CONSTITUENT ASSEMBLY DEBATESVolume 9
20 Aug 1949
The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Nine of the Clock, Mr. Vice-President (Shri V. T.Krishnamachari) in the Chair.
DRAFT CONSTITUTION – (Contd.)
Article 277 –(Contd.)
: Mr. Vice-President, Sir, I stand to oppose article 277 as unnecessary in this Constitution. Sir, the emergency powers incorporated in this Constitution are more or less adapted on the lines of Section 93 of the Government of India Act, 1935, with certain modifications necessary from their point of view for the purpose. An analysis of the clauses reveals that it is classified under three heads, firstly, provisions relating to war emergencies, secondly, provisions relating to domestic violence and thirdly, provisions relating to any such violence and acts of violence which the President considers imminent and dangerous. A Government functioning under any constitution has always the right to take all necessary powers to deal with the situation has always the right to take all necessary powers to deal with the situation in cases of external aggression or war emergencies. To that extent, any restriction of the powers and privileges of the ordinary citizens may be allowed under the Constitution. I do not believe that any honourable Member of this House seriously object to that aspect of the question. It would be ridiculous to call it democracy if a party or a provincial Government goes on in its own way to take a cow action which is contradictory and conflicting with the best interests of the Union or its safety. Under these circumstances, any power reserved for the Centre in war time and war emergencies is welcome.
Sir, we come to the question of domestic violence and any acts of violence which according to the President are considered imminent and dangerous. These are different questions and have to be considered from a different point of view. As I have stated on many occasions, I repeat that we are contemplating party Government in a system of democracy. Party Government necessarily means different parties. In a federation with a Centre and Units, there is no denying the fact that different political parties may be in charges of the administration in the different units or even in the Centre. Under these circumstances, there is a possibility of misuse of these powers. Speaking personally. I have experience of this misuse. Recollecting my past experience of Madras and the Justice Party, I have seen how the District Boards and Municipalities were mercilessly superseded without rhyme or reason because the Government had the power kept to itself to supersede these municipalities. What has been done in Madras by a certain party with regard to district boards and municipalities may be repeated by the Centre. Therefore, I plead with the Honourable Members of this House that no more power need be left with the Centre or with the Governors who are practically the agents of the Centre to deal with any such situation.
Any power that you reserve to yourself for war emergency is quite welcome. We do not oppose it. I concede the fact that the provisions contained in articles 275 to 277 and the rest are not as drastic as they are in the small Section 93 of the Government of India Act. I do realise that the framers of the Constitution have not arrogated to the Governor all the executive and legislative powers that you have under Section 93. 1 also further concede the fact that you do not wipe off the High Court if and when it suits you. All that is conceded. Why should you have article as 277 which is not even contemplated under Section 93 ? Section 93 does not suspend the allocation of grants from the Centre. Speaking from past experience, let me state that even in the war years (during the second world war), the provinces were getting their financial allocation from the Centre, even in the provinces where we had government under Section 93. I also feel that a responsible Government functioning at the Centre cannot afford to suspend the grants that are given to the provinces to be utilised for nation building activities unless it wants to bury itself. There is also the possibility of a totalitarian party coming into power at the Centre. Under these circumstances, I do not see any reason why more powers should be reserved in the Centre under the Constitution for taking necessary action in such cases. Sir, this is giving autonomy with vengeance to the provinces. Therefore, I plead with the honourable Members of this House as also with the Drafting Committee that a reconsideration of this article is called for.
Again, I have to state that the reports, both of the Central Committee and the Provincial Committee, have not recommended such powers as are proposed to be given to the provinces under article 277. 1 do, not see any reason why the Drafting Committee should have taken this course without any authority from this House or anything of the like contained or contemplated in the reports of the Provincial or Central Constitution Committees. With the proclamation of emergency under article 275, autonomy in the provinces is being suppressed and the powers practically vested in the provincial executive lapses more or less into the Centre in the sense that the province has to be governed under the directions of the President. That being the position, why should you take a further step in refusing even the grants, suspending or reducing the grants which are allocated to the provinces not by the President, nor by the legislature, but by a non-political body that you yourself have constituted ?
Assuming for a minute that the grants are suspended, activities, connected with it for nation-building or administrative activities are suspended to that extent. What do you do with the money? Allocations have been made on a regular defined basis; each province gets its share while this money lies idle with-out being used for its legitimate purpose. Why should you create this discrimination among the provinces ? If power is taken under sub-clauses (b) and (c) as I have already stated for domestic violence or such acts of violence as the President considers imminent and dangerous in the province or provinces, why should you punish the people of the province as different from the Government which may be responsible for mishandling or for encouraging these unlawful and violent activities ? It may be enough if the provincial executive is suspended; it may be enough if the provincial legislature is also suspended. But, why should the people be punished for an act for which they are not in the least responsible? Under these circumstances, I find neither reason nor justice in the article has been placed before the House for approval. I have no option but to oppose it.
: Mr. Vice-President, Sir, I rise to support this article with all the emphasis that I command. My Friend Mr. Bishwnath Das raised the question of democracy. He is shedding tears at the prospect of democracy being liquidated when there is a great emergency in this country. I am definitely of opinion that the issue involved is not democracy but the security of the country and I feel that this article is a necessary corollary of article 275. There must be a political reservoir of power somewhere at the Centre to deal and to meet with a situation that may arise in the country when there is a grave emergency in this country. The whole idea is unsupportable that any Government at the Centre will starve the provinces and medical facilities, Educational facilities or other nation-building departments will-come to an end. Mr. Biswanath Das is under the impression that provincial autonomy or democracy will survive in this country if there is a totalitarian party at the Centre. If a totalitarian Government at the Centre emerges, there will be no provincial autonomy left. I am of opinion that we half already given too much powers to the provinces and at a time when there is an emergency the whole Constitution must be changed into a unitary constitution. It is only when there is a unitary State in this country that there can be progress. The main issue is not democracy but security of the country and the economic well-being of the people of India. We want progress of the country. Therefore, I support this article.
Sir, I consider this a very drastic provision. It will have the effect of completely dislocating a province. In fact I think Assam will be the first casualty. If you have the power to suspend the Constitution, then how will the provinces function ? Under the pretext of this provision probably you will take all the finances to the Centre and we will have nothing left to the provinces. What will happen under this provision ? On a certain date the Communists of Burma right come into the Eastern frontier. Then under that pretext an emergency will be declared and you will take all the powers. If the entire State is on revolt against the Centre, then of course this emergency may be declared; but unless there is definition of what is an emergency and under what circumstances these provisions could be applied, it will be causing something which is not expected. I submit that this provision is put in a manner which does not show all the consequences; if this is applied, it will lead to the greatest hardship, Mr. Brajeshwar Prasad is of course a very straight and balanced man and always thinks of the stability of the country and thinks that the Constitution may be jeopardised if powers are left to provinces, and he further thinks all the good qualities are in the Centre and they are all devoid of good qualities in the provinces. He is anxious to concentrate all power in the President. If we go on like this the provinces will be left with nothing. You are only introducing dyarchy like the old dyarchy and everything will be in the Centre and provinces will be mere nonentities: If you want to have this provision, then you have to define what is an emergency and under what circumstances they can be applied; otherwise this word ’emergency’ is so vague that even if a small Naga tribe attacks Assam you will declare emergency, or if there is Communist disturbance at Dibrugarh you may declare an emergency. I therefore request Dr Ambedkar to define the word ’emergency’ and under what circumstance this suspension or taking the taxes can be taken by the Centre. Provinces are of course going to be mere puppets in the hands of the Centre and I trust the gentlemen in charge of the drafting of the Constitution will think over the matter and try to define what an emergency is and under what circumstances this can be applied.
: I think Shrimati Durga Bai has moved for closure. I am sure the House will agree to that.
: No. No.
: Mr. Vice-President, Article 277 empowers the President to effect alterations which are necessary in the existing arrangements with regard to the distribution of revenues between the units and the Centre. This power is conceded to the President only for the period of emergency and in my opinion this is a necessary, sequel to article 275 which has already been agreed to by this House. This House has already agreed that during a period of emergency the President ought to be clothed with overriding powers to safeguard the interest and peace of the country. What are those special powers worth, may I ask, if the President is denied the authority of pleading with the units to readjust the allocation of finances between the unit and the Centre ? A grave emergency arises when there is a war or a threat even to the Constitution of this country and no sacrifice is too great to successfully overcome this period of emergency. An honourable Member vehemently opposed this article 277. She has conceded that the President could ask the units to stop expenditure on development schemes of the units, but in the same breath she said that the Centre should not have power to readjust the allocation of finances or make the necessary adjustments with regard to existing finances between the units and the Centre. It should not be forgotten that first of all the President means the President acting on the advice of his Cabinet; secondly we have given this power to President only for the period of emergency. This power will not exceed in any case the financial year and lastly, it is subject again to the intervention of the Parliament at any stage even during this period if anything went wrong.
So I do not understand why some of the honourable Members should take objection to the giving of these powers, under the circumstances that have already been explained by. Dr. Ambedkar, and also by other Members who have supported this article. Under these circumstances, it is extraordinarily unjust to suppose that this article provides for financial autocracy of the Centre. Certainly it should not be considered so because we have given these powers for a period which we call an emergency period, and also we have limited its period only to the financial year in any case, and also we have given the power to Parliament to intervene at any time if anything went wrong. Therefore, Sir, I support the article 277 as amended by Dr. Ambedkar.
: Mr. Vice-President, Sir, I also rise to support article 277 as it is framed and amended by Dr. Ambedkar’s amendment. With all respect to Pandit Kunzru, I oppose his amendment. In fact, I think Mr. Chaliha has not read article 275. An emergency comes into operation only in case of war, or internal disorder or external aggression. In such circumstances, extraordinary powers have to be given to the Centre. The suspicion, I believe, is born out of the feeling that the Centre is something different from the Provinces. In fact, the period of emergency lasts only for two months, and it continues only if Parliament approves of the emergency powers within one month of the date of the meeting of Parliament; if it is not approved, then the state of emergency lapses. And also, the period for which the financial powers are given tinder Section 277 cannot be longer than one year because the budget is framed from year to year. During the period of emergency, the security and safety of the entire country must be the sole responsibility of the Centre and extraordinary powers have to be given to the Centre. Otherwise, during the period of grave emergency, if Quarrels for adjustment of financial contributions are allowed to be going on between the Provinces and the Centre, the safety of India will be jeopardised; and if India survives every province survives and every citizen survives,-not otherwise. The safety of the country must be the predominant factor and these powers as are given under article 277 are absolutely essential, and therefore, I support this article.
The question may now be put.
: I have promised Mr. Sarwate that I would allow him to speak. I will put the question later.
: There are also several other speakers; you may give them a little time each, say two minutes at least.
: Mr. Vice-President, I thank you for giving me this opportunity to express my feelings. However, I shall not be long. I think that Sections 276, 277 and 227 are to be read together. When an emergency arises, the Government at the Centre would have to function in two departments, the Executive and the Legislative. By article 227, powers have been given to the Centre to legislate on matters which come within the purview of the State legislature. By article 276 (b) power has been given to the Central Government to take upon itself executive functions in respect of such matters. Now, when the Central Government takes upon itself central duties which otherwise would have been done or executed by the Provinces or States, then it is but natural and necessary that it should be provided with the necessary funds. Therefore, it follows that article 277 is a repercussion in the financial sphere, of the powers which have been given by articles 227 and 276 to which the House has already agreed. For instance if the Centre takes over to itself the functions of the police, in case of emergency in a State, it will require certain more financial expenditure. That has been provided by article 277. If this provision is not made, then it would be something like providing a car and not providing the petrol for running the car. Therefore, I say that these three articles are closely knit together and you cannot take away the financial provisions from the rest. With these remarks I support this proposition.
Sir, the question may be put now.
: Sir, Mr. B. Das has been trying to catch your dye since yesterday.
: Sir, the request to put the question is very premature.
: I do not know about that. I have asked Mr. B. Das to speak.
: Sir, Part XI of the Draft Constitution provides the emergency provisions. If you look at pages 129 to 131, you find articles 275 and 276 where you have the original intentions of the Union Powers Committee and the Union Constitution Committee of which Pandit Jawaharlal Nehru was the Chairman. The Drafting Committee seem to have had some inspiration and it has not been explained how it got this inspiration about the financial provisions in article 277, and the subsequent article 278,-additional articles introduced by them. Sir, it is said that India is for world peace and is following in the footsteps of the Father of the Nation. But anyone who reads article 277 can see for himself, and if it is passed it would show that India is preparing to starve all the resources of the Provinces for aggressive Wars against other nations. What does article 277 require ? It Would give that power to the President-this new Frankenstein that has been created by the Draft Constitution, for the President of India is not a democratic President, he is to be something like the South American Presidents who will exercise all emergency powers-all financial powers and even starve the provinces. Articles 249 to 259 have been discussed threadbare on behalf of those under-fed provinces of Assam, Orissa, Bihar and Bengal which are starved for no fault of theirs, and if article 277 is allowed to be passed on the floor of the House, woe betide these poor provinces.
Sir, if I compare the attitude of mind of the authors of the Drafting Committee and that of the predecessor government here,-the former British rulers, I find that the latter did not take away the resources of the provinces during the last great war. They went on, it is true, taxing, they went on extending their taxable capacity by putting extra income-tax, corporation-tax, excess profit-tax and so many other taxes. They brought in higher export duties and so on. Of course, that was taxing the people of the Provinces; but at no stage did the Centre encroach upon the resources of the Provinces. Today we are asked to hand over that power of confiscating the provincial revenues to the President. We are told that an elected Cabinet would be there and the Cabinet would advise the President. We have an elected Finance Minister in the present Government as Member of this House. Why is it that he has not justified his attitude as to why he advised or his Ministry advised the Drafting Committee to encroach or expropriate or usurp the resources of the provinces in time of emergency? Sir, this is a challenge to the democratic spirit of the future Parliament. Do members’ of the Drafting Committee think that the Parliament will not be willing to hand over such absolute power to the dent or the Cabinet when an emergency arises ? It did in other countries. Why should the Indian Parliament be have differently? I may say the future Parliamentarians will be as good, bad or indifferent as we all are at present.
I feel grateful that my honourable Friend Pandit Hirday Nath Kunzru has raised a debate on the important point of the President’s power in regard to usurpation of provincial financial resources. It is like capital levy. It is like taking away by force what others possess. During the last Great War, the Nazis took away iron and metals from the householders not only in their own country but in conquered territories. Why should the Government of India, like the Nazis, expropriate the revenues assigned to the States in an emergency? I cannot understand it at all. Is it charity which the Centre has been giving to provinces, that it would take away that part of the revenue in times of emergency? I find the provinces derive substantial shares of revenue from income-tax and central taxes: Orissa ……….. 24 per cent.Assam ………..22 per cent.Bihar ……….. 20 per cent.Bengal ……….. 19 per cent.U. P. ……….. 18 per cent.Bombay ……….. 19 per cent.
and Madras which has the largest revenue of 55.94 crores has 15 per cent. from the sources of income-tax. Surely this is not a new allocation that we have done today. The present Government is not responsible for this assignment except for certain modifications made by an Ordinance in 1974 whereby when Pakistan came into existence West Bengal which originally had 20 per cent. of income-tax now will have to be content with 15 per cent.
I think, Sir, that such an emergency power is not necessary. Such an usurpation will not be allowed in any democracy, not to speak of India. I listened most attentively to the speech of my honourable Friend Mr. Alladi Krishnaswami Iyer and I felt that his was a legal argument and there was no substance in it to justify the granting of such power to the President or the Cabinet. Everybody knows that the Government of India are now angling to collect all the sales tax on behalf of the provinces and to distribute them. If article 277 will be in the brain of the Finance Minister and his Ministry, they will try to collect all resources, so that provinces will have little which they will collect, and in time of emergency the Centre will apply article 277 and thereby take away whatever provincial resources are collected by the Centre. Who says that the Cabinet of the time in time of emergency will be more democratic than it is today? The sympathy which the Finance Minister and the Finance Ministry have shown over the discussions on the Federal Finances on the floor of this sovereign House shows that provinces will get scant justice, not to speak of scant courtesy, in times of emergency. Suppose we have a Finance Minister who gets fluttered over every little incident, who becomes extra-ambitious. During the Second World War, the Government of India through their Executive Councillors became extra-ambitious and took away by means of Ordinances all our resources–lock, stock and barrel. Who can similarly doubt the power of the Central Government to pass Ordinances as ambitiously or as ignorantly as the British Government did? They imposed “control” prices and supplied all they required for themselves and the Allies and the result is that India is in the grip of inflation and prices are now 365 per cent. of the pre-war level, whereas in America they are somewhere about 200 per cent. and in England somewhere about 100 per cent. That is the effect of the “control” prices and controlled purchases.
Let me hope there will be no war, no emergency. I am for peace in India and peace in the world. But supposing an emergency unfortunately arises, who suffers ? The people. The people have to suffer and supply goods at controlled prices as they did between 1939 and 1947. What does inflation mean ? It means that the provincial governments and the people can not make both ends meet, and if a new Finance Minister is extra-ambitious he may begin taking all the resources of the provinces by asking the President to exercise article 277. How much is that – something like 60 per cent. of the income tax; 40 per cent. of the excise duties and 40 per cent. of the jute duty in certain provinces, it comes to something like Rs. 60 crores now.
If this sovereign House had accepted the Sarkar Committee Report the provinces would have got about 60 per cent. of the proceeds of all sources of Income-tax (which comes to somewhere about 150 crores of rupees) and about 60 per cent. of the share of excise duties which would have meant very large sums. If you will kindly permit me, I shall illustrate my point with reference to Orissa. The total revenue of Orissa is Rs. 6.82 crores of which about 3 crores is derived from the Centre as extraordinary grants. That means Orissa’s net revenue is only Rs. 3.82 crores. The standard of living of people in Orissa is very, very low.
: Are all these details necessary? Will the honourable Member please conclude his speech?
: I would very much like to. But I am only expressing the feelings of the lacerated hearts of provinces which have to be deprived of even the moiety which till now they were getting from the Centre, as share of central taxes. I want to quote certain figures to illustrate the standards of our administrations.
Bombay spends five annas and one pie on Education; U.P. spends 6.5 annas; Bihar spends 3.11 annas; Assam spends 6.2 annas, while Orissa spends 4.1 annas. If you take the question of public health and medicine about which we talk always the figures are more discouraging. C. P. spends 2.1 annas per capita; Assam spends 3.1 annas. Orissa spends much less.
This is the condition of the provinces and today we are asked to be a party to article 277 whereby even the low standard of living in the provinces will become lower still. I am very much perturbed; I am very much disturbed. I think democracy will not lead to autocracy which will create Frankensteins and South, American Presidents who can do anything. I have studied this Constitution carefully. I find the President can any moment become an autocrat: he can dismiss his Cabinet and dissolve the Legislature. It is no use framing a Utopian Constitution which any President can upset; and who knows that the Gandites will rule India all along !
I feel very sad at heart–I fully support the observations of my honourable friend Pandit Kunzru and I have fully sympathy with the lady Members from Bengal, Shrimati Renuka Ray, who spoke so cogently on behalf of her province. Assam has spoken and Orissa has been speaking for the second time. I, therefore, feel that Dr. Ambedkar will see his way, to withdraw article 277 or redraft it to suit the wishes of the aggrieved provinces.
: The question is: “That the question be now put.”The motion was adopted.
: Mr. Vice-President, Sir, I have given as close an attention as it is possible to give to the amendment moved by my honourable Friend Pandit Kunzru, and I am sorry to say that I do not see eye to eye with him, because I feel that in large measure his amendment seems to be quite unnecessary.
Let us begin by having an idea as to what financial relations between the Centre and the provinces are normally going to be. I think it is clear from the articles which have already been passed that the provinces will be drawing upon the Centre, in the normal course of things. (1) proceeds of income-tax under article 251; (2) a share of the central excise duties under article 253; and (3) certain grants and subventions under article 255.
I am not speaking of the jute duty because it stands on a separate footing and has been statutorily guaranteed.
Let us also have an idea as to what the article as proposed by me proposes to do. What the article proposes to do is this, that it should be open to the President when an emergency has been proclaimed to have the power to reallocate the proceeds of the income-tax, the excise duties and the grants which the Centre would be making under the provisions of article 255. The article as proposed by me, gives the President discretion to modify the allocations under these three heads. That is the position of the draft article as presented to the House by the Drafting Committee.
Now, what does my Friend Pandit Kunzru propose to do by his amendment ? If I have understood him correctly, he does not differ from the Drafting Committee in leaving with the President complete discretion to modify two of the three items to which I have made reference, that is to say, he is prepared to leave with the President full and complete discretion to modify any allocation made to the provinces by the Centre out of the proceeds of the excise duty, and the grants made by the Centre under article 255. If I understood him correctly, he would have no difficulty if the President, by order, completely wiped off any share that the Centre was bound to give in normal times to the provinces out of the proceeds of the excise duties and the grants made by the Centre.
: I never said any such thing.
: Your amendment is limited only to the income-tax. That is what I am trying to point out. You do not, by your amendment, in any way suggest that there should be any different method of dealing with the proceeds of the excise duties or the grants made by the Centre under article 255.
: The reason why I cast my amendment in that form is this. In so far as the distribution of the proceeds of any taxes depends on a statue passed by Parliament that power cannot be taken away from Parliament but it does not belong to the President. But so far as income-tax is concerned, the Government of India Act, 1935, envisaged the transfer of the full share of the provinces to them within a certain period and allowed the Governor-General, in case there was an emergency, to delay the transfer to the provinces and thus lengthen the total period in which the provinces were to get their full share. That was the only reason; the inference drawn by my honourable Friend is completely unjustified.
: I am entitled to draw the most natural inference from the amendment as tabled.
: The honourable Member is completely misunderstanding me. Under my amendment the President will have no power to alter the distribution of the proceeds of the Union excise duties.
: I am sorry the honourable member did not make the matter clear in his amendment. And if he wants to put a new construction now and make a fundamental change the amendment should have been such as to give me perfect notice as to what was intended. There is nothing in the amendment to suggest that the honourable Member wants to alter the provisions of articles 253 and 255. It may be an afterthought but I cannot deal with after thoughts; I have to deal with the amendment as it is tabled. Therefore, as I read the amendment, my construction is very natural.
: The honourable Member is utterly unjustified.
: That is the honourable Member’s opinion. My reading is that something new is being put forward now.
: The honourable Member is misrepresenting me and knows that he is doing so.
: The honourable Member is misrepresenting his own thoughts. Therefore, as I understand it, there is no question of my honourable Friend suggesting any alteration in the system of modifying the proceeds of the excise duty and the grant. The only question that he raised is the question of the modification of the allocation of income-tax during an emergency. Even so what do I find? If I again read his amendment correctly, he is not altogether taking away the discretion which is left to the President in the matter of the modification of the allocation of the income tax. All that he is doing is that if the President was to make a modification of the allocation of the income tax as contained in the previous order, then the President should proceed in a certain manner which he has stated in his amendment. In other words, the only difference between the draft clause as put by me and the amendment ofmy honourable Friend Pandit Kunzru is this that, so far as the discretion of the President is concerned, it should not be left unregulated, that it should be regulated in the manner which he suggests.
My reply to that is this : Where is the reason to believe that in modifying or exercising the power of the President to modify the Provisions relating to the distribution of the income-tax he will act so arbitrarily as to take away altogether the proceeds of the income-tax ? Where is the ground for believing that the President will not even adopt the suggestion that the President is going to wipe out altogether the total proceeds which the provinces are entitled to receive under the allocation. After all the President will be a reasonable man; he will know that to a very considerable extent the proceeds of the income-tax do form part of the revenues of the provinces; and he will also know that, notwithstanding the fact that there is an emergency, it is as much necessary to help the Centre as it is necessary to keep the provinces going.
Therefore in my judgment there is no necessity to tie down the hands of the President to act in a particular manner in the way suggested by the amendment of my Friend Pandit Kunzru. It might be that the President on consultation with the provinces or on consultation with the Finance Commission or any other expert authority might find some other method of dealing with the proceeds of the income-tax in an emergency, and the suggestion that he might have then might prove far better than what my Friend Pandit Kunzru is suggesting. I therefore think that it would be very wrong to tie down the hands of the President to act, in a particular manner and not leave him the liberty or discretion to act in many other ways that might suggest themselves to him. I suggest that it is better to leave the draft as elastic as it is proposed to be done by the Drafting Committee; no advantage will be gained by accepting the amendment of my Friend Pandit Kunzru.
As I have said, I have made another amendment in the original draft which left the matter entirely and completely to the discretion of the President and Parliament had no say in the matter. By the new amendment I have proposed it is now possible for Parliament to consider any order that the President may make with regard to the allocation of the revenues; and therefore if the President is doing something which is likely to be very deleterious or injurious to the interests of the provinces, surely many representatives in Parliament who would be drawn from the provinces would be in a position to set matters right. I, therefore, think that the original arrangement should be maintained by virtue of the fact that it is the more elastic than what is suggested by my honourable Friend Pandit Kunzru.
: The question is:”That article 277 be renumbered as clause (1) of article 277 and to the said article as so renumbered the following clause be added :-‘(2) Every order made under clause (1) of this article shall, as soon as may be after it is made, be laid before each House of Parliament .’ “The amendment was adopted.
: The question is : “That with reference to amendment No. 3007 of the List of Amendments and Amendment No. 13 of List I ( Fourth Week) of Amendments to Amendments, for article 277, the following article be substituted:-Modification of the provisions relating to distribution of taxes on income during the period a Proclamation of Emergency is in operation. 277 (1) While a Proclamation of Emergency is in operation the Union may notwithstanding anything contained in article 251 of this Constitution retain out of the moneys assigned by clause (1) of that article to States in the first year of a prescribed period such sum as may be prescribed and thereafter in each year of the said prescribed period a sum less than that retained in the preceding year by an amount, being the same amount in each year, so calculated that the sum to be retained in the last year of the period will be equal to the amount of each such annual deduction: Provided that the President may in any year of the said prescribed period direct that the sum to be retained by the Union in that year shall be the sum retained in the preceding year and that the said prescribed period shall be correspondingly extended, but he shall not give any such direction except after consultation with the States nor shall be give any such direction unless he is satisfied that the maintenance of the financial stability of the Government of India requires him so to do. (2) In this article ‘prescribed’ means prescribed by the President by Order’.”The amendment was negatived.
: The question is: “That article 277, as amended, stand part of the Constitution.”The motion was adopted.Article 277, as amended, was added to the Constitution.New Article 279-A
: Pandit Thakur Das Bhargava may move his amendment No. 73 to add a new article 279-A. There is an amendment of his also to article 280 in exactly the same terms as amendment No.73. I wish to know from him whether he will move this as a new article or propose it as an amendment to article 280.
: Sir, I beg to move: “That with reference to amendment No. 15 of List I (Fourth Week) of Amendments to Amendments after article 279, the following new article be added:- ‘279-A, Any law made, or any executive action taken under article 279 in derogation.’ “
: On a point of order, Mr. Vice-President. This should be moved as an amendment to article 280.
: But he wants now to move it as a new article after article 279.
: Then, article 280 also may be moved and the whole thing considered together.
: I have no objection to that course being adopted.
:I think Pandit Bhargava might move his amendment No. 74 after article 280 is moved. Instead of moving amendment No.73, he may move amendment No.74 after Dr. Ambedkar moves article 280.Article 280
: Sir, I move: “That for article 280, the following article be substituted :-Suspension of the rights guaranteed by article 15 of the Constitution during emergencies.’280. (1) Where a proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III of this
Constitution as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the Order. (2) An order made as aforesaid may extended to the whole or any part of the territory of India. (3) Every order made under clause (1) of this article shall as soon as may be after it is made be laid before each House of Parliament.’ “
Sir, the House will realise that clauses (2) and (3) are additions to the old article. In the old article there was a provision that while a Proclamation of Emergency was in force the President may suspend the provisions for the rights contained in Part III throughout India. Now, it is held that, notwithstanding the fact that there may be emergency, it may be quite possible to keep the enforcement of the rights given by Part III in certain areas intact and there need not be a universal suspension throughout India merely by reason of the Proclamation. Consequently clause (2) has been introduced into the draft article to make that provision.
Thirdly, the original article did not contain any provision permitting Parliament to have a say in the matter of any order issued under clause (1). It was the desire of the House that the order of suspension should not be left absolutely unfettered in the hands of the President and consequently it is now provided that such an order should be placed before Parliament, no doubt with the consequential provision that parliament will be free to take such action as it likes.
: Now Pandit Thakur Das Bhargava may move amendment No.74.
: There are other amendments in List I of Third Week.
: I am coming to all that.
: List I may be taken up first.
: With your permission I propose to move amendment No. 73 for new article 279-A as well as amendment No. 74 to article 280.
: This proposed new article is not on the agenda for today.
: Pandit Thakur Das Bhargava has to move amendment No.74. That is what was agreed to.
: The point is that if new article 279-A is agreed to, I would have no objection to drop the amendment to article 280.
: You agreed some time ago that you would move the amendment for the new article 279-A as an amendment to article 280.
: My submission is that I have given notice of two amendments, Nos. 73 and 74. The substance of both is the same. But, while one seeks to substitute article 280, the other seeks to add article 279-A. At the same time, the objective of both the amendments, is quite separate. Therefore, you may allow me to move both and put both–in fact all–the amendments to the House.
: Very well, you may speak.
: Sir, I move: “That with reference to amendment No. 15 of List I ( Fourth Week) of Amendments to Amendments, after article 279, the following new article be added :-‘279-A. Any law made or any executive action taken under article 279 in derogation of the provisions of article 13 of Part III of the Constitution shall ensure for such period only as is considered necessary by the State as defined in that Part and in no case for a period longer than the period during which a Proclamation of Emergency is in force.”’ “That in amendment No.15 of List I (Fourth Week) of Amendments to Amendments, for the proposed article 280, the following be substituted :-“280 Any law made or executive action taken under article 279 ensure for such period only as is considered necessary by the State as defined in part III of the Constitution and in no case for a period longer than the period during which a Proclamation of Emergency remains in force.’ ” “That in amendment No. 15 of List I (Fourth Week) of Amendments to Amendments, in clause (1) of the proposed article 280, after the words ‘a Proclamation of Emergency’ the words, figures and brackets ‘under article 275(1) of the Constitution’ be inserted”. “That in amendment No.15 of List I (Fourth Week) of Amendments to Amendments, in clause (2) of the proposed article 280, the following be added at the end:-‘for a period during which the Proclamation is in force or for such shorter period as may be specified.'” “That in amendment No.15 of List I (Fourth Week) of Amendments to Amendments, after clause (2) of the proposed article 280, the following new clause be added :- ‘(2A) Any such order may be revoked or varied by a subsequent order.’ ” “That in amendment No. 15 of List I (Fourth Week) of Amendments to Amendments, in clause (3) of the proposed article 280, the following new clause be added at the end :-‘and shall cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament :Provided that if any such order is issued at a time when the House of the People has been dissolved or if the dissolution of the House of the People takes place during the period of one month referred to in clause (3) of this article and the order has not been approved by a resolution passed by the House of the People before the expiration of that period, this order shall cease to operate at the expiration of fifteen days from the date on which the House of the People first sits after its reconstitution unless before the expiration of that period resolutions approving the order have been passed by both Houses of Parliament.'”
Sir, I would beg of the House to consider article 279 which we have already passed and the present article 280 together and in the light of what we have passed under article 279, consider the effect of article 280 along with article 279.
So far as article 279 goes, we have so far agreed as follows :- “While the Proclamation of Emergency is in operation, nothing in article 13 of Part III of this Constitution shall restrict the power of the State as defined in that Part to make any law or to take any executive action which the State would otherwise be competent to make or to take.”
When we have passed this article 279, it follows that as a matter of fact we have given very extensive powers to the executive, in so far as the restrictions which have been imposed by provisos to article 13 in regard to fundamental rights have been practically taken away. While the Proclamation of an emergency is in operation, the executive can change any law and make any law with regard to fundamental rights, of freedom of speech etc., and those restrictions which have been placed by the statue under Section 13 as such power will no longer avail, which means that during the period of emergency the Executive will be armed almost with autocratic powers.
Now, if you will kindly look at 280 it is half not so drastic as article 279. In regard to article 280 as it now emerges from the Drafting Committee the prick of the clause has been taken away. If you will kindly see the original section 280 then the House will come to the conclusion that this section as originally drafted was much more drastic than it is at present. The old article 280 as originally found in the Draft Constitution ran thus :- “Where a Proclamation of Emergency is in operation, the President may by order declare that the rights guaranteed by article 25 of this Constitution shall remain suspended for such period not extending beyond a period of six months after the proclamation has ceased to be in operation as may be specified in such order .”
So that according to article 280, all the rights spoken of in article 25 would have remained suspended. Not only the right to move and the guarantee of the right to move the Supreme Court for implementing these rights was taken away, but the rights themselves were taken away. Now, there is a great difference between the guarantee of moving the Supreme Court being taken away and the rights guaranteed under III being taken away. If the rights were not taken away then the position is very safe and the Supreme Court and other citizens cannot go against the declared law of the country, but only the right to move the Supreme Court by appropriate Pssroceedings is taken away. The laws remain as they are, but if the right to change the law is taken away, as it has been taken away by article 279, a position is created in which the Executive becomes too autocratic. They can do whatever they like; they can pass any law if they can make the Parliament to enact it, so that article 279 is much more drastic in its effect than article 280. If you will kindly see article 279, it appears that during the period of emergency you authorize the executive to take any action untrammelled by the provisions of article 279 and similarly, you authorize the legislature to pass any law, a legislature as it is defined in article 7, without those safeguards and restrictions which the Constitution has in its wisdom taken the trouble to enact in respect of article 13, so that the result will be that if any action is taken or the law is passed during that period, the action and the law will be good and will inure for all time. Article 279 does not say that the action taken or the law is passed during that period, the action and the law will be good and will inure for all time. Article 279 does not say that the action taken or the law passed will only be applicable for the period of emergency or within six months after that and article 279 is totally silent upon that. Therefore, any law enacted during this period will be a good law unless it is repealed or avoided. My amendment seeks to restrict this period and I want that any law passed during this period or any executive action taken during this period under the provisions of article 279 may only inure for the period of the emergency or such shorter period as the State enacting it or the executive taking the action thinks it necessary.
Therefore, independently of what we do in regard to article 280, it is absolutely necessary that you agree to the enactment of article 279-A. Otherwise, the effect will be that the powers taken under an emergency and action taken and law enacted during that period will inure for all time unless it is repealed or avoided. If you accept the amendment, then automatically as soon as the emergency passes away and normal condition return, the effect of any such action or law would be taken away and the action and the law will be automatically repealed and avoided.
In regard to article 280 I would beg of the House to consider its full implication before it considers this article. The wording “emergency” has not been defined anywhere and one of my honourable friends suggested to Dr. Ambedkar to define the word “emergency” and I told Dr. Ambedkar that he will certainly perform a miracle if he succeeded in defining the word “emergency” as the word “emergency” is so fluid and is of such a nature, that you can not possibly define it. It depends upon a particular executive to say whether there an emergency has arisen and an ordinary emergency may soon unnerve the executive of any State. A small bubble may at any time develop into a glacier and even the biggest seeming mountain of truth may just dwindle into a mere scrap of sand. Nobody can foresee or can say beforehand how the actual trouble will develop. Therefore a panicky Cabinet will declare an emergency very soon, whereas a strong and sturdy Cabinet will not declare in any such situation that an emergency has arisen. It will depend upon the nerve and spine of the Cabinet as to how they deal with this question. Therefore, I think that we should not visualize that the present Cabinet shall remain for all time or there will not be cabinets in the future which will perhaps not take the view which our present Cabinet is expected to take. Let us therefore be cautious and see that, we arm the executive with such powers as are necessary, so that the liberties of the people are not jeopardized by a panicky Cabinet. Therefore it is up to us to see that we enact provisions which do not arm the Executive with too much power.
After all is said and done, Parliament is the alternate authority. If we can take away some of the powers which are sought to be given by this article 280 and invest the Parliament with those powers, it would be doing the right thing. It is in that view that I have proposed the other amendments to this article.
The first amendment in this connection to which I would draw the attention of the House is No. 75. So far as this amendment is concerned, I think it is only a clarification. I have pointed out that a Proclamation of Emergency can only be issued under article 275(1). Under article 278 it is not contemplated that any proclamation of emergency can be issued. I only want to make it quite clear that it is only under this article that the power can be taken.
In regard to amendment No. 76, I beg to submit that as I read the amendment of Dr. Ambedkar, I can understand that the proclamation or order may apply to the whole of India or it may apply to a part of India. In so far as the question of time is concerned, if you keep the article as it is and do not incorporate the amendment contained in No.76, in clause (2) it would mean that every order shall remain in force for the full time of its duration in the whole of India or part of India. If you add these words, it would be possible that in certain parts the order may be for a shorter period, and in the rest of India, it may be for the full period. Unless you add this, the object which Dr. Ambedkar has in view will not be fulfilled.
In regard to amendments 77 and 78, I do not want to take much of the time of the House because as a matter of fact, these two amendments have been taken from the original clause which we have already passed about the Proclamation of Emergency. If you kindly refer to article 275, you will see that these two are already there. I want these two safeguards which appear in article 275 in regard to Proclamation of Emergency may also appear in regard to this order also. After all, the first and foremost effect upon the citizens of a proclamation of emergency is that it takes away their fundamental rights. They are affected very vitally. When I understand that an emergency may be as elastic as the proverbial foot of the Chancellor, then my difficulty becomes all the greater. Unless and until Parliament confirms the particular order taking away the guarantee of enforcing the fundamental rights, we will not be safe in this country and no citizen would be safe with his liberty, unless this provision is enacted.
If you look at the present position in regard to articles 279 and 280 you will find, as a matter of fact, this provision of article 280 is not so necessary as it appears to be. One of my amendments is that instead of article 280, we may substitute article 279-A. I wish to take the House with me in coming to the conclusion that the enactment of article 280 is not so necessary as it appears at first sight. So far as the fundamental rights are concerned, article 13 is the principal article. If you take away article 13, very little remains in the Fundamental Rights over which a person should feel enthused or to feel concerned. Article 13 being practically taken away by article 279, what is there to worry any person about fundamental rights? In regard to the personal liberty of the subject and the protection of his rights, article 15 is there. The House will kindly excuse me if I dilate a bit on this provision.
Now, Sir, according to the fundamental rights as they exist today, this article 15 is the greatest blot on our Constitution. By article 15, whatever we had given in article 13 we have taken away. If the adjective law has been sought to be corrected by enacting article 13, and safeguards against the misuse of the powers given under article 13 were provided by the use of the word “reasonable ” before the word “restrictions”, they are all washed away by article 15, because in regard to procedure we have not put in any restriction whatsoever on the powers of the legislature. Under article 15, the legislature is at perfect liberty to pass any law it likes. It can take away all the safeguards that exist today. Under article 15 any legislature is competent to enact that no accused shall be defended by counsel. Any legislature, under article 15 as it exists today, is competent to enact that as a matter of fact, the present provisions relating to arrest, relating to remands and bail, production of defence, appeal etc., can all be abrogated. Under article 15, any special courts with special powers and procedure can be created and the liberty of the subject can be reduced to zero. This is the present position. Unless and until we see that article 15 is righted, there is nothing which you possess can be taken away by article 280. If you take full powers under article 13, what else is there for which one should feel sorry for the deprivation ? If you kindly look at the fundamental rights, you will be astonished to see there is no other such fundamental right which could possibly be taken away by enacting this article 280. In the first place, if you look at those rights one by one, you will come to the conclusions that article 280 does not practically touch many of them. Taking article 9, I do not think that any person will dispute that article 280 touches any of the right in regard to the use of wells, roads, hotels, etc. Similarly in regard to article10 which deals with employment and article 11 in regard to untouchability and article 12 in regard to titles. Article 13 has already been taken away. In regard to article 14, I understand something worse can be done if article 280 is enacted. A person who has committed a crime two months ago may be tried by a law enacted subsequently by virtue of which he may be liable to a greater amount of punishment. Similarly, there can be two convictions for the same offence and the right to move the Supreme Court for immediate remedy will be taken away. In regard to article 15, I have already submitted. If the article 15 remains in its present form, I can predict that after all this Constitution is enacted and all the dust of controversy is over, and Dr. Ambedkar sits down in his bungalow, he will repent the day when he passed article 15 without any safeguards. I appeal to him and to the House that if they really mean well to the people of the country, they must see that article 15 is amended. If article 15 is not amended, this Constitution and these fundamental rights are not worth having. Therefore, I submit so far as article 15 is concerned, the law already provides that Parliament may make any law as regards procedure and thus there is no fundamental right in respect of procedure. So that, there is no other vital fundamental right which this article touches.
In regard to article 16, which deals with freedom of trade, the Parliament already possesses the power to enact laws. Article 17 deals with prohibition of traffic in human beings, and article 18 deals with the employment of children. I do not think any Government worth the name will try to conscript under article 17 one class only. The State is empowered by this article to conscript without discrimination. It is thus more an enabling than a disabling clause. No other fundamental right is affected if article 280 is not passed, in regard to articles 19, 20, 21, 22, 23 which deals with religious and cultural rights and article 24 deals with compensation.
So, that my humble submission is if my interpretation is correct, article 280 only takes away the power guaranteed to the people of moving the Supreme Court alone. The rights are not taken away; the laws are not taken away; the laws will remain as they are. Only I can not move the Supreme Court by appropriate proceedings. The laws will not be taken away except in regard to article 13. If the President takes power uunder this article 280, the laws will remain as they are; only the immediate remedy by appropriate proceedings is taken away. Therefore, my submission is, unless and until you change article 15, I do not care whether you enact article 280. If article 15 is amended or the safeguards are further provided by enacting other articles, as I think they must be and shall be provided in the Constitution, then article 280 would have a meaning. Then article 280 will be a necessary article because it would mean that if emergency is there, the important rights which the amended article 15 will confer will be taken away, and we should see that the Executive is not armed with such powers as to take away all the cherished and vital rights of the citizens. As I have submitted, this emergency may be very serious or may not be serious at all. Suppose there is a war in Kashmir or in any outlying part of the country, I do not see what would thereby happen to Travancore and Mysore, and why the rights of the people there should be taken away. It would depend upon the particular emergency. A panicky cabinet may take away all the rights, without good reason.
Therefore my humble submission is that as ultimately our last resort is the Parliament, Parliament should be given all those powers and should have the last say in the matter and as soon as an Ordinance is passed, it should be subject to the veto of the Parliament and Parliament should within one month be able to say whether it accepts it or not. If there is a Resolution that the order is not accepted, it should be scrapped. Therefore, if you want to safeguard the rights of the people, you must see that article 280 is not passed in the way it is sought to be passed by the amendments of Dr. Ambedkar.
Mr. Vice-President, I beg to move :
“That in amendment No. 15 of List I (Fourth Week) of Amendments to Amendments in clause (3) of the proposed article 280, the full stop occurring at the end be substituted by a comma and the words ‘when it meets for the first time, after such an Order’ be added thereafter“.
Sir, the article 280 is an article which arms the President with drastic powers. If we look to the other constitutions of other nations, we will find that no President is armed with such powers. Unless the French Constitution the President is simply Phantom of the King without Crown. The only power he assumes is that of veto and even that power is scarcely used. During the last fifty years there was no occasion to use such a power. So also under the Swiss Confederation, the President is no clothed with such powers; but curiously enough, the President under our Constitution, instead of becoming a Phantom of a King without a Crown is so to say a Phantom of King with a Crown and also with a Sceptre. Of course he is armed with these powers at the time of emergency but the fundamental rights which every citizen is to enjoy under this Constitution, will be deprived, by passing an order under this article by the President. He has no recourse even to law; but even then there is one sanguine point viz., the clause (3) which states that an order passed by President may be placed as soon as may be after it is made, before the Parliament. My amendment to this clause is that as soon as the Parliament meets for the first time after the President passes such an order, it should be placed before the House of Parliament instead of postponing the matter. My Friend Pandit Bhargava has moved certain amendments and they are quite regular and proper because the article as it stands will simply stun the citizens as they are deprived of all the fundamental rights and if his amendments are accepted, there will be some facilities. So, I support the amendments of Pandit Bhargava.
: Mr. Vice-President, Sir, I beg to move- “That in amendment No. 15 above, in clause (1) of the proposed new article 280, for the word and Roman figure ‘Part III’ the words and figures ‘articles 13 and 16’ be substituted”.
Sir, this proposed new article 280 is also equally drastic. It is just in keeping with other equally drastic clauses which are allied to it. What is the effect of article 280 as it is proposed in its new shape? It may be recollected that this article was moved by Dr. Ambedkar on a former occasion in a milder form. There were serious objections in the House. Dr. Ambedkar desired that its consideration be postponed till he could attend to it and then he has brought in something which is much more drastic, more objectionable and therefore there was not only no consideration of the objections raised but the article has been presented again to the House in a more objectionable from. In its present form it strikes at pending cases also. What is the purport of article 280 ? It is that during the pendency of an emergency the President may by order suspend the right of any person to go to Supreme Court or other Courts which might be empowered in this behalf by Parliament to vindicate his rights under Part III of the Constitution. What are the rights contemplated in Part III of the Constitution ? They are what are called “Fundamental Rights”. It is suggested that those Fundamental Rights should remain, but no one would be able to approach the Court for redress if they are violated. Pandit Bhargava has drawn a distinction which does not really apply at all. He contends that the rights will not be taken away but only the resort to Court for their vindication will be prevented. The right will be there; its existence is not to be denied, but people would be merely prevented from going to Court. This is a wrong way of approach. There is no point in giving anyone any right unless he is also enabled, in case the right is violated, to go to Court. If you say “we give you a property absolutely, but if I take it away you must not go to Court,” that is as good as denying the right itself. I submit taking these two together it amounts to this that the rights are also suspended. What are the rights that are going to be suspended? They are described in the Constitution itself-Fundamental Rights. They are however such rights which should not be in the least affected by the fact that there is an emergency. You must give the President power to act in an emergency. That power is conceded by the House. What is now contended is that needless power, the power needlessly to interfere with fundamental rights should not be given. The powers now sought are absolutely unnecessary and an emergency cannot be solved by refusing to give the people rights which are fundamental. Now, what are the fundamental rights granted by the Constitution, the enforcement of which through Court is prohibited ? I shall briefly point out these rights. They are laid down in articles 9 to 23-A.
Article 9(1) lays down that there shall be no discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Does this article mean that this fundamental right of protection against discrimination is to remain in abeyance when there is a Proclamation of Emergency ? Can any honourable Member conceive of a situation where it will be possible to suppress the rights relating to this, that there should be no discrimination on grounds of religion, sex, and so on ? Does it mean that during an emergency, the State may make discrimination on the ground of religion, or race or caste, sex, or place of birth ? Under article 7 “State” includes the Government and Parliament of India and those of the Provinces and even the “local or other bodies”. I think the obvious implication of the suppression of these rights means that it would enable any Government or even a District Board or a Municipality or a Union Board to discriminate against any person on these grounds. I think nothing can be more absurd than this.
Then we come to clause (1-a) of article 9. There it is said that there should be no disability on grounds of religion, race, caste, sex, etc. etc., in having access to shops, public restaurants, hotels and using wells, tanks, bathing ghats, roads and places of public resort. May I ask whether, during an emergency any section of the people should not be allowed to go to shops, or public restaurants, hotels, use wells, tanks and so forth? I submit these rights can not remain suspended even during an emergency.
Then we come to article 10 which says there shall be equality of opportunity in the matter of employment or appointment. If you suspend these rights during an emergency, it would mean that during an emergency, there should be no equality of opportunity. May I ask what is the point of this suspension ?
Then we come to article 11 which deals with a most important right. By article 11 untouchability is abolished. If there is any observance of untouchability, if there is any discrimination on the ground of untouchability, it is made penal. Do you mean to give the President down to the meanest village Union Board authority to re-impose untouchability? I think this will not solve an emergency but will accentuate it.
Then in article 12, the conferring of titles is prohibited, or rather it says that titles are not to be recognised by the State. Does the suspension of this mean that during an emergency titles will flow from our Governments or from foreign governments and will be recognised by the State? I fail to see how this will solve an emergency.
Then we come to article 13 which guarantees the freedom of speech, and to assemble peacefully and without arms, to form associations and move freely from one place to another and so forth. But these are also hedged in by conditions, that in making the speeches we should not commit libels, slander or defamation; that there should not be violation of decency or morality, that there should not be any attempt through this freedom of speech to effect the security of the State or any attempt to overthrow the State. This freedom of speech has been circumscribed by conditions in such a way that they would be harmless even in time of emergency. Then the same conditions apply to assembling. Anything done against public order such as unlawful assemblies and similar other things are safeguarded. I think, Sir, therefore, that this right to assemble peaceably has been sufficiently safeguarded and conditions imposed so as to make them perfectly harmless. And then the right of forming associations and other things are also hedged in with similar conditions. These fundamental rights have been given to the people in such a way that they cannot be used for any purpose detrimental to the safety of society or to public morals or public peace.
Then coming to article 14(1), it says that there should be no conviction except in due course of law. If you suspend this right, then it would mean that there should be conviction without any law, that you can catch hold of any person who speaks against the Government, or any newspaper writing any article against the Government and send him to jail without the authority of law. In article 14(2), we have also laid down that there should be no double prosecution and no double punishment for the same offence. If you suspend this right, it will authorise any one being punished twice for the same offence as also without the authority of any law. Also no accused under this article can be compelled to give evidence against himself. If this right is suspended, then a Criminal Court may compel an accused to give evidence against himself.
Article 16 deals with trade and commerce, that trade and commerce should be free.
These Sir, in general, are some of the more important fundamental rights guaranteed in so many words by the Constitution. There are others, but it is not necessary to recapitulate them. May I ask what earthly purpose could be served by suspending these rights ? In most cases, the suspension of these rights as I have pointed out would lead to absurdities and in some cases to serious injustice, without in any way helping the State to come out of the emergency. In these circumstances, I submit that the suspension of these rights is not only unnecessary but would lead to hardship and injustice and in many cases to patent absurdities. But my amendment makes some exception in the case of articles 13 and 16. Article 13 deals with the right of freedom of speech, freedom of assembly and so on. These rights may, during an emergency, have to be curtailed in the interest of the State itself. Similarly freedom of trade guaranteed under article 16 may have to be restricted on public grounds. In an emergency consumer goods may be concentrated in the hands of a few who may use them for purposes of blackmailing. So it may be necessary for the State, to interfere with this right during an emergency. I have therefore by my amendment provided that the rights guaranteed under article 13 and 16 may be suspended during an emergency.
Article 280, as it would read along with my amendment is that during an emergency, the President may order that no person shall have the right to move the Court, that the rights under articles 13 and 16 have been interfered with. I have conceded this right of suspension to this extent, though I fail to see to what extent these could be legitimately or usefully suspended even during an emergency. At any rate, I am prepared to give the right to the President to interfere with these rights.
Sir, as I have already submitted an emergency is not a ground for suspending these important and valuable rights. Fundamental rights will cease to be fundamental if they could be suppressed on these flimsy and unnecessary grounds. These are inalienable rights and should not be interfered with, without the State being in the least benefited by such interference. Even during the two great World Wars–the greatest emergencies that can happen to mankind-Courts were never closed. In fact, Indian and English Courts kept their doors open. No one thought that their powers should be curtailed. These rights should be justiciable. Otherwise, it is impossible to say that the rights exist. The very right of violated rights being challenged in court would act as a deterrent upon the State officials acting arbitrarily. The sacred name of the President has been used–I submit exploited–in these articles. As I have already submitted, the President will not act himself. He is not supposed to be acting on his individual discretion. He has always to act on the advice of his Ministry and it is conceivable that the Ministry may be moved to action by some Secretary or Under Secretary who may start the mischief innocently, and so valuable rights which are the essence of liberty, will be suspended in the sacred name of the President.
The feeble provision that orders must be placed before the next sitting of the Legislature seems to be a poor consolation in view of the fact that such order as it passed by the President can not be questioned or criticized or even discussed in the House. So, the mere fact that they are placed before the House without any opportunity of discussing them, I submit, is a poor consolation for those who value individual freedom more than anything else.
I think, Sir, that these powers should be curtailed as much as possible, though everybody will concede that some powers should be given to the President to be exercised which are really needed to meet an emergency. But the powers claimed for the President will suppress the liberties of the people. During the War, the English Courts were open and the Indian Courts were also open and one of the greatest Law Lords – Lord Atkin – when an argument was made that during the war, justice should be so modified and individual rights so curtailed as help the war effort-made a famous pronouncement. He said: “War or no war, justice must go on. His Majesty’s justicecannot be curtailed or in the least affected by the existence of a war.” War is the greatest emergency conceivable, and yet law courts were open to give effect to individual rights. We have not defined emergency. Emergency may mean anything; or, it may mean nothing. A trivial matter may be called an emergency and may be used wantonly to interfere with fundamental rights and liberties of the people with which the emergency may have nothing to do. The rights may be totally irrelevant for the emergency, but yet they will remain suspended and the Courts will be absolutely powerless to give them redress. I submit that these powers can not be given. They can be confined at least to rights guaranteed under articles 13 and 16 as I have submitted. I think the matter is too serious to be passed by a mere majority of votes without any adequate debate by the device of premature closure motions.
: Are you proposing to move No. 17 ?
: No Sir.(Amendment No. 16 was not moved.)
Mr. Vice-President, the draft of the proposed article 280 now before the House is a mere rehash of the old draft of the same article. The House will recollect that on the last occasion, further discussion of this article was held over and the wise men of the Drafting Committee asked for time to put the article into better shape. We hoped-at any rate those of us who had taken an interest in the subject- we hoped that this article would come back to the House in a more presentable form, in a better shape. Our hopes have been disappointed. There is an old saying in Sanskrit that a person tried to do something but got something worse out of his labours:
“Vinayakam Prakurvano Rachaymasa Vanaram”
A person who set out to make an image of Vinayaka–Ganesh–ultimately got out of it a model of monkey. That is what has happened to the labours of the Drafting Committee. The Drafting Committee hoped-or at least we hoped-that the Committee would consider the various suggestions made in the House and embody them in the new draft. But that was not to be. The Constitution has been founded–at any rate, we the founding fathers here have tried to found the Constitution–on what I would call the “Grand Affirmation” of fundamental rights. We have tried to build on that the edifice of democracy, but I find surmounting that edifice is the arch of the “Great Negation”. First, the grand affirmation, then that edifice, at any rate that facade of democracy and surmounting that edifice or facade is the great negation of Part XI the notorious negation of Part XI; and article 280 is to my mind the key-stone of this arch of autocratic reaction.
The draft now before the House has been sought to be amended by my friends Pandit Thakur Das Bhargava, Mr. Munavalli and Mr.Naziruddin Ahmad. I have tabled several amendments to this proposed article which, by your leave, I shall now put before the House. My amendments visualize two, separate schemes. One scheme is to vest this great fundamental power of suspension of fundamental rights completely in Parliament. That is one scheme. If that scheme be not acceptable to the House, I propose a second scheme whereby the action of the president shall be subject at every turn to the consideration and approval or rejection of Parliament. Amendment No. 18 comprises these two sets and according to the order in which they appear in the list, I shall now move them before the House.
I move:”(i) That in amendment No. 15 above, in clause (1) of the proposed article 280, for the words ‘the President may by order declare’ the words ‘Parliament may by law provide’ be substituted.(ii) That in amendment No. 15 above, in clause (1) of the proposed article 280, for the words ‘mentioned in the order’ the words ‘specified in the Act’ be substituted.(iii) That in amendment No. 15 above, in clause (1) of the proposed article 280, for the words ‘the rights so mentioned’, the words ‘any of such rights so mentioned’ be substituted.(iv) That in amendment No. 15 above, in clause (1) of the proposed article 280, for the words ‘in the Order’ occurring at the end of the clause, the words ‘in the Act’ be substituted.(v) That in amendment No. 15 above, in clauses (2) and (3) of the proposed article 280, the following clause be substituted:- ‘(2) An Act made under clause (1) of this article may be renewed, repealed or varied by a subsequent Act of Parliament.’ ”
These as I have already stated, vest the power of divesting or depriving the individual of the fundamental rights guaranteed to him by Part III of the Constitution in Parliament and not in the President.
The second set of amendments provided for the conferral of provisional power to suspend fundamental rights upon the President, subject to its immediate ratification or rejection by Parliament. That set, Sir, is the alternative set which I have tabled, and which by your leave, I shall now move.
Sir, I move:”(i) That in amendment No. 15 above, in clause (1) of the proposed article 280, for the word ‘mentioned’ where it occurs for the first time, the word ‘specified’ be substituted;(ii) That in amendment No. 15 above, in clause (1) of the proposed article 280, for the words ‘the rights so mentioned’ the words ‘any of such rights so mentioned’ be substituted. I am not moving (iii)(iii) That in amendment No. 15 above, for clause (3) of the proposed article 280, the following be substituted :-‘An order made under clause (1) of this article, shall, before the expiration of fifteen days after it has been made, be laid before each House of Parliament, and shall cease to operate at the expiration of seven days from the time when it is so laid, unless it has been approved earlier by resolutions of both Houses of Parliament.'(iv) That in amendment No. 15 above, after clause (3) of the proposed article 280, the following new clauses be added :-‘(4) An order made under clause (1) of this article may be revoked by a subsequent order.(5) And order made under clause (1) of this article may be renewed or varied by a subsequent order, subject to the provisions of clause (3) of this article.'(v) That in amendment No. 15 above, at the end of the proposed article 280, the following new clause be added:-‘Notwithstanding anything contained in this article the right to move the Supreme Court or a High Court by appropriate proceedings for a writ of habeas corpus, and all such proceedings pending in any court shall not be suspended except by an Act of Parliament.”
Now, the matter under discussion today is a very serious one in all conscience and I would appeal to the House not to dismiss it very airily, but to bestow on its mature judgment. As I have already said this article to my mind is the Great Negation; and I am sure that when tempests blow-God forbid that they blow-the weight of this Negation will be so heavy that I am afraid the whole edifice will collapse. It is for that reason that I have sought your leave, Sir, to move these amendments and I would again appeal to the House to consider them earnestly and seriously.
The argument has been very often trotted out that we must have a strong centre. I am all in favour of a strong Centre-especially so in a time of emergency when the security and the stability of the State are at stake. But what do you mean by the Centre? The Centre, I may remind the House, is not merely the Executive. The Centre is Parliament, that is the Legislature, plus the Executive plus the Judiciary. We, are apt to forget this when we speak of a strong Centre. We are inclined to think that by a strong Centre is meant a strong Executive. That is a wholly erroneous conception-a fallacy which should be discarded at the earliest possible moment. The Centre therefore is the Parliament (Legislature), the Executive and the Judiciary. make all the three strong – I agree- but not one at the expense of the other two, not the Executive at the expense of the Judiciary or the Legislature.
The other day the Prime Minister, I believe while addressing some public meeting, referred to the frequent conflict between the liberty of the individual and the security of the State. Yes, I agree that the State should be secure so that the individual may have life, liberty and happiness. But the liberty of the individual is not a thing to be trifled with at the mere behest or arbitrary fiat of the executive. It was the great American thinker Thoreau who said: “At a time when men and women are unjustly imprisoned, the place for the just man and woman is also in prison.” If this article as moved by Dr. Ambedkar were passed today can we say with any degree of assurance, that the liberty of men and women in this country would be worth a moments purchase and would not be trampled under foot without a moment’s notice ? Sir, I do not want to alarm the House and sing a jeremiad, but I fear that such a situation is likely to arise if this article be passed today. As an autocratic negation of liberty this article takes the palm over all other constitutions of the world. Article 279 which we have already passed provides that as long as an emergency proclamation is in force the guarantees of individual freedom as set forth in article 13 will be automatically suspended throughout the Union; and now article 280 denies to the citizen the right of access to courts of law for making complaints about the violation of not only the rights of individual freedom but all other fundamental rights during the period of emergency. A general authorisation of this kind for restricting individual freedom has no parallel anywhere else.
The Drafting Committee took time to prepare a new Draft and they have tried to put up a rehash of the article. I find that the language of this article compares unfavourably with that of the Emergency Powers Act (DORA) passed in England in 1920 which the Drafting Committee have plagiarised in a dishonest fashion. Clause (3) of the proposed Draft reproduces the first part of one of the clauses of that Act, but the second and vital portion of that clause has been conveniently and dishonestly dispensed with. I do not know why this subterfuge has been resorted to. The relevant clause of that Emergency Powers Act reads thus :”If Parliament is then separated by such adjournment or prorogation as do not expire. within five days, a proclamation shall be issued for the meeting of Parliament within five days, and Parliament shall accordingly meet ‘and sit upon a day appointed by that proclamation and shall continue to ;it and act in like manner as if it had stood adjourned or prorogued that day.”
And the further safeguard is this: “Any regulations so made under the Act shall not continue to be is force after the expiration of seven days from the time when they are so laid unless a Resolution is passed by both Houses providing for the continuance thereof.”
This vital portion of the Emergency Powers Act of England is absent from our Draft article.
Then I come to the Weimar Constitution whose provision came very near to this clause but which was still very mild as compared to this. In clause 48 of the Weimar Constitution occurs this provision :”(2) If Public safety and order in the German Reich is materially disturbed or endangered the National President may take the necessary measures to restore public safety and order and, if necessary, to intervene by force of arms. To this end he may temporarily suspend, in whole or in part, the fundamental rights established in articles 114 (personal liberty) 115 (inviolability of dwelling, 117 (secrecy of postal, telegrahic and telephonic communications), 118. (freedom of speech and press), 123 (right of peaceable assembly), 124 (freedom of association), and 153 (guarantees of property rights).”
But even to this there were safeguards. The next clause was to the effect that the President must immediately inform the Reichstag of all measures adopted by authority of this article and that these measures shall be revoked at the demand of the Reichstag. This was the safeguard of the German Constitution.
Under the American Constitution the privilege of the writ of habeas corpus shall not be suspended unless when in case of rebellion the- public safety may require it. But even here the suspension can be authorised only by the Congress whose decision can be tested by the Supreme Court as to whether the conditions under which such suspension would be justified did exist or not. That is so far as the American Constitution is concerned. So also in the Italian, Constitution there are similar safeguards. But, unfortunately, we who Profess to build a Sovereign Democratic Republic in India have no use for such safeguards. We trust the executive implicitly. God grant that our trust be justified. But if our executive demands our trust, why should not the executive trust the judiciary, why should it not repose confidence in Parliament? Is our judiciary, bereft of all wisdom, integrity and conscience that the executive should snap their fingers at them? This is a most disgraceful state of affairs. I do not see how we can build up an egalitarian or democratic State on such a foundation.
It has been suggested that in a time of emergency the State has got to be preserved. By all means preserve the State; but not at the unjust sacrifice of the liberty of the individual. In some cases and on some occasions, the loss of liberty is worse than the loss of life. I for one would claim that liberty is even more precious than life, and the most serious emergency should not enable the State to unjustly deprive the individual of his liberty. That is a great principle and that should be the lodestar or the Pole-star of our Constitution. The right to a writ of habeas corpus is a sacred right in which is enshrined the liberty of the individual : it gives him the right of appeal to the ,Supreme Judiciary. This article before us today destroys this right of the individual.
We want peace and order so that the State will be safe during an emergency. But what sort of peace are your going to have at this rate? What to have at this rate? What sort of security or stability are you going to leave ? The State will be preserved! But it may be that the peace that you thus visualise will be the peace of the grave, the void of the desert. If that is the peace the Drafting Committee’s wise men have in mind, I would rather die than live in such a peaceful situation.
In our passion for making the Centre strong, we are misinterpreting it as the strength of the executive. If we want a strong executive, let us also have a strong legislature and a strong judiciary. I have pleaded that it is not the executive alone that makes the State. We have the Parliament and the Judiciary which, together with the executive, make the State. All my pleadings have fallen on deaf ears. I sometimes tell myself, “O Judgment, thou art fled to brutish beasts, And Men have lost their reason”. Have we come to that stage ? I hope not. I hope, for the good of India, for the good of our fellow men and women who have just emerged from the darkness of slavery into the light of freedom, we shall do something for their happiness and not merely be content with strengthening the hands of a group of people, a tiny coterie or caucus in power. That is not the idea which the Father of the Nation had in mind. As the House well knows he was all for decentraliasation, and not for strengthening the Centre at all. He was for a decentralised State and for giving power to self-sufficient units.
We are discussing the provisions for an emergency. I therefore grant that the Centre should have certain powers. All I plead is that there should be adequate safeguards, judicial safeguards and parliamentary safeguards. None of these safeguards is here in the Draft article. But this re-hashed article has come before the House for consideration and for approval. I believe it will be approved in due course. I have closely followed the provision for emergency powers in the Emergency Powers Act, 1920 of the United Kingdom. It Provides that Parliament must be summoned within five days. Secondly, the decree will expire at the end of seven days unless earlier approved by Parliament. On the same lines I have sought in my amendment No. 4 to provide that any order made under clause (1) of the article shall, before the expiration of fifteen days-India is a vast country of distances compared to England. So for So for seven days I have put in fifteen days be placed before Parliament for approval. If you mean business and if you mean to secure to individuals their liberty, and not merely the safety of the State and the security of the men in power, fifteen days would be adequate time to summon Parliament. I have also provided further on the same lines as the Emergency Powers Act of England that this order suspending the fundamental rights shall expire at the end of one week unless it has been approved earlier by resolutions of Parliament. This is a wise safeguard which I hope the House will consider in all earnestness.
My last amendment-I am not going to speak on my remaining amendments-is No.6 of the Second Week. There I do not object to power being conferred on the President subject to Parliamentary regulation and control. Therefore the last amendment of mine is to the effect that the right to move the Supreme Court or the High Court for a writ of habeas corpus by appropriate proceedings shall not be suspended except by an Act of Parliament.
During the last world war, the British Government here were indulging in the severest forms of repressing for the preservation of their Empire. Mr. Churchill went to the length of saying, “I have not become Prime Minister to preside over the liquidation of the British Empire,” which shows that even Mr. Churchill feared at one time that the Empire was in danger and that it might be liquidated. Though they were thus engaged in a life and death struggle, the British Government did not suspend the right to move the courts for a writ ofhabeas corpus. The famous case of Talpade of Bombay is a case in point. This case came up to the Federal Court and the Chief Justice, Maurice Gwyer held Section 26 of the Defence of India Act ultra vires. This section was subsequently amended as a consequence thereof. It must be fairly fresh in the memory of my colleagues here. I therefore do not wish to dilate upon that matter. As I was saying, even the British Government did not then suspend this important right. But we who are drawing up a democratic Constitution are contemplating a provision for suspending even that right in an emergency.
After all, most of our leaders are telling us that we are today passing through a crisis. By crisis they mean a sort of emergencyb : we have had trouble in Hyderabad, Kashmir, West Bengal and other parts of India. But the Central Government has lived and is getting on very well without proclaiming a state of emergency. None of the fundamental rights or right to move for habeas corpus has been suspended. Even here, on August 15, 1947, when the old Government of India Act was adapted under the India Independence Act, the emergency powers vested in the Governor-General and in the Governors were omitted from the Act as adapted. They were not embodied in this adapted Act of the Government of India and the emergency powers were not conferred upon either the Governors or the Governor-General under the Act of the Government of India, as adapted. We have tided over two fateful years, very difficult years, verycritical years, without any of the emergency provisions or powers being vested in the Governor or in the Governor-General. Sardar Patel told us some months ago that this country is getting more stabilized. In one breath you say the situation is getting better and more stable, and in the very next you try to insert a clause in the Constitution which seeks to deprive the citizen of all fundamental rights in case of an emergency. Dr. Ambedkar might get up and reply: “Oh! It is just written in the Constitution; it will remain a dead letter. I hope we shall not be required to use it or to put it into operation.” I hope we shall never use it. That is what he said on a previous occasion I agree Dr. Ambedkar might say that. I readily grant they are all honourable men, they are all wise men and true, but a Constitution is not meant for Dr. Ambedkar or Pandit Nehru or Sardar Patel; the Constitution is meant not only for this generation : but we are building it for other generations to come, and not for Dr. Ambedkar and the present Government. I hope this Constitution will last for many generations. At times, however, apprehensions arise in my mind; looking at the Constitution as it is being built, as it is being framed by us here, sometimes I apprehend that this Constitution may not last very long. God forbid that my fears should come to pass. But I occasionally fear that the Constitution,- the whole of it, at any rate may not last many more years than one can count on the figures one of one’s hands.’ That is what I feel : I hope I am wrong and I hope I am painting too gloomy a picture; but, Sir, I wish to plead with the House that by all means if you want to save the State, do save it, but do not unjustly deprive the individual of his rights, of his liberties, his fundamental freedoms, which we have in the opening chapter of the Constitution guaranteed to him. Towards the fag end of the Constitution we are taking away with one hand what we have given with the other. Is this the sort of liberty we have fought for? Is that the sort of liberty that we aspired after? Is that the sort of democracy that we are building…….. #emergency, proclamation of emergency, fundamental rights, suspension of fundamental rights, enforcement of rights, enforcement of fundamental rights, powers of president, executive power, suspension of freedoms, autocracy, democracy, parliamentary power, individual freedom, individual rights, habeaus corpus, public safety, democracy, sovereignty, personal liberty, freedom, state security##
: Will the honourable Member kindly bring his remarks to a conclusion? He has been speaking for 45 minutes.
: If you think I am repeating, I shall bow to your ruling, but if I am not….
: I am sorry to say that the Member is repeating his arguments and I shall be very glad if he will kindly conclude his remarks.
: I will take only two minutes more, Sir. I bow to the Vice-President’s ruling and I shall conclude. I wanted to say much more but I shall reserve that for another occasion. I am afraid that the article, if it is adopted by the House as moved by Dr.Ambedkar, is fraught with grave danger to the rights and liberties of the individual guaranteed to him under the Constitution. I fear that by this one single chapter- Chapter XI,- we are seeking to lay the foundation of a totalitarian State, a Police State, a State completely opposed to all the ideals and principles that we have held aloft during the last few decades, a State where the rights and liberties of millions of innocent men and women will be in continual jeopardy, a State where if there be peace, it will be the peace of the grave and the void of the desert I only pray to God that He may grant us wisdom, wisdom to avert any such catastrophe, grant us fortitude and courage. Let me conclude with the prayer of Mahatma Gandhi: “Sab Ko Sanmati De Bhagawan”.
: Mr. Vice-President, Sir, I beg to move: “That in part (vi) of amendment No. 18 above, for the proposed new clause in the proposed article 280, the following be substituted :-‘Notwithstanding anything contained in this article, the right to move the Supreme Court, as guaranteed by article 25 of this Constitution, by appropriate proceedings, shall not be suspended, nor shall any proceedings in respect of such right pending at the date of the Proclamation of Emergency in any court be suspended:Provided that in the event of any cause of action arising in respect of any violation of any of the Fundamental Rights declared or conferred by Part III of this Constitution, against any person of authority, Parliament may, by a special Indemnity Act passed in that behalf, indemnify any such person or authority against the consequence of any such act done bona fide during the period while the Proclamation of Emergency was in force.’ ”
Sir, I have as strong an objection as many of the speakers who have addressed this House on this subject to arming the President with such extraordinary powers extending even to the suspension of the one solitary right which by the express terms of the Constitution is guaranteed, namely, the right to move the Supreme Court for certain prerogative writs whereby any violation of the rights declared or conferred on citizens may be remedied. Here is one right more precious perhaps than any other because it makes other rights workable, real, concrete, and actually experience able; so that if anybody feels aggrieved because of any of the fundamental rights mentioned in Part III being denied, such a person shall be in a position to move the Court which may give him appropriate relief or remedy.
As the article is now proposed a President would be in a position to suspend even this right by an executive order. The amendment of Dr. Ambedkar suggests that having made the order he must place it before Parliament as soon after making it as possible. I confess, I do not see that this is any improvement over the original draft, because, even if you lay an order ex post facto before Parliament, you only invite either acrimonious criticism, which may be of no use or avail whatsoever, of an act already done or make the relations between the Executive and the legislature strained. If you had suggested that before the order is made, Parliament would be consulted, or if you had even suggested that the remarks of Parliament may be given effect to by modification of the order, I could have understood.
: On a point of order, may I know whether the honourable speaker is speaking on the original motion or is moving his amendment ?
: I have moved the amendment.
: He has moved the amendment.
: That being the case, in the article and the amendment proposed by my Friend Mr. Kamath, I am suggesting further by my amendment that this fundamental right, which is the only one right guaranteed in the Constitution, shall in no case be suspended, notwithstanding anything that may have been said in the pre ceding articles. Whatever the emergency, this particular right should not be suspended. As another honourable speaker has mentioned, even if a war is there, the justice of the people, justice of this country shall not be stopped or suspended.
I realise, however, that in an emergency the officers of Government, both civil or military, may not be in a position to wait before taking action. They have to learn, however, that if we are going to live under a free democratic Constitution, whoever does a wrongful act will have to bear the consequences of that act. Anything that he might have thought was required in the interests of the country would not avail him as an answer to an act wrongful in itself. To guard, however, against any undue hardships being imposed upon officers, who act bona fide n the interests of the community and in pursuance of the orders issued for dealing with an emergency, if any fundamental right,-let us say, the freedom of movement of association, or expression,- is violated, any violation would not ipso facto be covered by the proclamation. But subsequently Parliament may pass an Act of Indemnity, enumerating the cases which might give rise to such prosecution, or such suits, or actions against individual officers, and extending the protection in its sovereign capacity as legislature to such persons, and providing a valid defence for any such charge.
This is a procedure very well known in the British Constitution which we have been copying almost ad nauseam in, and here is one case in the British Constitution, where I think we might as well take a lesson from it, and instead of giving a carte blanche as it were, to the President to do or allow any act to be done merely on the score of a Proclamation of Emergency, we would lay down, that though an officer may be acting primarily on his own risk under this order, on a proper case being made out, Parliament may consider the advisability of giving a general or special Indemnity.
What would happen would be, that public servants or officers of the State would be automatically restrained. Instead of using any force or extending their authority in any way they think proper or necessary, they would think twice before taking such steps as may not be permitted by an Act of Indemnity. Or Parliament may not pass an Indemnity Act at all. Here would be a very salutary restraining factor, which I think would be for the benefit both of sound administration and also continued freedom of the citizen.
If you accept this idea, as I hope the sponsors of the article will accept, a provision of this kind, worded as they like, suited to the occasion will amply meet the case. I think much of the difficulty that the previous speakers have referred to, much of the apprehensions that many of us feel as regards the unnecessary extension of the executive authority, would be avoided by this means.
Nowhere in this Constitution is any mention made, so far as I remember, of such a provision as I am advocating here, that is to say, an Indemnity Act. Time and again; those in authority, those responsible for the Draft Constitution, have characterised criticism in this House as being destructive or serving no purpose either for themselves or for the House. Here I make a present of this a constructive proposal, with the very respectable authority of the British Parliament and British History behind it. It is a matter of test whether the sponsors have sufficient regard for the freedom of the citizen to accept even such a suggestion as this. I leave it to their good sense. (Amendments Nos. 20, 21, 22 were not moved.)
I beg to move:
“That in amendment No. 78 of List II (Fourth Week) of Amendments to Amendments, in the words proposed to be added at the end of clause (3) of the proposed article 280 for the words ‘one month’, wherever they occur, the words ‘two months’ be substituted.“
Sir, this is an amendment to an amendment moved by my Friend Mr. Thakur Das Bhargava. The only difference between my amendment and his is, that I propose two months for the submission of the order to the Parliament while he has proposed only one month. Two months are preferable because that period is mentioned in the main article 275. No doubt, Dr. Ambedkar has respected to a certain extent the sentiments expressed in this House when the matter was debated last time. But, he has not gone far enough and has not mentioned any definite period within which an order under this article shall be submitted to Parliament. Under article 275, the main Proclamation of Emergency must be endorsed by Parliament within two months. I do not see why the same effective control should not be given to the sovereign legislature in this matter, which after all, would be the most important consequence of that Proclamation. The suspension of the remedy for the fundamental rights is a very fundamental matter and it should be incumbent on the executive to get it ratified within a short specified period, say two months. I do not see that there should be any difficulty about this. Most probably the order would be issued shortly after the Proclamation is issued, i.e., most probably it may be issued in the intervening period between the issue of the Proclamation and the meeting of Parliament. Thus there would be no difficulty in the Proclamation and the order being simultaneously submitted to Parliament. Even granting that the order may have to be issued after Parliament has dispersed, what happen? Parliament will have to be convened only for this specific purpose. I say, there is no objection. The only argument against this course would be the question of cost. I submit that in matters of vital importance, cost is of no consequence at all. We have deliberately chosen democracy as the form of our Government and after that we should not grudge the cost that might be necessary to make that democracy really effective. Of course, I do not mean to say that there should be wasteful expenditure. Those who are responsible for the conduct of the Government hereafter must so arrange their business that no unnecessary expenditure is saddled on the public purse.
But at the same time in important matters, where important principles are involved, consideration of cost is of no avail at all. It cannot certainly be a decisive factor. The suspension of Fundamental Rights is not only a very important matter but a fundamental matter and I would therefore request Dr. Ambedkar to accept Pandit Bhargava’s amendment, as amended by me.
: Mr. President, Sir, I beg to move : “That in amendment No. 15 of List I (Fourth Week) of Amendments to Amendments at the end of clause (3) of the proposed article 280, the following words be added:-‘and if the House of the People by a resolution passed by it, amends, varies or rescinds the order, the resolution shall be given effect to immediately.’ “
If this amendments is made, clause (3) of Dr. Ambedkar’s amendment would read as follows:- “Every order made under clause (1) of this article shall as soon as may be after it is made be laid before each House of Parliament, and if the House of the people, by a resolution passed by it, amends, varies or rescinds the order, the resolution shall be given effect to immediately.”
During the discussion on this article on the last occasion I had proposed an amendment that for the words “President may by order” the words “Parliament may by law” be substituted. I had hoped that the Drafting Committee had been convinced of the mistake and they would make suitable amendments. I find an improvement has been made over the former Draft, and all the rights conferred by Part III of the Constitution shall not be abrogated automatically but only those rights which the President may declare as abrogated. I think if this article forms part of the Constitution, it will still be an arbitrary denial of the liberties that we are giving in the fundamental rights. I therefore think that either the amendment which I had moved the other day and which has now been moved by Mr. Kamath to this very article 280 should be accepted or at least this amendment of mine to clause (3) of Dr. Ambedkar’s amendment should be accepted. This will at least have the effect that if the Parliament is not meeting and the President thinks that the emergency requires that he shall exercise such powers, this amendment will give him that right; but as soon as Parliament meets, he will bring forward that order and see that that is laid on the table of the House and the House of People shall be entitled to vary it, rescind it or alter it. This should not be objected to. What Dr. Ambedkar wants is that during an emergency, the powers of the President should not be fettered. I am not fettering them. In fact the very proclamation of emergency will come before the House of People within two months and will have to be renewed. So Parliament is the final authority. Then what is the harm if the abrogation of fundamental rights also- if they are made in an emergency- is brought before the Parliament as soon as it meets and Parliament must have the right- particularly the House of people- to amend it, vary or rescind it. Otherwise the most fundamental rights- the most cherished rights that are given in the Chapter on fundamental rights- shall be taken away. I value the rights guaranteed in article 25 very much- the rights of Habeas Corpus and other rights. As I said last time, when we were in jails in 1942, even then during the war the foreign Government did not think it fit to deprive us of the right of Habeas Corpus. So if the power is given to the President to abrogate this right, it will be a slur on our Constitution and it should not be allowed to be included in it.
I therefore think that if Dr. Ambedkar is not prepared to accept Mr. Kamath’s amendment, he should at least accept mine which will meet the point of view of his, that the President will be having the power in emergencies and even to suspend those rights but as soon as Parliament meets, then the order of the President will be liable to be rescinded by Parliament. This is the most modest amendment and if the Drafting Committee thinks over it, I hope they would accept it. Our learned Friend Pandit Kunzru had voiced his great opposition the other day about this article and he had said that this is a very dangerous article and the article should not have found a place in this book but if it is included, at least it must be so modified that the ultimate authority of Parliament is not questioned. If the Parliament has no right to vary or alter his order, then a fundamental right of the Parliament is infringed. You may say it is always open to the House to censure the executive but that is an extreme method and nobody would like to adopt it for simple variation of an order passed by the President. I therefore think that my amendment to this clause will entitle any Member who may like to move for a modification or alteration of the order of the President by a resolution. This is a very modest amendment and I hope Dr. Ambedkar will accept it.
: There is amendment No. 3031 by the Honourable G. S. Gupta.(The amendment was not moved)
: There is an amendment by Mr. Kunzru.
: It has already been moved.
: Mr. Vice-President, Sir, this is a clause which relates to emergency powers in the event of some grave emergency or a national peril existing in the country. Now, what is an emergency? My Friend Pandit Bhargava stated that an emergency can be interpreted in many ways. He is right. It is a very flexible word but it cannot be denied that an emergency is an emergency. Emergency means–according to Oxford Dictionary-a sudden juncture demanding immediate action. One cannot deny that a certain action has to be taken by a Government. May I know whether a democratic government, a government of the people, is going to take an action which will come into conflict with the wishes of the people? Are they going to take any action of such a nature which in the ordinary course it would be said that they want to suspend the Constitution because there is some small disturbance ? That Government cannot exist for a day if it is going to be a democratic government. Therefore that apprehension does not stand for one moment.
I want to know, in the event of an emergency when there is a calamity and when the freedom of the country is threatened, I want to know from my friends who oppose this article whether they wasn’t, like Nero fiddling when Rome was burning, if they want our ministers should be listening to radios or to some music when things may be taking place in a distant part of the country which may disturb our very freedom? If that is the attitude of these friends who oppose this article, then I do not think they have really understood the meaning of this article. This article is to be applied only in the event of a national calamity and when our very freedom is threatened. My Friend Mr. Kamath said that our well-deserved freedom must be preserved and asked why these rights are being taken away, do you want the people to revert back to slavery? I say it is for the very purpose of safeguarding our freedom, our well-deserved freedom during an emergency that I want to give the Ministers sufficient powers to see that no danger comes to our freedom and that we do not revert back to slavery.
: I do not object to that but only provide the necessary safeguards.
: My friends have quoted from foreign constitutions. In the Canadian and Australian constitutions there is no such provision. But there they have the convention that in the event of emergency, the Centre can take all the necessary powers from the provinces. It has by convention been accepted as an inherent power of the Centre to do so, in the event of an emergency. Every Government has such inherent power, this inherent right to take action in the interest of our freedom, for the purpose of maintaining our freedom. If we do not safeguard our freedom in this manner, then I may assure you that our freedom will be in danger. I will go further and say that with such things as are happening I want our government to be invested with all the powers so that we may see that our freedom is not lost. Do my friends want that our freedom and our security may pass into the hands of our opponents and our enemies ?
: Is Parliament your enemy ?
: No, I entirely agree with my Friend pandit Bhargava. I do not consider him an enemy of the country. But there are people outside who are enemies of the country, in this country and also outside, mischief mongers who are out to create mischief. I want to safeguard our freedom against them, and for that purpose I am prepared to sacrifice a little of my own freedom, for the purpose of keeping the country’s freedom intact. I do not want anybody to disturb our freedom which we have won after a great struggle.
Sir, I may tell my Friend Mr. Kamath that even in America, in the United States Constitution, there is provision to this effect.
: Have you read that constitution?
: I have read it, you can also read.
: I have quoted from it.
: Yes, the American Constitution recognises the power in article 1, section 8, clause 18, on the same principle of emergency.
: Is it the text or the commentary ?
: I have given Mr. Kamath the section. He cannot now argue that…..
: It is a misquotation.
: I shall be glad if Members do not interrupt the honourable Member.
: Sir, I strongly support this article. But at the same time, I do feel that some of the objections raised by some of my friends have some justification, that the whole of Part III need not have been suspended. There are in Part III certain clauses which even in an emergency, could be allowed to remain intact. For instance, under fundamental rights article 11 relates to untouchability. May I know whether in the event of an emergency, you want untouchability to be re-imposed? Also there is the article about titles. Do you want titles to be bestowed in an emergency? There is clause regarding begar. Do you want that in an emergency begar should continue? Article 18 says that no child below the age of fifteen shall be employed in mines. If it is an emergency, do you wish that a child of fourteen should go into a mine and work? And then there is article 19 about rights relating to religion, education and so on.
I can understand the argument of my friends as far as these rights are concerned, and I can appreciate that argument, that the Drafting Committee should not have suggested that the whole of Part III should remain suspended during an emergency. Certainly there are many rights, as for instances the right about freedom of speech, of free association etc., which cannot exist during an emergency. That is against the very principle of an emergency. But I do feel that the Drafting Committee need not suggest the wholesale suspension of Part III, where untouchability, titles and such other things are also dealt with. Emergency does not mean that the Government will not function for the day to day work also, but for the purpose of our retaining our freedom such laws, rights and privileges that are given to the people which affect the very existence of the country could be suspended, and must be suspended. But the extraordinary powers of the law can be suspended. With these words, I strongly support the article. I know this would mean taking away some of individual persons’ rights, but I do not mind it, because I want and I am anxious to see that the freedom of my country is maintained and I am sure the friends who have opposed this article are also equally anxious to preserve our freedom. It is only a slight difference in the outlook. Some of my Friends, like Mr. Kamath may say that some other government may come into power and on the ground of emergency upset the whole Constitution. But change of government is always possible in a democracy. A future Government may bring in much worse laws, we cannot say what kind of Government it may be. But in the earlier stages, when we have attained our freedom after great struggle and when we know that there is danger, we should be prepared to lose a little right- although I may say I cherish my rights as much as anybody else- for the purpose of retaining our freedom. With these words, Sir, I strongly support the article.
: Mr. Vice-President, in supporting the amendment moved to the article by the Honourable Dr. Ambedkar, I should like to say a few words. In the first place, the first part of article 280 as now put forward meets the point of view put forward by the Committee on a former occasion, namely that the mere existence of a war is not to result in a suspension of all fundamental rights. What the article says is :”Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III of this Constitution as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the Order.”
It is not intended that the President will suspend all the rights such as were referred to by my honourable Friend Mr. Sidhva which are mentioned in the Chapter on Fundamental Rights. He is quite right in saying that there are rights that do not need a suspension during the period of the war. Such rights will not, and cannot, be suspended. But instead of singling out particular clauses, it is left to the President, who-I have no doubt-will act in a reasonable and proper manner, not in a spirit of vandalism against the Fundamental Rights guaranteed to the citizen in-the Constitution.
The second part of the article says: “An order made as aforesaid may extend to the whole or any part of the territory of India.”
This is to remove any possible objection that the commotion, war or internal disturbance may not extend to the whole of India and may be confined only to a particular part, and therefore there is no need for suspending the Fundamental Rights in every part of the territory of India.
Lastly, it enjoins the President or the Cabinet to place the order before the Parliament as soon as may be after it is made. There is nothing to prevent Parliament from taking any action it likes. The President may suspend, but yet the Parliament may say that there is absolutely no necessity for the suspension of this right or that right. Time and again, it has been mentioned before the House that it is a Cabinet responsible to the Parliament that is taking action in the name of the President. Parliament has a right to take any action it likes with reference to the course adopted. Under those circumstances, there can possibly be no objection to the article.
In this connection, I will remind the House of a famous saying that “a war cannot be fought on principles of the Magna Carta”. Freedom of speech, right of assembly and other rights have to be secured in times of peace but if only the State exists and if the security of the State is guaranteed. Otherwise, all these rights cannot exist. We are envisaging a situation threatened by war, in a country with multitudinous people, with possibly divided loyalties, though technically they may be citizens of India. We trust that the time will come when the citizens of India will not look to far-off countries but we cannot proceed on the footing that in regard to all citizens of this country their loyalty is assured. Freedom of speech may be used for the purpose of endangering the State and resulting in crippling all the resources of the country. If only we realize that the country must exist, that the nation must exist, that the State must exist, if liberty and other things are to be guaranteed, there can be no possible objection to this article.
A reference has been made in the course of this Debate to the American Constitution. I do not know if Members of this House have read a recent book by Prof. Corwin one of the greatest authorities on constitutional law, on the President’s powers. During the Civil War, President Lincoln suspended the Writ of Habeas Corpus. In the American Constitution, power is given to suspend the Habeas Corpus, but it is not mentioned whether the authority to suspend is the Congress or the President. But as a matter of fact the President did suspend the Writ of Habeas Corpus during the Civil War and the American people as a nation in their wisdom, never questioned the President’s power.
I want to refer to another passage in regard to the President’s powers. There is no country in which the President has more dictatorial powers than the United States. Prof. Corwin puts it in these terms on page 317 of his recent book :
“The war power of the United States has undergone a three-fold development. In the first place, its constitutional basis has been shifted from the doctrine of delegated powers to the doctrine of inherent powers, thus guaranteeing that the full actual power of the nation is constitutionally available. In the second place, the President’s power as Commander-in-Chief has been transformed from a simple power of military command to a vast reservoir of indeterminate powers in time of emergency-‘an aggregate of powers-in the words of the Attorney-General Middle. In the third place, the indefinite legislative powers which are claimable by Congress in war time in consequence of the development first mentioned may today be delegated by Congress to the President to any extent, that is to say, may be merged to any extent with the indefinite powers of the Commander-in-Chief.“
That is the position today in America the most democratic country. Here we have the doctrine of Parliamentary sovereignty. Therefore, the Ministry must be acting in close liaison with the Parliament. The moment they act against the wishes of the Parliament, there is an end of their power so far as the powers of the President of the United States are concerned, they are unbridled. He cannot be questioned. Therefore, why quarrel with the powers of a Cabinet-I use the word Cabinet advisedly because in spite of repeated reminders. Members of the House seem to forget that the expression “President” in every article of the Constitution must be understood as a Cabinet responsible to the people. There can be no better and more profitable reading than that of Lincoln’s life.
Now, I should deal with the various objections that have been raised in the course of the debate. My honourable Friend Mr.Bhargava’s point has been answered in the previous part of my remarks, namely, that Parliament has the final voice in the matter. Parliament may rescind any action of the President. It may remove the Cabinet if it so chooses, because the Cabinet is as responsible to the House of the People during the war as it is during peace.
Its life depends upon parliamentary majority. There being continuous liaison between the Cabinet and the Parliament, this bogey of Parliamentary sovereignty need not be put forward at every stage. There is no question of denying the right of Parliament. The only question is how is the Parliament to govern. In times of peace it may govern by every day interfering with the executive at another time it may govern by entrusting the power to the President or the Cabinet in whom they have confidence.Terefore, it is times and circumstances that determine the manner of action of the Parliament whose authority and sovereignty nobody disputes.
Then an extraordinary suggestion has been made that we must pass an Act of Indemnity. What is the meaning of an Indemnity Act? In countries where parliamentary sovereignty obtains an Indemnity Act is generally passed after the war is over. In spite of all Acts and Ordinances, it may be that particular officers may have out stepped the limits of law. In order to guard against infringement of the law and people being molested by action for damages and criminal prosecutions, Acts of Indemnity are generally passed. I would in this connection refer to Professor Dicey’s Book on “The Law of the Constitution” in which he explains the scope and principle of an Act of Indemnity. An Act of Indemnity is not normally passed before the war is over. If Professor Shah means to say that even before the war is over, you can pass an Act of Indemnity, it would be worse than suspension of fundamental rights, because you give a carte blanche to the executive. Thereby you guarantee to absolve them of all acts of lawlessness perpetrated by them. That certainly is not what Professor Shah wants. Therefore, I submit that this proposition which has been placed before the House by Professor Shah cannot meet with their acceptance.
The third point was a legal one raised by Pandit Thakur Das Bhargava, namely, with regard to to article 279 : “while a Proclamation of Emergency is in operation nothing in this Act shall restrict the power of the State to make any law or to take any executive action.” As it is, if a law is passed during the period of Proclamation, it will automatically lapse with the end of the emergency : that is the meaning of article 279. Those who are for limiting the power of the President cannot quarrel with the provision as it is because where the period is restricted to a particular duration, automatically the law will come to an end, unless there is a provision in the Constitution or in the, particular Act giving it a fresh lease of life after the termination of the emergency. Therefore, if anything, my honourable Friend PanditThakur Das’s amendment will give fresh life instead of cutting short the life of the law passed under article 279.
Therefore, under these circumstances, I submit that as the security of the State is more important, as the liberty of the individual is based upon the security of the State and as a war cannot be carried on under the principles of the Magna Carta, or principles of individual- freedom, particularly in a country with multitudinous types of people with possibly diverse loyalties, this provision is very necessary. It will be the life of this Constitution. Far from killing the democratic Constitution-as one of the speakers said-it will save democracy from danger and from annihilation.
With these remarks I support the amendment.
Mr. Vice-President, Sir, I have listened to my honourable Friend Mr. Alladi Krishnaswami Ayyar with the attention he deserves. But what I could not understand is this, that in article 13 certain rights are given. In that very article there is a provision that those rights may be restricted. There are certain other rights given in article 15; in that very article, there is a provision that the law can be made for the restriction thereof. Then again there is article 279 under which the rights given in article 13 can be done away with under emergency declaration. Now my respectful submission is that when there are no rights there are no remedies, and there is no need of article 280, but when there are rights left there must be remedies for them. So, I see no reason in enacting article 280 by taking away the remedy even for the rights that have not been curtailed or taken away under the emergency legislation.
We have heard a lot about emergency. Sir, when two world wars were fought, the right to approach the High Courts of this country for certain fundamental rights was never taken away, even though we were ruled by a foreign power who were fighting for their own safety and the safety of civilization and of the world and we were fid even arise in this ghting for our independence against that power. I do not apprehend such an emergency would ever arise in this land; and there is no need to take away the rights which were not taken away even by the Britishers. After all, liberty is the sweetest thing in the world and you cannot take it away so easily. The end of all Government is the prosperity and well-being of the people. We have had enough of the police state. If under any Government or any constitution a state of emergency arises so often, that Government and that constitution must be ended. If the State is strong and the people are prosperous there can arise no such emergency. You cannot rule by curtailing the rights of the people; you can maintain the constitution only if the people are prosperous and law-abiding. By resorting to police methods no State can continue. Therefore I submit that this proposed article 280 will serve no purpose whatever and it has no precedent in any constitution. Even if there are precedents you have to look to the time and the circumstances in which these constitutions were framed. By enacting this measure you will only give a handle to people who are out to create chaos and anarchy. Sir, you cannot suppress liberty and do away with the authority of the courts. I submit that this article would serve no useful purpose and it should not be passed.
: The question may now be put.
: The question is: “That the question be now put.” The motion was adopted.
: Sir, I am not at all surprised at the strong sentiments which have been expressed by some speakers who have taken part in the debate on this article against the provisions contained in the clause as I have put forward. The article deals with fundamental matter and with vital matters relating to rights of the people and it is therefore proper that we should approach a subject of this sort not only with caution but–I am also prepared to say–with some emotion. We have passed certain fundamental rights already and when we are trying to reduce them or to suspend them we should be very careful as to the ways and means we adopt in curtailing or suspending them.
Therefore my friends who have spoken against that article will, I hope, understand that I am in no sense an opponent of what they have said. In fact, I respect their sentiments very much. All the same I am sorry to say that I do not find possible to accept either any of the amendments which they have moved or the suggestions that they have made. I remain, if I may say so, quite unconvinced. At the same time, I may say that I am no less fond of the fundamental rights than they are.
I propose to deal in the course of my reply with some general questions. It is of course not possible for me to go into all the detailed points that have been urged by the various speakers. The first question is whether in an emergency there should be suspension of the fundamental rights or there should be no suspension at all; in other words, whether our fundamental rights should be absolute, never to be varied, suspended or abrogated, or whether our fundamental rights must be made subject to some emergencies. I think I am right in saying that a large majority of the House realises the necessity of suspending these rights during an emergency; the only question is about the ways and means of doing it.
Now if it is agreed that it is necessary to provide for the suspension of these rights during an emergency, the next question that legitimately arises for consideration is whether the power to suspend them should be vested absolutely in the President or whether they should be left to be determined by Parliament. Now having regard to what is being done in other countries-and I am sure every one in this House will agree that we must draw upon the experience and the provisions contained in the constitutions of other countries-the position is this. As to the suspension of the right of what is called habeas corpus the matter under the English law must of course be dealt with by law. It is not open to the executive to suspend the right of habeas corpus. That is the position in Great Britain. Coming next to the position in the United States, we find that while the Congress has power to deal with what are called constitutional guarantees including the suspension of the writ of habeas corpus, the President is not altogether left without any power to deal with the matter. I do not want to go into the detailed history of the matter. But I think I am right in saying that while the power is left with the Congress, the President is also vested with what may be called the ad interim power to suspend the writ. My friends shake their heads. But I think if they referred to a standard authority Corwin’s book on ‘the President’ they will find that that is the position.
: Will you let me interrupt him, Sir? I am sure he is familiar with Ogg’s Government of America. Perhaps he will regard that book as a standard book.
: Yes. That is not the only book. There are one hundred books on the American Constitution. I am certainly familiar with some fifty of them.
: It is stated there that the best legal opinion is that the right to suspend the privilege of the writ of habeas corpus vests in the Congress and that the President may exercise it only where, as Commander-in-Chief of the Armed Forces he considers it necessary for the security of the military operations.
: Yes, My submission is that in the United States while the Congress has the power, the President also, as the Executive Head of the State, has the ad interim power to suspend.
Now, in framing our Constitution, we have more or less followed the American precedent. By the amendment which I had made, Parliament has been now vested with power to deal with this matter. We also propose to give the President an ad interim power to take such action as he thinks is necessary in the matter of the constitutional guarantee.
Therefore, comparing the draft article and comparing the position as you and in the United States, there is certainly not very great difference between the two. Here also the President does not take action in his personal capacity. We have a further safeguard which the American Constitution does not have, namely, our President will be guided by the advice of the executive and our executive would be subject to the authority of Parliament. Therefore, so far as the question of vesting all the power to suspend the guarantees is concerned, my submission is that ours is not altogether a novel proposal which is made without either reference to any precedent or made in a wanton manner without caring to what happens to the fundamental rights.
Now, having dealt with that question, I come to amendment No. 74 of Mr. Bhargava. I think that is an important matter and should therefore explain what exactly the provision is. His amendment really refers to article 279, although he has put it as an amending to article 280. What he wants is that any action taken by the State under the authority conferred upon it by the emergency provisions to suspend the fundamental rights should automatically cease with the easing of the Proclamation. I think that is what he wants so far as amendment No. 74 is concerned. My submission is that if the article is read properly, that is exactly what it means. I would like to draw his attention to article 279. He will see that that article does not save anything done under any law made under the powers given by the emergency. In order that the matter may be clear to him I would like again to draw his attention to article 227. If he compares the two, he will see that there is a fundamental difference between the two articles. Article 227 is also an article which give power to the Centre to pass certain laws in an emergency even affecting the State List. I would draw his attention to clause (2) of article 227. He will find at the end of it that ‘all acts cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate except as respects things done or omitted to be done before the expiration of the same period. This clause does not occur in article 279. Therefore, not only any law that will be made under the provisions of article 279 will vanish, but anything done will also cease to be validly done. Thus, a person who was arrested under the provisions of any law made under article 279, would when the law has ceased to be in force not be governed by it merely because it has been done under any law made under that article. Under this article 279, not only the law goes, but the act done also goes.
Then I would draw attention to clause (2) of article 8. That again is an important article which must be read with article 279. Article 8 is an exception to the general provisions contained in this Constitution that the existing law will continue to operate. What article 8 says is that any existing law which is inconsistent with any of fundamental rights will be in operative. Article 8 clause (1) deals with the existing law and clause (2) deals with future laws. Thus, ‘any law made under article 279’ would be a future law. When the emergency ceases any law made under article 279 will come under clause (2) of article 8 so that if it becomes inconsistent with the fundamental rights it would automatically cease.
Therefore my submission is that, so far as amendment 74 is concerned the fears expressed are groundless. There is ample provision in the existing law which would cover all the cases my honourable Friend Pandit Thakur Das Bhargava has in mind.
: In article 227 (2) the reference is to a law made by Parliament. It has no reference to any action taken by the executive. Secondly, it speaks of law made by Parliament whereas under article 13 we have reference to a law made by a State as defined therein.
: The State there means both because the word ‘State’ used in article 279 is used in the same sense in which it is used in Part III where it means both the Centre, the provinces and even the municipalities.
: Whereas in 227 (1) the reference is only, to Parliament.
: That is what I say. 279 will also be governed by 8. Therefore any law which is inconsistent with the fundamental rights granted will cease to operate.
Now, I proceed to deal with amendment No. 78 of Pandit Bhargava. In that amendment he has stated that the order issued by the President suspending the provisions of any of these fundamental rights shall be expressly ratified. He says that there must be express ratification by Parliament of an order issued by the President. The draft article proposed by the drafting Committee provides that the ratification may be presumed unless Parliament by a positive action cancels the order of the President. That is the real difference between his amendment and the article as I have formulated.
: But it is very fundamental difference.
: That is a very fundamental thing. In a sense it is fundamental and in a sense it is not fundamental because we have provided that the Proclamation shall be placed before the Parliament. That obligation I have now imposed. Obviously if the Parliament is called and the Proclamation is placed before it, it would be a stupid thing if the people who come into the Parliament do not take positive action and such a Parliament would be an unnecessary thing and not wanted.
: Is it not necessary to say that the law will only be applicable for the period of the emergency and not for shorter period and not for six months after the proclamation?
: I am coming to that, but so far as this question is concerned, it is a matter of mere detail whether the Parliament should by an express resolution say that we want the President to withdraw it, or we want the President to continue it, or we want the President to continue it in a modified form. Once Parliament is called and Parliament has become seized of the matter, is it not proper that the matter should be left to Parliament and its consent presumed to have been given unless it has decided otherwise ? Where is the difficulty ? I do not see anything with regard to the amendment.
: It is one o’clock now.
: We are going to finish this article.
: Mr. Gupte has moved an amendment which is an amendment to the amendment of PanditBhargava, No. 78. He wants that a definite period should be mentioned, that the Proclamation should be placed before Parliament within two months. Pandit Bhargava’s amendment was one month, I think, if I mistake not and my original proposal is “as soon as possible.” Well I do not know whether anybody wants to make this a matter of conscience and if this matter was not guaranteed, we are going to fast unto death. I think “as soon as possible” may be worked in such a manner that the matter may be placed before Parliament within one month, within two months or may be even a fortnight. It is a most elastic phrase and therefore, I submit that the provision as contained in the draft is the best under the circumstances and I hope the House will accept it.
: I now place the amendments before the House.Amendment No. 3028-Volume II Printed List.
: I withdraw that, Sir. (The amendment was, by leave of the Assembly, withdrawn.)
: Amendment No. 3030.
: I withdraw that amendment.(The amendment was, by leave of the Assembly, withdrawn.)
: I now place before the House amendment No. 211 of Pandit Kunzru in the printed Consolidated List.
: I withdraw that amendment.(The amendment was, by leave of the Assembly, withdrawn.)
: I place before the House the amendment in List No. 1.
The question is: “That in amendment No. 15 above, in clause (1) of the proposed new article 280. for the word and Roman figure ‘Part III’, the words and figures ‘articles 13 and 16’ be substituted.” The amendment was negatived.
: The question is:”(i) That in amendment No. 15 above, in clause (1) of the proposed article 280, for the words ‘the President may be order declare’ the words ‘Parliament may by law provide’ be substituted.(ii) That in amendment No. 15 above, in clause (1) of the proposed article 280, for the words ‘mentioned in the order’ the words ‘specified in the Act’ be substituted.(iii) That in amendment No. 15 above, in clause (1) of the proposed article 280, for the, words ‘the rights so mentioned’, the words ‘any of such rights so mentioned’ be substituted.(iv) That in amendment No. 15 above, in clause (1) of the proposed article 280, for the words ‘in the Order’ occurring at the end of the clause, the words ‘in the Act’ be substituted.(v) That in amendment No. 15 above, for clause, (2) and (3) of the proposed article 280, the following clause be substituted :- ‘(2) An Act made under clause (1) of this article may be renewed, repealed or varied by a subsequent Act of Parliament.” The amendment was negatived.
: The question is:”(i) That in amendment No. 15 above, in clause (1) of the proposed article 280, for the word ‘mentioned’ where it occurs for the first time, the word ‘specified’ be substituted.(ii) That in amendment No. 15 above, in clause (1) of the proposed article 280, for the words ‘the rights so mentioned’ the words ‘any of such rights so mentioned’ be substituted.(iii) That in amendment No. 15 above, for clause (3) of the proposed article 280, the following be substituted:-“An order made under clause (1) of this article, shall, before the expiration of fifteen days after it has been made, be laid before each House of Parliament, and shall cease to operate at the expiration of seven days from the time when it is so laid, unless it has been approved earlier by resolutions of both Houses of Parliament.”(iv) That in amendment No. 15 above, after clause (3) of the proposed article 280, the following new clauses be added:-(4) An order made under clause (1) of this article may be revoked by a subsequent order.(5) An order made under clause (1) of this article may be renewed of varied by a subsequent order, subject to the provisions of clause (3) of this article.(v) That in amendment No.15 above, at the end of the proposed article 280, the following new clause be added:-‘Notwithstanding anything contained in this article, the right to move the Supreme Court or a High Court by appropriate proceedings for a writ ofhabeas corpus, and all such proceedings pending in any court shall not be suspended except by an Act of Parliament.”The amendment was negatived.
: Amendment No. 19 falls because it is based on amendment No. 18.
Amendments Nos. 23, 24, 25 and 26 all fall because Amendment No. 3028 has been withdrawn.
Then I proceed to List No. 2
The question is: “That with reference to amendment No. 15 of List I (Fourth Week) of Amendments to Amendments, after article 279, the following new article be added:-“279-A. Any law made or any executive action taken under article 279 in derogation of the provisions of article 13 of Part III of the Constitution shall ensure for such period only as is considered necessary by the State as defined in that Part and in no case for a period longer than the period during which a Proclamation of Emergency is in force.” The amendment was negatived.
: The question is: “That in amendment No. 15 of List I (Fourth Week) of Amendments to Amendments, for the proposed article 280, the following be substituted:-“280. Any law made or executive action taken under article 279 shall ensure for such period only as is considered necessary by the State as defined in Part III of the Constitution and in no case for a period longer than the period during which a Proclamation of Emergency remains in force.’ “The amendment was negatived.
: The question is: “That in amendment No. 15 of List I (Fourth Week) of Amendment to Amendments, in clause (1) of the proposed article 280, after the words ‘a Proclamation of Emergency’ the words, figures and brackets ‘under article 275(1) of the Constitution’ be inserted.” The amendment was negatived.
: The question is: “That in amendment No. 15 of List I (Fourth Week) of Amendments to Amendments, in clause (2) of the proposed article 280, the following be added at the end :-‘for a period during which the Proclamation is in force or for such shorter period as may be specified.'”
The amendment was negatived.
: The question is: “That in amendment No. 15 of List I (Fourth Week) of Amendments to Amendments, after clause (2) of the proposed article 280, the following new clause be added:- ‘(2A) Any such order may be revoked or varied by a subsequent order.’ “The amendment was negatived.
: The question is: “That in amendment No. 15 of List I (Fourth Week) of Amendments to Amendments, in clause (3) of the proposed article 280, the following be added at the end:-‘and shall cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament:Provided that if any such order is issued at a time when the House of the people has been dissolved or if the dissolution of the House of the people takes place during the period of one month referred to in clause (3) of this article and the order has not been approved by a resolution passed by the House of the People before the expiration of that period, this order shall cease to operate at the expiration of fifteen days from the date on which the House of the People first sits after its reconstitution unless before the expiration of that period resolutions approving the order have been passed by both Houses of Parliament.’ ” The amendment was negatived.
: The question is: “That in amendment No. 15 of List I (Fourth Week) of Amendments to Amendments in clause (3) of the proposed article 280, the full stop occurring at the end be substituted by a comma and the words ‘when it meets for the first time, after such an Order’ be added thereafter.”The amendment was negatived.
: Amendment No. 86 does not arise.
The question is: “That in amendment No. 15 of List I (Fourth Week) of Amendments to Amendments, at the end of clause (3) of the proposed article 280, the following words be added:-‘and if the House of the People, by a resolution passed by it, amends, varies or rescinds the order, the resolution shall be given effect to immediately.”
The amendment was negatived.
: The question is: “That for article 280, the following article be substituted:-Suspension of the rights guaranteed by article 25 of the constitution during emergencies.280. (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by part III of this constitution as may be mentioned in the order and all proceedings in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order. (2) An order made as aforesaid may extend to the whole or any part of the territory of India. (3) Every order made under clause (1) of this article shall as soon as may be after it is made be laid before each House of Parliament”.
The amendment was negatived.
: The question is: “That article 280, as amended, stand part of the Constitution”. The motion was adopted.Article 280, as amended, was added to the Constitution.
: This is a day of sorrow and shame. May god help the Indian people.
: The House will now adjourn to Monday 9 a.m.
The Assembly then adjourned till Nine of the Clock on Monday, the 22nd August, 1949.*[Translation of Hindustani speech.]*