The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock, Mr. Vice-President (Dr. H. C. Mookherjee) in the Chair.
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Notice of an amendment has been received from Dr. Ambedkar. Will you please move your amendment, Dr. Ambedkar?
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That in article 39-A delete the words beginning from "secure" up to "separation of", and in their place substitute the word "separate".
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So that the article 39-A, with this amendment would read as follows: -
“The State shall take steps to separate the judiciary from the executive in the public services of the State.”
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The House will see that the object of this amendment is to eliminate the period of three years which has been stated in the original article as proposed by 39-A. The reasons why I have been obliged to make this amendment are these. There is a section of the House which feels that in these directive principles we ought not to introduce matters of details relating either to period or to procedure. These directive principles ought to enunciate principles and ought not to go into the details of the working out of the principles. That is one reason why I feel that the period of three years ought to be eliminated from article 39-A
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The second reason why I am forced to make this amendment is this. The expression "three years" has again brought about a sort of division of opinion amongst certain members of the House. Some say, if you have three years period, then no government is going to take any step until the third year has come into duration. You are practically permitting the provincial legislatures not to take any steps for three years by mentioning three years in this article. The other view is that three years may be too short. It may be that three years may be long enough so far as provinces are concerned, where the administrative machinery is well established and can be altered and amended so as to bring about the separation. But we have used the word "State" in the directive principles to cover not only the provincial governments but also the governments of the Indian States.It is contended that the administration in the Indian States for a long time may not be such as to bring about this desired result. Consequently the period of three years, so far as the Indian States are concerned, is too short. All these arguments have undoubtedly a certain amount of force which it is not possible to ignore. It is, therefore,thought that this article would serve the purpose which we all of us have in view, if the article merely contained a mandatory provision, giving a direction to the State, both in provinces as well as in the Indian States, that this Constitution imposes, so to say, an obligation to separate the judiciary from the executive in the public services of the State, the intention being that where it is possible, itshall be done immediately without any delay, and where immediate operation of this principle is not possible, itshall, none the less, be accepted as an imperative obligation, the procrastination of which is not tolerated by the principles underlying this Constitution. I therefore submit that the amendment which I have moved meets all thepoints of view which are prevalent in this House, and I hope that this House will give its accord to this amendment.
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Sir, Dr. Ambedkar has already moved an amendment, that is, he has added a new article No. 39-A. Is it permissible to a member to amend his own amendment?
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Yes. I would request you all to bear in mind that we have to go to the fundamentals and not to technicalities.
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Mr. Vice-President, Sir, I am very glad that Dr. Ambedkar has moved this amendment and that at this late stage better counsels and sense have prevailed. In article 36 a similar time limit has been mentioned in connection with a very important matter - primary education. I objected to it, then saying that in the directive principles, no such time limit should be fixed. But my voice was one in the wilderness and the article was carried. But I am very glad at this late stage,better sense has prevailed and the time limit in this article has been sought to be removed.
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Yesterday my friend Mr. Das stated that this question of separation of the executive and the judiciary has absolutely changed in view of the attainment of freedom. I was rather surprised to hear such an argument. If a principle, a basic principle was bad at the time of the British regime, I fail to understand how it can be good in free India. The basic principle is this, that the judiciary and the executive functions are combined. The District Magistrate is the prosecutor and he is also the administrator of justice. May I ask whether under these circumstances, can impartial justice be dispensed by the same person who prosecutes and also at the same time sits in judgment over that case?
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AsDr. Ambedkar stated yesterday, ever since its inception the Congress has been stating that these two functions must be separated if you really want impartial justice to be done to the accused persons.
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The arguments advanced yesterday were that in Free India the conditions have changed and that therefore it isnot desirable that these two functions should be separated.The real secret, so far as I know, of those who advocate retaining the same position is that they want to retain their power. If the Honourable Ministers of the Provincial Governments feel that these two should not be separated, it is because they feel the power of appointments, which is in their patronage, would go away from them to the High Court Judges. I am very sorry if that is so. I am glad however that some of the Provinces have already started in this direction; but if any Provincial Governments feel that under the changed condition this change should not come, I will bevery sorry for them because nothing has changed in the very fundamental principle after we had attained our freedom; on the contrary after the freedom or even during the partial freedom that we had, I would have preferred that our Congress Governments should really have taken an initiative in this matter. I am very glad to observe that some of theProvinces are going in that direction. The High Court Benches, even in the British regime, have stated times without number that if you really want impartial justice done, these two departments must be separated.
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While the time-limit has been removed, I expect, Sir,that after the passing of this Constitution or ratherimmediately I should say, I would desire these two functionsshould be separated. I therefore expect that while the time-limit has been removed, the Ministries in the Provinces will realize their duty and see that these two functions are separated in the interests of right and impartial justice.
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With these words I commend the amendment that has been moved, for the acceptance of this House.
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I shall now put this amendment to the vote.
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Sir, it is an important amendment and I hope you will allow the House to express its opinion on it.
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Will you please come to the microphone then?
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Mr. Vice-President, the proposition that judicial functions should be separated fromthe executive was placed before the House yesterday by Dr.Ambedkar. I think that he gave the matter his very carefulconsideration before proposing that this separation shouldtake place in three years.
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Everyone knows the importance of this subject. The demand for the separation of the judicial from the executivefunctions so that the executive may have nothing to do withthe administration of justice, is about fifty years old, andwhenDr. Ambedkar brought forward his proposal I thoughtthat the Government of India were desirous that this reformshould be accomplished as speedily as possible.
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I know, Sir, that this proposition would have beenincluded in the Chapter relating to Directive Principles and would, therefore, not have been binding either on the Government of India or on any State and I wondered whether probably for that reason it was not included among the Directive Principles drafted by the Drafting Committee. But the matter having come before the House, andDr. Ambedkar's proposition having been accepted, it is a matter of regret and deep regret to me that he should now seek to modify the proposition in such a way as to leave it to the discretion of the local Governments when the reform that we have all been insisting on for half a century should be carried out.
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Dr. Ambedkar, while defending the deletion of the period, mentioned in his proposition, said that some people held the view that it might create the impression that nothing was to be done for three years. I wonder, Sir,whether he was satisfied with his own explanation. There is no one here so simple as to feel that the insertion of his proposal in the Draft Constitution would have made the Provincial Governments feel that they could rest comfortably for three years and that such action as they might choose to take might be taken only when this period was about to expire.
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Had this proposition not been passed by the House yesterday the matter would have been quite simple. Frankly,I attach no value to any of the Principles included in the Chapter on Directive Principles, particularly as there is at the commencement of that Chapter an article saying that nothing in that Chapter can be judicially enforced. But the matter having been placed before, and accepted by, the House it is unfortunate that any change should be sought to be made in it. The impression that will be created now will be that the State is not serious in separating the judicial from the executive functions and that it means to take its own time in order to bring about the separation.Had this proposition not come before us, we could still have felt that this separation which is so important to the impartial administration of justice might be carried out within a reasonable period of time. But if the period of three years is now deleted and the matter is left entirely to the discretion of the authorities, the effect of this deletion will be very unfortunate. It is bound to create both in official and non-official circles the feeling that the reform is not considered to be of any great importance,that other reforms may easily be given precedence over it,and that it is merely an ideal to be kept in view by the authorities.
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Therefore, I feel strongly that the House should no t agree now to the amendment proposed byDr. Ambedkar. Why should Dr. Ambedkar or any other person now try to bring about a change? Frankly, I see no obvious reason in favour of such a step. This proposal will be one of the directive principles included in the Draft Constitution. The period of three years will not therefore be binding on any authority.If it is feared that it might not be within the resources ofany province to introduce this reform within three years,the fact that the provision would not have been mandatory would have enabled that province to take a little longer time in order to separate judicial from executive powers. It would not have compelled any province regardless of its financial or administrative position to carry out the proposal in three years. I see no reason therefore why a change should be made. On the contrary, I see every reason why it should not be made. It would be most unfortunate, it would be most undesirable, it would be an act of public disservice, to give the public and the authorities the impression that this vital reform may be postponed indefinitely. I therefore oppose the amendment now proposed byDr. Ambedkar and I hope that it will be strenuously resisted by the House.
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Mr. Vice-President, the Honourable Member who has just spoken referred to the Government of India in this connection. May I, on behalf of that Government, explain the position and express my regret at the fact that the Government of India as such, jointly certainly and largely even individually, is not intimately connected with the proceedings of this House as it ought toand should be? It should not be taken that any matter put forward here comes from the Government of India as such,although the Government is intensely interested in it naturally and would like to place their views before this House whenever it is possible. There are, if I may say so with all respect to this House, a number of matters which they have considered, on which the Government might have liked to place their views before this House, but owing to the stress of circumstances, owing to the fact that while this House is sitting matters of extreme moment are before the Government of India, whether in the domestic field or the international field, that many members of the Governmentare perhaps at the present moment more over-burdened with these problems and with work that even normally is so difficult, that it is their misfortune not to be able to give such time to these very important considerations of the Constitution as they ought to. I regret that on my own part,and I think the loss is entirely mine.
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Coming to this present amendment, if I may again make some general observations with all respect to this House, it is this: that I have felt that the dignity of a Constitution is not perhaps maintained sufficiently if one goes into too great detail in that Constitution. A Constitution is something which should last a long time, which is built on a strong foundation, and which may of course be varied from time to time - it should not be rigid - nevertheless, one should think of it as something which is going to last,which is not a transitory Constitution, a provisional Constitution, a something which you are going to change from day to day, a something which has provisions for the next year or the year after next and so on and so forth. It may be necessary to have certain transitory provisions. It will be necessary, because there is a chance to have some such provisions, but so far as the basic nature of the Constitution is concerned, it must deal with the fundamental aspects of the political, the social, the economic and other spheres, and not with the details whichare matters for legislation. You will find that if you go into too great detail and mix up the really basic and fundamental things with the important but nevertheless secondary things, you bring the basic things to the level of the secondary things too. You lose them in a forest of detail. The great trees that you should like to plant and wait for them to grow and to be seen are hidden in a forest of detail and smaller trees. I have felt that we are spending a great deal of time on undoubtedly important matters, but nevertheless secondary matters - matters which are for legislation, not for aConstitution. However, that is a general observation.
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Coming to this particular matter, the honourable speaker,PanditKunzru, who has just spoken and opposed the amendment of Dr. Ambedkarseems to me, if I may say so with all respect to him, to have gone off the track completely,and to suspect a sinister motive on the part of Government about this business. Government as such is not concerned with this business, but it is true that some members of Government do feel rather strongly about it and would like this House fully to consider the particular view point thatDr. Ambedkar has placed before the House today. I may say straight off that so far as the Government is concerned, it is entirely in favour of the separation of judicial and executive functions (Cheers). I may further say that the sooner it is brought about the better (Hear, hear) and I am told that some of our Provincial Governments are actually taking steps to that end now. If anyone asked me, if anyone suggested the period of three years or some other period, my first reaction would have been that this period is too long.Why should we wait so long for this? It might be brought about, if not all over India, in a larger part of India,much sooner than that. At the same time, it is obvious that India at the present moment, especially during the transitional period, is a very mixed country politically,judicially, economically and in many ways, and any fixed rule of thumb to be applied to every area may be disadvantageous and difficult in regard to certain areas. On the one hand, that rule will really prevent progress in one area, and on the other hand, it may upset the apple-cart in some other area. Therefore, a certain flexibility is desirable. Generally speaking, I would have said that in any such directive of policy, it may not be legal, but any directive of policy in a Constitution must have a powerful effect. In any such directive, there should not be any detail or time-limit etc. It is a directive of what the State wants, and your putting in any kind of time-limit therefore rather lowers it from that high status of a State policy and brings it down to the level of a legislative measure, which it is not in that sense. I would have preferred no time-limit to be there, but speaking more practically, any time-limit in this, as Dr. Ambedkar pointed out, is apt on the one hand to delay this very process in large parts of the country, probably the greater part of the country; on the other hand, in some parts where practically speaking it may be very difficult to bring about, it may produce enormous confusion. I think, therefore, that Dr.Ambedkar's amendment, far from lessening the significance or the importance of this highly desirable change that we wish to bring about, places it on a high level before the country. And I do not see myself how any Provincial or other Government can forget this Directive or delay it much. After all, whatever is going to be done in the future will largely depend upon the sentiment of the people and the future Assemblies and Parliaments that will meet. But so far as this Constitution is concerned, it givesa strong opinion in favour of this change and it gives it ina way so as to make it possible to bring it about in areas where it can be brought about - the provinces, etc. - and in case of difficulty in any particular State, etc., it does not bind them down. I submit, therefore, that this amendmentof Dr. Ambedkar should be accepted. (Cheers).
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Mr. Vice-President, Sir, I rise to lend my whole hearted support to the amendment which has been moved byDr. Ambedkar today.The question of the separation of executive and judicial functions is not only as old as the Congress itself, but indeed it is much older. It was in the year 1852 when public opinion in Bengal began to express itself in an organised form that the matter was first mooted. That was more than thirty years before the Congress came into existence. After the Mutiny, the movement gained momentum and in the early seventies, in Bengal, under the leadership of Kisto Das Paland Ram GopalGhosh, who were the leaders of public opinion in those days, definite proposals with regard to the separation of judicial and executive functions were put forward. Subsequently, the late Man Mohan Ghosh took up this matter and he and BabuSurendranathBannerji year in and year out raised this question in all public meetings.
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When the Congress first met in the session in Bombay in 1885, this reform in the administration was put in thefore front of its programme. Later on, not only politicians of all schools of thought, but even retired officers who had actually spent their lives in the administration, took up the matter and lent their support to it. I very well remember the Lucknow Congress of 1899 when RomeshChunderDutt, who had just retired from the Indian Civil Service,presided. He devoted a large part of his presidential address to this subject and created a good deal of enthusiasm for it. Not only that: even retired High CourtJudges and Englishmen like Sir Arthur Hobhouse and SirArthur Wilson, both of whom subsequently became members of the Judicial Committee of the Privy Council, lent their support to this and they jointly with many eminent Indians submitted a representation to the Secretary of State for India to give immediate effect to this reform.
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Therefore, Sir, the matter has been before the country for nearly a century and it is time that it is given effect to immediately. One of the Honourable Members who spoke yesterday, observed that this matter was of great importance when we had a foreign Government but now the position has changed, and it may not be necessary to give effect to it.Well, an effective reply to this has been given by the Honourable the Prime Minister today. He has expressly stated that it is the policy of the Government, and it is their intention to see that this reform is given immediate effect to.
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Not only that, Sir, another objection was raised that on financial grounds it will not be feasible to separate the judiciary from the executive. Well, to this, again, an effective reply has come Bombay, it appointed a Committee to look into this question.It was presided over by a Judge of the Bombay High Court and consisted of eleven other Members. It submitted its reporton 11th October 1947. I have got a copy of that report in my hands. I do not think it is necessary to give detailedextracts from that report. This Committee has come to the unanimous conclusion that the separation of judicial and executive functions was a feasible and practical proposition. So far as the financial aspect was concerned,they examined the matter in great detail and have estimated that the additional expense will be about ten lakhs of rupees a year. From this you will find that the proposition is such that it is not financially impracticable. It is feasible. The Honourable the Prime Minister of Bombay who happens to be here today tells methat his Government is going to implement the scheme at the earliest possible opportunity.
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I confirm it.
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I am glad to hear that he confirms it. This gives the quietus to these two objections which have been raised, that because of the changed circumstances, because we have attained freedom, it is no longer necessary and that the financial burden will be so heavy that it might crush provincial Governments. Both these objections are hollow.
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One word more I have to say in this connection and that is, that with the advent of democracy and freedom, the necessity of this reform has become all the greater.Formerly it was only the district magistrate and a few members of the bureaucratic Government from whom interference with the judiciary was apprehended, but now, I am very sorry to say that even the Ministers in some provinces and members of political parties have begun to interfere with the free administration of justice. Those of you, who may be reading newspaper reports of judicial decisions lately, must have been struck with this type of interference which has been under review in the various HighCourts lately. In one province we found that in a case pending in a Criminal Court, the Ministry sent for the record and passed an order directing the trying Magistrate to stay proceedings in the case. This was something absolutely unheard of. The matter eventually went up to theHigh Court and the learned Chief Justice and another Judge had to pass very strong remarks against such executive interference with the administration of justice.
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In another province a case was being tried against amember of the Legislative Assembly and a directive went fromthe District Magistrate to the Magistrate trying the casenot to proceedwith it further and to release the man. TheMagistrate who was a member of the Judicial Service and wasofficiating as a Magistrate had the strength to resist thisdemand. He had all those letters put on the record andeventually the matter went up to the High Court and theChief Justice of the Calcutta High Court made very strongremarks about this matter.
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Again in the Punjab, a case has recently occurred inwhich a Judge of the High Court, Mr. Justice Achru Ram,heard a habeus corpus petition and delivered a judgment of164 pages at the conclusion of which he observed that theaction taken by the District Magistrate and theSuperintendent of Police against a member of the CongressParty was mala fide and was the result of a personalvendetta. These were his remarks.In these circumstances, I submit that with the changeof circumstances and with the advent of freedom and theintroduction of democracy, it has become all the morenecessary to bring about the separation of the judiciaryfrom the executive at the earliest possible opportunity.
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My honourable and respected friend,PanditKunzru,thinks that the deletion of the three years limit has gotsome sinister motive behind it. I myself was originally infavour of such a time limit being fixed, but for the reasonswhich have been so lucidly put before this House by theHonourable Prime Minister, it is neither desirable nornecessary. A time limit of this kind may, in certain cases,defeat the very object in view. I have mentioned the case ofBombay where they are going ahead with the separation. I amtold that the Madras Government had also appointed a similarCommittee which has reported on the same lines as the BombayCommittee. Thus we have got two of our principal provincialgovernments taking action in this matter. In the Punjab, aschemefor separation of the judiciary from the executive wasprepared many years ago by a Committee appointed by theGovernment of the united Punjab. I have no doubt that in theEast Punjab also steps will be taken in this direction. Atthe same time we have to take the case of the newly formedadministrations and Indian States who are merging or formingUnions amongst themselves and are States for purposes ofthis clause. Some of these newly set-up administrations mayrequire a longer time limit than three years. Therefore,Sir, fixing a time limit would not be a proper thing.
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For these reasons I support the amendment which hasbeen moved by Dr. Ambedkar today.
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Sir, we are allbeholden to Honourable Pandit Nehru for his frank andstraight advice on this matter, because as I see and as Ihave heard the proceedings of the House, for some days,everybody is trying to put in changes in the Constitution asif it is an election manifesto. Now, Sir, as a lawyer I knowthe difficulties of the lawyer, the difficulties of thelitigants as also the difficulties of the law courts. Myfirst point is this that we are perhaps going to put in thisarticle in the Directive Principles for the betteradministration of justice, and to that end the article thatwe are going to put in would not serve any purpose becausefor better administration of justice, we want first of all just laws. Unfortunately due to our slavery, we have so manybad laws that, however justly they may be administered, theycannot give you justice. Therefore, we must have just laws.I am sure that in the new order we will frame our laws insuch a manner that their administration would give usjustice. Apart from that, it is said here that there must beseparation of the judiciary from the executive. Perhaps wedo not thereby mean that the judiciary should not beexecutive and the executive should not be judicious. Ishould rather say and it is my experience that when theexecutive works, it becomes injudicious and when thejudiciary works, it becomes too dilatory. Therefore, whileseparation of the judiciary from the executive there mustbe, we must at the same time make people know and make thejudicial officers and executive officers know that when anexecutive officer executes, hemust do it judiciously andwhen a judicial officer or a judge executes, he must do itin time. I will give you one example. Sir, in my ownprovince of Orissa, we recently passed a law called theTenants Protection Act. We passed it in all good sense andwe know that it will do people good, but although a year haspassed, I have found that it has never been put intopractice for the simple reason that the law of evidence isso defective, the law of enquiry is so defective and thejudges are so half-hearted. Even though the Act has beenpassed, it has given no good. Therefore, the mere separationof the judiciary from the executive will not serve ourpurpose. We require something more.
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Then again, Sir, I should say another thing which werequire for the proper administration of justice. If weexpect any good from the separation of the judiciary fromthe executive, we must be sure of one thing. The professionof law, being a private business, does not really helpjustice. It feeds on fat fees and forged facts. Lawyers, maybe as much officers of the Courts as the judges but theyhave no prestige unless they earn fat fees. Of course forthis the lawyers may be to blame to some extent, but, Sir,the lawyers have to earn their living. They have to wintheir cases and to win their cases they have to formulateevidence and do all sorts of things, and unless they win oneor two cases, they have no chance. Therefore I say thatunless the professions of law and medicine become a Statebusiness, youcannot have proper administration of justice either forrights or for health and disease. That means that just asgovernment pleaders are engaged, attorneys are engaged, theprofession of law should be paid and controlled by the Stateto the extent that they need only help justice and not haveto promote perjury or forgery to win a case and please theirclients. But now the fact remains that this side wins orthat side loses, but in all sides truth and justice arelost.
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I am supporting the amendment inprinciple. I was just going to say that it is simply aclaptrap device. If we are whole-heartedly for theadministration of better justice, mere separation of thejudiciary from the executive would not do. Sir, I thereforebeg to submit that if we are sincere in our desire forbetter administration of justice, not only should thejudiciary be separated from the executive but the Stateshould also see that law becomes so simple and so few and atthe same time so intelligible to the masses that law isnothing far away and frightful and better administration ofjustice becomes a reality and does not remain a farces
(Amendments Nos. 1010 to 1012 were not moved.)
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We have had a reasonable amount ofdebate, and I would like to put the matter to vote.
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It is avery important matter that is before the House.
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I am afraid there are many morespeakers. I would like to accommodate them, but it is nowimpossible. I am sorry. I shall put this amendment to vote
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The question is: -
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That after article 39, the following new article beinserted:
"39-A: The State shall take steps to separate thejudiciary from the executive in the public services of theState."
The motion has been adopted.
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The question is:
That article 39-A stand part of the Constitution.
The motion was adopted.
Article 39-A is added to the Constitution
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Mr. Vice-President,Sir, I beg to move:
That after article 39, the following new article beinserted and the rest of the articles be renumbered: -
"40. It shall be the duty of the State to protect,safeguard and preserve the places of worship such asGurdwaras, Churches, Temples, Mosques including thegraveyards and burning ghats."
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Today, we are framing the constitution of our greatcountry and the eyes of every individual of our greatcountry are fixed on this Assembly to see what we are doingand what we are granting for them. At this important andhistorical period, Sir, I have moved my amendment, a simpleamendment by which I want that the State should beresponsible for the protection, safeguard and preservationof religious places of worship for all communities of theIndian Nation. There was a time when this country was ruledby the Englishmen, by the foreigners through a constitutionframed by them, - of course a constitution which was foreignto us. In that Constitution, of course, no such idea wasincorporated, for the simple reason that the Britisher hadthe policy to play a game at the cost of the differentcommunities of the Indian Nation. But, now we see that thecountry is ours, the State belongs to us and, of course, wehave a right to claim the protection of our religiousplaces of worship. Unfortunately, Sir, the Father of theNation is not amongst us today; otherwise I can say withoutany fear of contradiction that I must have had his sacredconsent for the acceptance of this amendment. Anyhow, Iappeal to every individual member of the House andespecially to every member of the Congress that they willgive strong support for the acceptance of this amendment andI also appeal to the Honourable mover, Dr. Ambedkar, to givedue consideration to it.
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Sir, only yesterday, the House was bold enough to giveeffect to prohibition. The House was bold enough to giveprotection to the cows of our country and I hope that theHouse will be still bolder to give protection to the religious places of worship.
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Sir, with these few words, I appeal again to everyhonourable Member of this House to give support to thissimple and very light amendment.
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Lastly, I would say that this amendment is the onlyamendment which would show one of the best qualities whichcan be found in this whole constitution for a secular state.With these few words, Sir, I move.
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Mr.Vice-President, Sir, it is certainly the duty of the Stateto protect all places of public worship such as Gurdwaras,Churches, Temples, Mosques and also graveyards and burningghats. The general law of the land - the penal law - has madeample provision for this. The Honourable mover of thisamendment wants three things to be done and they are toprotect, safeguard and preserve. So far as "to protect andsafeguard" are concerned, it is the duty of the State toprotect all places of public worship whether of property,whether belonging to an individual or a community.Particularly, places of public worship will be protected andsafeguarded against all invasion, against all aggression andany molestation. That is one of the fundamental rights thatis contained in the earlier part, Part III. Therefore, itneed not be a directive here. But so far as the preservation of the places of public worship is concerned, there is thedifficulty. We will assume that a temple is abandoned by thecommunity which was erstwhile utilising that for publicworship. Is it the duty of the State to preserve that,though it may have been a place of public worship? Article39 provides that it shall be the obligation of the State toprotect every monument or place or object of artistic orhistoric interest. These it will certainly preserve.'Preserve' includes maintaining or keeping it in the samecondition. If every temple and every gurdwara is to bemaintained, which may be abandoned by a community, then itwill be imposing an unnecessary obligation on the State anddiverting the tax-payers' money to purposes which are notlegitimate charges upon it. On the other hand, it is theduty of the community to maintain and preserve everygurdwara and temple. All that can be expected of the Stateis that it should see that there is no molestation, itshould protect them against all aggression. That is all thatcan be expected and for that there is ample provision in theFundamental Rights and also in the general Criminal Law. Onthe whole, I am sorry to oppose this amendment, however much might like that all these places of worship to whichevery community they might belong must be protected. They must besafeguarded. I am equally one with him that places of Godought not to be molested. There is ample provision already.Therefore, this amendment need not be accepted.
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Sir, I do not accept the amendment.
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I will now put the amendment tovote.
The amendment was negatived.
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The motion before the Houseis:
That article 40 form part of the Constitution.
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There are a number of amendments which I shall read oneafter the other.
(Amendments Nos. 1016 and 1017 were not moved.)
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No. 1018. Dr. Ambedkar.
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I understand Mr.Kamath is moving an amendment.
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I shall be moving my amendment afterDr. Ambedkar has moved his.
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Sir, I move: "thatfor the existing article 40, the following be substituted: -
"40. The State shall -
(a) promote international peace and security;
(b) seek to maintain just and honourable relationsbetween nations; and
(c) endeavour to sustain respect for internationallaw and treaty obligations in the dealings oforganised people with one another."
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Sir, this amendment merely simplifies the originalarticle 40 and divides it into certain parts separating each idea from the other so that anyone who reads the articlewill get a clear and complete idea of what is exactlyintended to be covered by article 40. The propositionscontained in this new article are so simple that it seems tobe super-arrogation to try to explain them to the House byany lengthy speech.
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Sir, I move.
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There are certain amendments tothis which I am calling out. No. 74 Mr.Sarwate.
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Mr. Vice-President, Sir, I beg to movean amendment to this amendment. My amendment stands thus:
"That in amendment No. 1018 of the list of amendments,in article 40, after the words "The State shall - "andbefore sub-clause (a), this new clause be inserted and theexisting clause be renumbered accordingly:-
(a) foster truthfulness, justice, and sense of duty inthe citizens;"
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Sir, the House may note that this amendment seeks toembody the characteristics of the Gandhian ideology.Mahatmaji led our struggle for independence with thesecharacteristics and won it. The House may further note thatthe amendment begins with truthfulness. I need hardly pointout that in Mahatmaji's view, truth was God and if I may bepermitted to say so, I think he attached more importance totruth than to non-violence. There may be exceptions to non-violence; there is none to truth. Those who do not believeeven in God certainly do believe in truth. Society is basedon truth. Therefore, he styled his autobiography not asExperiments after non-violence, but as Experiments aftertruth. Therefore, I commend to this House this amendmentwhich embodies these characteristics.
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I would anticipate certain objections that may beraised to this. The first objection may be that this is toogeneral and too vague to have any practical effect. I wouldsubmit that if this be the objection, I stand in honourablecompany, because, the rest of the clauses probably may besubject to the same objection. I may further point out thatif need be, concrete steps whichcould be taken to bring into effect this amendment can besuggested. But, that is not necessary. I believe after allthe principles given in this Chapter are of such a naturethat they are fundamental, that they are basic, and thatefforts to implement them to the fullest extent would haveto be taken as long as society goes on. That is exactly thedescription which may be applied to this amendment also. Iwould say only a few more words, Sir, I would submit that inthe whole of the Constitution as it stands, one would bepainfully surprised that there is absolutely nothing whichshows one way or the other and which sheds light on thefundamental principles of the Gandhian philosophy.
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Another objection that may be taken possibly is this:this need not be said because such moral principles are notlaid down in a Constitution. I would very respectfullysubmit that it is not at present the model which is followedin Constitutions. For instance, in the Constitution of theU.S.S.R., in the first Chapter which gives the politicalfoundations and economic foundations, they have given thefamous sentence of Marx: "To those who shall need,sufficient shall be given; to this every man must workaccording to his ability; every man must get according tohis needs."
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They have given in this draft Constitution thefundamental ideas which move you to the adoption of the Constitution and accordingly, I would commend this to thegood sense of the House. I am sure that my honourableFriends and colleagues and others, those who have followedMahatma Gandhi in this struggle, would like to have in thisConstitution something which he had given to us, and whichhe has left for us ever to remember and follow.
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Mr. Vice-President, Sir, at theoutset, may I say that a single amendment which I had givennotice of has been split up into three different amendments,numbers 82, 83 and 84. I am not saying this as a carpingcritic; but I find that it would have been better if thishad appeared as a single amendment as I had sent it. I knowour office is heavily overworked and I appreciate that theyare doing very well in the face of the heavy odds which theyare contending with. I shall read it as one amendment byyour leave. It will read thus.
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I understand that they have beenbroken into three amendments because you seek to makealterations in three different places - not continuously.That is a technical explanation for a technical objection.
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If the three amendments are takenseparately and not together, they will have no meaning.Anyway that is a minor objection. I do not want to press it.With your permission, Sir, I would like to read it as oneamendment. Sir I move -
"That in amendment No. 1018 of the List of Amendmentsin article 40, after the word 'shall' the words 'endeavourto' be inserted, in clause (b) the words 'seek to' bedeleted; in clause (c) the words 'endeavour to' 'bedeleted".
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So that if this amendment be accepted by the House theamendment of the Drafting Committee will read as follows: -
"The State shall endeavour to (a) promote internationalpeace and security; (b) maintain just and honourablerelations between nations; and (c) sustain respect forinternational law and treaty obligations in the dealings oforganised people with one another."
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This amendment seeks only a slight structural change inthe amendment brought forward by Dr. Ambedkar so as to bringout or indicate the directive character of the principleembodied in article 40. It is recognised and it has beenalways India's endeavour to promote international peace andsecurity and to enhance respect for international law andtreaty obligations. I think, Sir, and I am sure the Housewill agree with me when I say thatIndian with her ancient cultural and spiritual heritage andher tradition - centuries old tradition of non-aggression – isbest qualified to enhance respect for international law andtreaty obligations. It is common knowledge that within thelast thirty years regard for international law and treatieshad sunk to a low level and treaties are regarded as merescraps of paper. I hope that in the new world in which weare living today and in which we are playing and are goingto play such a vital part, we will be able to bring about avital change in international relations, so that at an earlydate we will have really one world Government or one Super-State to which the various nation-States of the world willhave surrendered part of their sovereignty and to which allthese nation-States will owe willing allegiance and willaccept the Sovereignty of this Super-State. I do not wish toadd anything more but I will only content myself with saying that in these days there is a tendency to regardinternational relations as not of paramount importance, butthat tendency ought tobe curbed, and we ought to give moreattention to international affairs so that the world canreally become one free world.
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My friend Mr.Sarwate's amendment does not deal withthe subject contained in article 40. Mr.Sarwate will seethat article 40 deals with international relations and theamendment that he has moved is something which deals withthe qualities of citizens in India. I do not think that isreally relevant to the article under consideration and Ithink it cannot find a place here. Sir I move my amendmentsNos. 82, 83 and 84 as one amendment to Dr. Ambedkar'samendment No. 1018.
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Prof. ShibbanLalSaksena. Yours isthe same as Mr.Kamath's.
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Sir, I do not move.
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Amendment No. 1019 –Mr. K. T. Shah.
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Mr. Vice-President,Sir, I beg to move-“That for article 40, the following besubstituted:-
“40. The Federal Republican Secular State in Indiashall be pledged to maintain international peace andsecurity and shall to that end adopt every means to promoteamicable relations among nations. In particular the State inIndia shall endeavour to secure the fullest respect forinternational law and agreement between States and tomaintain justice, respect for treaty rights and obligationsin regard to dealings of organised peoples amongstthemselves."
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Sir, in commending this motion to the House I wouldbegin by recognising at once that, as far as the surfacegoes, there seems to be not much difference in the idealsought to be attained by my amendment and those in thewording of article 40 as it stands. The difference mayappear to be the difference of wording only. I submit,however, that though the difference seems to be adifference, superficially judging, of wording only, to me atany rate the difference in wording seems to conceal adifference of approach, a difference of out-look, perhapsalso a difference in intention. I would urge, Sir, that weshould leave no room for doubt about this matter. I willpoint out for instance that the original clause as it standrequires -
"That the State shall promote international peace andsecurity by the prescription of open, just and honourablerelations between nations, by the firm establishment of theunderstandings of international law as the actual rule ofconduct among governments and by the maintenance of justiceand respect for treaty obligations in the dealings oforganised people with one another".
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Now I have emphasised in this connection that by sucharticles in our Constitution, we want to convey, not merelysome vague promise or endeavour to promote, or even anobligation to promote international peace and security etc.I want, first and foremost, the State in India to be pledgedto promote international peace and security.
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The recent wrangles that we have seen in theInternational Security Council of the U.N.O. in regard forinstance, to disarmament, the entire history in fact for thelast twenty years or so of the problem of disarmament, wouldgo far to convince any impartial observer that the powerfulnations of the world do not really intend to disarm. They donot desire peace and security for peoples, but only fortheir friends and associates, and of course, for themselves.Now so long as you continue to indulge in a race betweenyourselves as to who shall disarm first, it is unlikely thatyou would be finding any great progress in an all-arounddisarmament, as the first step to securing internationalpeace. I would submit that somebody will have to make abeginning and such a beginning cannot be made unless anopen, frank declaration of policy, pledging a nationunreservedly to peace, to the maintenance of internationallaw and friendship is given. Unless that is given, it wouldbe impossible to make a real beginning in the task of all-round disarmament and securing and maintenance of peace.
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We are, I admit, living today in a heavy atmosphere ofall-round distrust and suspicion. And in that atmosphere, it is impossible to find people in any country willing toexpose their own national security and independence, bytaking the first step towards real disarmament. For us,however, in this country, I venture to submit to this House,there have been the teachings and the example of our greatleader who made Non-violence, most clearly and unmistakablythe rule of conduct, not only for individuals but also fornations. That non-violence was not, as I am afraid somepeople have been inclined to believe, a mere matter of,shall I say, political chicanery or practical expediency. Itwas a matter of religious belief, at least with him whopreached it.It, therefore behoves us who claim to befollowing in this footsteps, and who claim to uphold histeachings, that this State at least, of which he has beenproclaimed the father, should be pledged from the outset tothe maintenance of peace.
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May I, in this connection recall to this House the verycategorical declaration which Mahatma Gandhi made at the timeof the Round Table Conference which he attended. He saidthat if he got Swaraj, if the Congress was master in thiscountry, one of the first things he would advise it to dowould be to disband the army and the police, and anything else which savoured of violence in the organization of theIndian State. I do not know whether you would be prepared atthis time, and living under the circumstances in which weare living, to carry out literally such a desire as that.But I know this, that unless we make a beginning, and pledgeourselves to the maintenance of peace, and to ensuresecurity to all countries, we shall be making theseprofessions sound too hollow to be believed. We would thenindeed be in the good company of people who make loudprofessions for the maintenance of peace, but at the sametime go on arming themselves to the teeth, making up pilesof atomic bombs and threatening each other at every crisis,which is of their own creation, so that peace seems to be asdistant as ever and certainly not as permanently establishedas one would desire it to be.
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There are other circumstances, Sir, which also inclineme to place this categoric declaration before the House, anddesire that it be incorporated in our basic Constitution.The possibility merely of promoting peace and respect forinternational law in the world today may involve us in thosecombinations of nations which are taking place whereby rivalimperialisms seems to be arrayed against each other. Thesecombinations involve each part, each associate and each allyin their own designs for which we may have no taste. It has,in the past history, been our common complaint, that we havebeen dragged against our will, without our consent, into theimperialistic, aggressive wars of Britain. Now, when we arefree, now when we may claim toshape our own foreign policy, and determine our relationswith other people ourselves, would it not be as well for usto declare that we at least from the start, shall pledgeourselves to peace that we as a people will take an oathwhereby for no reason shall we resort to arms, to settle ourdifferences with other countries, and with other peoples. Ifwe are prepared to do so, then I do not see why we may notaccept the amendment I am placing before the House.
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Sir, reasons less idealistic than those I have so farreferred to also indicate a course which I have nowproposed. We are not only comparatively very poor in thematter of armaments, we are not only backward in all thematerial equipments that ensure some success in modernwarfare, but we have not, I venture to think, thatindustrial background, that background of very highlydeveloped modern mechanical or chemical industry or thescientific technique which alone is an assurance forsecuring adequate armament from our own resources, and so achance for victory in the end, and for making an effectivecontribution for the maintenance of peace, at least forthose, at any rate who believe in securing peace by pilingup armaments.
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We have been, I see, buying second-hand materials, likethe cruiser that was ready for the scrap heap which we aresupposed to have bought recently, or planes or other arms.Very often these weapons and vehicles are nothing more thanwhat is designed for the scrap heap by their originalowners, and these are unloaded upon us, and I do not know atwhat price. In any case, what I mean to say is that we arecompletely dependent, for our initial supplies of suchmaterial, upon outside producers.
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And Sir, the mischief of this state of affairs does notend there. Modern armaments are sohighly specialised, partsof these weapons and vehicles and instruments are soextremely standardised and inter-changeable, that once youbegin to get your supplies of materials for warfare from aparticular source, we shall be bound for ever to thatparticular source. If you change, the armament materialalready acquired will prove futile and useless.
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Under these circumstances, for us to get involved inany particular combination, which compels us to model ourarmies, navies and air-forces upon the organizations andequipments of other places, and by keeping pace with them,so to say, in the race for armaments and ever more armament,would to my mind, be to spell disaster, and continueddependence in a most vital particular upon others which weshould do our best to avoid.
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The one thing that seems to me to be the best guaranteefor avoiding any complications of this kind is here and now,to take a vow, so to say, pledge ourselves, as a peopleagainst any form of warfare, and for ever stand to maintainand uphold peace and international security for allcountries of the world including our own. This, Sir, is nota matter of verbal profession only. I hope nobody wouldthink that this implies mental reservation which, I for one,would utterly denounce. This is an expression as much of and idealism that has governed our actions and policies so far,as also of material consideration which I for one cannotomit placing before the House in commending this motion to it.
(Amendments No. 1020 to 1024 were not moved.)
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Amendment No. 1025 in the joint names of ShriDamodarSwarup Seth and ShriMohanlalGautam.
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Sir, I move:
That in article 40, the following words be added at theend:
"It shall also promote political and economicemancipation and cultural advancement of the oppressed andbackward peoples, and the international regulation of thelegal status of workers with a view to ensuring a universalminimum of social rights to the entire working class of theworld."
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Sir, article 40 so far as it goes appears to beappropriate and good, but unfortunately it does not go farenough. While it rightly lays stress on promotion ofinternational peace and security, it sadly ignores some ofthe basic causes which generally lead to conflagration andconsequent devastation and destruction of the world. In thisarticle nothing has been said about political and economicemancipation of the oppressed and backward people, nor hasanything been said about the ensuring of minimum of socialrights to the entire working class of the world through international regulation of their legal status.
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It is clear that as we see, unless the basic causes ofbreach of peace and security are removed, it will not bepossible to maintain peace, national or international, bysimply arriving at an understanding between nations andnations. The continuance of the oppressed and backwardpeople in this world has generally been a great menace toworld peace. It offers temptation and encouragement to theexploiter and the blood-sucker in his nefarious job ofexploitation and blood-sucking. It extends the hands ofcapitalism and nourishes imperialism and colonialism, pavingthe way for regional and international warfare.
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So far as the working class is concerned, we see thatit has not yet been able to secure even the universalminimum of their social rights. The workers of the worldeven today are the salt of the earth; it is they who producewealth, it is they who make the world worth living in, butwe see that they are nowhere living in a comfortableposition. We see everywhere in this world that millions andmillions of them are beingchanged into beggars without anyhomes or hearths. It is a point worth consideration that,when the workers who produce all the wealth of the world arenot in a position to maintain themselves, it is difficult toconsider who else will be able to live. I ask in allhumility, when the salt has lost its savour wherewith is itto be salted? When the workers of the world die, who elsewill live in this world? India was till the other day anoppressed nation and I wonder if even today it is countedamongst the progressive people. It is therefore essentialthat now when we are making the Constitution of free Indiawe, both in national and international interests, lay trueemphasis on political and economic emancipation of theoppressed and backward classes and no ensuring the universalminimum to the entire working class of the world throughinternational regulation of their legal status the lack ofwhich so long has been causing breaches of peace andsecurity. Unless that is done, Sir, I am afraid any effortsto promote peace and security will not be possible. Itherefore hope that my amendment which is apparently veryinnocent and harmless will be accepted by this Houseungrudgingly.
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Mr. Vice-President,Sir, I am here to support the amendment moved by Dr.Ambedkar, and to say a few words in general on article 40. Ihave promised you, Sir, to be very brief and I may say Icannot help being relevant.
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In supporting the article, I wish to say a few wordsabout two or three things: The position of international lawtoday in the light of recent history; the relations betweenthe different nations, and the role or the part - the verygreat part - that our country has to play in regard to thedifferent nations.
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Mr. Austin, a great jurist, says that there is no suchthing as international law at all - if there is anything it is only positive morality. Very briefly he gives threereasons: that there is no legislature, no judiciary, noexecutive. In saying that there may be positive morality Ithink even there he is wrong. If there were to be moralityamongst nations, well, we would not have all that has beengoing about. If there is a morality amongst nations today it is the morality of robbers. If there is any law today it isthe law of the jungle wheremight is right. That is why I think the part that India hasto play and has played, is covered by [[[Dr. Ambedkar'samendment which has not only verbal elegance to recommend itbut also the intention that the country should take tocertain actions if necessary. The part that India is to playis certainly very important because foundations ofinternational morality have to be laid and only a countrylike India with its spiritual heritage can do it.
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In support of Austin we find jurists like Gray. On theother hand, there are some international jurists like. Hall,Westlake, Oppenheim and others who, because of theirexcessive zeal and anxiety to give international law a nameand a shape, argue almost feverishly - somewhat childishly,if they are to be summarised - that is what they appear.Their contention is that it is very necessary to haveinternational law and therefore we have international law. Imight make it appear stupid by saying, "I think it isnecessary for me to have a thousand pounds in my pocket; andif I think that I have a thousand pounds in my pocket, myplace would be in the lunatic asylum". Their wishes arefather to their thought, and if wishes were horses beggarswould ride; if there were to be an international law, peacewould prevail. But that is unfortunately not the position.Mr. Brown, Jennings and others sit on the fence and takethe middle course. They say that international law isneither a panacea nor a chimera. It is a thing in theprocess - it is growing, it is becoming. I subscribe to acertain extent to this view that if nations, andparticularly if India were to lead the way, we may have somesort of international law inspite of all the chaos that wesee today. Some efforts made so far I may refer to, within acouple of minutes (that I have got), in giving certainsubstance to the theories of the international jurists. TheLeague of Nations, as you know, was an inglorious failure,unfortunately. Why? Because it was more or less a league ofrobbers. I met a friend of mine, who explained to me thereasons why the League of Nations failed so ingloriously.His father had told him: The headquarters of the League weresituated in Switzerland at Geneva; salubrious climate,majestic Alps, sumptuous Swiss food, appetising women,exotic music and the hall for debate was something that gavesufficient exercise to the vocal organs - and the League cameto nothing. It could not come to anything, because it was aninstitution meant to perpetuate a wrong that was perpetratedby the Treaty of Versailles. After the League, its successoris the United Nations. This also seems to be a weak,pusillanimous and impotent agency. But our Prime Ministerhas done a very wise, very diplomatic and morally also avery sound thing by lending his support to this weak agency.An agency which is meant for good things must bestrengthened and I think the Article that we have in thedirective is meant to be directed towards that particularend. India, as I said, has a spiritual heritage. The missionof India is the mission of peace. Right from Ram Tirth andVivekananda down to Tagore and Gandhiji, if he has doneanything, has very much strengthened it. Throughout history,it is not because we have been weak but because it has beenin our blood that we have been carrying on this mission ofpeace. Non-violence is in the soil and in the heart of everyIndian. It is not something new. Gandhiji, if he has doneanything, has very much strengthened it. Throughout historyit is not because we have been weak but because it has beenin our blood that we have always been peaceful, neveraggressive. Therefore, it is in keeping with our history,with our tradition, with our culture, that we are a nationof peace and we are going to see that peace prevails in theworld.
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Now, Sir, I have some doubts about certain parts of thearticle that we are to be friends of all. But common senseand experience teach us that those who are friends of allsometimes have no friend at all. Therefore, when we wantends and means to be pure, we should make our policysomewhat clear. To Russia, we may and should say "we acceptand we appreciate your aims and ideals, but your means arerather crude, sometimes they are very doubtful." To Englandand to America, we must say "we have very many misgivingsabout your wines and ideals. Your means are very polished,very very civilised".So we should show a certain indication in our foreign policyand when we have men like Pandit Nehru at the helm offoreign affairs and when the foundations of peace and non-violence have been laid down by the Father of the Nation,this country need not despair of its future; it can evenhold out a future to the whole of the world.
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Sir, I stand tosupport the motion of the HonourableDr. Ambedkarwhich hasgiven a clear lead to the country. The Amendment which is tocome as article 40 reiterates our policy and positionregarding India's international relations. While thecontribution of the West to international relations andpromotion of international security was first the HagueConference and secondly the League of Nations and now,thirdly, the United Nations Organisation, India even whenshe was in fetters and bondage, had her mighty contribution,not in the shape of influence of prowess or wealth, but bybringing her thought into the field of internationalconcept, - the mighty, intellectual and moral influence of aTagore and a Gandhi who taught nothing short of intentionalamity, honourable and open relations between nations andcountries. This is a mighty contribution to the bettermentof international relations in a world that is out for cut-throat competition in armament; and soon after, is bound tocome into the field keen economic rivalry. This being theposition today, it is difficult for India to decide what herinternational relations are going to be and what part she is going to play in the world. The motion of my HonourablefriendDr. Ambedkar not only lays down what we ought to doand what we have to do, but also states the limitationswithin which India is to play her role in internationaltransactions with other nations. The role is honest; therole is upright; the role is open. India, under theleadership of Mahatma Gandhi, our great leader, has learntto take to such open course of action. There is nothinghidden in our ways. There is nothing secret in our ways.That explains the difference between the course of actionadopted by other State from those adopted by India.
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Coming to our relations either present or future withthe United Nations Organisation, we see that thatOrganisation is divided into blocs. We have stated in theclearest terms that we belong to no bloc, despite the factthat we are a young nation, a new born free state, withfeeble power though our resources are mighty and have yet tobe developed. In this strife between two big blocs, ours isa difficult and unenviable position. We have not to be inblocs and we have to fend for ourselves for our own defenceand for our own security. Though our respected leader, theHonourable PanditJawaharlal Nehru, has told us that hefound no theocracy or no communal tendency in the near andMiddle East States, we have the latest announcements in thePress that the very slogan of "Islam in danger" is bringingmost of the Muslim Arab countries together against us, Thatis one difficulty. Our neighbour, the Pakistan State, alwaysconsiders us unfortunately as enemy No. 1 despite the factthat we agreed to bring Pakistan into existence so as tobring about peace and amity between us, the two states. Sheregards us however like an enemy and raises the cry `Islamic danger' which brings Muslim countries together.
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Secondly, Sir, despite the unanimity of purposedisclosed by the united action of representatives fromPakistan and India, the fact remains that the Muslimcountries gave the go-by to India when the South-WestAfrican question was discussed by the U. N. O. This leads usto the belief that they are made to play the game of theBritisher, the unseen hand of Britain and the unseen handsof South Africa and Britain together. These explain ourdifficulty and helplessness in the international sphere. Ihave already stated that our leaders have emphaticallyannounced that we do not belong to any bloc. We are nothelped by any bloc and attempts are even being made by thedifferent blocs not to do anything which helps India on herway to progress. That being theposition I find little reason for my friend Seth DamodarSwarup coming forward with an amendment calling upon theConstituent Assembly to accept a position which is leastfair to the best interests of the country. Sir, we arecalled upon to free the politically and economicallyexploited people of the world. Where is the necessary forceto back this great programme of freeing the politically andeconomically exploited races of the world today in India? Itmight be that after some time India will be their beaconlight and focus attention on the exploited countries of theworld. That is our hope. But Heaven knows how long it willtake for us to be able to do it. It is in the hands of God.I would therefore beg of Mr.DamodarSwarup and appeal tohim to withdraw his amendment which expresses the point ofview of the Socialists. I support the amendment moved by Dr.Ambedkarwhich clearly and fully brings out the aspirationsof India. I fully support it.
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Sir, I rise tosupport the amendment moved by Dr. Ambedkar. It is really amatter for sincere gratification that the cardinal principleof our foreign policy that has been laid down in thisarticle as proposed in the promotion of peace, internationalpeace and security. There is no doubt it is a very desirablething. All the world over, in the deep recesses of the humanheart there is a passionate longing for peace and MahatmaGandhi was the embodiment of this yearning for peace. Afterthe devastation caused by two world wars, the world isagain threatened with a third war and the world is anxious to avoid that catastrophe. Personally it would have given me greater satisfaction if, instead of merely laying down our objective as the promotion of peace, we could have devised and emphasised some method for the promotion of peace. I think Mahatma Gandhi has suggested one method. He laid down the principle of arbitration for the settlement of labour disputes. That principle could be very well extended to other departments of life and also to international disputes. I think it would have been better if we had provided that arbitration should be resorted to if we want to avoid war. We should hold out some substitute for war. Naturally there cannot be a better substitute than arbitration. Therefore I would have been very much gratified if we had laid down here that our international policy would be to encourage the settlement of disputes through arbitration. I do not want to move any amendment to that effect myself, but I certainly would like to stress that and I shall be very glad if this suggestion is acceptable to the Mover and he himself volunteers to bring forward such an amendment. With this suggestion, I support the amendment moved by Dr. Ambedkar.
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Mr. Vice-President,though it comes as the last article, article 40, in thisPart, I consider it as one of the most important articles.When a storm is raging we cannot escape it by keeping aloof.If we want to have peace and progress in this country it isabsolutely necessary that the nations around us alsomaintain peace and are in the march of progress economicallyand socially. Therefore we must lay emphasis on this articlewhich seeks to insist upon our taking part in the settlementof international disputes by arbitration and by peacefulmeans. I am not satisfied that this article is sufficientfor this reason that even in the Charter of the Nations onwhich the U. N. O. is based, one or two articles aremissing. That was the reason why the League of Nationsfailed. The Nations of the world have not come to anagreement that all people should be set at liberty, smalland big alike, and that all nations or races occupyingparticular territories ought to be set free to manage theirown affairs. This sentiment did not find a place in article10 of the League of Nations. Neither does it find a place ina Charter of the United Nations today. Until this is done, Ido not think there will be any real peace in the world. Eventoday the coloured people in Africa and other parts of theworld are not assured that they will be set free. Mandatesare imposed upon them and they never end. Mandates aremerely transferred from one hand to another hand and thesepeople are keptunder perpetual domination. The territorial integrity of thevarious countries are protected by collective security. Thatmeans that Holland will be allowed to continue her stranglehold on Indonesia and France will be allowed to keepits possessions in Asia and Africa. Whether we suggestresort to arbitration for the settlement of disputes or someother peaceful method, these things will continue. The lastwar broke out because England was an Imperialist power andeven chhota Belgium was an Imperialist power and thisencouraged nations like Germany and Japan to attempt tobecome imperialist powers too.
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I would like very much that we should have some suchclause that it shall be the duty and the constant endeavourof the Government of India to see that all people in theworld are released from the domination of other people, thateach people big or small, each nation or race big or small,get freedom to manage their own affairs within the territorywhich God has given them. Situated as we are, we cannot doit. For this purpose, arbitration is the sole means ofsettling international disputes. This also finds a place inthe United Nations Charter. I would like, Sir, with yourpermission to add a clause, clause (d), to the amendmentmoved by my honourable friend, Dr. Ambedkar. If it isagreeable to the House and if you accept it, the clause willbe -
"and (d) to encourage thesettlement of internationaldisputes by arbitration."
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This is the clause (d) of 's amendment but hedid not move it. The other items in the amendments moved byDr. Ambedkar would not be really effective unless yousuggest the means by which they could be given effect to.International relations can be peaceful, Internationalagreements - trade and other agreements - can be enforced onlyby arbitration and not by resort to arums. Therefore, Sir,if the House accepts and if the honourable Dr. Ambedkarfinds it convenient to accept it, I would suggest that thefollowing be added as sub-clause (d) to his amendment:
"and (d) to encourage the settlement of internationaldisputes by arbitration."
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Does the House give leave to Mr.Ayyangar to make that addition to the amended clause of Dr.Ambedkar?
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Mr.Ayyangar, will you move itformally?
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Sir, I move that inthe amendment ofDr. Ambedkar, at the end add the followingsub-clause: -
"and (d) to encourage the settlement of internationaldisputes by arbitration."
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Sir, Iam opposed to this.
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If you want to discuss theamendment moved by Mr.Ayyangar, Mr.Tyagi, you areperfectly entitled to speak.
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Sir, the article as sought to beamended by Dr. Ambedkar is a mere pious wish. It does notadd any substance to the Constitution. It may be all rightwhen delegates go to foreign countries, mix and familiarisethemselves with the delegates from other countries. But whenI see the phrases used here. I wonder whether you are reallythinking of war against any nation, because whenever I sawany nation speaking in these terms, they were alwaysimmediately followed by their guns and aeroplanes. Thisphraseology has been misused by other nations. I have mysuspicions. We cannot question our own motives. You talk ofarbitration of international disputes. But where are thearbitrators? We have seen the arbitrators who came here andhave seen the way they have been functioning. It is verydifficult to get honest arbitrators. How can anybodyarbitrate in such matters?Sir, I prefer war in such cases. War is also a philosophy,it is both a curse and a blessing. if these are ourobjectives, if we want to maintain peace and seek tomaintain just and honourable relations between nations, thenI say it is not possible if we remain week and remain merelya meadow of green grass for bulls to come and graze freely.For the purposes mentioned in this clause what we want isarmament, both of will and weapons, moral armament as wellas physical armament. We should see to it that our nation ismilitarily strong. We should see to it that our army, ournavy and air force remain strong. That should be thedirective that we should give to our future government ofIndia if only to achieve our laudable objective of "worldpeace". As it is, we are a pygmy in the world. Who cares foryou unless you are strong? Unless your argument has gunsbehind it, nobody would appreciate your arguments. Ourpresent position is weak. I do not say that we are weakagainst any of our immediate neighbours but to count in theinternational field, we should be a first-class power. Ouraim should be to become a first-class power, a strong power,so that our voice, our pleadings and our arguments may havesome weight and people may know that they should not annoythis great country and that would mean a war. So, Sir, Iwant to reserve one privilege as a man of war, that in casewe fail to achieve these objects peacefully, we shall warand accomplish these objects. With these words ofreservation, I support whatever you have said, because it isall a pious wish.
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Mr. Vice-President, Sir, I am proposing only a small verbal amendmentto Dr. Ambedkar's amendment clause (c) and that is to usethe word to `foster' instead of `sustain'. Dr. Ambedkar saysthat he will accept this amendment. The House will give mepermission to move this.
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The reasons are obvious. I think myhonourable friend, Mr.Krishnamachari knows it as well as Ido.
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You want to use theword `foster' instead of the word "sustain".
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Because `sustain' will imply force.I do not think that we want to use force of any kind eitherin the future Government of India or in the Government as it is constituted today.
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Sir, I accept Mr.Kamath’s three amendments. I accept Dr.Subbarayan’samendment and I accept the amendment moved by my honourablefriend, Mr.AnanthasayanamAyyangar. I do not accept anyother amendment.
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The question is that for article40, the following be substituted: -
"40. The Federal Republican Secular State in Indiashall be pledged to maintain international peace andsecurity and shall to that end adopt every means to promoteamicable relations between nations. In particular the Statein India shall endevour to secure the fullest respect forinternational law and agreement amongst States and tomaintain justice, respect for treaty rights and obligationsin regard to dealings of organised peoples amongstthemselves."
The motion was negatived.
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The question is that for theexisting article 40, the following be substituted: -
"40. The State shall endeavour to -
(a) promote international peace and security;
(b) maintain just and honourable relations betweennations;:
(c) foster respect for international law andtreaty obligations in the dealings oforganised people with one another, and
(d) encourage the settlement of internationaldisputes by arbitration."
The motion was adopted.
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The question is that in article 40,the following words be added at the end;
"It shall also promote political and economicemancipation and cultural advancement of the oppressed andbackward peoples, and the international regulation of thelegal status of workers with a view to ensuring a universalminimum of social rights to the entire working class of theworld."
The motion was negatived.
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The question is:
"That article 40, as amended, stand part of the Constitution."
The motion was adopted.
Article 40, as amended, was added to the Constitution.
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New Article 40-A
(Amendment No. 1026 was not moved.
Amendment No. 1027 in the name of ShriAlguRaiShastriwas allowed to stand over.)
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Mr.Vice-President, Sir, I gave notice of several amendments onthe last date and I did it when I found that the Members ofthis august House have tabled thousands of amendments andthey wanted that every pious and noble sentiment may beincorporated in this Constitution. I also ran in the race,though I was of the opinion that this Constitution hasalready become very lengthy. I also felt that it should notbe filled up with all the details; otherwise it may be mademore ridiculous. Now I find that better sense is prevailingand Members are not moving the amendments now. My purposehas been served and with these few general remarks. I do notwant to move this amendment or any other amendments tabledby me.
(Amendments Nos. 1029 to 1031 were not moved.)
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This is part of Part V and there isa big question of principle involved in it. I also thoughtthat according to the understanding reached, we should nowbe going over to the earlier amendments. But I am in yourhands, Sir. I do not mind moving this amendment now.
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If you want to move it, you are atperfect liberty to do so. If you do not want to move it now,you may do it at another place.
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I should like to reserve it when welcome to Part V. I shall take it up then.
(Amendments Nos. 1029 to 1031 were not moved.)
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That finishes Part IV.
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May I request you,Sir, to take up Part III?
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That is also to be found intheOrders of the day. We take up Part III. The first amendmentis in the name of Professor K. T. Shah, amendment No. 238.
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Sir, I beg to move:
That for the heading `Fundamental Rights' under PartIII, the following be substituted: -
"Fundamental Rights and Obligations of the State andthe Citizen."
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Sir, on an earlier occasion, while moving an amendmentI pointed out that the Constitution seems to leave outcompletely the Obligations side of human behaviour, andinsists more and more.... .
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Sir, I believeProfessor K. T. Shah is moving amendment No. 238, to changethe heading. May I request him to take this up after wedispose of the articles? The title as it is, "FundamentalRights". He wants to include Obligations also. After wedispose of this part, if we find that any articles referringto obligations are introduced substantively, then we canmove for the change of the title. In case no articlereferring to any obligation, is introduced in thesubstantive portion, there is no purpose in changing thetitle to include Obligations also. I would request him toallow this amendment to the title to stand over until weexhaust the substantive provisions of Part III.
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I am quite willing to agree to thesuggestion that this may stand over. I would only point outto my honourable Friend that it is not merely a particularsection or sections which include Obligations that wouldjustify a change in heading. I would like by this change inthe title to draw attention to an aspect of the Constitutionwhich has been omitted. However, if I am allowed to holdover this amendment, I shall try to bring it to the noticeof the House on a later occasion. Meanwhile, I agree to thesuggestion.
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This amendment stands over for thepresent.
(Amendment No. 239 was not moved.)
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Amendment No. 240 stands over.
(Amendments Nos. 241 and 242 were not moved.)
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Sir, Amendment No. 243 becomes redundant.Article 28 has already been passed. If it had not been passed,this would have been necessary. I do not move thisamendment.
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The motion before the House is:
That article 7 form part of the Constitution.
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We will take up the amendments one by one.
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Sir, I move:
"That the following words be added at the end of article 7: -
'or under the control of the government of India'."
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Sir, this amendment was thought necessary because apartfrom the territories which form part of India, there may beother territories which may not form part of India, but maynone-the-less be under the control of the Government ofIndia. There are many cases occurring now in internationalaffairs where territories are handed over to other countriesfor the purposes of administration either under a mandate ortrusteeship. I think it is desirable that there ought to beno discrimination so far as the citizens of India and theresidents of those mandated or trusteeship territories areconcerned in fundamental rights. It is therefore desirablethat this amendment should be made so that the principle ofFundamental Rights may be extended to the residents of thoseterritories as well.
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Sir, I begto move -
"That with reference to amendment No. 246 of the Listof Amendments, in article 7, the words `and all local orother authorities within the territory of India or under thecontrol of the Government of India' be deleted."
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Sir, along with this, I desire to move the second partof amendment No. 247 because they are related and may bedisposed of conveniently together. Sir, I beg to move -
"That before the words `In this Part' the figures andbrackets `(1)' be inserted and the following new clauseafter clause (1) so framed be inserted: -
"(2) The provisions of this Part shall so far as maybe, apply to all local or other authorities within theterritory of India or under the control of the Government ofIndia."
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At the time I gave notice of thisamendment I thoughtthat the whole of the article 7 as redrafted by the DraftingCommittee would be moved together. But really only a smallamendment has been moved to the original article 7. What Iwant to do by these amendments is to remove the words - "alllocal and other authorities within the territory ofIndia" from the article and reintroduce them in a separateclause. In article 7 "State" is defined to mean theParliament of India and the Government of the Legislature ofeach of the State i.e., the provinces and Indian States andother States and all local and other authorities within theterritory of India.
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This, I am very sorry to say, creates some amount ofanomaly in this context. In fact I have no difficulty inapplying the provisions of part III to local and otherauthorities i.e., District Boards, Municipalities etc., butI object only to the Municipalities and District Boards andother authorities to be styled a `State'. One honourablegentleman, Pandit Lakshmi KantaMaitra, objected to the useof the word `State' even to Indian States and the Provincesbecause they do not represent full sovereignty, but fullsovereignty is not necessary for using the word `State' inthis connection. But I submit that by no stretch ofimagination can District Boards and Municipalities be called`State'. Therefore what I have attempted to do is to removethese words from the article which should be renumbered asclause (1) of the article and add clause (2) just to saythat "the provisions of this Part shall, so far as may be,apply to all local or other authorities etc." This avoidsthe anomaly of describing the local bodies as `States' andat the same time attains the same object by removing thosewords from the body of article 7 and relegating them toclause (2). I submit this will remove the anomaly ofDistrict boards etc., being described as `State' and at thesame time serve the purpose.
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Sir, I beg to move-
"That in article 7, for the word `or' the word `and' besubstituted."
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Sir, in this article we are going to enumerate what arethe States and that enumeration is exhaustive and not merelyillustrative. Therefore in my opinion the word "and" will behappier than the word `or'. Though the word `or' has gotconjunctive sense, it has got other senses as well. Inliterature it may be quite alright but in matters of lawwhere legal terms are to be used, when we can find a moreconcise word, we should not use less concise ones. ThereforeI recommend this amendment for the acceptance of the House.
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Now it is open to generaldiscussion. I should have said Amendment No. 249 is blockedby Dr. Ambedkar's.
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Sir, Iconsider that it is not advisable that an expression in alegislative enactment should bear different meanings indifferent parts of the enactment. It will create confusion.Therefore I wish this definition of `state' has not beenentered in this article at all. Further this expression`state' includes the government of India and its parliament, the governments of the states, i.e., the Provincialstates, I think, and its legislature and the local bodies. Iknow that local authorities have been defined in the GeneralClauses Act, as District Boards and Municipalities. But I donot know what those `other authorities' are. Is there-anynecessity for us to include other authorities which are notdefinedeither here or anywhere else? Therefore, Sir, as far as thispart of the Constitution is concerned, the State is definedin a manner which is comprehensive of all institutions,whether they are legislative bodies, executive bodies orexecutive authority or the municipal or district boards orfor the matter of that even the co-operative institutions,or according to me, even other authorities, such as the sub-magistrates of a locality. So the word `State' is used toinclude a man in authority under the circumstances anywhere.That is too wide a definition of the word `State'. When thisdefinition is given to the same expression used, say forinstance in article 13 let us see whatis its effect. I mayread to you, Sir, sub-clause (2) of article 13.
"Nothing in sub-clause (a) of clause (1) of thisarticle shall affect the operation of any existing law, orprevent the State from making any law, relating to libel,slander, defamation, sedition or any other matter whichoffends against decency or morality or undermines theauthority or foundation of the State."
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That means the local body or the executive of aprovince or even a Sub-Magistrate might pass any order orthe local body might pass any bye-law or resolutionmodifying the Fundamental Right given under sub-clause (a)of clause 1 of article 13.
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Now, it may be contended that the expression is "makingany law". Now, let us see whether `law' has been definedhere. Law has not been defined for the entire part, but ithas been defined for a certain article - article 8, clause (3). There, it is stated that -
"...........law' includes any Ordinance order, bye-law,rule, regulation, notification, custom or usage having theforce of law in the territory of India or any part thereof."
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But law has not been defined generally, but it has beendefined only for the purpose of article 8, to cover anyorder that is passed, any bye-law; that suite very wellthere, as we are abrogating all laws which are inconsistentwith Fundamental Rights. If any Magistrate or any municipalbody passed any law which derogates from the FundamentalRights, that shall be considered void. So far so good. Buthas law not been defined for the purpose of Part III? It maybe argued from the analogy of the law defined under clause(3) of article 8, that any order or bye-law passed by alocal body or order that may be passed by any otherauthority may be included in the expression `Law' in PartIII. But what that "any other authority" is, has not beendefined. Therefore, it may be contended, and very rightlyperhaps, that a Magistrate or a local body or even acollector or even a Minister might pass an order, or make anotification abridging the rights that are given under sub-clause (a) of clause (1) of article 13. Therefore, mysubmission is, especially in the absence of a definition oflaw, and in the light of the definition of law under clause(3) of article 8, it will not only create confusion, but itmight tend to the usurpation of those rights, and to nullifyand abridge the fundamental rights given under clause (1).Sir, I am aware that article 7 says, "unless the contextotherwise requires,....". I know that it might be contendedthat that expression answers my objection. But my submissionis this. It is not only law that is passed by a legislaturethat is law. What is law, must be made quite clear. Unlessthat is done, the executive might pass an order, or put outa notification and that too might claim to come under thisexpression. Otherwise, as far as this part is concerned,there is no place at all for any executive authority to makeany law to make anything, say anything or do anything. Youhave stated in all these places - "Nothing...shall..preventthe State from making any law, imposing in the interests ofpublic order restrictions on the etc. etc." That clearlyshows that a magistrate might pass an order restricting theright of a person or persons to assemble peacefully. So,when this expression is susceptible of being interpreted asgiving authority to a district magistrate, an executive bodyto abridge the rights given here, with equal weight it maybe contended by a local body or by some other authority – andyou have not defined your authority.Therefore, I submit, if it is meant that all the authoritiesmentioned in this article have got the right to abridgerights, the fundamental rights mentioned in clause (1) ofarticle 13, it might lead to absurd results. As I said, amagistrate or even a petty officer in authority can rightlyclaim under this article to have the authority to abridge acitizen's rights. Therefore, my submission is, either thisarticle is unnecessary, or if you really mean that any manor any officer in authority has got right to abridge thefundamental rights, I submit that this clause should notfind a place here at all. It leads to confusion.
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I wish that the Member in charge of piloting thisConstitution would make it more clear and satisfy us beforewe are in a position to vote in favour of this resolution.
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I would request Dr. Ambedkar toenlighten us about the points raised here by Mr. Ali Baig.We are laymen and we would like to hear him.
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Mr. Vice-President,I must confess that although I had concentrated my attention on the speech of my friend who moved this amendment, I havenot been able to follow what exactly he wanted to know. Ifhis amendment is to delete the whole of article 7, I canvery easily explain to him why this article must stand as part of the Constitution.
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The object of the Fundamental Rights is two-fold.First, that every citizen must be in a position to claimthose rights. Secondly, they must be binding upon everyauthority - I shall presently explain what the word"authority" means - upon every authority which has got eitherthe power to make laws or the power to have discretionvested in it. Therefore, it is quite clear that if theFundamental Rights are to be clear, then they must bebinding not only upon the Central Government, they must notonly be binding upon the Provincial Government, they mustnot only be binding upon the Governments established in theIndian States, they must also be binding upon District LocalBoards, Municipalities, even village panchayats and talukboards, in fact, every authority which has been created bylaw and which has got certain power to make laws, to makerules, or make by-laws.
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If that proposition is accepted - and I do not seeanyone who cares for Fundamental Rights can object to such auniversal obligation being imposed upon every authoritycreated by law - then, what are we to do to make ourintention clear? There are two ways of doing it. One way isto use a composite phrase such as "the State", as we havedone in article 7; or, to keep on repeating every time, "theCentral Government, the Provincial Government, the StateGovernment, the Municipality, the Local Board, the PortTrust, or any other authority". It seems to me not only mostcumbersome but stupid to keep on repeating this phraseologyevery time we have to make a reference to some authority.The wisest course is to have this comprehensive phrase andto economies in words. I hope that my friend will nowunderstand why we have used the word "State" in this articleand why this article must stand as part of thisConstitution.
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I will now put this amendment tothe vote. First of all, we have amendment No. 21 of Mr.Naziruddin Ahmad, which is an amendment to amendment No.246.
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The question is:
"That with reference to amendment No. 246 of the Listof Amendment in article 7 the words "and all local or otherauthorities within the territory of India or under thecontrol of the Government of India" be deleted."
The motion was negatived.
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The next amendment is No. 246 movedby Dr. Ambedkar.
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The question is: that the following words be added atthe end of article 7:
"or under the control of the Government of India."
The motion was adopted.
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Then we come to amendment No. 247as amended by No. 22.
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The question is:
That in article 7, for the words and inverted commas"the State" the word and inverted commas ` "State" ' besituated, and before the words "In this Part" the figure andbrackets "(1)" be inserted, and the following new clause (1)so framed be inserted :
"(2) The provisions of this Part shall, so far as maybe, apply to all local authorities within the territory ofIndia or under the control of the Union Government."
The motion was negatived.
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The question is: that in article 7,for the word "or" the word "and" be substituted.
The motion was negatived.
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The question is: that article 7, asamended, stand part of the Constitution.
The motion was adopted.
Article 7, as amended, was added to the Constitution.
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Now we go on to the next article.
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The motion is:
That article 8 stand part of the Constitution.
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There are a number of amendments. No. 250 is by Dr. P.K. Sen but he is not in the House. No. 251 is in the name ofMr.Kamath.
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I am not moving it.
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Then there is No. 252 by PanditLakshmi KantaMaitra.
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Mr.Vice-President, Sir, I move:
That the proviso of clause (2) of article 8 be deleted.
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The purpose of this amendment is self-evident, and as Ihave been strictly enjoined not to make any speech I simplymove this amendment.
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Sir, I move.
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Then there are amendments No. 253to 258. Is any Member going to move his amendment?
The amendments were not moved
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Sir, I want to move amendment No.259 standing in my name. I beg to move: that after clause (2) of article8, the following new clause be inserted and the existingclause (3) be re-numbered as clause (4):
"(3) The Union or the State shall not undertake anylegislation or pass any law discriminatory to some communityor communities, or applicable to some particular communityor communities and no other."
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In moving this new article I seek than supplementingarticle 35 which we have passed. Article 35 directs thestate to do certain things, that is, to bring about auniform civil code. My article simply says what the stateshould not do, so that it may not frustrate the very purposefor which article 35 has been enacted. Sir, deliberately wehave chosen that our state is a secular state and we havetried to get rid of all the wranglings of religion becauseof the belief that although religion was made to unitemankind it has been found that it has disunited mankind andhas brought various disputes. Rightly, therefore, have wedeclared that our State would be a secular State and therebywe mean that everybody who inhabits this land, who is acitizen is just a man and his human needs will be fulfilledand his religion, if he has any, will be taken care of bythe individual himself.
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If we approve of this purpose, to give mankind thatequality, that sense of justice, then when we are here tolegislate for a future constitution, we must make it afundamental right that we will not legislate in a manner andon a matter which will discriminate between one communityand another. Our law must be so broad-based, must be so veryintrinsically sound that it must apply to every human being,every citizen of this land. When you make any differencebetween citizens in this land, you can make it only on thelines of community and community directly means religion andwe have deliberately eschewed religion. Therefore, to befrank enough, to be bold enough, to be true enough to ourprofessions, we must make it a point that whenever we bringanything on the anvil of legislation, it must be such thatit will apply to one and all of this land ad there will beno differentiation. Let people say: We have one fundamentalsafeguard against inequality and injustice. Here is the law.It applies to everybody, - be he a Rajah, be he a Praja, behe a Hindu, be he a Muslim, be he a Parsi, be he aChristian. That itself is enough safeguard, because it willapply to every citizen equally. If the law is bad, it is badfor everybody; if it is good for everybody. Therefore, I saythis must be a fundamental principle. We must accept it hereand now that any law that henceforward we may be legislatingmust be applicable to one and all. To that effect, Icandidly place before this House that to avoid all futuredoubts, all disparity, all discrimination, all distinction,we must make it a law and a fundamental law that the Unionor the States shall not undertake any legislation or passany law discriminatory to some community or communities, orapplicable to some particular community or communities andno other. This House has very frankly, openly and boldlyaccepted the principle in article 35. I simply beg thisHouse to make that article complete and self-sufficient.that gave only a direction; this gives a positive mandatefor what we should not do, because by not doing all these things, by discriminating between citizens and communitieswe have divided the country and let it not lead to greaterdivisions. I submit that unless we accept this principle,our idea of a united Nation, of a united making and ofequality of every citizen in this land will be frustrated. Itherefore commend this new article to the consideration ofthis great House.