Constituent Assembly Of India - Volume VII
Dated: January 03, 1949
The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock, Mr. Vice-President (Dr. H. C. Mookherjee) in the Chair.
Mr. Vice-President (Dr. H. C. Mookherjee) : Before we begin the work of the House, I am sure that honourable Members will agree with me if I ask them to stand for a minute in silence to show our gratitude to the Source of all life, and the Source of all energy whom we all worship in our different ways, that at last there has been this cease-fire arrangement at Kashmir.
(The Assembly stood for a minute in silence.)
Thank you all.
We shall begin our work today by taking by taking up article 66 which has to be passed before we can pass on to article 67.
The motion before the House is:
Amendment No. 1353 to this article, standing in the name of Mr. Naziruddin Ahmad is disallowed as it is not substantive.
Nos. 1354, 1335 and 1358 are of similar import and No.1355 may be moved. It stands in the name of Shri Brajeshwar Prasad.
(Amendments Nos. 1354 and 1355 were not moved.)
No. 1358 may be moved, standing in the names of Shri Lokanath Misra and Shri Mohan Lal Gautam.
Shri Lokanath Misra (Orissa : General) : Sir, I beg to move:
If this amendment is accepted, the article would read like this:-
The effect will be that there will be no second Chamber to be called the Council of States.
Sir, I beg to submit that I am not against second Chambers on principle. But in the present temper of our people, and in view of the manner of the constitution of the second Chamber as has been envisaged in the Draft Constitution, I do not think there is any real need for the second Chamber, nor do I think that it will serve any useful purpose. Sir, so far as I have studied the Constitution and the constitutional precedents, it is now admitted almost on all hands that second Chambers are out of date. The only argument that is generally advanced in favour of such a chamber is that it will have a sobering effect on the decisions of the Lower House which is more representative of the people and that the people are now restive. I therefore submit that unless the manner of the Constitution of this second Chamber is changed and we are in a position to accept something which will be purely Indian based on Indian culture of deep, all-pervasive view and on Indian sentiment and temperament based and nurtured on our traditions which alone can have a sobering influence, the creation of an Upper House by itself will have no influence on the House of the People. But this is not to be and therefore I do not think there is a real need for the second Chamber. Its creation will only result in so much waste of public money and so much waste of time. I therefore submit that if the House is not prepared to change the Constitution of the second Chamber as proposed in the Draft Constitution, it will be much better for us to do away with the second Chamber altogether. I am glad that my own province of Orissa has already decided against a second Chamber and we are going to have only one Chamber. I do not think that without a second Chamber the country will be any the poorer for it, as now we stand.
Mr. Vice-President : Amendments Nos. 1356 and 1359 are of similar import. Begum Aizaz Rasul may move amendment No.1356.
Begum Aizaz Rasul (United Provinces : Muslim) : Sir, I beg to move:
The Article will then read:
Sir, my object in moving this amendment is that the word 'Parliament' may be substituted by a name which will convey to the people of India and to the world the name of the party that instituted the struggle for the freedom of the country. If the words 'Indian National Congress' are substituted for the word 'Parliament', the participation of the Congress in the national struggle will be permanently commemorated. This will also save the Congress from degenerating in course of time as all political parties are bound to do. It will liberate the Indian people from the glamour of the Congress and make it possible for them to exercise their vote democratically for otherwise the name of the Congress will unduly influence their emotions. This is more necessary because the Congress in the past was a movement rather than a party. It represented the Nation's urge to freedom and attracted people to suffering and sacrifice. Today, with its transformation into a party, it may become a happy hunting ground for political adventurers and successful black-marketeers.
The word 'Congress' is not new. It is used for the American Parliament and if adopted for India will certainly convey to the world the ideals and principles for which the Indian National Congress stands for. I therefore think that it is in the fitness of things that in this Constitution of India, the words 'National Congress' should be substituted for the word 'Parliament'. I hope that this suggestion of mine will receive the attention and sympathy it deserves. With these few words I move my amendment.
Mr. Vice-President : Now, in List I of the VI Week, amendment No. 1 standing in the name of Shri R. K. Sidhwa seeks to amend the amendment just moved. Mr. Sidhwa may move it. I see that Mr. Sidhwa is not in the House. The amendment is therefore not moved.
Prof. Shah's amendment comes next. Before I ask Prof. Shah to move I would like to know from Mr. Lari whether he wants amendment No. 1359 to be put to vote. I see that Mr. Lari is not in the House. Prof. Shah may now move amendment No. 1357.
Prof. K. T. Shah (Bihar : General) : Mr. Vice-President, I beg to move:
The amended article would then read:
Sir, in presenting this amendment to the House I want to bring to its notice the fact that the clause as it stands is merely an imitation, and, in my opinion, an unnecessary imitation, of the British system where the king still forms an integral part of the entire Governmental machinery, the entire Constitution, and particularly of the Parliament. All the laws are made by "the King's Most Excellent Majesty, with the advice and consent of the two Houses". Justice is administered in the name of the king. The Post Office functions in the name of His Majesty. The army, the navy, all defence forces, all civil services are in the service of His Majesty.
That, however, is a state of affairs, which is not quite suited to, and should not be imitated in, this country's Constitution. The King-in-Parliament is not only a traditional institution; but has some solid constitutional foundation to rest on, such as, for instance, the large margin of Prerogative powers which the king exercises. No doubt, he exercises those powers on the advice of His Ministers, but they still reside in the King only.
In the case of the President in India, on the other hand, it is I think, a very misleading analogy to make him the Indian counterpart of the King in England. The comparison is, therefore, very misleading to make the President an integral part of the Legislative organ of the Indian Union.
The President would not only not have the Prerogative authority in all respects that the King has; it is in my view, the basic idea of this Constitution, unless I have grievously misunderstood it, that the President would be only a figurehead, who will act everywhere and every time only with the advice of his Ministers and with the advice of his Ministers alone. By himself he will be nothing but the ornamental head of the State.
If this conception of the President's place in our Constitution is correct, and 1 see noting in the Constitution to contravene that view, then I submit that the inclusion of the President in article 66, making him an integral part of the parliamentary machinery, is utterly out of place; and as such it should be avoided.
This Constitution, Sir, is not like the British Constitution growing up from age to age, from generation to generation, from century to century. It is a Constitution which has been made by the authority of the King making one concession after another, surrendering one prerogative after another foregoing one power after another or consenting to use it only on the advice of his Minister. It is by the authority, and in the name of the people of India that the Parliament of India will function; and, as such, the President, even though the people's chosen representative, need not be-and should not be,-associated with the legislature as an integral part thereof.
I think a blind imitation of this kind of the British convention or British constitutional practice, carried to this extent, will only land us in difficulty. For the theory on which the British Constitution is formed is utterly different from that on which ours is based. The British Constitution is very largely based on convention and tradition. Large portions of these conventions are still unwritten and uncertified, leaving an indefinite margin for adoptation to circumstances. And those which have been written and codified are only the various legislative enactments of Parliament, which, however, themselves are founded only on accepted traditions, conventions or precedents.
In our case, on the other hand, we are writing this Constitution for the first time by our own efforts. As such for us to associate the President with our Parliament, in the same manner as the King is associated with the British Parliament is, I submit, utterly out of place.
I suggest, therefore, that these words should be deleted. Lest anybody should feel that this, again, arises out of my old idea and amendment about the separation of powers between the chief executive, the chief legislature, and the chief judiciary, let me assure you that that is no longer my submission now; and that that idea in no way affects this amendment now before the House. "The President" can very well be removed from this clause, without in any way infringing upon the doctrine of combined powers or collective responsibility on which this Draft Constitution is based. Accordingly I trust that this amendment will commend itself to the House.
(Amendments Nos. 1360, 1361, 1362, 1363 and 1364 were not moved.)
Mr. Vice-President : The article is now open for general discussion.
Shri M. Ananthasayanam Ayyangar (Madras : General): I am sorry, Sir, that I have to oppose all the amendments that have been moved. The amendments relate to three aspects. Number one and the most important of them seeks to restrict the scope of this article to the House of the People alone. That is, the mover of this amendment does not want an Upper House. Sir, it is common knowledge that in this country so far as we are concerned, there is so much enthusiasm and if for no other reason, we must find opportunity for various people to take part in politics. Therefore it is necessary that we should have another House where the genius of the people may have full play. The second reason is that whatever hasty legislation is passed by the lower House may be checkmated by the go-slow movement of the Upper House. The third reason is that the Upper House is a permanent body, while the Lower House is not. These are some of the reasons why, constituted as we are at present, it is necessary that in the interests of the progress of this country we should have a second House.
Then, Sir, so far as the name is concerned, there has been a suggestion that has been moved by my honourable Friend, Begum Aizaz Rasul and there is a similar amendment also standing in the name of Mr. Lari. Both of them want the name of the Parliament to be changed into the Indian National Congress. I appreciate their motives. It is the Congress which fought for the freedom of this country and therefore these friends who sympathise with the Congress, though they are not participants in this organisation, recommend that the name of this organisation should be associated with the name of the Parliament of the Union. However, laudable this may be, if it is accepted, it would lead to the accusation that a one-party government has been established in this country. The very same friends might say, "Look at what is happening. The Congress, the fighting organisation, has established a one-party rule in the country. It has even lent its name to the Parliament of the Union". If this suggestion is accepted, it may even prove to be the death-knell of the Congress, for it would no longer be able to function as a political party, to fight its way against the various reactionary political parties which are still raising their heads, mostly based on community and religion. Therefore, Sir, this is not at all acceptable.
Then, as regards the amendment moved by my honourable Friend, Prof. K. T. Shah, that the word 'President' should be removed and ought not to be associated in any shape or form with the administration of the country. I would ask him to refer to article 42 which has already been passed and where it is laid down that the executive power of the Union shall be vested in the President of the Republic to be exercised by him in accordance with the Constitution and the law. The President has been made a very important functionary in the whole scheme of things, and in the Constitution he is the chief executive authority. Executive power is co-extensive with legislative power. Therefore it is not mere copying of the United Kingdom practice, but independently also we have to come to the same conclusion. Therefore it is necessary that the word 'President' should be retained. Otherwise, there will be a lacuna.
I submit, Sir, for the consideration of the House that the article as it stands may be accepted and that all the amendments should be rejected.
The Honourable Dr. B. R. Ambedkar (Bombay : General): I do not accept any of the amendments nor do I think that any reply is called for.
Mr. Vice-President : I shall now put the amendments one by one to vote. Amendment No. 1358. The question is:
The amendment was negatived.
Mr. Vice-President : Amendment No. 1356. The question is:
The amendment was negatived.
Mr. Vice-President : Amendment No. 1357. The question is
The amendment was nagatived.
Mr. Vice-President : The question is:
The motion was adopted.
Article 66 was added to the Constitution.
Mr. Vice-President : We next come to article 67. The motion is:
Shri L. Krishnaswami Bharathi (Madras : General): Mr. Vice-President, I have an humble suggestion to make in the matter of producer when we deal with this article. You will be pleased to see that this article relates to the composition of the Houses of Parliament, the two Houses, namely, the Council of States and the House of the People. It contains nine clauses, and I would suggest that in the interest of clarity of discussion, this article may be split up into three parts: one relating to the composition of the Council of States-clauses (1) to (4); clauses (5) to (7) relate to the composition of the House of the People: clauses (8) and (9) are consequential, relating to both the Houses, regarding the census and the effect on the enumeration of the census.
I talked this matter over with Dr. Ambedkar and he himself said that he had marked it like that in his book, and that he proposed to make certain changes of transposition during the third reading. It may not be therefore quite possible straightway to split it at present, but I would request you to have all the amendments to the Council of States, clauses (1) to (4), taken together and discussions may be concentrated regarding them first, and the article may be kept open for amendments. After the discussion is over, you may put the whole clause together. All this I suggest in the interest of clarity so that when honourable Members deal with the Council of States they may confine their discussion on it and later on they may concentrate their discussion on the part of the article relating to the House of the People.
Mr. Vice-President : Have you anything to say, Dr. Ambedkar, regarding this matter, namely, the suggestion of Mr. Bharathi?
The Honourable Dr. B. R. Ambedkar : I am quite agreeable to the suggestion for the purpose of facilitating discussion.
Mr. Vice-President : Then we can take up the amendments in their particular order.
The first amendment is No. 1365. It is negative and is therefore disallowed.
Amendments Nos. 1366, 1367, 1379 and 1408 may be considered together.
Amendment No. 1366 may now be moved. It is in the name of Shri Mohan Lal Gautam.
Since he is not in the House, we pass over it.
The next amendment is No. 1367, in the name of Shri Lokanath Misra.
Shri Lokanath Misra : Since we have passed over amendment No. 1366, I do not want to move my amendment. It does not fit in now.
Shri M. Ananthasayanam Ayyangar : The question does not arise !
Mr. Vice-President : The next amendment is in the name of Prof. K. T. Shah-No. 1379.
Prof. K. T. Shah : Sir, I beg to move:
Clause (2) reads as follows:
As the clause stands, Sir, it offends in my eye for two reasons. First of all, the element of nomination introduced here, however small, militates against the symmetry of the Constitution of our Legislative bodies. And it fundamentally mars the principle of election. I hold that with regard to both these chambers, in the way we are making this Constitution, the Legislative organ should be wholly elected and so the element of nomination should be completely excluded, however small it may be. Its being brought in, in this way, only affects, as I have said, the internal symmetry of the Legislative bodies. It must therefore, be avoided and excluded.
The second reason why I should not like this clause as it stands to be there in the Constitution is: that the various interests or elements selected by nomination are arranged in a somewhat mixed manner. It is not quite consistent intrinsically, logical or scientific.
For instance, "art" is mentioned separately and "science" is distinct-which it may very well be:"Engineering" and "architecture" are mentioned separately in another sub-clause. Now it is generally agreed that "architecture" is one of the fine Arts; and if that is so, I, for one, fail to see the reason of its separate mention, after you have mentioned the generic term "Art".
Moreover, "science, literature and education"-are mentioned each separately by name. These are, once more not logically divided one from another. There, again, I really fail to understand what should be the purpose of this separate enumeration. For, consider this. If by "education" it is intended to include both "Art and Science", through, let us say, such institutions as the Universities, I do not see why they should not be mentioned by their names as universities, and why they should be specifically stated, each apart from the other as Arts, Sciences, or Literature.
Literature again is usually included, at least in the University terminology, in the Fine Arts or in the Faculty of Arts. Accordingly to mention Literature, Science and Arts separately seems to be utterly incongruous, illogical and overlapping........
Shri L. Krishnaswami Bharathi : May I submit that there is an amendment to be moved by Dr. Ambedkar? It is No. 1380. It deletes all these portions, and includes only Arts and Sciences with Social Service. If the honourable Member bears in mind that it is likely to be accepted, the discussion need not be concentrated on this matter. He may be pleased to see amendment No. 1380, wherein Dr. Ambedkar is to move the deletion of the whole clause and substitute only the four categories. So I may request you to ask the honourable Member to cut short the discussion.
Mr. Vice-President : Have you been able to understand the honourable Member?
Prof. K. T. Shah : I have quite understood the honourable Member's suggestion, but have certain points to advance, which I may, if I am allowed to, though I do not insist on it. I have seen Dr. Ambedkar's amendment; and I not only think that it is probably going to be accepted, but I know that it is certain to be accepted. Still I feel that there are points of view which this House might be freely allowed to hear, without such impatient attempts to smoother discussion. But if you do not wish it, I will not press my view.
Mr. Vice-President : Please go on.
Prof. K. T. Shah : Thank you, Sir. Take "Engineering". It is much more "Technology" or what used to be called in the United States Technocracy, which might be mentioned instead of Engineering. It would include much more than" Engineering". As it stands, it creates a needless anomaly.
Take yet another illustration, Social Services, which do not include public utilities presumably: and then again "Public administration". I for one do not understand what is meant by "Public Administration," in this connection of composing a legislative body. Is it intended to bring in the Civil Service? By common consent it is thought best to keep the Civil Service out of politics. Is it intended by "Public Administration" to bring in heads of departments, or their nominees? The old Indian Constitution gave a place to secretaries; but I think there is no room for them in the legislature now. Or does "Social Service" mean something different from "Education", because Education has been separately mentioned already? One would have thought that social service, among the most important of which is Education, would be represented through all the categories in the ordinary system of election, and would not need a special mention by itself. But if you must make special mention of it, then I do not see why you single out only Education. You use a general word like "Social Service"; and yet include only that, presumably because you mention it separately, and leave out "Health" which may also be mentioned separately.
Accordingly it seems to me that this classification is not quite logical. It also offends against the principle, at least in my eyes, of the symmetry of the legislative body, by including in it the element of nomination. For these two main reasons I think the whole clause should be deleted, and substituted by something different which Dr. Ambedkar's amendment no doubt provides for to some extent; but does not provide for in the manner that I would have wished it to. As I would not have any right to speak on this amendment again, or take part in the general debate, I think it is just as well that the House should be put in possession of my point of view on the matter.
Mr. Vice-President : You may also move amendment No. 1408.
Prof. K. T. Shah : Sir, I beg to move:
Clause (4) of article 67 reads "the representatives of the States for the time being specified in Part II of the First Schedule in the Council of States shall be chosen in such manner as Parliament may by law prescribe".
Here, again, I take my ground on the principle of equality amongst the constituent States. Whatever may be the variety or the differences amongst themselves, in regard to area, population, resources, or whatever other criterion you select for judging of the importance of the several States, so far, at any rate, as you accept the principle of a Federal Union, you ought to make the States equal inter se.
On that basis I do not quite subscribe to the view propounded in clause (4) of the article, whereby it is left to Parliament to distribute the seats amongst the States, and not provided for in the Constitution itself. I have tabled another amendment which would suggest that the states should be represented equally in the Council of States, that is by the same number of delegates that any other State may have. On that ground also this clause seems to be superfluous, and I move that it be deleted.
(Amendments Nos. 1368 and 1372 were not moved.)
The Honourable Dr. B. R. Ambedkar : Sir, I move:
The only important thing is that the number fifteen has been brought down to twelve.
Mr. Vice-President : There are six amendments to this amendment which I am calling out one by one. The first is amendment No. 2 on list No. 1 (Sixth Week) in the name of Mr. L. N. Misra.
Shri Lokanath Misra: Sir, I beg to move:
It comes to this that the council of State shall consist of not more than one hundred and fifty Members. In moving this amendment reducing the number to one hundred and fifty I have only one intention and it is this, that from our actual experience we find that such a huge number of people either in the House of the People or in the Council of States does not serve any very useful purpose. And we know that there is real difficulty in finding out so many Members who will be qualified and quite interested in such law-making. We see from the proceedings of this very House which consists of more than three hundred Members that so few of us take real part in and are really useful to constitution making.
Mr. Vice-President : That is a reflection I can not allow.
Shri Lokanath Misra : I am sorry, Sir. It is no reflection. I therefore submit that instead of having two hundred and fifty Members it will serve the purpose of the second Chamber if we have one hundred and fifty Members. In that case there will be a saving of money and time. I therefore submit again that the number two hundred and fifty may be reduced to one hundred and fifty.
Mr. Vice-President : Amendment No. 3 of List I, standing in the name of Mr. L. N. Sahu may be moved.
Shri Lakshinaryan Sahu (Orissa : General) : (Began to speak in Hindi).
Mr. Vice-Presidnet : I wish only to make a request to the honourable Member. Many of our Members coming from South India do not know Hindi. Probably if he wants to convince them it would be better if he speaks in English. But he is at perfect liberty to speak in any language he wants.
Shri Lakshminarayan Sahu : No, Sir. I will speak in Hindi.
*[Mr. Vice-President : I rise to speak a few words in support of the amendment which stands in my name and is now before the House. It is:
My reason for moving it is that we do not favour the system of nomination. The truth is that under no condition and in no place do we approve of it. Therefore, when we are framing our Constitution afresh we must consider very seriously whether we should do away with this system or not. My submission is that nomination in whatever place or form it may be-and I may add that indirect election is also a form of nomination-should be abolished.
I submit that we should consider with all earnestness the grounds, if any, which justify the original provision for fifteen nominated members of as amended now, for twelve nominated members. We should think why this provision for nominated members is made. Is it because they are so highly talented as to make us desire their presence as members in the said House? If that be so we can get such people from Universities-through election. I fail to understand what prevents this being done. My submission is that we should make some provision for the election of such talented persons who fail to get elected to the Legislature from the general constituencies. Unless we keep this in view, the Constitution that we are framing would not be to the liking of the majority. If we authorise the President to nominate these twelve members, he will always be accused of favouritism by quite a good number of people. People will complain that instead of nominating the right and able persons the President has nominated his own favourites. I am afraid that the danger of the President being subjected to unfair criticism would always be there. It is evident that it is the most undesirable thing that the Leader of our Nation, the Supreme Head of our Republic should thus be an object of unfair criticism. I would, therefore, submit Sir, that the provision for nomination be deleted and in its place Functional Representation be provided. It is said by some people that Functional Representation has been tried and found seriously defective in Ireland. But I submit, Sir, that it is bound to succeed if it is tried along with Panel System. I do not think that I need say much against the system of nominations, but in this connection I may draw your attention to the fact that till recently, we members of the Assemblies and Councils in India used to go to one person-Mahatma Gandhi-for advice and used to manage our affairs in the light of his advice. Even if there be any person who is as really great as Mahatma Gandhi was, and for bringing in whom this system of nomination is being provided for and who is not willing to come in through elections, well we can go to him and have his advice. If there be any person of great learning or scholarship who may be unwilling to contest election, well, for myself I can say that I would feel no hesitation in going to him for seeking his advice. We used to go to Mahatma Gandhi for his advice. Similarly, if any able and competent person does not seek election, we may go to him and have his advice. We may constitute a board of such meritorious and learned persons to aid and advise us. The system of advisory board does exist in Russia. We may constitute an advisory board for every minister. Instead of doing what I have already suggested, if we authorise the President to nominate twelve persons, bitter allegations of favouritism and nepotism will be levelled against him and that would not be desirable. Therefore, I propose, Sir, that the provision of nomination should be totally deleted. With these words I resume my seat.]
Mr. Naziruddin Ahmad (West Bengal : Muslim) : I do not wish to move Amendment No. 5 of List I (Sixth week), because it is merely verbal. I therefore, confine myself to Amendment No. 4.
Sir, I beg to move:
Shri S. V. Krishnamurthi Rao (Mysore): I suggest that this may be ruled out of order as the number originally fixed is 15 and the total number is 250. Six per cent will be again 15.
Mr. Naziruddin Ahmad : It would not be fifteen. I submit, Sir, that the original clause of article 67 was to the effect that the Council of States shall consist of 250 members. By the amendment moved by Dr. Ambedkar it now stands as not more than 250 members.
Mr. Vice-President : He says he seeks to fix the maximum; therefore, it is slightly different. You need not labour the point. He may go on.
Mr. Naziruddin Ahmad : In the new clause you make the House one of not more than 250 members. Therefore, by Dr. Ambedkar's amendment, the number of members in the Council of States would fluctuate. It may be less; it will never exceed 250. The number of nominated members should bear a proportion to the actual number of members in the House. This number should also fluctuate in proportion. I have, therefore, suggested 6 per cent which would be 15 only if the maximum number of members in the House is taken. Otherwise, if the number of members is less, the number of nominated members would also be less. They should, I submit, bear some relation to each other. In fact if the number be reduced to twelve, an arbitrary figure, that would bear no relation to the actual number. The actual number in the House may be considerably less. So, I think, Sir, a proportion of 6 per cent of the total membership of the House would be more convenient and more logical.
[Amendment No. 6 in List I (Sixth Week) was not moved].
Pandit Hirday Nath Kunzru (United Provinces : General) : Mr. Vice-President, Sir, it has just been suggested to me that it would be better if instead of moving my amendment now, I move it as an amendment to Amendment No. 1378, which is to be moved by Dr. Ambedkar. It is all the same to me, Sir, when I move this amendment. If you agree to the view that I have expressed, I can move this amendment a little later.
Mr. Vice-President : Yes; I agree.
I have admitted a short notice amendment standing in the name of Sardar Hukam Singh. It may be moved now.
Sardar Hukam Singh (East Punjab : Sikh) : Mr. Vice-President, Sir, I beg to move:
Sir, it might be thought that this is a very small affair; but I have to submit and I request that some attention might be paid to this, because I think there is some force in my amendment.
Amendment No. 1369 says that twelve members shall be nominated by the President in the manner provided in clause (2) of this article. According to this amendment, we should expect that some manner, which means method or mode of doing things, will be laid down in clause (2) of this article. But, when we look to this clause, there is no method or mode provided; no manner is provided there. What we find is that the members to be nominated by the President under sub-clause (a) of clause (1) of this article shall consist of persons having special knowledge or practical experience in such matters as the following. Therefore, no manner or method is provided by this clause (2). Rather, there is a class of persons or categories of citizens and these categories or classes are illustrative, they are not exhaustive. They are described here as the categories from amongst whom the President shall nominate twelve members that are proposed to be selected under clause (1). My objection is that instead of putting in these words that these twelve shall be nominated by the President in the manner, it ought to be, from amongst the categories of persons illustrated in clause (2). This is the only amendment and I request that some attention might be paid to this.
(Amendments No. 1370 was not moved.)
Mr. Vice-President : There are three amendments which may be considered together. amendments numbers 1371, 1373 and 1374. Of these, the first seems to be the most comprehensive and may be moved.
(Amendments Nos. 1371, 1373 and 1374 were not moved.)
Amendments Nos. 1375 and 1376. Amendment No. 1375 may be moved. Amendment No. 1376 is identical with amendment No.1375. So, I am not going to put it to vote. Amendment No.1375, Dr. Ambedkar.
The Honourable Dr. B. R. Ambedkar : Mr. Vice-president, Sir, I beg to move:
With your permission, Sir, may I also move amendment No. 1378? It is in substitution of this proviso.
Mr. Vice-President : Yes.
The Honourable Dr. B. R. Ambedkar : Sir, I beg to move:
Mr. Vice-President : The amendment of Pandit Kunzru may now be taken up. It is amendment No. 7.
Pandit Hirday Nath Kunzru : Mr. Vice-President, Sir, I beg to move:
Sir, the proviso to clause (1) of article 67, the deletion of which has been moved by Dr. Ambedkar, runs as follows:
that is, forty per cent of the elected members of the Council of States. It has now been proposed by Dr. Ambedkar that as many seats in the Council of State should be allocated to the States specified in Part III of the First Schedule as may be laid down in Schedule III-B. We have not got this Schedule before us. We do not therefore know what proportion the representatives of the States mentioned in Part III of the First Schedule will bear to the representatives of the States included in Part I of the First Schedule.
Sir, during the Round Table Conference, the Rulers of the States insisted that they should be given greater representation both in the Assembly and in the Council of State than their population warranted. In other words, they asked for weightage in both the Houses of the Central legislature and it was therefore laid down in the Government of India Act, 1935, that the representatives of the States shall be forty per cent of the total representatives in the Council of State whether elected or nominated and that in the Assembly, the number of representatives of the States should be one-third of the total number of elected representatives. The Union Powers Committee recommended that the proportion of the representatives of the States mentioned in Part III of the First Schedule should be 40 percent of the total number of elected representatives in the Council of States. In other words, in this respect it approved of the provision contained in the Government of India Act, 1935, but it departed from that Act in regard to the representation of the States in the Legislative Assembly. The Draft Constitution follows the recommendations of the Union Powers Committee which were accepted by the House last year. Dr. Ambedkar has now moved that no percentage should be fixed for the representatives of the States specified in Part III of the First Schedule but that the seats allocated to the States should be as laid down in a schedule to be attached to the Draft Constitution. Now, Sir, when the Government of India Act, 1935, was passed by the British Parliament, the situation was very different from what it is now. The States were then not prepared to join the Federation except at a price. Apart from this, it suited the British Government to give weightage to the States. In the new order, however, the position of the States formerly known as the Indian States, has completely changed. Their representatives in this House themselves want that their position should be assimilated to that of the provinces. There is no reason therefore why the weightage given to the States in the Government of India Act, 1935, should be continued any longer.
Sir, I have already said that the Draft Constitution, so far as the representation of the States in the House of the People goes, has not adopted the provision relating to this matter in the Government of India Act, 1935. If honourable Members will turn to clause (5) of article 67, they will find that the proviso to sub-clause (b) of this clause lays down that the ratio of the total number of representatives of the States for the time being specified in Part III of the First Schedule to their total population shall not be in excess of the ratio of the total number of representatives of the States for the time being specified in Parts I and II of that Schedule to the total population of such States. The Draft Constitution insists that the States shall be represented in the House of the People in accordance with their population. What I want is that in the Council of States the representation of the States specified in Part III of the First Schedule should also be fixed in accordance with the same principle. Sir, I may be told that as the Upper Chamber will be known as the Council of States, it means that the number of the representatives of the States specified in Parts III and Parts I and II cannot be fixed in accordance with their total population. If such an objection were put forward, I should regard it as purely superficial. Had I said that in the proviso to sub-clause (b) of clause (1) of article 67 for the word 40, the figure 25 or 30 should be substituted, no such objection could have been brought forward. I seek however to achieve the same purpose in a different way. My amendment cannot really therefore be objected to, on the ground that it would go against the principle that seems to underlie the composition of the Council of States.
Again, Sir, if honourable Members turn to clause (8) of article 67, they will find that it has been laid down there that "upon the completion of each census the representation of the several States in the Council of States and of the several territorial constituencies in the House of the People shall, subject to the provisions of article 289 of this Constitution, be readjusted by such authority, in such manner and with effect from such date as Parliament may, by law, determine." This shows that population is to be taken into account in determining representation not merely in the House of the People but also in the Council of States. My amendment is thus in complete accord with the provisions of Clause (8).
Sir, I have moved this amendment because notwithstanding the new proposal made by Dr. Ambedkar it is not clear that the representatives allotted to the States specified in Part III of the First Schedule will not be 40 per cent of the total number of elected members of the Council of States or in excess of what their population entitles them to. It is true that it is not going to be laid down in so many words in the Constitution that the representatives of the States in Part III of the First Schedule should bear a fixed proportion to the total number of elected members in the Council of States but the allocation of the seats may be such as to bring this about in practice. I want to prevent this and to ensure that as between the States specified in Parts III and Parts I and II of the First Schedule, seats should be divided in accordance with their population. We have already done away not merely with separate representation in this Draft Constitution but also with weight age. If we have done away with weightage in the case of the various communities, there is no reason why we should retain it in connection with the representation of the States mentioned in Part III of the First Schedule.
For these reasons, Sir, I hope that my amendment will commend itself to my honourable Friend Dr. Ambedkar and therefore to the whole House.
Mr. Vice-President : Amendment No. 9 in List I, standing in the name of Prof. Saksena.
Prof. Shibban Lal Saksena (United Provinces : General) : Sir, I beg to move my amendment which is:
Sir, I had, along with this amendment, given a chart showing the numbers of seats to be given to each of the States, and I do not know why it is missing here. In fact, when we were discussing the Report of the Constitution Committee, we had laid down that the maximum number of representatives from any province shall be twenty, and we laid down the numbers for each Province. The system then envisaged was not scientific or logical. I think that the numbers should be laid down on the basis of population up to a limit and that is why I have laid down the limit of one representative for every million up to seven millions, and after that, one representative for every two millions of the population. In this way, we can see to it that the bigger States have lesser numbers of representatives and the smaller States shall get a little weightage which we want to give them. That will be more scientific. Otherwise, it may be that the U. P. will have twenty seats, and Bihar also twenty. If the chart I referred to, and had been here, it would have made the position clearer, by showing what is the number of seats I would allot for each State. Sir, I submit the method I suggest is the proper method of distributing the seats and I request that it may be accepted by the House.
Mr. Vice-President : Amendment No. 10 of List I, standing in the name of Shri Phool Singh.
(Amendment No. 10 of List I was not moved.)
Amendment No. 11 of List I, standing in the name of Shri Lokanath Misra.
Shri Lokanath Misra : Sir, I beg to move:
Sir, the idea I have in my mind, when I move this amendment to the amendment moved by Dr. Ambedkar is this. Since the Council of States is going to represent the States, it is but fair to the States units that these units should be dealt with as units and every unit is equally represented. Otherwise, there is no sense in saying that the States shall be represented in the Council of States. In fact, in the United States of America and in other countries where there are second chambers, representing the interests of the States, the representation given to these units is always the same. We also know that the elected members of our Council of States will be returned by the Lower House of the State Assemblies, and if we say that the election will be in some other form, either in proportion to their population or on some other basis and yet people with the same qualification, the Council of States will serve no real purpose, except a purpose of unnecessary duplication of the House of the People. In fact, the House of the People itself will be representative of the people of the States themselves, because the States will be sending in either representatives to the House of the People on almost the same basis. Therefore, if we do not accept this principle, that of taking every State as an equal unit, and sending in their representatives to safeguard or protect their special interests, there is no sense or meaning in having a Second Chamber to represent the States. Though we have Schedule III-B, the position, I feel, should be made clearer that the Council of States will be representative of the State interests, and therefore the States, as States, and as autonomous units, must be equally represented. On this ground, I suggest that the allocation of seats to the representatives of the State in the Council of States should be on the basis of equal representation to each of the component States, the number of which representation shall in no case be more than three. Why I fix upon the figure three is this. I feel that if three members come from every State, that will be sufficient to safeguard the special interests of the States, and their special problems. After all, this is to be a sobering House, a reviewing House, a House standing for quality and the members will be exercising their right to be heard on the merits of what they say, for their sobriety and knowledge of special problems; quantity, that is, their number, is not of much moment, and I think three is just sufficient for the purpose.
Mr. Vice-President : Amendment No. 12 in List I, standing in the name of Shri Lakshminarayan Sahu.
*[Shri Lakshminarayan Sahu : Mr. Vice-President, my amendment runs thus:
The reason why I move this amendment is that in view of my previous proposal to delete clause 1(a) of article 67 it is necessary that a proviso be made that every member of the Council of States should come there only as a representative of some state. It is because of this that by this amendment I have sought to include a proviso so that representatives from each unit may be able to get into the Council of States. No mention has been made there of the number of representatives from each province and each unit and therefore, we do not have any idea as to the composition of the Council of States, I, therefore, entirely endorse the amendment moved by Pandit Hirday Nath Kunzru. The amendment moved by Shri Shibban Lal Saksena is, as I understand it, also intended to secure representatives in the Council of States for every State. But I find that there are three categories of States. It would be better if we could put all of them in a uniform pattern. It is quite possible that the small states which are neglected now-a-days and are unrepresented may later on desire to have representation in the Council of States. But there are many such small States as will have no opportunity of securing any seat in the Council of States in the ordinary course of things. It is for this reason that I am moving this amendment. I need not add anything further.]
Prof. K. T. Shah : Sir, I beg to move:
Sir, this is an innovation, not borrowed, I can assure the honourable Chairman of the Drafting Committee, from any of the present Constitutions. Some thing similar to this was to be found in the now defunct Weimar Constitution of Germany; but even that precedent has been radically modified.
The suggestion here is three-fold : It is an advisory Council, consisting of certain special interests elected by organisations in those interests, like agriculture, forestry, mining, engineering, trade, industry, social services and so on.
Dr. Jivraj N. Mehta (Baroda) : May I know why Members of the Medical profession have been left out of the amendment?
Prof. K. T. Shah : I would be very willing to accept an amendment to that effect provided you choose to move it. It is an oversight on my part, for which I personally apologise to you. My amendment, however, does not mention either the learned profession of law or the members of the Clerical Order. If the House desires to rectify the omission I have no objection. But I would like to make it clear that it is not so much any profession that is sought to be represented, as the various interests, or the various items in which the country as a whole is interested, and not the exclusive interest, in an economic sense, of those bodies.
Sir, this will be an advisory council which will have no executive or administrative functions according to the amendment I have tabled. It would advise in all matters on legislative proposals that may be coming up before Parliament, or which Parliament may direct them to scrutinise.
Sir, legislation is now-a-days becoming so extremely complex, so varied, and so numerous,-if I may speak individually or severally of the Acts passed by Legislatures now-a-days, that an average member of Parliament would find it extremely difficult to make up his mind, or even to understand the special provisions couched in technical language that grow up or that have to be sanctioned by Parliament.
It is becoming more and more a fine art, not merely in drafting the legislative proposals, which by itself is an extremely complicated task; but also in laying out the various items and satisfying the various interests that have to be provided for. It is even now a convention generally established and commonly followed, whereby the various interests not directly represented in Parliament can put forward their case before the Departments and make their own alternative proposal. Whether it is Insurance Legislation or Labour Legislation or Banking, or Shipping, or Trade marks legislation, those concerned see to it that their case is placed before the authorities. The Minister in charge of such legislation generally hears them before the final draft is made. If the Minister concerned does not so consult the interests concerned, then the Select Committee on the Bill sometimes hears representatives or representations from the interests concerned, before the legislation is passed by Parliament.
On this basis, I think it would be of the utmost benefit to have this consultation, not only to the interests concerned, but also to the proper co-ordination of the particular pieces of legislation with the rest of the social economic framework under which the country is to live. It does happen that, when individual items of legislation come up, only those concerned or interested specially, directly or personally, take any intelligent interest in the various clauses as well as in the general principle underlying; while the rest of the House,-by far the large majority,-remains relatively indifferent. Whether by the guidance of the Party organization, or by personal loyalties, votes are cast not so much by the provisions and their implications understood properly, but by influences of the kind I have just mentioned.
It is, therefore, not in the interests of proper legislation that we should have a body of laymen-and popular representatives are bound to be laymen only in the majority of cases in law-making that come up before Parliament-who should be passing laws, without any advice or guidance from recognised experts upon the complicated pieces of legislation which almost every year come before Parliament. They should have a non-interested, or dis-interested, and impartial body of advisers who are competent to advise by their study, training and experience in all such matters, who would have no executive or administrative function, who would not be law-makers themselves, and who would be sufficiently respected outside to influence the decisions in the best interests of the country. Sir, the practice is growing in many countries whereby Parliament passes organic laws, of great social importance, but allows more and more powers to departments to make bye-laws, or rules under such laws, which enables the bureaucracy-I am not using the term in any objectionable sense, call it the permanent services,-to make elaborate codes under these laws. These codes are not enacted by Parliament. These codes are, no doubt, sometimes laid on the table of the House, in the presumption that members if they have any objections to the rules, will point them out. But as a matter of fact, these codes are scarcely ever scrutinised by members when once they are enacted under the authority of the law by the departments concerned and so they become laws by fiat of the bureaucracy without any proper understanding by members of Parliament.
This, Sir, is a practice which has led an eminent jurist, Lord Hewett, Chief Justice of the King's Bench Division in England, to describe it as The New Despotism. It really amounts to arming the civil services, arming the permanent officials, with a vast margin of power and discretion that practically amounts to a denial of civil liberties, or at any rate the ordinary freedoms of the citizen.
This, Sir, I submit, is not in the interests of the free institutions which we are planning for. I, therefore, suggest that it would be in the interests of the freedom of the people, and also the interests of sound legislation, that we should have a body of disinterested advisers chosen with an eye only to their experience training and qualification, and not burdened with any other duties as our Ministers are, not charged with any other administrative or executive functions and remunerated sufficiently to be beyond any influence other than the interests of the country, and so able to devote their entire time to the particular subjects that come up for legislation. I hope this amendment will be accepted.
Mr. Vice-President : Amendment No. 1380 standing in the name of Dr. Ambedkar.
The Honourable Dr. B. R Ambedkar : Mr. Vice-President, Sir, I move:
Mr. Vice-President : There are some amendments to this amendment which I am calling out one after the other. No. 13 in the name of Mr. Kamath.
(The amendment was not moved.)
No. 14 standing in the name of Mr. Lokanath Misra.
Shri Lokanath Misra : Mr. Vice-President, Sir, I beg to move:
Sir, I am really thankful to Dr. Ambedkar for introducing this amendment and for placing the words "Letters, arts, science and social services" much better than the original. In fact, in my humble opinion as I have conceived this Council of States, to me it represents our past, as the House of the People represents our present. Our future no doubt is in the hands of God. I say that we can have that sobering influence we need, only if we can build our mind and our ideas on our past. I suggest that India to be India must know her lofty past, and the members of the Council of States nominated by the President should be people who know our past, our history, our philosophy and our culture. Therefore, instead of having letters, let us say history, philosophy and culture. All our efforts should be towards one direction and that direction can only be an ideal which will bring up India to her past, i.e., to her own. The nominated members by the President should represent these four things, and to bring home a justification of this point, I need not make a speech of my own. I will only quote some lines from an essay "India and the Western World" by Captain Anthony M. Ludovici (England). He says:
Mr. Vice-President : How long do you propose to read this? It seems to have little connection with your amendment.
Shri Lokanath Misra: I will be short, Sir, it is relevant, as a foreign appreciation of what we are:
Sir, I beg to submit, that in drafting this Constitution we dare not forget our own. The Council of States should represent our past and that could be done only by the President nominating only those who represent our great past of great intellectual fervour, high morals, deep and lofty flights of the spirit.
Mr. Vice-President : Amendment No. 15 standing in the name of Mr. Naziruddin Ahmad.
Mr. Naziruddin Ahmad : Mr. Vice-President, Sir, I beg to move:
Mr. Vice-President : Why not move amendment No. 17 also? That too stands in your name.
Mr. Naziruddin Ahmad : I also beg to move:
Sir, I beg to submit that the original clause (2) of article 67 contains a number of categories, representing different intellectual spheres from which members could be nominated by the President. In fact there is a number of such items, namely, (a) literature, art, science and education: (b) agriculture, fisheries and allied subjects: (c) engineering and architecture: (d) public administration and social services. Of this long list, only three have been accepted in Dr. Ambedkar's amendment, namely, "art, science and social services" and a new item has been added, namely, "letters". I submit, Sir, that there is a danger in restricting the choice of the President in the matter of nomination to only four classes and rejecting the others. There is no reason why the choice should not be rather wide than restricted. However, my amendment (the first amendment which I have moved) wants to introduce Philosophy, Religion and Law. Sir, I submit that Philosophy is peculiarly Asiatic in origin. So is Religion. All the great Philosophies and all the great Religions emanated from the East. There is no reason why we should give up the Philosophers or the men who are the leaders of Religion. It is only the other day that at the instance of Mr. Kamath we introduced the name of Almighty in the constitution. In fact the President is to take the oath of office in the name of God. Having agreed to give the Almighty a place in the Constitution, I think that Religion which follows from God should also have some recognition in this Constitution. It is often hinted that Religion is a very bad thing and that it leads to quarrels. I submit, Sir, that Religion never leads to quarrels. It is communalism that leads to quarrels and not Religion. All the great Religions are really good and supply a fundamental moral basis for humanity to act. Therefore, Religion should not be discarded; so also with Philosophy. A philosophical attitude is particularly useful for a House like this; particularly when a Member finds that his amendments are not listened to or his speeches are not listened to by the Honourable the Chairman of the Drafting Committee, he cannot but be Philosophical. So for God's sake, do not discard Philosophy too.
Then comes the matter of Law. I submit, Sir, Law should also be represented. The legal talent of the Upper House should particularly be strengthened, because the Upper House will rather be a revising chamber and Law should be particularly represented. Men like Sir Tej Bahadur Sapru, Shri Alladi Krishnaswami Ayyar...
Shri L. Krishnaswami Bharathi : Sir B. N. Rau.
Mr. Naziruddin Ahmad : Yes, Sir. B. N. Rau too. I am thankful for the suggestion. These are very useful names. I think their names should not be shut out from the choice of the President. It may be that at any future election we may lose Dr. Ambedkar himself, and there should be some means of bringing him in by a presidential nomination. Then there is the Rt. Honourable Mr. Jayakar. These are really great men of the Law and their addition, or rather the choice of the President in their selection should be very useful. In these circumstances they should also have some place.
Then with regard to the second amendment: I have also tried to introduce Journalism, Commerce, Industry and Law, Law has already been suggested in my previous amendment. With regard to Journalism, journalists have also a great duty to perform. In fact, they are a kind of go-betweens between the Legislature and the people and between the people and the Legislature. Ideas which are expressed in the legislature are disseminated by the journalists, and ideas which prevail among the people are also brought to the notice of the legislators by journalists. A democracy is run by the three States-the Executive, the Legislature and the Judiciary. To these must be added the newspapers which have been described as the Fourth State. They also play a very important part in the role of freedom of a country. Journalism should also be one of the categories from which the President could make his selections.
Then we come to Commerce. We want to associate those great commercial magnates who are really the wealth producers in the country and they should also be represented and their advice and counsel would be of great help. So also with Industry.
These are the different categories from which the selection should be made.
I submit that the introduction of these classes will not in the least compel the President to select or nominate anyone from any of them. The choice would be reasonably wide and I submit that this amendment should be accepted by this House.
In making the suggestion about Journalism, Commerce, Industry and Law, I took them from a suggestion made by a few learned lawyers who considered the Draft Constitution in the "Indian Law Review" of Calcutta. It is a quarterly journal. It is in volume 2 at page 9 onwards. There, with regard to this very clause of this article, they have suggested that Journalism, Commerce, Industry and Law should also be represented. They said that there is no reason why these important professions and callings should not be included as well. The great point which I wish to suggest to the House is that the choice should not be restricted, but should be widened. It would be an advantage to have different professions and callings in the list so as to make the choice of the President easier and better.
Mr. Vice-President : The next amendment in our list is amendment No. 16 in List No. 1 standing in the name of Mr. Sidhwa.
Shri R. K. Sidhwa (C. P. & Berar : General): I am not moving my amendment.
Mr. Vice-President : The next amendment is No. 18 in List No. 1 standing in the name of Shri B Das.
Since Shri B. Das is not in the House we pass it over.