Constituent Assembly Of India -Volume IX
Dated: September 09, 1949
Sir, I shall briefly state before you the law of compensation in all civilised parts of the world. The whole subject has been dealt with very elaborately in the Encyclopaedia Britannica, subject-Compensation, Vol. VI, pages 177 to 179. I do not want to go through all of it, but only mention certain points. Compensation, according to that great authority is "reparation or satisfaction made to the owner of the property which is taken away by the State for State purposes. The right of individual ownership is challenged in Russia which has abolished the the right to private property and it for alleged public purposes without compensation. But to however, the U.S.S.R. has been compelled to reverse its policy. influenced by communism and these States, in the name of has expropriated a large extent, They are now agrarian reform have expropriated private property either with inadequate compensation or without any compensation."
Sir, I go to other parts of the world, the entire civilised world. There individual ownership is recognised not only in the civil law of the entire civilised world, but also in the international laws, both in times of peace and of war. It is stated in that authoritative work that even in peace treaties following World War one principle that was respected by the Nations was the inviolability of private property. So far as the civil law is concerned, the French Civil Code says that "no one can be deprived of his property except for purposes of publicutility and for adequate compensation.,?' The Belgium law is to the same effect. The Italian Code says that in order to acquire property by the State, "previous payment of just indemnity" is necessary. The Spanish Code is to the same effect, namely, that compensation must be paid on a "just valuation". The law in the South American States is similar. The German Code in article 153 says that "adequate compensation" must be given. The law of the United Kingdom is that "full compensation" must be given. The U.S.A. law says that "just compensation" shall be given.
An Honourable Member: You are repeating.
Mr. Naziruddin Ahmad: I am quoting from a very recognised authority and from a recent edition, and saying that this is the law in the whole civilized world. Should we follow the law which the civilised world is following or should we follow the Russian method of expropriation ? That is the question. So far as the present article is concerned, I wanted to insert certain words, such as "fair compensation" or "full compensation" or "just compensation". But an Honourable Member has already moved a similar amendment and so I did not move mine as mine suggested merely verbal variations. The substantial question is whether we should provide in our Constitution that whenever there is a law for acquisition of property by the State for public purposes, we should provide therein that the law must also provide for "fair and equitable" compensation. As I said just now, up to yesterday, the law was thus, and the point would not have required any clarification. But in view of certain declarations in the House and the language of certain clauses and sub-clauses, I think this clarification is very necessary. In fact if we really want to expropriate private property for public purposes without compensation or with a nominal compensation, that should be stated fairly, fully and openly. Instead of that there is the provision for payment of compensation. It leaves the Provincial Governments free to expropriate land on a nominal compensation. The article provides a loophole, a linguistic loophole, through meaning in civilised countries all along has been the same.
I submit that compensation should be full, fair, just or adequate. If we do not state it, these will be serious mischief committed against private property. If we do not respect private property all talk of fundamental or constitutional rights will come to naught. We have already passed article 13 where in sub-clause (f) of clause (1) it is said "All citizens shall have the right to acquire, hold and dispose of property." If we allow right to acquire, hold or dispose of property it follows that if anybody took it full price should be given.
We hear of nationalisation. If nationalisation is to be effected free of cost, it would degenerate to a kind of cheap nationalism. It would be just adding to the practical ruination of our credit structure which we have already succeeded in achieving. If we go to the public for subscription to large limited companies for industrialisation there is no credit and no money. Our capitalists are gone. Now we have been driven to go to the foreign markets not only for loans of very big sums but also to induce them to open commercial undertakings in our country. There are the glaring examples of some clauses in the article which stare us in the face to which I shall draw the attention of the House. Will any foreigners, who are to be credited with a little shrewdness and business acumen, think of investing their money in industrialising our country whereby they stand to lose in two ways ? They will stand to lose or partly lose through expropriation their capital and capital appreciation, if their business is successful, and then by helping India to be industrialised they lose their own business at home. In such circumstances there is a double check upon flow of foreign business in India.Then there is clause (5) of article 13 which limits to a certain extent by prescribing certain restrictions. The only restriction mentioned is "reasonable restriction on the exercise of any of those rights for the general public." The only condition is that I must not "exercise' my rights over property to the detriment of the public. Rights to property are never contemplated in article 13. I submit that article 24 will go directly against article 13 in this respect. However, as I said in the course of the debate earlier, in connection with a point of order, we have a right to be inconsistent. The point of order raised was no real one. It was only a glaring piece of injustice to which the honourable Member put his finger in raising the point of order. If we adopt clause (4) of the article then serious in-justice will be perpetuated. Hence I opposed the honourable Member who raised the point of order. But I fully sympathist and agree with him and lend my feeble support to his view that this clause is a most pernicious one which will perpetuate injustice on a large scale.
Coming to the vital matter which lies concealed behind these amendments is the question of the abolition of the zamindari. Somehow or other some persons think that zamindari property is no property at all and they should be expropriated without any mercy or compensation on the absurd ground that it would be for the benefit of the public, as if the zamindars do not form part of the public at large. I might state here frankly that I am not a zamindar and I have no interest in zamindars at all.
Mr. B. Das: I think you are zamindar.
Mr. Naziruddin Ahmad : Mr. Das says that he thought that I was a zamindar . . .
An Honourable Member: He might wish you the pleasure of the thought.
Mr. Naziruddin Ahmad: Mr. Das thinks of many things which are unreal. I was a very petty zamindar but I sold away my interests 5 or 6 years ago, for I saw what.was coming. Today I am independent, free and disapassionate, a man having absolutely no interest in that question. I am safe and happy. But those poor zamindars who believe in the stability of the law of the land are today sadder, though wiser. In this business we should proceed upon constitutional principles of rights of property and so on. If it is necessary that zamindaries should be acquired, of which there is no doubt, all that I claim Is that proper compensation should be paid When the Bank of England was nationalised full compensation was given to the shareholders. In India when we nationalised the Reserve Bank the full market price was given, though at a time of depression. The question is, does zamindari property differ from other properties so as to receive this step-motherly treatment? The zamindars are small in number and are scattered. They have tenants to contend with and the Government find themselves in the happy position that they can kill them without anyone weeping for them. If we destroy civil rights the effect of it would be that it will recoil on us in no distant time.
With regard to zamindari property we should know what it means. There was nothing like a zamindar during the period of the Hindu kings. During the Muslim period they were unconsciously created as a matter of administrative necessity. On account of the exigencies of the situation military governors were despatched to distant corners of India to maintain law and order, to maintain military outposts and to maintain themselves out of the revenues of the local areas.
Shri Biswanath Das: We all know the history.
Mr. President: The honourable Member should remember that we have to finish the discussion of this article tonight. All this discussion may be interesting but let us confine ourselves to the article.
Mr. Naziruddin Ahmad: All that I am emphasising before the House is that zamindari property is like any other property. Zamindars were unconsciously created by the Moghul emperors in order to make it easy for them to realise rents to maintain themselves out of them and many people voiunteered to collect rents. From these beginnings the zamindaries were formed. Zamindaries were transferable like any other properties and for the speedy realisation of revenue the early British administrators provided for the sale of the, zamindaries for arrears. Zamindari is like an ordinary property. The present body of zamindars have paid for them with hard money. Therefore, if we can confiscate zamindari property without sufficient compensation, we would also confiscate any business concern or limited company on the alleged ground that they will be for the 'benefit of the public.' There are many properties or business concerns which come to people like windfalls. If they have acquired any right even by a windfall, should that be any reason for confiscating such property for the benefit of the public without paying compensation? I submit not. Then why is it that in the case of zamindari property this distinction is being made? I have in amendment No. 406 put a limit to the payment of compensation. I have put it at 12 times the estimated net annual income of the zamindar. In fact, the ordinary rule of valuation of such properties is twenty times on a 5 per cent. income basis. But I would put it at 12 times the- annual net profit. That would be a via media between utter confiscation and . . . .
Shri Biswanath Das: On a point of order, Sir. We are not discussing the question of compensation; we are discussing amended article 24 wherein authority is being provided for legislation to be undertaken. There is therefore, no need for all this.
Mr. President: The honourable Member wants to limit the discretion of future legislation with regard to compensation by laying down a certain figure and I think lie is perfectly in order in doing that.
Mr. Naziruddin Ahmad: I am grateful to you, Sir, for this clarification. Mr. Biswanath Das has not followed the amendment or my speech. I want to limit the payment of a minimum compensation to 12 times. For instance, in the U.P. they desire to pay 8 times. I want to make it 12 times. The U.P. legislation has another loophole. Out of the income, the estimated agricultural income-tax is to be deducted. The estimated agricultural income-tax has been introduced recently. It comes to half or even more than half in the higher regions of income in the case of big zamindars. In that case, 8 times the annual income would actually mean something like 4 times the annual income. This 8 times is an exaggerated and illusory figure. In reality it is much less. So I wish to put a limit by means of proviso to clause (2).
The other point to which I wish to draw attention is the deletion of clause (4). If we keep it, the effect will be that any law which has been passed and receives the assent of the President will be regularised, but any law which has not been passed or may be passed hereafter will not stand in this advantageous position. So the Provinces which have passed the law before will be in a more advantageous position. They will not need to pay compensation as required in clause (2). Why should this distinction be made between Provinces who were first in the run and those who were late? The principle of compensation is binding on all There should be no discrimination between one Province and another on the mere ground that it has come earlier.With regard to another amendment to clause (5)-it amounts to certain verbal alterations to give effect to the principle I have chosen to submit.
Then there is an amendment to clause (6) which will also seriously affect the Compensation question. This clause says that laws which have been passed with-in one year would be valid notwithstanding clause (2) of this article, i.e. notwithstanding it provides for even no compensation at all. These matters centre round the payment of adequate compensation. If we really do not pay adequate compensation, it will be injustice committed on a large scale and clauses (6) and (4) are so worded as not to give obvious and necessary information. One has to guess the object of these discriminatory provisions. The real purpose has been left concealed. If the principle of compensation is binding on one Province, it should be binding on-all. If any Province has made any law which would contravene this principle, to that extent it should be ultra vires and void. We are inserting article 24 in the Fundamental Rights Chapter and in clause (2) we have provided that whenever any law is passed which contravenes wholly or partly the fundamental principles of these articles, the law would to that extent be void. Why should therefore there be any exception in the case of Provinces which have disregarded the principles of clause (2) ? These principles are immutable and must be respected in all cases, and if there has been any violation it has been a deliberate violation of a sound principle and should not be excused. I submit that the law of compensation should apply to all equally. I regret very much that I have taken a little more time than I might have, but I believe that the case goes without much attention in the House and that is my excuse for speaking at length.
Mr. President: Amendment 409-Mr. Bharathi
Shri L.Krishnaswami Bharathi (Madras: General): Not moving.
Mr. President: Amendments Nos. 416, 417 and 421 are covered by amendments which have been moved already. 423.
Shrimati Purnima Banerji (United Provinces : General): Sir, I beg to move:
"That in amendment No. 369 of List VII (Seventh Week), in sub-clause (b) of clause (5) of the proposed article 24, after the word 'property' the words 'or for ensuring full employment to all and securing a just and equitable economic and social order' be added."
Sir, the object with which I move this amendment is to give effect to some of the principles and clauses which we have already passed when laying down the Directive Principles of State Policy. There we have stated that the State shall endeavour to secure a society in which justice, economic, political and social, shall inform all the institutions of the State. We have already said that an adequate means of livelihood to men and women shall be provided and the economic resources of the country shall be so handled as to avoid concentration in the hands of a few and to avoid its working to the detriment of the common people. At that time when these clauses were under consideration we also felt --and some of us felt very strongly-that in the Fundamental Rights the right of livelihood, the right of earning honourable bread, should be guaranteed to all people. But at that moment we realised that in order to do that a new order of society will have to come into being which possibly will take some time and therefore the right of livelihood was included in these Directive Principles of State Policy. We consider these Principles to be absolutely essential and in fact our guiding star in the future. For that reason, if provisions are not made in this article dealing with Property Rights and the economic policy of the future State is in any way fettered and made rigid, we feel that-we shall not be able to succeed in these articles which we have already passed.
Mention has been made of the U.P. legislation, the Abolition of the Zamindari Bill. Perhaps some of us recall that at that moment we had also passed a resolution saying that the U.P. Assembly stands committed to the principle of abolition of capitalism. If that resolution has to have an effective meaning and if we are to see that the 'country does develop upon such lines as will harness the resources of the State for the common benefit, it is most essential that when public good should so demand we should be able to do so. Provision should be made that compensation should be paid, as it has been proved that we are all anxious to pay compensation, but if we are not able to do so, the clause should provide the taking of property without it. We are all anxious to see that a peaceful transference of society takes place and therefore there is no fear of our expropriating anyone. As you see, the U.P. Abolition of Zamindari Bill not only gives the zamindar compensation but also gives rehabilitation grant. So it proves that it is not in a vindictive spirit that the House in the future may or will function or the new order that is to be created will be pursued in any arbitrar way. If in keeping with this spirit an occasion should arise, as it may arise, when the capitalist system prevalent in the country should be taken in hand for the common good, a provision should be here so that this Constitution may provide for all future development and thus command prop-or respect from the people and may have in it the seeds of that future development upon which the welfare of our country depends.
My friends from Travancore have been extremely apprehensive as to the sort of use that might be made of this provision by a Travancore who happens to be the Finance Minister of the Centre today, and Travancore's fears appear to be shared by the neighbouring State of Mysore. I want to make this perfectly clear that, speaking for myself and for my colleagues ill the Central Government today, there is nothing which we are more anxious to encourage and put through than the industrialisation of the country. And if there is any apprehension that this provision is likely to have the effect of checking the progress of industrialisation in the country, either through private enterprise or through State enterprise. I want this, House to take this assurance from me, that that is about the last thing we want to do in the use of this particular provision; because if there is the slightest possibility of the' operation of this particular provision having the effect of putting some restriction or curb upon the industrialisation of the country, then as far as we in the Centre are concerned, the House may rest assured that the operation of the provision would certainly be adjusted to the requirements of the country in this regard.
There is really no greater problem, for example, the: faces me today as the Finance Minister at the Centre than the determination of the precise repercussions upon industrial development, of the present structure of direct taxation in the country. And as far as we are concerned at the Centre, we are anxious that consistently with public requirements, the structure of direct taxation in the country should be so modified that all unnecessary handicaps in the way of industrial development are not merely removed , but removed as early as possible. Well, that is the point of view from which the Central Government as looking at the problem of industrialisation. I am justified in asking the House to accept this assurance from me that if this Provision should have the slightest effect in checking industrialisation in any of the States concerned, then 'we would be the last to make of this provision.
There is another matter also in regard to which I should like to make a general observation. The speeches this morning, to my mind, seem to be based on the assumption that there is a kind of inevitable conflict between the financial objectives of the Centre and the financial objectives of the States. Nothing could be farther from the truth.
Shri T. T. Krishnamachari: Hear, hear.
The Honourable Dr. John Matthai : As things are shaping today, and as we realise more and more the need for a united structure 'in the country, both politically and economically, the identity of interests between the Centre and the, States is bound to be extremely close. If by the operation of a provision of this kind it is found that the finances of a State are rendered difficult, then it is a problem which will cause. anxiety not merely to that State, but to the Centre also. I am faced with that problem in a large number of cases today. Therefore, if the operation of this provision is going to have the effect of causing budgetary difficulties to any State, the House may depend upon it that it would be as much the interest of the Centre as it would' be the interest of the State to see that necessary adjustments are made, Most of the particular industries to which reference has been made by those who have spoken this morning on behalf of Travancore and Cochin and Mysore are industries which belong to the category of what are called public utility undertakings. Now, public utilities are not quite an easy matter to define with the precision required in a court of law. But we all have' a general idea of what public utility concerns imply. I would therefore give this assurance not merely on behalf of the Central Government, but I know I can give this assurance also on behalf of the Drafting committee who are responsible for this provision, that it is not our intention to levy any tax of the kind referred to in this provision, upon industries run by States whose object is toproduce services of a public utility character. That, as far as our intentions go, is clearly outside the scope of the provision that is under debate today.
There is another assurance that I would like to give. If it happens that this operation is brought into force in respect of any industrial undertaking owned by a State, and if there happens to be, at the same time, an under taking owned by the Centre of the same character, it is our intention that the liabilities imposed upon the State should be equally imposed upon the Centre. As the House knows, it is our idea that, when the Centre hereafter, promotes undertaking of an industrial character, those undertakings should, as far as possible, be organised and managed on the basis of independent public corporations. These corporations for running industrial undertakings would be treated on exactly the same basis as the States would be treated in respect of similar industrial undertakings. With regard to undertakings run by the Centre directly, departmentally, the analogy of the railways and the Posts and Telegraphs which are expected, if there is any surplus in their budgets to make a certain contribution towards the general revenues of the country, would apply.
So I am able to give this assurance. First of all, public Utility, undertakings would be outside the scope of taxation under this provision; secondly, there would not be any discrimination between the Centre and the State in regard to the taxation of industrial undertakings, and I hope the House will now find less difficulty in accepting this provision.
There is just one other point to which I would like to make a reference As regards the question of the budgetary difficulties that might be caused to the States in consequence of taxation imposed under this provision, it is necessary for the House to remember that is in the case of every federal government in the world, so here, we are rapidly making use of the expedient of subsidies or subventions from the Centre for helping the States in promoting essential undertakings of a public utility character, and development projects of national importance. If it happens that the revenue resources of a State are seriously crippled by taxation under this provision, then, assuming that the development projects are projects of national importance, it automatically follows that there is a corresponding obligation which will fall upon the Centre to make up so far as its resources permit such shortfall as might occur in the financial resources of the States. I mention this point only to enforce the suggestion with which I started, that there is today, in the set-up which is gradually growing up and which would be finalised when this Constitution comes into force, a complete identity of interests in respect of financial matters between the Centre and the States. Any objection to this provision on the assumption that there is to be a continuing conflict between the Centre and the Provinces has no justification whatsoever.
The Honourable Dr. B. R. Ambedkar: Sir, the only part of this article which has been subjected to any criticism is clause (3), There has been no comment on any other part of this article. I do not believe that after the reassuring speech which has been made by the Finance Minister there is anybody in the House who will entertain any kind of doubts or fear of parliament exercising this power without regard to the financial resources of the State. I do not think I need say anything more on that point.
Shri P. T. Chacko: In view of the assurance given by the Honourable Finance Minister I would like to withdraw my amendment.
The amendment was, by leave of the Assembly, withdrawn.
Shri P. S. Nataraja Pillai: I would like to withdraw my amendment also. The amendment was, by leave of the Assembly, withdrawn.
Shri S. V. Krishnamoorthy Rao: I would like to withdraw my amendment.
The amendment was, by leave of the Assembly, withdrawn.
Mr. President: What about Mr. Brajeshwar Prasad ?
Shri Brajeshwar Prasad: I am not withdrawing my amendment.
Mr. President: The question is :
"That in amendment No. 272 of List IV (Seventh Week), in clause (1) of the proposed article 266, for the words 'exempt from' the words 'subject to' be substituted."
The amendment was negatived.
Mr. President: The question is:
"That proposed article 266 stand part of the Constitution."
The motion was adopted. Article 266 was added to the Constitution.
Article 296 and 299
Mr. President: There are two articles 296 and 299 and some Members have presented to me that they got notice of certain amendments to these, too late.
The Honourable Dr. B. R. Ambedkar: I am prepared to hold them over,
Mr. President: So these, two articles (296 and 299) will stand over.
Mr. Naziruddin Ahmad: Can we have an assurance as to when these are coming up ?
Mr. President: Some day next week. I may tell honourable Members that 'we propose to finish all the articles and all schedules except some articles dealing with States and one Schedule and certain other miscellaneous articles two or three-we want to finish all the rest. It depends on the House how soon we shall be able to complete consideration of all the rest of the articles.
The Honourable Shri Ghanashyam Singh Gupta (C.P. & Berar: General): By the 17th at the latest, I suppose.
Mr President : I have that in my mind, but it depends on the House.
An Honourable Member: Fix a date.
Mr. President: If we make quick progress I need not fix any date.
I shall now take up the entries in the Seventh Schedule which were left over-88A in List I and 58 and 58A in List II.
Seventh Schedule and Article 250-Contd.
The Honourable Dr. B. R. Ambedkar: Sir, I move :
"That after entry 88 in List I of the Seventh Schedule, the following entry be inserted
88-A. Taxes on the sale or purchase of newspapers and on advertisements published therein'."
I also move:
"That for entry 58 of List II of the Seventh Schedule, the following entries be substituted :-
58. Taxes on the sale or purchase of goods other than newspapers.
58-A. Taxes on advertisements other than advertisements published in newspapers.'
Sir, with your permission I shall move the other amendment-No. 374-to -article 250 also as it is really part of this.
I move:
"That in clause (1) of article 250, after sub-clause (d), the following sub-clauses be added:-
"(e) taxes other than stamp duties on transactions in stock-exchanges and futures, market;
(f) taxes on the sale or purchase of newspapers and on advertisements published therein."'
Shri. T. T. Krishnachari : I would like to mention that the formal permission ad the House will have to be obtained to reopen article 250 which it will be necessary to do in respect of amendment No. 374.
Mr. R. K Sidhva: I raise a point of order that an article which has been completed and passed by the House cannot be reopened.
MR. President: That is just the point that Mr. Krishnamachari has raised.
Shri R. K. Sidhva No, Sir. He has moved an amendment to reopen the subject I am raising a point or order that it cannot be reopened.
The Honourable Dr. B. R. Ambedkar: That the President will decide--whether you are right or he is right.
Mr. Naziruddin Ahmad : 'There is another matter to which I would like to draw your attention. In regard to the amendment to entry 88-A it is the same amendment as that of Mr. Junjhunwala. It has now been stolen by the Drafting Committee and is being passed on as their own. Curiously enough, Dr. Ambedkar's amendment No is 379 which is the section of the Indian Papal Code relating to theft. Can this sort of literary piracy be allowed ?
Mr. President: You can take credit for having pointed it out.
The Honourable Dr. B. R. Ambedkar: He is quite content with that. He has not lodged a complaint of theft or robbery.
Mr. Naziruddin Ahmad: But theft is a cognizable offence. It is also non-compoundable. It does not depend on the complaint of any one, absence of objection will not excuse it.
Mr. President: We shall deal with the entries first.
The Honourable Dr. B. R. Ambedkar: Sir, when this matter came up last time before the House there was a lot of debate as to what was exactly intended, what the House could do and what I was prepared to accept. You were kind enough to say that the matter might be recommitted to the Drafting Committee. The Drafting Committee after consideration of the same has brought forth new proposals. The proposals are that newspapers and taxes on advertisement in newspapers should be put in List I. That is a matter to which the Drafting Committee has now agreed. The second amendment-No. 379--is merely a consequential thing because since newspapers and taxes on the sale of newspapers and advertisements therein have been brought into List I, it is necessary to exclude the taxation on newspapers under the Sales Tax Act and advertisement therein from the jurisdiction of the State Legislature.
Shri R.K. Sidhva : Sir,
I move:
"That in amendment No. 378 of List VIII (Seventh Week), for the proposed new entry 88-A in List I, the following be substituted :-
'88-A. Taxes on advertisement published in newspapers.' "
"That in amendment No.379 of List VIII (Seventh Week), in the proposed entry 58 of List II, the words 'other than newspapers' be deleted."
Sir, when this subject came up before the House some time back my honourable Friend, Dr. Ambedkar, vehemently opposed the motion that is now sought to be moved by him, or rather moved by him and he made very strong remarks. I wish I could lay my finger on the proceedings and the speech and place them before the House, but unfortunately I could not get them. But I know the House will remember and you, Sir, will remember that he said that under no circumstances shall he allow the sales tax also to be included in List I.
Mr. President: The matter was held over for reconsideration by the Drafting committee. The Drafting Committee is not prevented from reconsidering and putting forward another amendment.
Shri R. K. Sidhva: I know that is so. Everyone has a right to change his opinion, but Dr. Ambedkar while moving his amendment should have enlightened the House as to the reasons which necessitated him to change his views.
My point is this, that this amendment, as proposed by Dr. Ambedkar, seeks that the sales tax on newspapers which is in the State. List should also be brought under List I. Now this is an invidious distinction. Sir, I think that in the list of items on which the provinces levy a sales tax there are hundreds of items. To select one item out of them and to put it in the Union List is, in my opinion, objectionable, invidious and unfair. It might be misunderstood by the people as a whole in the country. They will be suspicious as to what has actuated the Constituent Assembly to select this particular item which is rightly put in List II, and bring it to List I. It may be argued that this is done as newspapers have a bearing on the fundamental rights as was urged the other day. As you have rightly held the other day in your ruling. Fundamental rights relate to speeches and expressions. What have taxes to do with speeches and expressions?
I, therefore, fail to understand why it is going to be brought in List I. My difficulty is that when a very responsible member as the chairman of the Drafting Committee held a different view the other day, he should have explained to us what was the object. If I were satisfied, I would not have raised this point. Let all the sales tax go to the Centre. Sales tax, as it is at present levied in the different provinces, have worked havoc on trade and commerce. An article is taxed in Bombay; the same article is sent to C.P. and is taxed over again. Therefore, I certainly desire that the sales tax should come within the purview of the Centre. As at present levied it upsets the whole economy of the country. But why choose this particular item, I fail to understand. I might be misunderstood by the country as an instance of favouritism. The best course in the present circumstances would be to hold this item over till the whole question of the sales tax is decided. Let the Centre take over the sales tax. I am in favour of it.
I was myself a signatory to the amendment that was moved by my Friend, Mr. Goenka. I was very clear in my mind when I put my signature that it related to the advertisement only and not to the sales tax. But my attention was drawn to the fact that the language used covered the sales tax as well. I admit my mistake in signing it. Generally I do not sign anything without reading and understanding its implications. But my intention now is the same as it was before that sales tax should not go into List I.
Now, Sir, it may be that this inclusion in List I is for the purpose of exemption of newspapers from advertisement and sales tax. I have very great regard for the nationalist papers which have fought for the freedom of the country during the days of British imperialism whose main object was to crush nationalist newspapers. I do not dispute for a moment that they deserve all kind of encouragement; there is no question about it. But today I do not know which paper to call nationalist. Having been an editor and proprietor for over twelve years of a newspaper, I know the odds against which they had to struggle in those days. I take my cap off before them. The Bombay Chronicle one of the biggest nationalist papers in India was killed twice, but it still survives, thanks to it able editors like Mr. Horniman and Mr. Brelvi. Effort was made to kill the Indian Daily Mail started by a millionaire in Bombay and it was actually killed through the agency of British Imperialism. I appreciate all that the nationalist papers have done, but I want that appreciation to be expressed by the front door in recognition of the services rendered by them. Why do you want this to be put in List I and create complications and doubts in the mind of the public? My point is that if exemption is to be given, I am for it on the grounds I have urged. Never mind if other papers take advantage of it, but this tax is also bad. I know today 80 per cent of the papers are small ones and they could not afford to bear the proposed tax. Only 15 per cent of the papers are today rolling in money and it may be asked why should they not pay the tax ? My Friend Deshbandhu Gupta – I have great respect for him. From a small man he has risen to a big man. Mr. Suresh Chander Mazumdar another gentleman deserves same compliments. But why should these others who are rolling in wealth in other business – why should they be exempted? Yesterday, I was reading that an American syndicate is going to purchase the "Civil and Military Gazette". They are out to purchase important newspapers in India. Is it fair that they should be exempted? I do not want to make any distinction between Indian and foreign newspapers. If Times of India can be purchased, on payment of crores of rupees this syndicate can purchase all important newspapers. Why should they be exempted? When you put this tax in the Constitution, you bind down for all times. I submit the case has not been properly placed before the House and my Friend Mr. Goenka will excuse me for saying that he has bungled.
Shri T.T. Krishnamachari: May I tell my honourable Friend that no exemption whatever is contemplated?
Shri R.K. Sidhva: Well, Mr. Krishnamachari, better leave it to commonsense. You are not the authority to state here that exemption is not contemplated. I know what is contemplated. That is why I am worried. Let us be straightforward. These things should not be brought forward in this manner just to hoodwink. It is hoodwinking the people and nothing else. Let us be straightforward and honest. You cannot humbug the people or hoodwink the House. Dr. Ambedkar may be too clever but he cannot be too clever all the time. We understand what is behind the screen. I do not like this to be brought in this fashion. If this amendment is held over, let us apply our mind and put in this fashion. If this amendment is held over, let us apply our mind and put up a proper amendment. I shall be prepared to move an amendment that papers be exempted from all taxes, if it is agreeable I do realise that the nationalist papers have done service and in recognition of that service, if you want to exempt them, I am prepared for it. I am prepared to go further and exempt all papers. I suggest therefore that instead of accepting the amendment, I humbly suggest to my friends Messrs. Goenka and Gupta : "Let us apply our mind and put in an amendment or exemption, so that our position may not be misunderstood." I again repeat this august Body, this Constituent Assembly, should not humbugged. This august Body should not be hoodwinked. I want straightforward manners to be adopted, particularly in our Constitution. I hope, Sir, that you, Mr. President, will also appeal to Dr. Ambedkar and Messrs. Goenka and Gupta not to put in something for which the Constituent Assembly may be ridiculed. This august Body should not be ridiculed. Let there be no criticism that we have somehow or other, for somebody's benefit, transferred this to List I in the name of Fundamental Rights which I fundamentally oppose. This not germane to the Fundamental Rights. I again appeal, in the interest of this Constituent Assembly for which I have great respect, to you, Sir, who is the President and Custodian of this Assembly – I submit to you in all humility that you will kindly prevent invidious distinction being caused. I repeat 80 per cent of the newspapers will suffer by taxes. Only some of the newspapers can afford to pay. After all, tax on newspaper advertisements will be borne by those who advertise. The cinema tax – who pays it? The consumers pay. Provincial governments levy it on cinemas, the cinemas levy it on the consumer. Similarly, if there is to be a tax on advertisements, the advertiser has to pay. I do not want to envisage that position. I do not want small newspapers to be killed. If there are ten big newspapers who will be exempted, I do not mind. Let not 80 per cent be injured. Let us from that point of view try to come to a settlement.
Mr. President: I confess, Mr. Sidhva, that I have not been impressed by your moral indignation. I have not seen any cause for it. It is a simple amendment moved by the Drafting Committee and I do not see anything wrong in the amendment proposed.
Shri R.K. Sidhva: Out of all, why is the newspaper singled out ?
Mr. President: That is a different matter.
Shri R.K. Sidhva: That is the point. Why has it been singled out ?
An Honourable Member: Wait and see.
Shri Deshbandhu Gupta(Delhi) : Mr. President, Sir, it is a matter of no small satisfaction to me to note that the Drafting Committee has appreciated the point of view urged by my Friend Mr. Goenka and many members of this House in the amendments which they sought to bring before the House. It is a matter of still greater satisfaction that even Dr. Ambedkar has agreed to these amendments and that these amendments have his whole hearted support. There is much in one point made out by my Friend Mr. Sidhva. The House is aware that the other day when this matter was discussed on the floor of the House, I did take fundamental objection to the very imposition of taxes on newspapers. No one would be happier than myself and my friends belonging to newspapers. No one would be happier than myself and my friends belonging to the press, if the House were to decide today that newspapers will be free from all such taxes. Of course that is what it should be, because in no free country with a democratic Government we have any such taxes as the sales tax or the advertisement tax.
But I fail to understand the argument of my Friend Mr. Sidhva when in one breath he says that he is prepared even to go to the extent of exempting newspapers from all taxes and in the same breath he holds that there should be no distinction between newspapers and other goods so far as the imposition of sales tax is concerned. This is an argument which, I must say, is very difficult for me to understand. I claim that newspapers do deserve a distinctive treatment. They are not an industry in the sense that other industries are. This has been recognised all over the world. They have a mission to perform. And I am glad to say that the newspapers in India have performed that mission of public service very creditably and we have reason to feel proud of it. I would therefore expect this House and my Friend Mr. Sidhva to bear it in mind at the time when God forbid any proposal, comes before the Parliament for taxation. That would be the time for them to oppose it.
Sir, after all, this is an enabling clause. It does not say that there shall be sales and advertisement tax imposed on newspapers. It does not commit the House today to the imposition of a tax on the sales of or a tax on advertisements published in newspapers. All that we have emphasised is that newspapers as such should be taken away from the purview of the provincial governments and brought to the Central List so that, if at all at any time a tax is to be imposed on newspapers it should be done by the representatives of the whole country realising the full implications of their action. It should not be an isolated act on the part of some Ministry of some Province. That was the fundamental basis of our amendment. When we tried to convince the Drafting Committee and other Members and particularly our Friend Dr. Ambedkar, our main argument in favour of transferring the subject to the Central List was a political one. It should not be taken for granted that I or my friends of the Press of India are in any way committee or agreeable to the imposition of such taxes. Not in the least. We have been all along opposed to it; we must recognise that barring the two provinces of Bombay and Madras all other Provinces have so far stood for the freedom of the Press. They have never exercised the right of taxing newspapers. But, ever since this question came up before the country the whole Press has opposed it vehemently on fundamental grounds, and demanded that if these taxes are to be levied they should be levied by the Centre. While making this demand, are we not aware that the newspapers published from the provinces that have not imposed any such taxes remain untouched today, particularly the newspapers of Delhi which are directly under the Centre and on which there can be no question of a sales tax being imposed unless the Parliament goes to the extent of imposing it? If today all newspapers including those published from Delhi, are opposing the imposition of these taxes with one voice and demanding their inclusion in the Centre List, they do so, not because it is a question of saying some money, but because the fundamental question of the liberty of the Press is involved. By advocating their transfer to the Central List we are prepared to run the risk of having these taxes imposed in Delhi, and in other provinces which have not sought to impose such taxes so far. But we do not want to leave it to the provinces so that the liberty of the Press remains unimpaired. We have faith in the Parliament; we have faith in the collective wisdom of the country and we have no doubt that when this matter is viewed in the correct perspective, there will be no such taxes imposed on the newspapers, but we have not got that much faith in the provincial Ministries. It is in that hope and having a full realisation of the situation that we have agreed as a matter of compromise, or should I say as a lesser evil, to have these two taxes transferred from the Provincial to the Central List.
I am glad to know that my Friend Mr. Sidhva was also at one time connected with the Press like so many other political leaders who in their career had at one time or other been connected with the Press; and I am sure that if the question of imposing such taxes came up before Parliament, at any time, we will have his fullest support and his voice will be raised against any attempt on the part of parliament to impose taxes on either the sales of or on advertisements in newspapers.
To my mind it appears that in certain quarters there exists a general prejudice against newspapers. As my honourable Friend Mr. Sidhva believes, some newspapers may have given the impression that they are "rolling in wealth", but what is their number ? Sir I do not want to take the time of the House in discussing the economy of the newspapers and painting the true picture of the newspapers as to where they stand today as compared with the taxes of other free countries of the world. But, I may point out to Mr. Sidhva and those who think alike, that there may be some big newspapers which can afford to pay taxes and that it may be that it was to hit such newspapers that these taxes were conceived but take it from me that the bulk of the newspapers will be simply crushed and if there is any hope of independent journalism in this country, that can be realised only if we leave the newspapers alone and not impose these distinctive taxes. Otherwise we will be paving the way for the transfer of smaller newspapers which have been struggling all along for existence to the capitalist.
I believe no one knows better than you, Sir, as to why the Searchlight of which you were the founder has joined a chain. There are other papers which have similarly joined one or the other chain. If you look into the past history of the newspapers you will find that there was not a single nationalist newspaper in India which was not started with the beggar's bowl in the hands of its founder. Sir, who does not know that the late Pandit Madan Mohan Malaviya had to go from house to house begging people to take the shares of one of the biggest papers which Delhi is proud to own today.
Mr. President : I did not want to interrupt the honourable Member. But then here we are concerned only with the entry in the Union List.
Shri Deshbandhu Gupta: Sir, as Mr. Sidhva has raised the question that the newspapers did not deserve a distinctive treatment, I am only trying to remove that prejudice. I am fully conscious of the fact that I must not take more time of the House. But then as this is an important matter I seek your permission to give me a little more time.
The history of many other newspapers will show that they too had a very precarious beginning and that those who started them did not do so with a commercial motive. It is true that during the last few years some newspapers have financially benefited by the last war. But their past history should not be forgotten and we should not ignore the fact that after all newspapers have a mission to perform and that they are essential for the very existence of a democratic form of Government. They are essential for educating the electorate and for running the democratic form of Government in the country ion proper lines. In these circumstances any step taken to weaken the Press will be calculated to harm the democratic form of Government, nay, the freedom of the people will be jeopardised as has been rightly pointed out by the U.S. Supreme Court Judges to whose memorable judgment reference was made the other day. According to them "Fettering the press is fettering ourselves." So in the name of the freedom of the Press and in the name of the future of Indian journalism, I appeal to this House always to bear in mind that newspapers as such to deserve a distinctive treatment. Newspapers are as essential for the Government as for the good of the country and we must always regard them as such.
Sir, I hope most of the Members of this House are well aware that in the freedom movement of 1942 out of the 145 papers, as many as 96 papers voluntarily closed their offices soon after the memorable Resolution of 9th august was adopted. Can you cite another example in the history of the whole world when such a large number of newspapers at a moment's notice closed their shops without caring as to what will happen to them in the future? Most of them were not content with merely closing their shops, their proprietors and editors took active part in the movement and went to jail. Sir, even today there are many nationalist papers which, although struggling for existence, have imposed a voluntary check on themselves and do not publish advertisements of liquor, and foreign cloth? Can one deny, Sir, that these papers have placed an ideal before them and that they have been trying to live up to those ideals? Do not they deserve exemption from such taxes? It may be that even a few rich newspapers will benefit if no such taxes are levied. But such newspapers have been benefiting from the very beginning. They have been enjoying Government patronage in the past in large measure, and perhaps the House will be surprised to learn that there are some papers in this country today which had closed in 1942 voluntarily, and had always been the vanguards of the freedom movement, but are being discriminated against in the matter of placing advertisements by some Governments. In some cases old circular still continue to be acted upon and these nationalist papers are being discriminated against in the matter of placing Government advertisements.
Mr. President: We are not concerned here with any circular, or any decision for levying a tax. It is only a provision in the Constitution that we are concerned with. When the question of levying a tax arises, all these arguments will arise.
Shri Deshbandhu Gupta: I only wish to say, Sir, that even our Government has recognised the distinctive nature of the press, in the matter of transport facilities, in the matter of concessions in postal rates, in the matter of so many other concessions. So it is already recognised that newspapers have to be treated distinctly.
I do not want to elaborate the argument further but I do wish to place before the House one other aspect of the question and the reason why we seek to transfer these subjects to the purview of the Centre. There is a Bill that is pending before the Select Committee in Madras. I wish to make a passing reference to some of the clauses of this Bill. Under the Madras Bill they seek to impose an advertisement tax of 10 per cent on the gross revenue from advertisements.
Prof. N.G. Ranga (Madras : General) : Only newspapers getting above a minimum revenue.
Shri Ramnath Goenka (Madras : General) : It is not so.
Shri Deshbandhu Gupta: If you refer to the Bill, you will find that it applies to all newspapers. The Madras Government has not only gone to the extent of proposing a tax of 10 per cent on press advertisement revenue of newspapers; their Bill further seeks to give to the Government the power to exempt certain papers from these taxes. It also seeks to provide the taking of a licence by newspapers before they can start functioning. So this is the respect they show to the newspapers and to the honourable profession of journalism. There is no realisation of the fact that newspapers are the real saviours of democracy, and the fighters for the rights of the common man. The Bombay Government too has imposed a tax of 6 ½ per cent, that also on the gross revenue from advertisements. This was an eye-opener to us and a clear indication of the fact that if these taxes were allowed to remain within the purview of the provincial governments, there may come a day when most of the smaller newspapers will have to close down. It was in view of this realisation, by the Press that my Friend, Mr. Goenka and other, suggested as a lesser evil that these taxes should at least be transferred to the Central List so that the country may as a whole decide whether newspapers should be taxed at all and, if to be taxed, to what extent.
One word more and I have done. Sir, although I support the amendment proposed by my Friend, Dr. Ambedkar, I only wish to make it clear that this should not be taken to mean that we agree to the imposition of any such taxes on newspapers in the future. Perhaps the House is aware that the All-India Newspaper Editors' Conference, the Indian and Eastern Newspaper Society and the Indian Languages and Newspapers Association, all these three bodies representing the Press of India met in Delhi last month and passed a unanimous resolution against all such taxes on newspapers – of course I am not referring to income-tax or super-tax, to which no one objects. All these bodies take a very serious view of this question. I hope that in any decision which this House takes now or the Parliament may take in future, they will always bear in mind that the existence of a vigorous and independent press is very essential for the good of the country and that anything done to weaken the press will weaken democracy, weaken the Government and will weaken the strength of the people. With these words, Sir, I extend my support to the amendment moved by Dr. Ambedkar and I thank him once again for having appreciated the point of view of the newspapers.
Prof. N.G. Ranga : Mr. President, Sir, I am glad that this clause has come to be included in the Constitution. It is necessary that the newspapers should come within the purview of Central taxation. It also shows how strong has come to be this fourth estate today. If the newspapers of this country, especially the daily newspapers, had not come to be so powerful, it would not have been possible for these alterations to be made in the lists of taxation that are proposed to be included in this Constitution. This question would not have come up at all for such serious consideration if the Madras Government had not taken the initiative in proposing to tax all advertisement revenues of the daily press and the other presses also. Once the taxation move was made by the Madras Government, my friends of the newspapers opened their eyes and saw that any amount of mischief could be done against themselves and their revenue if ever the provincial governments were to be given this power to tax. Therefore, they have raised this matter in this forum and succeeded in including this in the Central List, as an item of Central taxation. Sir, I do not grudge this, but I do wish to maintain that the financial position of the newspapers has considerably altered ever since the last war. Whatever might have been the position of many of the daily papers in this country before the last war ever since this war most of them have come to make huge profits and many of them are not mere independent journals, mere independent newspapers, but many of them have come to be included in a series of chains of proprietors and proprietorships.
Shri Deshbandhu Gupta: May I ask honourable friend, who has been to the Western countries, as to how does the best of the Indian papers compare with those in the Western countries?
Prof. N.G. Ranga : I wish my honourable friend every success in his attempts to gain as much money as the Western proprietors are making. I would not grudge him indeed if his paper were to flower out one of these days like the New York Times and produce 60 or 64 pages on every Sunday and serve its readers; but I do grudge him when he has got all the revenue for himself and he is not prepared to part with a portion of it to the State. That is why I say Sir, that these daily newspapers which make these huge profits anyhow and these newspapers which are making profits over a particular prescribed minimum should not be given any special treatment but should on the other hand be made to pay as any other estate would have to pay upon the revenues that they would be deriving from advertisements.
Shri Ramnath Goenka: They pay income-tax and super-tax.
Prof. N.G. Ranga : In spite of that they make such huge profits. My honourable Friend Mr. Goenka himself must be knowing it, not to his cost, but to his benefit; and these newspapers have got to be made to pay and contribute as well as they could, and I do not see any reason why these concessions should continue to be given, and it is high time that our politicians and our legislators should be able to assert themselves in all their independence and see that these people, powerful as they are, more and more powerful as they threaten to grow in the near future, that they should be expected to make some sort of contribution correspondingly and indeed progressively as any other source of income that we find in our part of the world.
Sir, newspapers, it is true, serve a very useful national interest; otherwise, they would not be here at all. They would be prohibited just as arrack and spirits and all these things are prohibited; merely because they serve a useful purpose they are allowed to carry on their trade. As long as they are allowed to carry on their trade; let them be treated only in the same way as all other trades and let them not ask for any special privilege. My honourable Friend, Mr. Deshbandhu Gupta has grown eloquent about the contribution made by the newspapers during the national struggle. All glory to them and to such of them which had the courage to close down their offices. That is no reason why the profits they are making today, tomorrow and the day after tomorrow....
Mr. President: I wish to tell Mr. Ranga, that we are not discussing any proposal for taxation today but that we are only discussing an entry in the Constitution.
Prof. N.G. Ranga: I am very glad indeed that this entry is being made in the Constitution. But I would have been gladder if this item had been kept in the Concurrent List so that it would have been a boon to the Provincial Governments as well as the Central Government.
Shri Ramnath Goenka: Have you taxation in the Concurrent List? Have you ever heard of it in our Constitution?
Prof. N.G. Ranga: To the extent that it can possibly be kept there.
Mr. President: Mr. Goenka, I hope you would not go into the history of newspapers. All that we have already done.
Shri Ramnath Goenka: Mr. President, Sir, I did not want to intervene in this debate, but Messrs. Ranga and Sidhva have prompted me to say a few words. So far as I am concerned, I am not proud of the fact that this entry finds a place in the Central List. In fact this taxation had been condemned as far as 150 years back in the advanced democracies of the world. I am really ashamed that such an entry should be found in the Constitution of this country. There is no Constitution in the world where such an entry of taxation of newspapers exists. This is the only country where we have it, not because it is the right thing to do, but because we have Sidhvas and Rangas and therefore it is that we have this entry in this List. I am sure, Sir, when the time comes for the Central Parliament to decide the matter in regard to the taxation, they will go by – not the revenue which the newspapers make, by circulation, advertisements and such things – but on the basis of the net profits that they make. I am one of those who will say that newspapers are not money-making propositions. I will say that newspapers are there to serve the public and give them a free flow of information. I am one of those who will go the whole hog and say that newspapers should not be allowed to make an considerable sums of money; but you shall not take away the money before they are allowed to sere the public, by taxation on sales and advertisements, whatever their incidence may be.
An Honourable Member : You serve the public very rarely.
Shri Ramnath Goenka: What I would like to say is this that if any taxation is to be levied on newspapers, it should be levied on the basis of the net profits they make. I am one of those who would say that if any newspaper makes more than 3 per cent of its capital, the rest of the money should be appropriated by the State but before you allow them to serve, you cannot take away the money from them. So far as the newspaper economy is concerned, you will be amazed to know that the cost of the newsprint used in production of a newspaper is only equal to the net proceeds of the sale of the newspaper. Therefore, the gross revenue is only the advertisement revenue and if you take away 10 per cent 15 per cent and 20 per cent of the gross revenue, what will be its effect on newspaper economy? Do you want your newspapers to compare favourably with the Manchester Guardian, the London Times and the New York Times or would you like your newspapers to be some sort of a rag produced in this country?
Shri R.K. Sidhva : Produce the balance sheet.
Mr. Naziruddin Ahmad : On a point of order, are we considering the item as in the List or are we considering a proposal for taxation?
Mr. President: You are perfectly justified in raising the point of order. I have myself reminded the speaker several times that we are not considering any proposal of taxation but only an entry in the Constitution.
Shri Ramnath Goenka: I will bow to your ruling : but so far as the newspapers are concerned, they are not proud of seeing this entry either in List I or II, but as a matter of compromise we had to agree to it and I say that this taxation which has been condemned in all the advanced democracies of the world 150 years ago, should not have found a place in this Constitution and since we have certain difference of opinion in regard to this matter, we have agreed to this; and I hope, believe and trust that the Central Government will not resort to his taxation.
Mr. President: I do not think any further discussion is necessary.
Shri B.L. Sondhi (East Punjab : General) : Closure, Sir.
Shri Prabhu Dayal Himatsingka (West Bengal : General) : I should like to say just one or two words. I want the sales tax should be put in the Central List. In fact there was an amendment to that effect.
There is so much confusion in the different provinces on account of the sales tax that something must be done to regularize the thing and remove part of the difficulty that is being felt by all under it.
Mr. President: We are not discussing that now.
Dr. P.S. Deshmukh (C.P. & Berar : General) : Closure will save exposure.
The Honourable Dr. B.R. Ambedkar : Sir, in view of what my honourable Friend Mr. Sidhva said that I have been inconsistent in my attitude towards these entries, I should like to offer one or two observations by way of explanation. Sir, I said in the course of the debate that took place last time over this matter that the newspapers were very intimately connected with article 13 which deals with Fundamental rights. Therefore in making any provision with regard to newspapers that is a matter which has to be borne in mind.
The second thing is that so far as any regulation of fundamental rights is concerned, under article 27 of the Constitution which we have already passed we have left all matters of legislation regarding fundamental rights to Parliament and we have not left any power with the States. It therefore appeared to me and also to the Drafting Committee that in view of these consideration, namely, that newspapers were coming under fundamental rights, and all laws regarding fundamental rights were being left to Parliament, it was only a natural corollary that newspapers for purposes of taxation should also come under the authority of the Centre.
A third consideration which prevailed with the Drafting Committee as well as with myself was that in view of the fact that newspapers were connected with fundamental rights, namely the freedom of expression and thought, it was desirable that any imposition that was levied upon them should be uniform and not vary from province to province. Such uniformity can be obtained only if the matter was left to Parliament to make laws. These are the three considerations which prevailed with me and prevailed with the Drafting Committee in the view that they have taken.
The only other consideration of importance was that this item was not purely an item dealing with making laws. It also dealt with levying a tax in so far as newspapers were included in the term goods in entry 58 of List II. We therefore thought that in order not to deprive the provinces of such revenue as they might be able to make by imposing a levy upon newspapers under the Sales Tax Act, the proper thing to do was to include the sales tax on newspapers in article 250 which includes many other items and provides that if any taxation was levied upon them, the proceeds shall be distributed among the various provinces.
Therefore, the only question for consideration that arises is whether by making this transfer from List II to List I, we are injuring so to say the finances of the provinces. My answer is that we are not doing any injury to the provinces because if the House would agree to carry my amendment No. 374, the provinces will get such portion of any tax on the sale of newspapers as they may have raised and now receive, under the amendment No.374. In making these proposals, we have taken into consideration as I said the general proposition that newspapers having been connected with fundamental rights, ought to come under the jurisdiction of the Centre, and that any financial gain which the provinces would have got should not be lost sight of. Both these considerations have prevailed with the Drafting Committee in making these changes.
I submit, notwithstanding the declamations of my honourable Friend Mr. Sidhva which I can understand, because he is smarting under a great injury which he suffered in another place, I say that there can be no objection to the entries that we have proposed.
Shri R.K. Sidhva: Sir, I take exception to Dr. Ambedkar's remarks when he said that I am smarting under some injury. I shall pay him in his own coins unless you ask him to withdraw those remarks.
The Honourable Dr. B.R. Ambedkar : I am quite prepared to withdraw them, Sir. But, I know it very well.
Mr. President: That settles the matter. I shall now put the amendments to vote.
The question is:
"That in amendment No.378 of List VIII (Seventh Week), for the proposed new entry 88-A in List I, the following be substituted:-
' 88-A. Taxes on advertisement published in newspapers.' "
I think the Noes have it.
Some Honourable Members : Ayes have it, Sir.
Mr. President: No.
The amendment was negatived.
Mr. President: Then I put the original proposition moved by Dr. Ambedkar:
The question is:
"That after entry 88 in List I of the Seventh Schedule, the following entry be inserted:-
'88-A. Taxes on the sale or purchase of newspapers and on advertisements published therein."
The motion was adopted.
Entry 88-A was added to the Union List of the Seventh Schedule.
Mr. President: The question is:
"That in amendment No.379 of List VIII (Seventh Week) in the proposed entry 58 of List II, the words 'other than newspapers' be deleted."
The amendment was negatived.
Mr. President: Then, I put the entry as moved by Dr. ambedkar.
The question is:
"That for entry 58 of List II of the Seventh Schedule, the following entries be substituted:-
'58. Taxes on sale or purchase of goods other than newspapers.
58-A. Taxes on advertisements other than advertisements published in newspapers.' "
The motion was adopted.
Entries 58 and 58A, as amended, were added to the State List of the Seventh Schedule.
Article Re-opened
Mr. President: We have got several articles placed in the order paper today which require reconsideration of the articles that have been passed. The first is article 250 which is intimately connected with the amendments which we have just now passed. Under the rules, no question which has once been decided by the Assembly shall be re-opened except with the consent of at least one-fourth of the Members present and voting. I should like to know if the House gives its consent.
Honourable Members: Yes,
Shri R.K. Sidhva: In the second reading stage, Sir, when article by article is being passed, it is not permissible to reopen. If you allow this precedent, it will be very bad precedent for the future. You cannot shut out any other Member from moving for a reconsideration of any article. There will be no finality then.
Mr. President: I cannot shut out; it is for the House to shut out. If one-fourth of the Members wish a question to be reopened, it can be reopened. I find more than one-fourth of the Members are willing to reopen this article 250.
There are other articles also which will have to be reopened which are mentioned in today's Order Paper : articles 239-242, 248-A, 263, 202. May I take it that the House gives leave to reopen all these articles?
Shri R.K. Sidhva: Sir, Members may not have objection to some articles, while they may object to some. The articles may be put one by one.
Mr. President: I shall put them one by one. Articles 239-242. I take it that the House gives leave to reopen then.
Several Honourable Members: Yes.
Mr. President: Article 248-A. I take it that the Hose gives leave to reopen it.
Several Honourable Members: Yes.
Mr. President: Article 263. I take that the House gives leave to reopen it.
Several Honourable Members: Yes.
Mr. President: Article 202. I take it that the House gives leave to reopen it.
Several Honourable Members: Yes.
Mr. President: Leave is given to reopen all these articles. Article 250 : Dr. Ambedkar.
Article 250
Shri T.T. Krishnamachari: Dr. Ambedkar has already moved it. It is only a formal matter and it can be put to vote.
Mr. President: Does any one wish to say anything about amendment No. 374 moved by Dr. Ambedkar?
(No Member rose)
Mr. Honourable Dr.B.R. Ambedkar : It is only a consequential thing, Sir.
Mr.President : There is no amendment to this. I shall put this to vote.
The question is:
"That in clause (1) of article 250, after sub--clause (d), the following sub-clauses added:-
e) taxes other than stamp duties on transactions in stock exchanges and futures market;
(f) taxes on the sailor purchase of newspapers and on advertisements published therein'"
The amendment was adopted.
Article 202
Mr. President: Article 202.
The Honourable Dr.B.R. Ambedkar : Sir, I move:
"That in clause (1) of article 202, after the words 'to issue 'the words to any person or authority including in appropriate cases any Government within those territories,' be inserted."
I said when moving an amendment to article 302 that a consequential amendment would be necessary in article 202. I am therefore moving this Article 202 as amended will now read as follows: -
"Notwithstanding anything contained in article 25 of this Constitution, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories directions or orders in the nature of writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the rights conferred by Part III of this Constitution for any other purposes."
It is just consequential.
Pandit Thakur Das Bhargava (East Punjab : General) : Why do you say in appropriate cases?
The Honourable Dr. B.R. Ambedkar: Because appropriate cases will be laid down by law of Parliament.
Mr. President:The question is:
"That in clause (1) of article 202 after the words 'to issue' the words 'to any person or authority including in appropriate cases any Government within those territories' be inserted.
The amendment was adopted.
Article 234-A
The Honourable Dr. B.R. Ambedkar: Sir, I move:
"That after article 234, the following new article be inserted:-
Control of the Union over States as respects protection of railways.
'234-A. (1). The executive power of the Union shall also extend to the giving of direction to a State as to the measures to be taken for the protection of the railways within the State.
(2) Where by virtue of any direction given to a State under clause (1) of this critical costs have been incurred in excess of those which would have been incurred in the discharge of the normal duties of the State if such direction had not been given there shall be paid by the Government of India to the State such sum as may be agreed or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India in respect of the extra costs so incurred by the State.'"
Sir, all police first of all are in the Provincial list. Consequential the protection of railway property also lies within the field of Provincial Government. It was felt that in particular cases the Centre might desire that the property of the railway should be protected by taking special measures by the province and for that purpose the Centre now seeks to be endowed with power to give directions in their behalf. It is possible, that by reason of the special directions given by the Centre some extra cost above the normal may be incurred by the provinces. In that event what that extra cost is, may either be determined by agreement or if there is no agreement, by an arbitrator chosen by the Chief Justice of India. The second clause is analogous to many of the clauses that we have passed in the Constitution for settling the disputes between the Centre and the Provinces so far as extra cost is concerned.
Dr. P.S. Deshmukh: Mr.President, I do not feel convinced about the necessity of this provision which refers only to railway property. I do not know what cause there is for special apprehension so far as the property belong to railway is concerned. There will be property belonging to the Centre spread over the length and breadth of India; and why should there be a special and specific provision for the protection and for issuing specific directions in this case only? The House is aware that the Centre has got authority for issuing directions in various spheres and giving certain directions which are necessary for the maintenance of law and order, and for protection of their property also the Centre has power of issuing those instructions generally. Therefore, I have not been able to follow why it was necessary to refer to it specifically and make special mention of the railway property and what causes there are which make us apprehensive of the possible damage to railway property only. I do not think it is proper that we should have such apprehensions apart from the general powers. We have already clothed the Centre with more than sufficient powers and this article should not be necessary. In any case the justification given has not convinced me of the necessity of having this article. There is nothing to fear that the States will not carry out directions without such an article being there and that any dispute will arise so far as the cost is concerned. These are matters which may arise in the normal administration and they can be normally settled and there is no necessity of abnormal provisions and abnormal means of settlement.
Shri Brajeshwar Prasad: Mr. President , Sir, I rise to extend my hearty support to clause (1) of this article, but I am thoroughly opposed to clause (2). There is no reason why an arbitrator should be appointed if there is a conflict between the Centre and the States regarding costs that have been incurred in excess of that that which would have been incurred in the ordinary performance of provincial duties. The master and the servant cannot be placed on the same platform. It is wrong to do anything which would bring about any deterioration of the power and position of the Majesty of the Government of India. Therefore, I want that if there is any conflict between the Centre and the provinces as far as the costs are concerned, the matter may be left entirely in the hands of the President.
The Honourable Dr. B.R. Ambedkar: Sir this clause is very necessary. Mr Friend Mr. Deshmukh when he said, that there were adequate provisions in the existing article we have passed - I am sorry to say - he is fundamentally mistaken. Railway Police is a subject within the authority of the State. Police as an entry does not find a place in List I. Consequently the Centre has no authority to make a law with regard to any police matter at all, nor, not having the legal authority, has it any executive authority. Therefore so far as protection of the railway property is concerned the matter is entirely within the executive authority of the State. That being so, there are only two methods of doing it. Either the Centre should be endowed with police authority for the purpose of protecting their own property in which case an article such as the one which I have moved is unnecessary or we should have the provision which I have suggested viz. to give directions. Supposing the Centre has a police to protect railways, that police may come in conflict with the police authority of the State. Therefore the double jurisdiction has been avoided by the scheme which has been suggested viz., that the Centre should have the authority to give directions that more police may be posted on the railways, better precautions may be taken, so that there will not be any conflict, and should more expenditure be incurred the Centre should be ready to bear it. I cannot see what difficulty there can be. Dr. Deshmukh's premise that this matter is already covered in hopelessly wrong.
Dr. D.P.Deshmukh: What is the reason, why we do not need any protection so far as the rest of the property of the Union is concerned? How do you distinguish between railway property and others?
Dr. P.S. Deshmukh: What is the reason, why we do not need any protection so far as the rest of the property of the Union is concerned ? How do you distinguish between railway property and others?
The Honourable Dr. B.R. Ambedkar: Because we find the railway property needs more attention. The safety of passengers is there.
Mr. President: The question is:
"That after article 234, the following new article be inserted:-
Control of the Union over States as respects protection of railways.
'234A. (1) The executive power of the Union shall also extend to the giving of direction to a State as to the measures to be taken for the protection of the railway within the State.
(2) Where by virtue of any direction given to a State under clause (1) of this article costs have been incurred in excess of those which would have been incurred in the discharge of the normal duties of the State if such direction had not been given, there shall be paid by the Government of India to the State such sum as may be agreed or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India in respect of the extra costs so incurred by the State.'"
The motion was adopted.
New article 234A was added to the Constitution.
New Article 242-A
Mr. President: Dr. Ambedkar, you may move amendment No.372A regarding the heading.
Shri T.T. Krishnamachari : If No.373 is passed, then the deletion of the heading is consequential.
The Honourable Dr. B.R. Ambedkar: Sir, I move amendment No. 373:
"That after article 242, the following new article be inserted:-
Adjudication of disputes relating to waters of inter-State rivers or river valleys.
'242A. (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.
(2) Notwithstanding anything contained in this Constitution, Parliament may, by law, provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1) of this article.' "
Sir, originally this article provided for Presidential action. It was thought that these disputes regarding water and so on may be very rare, and consequently they may be disposed of by some kind of special machinery that might be appointed. But in view of the fact that we are now creating various corporations and these corporations will be endowed with power of taking possession of property and other things, very many disputes may arise and consequently it would be necessary to appoint one permanent body to deal with these questions. Consequently it has been felt that the original draft or proposal was too hide-bound or too stereo-typed to allow any elastic action that may be necessary to be taken for meeting with these problems. Consequently, I am now proposing this new article which leaves it to Parliament to make laws for the settlement of these disputes.
Shri R.K. Sidhva: Article 242 is proposed to be deleted, and so how does this new article 242A come up after article 242?
The Honourable Dr. B.R. Ambedkar: This one only indicates the position.
Mr. President: We have passed article 242. Now, does any one want to speak on this new article ? There is no amendment to it.
Shri Brajeshwar Prasad : Mr. President, Sir, I support clause (1) of this article, but I feel that there is no necessity for vesting power into the hands of Parliament to make laws for resolving disputes in connection with inter-State river and river valleys. That matter I feel, should have been left in the hands of the President alone.
Mr. President: Now, I put the new article 242-A to vote.
The question is:
"That article 242A stand part of the Constitution.
The motion was adopted.
New article 242A was added to the Constitution.
Mr. President: Amendment No.372A.
The Honourable Dr. B.R. Ambedkar: Sir, I move:
"That the heading above article 239, and articles 239, 240, 241 and 242 be deleted.
These are covered by article 242-A and therefore are unnecessary.
Mr. President: Does anyone wish to say anything about this amendment? There is no amendment. I then put it to the House.
The question is;
That the heading above article 239, and articles 239, 240, 241 and 242 be deleted."
The motion was adopted.
The heading above article 239, and articles 239, 240, 241 and 242 were deleted.
Articles 248-A, 263 and 263-A
The Honourable Dr. B.R. Ambedkar: Sir, I should like to move the three amendments 380, 381 and 382 introducing three new articles, and I begin with amendment No. 282 because the rest are consequential.
Mr. President: All right.
The Honourable Dr. B.R. Ambedkar: Sir, I move:
"That after article 263, the following new article be inserted:-
'263A. All moneys received by or deposited with-
Custody of suitors' deposits and other moneys received by public servants and courts.
(a) any officer employed in connection with the affairs of the Union or of a State in his capacity as such, other than revenues or public moneys raised or received by the Government of India or the Government of a State, as the case may be, or
(b) any court within the territory of India to the credit of any cause, matter, account or persons shall be paid into the public account of India or of the State, as the case may be.'"
Sir, if you permit me, I shall move the other amendments also and then offer some general observations to enable Members to understand the changes that we propose to make.
Mr. President: Yes.
The Honourable Dr. B.R. Ambedkar: I move amendment No.380 and amendment No.381. I move:
Amendment No. 381."That for article 248A, the following article be substituted:-
Consolidated Funds and Public Accounts of India and of the States.
'248A. (1) Subject to the provisions of article 248B of this Constitution and to the provisions of this Chapter with respect to the assignment of the whole or part of the net proceeds of certain taxes and duties to States, all revenues received by the Government of India and all loans raised by them by the issue of treasury bills, loans or ways and means advances and all moneys received in repayment of loans shall form one consolidated fund to be entitled. "The Consolidated Fund of India" and all revenues received by the Government of a State, loans raised by the Government of a State by the issue of treasury bills, loans or ways and means advances and all moneys received by a State in repayment of loans shall form one consolidated fund to be entitled "The Consolidated Fund of the State.
(2) All other public moneys received by or on behalf of the Government of India or the Government of a State shall be credited to the public account of India, or of the State, as the case may be.
3) No moneys out of the Consolidated Fund of India or of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution.' "
"That for article 263, the following article be substituted:-
Custody of consolidatedFunds, contingency Funds and moneys credited to the public accounts and the payment of moneys into and withdrawal of moneys from such Funds and public accounts.
'263, (1) The custody of the Consolidated Fund and the Contingency Fund of India, the payment of moneys into such Funds, the withdrawal of moneys therefrom, the custody of public moneys other than those credited to such Funds received by or on behalf of the Government of India, their payment into the public account of India and the withdrawal of moneys from such account and all other matters connected with or ancillary to matters aforesaid shall be regulated by law made by Parliament, and, until provision in the behalf is so made by Parliament, shall be regulated by rules made by the President.
(2) The custody of the Consolidated Fund and the Contingency Fund of a State, the payment of moneys into such Funds, the withdrawal of moneys therefrom, the custody of public moneys other than those credited to such Funds received by or on behalf of the Government of a State, their payment into the public account of the State and the withdrawal of moneys from such account and all other matters connected with or ancillary to matters aforesaid shall be regulated by law made by the Legislature of the State, and until provisions in that behalf is so made by the Legislature of the State, shall be regulated by rules made by the Governor of the State.'"
Briefly, the changes are two-fold. In the original article No.248A as it stood, the scope of the Consolidated Fund was limited. The Consolidated Fund did not specifically refer to the proceeds of loans, treasury bills and ways and means advances. We now propose to make a specific mention of them so that they will form part of the Consolidated Fund.
The second thing is that in drawing the definition of the Consolidated Fund we lumped along with it certain other moneys which were received by the state, but which were not the proceeds of taxes or loans, etc., with the result that public moneys received by the State otherwise than as part of the revenues or loans also became subject to an Appropriation Act, namely the provision contained in sub-clause (3) of article 248A. Obviously the withdrawal of money which should strictly not form part of the Consolidated fund from other funds which go necessarily into the public account that these changes are made. There is no other purpose in these changes. The Finance Ministry drew attention to the fact that our provision in regard to the Appropriation Act was also made applicable to other moneys which generally went into the public account and that that was likely to create trouble. It is in order to remove these difficulties that these provisions are now introduced in the original article.
Mr. President: The question is:
"That after article 263, the following new article be inserted:-
'263A. All moneys received by or deposited with-
Custody of suitors' deposits and other moneys received by public servants and courts.
(a) any officer employed in connection with the affairs of the Union or of a State in his capacity as such, other than revenues or public moneys raised or received by the Government of India or the Government of a State, as the case may be, or
(b) any court within the territory of India to the credit of any cause, matter, account or persons, shall be paid into the public account of India or of the State, as the case may be'"
The motion was adopted.
New article 263A was added to the Constitution.
Mr. President: The question is :
"That for article 248A. The following article be substituted -
Consolidated Fund and public account of India and the of the States
'248A. (1) Subject to the provisions of article 248B of this Constitution and to the provisions of this Chapter with respect to the assignment of the whole or part of the net proceeds of certain taxes and duties to States, all revenues received by the Government of India and all loans raised by them by the issue of treasury bills, loans or ways and means advances and all moneys received in repayment of loans shall form one consolidated fund to be entitled. 'The Consolidated Fund of India" and all revenues received by the Government of a State, loans raised by the Government of a State by the issue of treasury bills, loans or ways and means advances and all moneys received by a State in repayment of loans shall form one consolidated fund to be entitled. "The Consolidated Fund of the State."
(2) All other public moneys received by or on behalf of the Government of India or the Government of a State shall be credited to the public account of India or of the State, as the case may be.
3) No moneys out of the Consolidated Fund of India or of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution.'"
The motion was adopted.
Article 248-A was added to the Constitution.
Mr President: The question is:
381 "That for article 263, the following article be substituted:-
Custody of Consolidated Funds, Contingency Funds and moneys credited to the public accounts and the payment of moneys into land withdrawal of moneys from such Funds and public accounts.
'263. (1) The custody of the Consolidated Fund and the Contingency Fund of India, the payment of moneys into such Funds, the withdrawal of moneys therefrom, the custody of public moneys other than those credited to such Funds received by or on behalf of the Government of India, their payment into the public account of India and the withdrawal of moneys from such account and all other matters connected with or ancillary to matters aforesaid shall be regulated by law made by Parliament, and, until provision in that behalf is so made by Parliament, shall be regulated by rules made by the President.
(2) The custody of the Consolidated Fund and the Contingency Fund of a State, the payment of moneys into such Funds, the withdrawal of moneys therefrom, the custody of public moneys other than those credited to such Funds received by or on behalf of the Government of a State, their payment into the public account of the State and the withdrawal of moneys from such account and all other matters connected with or ancillary to matters aforesaid shall be regulated by law made by the Legislature of the State, and until provision in that behalf is so made by the Legislature of the State, and until provision in that behalf is so made by the Legislature of the State, shall be regulated by rules made by the Governor of the State.'"
The motion was adopted.
Article 263, as amended, was added to the Constitution.
The Assembly then adjourned till Nine of the Clock on Saturday, the 10th September, 1949.