement of this Constitution as Speaker of the Constituent Assembly when functioning as Dominion Legislature under the Government of India Act, 1935, shall continue to be the Speaker of the Provisional Parliament functioning under clause(1) of this article.”
I seek to delete the reference to Deputy Speaker. I hope, Sir, that it will not be taken in a personal light or as a personal reflection upon any member of this House. The other day when Dr. Ambedkar introduced new articles with regard to the State Legislatures, one of the clauses of those articles referred to only the Speaker of the Legislature. In that connection I had occasion to point out the omission of the Deputy Speaker. That article referred to merely the Speaker of the Assembly and the Chairman of the Upper House. I then pointed out the absence of any reference to Deputy Speaker of the Lower House and the Deputy Chairman of the Upper House though they are definitely mentioned in the Constitution in the Chapter relating to the State Legislature. Apart from that, even today in several provinces we have got a Deputy Speaker. That is why I sought to insert a reference to Deputy Speaker as well, but Dr. Ambedkar, perched on his high pedestal or in his ivory tower or perhaps because he had a closed mind on the subject–I do not know why—Dr. Ambedkar did not care even to reply to the point raised. But today I find that he has accepted the point raised by me and on the principle of better late than never, I would have gladly agreed to that but the difficulty today is that you have already passed an article two days ago where so far as the interim State Legislatures are concerned only the Speaker is mentioned but not the Deputy Speaker, and to-day an article regarding Parliament comes up and we have reference there in to both the Speaker and Deputy Speaker. If Dr. Ambedkar and the Drafting Committee undertake to revise the article regarding the transitional State Legislatures so as to mention the Deputy Speaker as well and for the continuance of the Deputy Speaker and the Deputy Chairman for the transitional period, then of course consistency demands that this article also should be passed as it is. But, Dr. Ambedkar is not always very particular about consistency, and he may say that so far as Parliament is concerned he would like to have the Deputy Speaker mentioned because perhaps lie is one of us. But so far as the State Legislature is concerned, ‘out of sight out of mind’ on that basis he may not be very particular about mentioning the Deputy Speaker of the State Legislature. Any how let us, as far as possible be consistent in whatever we do. If we have Deputy Speaker mentioned here let us mention him in the State Legislature as well and if we do not do so then delete him from this article also. Let us for God’s sake, or at least for this House’s sake-let us be consistent in these little things. We may not be, so in the bigger things of life. There is no difficulty in being consistent so far as little things are concerned, and therefore I hope that these amendments of mine will commend themselves to the House including Dr. Ambedkar.
The Assembly then adjourned till Ten of the clock on Tuesday, the 11th October 1949.