17 Sep 1949

The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Nine of the Clock, Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair.

ABOLITION OF PRIVY COUNCIL JURISDICTION BILL

The first item is the Bill. Dr. Ambedkar.

Mr. President, Sir, I move :

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

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

“On and from the 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 to Council on the said date shall be transferred to and disposed of, by the Supreme Court.'”

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

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

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

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

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

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

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

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

Sir, I move.

The motion is:

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

Does any Member wish to say anything about it?

Sir, I Have pleasure In supporting the motion moved by Dr. Ambedkar. It is but meet that the jurisdiction of the Privy Council which is the symbol of our judicial slavery should end as soon as possible. I do not understand if there is any connection between the declaration of our country as a Republic and the Privy Council. When the Independence Act was passed, that was indication enough for us that we should abolish the jurisdiction of the Privy Council. I understand that in Canada also, while the connection is as good as before, attempts are being made to sever that connection. I read in today’s “Hindustan Times” as follows :”In the speech from the throne at the opening of Canada’s 21st Parliament, yesterday the Governor- General Viscount Alexander announced that two Bills would be introduced aimed at cutting Dominion ties with West minster.One would be a Bill to amend the Supreme Court Act so that the Supreme Court Act so that Supreme Court of Canada would become the final court of appeal for Canada.”

Therefore, I do not understand why this very thing which we are doing today could not have been done much earlier. When in 1947 a Bill was placed before the legislative part of the Constituent Assembly for the enlargement of the powers of the Federal Court, Ajmer-Merwara was not included in the list of those High Courts from which appeals to the Privy Council were to be, substituted in future to the Federal Court, as Ajmer-Merwara was a Judicial Commissioner’s court. But at that time many of us indicated that steps should be taken at once to see that this jurisdiction of the Privy Council was abolished.

Similarly in regard to criminal cases we have been trying for the last two years to see that the jurisdiction of the Privy Council is taken away. In the Legislative Assembly we brought in a Bill-Dr. Hari Singh Gour gave the notice and I introduced the Bill-and subsequently it was referred to Select Committee at my instance. But before the Select Committee it was found that that part of the Constituent Assembly had no power to enact a measure like that. therefore, before the last session of the Constituent Assembly was over, Mr. Naziruddin Ahmad and I sent in a Bill, for abolition of powers of the Privy Council, to this House before August. We wanted that this jurisdiction should be abolished all at once. But unfortunately no notice was taken of that Bill. I am very glad that after all, now, on the last day of the session, this Bill has been brought.

In welcoming this Bill I would like to say that this is not the only point, namely, that our judicial slavery ends, about which we were so impatient. But I congratulate the Drafting Committee for their draft which is certainly much better than the draft which I placed for their consideration. This might also be one of the reasons why they have taken so much time in considering the question. The draft, as it stands, consists of two parts; one relates to the abolition of the jurisdiction powers of the Privy Council and the other relates to the conferment of the corresponding jurisdiction on the Federal Court. I am very glad that clause 5 finds a place as the subject matter of it did not as a matter of fact find a place in article 308. Article 308 only operates to abolish the jurisdiction of the Privy Council. But it failed to confer the jurisdiction of the Privy Council on the, Federal Court. Now, clause 5 seeks to place that jurisdiction which was enjoyed by the Privy Council on the Federal Court. The jurisdiction enjoyed by the Privy Council in regard to criminal matters was a very special kind of jurisdiction which could only be enjoyed by the Privy Council of a State in which there was monarchy. Now, the words in clause 5 are “the same jurisdiction to entertain and dispose of Indian appeals and petitions as His Majesty in Council has, whether by virtue of His Majesty’s prerogative or otherwise”. So under clause 5 these powers have now been transferred to the Federal Court.

When I come to my amendment I will have occasion to say how this is different from the ordinary jurisdiction in regard to appeals etc. At this stage I need not dilate upon that. The only point that I want to bring to your notice in this connection is that whereas in clause 9 we have got some statement of the powers of the Federal Court on the civil side, there is no corresponding statement in regard to the criminal powers of the Federal Court after they have been conferred on it under clause 5. And I have tried to fall up that lacuna.

Similarly, in regard to clause 4 relating to the exceptions which have been made so far as the Privy Council jurisdiction is to continue for certain appeals, my humble submission is that as a matter of fact we should not allow any jurisdiction to continue in the Privy Council in regard to cases in which the Privy Council has so far done nothing. My opinion is that cases in which the Privy Council has done nothing should be transferred at once to the Federal Court. After all a petition for appeal consists of two main parts. Firstly the petition is lodged mechanically with the Registrar and the Registrar has done nothing to it except the formal record of the lodgment of the appeal. Then at the first hearing the question is gone into and sanction is accorded. It is but meet that in regard to these cases in which the appeals have only been lodged, the entire proceedings should take place in India because nothing has been done in respect of them in the Privy Council so far.

In regard to cases where something has been done, where they have been finally put before the Privy Council, where-I can understand-people have spent lakhs of rupees on counsels etc., those cases-twenty of them, as has been indicated by Dr. Ambedkar-may be heard by the Privy Council. But there is absolutely no reason why the cases in which only the petitions have been lodged before the Privy Council should be allowed to be gone into by the Privy Council and the question of sanction or ban decided. I for one do think that so far as the legal aspect of the matter is concerned we should see that the entire proceedings in those cases take place in India. Clause 5 (2) says that even if the sanction is accorded, further proceedings are to take place here. But I understand that the more legal and more just thing is that the entire proceedings should be had in India.

In regard to pending cases, so far as any cases remain which are not disposed of by the Privy Council and which are not taken cognizance of, in the sense that they are not taken and finished in this session in 1949, I hope all these unfinished cases will come here, because there is no object in keeping any connection with the Privy Council any further. I have put in an amendment, but at this stage I do not want to take up the time of the House. Sir, I support the motion before the House.

Mr. President, Sir, I welcome the motion for consideration of the Bill. The matter has already been unduly delayed, but after all I am happy that it has come at last.

I have two points to submit at this stage. One is the question as to what would happen to those appeals which were appeals against a decision of the Federal Court. This Bill absolutely prohibits the Privy Council from deciding them and they must lapse. I submit this will cause much hardship. I submit that appeals which have been admitted by the Privy Council, on the ground of leave having been given by the Federal Court or special leave given by the Privy Council itself, should not be killed in this fashion because when the appeals were lodged and were admitted the appellants acquired something like a vested right in the sense that they had a right to be heard and their contentions decided in a formal manner. This right is being taken away. Many must have spent a lot over them. This will create real hardship.

The other point to which at this stage I wish to draw the attention of Dr. Ambedkar is clause 10. With regard to clause 10 the procedure laid down in the Civil Procedure Code is retained. Those provisions are sections 109, 110, 111 of the Code of Civil Procedure and order XLB of the same Code. So far as these sections are concerned, they will now be, by virtue of this Bill, entirely obsolete. They deal with certain preliminaries relating to appears to the Privy Council from the judgment of the High Court. Those provisions are entirely covered by an earlier enactment of the Central Legislature passed in 1941 that is, Act XXI of 1941, and also by clause 9, sub-clause (2), of the present Bill. I submit that clause 10 of the Bill will result in a clash between the provisions of the Civil Procedure Code and Act XXI of 1941. By the Adaptation Order of 1937, section 111-A and Rule 17 to order XLV of the Civil Procedure Code were added. But by the Act of 1941, section 111-A of the ,Civil Procedure Code and Rule 17 of Order XLV were repealed and by that Act the Federal Court was enabled to make their own rules. By virtue of that power, the Federal Court has already made rules and they would cover procedural matters relating to appeals. In the face of those rules which are self-complete, there would be a clash between those rules and the provisions of the Code of Civil Procedure. I should like to ask the honourable Member to consider the desirability of retaining clause 10. I shall give the details when it comes up, but I merely draw attention to the unnecessary character of this clause.

Sir, generally I support the Bill.

Mr. President, Sir, the Bill as it stands has been very carefully worded and has met all the difficulties that were being felt up till now. The Honourable Pandit Thakur Das Bhargava stated that all those appeals which have not been beard in the Privy Council should be transferred to the Federal Court. But we must look to the procedure of the Privy Council also. In the case of certain appeals which have already been registered, it is but natural that certain work with regard to them must be attended to there. So, although the appeals are not heard by the Privy Council, still it stands to reason that the appeals which have been registered should be left with the Privy Council for decision. But now when the Bill comes into force on the 10th of October 1949, all the appeals will vest with the Federal Court. Also, if there are any appeals to the Privy Council which the High Court has certified, provision has been made there also for appeal to the Federal Court. Under these circumstances, I do not think there is any reason why there should be any changes in the Bill as piloted by Dr. Ambedkar.

My honourable Friend Mr. Naziruddin Ahmad said that the right of the persons who might have appealed against the decision of the Federal Court to the Privy Council had been taken away. But really speaking it is not so. The fact is that if they have already gone in appeal to the Privy Council and if those appeals have been registered, they will be heard by the Privy Council. That being the case, there is no grievance whatsoever. The Bill provides for every contingency and meets the grievances that were left unredressed up till now. So I am in agreement with the Bill and wholeheartedly support it.

Mr. President Sir, I rise to support the proposition that has been moved by Dr. Ambedkar and to oppose the amendment of my honourable Friend, Pandit Thakur Das Bhargava.

  No amendment has not been moved yet.

   Oh, the amendment has not been moved yet.

Today is, if I may say so, a memorable day in the history of this country. It is exactly after 175 years that the judicial connection of this country with England comes to an end. It was, Honourable Members may be aware, in 1774, when, by an Act of Parliament passed in the previous year, a Supreme Court was, established at Fort William in the Province of Bengal. By that Act provision was made for taking appeals from the judgments, decrees and orders of the Supreme Court to His Majesty’s Privy Council in England. In 1800 a Supreme Court was established in Madras and in 1823 another Supreme Court in Bombay, and appeals from these three Courts were regularly taken to England. In 1883 the British Parliament passed the Judicial Committee Act by which the Privy Council appointed a Committee only, to hear and dispose of appeals from India and the colonies, consisting only of persons with judicial or legal experience from amongst its members. From 1833 up to now this jurisdiction has been exercised by that august body.

During this period, if I may say so, the Privy Council has been a great unifying force in the judicial administration of this country, and I would like, with your permission to express our high appreciation of the work which it did. At a time when there were no Indian Judges in the High Courts, and then the number of Indian lawyers was very limited, the Privy Council unravelled the mysteries of Hindu Law, it enunciated ten principles of Mohammadan law, and formulated with clarity the customs which were prevalent in this country. Their Lordships of the Privy Council have from time to time elucidated the various Indian laws with an absolutely detached mind. They have laid down the principles on which the judicial administration of the country was based. No doubt there have been lapses and mistakes, occasionally but, on the whole, the Privy Council has been a great unifying factor and on many occasions has reminded the courts of the country of those fundamental principles of law on which the administration of justice in criminal matters is based. This long connection, in the fullness of time is coming to an end, as it must, now that we have attained freedom. That is the first observation which I have to make.

With regard to the provisions of the Bill, we have, as has been pointed out, about eighty or to be more exact, seventy-nine appeals pending before the Privy Council. Of these, thirty-one appeals in civil matters have been brought as a right and the records relating to those appeals had been received in England before 1st February 1948 when the Federal Court enlargement of jurisdiction came into force. There are thirty-eight civil appeal from the High Court in India in which special leave has already been granted and the appeals admitted for hearing before the Privy Council. With regard to criminal matters there are only ten appeals in which special leave has already been granted. As honourable Members are aware, no appeal in a criminal case lies to the Privy Council as of right. It is only by special leave of their Lordships that criminal matters can be heard there. In ten cases, such leave has already been granted and the cases are ripe for hearing. This is the entire list of pending cases though out of these seventy-nine cases, records of fifty–two cases have already been received in England and petitions of appeal leave been lodged in forty–one.

Another branch of cases which could under the existing law, go to the Privy Council are appeals from the Federal Court in India in matters in which interpretation of the Government of India Act, 1935, or of the Orders in Council made thereunder or of the independence Act, may be involved. No appeal from the Federal Court is, however, pending at present before the Privy Council. Therefore this question does not arise.

Out of these seventy-nine appeals, it is likely that about twenty only will be heard before the twenty-sixth of January next year when, it is expected that the new Constitution will come into force. If even these cases are brought over to India at this stage it will be a very great hardship to the litigants who have spent thousands of rupees in having the records printed and sent up to England, in engaging solicitors and briefing counsels there. Therefore, it is a very salutary provision that as many of them as can be disposed of by the 26th of January, should be allowed to be heard and decided there. Those which are not finished by that time will automatically be transferred to India.

The other matter relates to criminal appeals. These are cases, in which as I have said already special leave has been granted. They are mostly cases in which the appellants are under sentence of death or transportation for life or other long terms of imprisonment. The trials of these persons were held long ago and after a lengthy process, their cases have reached the Privy Council and are ready for being disposed of shortly. It will be very undesirable–if I may say so, cruel–to bring those cases back to India for final disposal here, and delay the final decision for several months more and put the appellants to additional expense.

There is a third class of cases with regard to which my honourable Friend, Pandit Thakur Das Bhargava has made some remarks. These are cases in which petitions for leave to appeal in criminal matters have been lodged before the Privy Council but such petition have not been heard yet. Now, what will be the position with regard to them? Two possible courses are open. The first is that provision be made for the immediate transfer of these petitions to the Federal Court. This alternative appears to be supported by Pandit Thakur Das Bhargava. The other is as the Bill provides, that they may be set down for the preliminary hearing before their Lordships. I submit that this provision in the Bill is an eminently reasonable one. The petitioners in these cases, most whom are under sentence of death which have been confirmed by the High Courts, have applied to the Privy Council for leave to appeal. Their petitions are already lodged there and the preliminary hearing will take-place in a few days. At the hearing their Lordships may refuse leave in some cases. In that event, there will be an end of the matter. The other possibility is that they may grant leave and then the appeals be admitted for final bearing. Provision has been made in the Bill that if leave is so granted the cases will be automatically transferred to India and the final disposal of those appeals will he in India before the Federal Court or the Supreme Court, as the case many be, I think, Sir, that is in eminently reasonable and practical provision and I submit that it ought to be accepted. It is not desirable to prolong the agony of these condemned persons much longer but to have the cases heard and finished as soon as possible.

Another suggestion made by an Honourable Member is that the Federal Court should be invested with jurisdiction to entertain petitions for leave with effect from the 20th September instead of the 10th October as laid down in the Bill. I may submit that this really does not make any material difference. According to the Privy Council rules, the Michaelmas term will begin on the 10th of October, and there is no chance of any petition being heard before, that date a the Privy Council is in vacation in these days. No list of cases which are set down for hearing during the Michaelmas term under the rules of the Privy Council can be issued after 23rd September except by special orders of their Lordships. Therefore this provision in the Bill is also eminently satisfactory and proper. I submit that the Bill as introduced contains very salutary transitory provisions which will make arrangements for the hearing of a small number of cases during the interval with the least expenses to litigants, and for the transference of the bulk of them to the Supreme Court in India. I therefore support the motion.

Is it necessary to prolong the discussion on this motion?

No, Sir.

The question is :

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

The motion was adopted.

CLAUSE 2 

Clause 2. The first amendment (No. 8) is in the name of Mr. Naziruddin Ahmad.

Sir, I beg to move:

“That in sub-clause (1) of clause 2 for the words ‘entertain, and save as hereinafter provided to dispose of, appeals’, the words ‘entertain and, save as hereinafter provided, to dispose of appeals’or, alternatively,   

‘entertain and (save as hereinafter provided) to dispose of appeals’or, alternatively,     

‘entertain, and (save as hereinafter provided) to dispose of appeals’ be substituted.”

Sir, these are of a drafting nature, but they cannot be left to the Drafting Committee which has nothing to do with this Bill. nor can they be referred to the Honourable Member-in-charge under our rules.

I next move :

“That in sub-clause (1) of Clause 2, for the word ‘court’ the word ‘Court’ (with a Capital ‘c’) be substituted.”

I am not moving amendment No. 10, because Pandit Thakur Das Bhargava, who is more concerned with it, will move it.

Sir, I move now my next amendment No. 12-

“That in sub- clause (2) of Clause 2,     

(a) for the words “The appeals and petitions’, the words ‘An appeal or a petition’, and     

(b) for the words ‘Indian appeals’, the words ‘Indian appeal’, and for the words ‘Indian  petitions’ the words ‘Indian petition’ be substituted.”

These are all of a drafting nature.

Sir, my amendment No. 10 is really consequential to amendment No. 14. If amendment No. 14 is not carried, amendment No. 10 will not arise. So, with your permission I will move amendment No. 10 after the House has disposed of Clause 3 to which my amendment No. 14 relates.

I do not know how that can be done.

Sir, it is contained in clause 3 if my friend will read it. ‘Federal court’ is provided for in sub-clause (2) of clause 3. That is why the words “(other than the Federal Court)” are there in clause 2.

In this list it is in clause 2 and my amendment applies to it only.

You can leave it out for the present.

I do not accept the amendment. It is quite unnecessary.

I beg to move:

“That in sub-clause (1) of Clause 2, the words ‘or otherwise’ be deleted.”

Sir, it is very humiliating to me that, after you declare India a Republic on 26th January, 1950 certain powers of the King should be continued. Our legal authorities Dr. Ambedkar and Shri Alladi Krishnaswami Ayyar think that the Privy Council enjoys powers in criminal cases. Sir, we have disestablished the King. Where then is His Majesty’s prerogative? I do not want any loophole should be left whereby the authority of the British nation should be perpetuated over us through the insertion of the words ‘or otherwise’. This is a simple issue, if the Privy Council is not to decide any of our cases, why should we take shelter under the words ‘or otherwise’? My friends the eminent lawyers like Mr. Munshi may say that I do not know law. But I know my political rights. I do not want that I should in any way be subjected to the sovereignty of India’s former masters the British King or the King’s Councillors.

Sir, I do not think this amendment is very necessary, because the jurisdiction of the Privy Council may be derived also from the prerogative conferred by Statute. Therefore the words ‘or otherwise’ are quite necessary. We want to put an end completely to the jurisdiction not merely arising from the prerogative but from other sources also.

I will now put the amendments to vote.

The question is :

“That in sub-clause (1) of Clause 2, for the words ‘entertain, and save as hereinafter provided to dispose of, appeals’ the words ‘entertain and, save as hereinafter provided, to dispose of appeals’or, alternatively,     

‘entertain and (save as hereinafter provided) to dispose of appeals’or, alternatively,     

‘entertain and (save as hereinafter provided) to dispose of appeal’ be substituted.” The amendment was negatived.

The question is :

“That in sub-clause (1) of Clause (2), for the word ‘court’ the word ‘Court’ be, substituted.” The amendment was negatived.

The question is:

‘That in sub-clause (1) of Clause (2), the words ‘or otherwise’ be deleted.”

The amendment was negatived.

The question is

“That in sub-clause 2 of Clause 2

(a)for the words ‘The appeals and petitions’, the words ‘An appeal or a petition’, and      

(b) for the words ‘Indian appeals’ the words ‘Indian appeal’, and for the words ‘Indian petitions’ the words ‘Indian petition’ be substituted.”

The amendment was negatived.

Now I will put clause 2 to vote. The question is:

“That clause 2 stand part of the Bill.”

The motion was adopted.

Clause 2 was added to the Bill.

CLAUSE 3

Mr. President, I am not moving any of my amendments.

Mr. President

“That for sub-clause (2) of clause 3, the following be substituted:-     

‘(2) Any legal proceedings pending by virtue of section 208 immediately before the appointed day before His Majesty in Council shall be transferred to the Federal Court and the Governor-General shall, in consultation with the Chief Justice of India, make proper and suitable arrangements for their disposal and all such proceedings pending before the Federal Court shall abate on the appointed day.”‘

In regard to this clause I submit that it is easy to realise that if you have given any right to any people they should not be divested of them ordinarily speaking. Now, as regards the orders of the Federal Court there are many persons who are aggrieved. The present remedy is that they could get redress from the Privy Council. Some of these people must have made their petitions and appeals against these proceedings. Clause 2 only seeks to abate those proceedings. Since we are passing an Act by virtue of which the powers of the Privy Council shall cease there is no reason why these persons should be divested of those rights. But I see one difficulty. If the judges have participated in the decisions against which relief is sought in the Privy Council it may be difficult to provide disposal of such proceedings or appeals by the same judges. But that difficulty can be obviated by having an order may constitute a such judge who did not participate in original orders may constitute a Division Bench, or something else may be improvised. It is not beyond the capacity of the Chief Justice of India or of the Governor-General to make some arrangement for the disposal of such cases.

My friend’s remarks can be cut short if I explained there are really no appeals pending before the Privy Council from the Federal Court.

There is no pending appeal.

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

Sir, I beg to move:

“That after sub clause (2) of clause 3, the following proviso be added:-     ‘

Provided that if special leave is granted on an Indian petition by the Judicial Committee of the Privy Council in a criminal matter, the appeal may be disposed of by the Judicial Committee before the commencement of the Constitution of India to be passed by the Constituent Assembly of India.'”

The only thing that I wish to submit in this connection is that, it an accused has gone up to the Privy Council and his appeal is admitted by special leave or by leave of the inferior court, then in that case it would be a hardship for an accused person to spend large sums once in London in engaging lawyers and again in India in engaging other lawyers. There would be further difficulty if the matter depends upon technical questions of law. One, court admitting the appeal on some technical grounds, and another court in deciding them. The change of lawyers as that of the courts would create practical difficulties. So long as our Constitution does not conic into force, I would only submit that in a criminal matter, in order to avoid hardship to the accused persons, if there is an appeal before the Privy Council, the latter should be permitted to hear the appeal, provided the hearing is completed before the Constitution comes into force.

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

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

The question is:

“That for sub-clause (2) of clause 3, the following be substituted:-     

‘(2) Any legal proceedings pending by virtue of section 208 immediately before the appointed day before His Majesty in Council shall be transferred to the Federal Court and the, Governor-General in consultation with the Chief Justice of India, make proper and suitable arrangements for their disposal and all such proceedings pending before the Federal Court shall abate on the appointed day.’ ”

The amendment was negatived.

I would like to withdraw my amendment No. 17.The amendment was, by leave of the Assembly, withdrawn.

The question is :

“That clauses 3 stand part of the Bill.”

The motion was adopted.

Clause 3 was added to the Bill.

CLAUSE 4

I do not want to move my amendments Nos. 18 and 19.

Sir, I move

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

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

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

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

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

Sir, I move:

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

This sub-clause relates to Indian petitions lodged before the appointed day to the register of the Privy Council. Now, in regard to these petitions, I am very sorry that I have not been able to change my opinion even after hearing my Friend, Dr. Bakshi Tek Chand. I would like very much to fall in line with his line of argument but I am sorry there are several points which are troubling my mind, and so I have been forced to move this amendment. In my opinion, when a petition is lodged before the Privy Council, the occasion for engaging senior and costly counsels arises when the hearing for sanction takes place and not when the appeal is lodged. The appellants or applicants will be saved this cost if sub-clause (c) is deleted.

Secondly, I understand the whole reason for the transference of these powers is that we want that our own judges may decide our cases according to our standards of justice and our mental outlook and thought and therefore I think that every Indian who had filed an appeal will have the mental satisfaction of his case being decided by the courts in India. Then fact that appeals have been filed need not be a reason for continuing these appeals in a country other than India. The mere fact that an appeal has been lodged cannot constitute a good reason for continuing the appeals in that court. Moreover, it is an accepted proposition that the same judges who heard the case at the time of granting leave should decide the case ultimately. Now we have just got an example of this principle when Dr. Ambedkar moved his amendment No. 20 substituting sub-clauses (b) and (c) and it is but meet that the case must remain in the same hands. If at the time when the special leave is given any remark in respect of any legal principle involved or any fact in the case is made by the judge who admitted the case, it would be difficult for any judge subsequently to get over the effect of those remarks and the accused will either be deprived of the advantages of these remarks or will be unduly prejudiced by them if another judge was called upon to decide the case later. Therefore on all these grounds, nothing will be lost if all these cases which are in a preliminary stage where only an appeal has been lodged are transferred back to the courts here. I am clearly of opinion that clause (c) of clause 4 should be deleted. (Amendment No. 22 was not moved.)

Sir, I do not accept the amendment of Pandit Thakur Das Bhargava.

The question is:

“That for sub-clause (b) of Clause 4, the following sub-clauses be substituted-     

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

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

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

The amendment was adopted.

The question is:

“That sub-clause (c) of Clause 4 be deleted.”

The amendment was negatived.

The question is:

“That clause 4, as amended, stand part of the Bill.”

The motion was adopted.

Clause 4, as amended, was added to the Bill.

CLAUSE 5

They are both of a drafting nature. I beg to move :

“That in sub-clause (1) of Clause 5, for the word ‘jurisdiction’ the words ‘power and jurisdiction’ be substituted.”

This expression has been used in some of the newly drafted articles to the Draft Constitution. This would make the sentence full and complete.

I beg to move :

“That in sub-clause (3) of Clause 5,for the words ‘certificate of the Registrar’ the words ‘certificate in this behalf by the Registrar’ be substituted.”

Sir, I move:

“That in sub-clause (3) of Clause 5, for the bracket, letters and word ‘(b) (c)’ the brackets, letters and word ‘(b), (c) or (d)’ be substituted.”

It is purely consequential.

The question is:

“That in sub-clause (3) of Clause 5, for the brackets, letters and word ‘(b) (c)’ the jurisdiction be substituted.”

The amendment was negatived.

The question is:

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

The amendment was negatived.

The question is :

“That in sub-clause (3) of Clause 5, for the words ‘certificate of the Registrar’ the words ‘certificate in this behalf by the Registrar’ be substituted.”

The motion was negatived.

The question is :

“That clause 5, as amended, stand part of the Bill,”

The motion was adopted.

Clause 5, as amended, was added to the Bill.

CLAUSE  6

Sir, I beg to move:

“That in clause 6, after word ‘appeals’ the words ‘or petitions’ be inserted.”

That follows the scheme which Pandit Thakur Das Bhargava has in regard to the deletion of sub-clause (c) of clause 4. Since that has not been accepted by the House, I am afraid there is no point in putting this amendment to vote.

I will put it to vote anyway.

The question is :

“That in clause 6, after word ‘appeals’ the words ‘or petitions’ be inserted.”

The amendment was negatived.

The question is

 “That Clause 6 stand part of the Bill.”

The motion was adopted.

Clause 6 was added to the Bill.

CLAUSE 7

Sir, I beg to move:

“That in Clause 7, the comma after the word ‘effect’ be deleted.”

This comma seems to be offensive to the eye. The context is “shall have effect accordingly”. There is no need for a comma after the word “effect”.

I do not think this need be put to vote, this question of ‘comma’.

This will be looked into. This need not be put to vote.

The question is

“That Clause, 7 stand part of the Bill.”

The motion was adopted.

Clause 7 was added to the Bill.

CLAUSE 8

Sir, I beg to move:

“‘That in Clause 8, for the word ‘petition’ be words ‘Indian petition’ be substituted.” With regard to this we have defined “Indian petitions” in sub-clause (2) of Clause 2. There we have said “the appeals and petitions aforesaid are hereinafter referred to as “Indian appeals” and “Indian petitions”, respectively. Here the words are used together, ‘Indian appeals and petitions’. According to this clause strictly, they should be “Indian appeals” and “Indian. Petitions”.

Then I move:

“That in Clause 8, the comma after the word ‘effect’ occurring in line 3, and the comma after the word ‘Council’ occurring in line 4 be deleted.“

These words are unnecessary and impede the reading.

Sir, I beg to move:

” That Clause 8, be renumbered as sub-clause

(1) of that clause, and the following new sub-clause be added :-   

(2) Any such order or decree made after the appointed day must be simultaneously made by the Supreme Court in India after the date of promulgation of the Constitution Act.”

Sir, my……….

My honourable Friend is labouring under a misapprehension. He thinks that the appointed day is 26th of January; the appointed day is the 10th of October.

   Quite so; you please listen to me and you will understand what my objection is.

Sir, it has been very irksome to me that the date, of declaration as Republic of India has been postponed and we are labouring under the control of the British Raj, the United Kingdom Government in one shape or another. One hopes that after the 26th of January, 1950, there will be no domination by the United Kingdom Government or His Majesty in Council or anybody in matters relating to India, unless, somehow through the back-door of Commonwealth, matters come in as unfortunately we have provided for in an article yesterday.

I agree with my honourable Friend, Mr. T. T. Krishnamachari that the appointed day is earlier. But, can we guarantee that all orders will be passed by the Privy Council near about the appointed day and no others will be held up till the 26th January? If some orders are held up, because the Privy Council reports to His Majesty in Council and His Majesty in Council may sit over it and pass their order on the 27th of January and such orders may come on the 27th of January, how will that order be announced in India? Then, there are petitions and orders on these petitions may be passed on the 26th of January 1950. Suppose it takes time to be communicated to India after the 26th of January. When we are a Republic, we do not recognise any jurisdiction of the Privy Council or the so-called His Majesty in Council. Therefore, the proper thing is, if any such order is held up, the Privy Council or His Majesty in Council should forward it to our highest judicial court, the Supreme Court, and if they announce it publicly in England on the 27th of January, simultaneously, the Chief Justice of the Supreme Court should announce it in India.

We do not want any further subordination in any shape or manner to the Privy Council. It went on fattening the British lawyers at the cost of India. One is glad, and I am very glad that British lawyers are going to be lean in the future because the huge amounts of money that flowed from India to the U.K. will not flow in future. But, at the same time, I am more proud of my sovereignty; I am more proud of my independence. Let Dr. Ambedkar and Mr. Munshi say–I would not accept Mr. T. T. Krisbnamachari’s word on it– that no such orders will be withheld after the 26th of January. They may be withheld. Therefore, I have moved my modest amendment which is purely political and constitutional. I am not raking up any legal point: I have no right to say anything on legal matters. But I do say it will be an insult to me if an order is not simultaneously issued by the Supreme Court for any order that His Majesty in Council or the Privy Council may issue after the 26th of January 1950, the date of India’s becoming a Republic. That is my very modest amendment. I hope my honourable Friend, Dr. Ambedkar, will see the justice of it and to save our honour, and not to burden us with further indignities and humiliations through association with the British, my amendment should be accepted.

I do not accept the amendment. Mr. President Amendment No. 33 need not be put.

The question is :

“That clause 8 be renumbered as sub-clause (1) of that clause, and the following new sub-clause be added :-     

“(2) Any such order or decree made after the appointed day must be simultaneously made by the Supreme Court in India after the date of promulgation of the Constitution Act.”

The amendment was negatived.

The question is:

“That Clause 8, stand part of the Bill.”

The motion was adopted.

Clause 8 was added to the Bill.

CLAUSE 9

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

Yes.

  Sir, I move:

For clause 9, the following clause be substituted :-

“Amendments of the Government of India Act 1935.   

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

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

(2) In Section 209 of the said Act, for sub-sections (1) and (2) the following sub–sections shall be substituted, namely :-“Act V 1908.

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

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

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

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

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

I should like to add a few words at the beginning.”Act V of 1908.

“(1A)  Subject to the provisions of the Code of Civil Procedure, 1908, or any law made by the Dominion Legislature, the Federal Court may also from time to time, with the approval of the Governor-General, make rules of court for regulating the manner in which any decree passed or order made by it in the exercise of its appellate jurisdiction may be enforced.”  

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

I beg to move:

“That in sub-clause (1) of Clause 9 in the proposed sub section (1) of section 209 of. the Government of India Act, 1935, for the words ‘is necessary’ the words ‘as it may consider necessary’, be substituted.

The context where this occurs says ‘make such order as is necessary’. I wish to make it ‘as it may consider necessary’. This is the proper form. With regard to the large amendment moved by Dr. Ambedkar my difficulty is, that there have been slight changes in the new draft which has been circulated and then again in moving sub-clause (4) of clause 9 some further changes have been made. I am not in a position to see the exact effect of this new change orally introduced. I think he has introduced the words– Subject to the provisions contained in the Civil Procedure Code 1908 or to any law or provision of law hereafter made by the Dominion Legislature. I think with regard to the latter condition, this is absolutely unnecessary. This clause 9 attempts to amend Section 205 of the Government of India Act. This Government of India Act will expire–we hope–on the 26th January or thereabout with the passing of India’s Free Constitution. Therefore this amendment introduced by clause 9 of the present Bill will have a very short life. It will give a new lease of life to the amended Section 205 of the Government of India Act which is again also to expire on the 26th January. During this short period I do not know whether it is intended to introduce law affecting Section 205. If this is to be done, it is to be done now in this House in the “Constitution” Section and not in the other aspect of this House viz., the “Legislative” Section. I feel that unless it is intended to introduce any fresh legislation to affect the situation within this short interval, I do not think there is any necessity for these conditions. I do not know what these words really imply. Do they imply anything practical or merely a kind of a safeguard against a thing which does not really exist? I want only clarification. I do not move my other amendments Nos. 40 and 41.

Sir, I beg to move :

“That in sub-clause (1) of Clause 9, after the proposed new sub-section (1) of section 209 of the Government of India Act 1935, the following new sub-section be inserted :-     

‘(1A) The Federal Court in the exercise of its criminal jurisdiction conferred on it by section 5 of this Act shall notwithstanding anything to the contrary in any law, be entitled to Pass any order of release or set aside any sentence or pass any other appropriate order which it considers just under the circumstances if it regards the provisions of the relevant law depriving life or personal liberty to be not consistent with reason and justice or the procedure observed as unfair or the detention as unreasonable or unjust.’ “

With your permission as an alternative I beg to move the following:

No. 43.

That amendment, I submit, is outside the scope of the Bill. The Bill deals merely with the transfer of jurisdiction.

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

This Bill does not propose to give any direction to the Federal Court as to the manner in which they should exercise the jurisdiction with which they become vested under the present Bill.

When a Bill specifically speaks of conferring jurisdiction, it is the business of the law to expound and define what the jurisdiction is. I only condense the contents of that jurisdiction and make, it absolutely clear what that jurisdiction means.

May I rise to a point of order? This is-really speaking-bringing in the due process of law by the back-door, which was disposed of more than once and debated over and over again in this House. The proposal was disposed of some months ago and disposed of day before yesterday. The idea is to vest the Supreme Court with that power. This is, therefore, entirely out of Order, apart from the stand taken by Dr. Ambedkar.

My submission is that it is certainly not out of order on merits. The amendment says the Federal Court shall exercise all its criminal jurisdiction conferred by Section 5. Section 5 says:

“As from the appointed day, the Federal Court shall, in addition to the jurisdiction conferred on it by the Government of India Act, 1935, and the Federal Court (Enlargement of jurisdiction) Act, 1947, but subject to the provisions of this section have the same jurisdiction to entertain and dispose of Indian appeals and petitions as His Majesty in Council has. whether by virtue of His Majesty’s prerogative or otherwise, immediately before the appointed day.”

Up to now this prerogative of the Crown or His Majesty included this power of due process. At present this being enjoyed by the Privy council.

Clause 9 (1) defines civil side powers. Clause 9(1) of the Bill reads as follows :

“It shall in the exercise of its appellate jurisdiction pass such decree or make such order as is necessary for doing complete justice.”

So, in regard to civil law the powers are given in 9(1). So this is perfectly in order.

This Bill is intended to transfer whatever power and jurisdiction the Privy Council has to the Federal Court. If the Privy Council has got the power you suggest in this amendment, that will be transferred to the Federal Court. If it is, not, the question is whether in this Bill you can enhance or extend the power of the Federal Court.

It is beyond my intention to enhance that power in clause 9(1). Power has been described as the power necessary for doing complete justice on the civil side. Similarly I want to declare what that power is in the exercise of the prerogative on the criminal side. Such powers are contained in the unwritten convention of England and we do not know specifically the full content of these powers but those conventions shall have to be imported and interpreted to defame the powers of the Federal Court. This is the time to interpret those powers and I am only making what is implicit in this clause explicit.

Is that implicit what you want to make explicit? If it is there, then it is quite unnecessary. If it is not there, you cannot add to it.

Dr. Ambedkar has moved a motion which shows what orders are necessary on the civil side in order to do justice. My suggestion is that the same thing may be done on the criminal side also. The civil side is being provided for. Why not the criminal side also?

We have mentioned what powers are necessary for doing complete justice. What my honourable Friend wants is to add to the existing powers, and that is not permissible.

While they have made provision on the civil side, they are silent on the criminal side. If the House does not agree, to my definition of these powers I am agreeable to cutting off the last three lines and say that in the exercise of its power, the Federal Court will be able to set aside any sentence or release any person.

This is a matter which we can consider when we are considering the powers of the Federal Court and then you might move an amendment giving the power you mention, to the Federal Court. But here we are, concerned only with the transfer of whatever power is vested in the Privy Council, to the Federal Court. Therefore the question you have raised does not arise here and I think it is out of order.

So far as amendment 43 is concerned it deals with the special jurisdiction on the criminal side and you are not inclined to give permission to move it. But so far as 39 is concerned, which I have already moved, I do not think any objection can be valid. I am only declaring what on the criminal side, the powers ought to be according to the right interpretation of clause 5.

As regards 39, let me see.

Objection is taken only to 43, but not to 30.

How does it stand on a different footing? It also say “The Federal Court…….. shall……….. be entitled to pass any order…….. which it considers just under the circumstances…………”

It only shows what are the powers for doing complete justice on the criminal side.

I do not think this is the proper place where you can put this in. If you want to confer any power on the Federal Court, you can do it independently or when we are dealing with the powers of the Federal Court but not while we are transferring whatever powers are possessed by the Privy Council, to the Federal Court.

All that I can submit, Sir, is that if it is permissible to mention the civil side under 209 (1), it is equally permissible to mention what are the powers, on the criminal side also.

What are you referring to?

  I am referring to clause 9 sub-clause (1) of the Bill.

It is nowhere stated, “Notwithstanding any law to the contrary etc.”

  I want only the substance of the article to be put in and not the exact words.

You cannot bring it in this round-about way. If it is to be brought in it must be done in the proper way.

I may seek permission to eliminate the words “notwithstanding anything to the contrary in any law”.

The question is whether it is something in addition to the existing powers of the Federal court or not. If it is an addition to the existing powers of the Federal Court, then we, cannot take it up. I have given my ruling.

Sir, you have already given your ruling and I do not know why the Member is persisting.

Sir, I have not caught what Mr. Shankarrao Deo is saying.

 I cannot allow it. It is ruled out.

Well, these are all the amendments. Does anyone wish to say anything? Well, I will put the amendments. First I put the amendment moved by Dr. Ambedkar. I suppose I need not read it. It is No. 37.

The question is :

That for clause 9, the following clause be substituted. Amendments of the Government of India Act, 1935.    

9. (1) In section 205 of the Government of India Act, 1935 (hereinafter referred to as 26 Ged. e. c. 21 the said Act), for sub-section (2) the following sub-section shall be substituted. namely :-

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

(2) In section 209 of the said Act, for sub-section (1) and (2) the following sub-section shall be substituted. namely :-Act V of 1908. 

 ‘(1) The Federal Court in the exercise of its appellate jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, including an order for the payment of costs, and any decree so passed or order so made shall be enforceable throughout the territory of India in the manner provided in that behalf in the Code of Civil Procedure, 1908, or in such other manner as may be prescribed by or under a law of the Dominion Legislature, or subject to the provisions of any such law, in the manner prescribed by rules made by the Federal Court.’   

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

(4) In section 214 of the said Act, after sub-section (1) the following sub-section shall be inserted, namely :-Act V of 1908.”(1A) Subject to the provisions of the Code of Civil Procedure, 1908, or in any law made by the Diminion Legislature, the Federal Court may also from time to time, with the approval of the Governor-General, make rules of court for regulating the manner in which any decree passed or order made by it in the exercise of its appellate jurisdiction may be enforced.”

The amendment was adopted.

Then I put No. 38, Mr. Naziruddin Ahmad’s amendment.

The question is :

That in sub-clause (1) of Clause 9, in the proposed sub-section (1) of section 209 of the Government of India Act, 1935, for the words “is necessary” the words “as it may consider necessary” be substituted.

The amendment was negatived.

Then I put the clause as amended by Dr. Ambedkar’s

The question is:

“That clause 9, as amended, stand part of the Bill.”

The motion was adopted.

Clause 9, as amended, was added to the Bill.

CLAUSE 10 

Then we take up clause 10. Mr. Naziruddin Ahmad has an amendment. Do you want to move it?

No, Sir, but I would like to speak a few words.

I wish to oppose clause 10 on the ground, first, that it is unnecessary, and secondly, that it creates some amount of confusion. My reasons are that the Federal Court was constituted by the Government of India Act, 1935. In 1937, by the Adaptation Order in accordance with that Act, the Civil Procedure Code was amended. One amendment was the introduction of Section 111-A of the Civil procedure Code relating to the appeals to the Federal Court, and the other amendment was the addition of a new Rule 17 of Order XLV, which dealt generally with appeals to the Privy Council. The changes introduced by the Adaptation Order separated Federal Court appeals from those to the Privy Council. Before these adaptations, there were appeals to the Privy Council as well as to the Federal Court. But the procedure laid down in Sections 109, 110 and 111 of the Civil Procedure Code and in Order XLV of that Code was cumbrous. They were necessitated because some preliminary steps were necessary to be taken in India before an appeal to the Privy Council be taken. The Privy Council was situated at a distance of six thousand miles and therefore preliminary steps had to be taken in India. But after the creation of the Federal Court, as the Federal Court is situated within India, all the paraphernalia necessary in connection with Privy Council appeals ceased to be necessary. It was on account of this situation, and on account of the inconvenience caused to the parties who have ones, to go to the High Court and again to the Federal Court that Act XXI of 1941 was passed. That Act introduced radical changes in the existing law so far as appeal from the High Courts to the Federal Court was concerned by enabling that Court to regulate its procedure by its own rules.

With regard to that Act XXI of 1941 there are only three sections to which I need refer. Section 2 repealed section 111A which had been introduced by the Adaptation Order. Section 2 also repealed rule 17 of Order XLV which, as I have pointed out, had also been introduced in Order XLV of the Civil Procedure Code by the Adaptation Order of 1937. Section 3 of Act XXI of 1941 gave power to the Federal Court to make Rules. On account of this the Federal Court made Rules in 1942 which have been amended and brought up to date from time to time. In these Rules all matters relating to appeals to the Federal Court have been exhaustively dealt with, both in civil and criminal cases. Therefore, the sections of the Civil Procedure Code which I have referred to, namely, sections 109, 110 and 111, and Order XLV which dealt with appeals to the Privy Council are inapplicable to the Federal Court.

What remain of these sections and of Order XLV merely relate to appeals to the Privy Council, and on account of the abolition of the jurisdiction of the Privy Council they would be dead letters and require to be repealed. But so far as the present purpose is concerned I submit that they are no longer applicable to present day circumstances. In the statement of Objects and Reasons of the Bill relating to Act XXI of 1941 it was stated :

“The Government of India (Adaptation of Laws) Order, 1937 added Section 111A and Order 45 rule 17 to the Civil Procedure Code and thereby made the Procedure of Privy Council Appeals applicable to Federal Court Appeals. The aforesaid procedure is cumbersome and dilatory, means for appeals to a Court six thousand miles away and should not be applicable to a court of appeal situated in India. Moreover, the addition of these provisions to the Civil Procedure Code have derogated from the powers of the Federal Court to regulate its own practice and procedure under section 214 of the Government of India Act and has been commented on unfavourably by the Federal Court in its decision in case No 15 of 1939, Lachmeshwar Prasad Shukul Vs. Basdeo Lal Choudhury. It is desirable therefore both from the points of view of Simplifying procedure in Federal Court Appeals and restoring to the Federal Court its powers to regulate practice and procedure that the new additions to the Civil Procedure Code should cease to be operative.”

I submit that these additions which have been made in the Civil Procedure Code would have been applicable to a Court situated far away. So this cumbersome procedure was abrogated by the Amendment Act of 1941. No reference at all would therefore be necessary to the Code of Civil Procedure, because the rules of Civil Procedure relating to appeals are as prescribed by the Federal Court in the Federal Court Rules of 1942 by virtue of Act XXI of 1941. In these circumstances I submit that the only rules that should prevail are the Rules made by the Federal Court. As I have said, they cover civil and criminal cases. A mere reference to those Rules would satisfy the Honourable Member as to the accuracy of the statements made by me.

I submit that clause 10 which says that the Civil Procedure Code shall have effect with regard to practice relating to appeals would be improper. We have already in the previous clause-clause 9–added sub–section (1A) to section 214 of the Government of India Act which deals with procedure relating to appeals to the Federal Court. I submit therefore that there would be a confusion between the Rules framed by the Federal Court, which are all complete by themselves, and the Civil Procedure Code which is purported also to be made applicable. If we are left between these two, I should think that the Rules prescribed by the Federal Court, which are complete in themselves, should alone occupy the field and the reference to the Civil Procedure Code in clause 10 should be abrogated. I hope the Honourable Member will consider this suggestion and agree to the deletion of clause 10.

Mr. President, my Friend Mr. Naziruddin Ahmad is labouring under a misapprehension. So far as the Rules under the law, as understood prior to this Bill now before us, are concerned there was no direct enforcement of the decisions of the Federal Court. The Federal Court has to send its judgment to the lower court for the necessary. Order being drawn up and there was no direct right of enforceability in regard to the judgments of the Federal Court. That is why that lacuna has been filled up by an earlier clause which has been passed, that is, it shall be enforceable and it is not merely sending the judgment to the lower court. There was an anomaly there, namely, of the High Court trying to give effect to the judgment of the Federal Court, but the Federal Court being powerless to ensure the enforceability of its own judgment or decree. That anomaly has now been removed because it has now been made enforceable. I am fairly certain that the Rules of the Federal Court did not and could not provide for that enforceability when the statute itself did not provide for the direct enforceability of the judgments of the Federal Court. Therefore, we have necessarily to provide for the proper machinery for the enforceability of the judgments of the Federal Court.

In the previous clause which has just been passed we have made a provision to the effect that the decree or order of the Federal Court shall be enforceable throughout the Dominion of India. Having made that provision, how is it to be enforced? It has to be by a fresh Act passed by the Dominion Parliament. But until the Dominion Parliament passes some law, there must be some law in the field for the enforcement of the decrees passed by the Federal Court and there has to be adequate provision for their, enforceability. The object of this clause 10 is to apply, for example, Order XLV rule 15 so far as it may. For instance, the order of His Majesty in Council was directly enforceable under the provisions of Order XLV rule 15. It is merely to be sent to the High Courts in India and the High Courts in India will send them to the courts which originally passed the decree and they will enforce the decree. It is merely a question of adaptation. The provisions of the Civil Procedure Code in so far as they will be applicable to the new circumstances will be applicable. At best all that can be said is “So far as it may be applicable”. Therefore it is an extension of provisions like rule 15 for the judgments of the Federal Court Later on it will be open to the Dominion Parliament to pass any law at variance with or in addition to the procedure provided in rule 15. But at present we have not got the necessary time and no law has been passed.

Therefore, when once all the jurisdiction of His Majesty in Council is transferred to the Federal Court and when you have made a provision that all the judgments and decrees of the Federal Court shall be enforceable throughout the Dominion of India, there must be a proper machinery for the enforceability of those decrees. No doubt you have made a substantial provision to the effect that the judgment and the decrees of the Federal Court shall be enforceable throughout the Dominion of India. That is why reference has been made to the Code of Civil Procedure and to the Dominion Parliament. No doubt the rules must necessarily refer to any existing law. To prevent a further lacuna, provision is made for the rules.

Therefore, there are three things. One is the extent to which the provision of the Civil Procedure Code can be adapted and extended to the judgment of the Federal Court; in the new dispensation the provisions of the Civil Procedure Code will apply. Secondly, there is the dominant power of the Legislature to intervene and to make appropriate changes. Subject to these, any rules of the Federal Court can be made if there is any lacuna in any of these provisions. Therefore the object is to complete the thing, namely that there will be a triplemachinery for the enforcement of a decree. That is the object of the provisions.

Dr. Ambedkar, would you like to say anything?

No, Sir.

The question is : –

“That clause 10 stand part of the Bill.”

The motion was adopted.

Clause 10 was added to the Bill.

Then there is another amendment, a new clause to be added

I beg to move:

“That after, clause 10 the following new clause be added:-     

’11. The Interpretation Act, 1899, applies for the interpretation of this Act as it applies for the interpretation of an Act of Parliament.’ “

Sir, we are by this Bill amending the Government of India Act to which the British Interpretation Act of 1899 applies. We have also passed two Acts in this House to amend the Government of India Act and we have made the Interpretation Act of 1899 to apply to the interpretation of those Acts. As this Bill is going to be incorporated largely into the body of the Government of India Act, it seems proper that the interpretation of it, if there is any, would depend upon the Interpretation Act of 1899. It would be highly anomalous if the main part of the Act would be interpreted in accordance with the Interpretation Act of 1899 and the other parts of that big Act which are to be filled up by this Bill, would be governed by the General Clauses Act. If we do not limit in any way the interpretation of this Act, the General Clauses Act will normally apply. It was under these circumstances that this rule of interpretation was made applicable in all other cases in a similar situation. Though it is very unlikely that any question of interpretation of this nature may arise, still it may be that some fine question may arise which may depend entirely on the Interpretation Act and as to which Interpretation Act will apply. So I think there should be one Interpretation Act which would be applicable, namely the Act of 1899 and not the General Clauses Act of India. This, it seems to me, is a corollary to what we have already agreed in the past and in the circumstances of the case.

Sir, I do not accept that amendment, it is quite unnecessary.

Sir, I should just like to say a word or two with regard to this point. So far as the Interpretation Act is concerned, it can apply only to Acts of the British Parliament. This is not an Act of the British Parliament, it is an Act of our Parliament and therefore you cannot extend the provision of the Interpretation Act for the interpretation of a Dominion Act like this one. If any question incidentally arises as to the interpretation of a British Act for the purpose of construing this Act, you can always rely upon the interpretation Act. Supposing, for example, you have to refer to the Judicial Committee Act, the Judicial Committee Act will have necessarily to be construed in the light of the Interpretation Act because that will always be available. This particular Act is an Act of the Dominion Legislature and therefore the General Clauses Act is made applicable. Between the two there is no kind of lacuna. When any question comes up before the Federal Court, it will either be an Act of the British Parliament in which case the Interpretation Act will continue to be applicable, or it is an Act of the Dominion Legislature in which case the General Clauses Act is applicable. Therefore, under these circumstances, I submit there is absolutely no reason for this amendment.

The question is:

‘That after clause 10, the following new clause be added:-     

’11. The Interpretation Act, 1899, applies for the interpretation of this Act as it applies for the interpretation of an Act of Parliament.”‘

The amendment was negatived.

CLAUSE 1

Then we go to clause 1.

Sir, I move:.

“That in sub-clause (1) of Clause 1, for the words ‘Abolition of Privy Council Jurisdiction Act’ the words and brackets ‘Privy Council (Abolition of Jurisdiction) Act’ be substituted.”

Sir, in all cases where we have passed amending Acts, we have always named the Act by the most important condition first of all and then with the detailed description of it within brackets. I have a list of Acts of the year 1947. We have Act XII entitled “Railways (Transport of Goods) Acts,” we have Act XV, “Armed Forces (Emergency Duties) Act”, we have Act ‘XXIV, “Rubber (Protection and Marketing) Act”. and there are many Acts with titles like this. I therefore submit that this nomenclature should be accepted.

Sir, I also move my other amendment :

“That after sub-clause (2) of Clause 1, the following new sub-clause be added:-     

‘(3) It shall also apply ‘to Indian appeals and Indian petitions arising out of cases originating in Courts in the acceded States.’ “

I do not know whether the acceding States are already governed by the Federal Court. I have no clear idea. I want by this amendment to seek clarification. If this is accepted then amendment No. 4 will have to be accepted as necessary corollary.

   Do you wish to say anything about this?

The emphasis is on the abolition of the jurisdiction of the Privy Council, and obviously that emphasis could not be realised if the words “abolition of jurisdiction” were put in brackets.

Do you wish to say anything about the 7th amendment?

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

I shall now put the amendments to vote.

The question is :

“That in sub-clause (1) of Clause 1, for the words ‘Abolition of Privy Council Jurisdiction Act’ the words and brackets ‘Privy Council (Abolition Of Jurisdiction) Act’ be substituted.”

The amendment was negatived.

The question is :

“That after sub-clause (2) of clause 1, the following new sub-clause be added :-     

‘”(3) It shall also apply to Indian appeals and Indian petitions arising out of cased originating in Courts in the acceded States.’ ”

The amendment was negatived.

The question is :

“That Clause 1 stand part of the Bill.”

The motion was adopted.

Clause 1 was added to the Bill.

TITLE AND PREAMBLE

I do not wish to move my amendment to the Preamable.

The question is:

 “That the Preamble stand part of the Bill.”

The motion was adopted.

The Preamable was added to the Bill.

I do not wish to move my amendments to the Title.

I do not wish to move my amendments to the Title.

The question is

“That the Title stand part of the Bill.”

The motion was adopted.

The Title was added to the Bill.

Sir, I move

 “That the Bill, as amended, be passed.”

The motion should have been:

“That the Bill as settled in the House, be passed.”

That is the motion in the Order Paper–

 “That the Bill, as settled by the Assembly, be passed.”

Mr. President, Sir, I would like only to say a few words on this occasion when we are passing a Bill which will end our connection with the Privy Council which has been our highest court for about one hundred and fifty years. I share the gratification of this House as well as perhaps the gratification of this country that our Supreme Court in the future, and to a qualified extent the Federal Court in the present, will be completely independent of the Privy Council. I may take this opportunity of making a few observations on this point when we are parting company with the Privy Council.

Sir, though we are quite happy that we are becoming completely independent in the matter of the Judiciary, parting with the Privy Council–I am sure it is not my feeling alone, but the feeling of all members of the Bar in India–is not a matter which can be gone through without a pang. Most of us have looked to the Privy Council for the last century or so with great respect. If I may say so personally for several years in the beginning of my professional life, I have read in those beautiful thin volumes of the Indian Appeals, the masterly judgment which go to make up practically the fountain–source of our law in India.

Sir, the British Parliament and the Privy Council are the two great institutions which the Anglo–Saxon race has given to mankind. The Privy Council during the last few centuries has not only laid down law, but coordinated the concept of rights and obligations throughout all the Dominions and Colonies in the British Commonwealth. So far as India is concerned, the role of the Privy Council has been one of the most important. It has been a very great unifying force and for us Indians it became the instrument and embodiment of the rule of law, a concept on which alone we have based the democratic institutions which we have set up in our Constitution.

Sir, on the 26th of January our Supreme Court will come into existence and it will join the family of Supreme Courts of the democratic world of which I the Privy Council is the oldest and perhaps the greatest. I can only hope and trust that though we part with the Privy Council our Supreme Court will carry forward the traditions of the Privy Council, traditions which involve that judicial detachment, that unflinching integrity, that subordination of everything to the rule of law and that conscientious regard for the rights and for justice not only between subjects and subjects but also between the State and the subjects. And no higher tribute can be paid to the Privy Council than my hope that our Supreme Court may be given the strength to maintain the traditions of fearless justice which have prevailed in this country as a result of the supremacy of the Privy Council.

With these words, Sir, I support the motion that has been moved by my honourable Friend, Dr. Ambedkar.

Mr. President, it is the object of this measure to abolish the jurisdiction of His Majesty in Council from the appointed day, and place the Federal Court in, exactly the same position as the Privy Council. The Bill when passed into law will facilitate the transition to the New Constitution under which the Supreme Court is invested with the sole and exclusive jurisdiction in constitutional and other matters and is constituted the final court of appeal of not merely what are now provinces under the present regime, but also of Indian States.

The only difference between the regime under the New Constitution and this Bill is that whereas under the New Constitution the Supreme Court will be the final court of appeal not only from the High Courts in what are known ,as the provinces, but also from High Courts in the Indian States, at present the jurisdiction of the Federal Court is confined to matters which arise or might arise under the Instrument of accession of the different States. Instead of detailing the various heads of jurisdiction, reference is made in clause 5 to all heads of jurisdiction which His Majesty in Council has been exercising before the appointed date.

There is one point which is a very important one and which I alluded to in the course of the discussion, namely, that the judgment of the Federal Court shall be enforceable throughout the Dominion of India and appropriate provision has been introduced to make the judgment enforceable.

Then I wish to make only one or two general observations. The Bill, in anticipating the provisions relating to the powers and jurisdiction of the Supreme Court, marks the final stage in the history of the relations between the Courts in India and the. Privy Council and gives effect to the Principle of judicial autonomy which is becoming an essential feature of dominion status even in Dominions which acknowledge allegiance to the British Crown. Whatever might be said about the executive government under the regime which has come to an end with the Indian Independence Act, there can be no doubt that taking a broad and disinterested view of the matter, the record of the Judicial Committee of the Privy Council has been a splendid one. The reports enshrined in the volumes of Moore’s Indian Appeals and later in the Indian Appeals, bear ample testimony to the worth of the Privy Council. They have enriched Indian jurisprudence in many respect including our personal law. I may mention here that in the law of Adoption itself, though earlier, owing to an imperfect understanding of the Hindu law a broad view was not taken, they have since taken a broader view even before the Indian High Courts took such a step. It has rendered notable judgments in the field of the Statute Law of India too. It has contributed very much to the development of the commercial law of India. Occasionally there might have been legitimate complaints in regard to matters affecting the liberty of the subject in which the Judicial Committee has not always taken a view which has commended itself to the Indian people. But, on the whole, the verdict of history would be in favour of the Judicial Committee and there can be no more illustrious example for our Federal Court and Supreme Court to follow than the Judicial Committee of the Privy Council.

There is however, one point which I would like to emphasise viz., either the Federal Court or the Supreme Court must not blindly follow the precedents of the Judicial Committee. It is hoped that both the Federal Court and the Supreme Court will evolve a jurisprudence suited to the genius of the people and the conditions of our country. The Federal Court now and the Supreme Court under the new dispensation will occupy a position of unique importance and the verdict of history would largely depend upon the independence, the ability and the learning which they would bring to bear upon their task.

Mr. President, I could not resist the temptation to speak a few words on this occasion which I consider is very important. To avoid taking up much of the time of the House I would straightaway say what I have to say.

I welcome this Bill which is going to be passed in a few seconds and which is a great land–mark in the judicial history of India. When this Bill is passed it will serve the long–standing connection existing between the Indian system and the British system in the judicial sphere. I daresay, as a student of law and also a practitioner who is acquainted with the matter this connection, has benefited our Indian law and Indian system of jurisprudence greatly. I have had occasion to read the judgments of the Privy Council and other important decisions which were mentioned by Shri Alladi Krishnaswami Ayyar just now. I felt proud of that connection which had done substantial benefit to us. Therefore we should pay a tribute to this connection from Which we are now parting.

This Bill when it becomes an Act will usher in the era of judicial autonomy in India. The important changes made therein are all corollary to the political and constitutional independence of this country. When the Constitution is passed our Federal Court will be designated as the Supreme Court. It will be the highest court of appeal for all high courts and also the judicial authority for the interpretation of the Constitution. We wish and we hope that the Supreme Court which is going to be the guardian of the Constitution and of the fundamental rights guaranteed therein, will do its function very well and every citizen in India will have the occasion to say that it has protected his rights as a true guardian of this Constitution.

Sir, there was criticism heard this morning here that we are continuing the jurisdiction of the Privy Council in certain matters. May I say in reply that this will be so only in the class of cases, as Dr. Ambedkar explained, where the judgment has already been delivered or where the report has been made to His Majesty or where the cases have been entered in the list of the business of the Judicial Committee. All the other cases will be disposed of here. We have also made provision in clause 5 that if only leave has been granted after 10th October, the further steps will have to be taken only in the Federal Court. There are some 20 or 25 such cases and these, if they are not decided before 26th January 1950, will have to be taken over to India. It is only just and fair and polite on our part not to take away such classes of appeals which I have already mentioned. With these few words I commend this Bill and say that it will be a very interesting period in our history to watch the progress and functions of the Supreme Court.

Sir, I congratulate Dr. Ambedkar that at least now he has found it necessary to bring in this Bill. On a former occasion when a Bill was brought before Parliament for enlarging the jurisdiction of the Federal Court some of us suggested that all the appeals Pending before the Privy Council should ipso facto be transferred to the Federal court and the jurisdiction of the Privy Council abolished forthwith– this was in 1947—we do not know why Dr. Ambedkar vehemently argued against it. I am, however, glad that before the Constitution is passed abolishing the jurisdiction of the Privy Council Dr. Ambedkar has chosen to bring in this Bill. This morning I read in the newspapers that even Canada is taking steps to abolish the jurisdiction of the Privy Council and vest that jurisdiction in their own Supreme Court. Therefore, whether we declare ourselves a Republic or not, this step ought to have been taken earlier.

I have the greatest respect for the Judges who sit in the Privy Council. Between Indian and Indian, from what I have been able to see, they have rendered justice. There may have been occasions when we did not agree with them in their judgments when the interests of Europeans and Indians clashed. Now, a heavy responsibility falls upon the Federal Court in the, matter of capacity, in the matter of integrity and in the matter of ability. In times when contending political parties are there, each contending to overthrow the other, trying to win mastery over the other, it is difficult to keep calm in that atmosphere. Therefore, all the greater responsibility falls upon the shoulders of the Judges of the Supreme Court and also the President who in future has to select proper men for filling up these posts.

The Privy Council might have given a lead in many matters, but so far as social legislation was concerned, we have our own grievances against it. It wanted to fossilise ancient practices. It considered many things under the personal law of the Hindus obsolete. An Indian Supreme Court would not have taken that view. Many things could have been accomplished by an Indian Court interpreting them otherwise. Many things are done not merely by statute law. They are allowed–to progress. If the courts can help by way of interpretation, many things can be done, many revolutions could take place without people noticing them, and progress can be achieved without the legislature embarking on any legislation. I am sure that the future Judges of the Supreme Court, when it comes into being, will certainly rise to the occasion and justify this transfer of power, this transfer of jurisdiction, from the Privy Council.

Now, so far as the jurisdiction of the Privy Council being allowed to continue even after the 10th October is concerned, I am sure that on the date on which we declare India to be a Republic, if any appeals are pending before it, they would be automatically transferred to the Supreme Court. Already there is a provision in the Transitory Provisions of our Constitution that all such appeals would stand automatically transferred to the Supreme Court.

Sir, I have great pleasure in congratulating the honourable Member that at least now he has thought it fit to bring forward this legislation. With this, the last link with the British will be going. When the British came, they tried to exercise jurisdiction over us, instead of allowing us to settle our own affairs. That link is broken now. I congratulate ourselves and I congratulate the honourable the Mover of this Bill for having brought forward this legislation.

Sir, I have very great pleasure in supporting the motion that this Bill be now passed. Our connection with the Privy Council for such a long time, is now brought to a close. We must on this occasion pay our homage to the Privy Council which has so greatly helped us in the evolution of our laws during the last 175 years. The great traditions of the Privy Council, its impartiality, it independence and its other characteristics would now have to be inherited by the Supreme Court, and we hope that the Supreme Court would rise to the same height.

Now, Sir, the system of Great Britain and the system of America which we have copied make it absolutely clear that it is the courts which are the final arbiters of the rights and liberties of the people. If we have adopted that system, it is but meet that our Supreme Court should be a court of final jurisdiction. Many countrymen of ours have taken a prominent part in the deliberations of the Privy Council on the Judicial side as Judges. I am glad that the Drafting Committee has now proposed to abolish the jurisdiction of the Privy Council and conferred that jurisdiction on the Federal Court of the same character as the Privy Council was enjoying.

Now, the King in any country has some prerogatives. I do not want to say what those prerogatives are, but it is sufficient to say that the King is regarded as the fountain of justice, that he is above the law, he has powers of reprieve and pardon, etc. The same powers are now granted to the President. Even if the courts have convicted a person, the King in his prerogative can grant pardon or reprieve.

There are many cases on the criminal side where the Privy Council in its jurisdiction upheld principles of natural justice and decided cases on such basis. It is true that in criminal matters it interfered with the lower courts on very rare occasions–as I said it was a special kind of jurisdiction-but it was always in the interests of administering justice. I hope, Sir, that now that our Federal Court is invested with the same jurisdiction, the Federal Court also would rise to the occasion and do the work which every court is expected to do. Though we have not succeeded in giving our ordinary courts such supremacy over the executive, as we desire, all the same this Bill is a landmark in that it transfers to the Federal Court the jurisdiction which has been so long enjoyed by the Privy Council. I hope this will ensure justice to all individuals. I am happy, Sir, that now all cases in India will be decided by our own courts. Sir, while paying my tribute, I want to place on record our sense of gratitude to the Privy Council which has for such a long time distributed even–handed justice to all.

The question is :

“That the Bill, as settled by the Assembly, be passed.”

The motion was adopted.

DRAFT CONSTITUTION-(Contd.)MOTION re. TRANSLATION OF THE CONSTITUTION

Mr. President, Sir, I beg to move the resolution which stands in my name :

 “Resolved that the President be authorised and requested, to take necessary steps to have a translation of the Constitution prepared in Hindi and to have it published under his authority before January 26, 1950 and also to arrange for the preparation and publication of the translation of the Constitution in such other major languages of India as he deems fit.”

Sir, the House is fully aware of the steps that were taken by you with regard to having a Hindi translation of the Constitution. In 1947 a Committee was appointed, with my honourable Friend, Shri Ghanshyam Singh Gupta as Chairman. That Committee produced a Hindi draft. Later, at the request of the Steering Committee, Sir, you were pleased to appoint an Expert Committee on the 15th March 1949 for the purpose of revising that Constitution. The members of that Committee, as is known to the House, were distinguished scholars associated with literary activities in different provinces in India. The members of the Committee were Shri Ghanshyam Singhji (Chairman), Mr. Rahul Sankrityayana, ex-President of the Hindi Sammelan, Mr. Suniti Kumar Chatterjee, one of the greatest experts on Indo–Aryan languages in India, Sri M. Satyanarayana, a gentleman who more than any other single person has done the utmost to spread the Hindi language in the South, Mr. Jayachandra Vidyalankar and Mr. Date, a well–known authority in Marathi. This Committee has revised the other translation; it is in the press and a considerable section of the House expected that the translation would have been completed in time to be placed before this House. But several difficulties are in the way. The time is not sufficient; it would also involve the Constituent Assembly meeting even after the November Session if that version is to come before this House; and the costs also will be disproportionate. In view of these factors, it is much better that the translation, after it has been revised either by you, Sir, or as it is produced by this Expert Committee, or revised by any other agency that you might think proper, may be published under your authority. It is absolutely necessary that on the 26th of January we should have a translation in Hindi published under your authority, the reason being that no sooner this Constitution is passed on the 26th of January, all the Indian languages will require some basic glossary and some basic translation for the purpose of adopting it in the different languages. At present what happens is, that in every province newspapers are translating the words in the Constitution in any way they like. Some translations are extraordinarily funny and some are accurate, but it is necessary that the whole of our constitutional terminology should be published in some kind on authorized form, so that the translations in our languages may become easy. Once this constitutional phraseology becomes current, once there is one translation published in Hindi, it will be very easy to have a common terminology throughout the country. Not only that, but if there are going to be any further authorized versions, it will provide a basis for that purpose. Therefore, it is absolutely necessary that we should have this translation.

One thing more, and I have done. The experts on this Committee are in their own respective spheres the best that India could produce and no doubt their translation would be of a character which will command weight all over the country. Some expression of opinion is found in some papers that the translation is likely to be very heavy. Now that is a matter of opinion, but for the life of me, I cannot understand how there can be any version of our Constitution in any Indian language without our having to coin new words to express the legal and constitutional concepts which we have expressed in English in this Constitution. In all our languages, except Sanskrit, there is no complete vocabulary of legal and constitutional terms. Even the Sanskrit Vocabulary is inadequate and we may have to coin new words in order to express certain modem concepts of constitutional law. Therefore, it is inevitable, I submit, that whichever the translation, it will have to be largely drawn from Sanskrit. I find that there is a considerable prejudice amongst certain classes of people in this country who seem to think that even constitutional and legal terminology could be so framed as to be accessible to what is called the ‘common man’. Nowhere in the world has a complex constitution like this bristling in every section with different constitutional aspects been worded in easy or so popular language as to be accessible to the common man. Even among our lawyers, I am sure many phrases that have been used in this Constitution,–phrases which have been borrowed from the American or the English Constitution–are such as are not easily accessible to an ordinary lawyer and not even accessible to lawyers of considerable standing. They are strange words to them unless they familiarize themselves with constitutional law; much more so in language like ours; and I think it is necessary that our new terminology should be largely drawn from Sanskrit introduced in words or words which are framed on the basis of Sanskrit roots. As soon as that is done, I am sure it will provide a nucleus for not only consolidating the phraseology of all our Indian languages, but lay the foundation of the new Hindi, the lines of development of which this House decided upon three days ago. With these words, I commend this resolution for the acceptance of the House.

Mr. President, Sir, while supporting generally the motion moved by my honourable Friend, Mr. K. M. Munshi just now, may I place before the House certain amendments to this motion? I am sorry, Sir, that because this agenda was received only last night, I could not give notice of the amendments in time, with the result that my honourable colleagues have not got copies of the amendments.

I shall now therefore read them out one by one.

“(1) That in the motion, for the words ‘the President be authorised and requested to’ the words ‘the President do’ be substituted.     

(2) That in the motion for the words and figures “before January 26, 1950″ the words ‘as speedily as possible” be substituted.     

(3) That in the motion, for the words “the preparation and publication” the words “the early preparation and publication” be substituted.      

(4) That in the motion, for the words “other major languages”, the words “other languages” be substituted.”

If these amendments were accepted by the House, the motion would read as follows :-

“Resolved that the President do take necessary steps to have the translation of the Constitution prepared in Hindi and to have it published under his authority as speedily as possible and also to arrange for the early preparation and publication of the translation of the Constitution in such other languages of India as he deems fit.”

Taking amendment No. (1), I feet Sir, that the expression used in Mr. Munshi’s motion is somewhat clumsy. When the House adopts a resolution, ipso facto the President is authorized in pursuance of that resolution. It is not necessary to state in a Resolution that the President is authorized to do such and such a thing. We resolve that the President do take steps and that itself is an authorization and a request; and I, therefore, feel that the words “authorization and request” are unnecessary for the purpose of this motion, and moreover they detract from the dignity of a motion to be adopted by this House.

As regards amendment No. (3) which seeks to insert the words “early preparation and publication,” I need not dilate upon this much. I believe that Mr. Munshi intends, and the House also intends, that the translation will be done early in other languages too. I only wish to make it very clear that this matter or this translation in other languages will not be postponed indefinitely.

Sanskrit also.

My amendment is for the addition of the word “early’ and it is a slightly substantial amendment too; but I leave it to the collective wisdom of the Drafting Committee to incorporate it in such manner as they deem fit.

In the last amendment, I wish to substitute “other languages” for the words “other major languages”. After all, who are we to say here which language is major and which language is minor? We have not adopted any motion or even an article on the various languages; nor have we stated in any schedule which language is major and which minor. If we adopt the motion as moved by Mr. Munshi to the effect that the translation will be in such major languages as the President may deem fit, suppose the translation is not done in some particular language, naturally the people of the country speaking that particular language will feel hurt that theirs is considered a minor language and therefore it has been omitted. It will have a bad psychological effect. To avoid any invidious distinction between one language and another, I wish to delete the word “‘major ” and say, that the President shall order translation in such languages as he deems fit, leaving the matter to him to decide. It is not for us to say here which is a major language and in which major language or languages the President may order translation of this Constitution. The interruptions of my friends Mr. B. Das and Mr. Chaliha also show which way the wind is blowing. They also feel hurt as to the incorporation of the word ‘major’. Suppose, for instance, Assamese is not included by the President,–I do not mean to suggest that it will be excluded,–or Oriya is excluded, they will feel that theirs is not a major language. Therefore, the best thing is to delete the word ‘major’ and say “such other languages as the President may deem fit”.

Coming to amendment No. 2 by means of which I seek to substitute the expression “before January 26, 1950” by the words “as speedily as possible” I have to advance two or three arguments in support of this amendment. Firstly the House will recollect that on the closing day of the last session, we adopted a resolution about the next General election, the preparation of electoral rolls and other ancillary matters. The argument was put forth even on that occasion that it is not proper to bind the House to a particular date; and Dr. Ambedkar had to admit in his reply to that debate that if for some reason or other we were unable to prepare the electoral rolls early enough and if therefore the elections were to be postponed beyond the end of 1950, we will have to state our reasons, bring another motion before the House and thereby get the original motion amended. Therefore, it is not wise I think to specify any definite date. I hope, may, I am almost sure, that the Committee which the President will set up win strenuously labour at this task of translation and get the translation ready even before, long before the 26th of January. But, there is many a slip between the cup and the lip and unforeseen circumstance at times arise which upset the plans of men. Therefore, I think it would be the part of wisdom to delete any reference to any particular date and just say, as speedily as possible. It may be ready even in a month’s time. If you fix a date, it is likely that it may be published just the day before, the 25th of January. That would be within the ambit of the motion which we are discussing.

I would however request and I would plead strongly that the Hindi translation of this Constitution must be ready long before January 26, 1950, even within a month or six weeks, so that if possible, this Hindi translation of the Constitution may be brought before the House during the Third Reading of the Constitution. For that purpose, I would not mind even if the Third Reading is so adjusted that it falls, say in early December or even early January. When once we have passed the Second Reading of the Constitution and the Electoral rolls are being prepared at a pretty fast pace in the country, there is no reason why we should hustle the Third Reading of the Constitution before the Hindi Translation is ready.

We have adopted Hindi as the State Language and Official language of the Union only two days ago. It is therefore only right and proper, and in the fitness of things that at the Hindi translation at any rate the State language translation should come before the House at the Third Reading of the Constitution. For that purpose, I would suggest that the Third Reading of the Constitution be postponed to early December or, even early January; and we can be ready with the final draft in English and Hindi before the 26th of January. If unfortunately something happens, some circumstances arise owing to which we cannot adopt the constitution, and promulgate or inaugurate our republic on the 26th of January 1950, I feel there is no reason to feel any compunction on that score because to my mind, though the 26th of January has got its own sanctity as being the Independence Day on which twenty years ago we took the pledge of Independence, yet it is conceivable, it is likely that we may have yet another date in our National Calender. After the 15th of August 1947, last year and even this year, the 26th of January has been observed as Remembrance Day and not as Independence Day. Now, if this Constitution proceeds at its usual pace we need not hurry it up just to synchronise it with independence Day, the 26th of January. I have no objection to that date : I would welcome that date. But, if it is not finished by that day, we can have a new date in our National Calendar, call it the Republic Day……….

You are discussing a subject which is not germane to the motion.

The date, January 26, is there mentioned in the motion I thought that has reference to Independence Day. I am not dilating on it. I only feel that we may have a new date in our National Calendar, call it a Republic Day and celebrate it annually. I only feel that the Hindi Translation of the Constitution must be before the House during the Third Reading of the Constitution, especially, in view of the fact that Hindi has been adopted as the State language, the official language of the Union just a few days ago. If the Third Reading is passed without the Hindi Translation before the House, I think we would be doing a wrong to this very House which has adopted this language as the State language and official language of the Union. I commend my various amendments to the House for their consideration and acceptance.

Mr. President, Sir, I stand here to support the motion of Shri K. M. Munshi but I must confess that I am not very happy over it. If I had my way. I would very much have liked that the Hindi version of the Constitution also could have been adopted by this House. It was also your desire that the version in the official language of the Union should be passed by the House but there were obvious difficulties also. The question of the official language was not decided earlier and therefore the time left is very short. If earlier decision had been taken about the official language of the Union, then it would have been more easy for us to pass the Constitution in our own national language also. But as it is, it seems to me that this is probably the best under the circumstances.

But, Sir, I appeal to the House about one thing. There is no doubt that we have decided that English shall go. It shall go during the period of fifteen years or earlier and in some respects it might take a longer time, but when English goes and English is replaced in the Centre by our official language Hindi, then at that time we will only be left with the authoritative text of the Constitution in English and only a translation in Hindi. I would very much wish that the Steering Committee and Dr. Ambedkar in their deep wisdom might find a way in which we could say that the provision is there that we have our authoritative version of the Constitution also in Hindi which can be used say after about fifteen years. As the resolution stands by itself, even after twenty or twenty–five years we would only have the translation. It will not have the sanctity which attaches to a Constitution adopted by the House. It will be absent in the translation in our national official language Hindi.

What I would very much request Dr. Ambedkar and the Drafting Committee to consider is to find out a formula by which some day we may be able to say that this Constitution which is in Hindi has the sanctity of the Constitution passed by the House itself and not merely that of a translation. There is section 304 but then I find that that section would not be quite sufficient for the purpose. If the Drafting Committee could draft another provision in this Constitution itself by which some such provision is made that after English ceases to be the official language of the Union, we may have our Constitution in Hindi adopted by the Union Parliament to which the same sanctity could be attached as if it was passed by the House, I would be very happy. This is the side of the case which I must humbly but most emphatically wish to bring to the notice of the Drafting Committee. I am sure that the ingenuity of the Drafting Committee will evolve a formula by which this would be possible and our sons and grandsons will not be left in the position in which they will say that there is no such thing as sanctified Constitution in our national language, and the Sanctified constitution is only in the English language. That will not be very creditable for us. Even a small country like Ireland drafted their Constitution in both the languages, in their own language and in the English language. But they took very early steps and therefore it was possible. I do understand and realise the difficulties but I would appeal that a way should be found out in which what have said may be possible.

Now I have the good fortune of being associated with the Hindi translation from the very beginning and I know the difficulties of translation. Therefore I do realise that our words have to be settled. They have to get implications and that is bound to take some time. I will not like to take the time of the House to show as to how we are proceeding with this translation. In choosing of a vocabulary which has any technical significance we take good care that the vocabulary is such as is acceptable not only to the Hindi area but to all the regional languages of the country-Marathi, Bengali, Gujarati and the languages of the South. Any word which is not acceptable to Shri Satyanarayanji or to Dr. Chatterjee or to Shri Date, we reject. We take words which are unanimously agreed upon so that we may have the basis for future terminology of technical terms (so far as the Constitution is concerned) not only for Hindi but for all the major languages of India. And our difficulties have been very very great indeed. I can tell this House what I have often told you that I have never devoted so much time, so much energy and so much attention even as a student in any of my studies, as I have devoted to the work which you were pleased to entrust to me and my colleagues. I support the motion.

Mr. President, I must confess I am somewhat unable to understand the purpose and necessity of this resolution. We are going to request and authorise the President to take necessary steps to have a translation of the Constitution. I do not think your authority was limited even as the President of this Assembly, to have a translation not only in the Hindi language but in the various languages of India. Secondly, this authority does not mean that the translation the President is going to get prepared is going to be the authorised translation. If this resolution was at all necessary, it should have been provided that any such translation which the President will promulgate shall be the authorised and recognised translation of the Constitution.

My second difficulty is, I do not know when the President is going to come into being. If the Constitution is to be promulgated on the 26th January, 1950, then what is the sense in saying that the translation’ should be prepared before that date? I do not conceive, that unless this Constitution comes into being and is promulgated, the President–can come, into existence. If the President cannot come into existence. before 26th January, 1950, what kind of translation is to be published before that date I am unable to understand.

The President of the Constituent Assembly is already there.

If it is the President of the Constituent Assembly, then I beg pardon. I took him to be the President of the Union. If it is the President of the Constituent Assembly, who is meant I do not think the resolution is necessary. The work of translation is already going on and we can provide that the translation prepared by the President, or published by or through him should be the official translation which shall be recognised by everybody.

Then Sir, I think there is no necessity for the changes which have been suggested by my friend Mr. Kamath. ‘The wording as it stands would probably serve the purpose. But in any case, the word “major” should be altered, or omitted altogether. It is especially difficult to define what are major and minor in this connection. It is not the phraseology we have accepted anywhere and it is therefore better to omit the word altogether.

Then I support the suggestion made by Mr. Gupta so far as accepting the translation as the only authorised version of the Constitution, at some date or the other, and the sooner it is done the better. If it is our intention that after fifteen years period Hindi should be recognised as the only official language, that it should be used more and more, then the best place where it should be brought into use is the law courts I am sorry to see that in the various law courts and in the High court, English is to language in use. I differ very vehemently on this point. The language in the law courts is very important because it results in so many other things. If the, law courts are to use English, the lawyers will perforce have to be proficient in English and there will be so many others who will have to give preference to English. Therefore having the Constitution in Hindi and recognising it as the only correct version is very important from many more points of view than the point of view of convenience only. And if it is our intention that Hindi should be recognised more and more, it should be possible for the President of the Union to declare that from such and such date, the English version of the Constitution shall cease to have effect and that the Hindi Constitution will be the only one to be referred to and interpreted by law courts. I think this suggestion is very welcome and I hope it will be possible for Mr. Munshi to accept it.

Mr. President, Sir, I am very much dissatisfied with the resolution moved by Mr. Munshi. You might remember that years back I raised the question of adopting the Constitution in our National language. Whenever the Constituent Assembly met in session and I got an opportunity of speaking, I placed before you the proposal that our Constitution should be adopted in our own language, You might remember that whenever I raised this question you gave the assurances that the Constitution to be adopted will be in our own language. The resolution moved in the House means that the Constitution will be translated into Hindi. It will only be a translation and not the original one. When English is going to be altogether banished. I fail to understand how we will carry on our work if the original draft of our Constitution would be in English.

This resolution means that we still want to maintain English on the same pedestal which it occupied during our slavery. I want to tell you that whatever difficulties we may be conronted with, we feel even today that the original draft of our Constitution should be in our national language.

We have been meeting in this Constituent Assembly for the last three years, it was after thousands of years that we got an opportunity to have this Constituent Assembly. Is it not possible for us to meet for a month more for this work? If we cannot meet now, we can do so after some time. We want to adopt the Constitution on the 26th of January next, and we have sufficient time at our disposal. During this period we can set aside a month to adopt our Constitution in Hindi. The resolution put forward by the Steering Committee in this regard was altogether different from the resolution moved by Mr. Munshi today.

We know that there are a number of Members in the Constituent Assembly who do not understand Hindi, but I would like to say that there are some Members also who do not understand English. A number of Members do not understand many words used in the Constitution. It is possible that when we shall place before this House our constitution in Hindi, many of its words also would not be understood by a number of Members. But this is no argument for not adopting the Constitution in Hindi. When we are adopting the Constitution in English, even though a number of Members do not understand many of its words, there should be no difficulty on the same ground to adopt our Constitution in Hindi also. When we have accepted Hindi as the lingua franca, as the State language it is very necessary that our original draft. of the Constitution should be passed in Hindi after the English version of the Constitution is adopted. It should not be a translation. It should be the original Draft. The Constitution in English too can be brought into force together with it as is the case in Ireland. I want to say with emphasis that the original draft of the Constitution should be framed in our own language and if there is any difference anywhere in our original draft and the English draft, the original draft should be taken as authentic and not the English draft.

This is a question of our prestige. This is a question of our national prestige. Ours is a vast Country and it has a big population. It has an old history and old culture. If after the dawn of freedom in such country its Constitution is not framed in the language of the country, it would be a matter of deep and unlimited humiliation and shame for us. I am very much dissatisfied with the resolution moved by Mr. Munshi, and I want to tell you that the time has come for fulfilling the promise made by you at the time we commenced our work. At that time it was said that so long as the question of the national language is not decided this cannot be done. Now the question of the national language has been solved and there is no difficulty in fulfilling that promise. Whatever has been done in this House from beginning to end in regard to Hindi has not been right. The effect of all that has been that there is discontent among the people and they are taking no interest in our work, although the people of a free country should take sufficient interest in the framing of their constitution. If we do not adopt originally our Constitution in our national language, there is bound to be discontent among the people and they would take absolutely no interest in the Constitution.

In the life of a nation such difficulties present themselves many times, and I appeal to you that it should be the primary duty of our leaders to solve these difficulties. Whatever may be the difficulties we should remain firm and stick to our ideas and objectives. At the outset the Steering Committee had accepted that our Constitution should be framed in Hindi and that a Committee of the House should be appointed to formulate it. We should sit for a month and consider all the Drafts that have been prepared so far and should adopt our Constitution in our national language.

Mr. President, Sir, I wholeheartedly support the motion moved by Mr. Munshi. I attach great importance to the publication of this Constitution in various languages, particularly in Hindi. I also attach even greater importance that this Constitution in the various languages should be published particularly on the 26th January, 1950. We have adopted Hindi as our national language and to publish only the English version on the 26th January, and the Hindi one later as was suggested by Mr. Kamath, would not be proper. It is essential that the two must be published simultaneously. I would even wish that the publication in the various other languages, I mean the fourteen languages which we have passed in the Schedule must also be done as early as possible. But I know the difficulties you, Sir, will be confronted with. Therefore it has been said that the English and Hindi versions shall be published by the 26th January, and as for the others, it has been left to you to see that they are brought out as early as possible. A very large number of people who could really take advantage of reading this Constitution in their languages should be enabled to do so. Therefore, the translation of the Constitution in these languages should be published as early as possible. I hope it is not intended by “such other major languages of India” that the Constitution should be restricted only to a few languages. The major language means those who would benefit the larger number.

At an earlier stage we had stated in this Constituent Assembly that the Draft Constitution should be given the widest publicity and I think you, Sir, also stated that a very large number of copies will be published. But I may state that in January of this year I was addressing a public meeting on the Constitution. Visitors after visitors stated that they applied to your office and also to the book-sellers and to the Bombay Government but they could not get any copy. I found on enquiry that all the copies were exhausted.

Are you referring to the English copies or to the translation?

I am referring to the English copies. We had stated that the people should take interest in the matter, acquaint themselves with it and as a matter of fact express their opinions through the medium of the press and also by sending them to the office of the Constituent Assembly. I do not know how many copies were printed. I make a suggestion that a very large number of copies of the Constitution in English and Hindi should be published on the 26th January so that everyone who so desires should be able to get a copy.

I would also make one other suggestion that you, Sir, on your behalf and on behalf of this Assembly should give a short synopsis of what we have done during these three years and what are the special features of the Constitution. It should be available both in Hindi and English. That will be interesting and people would like to read it.

As regards the suggestion made by my Friends Seth Govind Das and Shri Ghanshyam Singh Gupta I do appreciate that this Constitution in Hindi should have come here. But it is really difficult if you want to go clause by clause. And it has to go clause by clause–every Member has a right to discuss the Constitution clause by clause in Hindi as we have passed it in English. Of course they cannot make any special suggestions now. But in regard to the translation there are many experts in Hindi here. They will say ‘this word is not suitable, this should be there’ and they have a right to say so. I do not agree with Seth Govind Das that it can be done in one month. It will take six months if you want to pass through all the stages.

While I admit the force of the argument I would like to make a suggestion. Eventually the Hindi Constitution will prevail because within fifteen years or after fifteen years English will go. Therefore we must have a duly authenticated Constitution in Hindi. It will not be the version that you will be publishing. In my opinion something has to be done and that is later on it has to go to Parliament for this purpose. The Hindi translation of the Constitution must be an authenticated translation for the purposes of interpretation in the Supreme Court. Where there is a difference of opinion in the interpretation it is very necessary. I do appreciate that point of view. Now only the English Constitution will be there for the purpose of interpretation. But English has to go. Therefore the Hindi translation must be an authenticated one. This Constituent Assembly will be dissolved and therefore it cannot meet. My suggestion therefore is that some arrangement should be made for this purpose. If it is necessary to be made a clause in this Constitution I have no objection. But the matter must go to Parliament and Parliament must have the power to pass that Hindi translation.

I appreciate that Hindi now having been recognized the Hindi translation should have the fullest support of this Constituent Assembly, that is to say, the Third Reading of the Constitution in Hindi should have been passed by the Constituent Assembly. But practical difficulties come and it will not be possible for us to bring in this Constitution on the 26th of January, 1950. I strongly support the motion and I hope you will bear this little suggestion of mine that it will be very much appreciated if you attach a little brochure explaining what we did for three years, what immense work we had to do, how we had to change clause after clause and article after article, and what an amount of effort and work has been done by the Constituent Assembly. Let it not be misunderstood by the public that we have wasted so much time. On the contrary I consider that if we have lengthened the period of this Assembly it is for the advantage of the country. What we did in 1948, half of it we have scrapped now. After gaining experience and after mature consideration we have introduced many important articles. I very much appreciate that. I am not at all sorry–I am glad that the period has been somehow, by God’s act, extended. It was not the desire of the Members of this Assembly that the period should thus be extended. We had wanted to pass it earlier in 1948. But God preferred that it should be extended. It is very good that at as a result of this extension, after full consideration and in the light of the experience that we gained in the country, we have been able to change many of the articles.

With these words I strongly support the motion.

Mr. B. Das.

Sir, the question may now be put.

I have already called Mr. Das.

Sir, I support the resolution moved by my honourable Friend Mr. Munshi. I do hope he will see the points brought forward by my Friend Mr. Kamath and accept his third and, fourth amendments. I do not like my Friend Mr. Kamath asking us to pass a resolution that the President “do take the necessary steps”. The President has been our mouthpiece, the embodiment of our conscience, the embodiment of the spirit of this House over the sovereign Constitution which we have framed. Whenever any contacts take place with the outside world it is the President that has represented all our sovereign rights, all our conscience, all our hearts, and corresponded with them. So it is not for me to say that the President “do this”. If I had drafted this I would have done away with the words “The President be authorised”. I would have only said that “the President be requested to take necessary steps” and that satisfies me because we have trusted him and he will carry out the will and the wishes of this sovereign Houses as our chosen head and as our mouth–piece.

As regards the suggestion, which has also been supported by Mr. Sidhva and Dr. Deshmukh that the translation should be made available in all the languages that have been included in the Schedule as early as possible. I would suggest a modus operandi for that. We find that whenever any Bill is introduced in the Parliament at once the Provincial Governments take steps to translate it in the Provincial languages and circularise it or publish it in their gazettes. So, if the Honourable the President can take advantage of the existing machinery of the various Provincial Governments, then the translations in the languages– of course the translation in regard to Hindi will be the official version that will come from my friend the Honourable Sjt. Ghanshyam Singh Gupta–but the translation in the other languages could easily be done within a month’s time and then on the 26th of January 1950 all these translations–in Oriya, Assamese, Bengali, Gujerati, Telugu, Tamil. Kannada and every other language of the fourteen languages–will be available. Whether a translation in Sanskrit will be available I do not know. We will have to approach the various Pandits headed by my Friend Pandit Lakshmi Kanta Maitra and ask them whether they can work over it and produce a translation for the Pandits that inhabit the sacred places of India. But I do hope my Friend Mr. Munshi will accept Mr. Kamath’s suggestion, modified by Mr. Sidhva, of having the translations in the other languages as described in the Schedule to the Constitution.

Sir, I will echo the feelings of the House if I say that the House is grateful to My honourable Friend the Honourable Sjt. Ghanshyam Singh Gupta for the labour and efforts that he has devoted to the Hindi translation. Whether it will be the accepted version ten years hence I cannot say, but it must be the accepted version in the country from the date it is published by your orders. But as regards the suggestion of my Friend Seth Govind Das that the Constituent Assembly should be prolonged infinitely and should pass the Hindi version, Sir, though I agree with the sentiment I do not agree with the Proposal. Although the Constituent Assembly has continued for three years and we are hoping that on the 26th January next we will declare a Republic when this Constitution will be promulgated, still to quote Mr. Kamath, “there is many a slip between the cup and lip”. We saw two years ago tile people of France had three Constituent Assemblies; they drafted three Constitution, they are carrying on their faltering existence in some way on the 3rd draft.

Whether this Constitution will outlive all times, I cannot say. Already I hear criticisms from my friends the Socialists and from those who have gone underground, I mean the Communists, that they do not like this Constitution at all. We are not for all times going to be the Government India–the Socialists are bound, to step in, though they will have to learn to acquire in capacity for administration of the Governments. They are mostly busy criticising the Congress and its ways–most of them were Congress members at one time or another. So, the Constitution may not be a permanent thing. Even if fifteen years hence from January 26th a Hindi version is necessary as the statutory and authorised version, by that time I believe so many amendments will have taken place in the very Constitution that it will be desirable to have the authorised translation in Hindi then. Perhaps then a new Constituent Assembly may be elected, not on the basis of franchise as the present Constituent Assembly was created but perhaps every State will send two or three representatives who will sit down and adopt the authorised Hindi version of the Constitution. But at present it will remain an educative version, it will not have any legal or statutory binding on the people. The very lawyers that preponderate in our country will seldom quote the Hindi version; they will always quote the authorised version of the English text which this House has passed.

So, that is not a very dreadful matter to me and I hope time and experience will evolve the proper form of the Hindi language so that a proper, authorised Hindi translation will be evolved at least ten years hence, when I anticipate that language will be accepted all over India as the national language and then that version of the Hindi text will be accepted as authorised text. Of course I admire his sentiment that he wants that the, Hindi version should be an authorised version which this House is not at present in a mood to sit longer and pass.

But when will it come?

It will come ten years hence and I will not be there, you will be there.

Sir, I do appeal to you, and we are putting our trust and confidence in you in this matter to see that the thirteen languages excluding English–I do not know if Sanskrit will come in–will have their own version and they will all be published on the 26th January next so that the countryside will know in detail as to what we did by sitting long hours, what are the rights and privileges that are conferred on them by the Constitution and what hopes they can cherish under our Independent Republican Government.

Closure has been moved and so I will put it to vote.

The question is :

“That the question be now put.”

The motion was adopted.

Mr. President, Sir, I will first deal with the amendments moved by my Friend Mr. Kamath. I am very sorry that I am not able to accept any of his amendments. As regards the first amendment, the words “authorized and requested” have been appropriately. used, firstly because the word “do” is mandatory and with reference to our President I do not think it appropriate to use a word like that, and secondly because the word “authorized” has been used after considerable deliberation. I would have been extremely glad if the translation had been placed before this House and accepted as an authorized version of the Constitution. But as things were, it was not possible to do so.

May I ask one question of my Friend Mr. Munshi? Is it not a fact that the Steering Committee first decided that a Committee of this house should be appointed which will go into the question and consider that translation and then that that translation should be brought here and considered as the original version?

It is an open secret, I moved those resolutions. I was keen that we should have the version accepted by the House, but the circumstances are such that it is not possible for us to do so–at least that is the view of the bulk of the Member of the House. Whatever my personal view may be or whatever the view of my honourable Friend Seth Govind Das may be, the general opinion of the House is that it is not possible to do so. Therefore, we have to accept the best possible substitute, namely, we are delegating that authority of publishing a translation to the President himself. It is a perfectly legitimate way of doing things in view of our difficulty. My Friend Seth Govind Das in his enthusiasm forgot what Mr. Sidhva said. My honourable Friend. Mr. Sidhva thinks that this version should be placed before the House and carried through, article by article, clause by clause, with the numerous amendments which the Members of this Assembly might bring forward…

I say it can be done.

Well, it cannot be done in less than 12 months because I can assure my Friend Seth Govind Das that whatever he may think about himself or whatever I may think about my capacity to translate there are quite a large number of Members here who share my Friend Mr. Sidhva’s opinion that they are great experts even in the matter of translating a highly technical subject.

I guarantee that if you bring it up it will be passed within a month.

I am not prepared to accept that view and my learned Friend need not spend his enthusiasm on the subject, but I do say that we have to reckon with Members here like my Friend Mr. Sidhva. I have suggested the best possible substitute and that accords with the general views so far as I have been able to ascertain. We do not need a discussion, in a popular House like this, on the niceties of language. It is much better that it should be left to the President to get such expert advice as he thinks proper and to produce a translation which, though not approved by the House, is approved by the experts he wants.

The same thing as was done for English may be done for Hindi also.

Sir, I have said it once and I am prepared to repeat it again that I am carrying out the general wishes of the Members of the House.

Can you not use the word “version” instead of the word “translation”?

I would have been very glad to do it, were it not untrue. What we are doing is a translation. ‘Version’ means really-speaking re-writing the whole thing in an independent manner. This is a translation. Let us pass through the stage of translation. Then we can have an independent version of the Constitution, which it will be open to the Parliament to accept as the authorised version.

Are you going to move any such resolution that the original version may be passed by Parliament?

I am afraid it will take an unduly long time of the House if I were to answer my honourable Friend’s query.

The next amendment is of Mr. Kamath’s who wants to substitute the words “as speedily as possible” for the words and figures “before January 26, 1950”. 1 would feel happy if we could do it before the 26th of January, because after all it is a very technical and difficult work and cannot be turned out like cotton piece- goods.

In regard to Mr. Kamath’s third amendment, I see no reason to suppose that this preparation would not be done with convenient despatch.

In his fourth amendment Mr. Kamath wants the words “other major languages” to be substituted by the words “other languages”. The position is this. There are many more languages in India than the fourteen that were enumerated in the Schedule to the chapter on the national language. Among the fourteen languages we have included a language like the ‘Kashmiri’ which, I am told, is spoken by not more than ten lakhs of people. Now, it may be that some of these languages are not in use in courts. If that is so, there is no reason why there should be a translation in that language. The whole object is that this translation should be available to all persons who will be dealing with the Constitution either in courts of law or in schools or colleges, or to people who want to familiarise themselves with the constitutional concepts embodied in the Constitution.

The Provincial Governments may be entrusted with the work of translation into different languages.

The President has been given the discretion to select such languages as he considers to be the major ones. It may be a waste to spend money on translation into, take, for instance ‘Cutchi’. ‘Cutchi’ is a sort of language, though all Cutchies speak Gujerathi. Why should there be a translation in ‘Cutchi’?

‘Cutchi’ is not a language.

Therefore we must give the President full discretion to deal with this matter, I, therefore, request the House to accept this motion.

Is my honourable Friend aware that the Irish Constitution was adopted in Irish as well as in English by Eire in 1937?

It does not matter. That will not solve the problem even if he is aware of it. I shall now put the amendments to vote.

The question is :

“That in the motion, for the words ‘the President be authorised and requested to’ the words ‘the President do’ be substituted”

The amendment was negatived.

The question is :

 ‘That in the motion, for the words and figures ‘before January 26, 1950,’ the words as speedily as possible’ be substituted.”

The amendment was negatived.

The question is :

“That in the motion, for the words ‘the preparation and publication’ the words ‘the early preparation and publications, be substituted.”

The amendment was negatived.

The question is:

“That in the motion, for the words ‘other major languages’ the words ‘other languages’ be substituted.”

The amendment was negatived.

The question is :

“Resolved that the President be authorised and requested to take necessary steps to have a translation of the Constitution prepared in Hindi and to have it published under his authority before January 26, 1950, and also to arrange for the preparation and publication of the translation of the Constitution in such other major languages of India as he deems fit.”

The motion was adopted.

Now that the Assembly has adopted this resolution I wish to say a few words, because it now falls upon me to implement it and I want the assistance and co-operation of the Members of this House, as also of others who may be interested in this subject. to help me in implementing it. So far as the Hindi translation is concerned, it has made considerable headway under the Chairmanship of Shri Ghanshyam Singh Gupta. We shall see how far that translation is acceptable and we shall also consider in that connection how far the particular expressions which have been used for technical words are acceptable to most of the languages of the country. For example, we have a word like “assembly” which is translated in different ways in different languages. It would be in the interests of the development of the country as a whole if we could have one uniform vocabulary for such expressions, at any, rate for those parts of the country where the languages spoken are of Sanskritic origin.

In appointing the Committee which is now working on the Hindi translation, I took care to have representatives from different parts of the country and people who might be considered more or less as authorities on the subject. Even then I shall take further care to see to it that the expressions which are adopted finally are such as will, as far as possible, be acceptable to all the languages.

I, therefore, suggest to honourable Members present here who represent practically all the provinces and all the languages to give me some names. They should, in the first instance, discuss amongst themselves so that I might be able to say that these are the names suggested by the representatives of the various languages spoken in the country who are Members of the Assembly. Take, for example, our Tamil-speaking Friends. I would expect them to give me one or two names; I would expect the Telugu-speaking Friends to give me one or two names; I would expect the Bengali-speaking Friends to give me one or two names. Similarly if all the Members representing the various provinces and the languages will give me the names I would make a selection and appoint a Committee which will sit and finalise the vocabulary, so far as the constitutional and technical terms are concerned. If that is once accepted ….

What about Punjabi-speaking areas?

I have mentioned only two or three, by way of example. You are certainly welcome to give me the names you like.

If that vocabulary is once accepted, our work will become very easy. Then the translation will be a running thing which can be easily done.

I Propose also to address the various Provincial Governments to assist me with the co-operation of their Translation Departments and any experts that they may have in their own employ. If I get these names soon, I think the work of translation could be expedited.

I believe there are many translations already made in various languages. Those translations might also be utilised and I would request Members who have information about those translations to give me information with regard to them.

May I know when the tram selection will be over?

As soon as possible. But there is this difficulty which the House will bear in mind. We have not finalised the Constitution as a whole. There are still many articles which have to pass the Second Reading stage. Whatever translation is prepared now will be only with regard to the articles which have been finalised so far as the Second Reading is concerned. There may be some changes made further, but they will be only minor changes.

As regards the Hindi I translation that work is proceeding on the basis of the articles finalised from day to day in the House. There is no other translation being prepared in that sense under our authority. But now that you have asked to get translations prepared in other languages also, I think this is the best course I can adopt in the circumstances. I hope the House will give me authority and approval to this plan.

May I respectfully suggest that, if Members can give the names by this evening, then it will be possible for you to announce the names this evening?

I do not think they will find it convenient to give the names by this evening. I would not limit the time to this evening.

Should the selection of names be confined to the members of this House.

Not necessarily. They may be outsiders also. They should be experts whose translation will be accepted as authoritative in their own languages. I shall have to depend upon the authority which those people carry to get the translation accepted by their own people.

Are the translations likely to be long delayed?

They will have to expedite the translations as soon as possible.

In the beginning you announced that the Constitution will be passed in Hindi.

That was my wish and intention, but I find that it has not fructified and it is not possible. That is all I can say. Members are familiar with the events that have happened and the circumstances under which I had to give up that idea.Article 303.–(contd.)

Now the House will proceed to the next item on the agenda. Consideration of article 303 may be resumed. There are no amendments to sub-clauses (k) and (1). Therefore I will put them to vote. The question is

 “That sub-clauses (k) and (1) stand Part of article 303(1).”

The motion was adopted.

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

‘(II) “High Court” means any court which is deemed for the purposes of this Constitution to be a High Court for any State and includes–(i) any court in the territory of India constituted or reconstituted ended this Constitution as a High Court, and (ii) any other court in the territory of India which may be declared by Parliament by law to be a High Court for all or any of the purposes of this Constitution.    

(III) “Indian State” means–(i) as respects the period before the commencement of this Constitution, any territory which the Government of the dominion of India recognised as such a State; and (ii) as respects any period after the commencement of this Constitution, any territory not being part of the territory of India which the President recognises as being such a State.”‘

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

The question is :

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

‘(II) “High Court” means any court which is deemed for the purposes of this Constitution to be a High Court for any State and includes–(i) any court in the territory of India constituted or reconstituted under this Constitution as a High Court, and(ii) any other court in the territory of India which may be declared by Parliament by law to be a High Court for all or any of the purposes of this Constitution.     

(III) “Indian State” means–(i) as respects the period before the commencement of this Constitution, any territory which the Government of the Dominion of India recognised as such a State; and(ii) as respects any period after the commencement of this Constitution, any territory not being part of the territory of India which the President recognises as being such a State.'”

The amendment was adopted.

The question is :

“That sub-clause (m) and (n) stand part of article 303(1)”.

The motion was adopted.

(Amendment No. 141 was not moved).

I beg to move:

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

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

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

The question is :

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

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

The amendment was adopted.

May I ask Dr. Ambedkar what exactly is the point in mentioning that ‘securities’ includes stock? Why not mention shares also?

I may mention, Sir, that the word usually used in respect of Government securities is ‘stock’ by the British Parliament.

There are no amendments to sub-clause ‘o’.

The question is :

“That sub-clause (o) stand part of article 303(1)”

The motion was adopted.

I think we had better stop here.

Before we adjourn, there is one thing I desire to mention. I have received a letter addressed to me by Mr. Z. H. Lari, a Member of this Assembly. He has resigned his Membership of this House and in the letter of resignation he has mentioned certain reasons connected with the discussion about the language question which we had the other day. He has asked me that I should read out his letter to the House. I find, however, that before the letter reached me a copy of it was given to the Press and the substance of the letter has already appeared in the newspapers. That being so I do not think it is necessary that I should read out. this letter to the House. Of course I shall take the other action that is necessary in connection with it.

On a point of order. If this House is going to take any cognisance of this matter, I think the contents of it may as well be discussed, and the Assembly given an opportunity to express its view on that letter.

No, No.

I am not suggesting that it should be discussed. My only submission is that the Assembly should not be considered to have taken cognisance of the contents of that letter.

On a point of information, is it necessary that this letter should be placed before the House or the Members of this House should know the contents of that letter. I do not think it need be placed before the House.

If the matter had not been published, the question of reading it to the House may have arisen. I cannot say what decision in that case would have been, but since it has already been published, the question of reading it to the House does not arise.

He should have had the courtesy not to publish it.

Is the formality of acceptance either by the House or by the President necessary? The very fact that the resignation has reached …

As I have said, I shall take action under the rules. Under the rules, I am authorised to accept resignations. That matter does not concern the House.The House is adjourned till 4 o’clock this afternoon.The Assembly then adjourned till Four of the Clock in the Afternoon.The Assembly reassembled after lunch at Four of the Clock in the afternoon. Mr. President (the Honourable Dr. Rajendra Prasad) in the Chair.Article 303 (contd.)

We shall take up item (p) of article 303 now.

There is no amendment to this.

The question is:

“That sub-clause (p) stand part of article 303(1).”

The motion was adopted.

Then we shall take up sub-clause (q). Is there any amendment to this sub-clause?

There are amendments Nos. 3224 and thereafter standing in the name of Mr. Santhanam and others. I do not think they are being moved.

The question is:

“That sub-clause (q) stand part of article 303(1).”

The motion was adopted.

Mr. President, Sir, I move:

“That for sub-clause (r) of clause (1) of article 303, the following sub-clause be substituted :-     

‘(r) ‘railway’ does not include tramway, whether wholly within a municipal area or not.'”

Sir, may I move the other amendments to sub-clauses (s), (t) and (u) because they are consequential?

Yes.

Sir, I move:

“That sub-clauses (s), (t) and (u) of clause (1) of article 303 be omitted.”

This is consequential on the revision that we have made in the entry in List I in Schedule VII. There is no need to define Union Railways, State Railways or Minor Railways separately.

I only want to know whether tramway is defined anywhere. There is no fundamental difference between a railway and a tramway, except that one is called a railway and the other a tramway.

It is for this reason that it is sought to state that a railway does not include tramway.

The question is

“That for sub-clause (r) of clause (1) of article 303 the following sub-clause be substituted:-    

 ‘(r) ‘railway’ does not include tramway, whether wholly within a municipal area or not.'” 

The amendment was adopted.

The question is:

 “That sub-clauses (s) (t) and (u) of clause. (1) of article 303 be omitted.”

The amendment was adopted.

There is no amendment to (v).

The question is:

“That sub-clause (v) stand part of article 303(1)”

The motion was adopted.

Sir, will YOU take up amendments 203 and 204 together?

Sir, I move:

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

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

The only change is, the word ‘specified’ has been changed to ‘deemed’, Sir, I move:

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

‘(x) ‘scheduled tribes’ means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 300 B of this Constitution to be scheduled tribes for the purposes of this Constitution.,’ “

I am incorporating the other amendment which has also been tabled.

Shall we take up, the two other articles also at the same time?

Yes. New articles 300 A and 300 B.

Sir, I move:

 “That after article 300, the following articles be inserted :–Scheduled Castes300A.

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

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued by the President under clause (1) of this article any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.Scheduled Tribes 300 B. 

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

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

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

218 A.

In reading it he has included that.

224.

Sir, I move:

“That in amendment No. 201 of List V (Eighth Week) in clause (2) of the proposed new article 300A the following be added at the end :-    

‘for a period of ten years from the commencement of this Constitution.”‘

I also move :

“That in amendment No. 201 of List V (Eighth Week) in clause (2) of the proposed new article 300 B the following be added at the end :-    

‘for a period of ten years from the commencement of this Constitution.'” 

I agree with the principle that for ten years to come no variation of the notification originally made by the President should be possible. Because now that special privileges of reservation, etc., have been given to the Scheduled Castes, I do not like the idea that the Executive, President or Governor or any other person may be able to tamper with that right, but after a period of ten years, when this privilege will no longer be available to the Scheduled Castes, there will be no difference between the Scheduled Castes and other backward classes which will be declared under article 301 of the Constitution. At that time there will be no meaning in taking away this power from the President in consultation with the Governor. Therefore my humble submission is that the proposed amendment be accepted to make the point absolutely clear and free from ambiguity. Unless we add these words for a period of ten years from the commencement of this Constitution, you will be taking away the power of the President to include or exclude proper classes from the purview of the notification which will he issued under 300A and B. After the first ten years the privileges which will be open to these classes are probably under article 10 and under articles 296 and 299. I do not know of any other privileges which have been specifically given to these Scheduled Castes. Whereas I am, very insistent and conscious that these provisions should not be tampered with, I do like that these castes may not become stereo-typed and may not lose the capacity of travelling out of the schedule when the right occasion demands it. I, therefore, submit that if you put these words you will be making the whole thing elastic and the President will have the power of including or excluding after the lapse of ten years such tribes or castes within the notification.

Mr. Chaliha–you have two amendments. Once is 205 and the other is 225. I do not know if 205 arises now.

Mr. President, I move:

“That in amendment No. 201 of List V (Eighth Week) in clause (2) of the proposed new article 300 B after the words ‘Parliament may’ the words ‘and subject to its decision the State Legislature’ be inserted.”

I have always been fighting that the Governor should have power to safeguard the rights of the Tribes. I am glad in some measure this has been conceded. Yet I find certain amount of suspicion in that the State Legislature is neglected The Drafting Committee has not allowed the State Legislature to have a voice In order to fill up that lacuna I have said that Parliament may and subject to its decision the State Legislature.

Then what is left to the State Legislature?

Somehow or other I feel you have neglected it. In these you have covered a good deal which you had objected to in the past. The Governor has been given power I am glad to say. The only thing is provincial assemblies have no voice in this. Whatever Parliament says they are bound by it; but if there is anything which consistently with the orders of the Parliament they can do anything, they should bet allowed to have the power. That is why I have moved this. However, I am thankful this time that the Drafting Committee has assimilated good ideas and only provincial assemblies have been neglected. However, the Governor is there–that is an improvement–Parliament, is there and the President is there. Therefore, I Thank the Drafting Committee for this.

Mr. Sidhva.

It is already covered.

There are some amendments seeking to add some more clauses.

That is a separate matter. These were all the amendments.

Mr. President, I come to support the amendments that have been moved by the Honourable Dr. Ambedkar. These amendments deal with the definition of Scheduled Castes. As far as I can see he has made it clear that, according to the second part of it, the President on the 26th January 1950 will publish a list of such communities that come under the category of Scheduled Castes. But I would like to inform this House of the background which brought out the special name of Scheduled Castes. It was the untouchability, the social evil that has been practised by the Hindu Community for ages, that was responsible for the Government and the people to know the section of people coming under the category of Hindus and who were kept at the outskirts of the Hindu society. Going backwards to 1916 it was in that year when Government found that something had to be done for the untouchable classes, (when they said untouchable classes, they were always understood to be Hindus,) and they had to be recognised. In Madras there were six communities that came under this classification. During the Montago Chelmsford reforms they were made ten. In 1930 when the great epoch-making fast of Mahatma Gandhi came about, then only the country saw who were the real untouchable classes. And in the 1935 Act, the Government thoroughly examined the whole thing and as far as the Province of Madras is concerned they brought 86 communities into this list or category, though there were some touchable classes also. Now, after further examination the Provincial Governments have drawn up a list and I think according to the amendment mover’s suggestions, all those communities that come under the category of untouchables and those who profess Hinduism will be the Scheduled Castes, because I want to emphasise about the religion. I emphasise this because of late there have been some movements here and there; there are people who have left Scheduled Castes and Hinduism and joined other religions and they also are claiming to be scheduled Castes. Such convert cannot come under the scope of this definition. While I have no objection to Government granting any concessions to these converts, I feel strongly that they should not be clubbed along with Scheduled Castes.

Sir, I am grateful to the Drafting Committee and also to the Chairman of that Committee for making the second portion of it very clear, that in future, after the declaration by the President as to who will be the Scheduled Castes, and when there is need for including any other class or to exclude, anybody or any community from the list of Scheduled Castes that must be by the word of Parliament. I feel grateful to him for bringing in this clause, because I know, as a matter of fact, when Harijans behave independently or asserting their right on some matters, the Ministers in some Provinces not only take note and action against those members, but they bring the community to which that particular individual belongs; and thereby not only the individual, but also the community that comes under that category of Scheduled Castes are harassed. By this provision, I think the danger is removed.

I strongly oppose the amendment moved by Pandit Bhargava. The reason is that he wants to have the ten years period for observing these amendments. But he has entirely forgotten that under another article that we have already passed, or will pass the Constitution provides for the appointment of a Special officer at the Centre and also various officers in all the Provinces to go into the various disabilities of these communities and to submit a report to the President who will then be able to know whether the Scheduled Castes have reached a stage when the facilities now given to them could be withdrawn. I do not think that the reasons that he has advanced are fair and square for the uplift of the Harijans.

With these few words, I support the amendment.

Does anyone else wish to speak? Do you wish to say anything Dr. Ambedkar?

I do not accept the amendment of Pandit Thakur Das Bhargaava.

Then I put the amendments. The first is the one with reference to amendment 147.

The question is :

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

‘(w) ‘Scheduled Castes’ means such castes, race or tribes or parts of or groups within such castes, races or tribes as are deemed under article 300A of this Constitution to be Scheduled Castes for the purposes of this Constitution;”‘

The amendment was adopted.

Then the amendment regarding (x).

The question is:

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

‘(x) ‘Scheduled tribes’ means such tribes or tribal communities or parts of or groups within such tribes or tribal as are deemed under article 300 B of this Constitution to scheduled tribes for the purposes of this Constitution;’ ”

The amendment was adopted.

Then I put the two new articles 300A and 300B, But I first put the amendment. No. 224 of Pandit Thakur Das Bhargava.

The question is :

“That in amendment No. 201 of List V (Eighth Week), in clause (2) of the proposed new article 300A, the following be added at the end:-    

‘for a period of ten years from the commencement of this Constitution.”‘

The amendments was negatived.

There is no other amendment.

I then put No. 201. The question is :

“that after article 300, the proposed new article 300A stand part of the Constitution.”

The motion was adopted.

Article 300A was added to the Constitution.

Then 300B and the amendment moved by Mr. Sidhva or Mr. Krishnamachari about adding the word “tribal”. But then there is another amendment, that of Mr. Chaliha.

The question is:

“That in amendment No. 201 of List V (Eighth Week), in clause (2) of the proposed new article 300B, after the words ‘Parliament may’ the words ‘and subject to its decision the State Legislature’ be inserted.”

The amendment was negatived.

Then I put No. 227 of Pandit Thakur Das Bhargava.

The question is :

“That in amendment No. 201 of List V (Eighth Week), in clause (2) of the proposed new article 300B, the following be added at the end :-    

‘for a period of ten years from the commencement of this constitution.'”

The amendment was negatived.

Then I put Mr. Krishnamachari’s amendment which has really been accepted by Dr. Ambedkar-218A.

The question is:

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

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

(b) in clause (2), for the word ‘community’, in the two places where it occurs, the words ‘tribal community’ be substituted.”

The amendment was adopted.

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

The question is :

“That proposed article 300 B be adopted.”

The motion was adopted.

Article 300B was added to the Constitution.

EIGHTH SCHEDULE

Sir, I move:

“That the Eighth Schedule be deleted.”

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

No, Sir, they would not arise.

The question is :

“That the Eighth Schedule be deleted.”The motion was adopted.Schedule Eight was deleted from the Constitution.(Amendment No. 3749 of Volume II seeking to add New Schedule IX was not moved.)

Article 303 -(contd.)

Sir, I beg to move:

“That in amendment No. 3234 of the List of Amendments, in clause (1) of article 303,after the proposed sub-clause (x), the following now sub-clause be added :-    

‘(xx) ‘to aid and advise the President means that there is no statutory obligation that President is to be guided by ministerial advice.’ “

Sir, I do not want to move (z) and have moved only (zz).

Sir, I am afraid the amendments is out of order for the reason that in the article relating to the Council of Ministers we have definitely provided that the President must act in such and such a manner as prescribed in Schedule III-A. I think my honourable Friend cannot anticipate III-A and nullify the effect of the wording of that particular schedule The article referred to by me is (62) (5) (a). The amendment runs counter to the article and it cannot therefore be accepted.

Instead of taking it as a point of order I will dispose of the amendment.

The question is:

“That in amendment No. 3234 of the List of Amendments, in clause, (1) of article 303,after the proposed sub-clause (y), the following new sub-clause be added :-    

“(zz) ‘to aid and advise the President’ means that there is no statutory obligation that President is to be guided by ministerial advice.'”

The amendment was negatived.

Sir, I move:

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

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

The reference is to the General Clauses Act.

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

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

The reference is to the General Clauses Act for the purposes of interpretation. There are three classifications so far as the General Clauses Act is concerned, namely Acts, Ordinances and Regulations. What we want is that only those particular portions which refer to Acts should apply so far as this particular clause is concerned.

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

I am afraid you have not examined the General Clauses Act.

It is no use introducing some provision without carefully scrutinising it.

It had better be left to the draftsmen as to what is necessary and what is not.

I agree that any necessary corrections should be left to the Drafting Committee. But there is no harm in admitting a mistake if it is a mistake.

I refuse to accept, it is a mistake.

     : I know it is not easy to convince you.