Constituent Assembly Of India - Volume VII
Dated: December 09, 1948
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.
New Article 23-A
Mr. Vice-President (Dr. H. C. Mookherjee): Our work for today starts with the consideration of amendment No. 716. It stands in the name of Professor K. T. Shah.
Prof. K. T. Shah (Bihar: General): Mr. Vice-President,Sir, I beg to move:
Shri B. Das (Orissa: General): On a point of order,Sir, how can 23-A about nationalisation of property be moved when we have not dealt with article 24 which deals with the right of property. I would respectfully suggest that, if youallow Professor Shah to move article 23-A, it may be moved after we have dealt with article 24.
Prof. K. T. Shah: I would point out, Sir,....
(Shri B. Das rose to speak.)
Mr. Vice-President: I want to hear what Professor Shah has to say.
Prof. K. T. Shah: There is a misapprehension on the part of Mr. Das. This does not talk of nationalising all existing private property. I am only enunciating a principle which may in legal parlance be called the right of eminent domain of the State. Therefore it is merely an assertion that natural wealth belongs to the people, to the State.That does not mean that which is already in private possession is to be nationalised. Nor does it exclude the possibility of lands, forests, etc. being held, as delegated owners, by the present holders or subsequent holders under the eminent domain of the State. I see no difficulty in this.
Shri B. Das: My view is that article 24 deals with right to property, whether it belongs to a private citizen or to the State. This amendment can only be discussed when we discuss article 24 and Professor Shah can move his amendment afterwards.
Shri R. K. Sidhwa (C. P. & Berar: General): Mr. Vice-President, I think that what my honourable Friend Mr. Das said is quite correct. We are discussing article 23--cultural and educational rights--and if this article is passed....
Mr. Vice-President: The honourable Member need not repeat what Mr. Das has already said.
Shri R. K. Sidhwa: I am only emphasis ing it, Sir, to draw your attention.
Syed Muhammad Saadulla (Assam: Muslim): Mr. Vice-President, Sir, may I draw your attention to the motion itself as I read it at page 75 of the notice of amendments?Prof. Shah's amendment runs as follows: "That under theheading `Right to Property', the following new article be added" and "Right to Property" is the heading of article 24and not of 23.
Mr. Vice-President: I rule that Prof. Shah be allowed to move this amendment under 24-A. So far as amendments Nos.717 and 718 are concerned, they are already covered by the earlier decisions of this House relating to Directive Principles.
Mr. Naziruddin Ahmad (West Bengal: Muslim): Those rights which are not justiciable are covered but those inconnection with fundamental rights have not been covered at all. At that time an understanding was reached that this will be considered along with the Fundamental Rights.
Mr. Vice-President: Is it your contention that these both should go under the Directive Principles and also here?That is not possible. I rule it out of order.
Shri T. T. Krishnamachari (Madras: General): It is the desire of many Honourable Members of this House that this article should not be taken up now, but taken up later,because we are really considering various amendments to it so as to arrive at a compromise and Dr. Ambedkar will bearme out in regard to this fact.
The Honourable Dr. B. R. Ambedkar (Bombay: General): Yes, Sir, I request that article No. 24 be kept back.
Mr. Vice-President: Is that the wish of the House?
Honourable Members: Yes.
Mr. Z. H. Lari (United Provinces: Muslim): Then what about article 15, Sir?
Mr. Vice-President: The consideration of that article has been postponed for the time being.
(To Mr. Kamath.) You want to say something about the amendment dealing with Military training in article 24?
Shri H. V. Kamath (C. P. & Berar: General): There arethose amendments which do not relate to "Right to Property",and which have been given notice of as new articles to be inserted after article 24. What about these?
Mr. Vice-President: They will be taken up after article24.
Kazi Syed Karimuddin (C. P. and Berar: Muslim): Mr.Vice-President, Sir, article 25 lays down in clause 4 "The rights guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution." NowI move my amendment:
In article 280, it is laid down "Where a Proclamation of Emergency is in operation, the President may by order declare that the rights guaranteed by article 25 of thisConstitution shall remain suspended for such period notextending beyond a period of six months after the proclamation has ceased to be in operation as may be specified in such order."
If article 25 is passed today, then we are accepting the provisions of article 280 because clause (4) of article25 says that "the rights guaranteed by this article shall not be suspended except otherwise provided for by thisConstitution." We have very serious objections to the passing of article 280. The emergency Provisions contained in articles 275 to 280 are of an extraordinary nature and some of them militate against the fundamental principles of federalism and do not find any parallel in any world constitutions and there are several amendments to be moved to articles 275 to 280. So by acceptance of this article, we will be accepting the provisions of article 275 to 280.Moreover, this article says "as otherwise provided for by this Constitution." This article cannot be considered at all unless the provisions in articles 275 to 280 are taken into consideration. Therefore, my submissionis that before articles 275 to 280 are passed, we are incompetent to consider the provisions of article 25.
The Honourable Dr. B. R. Ambedkar: Sir, I do not think that because this article is subject to the provisions of the other articles to which my honourable Friend, Mr.Karimuddin has referred, it is not possible for us to consider this article now, because, as will be seen, supposing we do make certain changes in article 285 or others relating to that matter, we could easily make consequential changes in article 25. Therefore, it will not be a bar. Therefore, it is perfectly possible for us to consider article 25 at this stage without any prejudice to any consequential change being introduced therein. Supposing some changes were made in the articles that follow.....
Kazi Syed Karimuddin: Then why not postpone this?
The Honourable Dr. B. R. Ambedkar: No.
Mr. Vice-President: I am going to put this amendment to vote, because if it is carried, then the consideration of all the amendments will be postponed.
Mr. Vice-President: The question is:
The motion was negatived.
Mr. Vice-President: Amendment No. 782 is disallowed.Amendment No. 783, standing in the name of Mr. NaziruddinAhmad.
The Honourable Shri K. Santhanam (Madras: General): Ona point of order, Sir, this amendment suffers from vagueness. There is no particular meaning.
Mr. Vice-President: Let us hear what Mr. NaziruddinAhmad has to say.
Mr. Naziruddin Ahmad: Mr. Vice-President, Sir, I beg to move:
"That for clause (1) of article 25, the following clause be substituted, namely:
Sir, it is suggested by Mr. Santhanam that the amendment is vague. I submit that it is not vague.
The Honourable Shri K. Santhanam: Appropriate proceedings,--judicial, administrative or executive?
Mr. Naziruddin Ahmad: Proceedings in a Court.
The Honourable Shri K. Santhanam: Where is the Court?
Shri M. Ananthasayanam Ayyangar (Madras: General): Neither the procedure nor the forum is indicated in the amendment.
Mr. Naziruddin Ahmad: Perhaps there is some mis-print;I do not know. If there is no mis-print, it is certainly open to the comment that it is vague.
The only point that I had in mind was that the right to move the Supreme Court by appropriate proceedings is guaranteed. I wanted to allow the people to move other Courts also. If there is a fundamental right granted here,and if any poor man is forced to move the Supreme Court....
The Honourable Dr. B. R. Ambedkar: See sub-clause (3).
Mr. Naziruddin Ahmad: That sub-clause empowers someother specified Courts to deal with this subject; but I wanted to make it more general, that the fundamental rights should be capable of being enforced by a motion in anyCourt. In fact, all Courts should be open to the people. If there is a fundamental right which is violated, and if the man whose right is violated is a poor man, it would be wrong to drive him to the Supreme Court or some other Court duly empowered in this behalf, which will be some superior Court.I want to see that all Courts have the power to decide fundamental rights or breaches of fundamental rights and this should be given to all Courts civil or criminal. If a difficult point of constitutional right is raised in any civil or criminal Court in a small case, then,that Court should be enabled to decide it immediately.Instead of that, this clause (1) would force the party to move the Supreme Court or some other selected Court duly empowered in this behalf.
I admit fully that the drafting of this amendment is certainly open to the comment that it is a little vague; but I am suggesting the principle. If the principle is acceptable, then, the amendment may be changed accordingly.This point is at the back of my mind; perhaps in a hurry, I made a mistake; it should be, "by appropriate proceedings in any Court". In fact, the actual wording of the amendment is not very important.
Mr. Vice-President: There is an amendment to this amendment. No. 43 standing in the name of Mr. V. S. Sarwate.
Shri V. S. Sarwate (United State of Gwalior-Indore-Malwa Madhya Bharat): Sir, I shall move the amendment after Dr. Ambedkar has moved his.
Mr. Vice-President: Yours is an amendment to amendmentNo. 783.
Shri V. S. Sarwate: And also, alternatively to amendment No. 794.
Mr. Vice-President: you want to move it when we come to amendment No. 794. Is that your wish?
Shri V. S. Sarwate: Yes, Sir.
(Amendment No. 784 was not moved.)
Mr. Naziruddin Ahmad: Sir, I beg to move:
Sir, we have in clause (3) already attempted to provide the author ity to Courts other than the Supreme Court to exercise those rights. This is consequential upon clause(3).
(Amendment No. 786 was not moved.)
Mr. Vice-President: Amendments Nos. 787, 788 and 793 are of similar import and will be considered together.Amendment No. 788 seems to be the most comprehensive.
(Amendment No. 788 was not moved.)
Mr. Vice-President: Then, we can take up amendment No.787 standing in the name of Mr. Kamath.
Shri H. V. Kamath: Mr. Vice-President, I move amendmentNo. 787 of the List of amendments as amended by amendmentNo. 64 in List 4 (III week). I move:
At the outset let me make it clear that I am a more layman and not a professional lawyer or a legal or constitutional expert like my Friend Dr. Ambedkar; but I know a bit of law though not very much of it, and I will have my say on the basis of the little knowledge of law which I possess. This clause of article 25 relates to thepower of the Supreme Court to issue orders for the enforcement of any of the Fundamental Rights mentioned in part III. I think that so far as the Supreme Court is concerned, it is not necessary to lay down what particular writ it should issue. After all, Sir, it may be that with the growth of legal and constitutional precedents, other writs than these mentioned here in this article may be evolved, and whenever a particular case comes up before the Supreme Court, it may be that the Court will take all the aspects of the case into consideration and issue such a writ--might be one-of these, or a new writ may be evolved. I think this particular clause of the article is a very regrettable instance to my mind of what is called in legislation--`Legislation by reference'.When we are dealing with the Supreme Court consisting of eminent judges and jurists, it is not wise for us nor desirable to lay down what particular writs the Supreme Court should issue in a particular case. Therefore, all things considered, I feel that so far as the Constitution is concerned, we should just say this much that the Supreme Court should issue such orders or directions or writs as the Court may consider necessary or appropriate in any particular case. I therefore move, Sir, that for clause (2)of this article the following be substituted:
I hope that Dr. Ambedkar will tell us why he thinks it necessary to specify the particular writs here and not just leave it to the Supreme Court to decide what particular writs or orders or directions it should issue in any particular case. I hope he will not merely stand on prestige or some such consideration but will give satisfactory and valid reasons why we should insist on mentioning these particular writs in this clause of the article.
(Amendment No. 788 was not moved.)
Mr. Vice-President: Nos. 789 and 790 are similar and I allow 790 to be moved.
(Amendment No. 790 was not moved.)
The Honourable Dr. B. R. Ambedkar: Sir, I understand that Mr. M. A. Baig is not in the House. Will you permit me to move 789. I am going to accept this amendment. It shall have to be moved formally.
Mr. Naziruddin Ahmad: I desire to move it if that is acceptable to the House.
Mr. Vice-President: Does the House permit Mr.Naziruddin Ahmad to move this?
Honourable Members: Yes.
Mr. Naziruddin Ahmad: Sir, I move:
Sir, this is a red letter day in my life in this House,that this is a single amendment which is going to be accepted. This amendment is a foster-child of mine and that is why perhaps the honourable Member is going to accept it.It requires no explanation.
Shri H. V. Kamath: On a point of order. Is my Friend right in saying it is going to be accepted when it is only moved.
Mr. Naziruddin Ahmad: I heard a rumour that it is going to be accepted.
Mr. Vice-President: Nos. 791 and 792 are disallowed as verbal amendments.
(Amendment No. 793 was not moved.)
Mr. Vice-President: Nos. 794, 795 and 799 are similar and are to be considered together. 794 is allowed to be moved.
The Honourable Dr. B. R. Ambedkar: With your permission I will just make one or two corrections to some words which crept into the drafting by mistake. Sir, with those corrections, my amendment will read as follows:
The reason for inserting these clauses (1) and (2) is because clauses (1) and (2) refer to the Supreme Court.
Mr. Vice-President: There are two amendments to this amendment. One is No. 44 and the other is 45 of List I (III week) and Mr. Sarwate's amendment No. 43. Mr. Sarwate.
Shri V. S. Sarwate: Sir, the amendment which I move stands thus:
Sir, the scheme which we have adopted in this Chapter regarding Fundamental Rights consists, first, that the rights themselves are enumerated in broad terms and then by clauses which follow, the Legislature has been given power to put restrictions on the rights in certain matters specified in those clauses. Lest the legislature should exceed its powers, or makes legislation in excess of the requirements of the case, a safeguard is provided by the present article. Now, it is possible to argue that the court can only see whether the legislature has passed an Act in respect of that matter, without going into the details, or it may be argued that the court has no power to go into the details, and to determine the issues whether a particular case required or necessitated or justified the passing of that particular legislation. It is necessary to provide for such a contingency, because by article 13, the legislature has been given power to make `any law'. The terms are wider than if it had been expressed in the way that the legislature has power to penalise such and such matters. Theexpression used is `any law' which is wider than if it had been only power to penalise. Therefore it is necessary in each case for the court to see whether the particular legislation meets exactly the requirements of the case,whether it does not exceed the requirements of the case.Getting panicky a legislature may pass a legislation where it may not be necessary to have any such legislation.Therefore I have added this explanation. The very wording of the explanation shows that it does not add anything to or substract anything from the original clause, but it only explains something. It may be argued that this is may be a certain doubt expressed in this respect, and so to remove and to avoid such doubts being raised, and to make it more specific and more outside the pale of any doubt, I have tried to add this explanation. I commend it to the House and to the Mover, for acceptance.
Mr. Vice-President: Then amendment No. 44 and amendmentNo. 45 in the name of Mr. Naziruddin Ahmad.
Mr. Naziruddin Ahmad: Sir, I do not want to move No. 45because it is open to some objection. I shall move only No.44.
Sir, I beg to move:
Sir, the original article tries to confer powers on anyother Courts, powers which may be exercised by the Supreme Court, under clause (1). As we have already stated in thisclause, Parliament may by law empower any other Court. The words "any other court" indicates that this is asupplementary power to be given to other courts, without anyprejudice to the powers of the Supreme Court. The powers of the Supreme Court are defined very precisely as absolutelysupreme over all other Courts. So the words "withoutprejudice to the powers of the Supreme Court" would beunnecessary. In fact, there is no possibility of any doubtthat the Supreme Court has over-riding powers. In thesecircumstances, the words seem to me to be unnecessary.Therefore, they should be deleted. In fact, the powers of the Supreme Court are very specific in this respect. Thevery name--Supreme Court--indicates that it is supreme inall matters. If we keep the words, we would suggest that therights of the Supreme Court are not supreme, it really indicates some doubt that the Supreme Court is not perhaps supreme in legalmatters. That is the reason for asking for the deletion of these words.
(Amendments Nos. 795 and 799 were not moved.)
Mr. Vice-President: Amendment No. 796 is disallowed onthe ground that it is only a formal amendment.
(Amendments Nos. 797, 798, 800 were not moved.)
Amendment No. 801 standing in the joint names of ShriKamath and Mr. Tajamul Husain.
Shri H. V. Kamath: I shall make way for Mr. TajamulHusain.
Mr. Tajamul Husain (Bihar: Muslim): Mr. Vice-President,Sir, I beg to move:
Sir, under article 9, the State shall not discriminateagainst any citizen on the grounds of religion, caste, etc.That means that a citizen is allowed to enter any shop,restaurant, hotel etc. he is allowed to use wells, tanks,roads and other things. Under article 13, the citizen isallowed to practise his profession, and carry on his tradein any way he likes. Under article 25, a citizen can movethe Supreme Court for the enforcement of his rightsmentioned above, and the Supreme Court can issue order in the nature of Habeas Corpus or Mandamus etc. But Sir, clause(4) of article 25 speaks of the suspension of the rights ofcitizens which I have just now mentioned. Article 280 says that where a proclamation of emergency is in operation the President can suspend the fundamental rights guaranteed to the citizens. This, I submit, should not be allowed. If sucha right is allowed to the President, under the Constitution,then the right of equality as mentioned in article 9 willcease to exist for the time being. And citizens will not beallowed to use wells, tanks, roads, etc. Freedom of speechwill have to be suspended; right to practise one'sprofession will also go; protection of life as guaranteedunder article 15 will go; freedom of conscience will go; theright to move the Supreme Court will go. I think it is verydangerous to give all these powers to the President. Afterall what are we? We are only the representatives of thepeople--we are the people. When we have framed the Constitution we will dissolve ourselves and another set ofpeople will come. They will also be the representatives of the people. They will be the same as ourselves--there can beno difference between us. Have we got the right to bind downthose people? Can we say to them `Thou shalt not do this;thou shalt do this'? It is a free country. If the peoplewant to have revolution, let them have revolution. Whatright have we to prevent that? Therefore I say that no powershould be given to any person, however big--to the Presidentof the Republic or to anybody else--to suspend anyFundamental Rights guaranteed under this Constitution. With these words I commend my amendment to the House.
Kazi Syed Karimuddin: Mr. Vice-President, Sir, I move:
Sir, I cannot agree to the amendment moved by Mr.Tajamul Husain saying that the whole of clause (4) should be deleted. There are occasions in the country when actuallythere is an invasion and rebellion inside and no Presidentwill be so foolish as to restrict activities which have noconcern with the invasion or rebellion like discriminationbetween man and man and even untouchability. Therefore inorder to maintain peace and tranquility in the country, itwould be necessary to suspend some of the provisions underarticles 13 and 25, but to say that every clause and sub-clause under article 13 and 25 will be suspended as soon asthere is invasion or war is, I think unimaginable. Myamendment lays down that the rights guaranteed by thisarticle shall be suspended only when there is invasion because theprovisions in articles 275 to 280 lay down that even If there is an immediate danger of war articles 13 and 25 willbe suspended not only for the period of the emergency butsix months even beyond that period of emergency. It has beenlaid down under article 280 that `where a Proclamation ofEmergency is in operation, the President may by orderdeclare that the rights guaranteed by article 25 of thisConstitution shall remain suspended for such period notexceeding beyond a period of six months after theproclamation has ceased to be in operation as may bespecified in such order.' I was pleading very earnestly thatthe provisions of article 25 should be passed over andconsidered after the passing of the provisions underarticles 275 to 280. Now we are taking into our hands thequestion of suspending the provisions of articles 13 and 25when we do not know the picture that would emerge under theprovisions of articles 275 to 280. Now the rights are to besuspended in consideration of provisions that are yet to bemade and which have not been accepted by the House. Ithought that Dr. Ambedkar would oppose this proposal. But Ibow to the decision of the House. Now the position before usis that we are going to accept clause (4), if at all it isaccepted, for considerations and provisions which are notyet passed, and the House may reject them. In reply to thatit has been stated that necessary changes will be made.Well, I have made the necessary change and it is before theHouse to accept or reject. And it is this, namely, that incase of rebellion or invasion and when a State of Emergencyis proclaimed under Part XI of the Constitution--that is,articles 275 to 280--these rights can be suspended. Mysubmission is that unless there is a declaration of a Stateof Emergency and unless there is actual invasion orrebellion inside, the rights granted under articles 13 and25 should not be suspended. For example, suppose a party ina province which is hostile to the party in power at theCentre comes into power in the province. And suppose thereis a quarrel between the Provincial Government and theCentral Government and the party disobeys some of the ordersissued from the Centre. Immediately the President, thinkingthat there is domestic violence inside the province, cansuspend that part of the Constitution according to theemergency law. The result would be that every right of theindividual citizen under article 13 will be suspended.Therefore, the two conditions which I have laid down in myamendment are that in cases of invasion and rebellion theserights should be suspended. I do not say that these rightsshould never be suspended, although in England and Americathere is no such provision for suspending such rights. Butour country is passing through a transition and through acrisis; and if these rights are not suspended during suchtimes there will be great turmoil in the country. Itherefore plead that the amendment which I have moved shouldbe accepted.
Mr. Vice-President: Amendment No. 803 is a verbal amendment and is disallowed.
(Amendment No. 804 was not moved.)
Mr. Naziruddin Ahmad: I shall move amendment No. 805.
Shri M. Ananthasayanam Ayyangar: It is also a verbal amendment.
Mr. Naziruddin Ahmad: Sir, I move:
As Mr. Ananthasayanam Ayyangar has suggested that it isa verbal amendment, I shall at once explain the reason why Ihave moved it. I confess that it is very nearly a verbal amendment. But the only reason why I have moved it isbecause I have the author ity of amendment No. 811 to thesame effect standing in the name of Dr. Ambedkar himself. Infact he has tried to change the word "guaranteed" by theword "conferred". My amendment is exactly the same asamendment No. 811 If No. 811 is acceptable to the House, No. 805 should also be equally acceptable. MayI submit that amendment No. 791 standing in my name is not amere verbal amendment? It changes the sense altogether, andmay I be permitted to move it in a one minute speech?
Mr. Vice-President: No.
Mr. Naziruddin Ahmad: It changes the meaning. I ask youto consider it. I will be willing to bow to your considereddecision.
Mr. Vice-President: In that case you will not move it.
(Amendment No. 806 was not moved.)
As amendment No. 806 has not been moved, an amendmentto it by Pandit Bhargava (No. 46 in the list) falls through.
(Amendment No. 807 was not moved.)
The article is now open for general discussion.
Shrimati G. Durgabai (Madras: General): Mr. Vice-President, Sir, I have great pleasure in supporting thisarticle. While doing so, I wish to place a few points beforethe House for its consideration.
Sir, the right to move the Supreme Court by appropriateproceedings for the enforcement of a person's rights is avery valuable right that is guaranteed under thisConstitution. In my view this is a right which isfundamental to all the fundamental rights guaranteed underthis Constitution. The main principle of this article is tosecure an effective remedy to the fundamental rightsguaranteed under this Constitution. As we are all aware, aright without an expeditious and effective remedy serves nopurpose at all, nor is it worth the paper on which it iswritten. Therefore, as I have already stated, this articlesecures that kind of advantage that it will ensure theeffective enforcement of the fundamental rights guaranteedto a person.
Sir, then, all of us are aware, and the Drafting Committee is quite alive to the fact, that in recent timesin England the procedure under ancient writs has beenconsiderably modified and a simple remedy by a petition hasbeen substituted for writs in a recent enactment in England.Perhaps that is the reason why the Drafting Committee hasput in this article directions or orders in the nature ofwrits of habeas corpus etc.
Another point is that the right that is vested in the Supreme Court in no way affects the right of the High Courtsin any part of India to issue similar writs or to enableParliament to make laws empowering any other Courts to exercise the same power within the local limits of itsjurisdiction. The question might arise in this connection asto what happens if the High Court refuses to issue a writ,and whether in the absence of a specific provision to thateffect, an application for the issue of a writ is barred to the Supreme Court. To that my answer is, "No", because Iconsider that in these matters there is no question of resjudicata. A person can move any number of courts and beforeany judge an application for the issue of this writ, thoughthe Supreme Court naturally takes into consideration theorder passed either by the High Court or any other Court ingranting or refusing to issue this writ. Therefore, theapplication is not barred.
There are some other points also to be mentioned in this connection, but I feel these are the two main questionsthat might arise in this connection. One is whether theright that is vested in the Supreme Court bars the right of the other High Courts to issue similar writs; that question,I think, I have answered. The other question is whether in the case of concurrent jurisdiction, that is if the HighCourt refuses to issue this writ, whether an application isbarred to the Supreme Court. That also I have answered bystating that any number of times a person can go to anynumber of Courts and move this application.
Sir, with these few words I have great pleasure insupporting this article. I commend it to acceptance of theHouse.
Rev. Jerome D'Souza (Madras: General): Mr. Vice-President, I too should like to join my distinguishedcolleague, Shrimati Durgabai, in expressing gratification atthe passing of this very important article which may justlybe considered to be of the gravest character, and of themost far-reaching importance. I am sure, Sir, that Membersof this House will recall to their minds that today isexactly the second anniversary of the opening of this greatAssembly, and surely it is not without some significancethat, nearing the end of our discussion on the Fundamental rights, this coping-stone of the structure of those rightsshould be placed today.
I should like to draw the attention of the House, Sir,to the implications of this article, implications whichpossibly are not obvious at the first reading. This House,and through this House the Legislatures that have to rulethis country in future, by a laudable and significant act ofself-denial or self-abnegation, places under the power of aSupreme Judicature the enforcement of certain laws andcertain principles, and remove them from the purview and thecontrol of the Parliaments which will be elected in futureyears. They wish to put these rights beyond the possibilityof attack or change which may be brought about by thepassions and vicissitudes of party politics, by placing themunder the jurisdiction of judges appointed in the mannerprovided for later on in this Constitution. Sir, it isbecause we all believe,--and that is the implication of thischapter of fundamental Rights,--that man has certain rightsthat are inalienable, that cannot be questioned by anyhumanly constituted legislative author ity, that theseFundamental Rights are framed in this manner and a sanctionand a protection given to them by this provision for appealto the Supreme Court.
As I said, Sir, the implication of this is that anindividual must be protected even against the collectiveaction of people who may not fully appreciate his needs, hisrights, his claims. And the sacredness of the individualpersonality, the claims of his conscience, are, I venture tosay, based upon a philosophy, an outlook on life which areessentially spiritual. Sir, if all our people and theiroutlook were entirely materialistic, if right and wrong wereto be judged by a major ity vote, then there is nosignificance in fundamental rights and the placing of themunder the protection of the High Court. It is because webelieve that the fullest and the most integral definition ofdemocracy includes and is based upon this sacredness of theindividual, of his personality and the claims of hisconscience, that we have framed these rights.
I say, Sir, further that in the last analysis we haveto make an appeal to a moral law and through the moral lawto a Supreme Being, if the highest and the fullest author ityis to be given and the most stable sanction to be securedfor these fundamental rights. Sir, Mahatma Gandhi, in one ofhis unforgettable phrases, referring to the desire to have a secular Constitution and to avoid the name of the SupremeBeing in it, cried out, "You may keep out the Name, but youwill not keep out the Thing from that Constitution". And,Sir, I believe that these fundamental rights and their implications are really tantamount to a confession thatbeyond human agencies and human legislatures there is aPower which has to be submitted to, and there are rightswhich have to be respected.
Sir, we have introduced in these Fundamental Rightscertain provisions--necessary perhaps in present conditions--that in Government institutions instruction in differentreligions may not be given, in order that the calmatmosphere of our institutions may not be disturbed bycontroversies. But I hope and pray that those provisos,prudent though they are, may not exclude the teaching ofethical principles based upon truths acceptable to all, uponthe existence of a Supreme Being and the rights of the individual conscience formed under His guidance. I am sure thatreligious controversies could be avoided on the basis ofthose universally accepted truths. It is certain that ournational culture and civilization are based upon andpermeated by this belief and this conviction; otherwisethere would be no meaning in these fundamental rights. Aspeaker who preceded me asked:
By this article we give to our Supreme Judicature apower, a status and a dignity which will call from them thehighest qualities of integrity and uprightness. The fullmeaning of this article should be borne in mind when we come to that Part of the Constitution beginning with article 103,when we shall have to scrutinise the steps by which anupright and absolutely fair judiciary will be established in this land. When we consider that Part, let us recall theseRights and make sure that all these various provisions willbe enforced in a just and fearless manner.
I now pass on to the next consideration and I beg theindulgence of the House to permit me to say a few wordsabout the manner in which the Minor ity rights andFundamental Rights are inextricably mingled together in thisPart of the Constitution. Sir, I believe this is a right andnecessary mingling. After all, what the minor ities ask isthat the right of the individual may be safeguarded in aninescapable manner. If that is done, "minor ity rights" assuch would not and need not exist. It is because in ademocratic system of Government where a major ity vote may doinjustice to a minor ity, that certain specific references to the minor ities have to be made. But ultimately, in the lastanalysis, if the individual's right to his religiousconvictions, to his cultural preferences, to the rightswhich accrue to him as a man endowed with free will andreason and charged with the obligation of personalsalvation, if these are safeguarded, "minor ity rights" assuch need not find expression. That is why, mingled with these general rights, references are made to minor ities. Ishould like to say on behalf of my own community which Ihave the honour to represent here--I am sure I am alsovoicing the feelings of many others--that if these rightsare really safeguarded in the manner in which they aresought to be safeguarded in this Constitution, if theFundamental Rights including as they do minor ity rights, areassured in an absolutely indubitable manner, no kind ofpolitical safeguards will be necessary for us and we shallnot demand them, as long as, I say, this part of the Constitution is enforced without any kind of "encroachment"or mis interpretation.
Sir, the desire of our country and of our leaders is towork for the political homogeneity of this vast country.Unfortunately that political homogeneity was threatened, and to some extent destroyed by the need to give politicalsafeguards to minor ities. But remember those safeguards wereasked for or were deemed necessary for the sake of religiousand cultural and individual rights and not merely for thesake of political privileges or any emoluments which mightcome from them. And, as long as these, cultural and personalrights are safeguarded, we do not need any other politicalsafeguard. Therefore, Sir, I hope and beg that we may everremember that in the measure that these fundamental rights,protected in the last analysis by the Supreme Court, areenforced and carried out integrally and honourably, to thelast implications of them, the desire for politicalsafeguards and to that degree of political separatism andpartial autonomy which it implies will not arise in thiscountry. We will do nothing to raise that slogan once again.As far as the small Christian community is concerned. we have gone a great way in giving up those politicalsafeguards and we are prepared to go further and give up thereservations which have been made in certain provinces. Andif we do so, it is because we know that in the spirit inwhich these fundamental rights have been guaranteed, thereis for us an assurance of safety and a confidence which doesnot need to be propped up or further affirmed by politicalsafeguards and privileges.
There are, I know, Sir, certain other safeguards stillmaintained in this Constitution, such as economic safeguardsfor backward communities and so forth. I believe that atransitory measure of this kind is necessary; it is wise andprudent to reassure many sections of our people in this way.But, Sir, I submit that the full and logical implications of what we are doing now is that a time should come when eventhe economic and other assistance to be given should not bebased upon the claims of classes as a whole, but should bebased upon the claims of the individual. I am sure, Sir, atime will come when all those who claim and need specialassistance, will get it, without reservations and safeguardson the basis of communities; when our legislatures and theleaders of the country will be able to think out individualtests, in which the communal or social background maycertainly be taken into account, but which will give thatassistance or that concession to all individuals, withoutlimiting it to particular castes or classes. It is only onthis ground and on this understanding that classdifferences, in so far as they are dangerous politically andlead to political separatism, will be eliminated. If, on theother hand, cultural, religious and other rights of thisnature are safeguarded, I do not see why the variety and thediversity of this country should not be a source of strengthand glory rather than a source of political weakness such asthey threatened to be in recent years. We earnestly trustthat the spirit in which these rights will be enucleated,interpreted and enforced in future years by our Judges, thespirit in which the major ity community will give effect to them, will allay all fears and encourage the minor ities in the path which they have deliberately chosen now, of givingup political safeguards. Thus alone in the near future--I donot wait for a distant future--in the near future, will thepolitical homogeneity of these three hundred and thirtymillion people be an accomplished fact, and the members of all communities standing shoulder to shoulder in their civicequality, but maintaining their right to their own faith,their convictions and their ideals, and drawing theirindividual strength from those beliefs and from thoseconvictions will work together for the prosperity andgreatness of our motherland. (Applause).
Shri M. Ananthasayanam Ayyangar: Mr. Vice-President,Sir, the Supreme Court according to me is the Supremeguardian of the citizen's rights in any democracy. I wouldeven go further and say that it is the soul of democracy.The executive which comes into being for the time being isapt to abuse its powers, and therefore the Supreme Courtmust be there, strong and un-trammelled by the day to daypassions which may bring a set of people into power andthrow them out also in a very short time. In less than threeor four years during which a parliament is in being, manygovernments may come and go, and if the fundamental rightsof the individual are left to the tender mercies of theGovernment of the day, they cannot be called fundamental rights at all. On the other hand, the judges appointed to the Supreme Court can be depended upon to be the guardiansof the rights and privileges of the citizens, the major ityand the minor ity alike. So far as the fundamental rights areconcerned, my humble view is that there is no differencebetween the rights and privileges of individual citizens,whether they belong to the major ity community or to the minor ity community. Both must be allowed to exercise freedomof religion, freedom of conscience, must be allowed toexercise their language and use the script which naturallybelongs to them. These and other rights must be carefullywatched and for this purpose the Supreme Court has beenvested with the supreme ultimate jurisdiction.
So far as the rights of the minor ities are concerned,some other provision has also been made in this Constitutionin article 299, under which a special officer or officersare to be appointed to watch their interests and to reportto the President of the Union, as also to the Governor, onhow far the minor ity rights that have been enumerated in this and the other parts of the Constitution are beingobserved, and it is the duty of the President or theGovernor to lay this report before the legislature. But this in itself will not do unless the Supreme Court is watchfuland is allowed to pull up any executive government if itgoes astray.
Sir, I agree with my predecessors who have spoken thatthis is the most important article in the whole constitutionas it is the guardian of the people's rights. So far as I know, in recent years some provincial legislatures havepassed laws abrogating the writ of habeas corpus. Suchlatitude with people's rights ought not to be allowed in anyevent.
Then as regards clause (4), my friend suggested thatthis clause ought to be removed. I do not agree with him,though I agree that the wording here is a little broad andis likely to be abused. I am sure that amount of latitudeought to be given to the government of the day. If anyemergency is proclaimed, I am sure that the rightsguaranteed by this article will be suspended only for theperiod of the emergency but not for another six months afterthe emergency is over, though it is open to the President toallow the same state of affairs to continue for a period ofsix months after the emergency is over. It is equally opento the President to say that this clause will be abrogatedonly during the period of the emergency and not for afurther period of six months after the expiry of the emergency.
Shri H. V. Kamath: On a point of clarification, Sir,may I invite my friend's attention to clause (4) of thisarticle as well as article 280 and request him to read themtogether. Article 280 says that:
Is not clause (4) liable to be misconstrued, when it is readwith article 280? Does article 280 cover all the fundamental rights? Does it mean, Sir, that even such rights as rightsof anti-untouchability, religious and cultural rights willalso be suspended?
The Honourable Dr. B. R. Ambedkar: I will deal withthis.
Shri M. Ananthasayanam Ayyangar: Article 280 does notmean that the President will have to suspend these rights.He is not bound to suspend them or suspend all of them. It is not obligatory on the President to suspend the rightsenumerated in this part. Therefore article 280 need notcreate any apprehension. Moreover, the person who is clothedwith this power is the President of the Union, who ranksalong with the Supreme Court judges. The President is not incharge of the administration. It is his ministers who are incharge of the administration, he only intervenes whennecessary. Under three circumstances I am sure that therights that have been enumerated in this part are safe in the hands of the Supreme Court and also in the hands of the President. Therefore, so far as the amendments that havebeen tabled by my friend Mr. Naziruddin Ahmad are concerned,I do not agree with him. Nor is it necessary to includeunder clause (1) other courts also. Provision has been madein sub-clause (3) for clothing other courts with powerssimilar to the powers that have been conferred upon the Supreme Court. Clause (4) guarantees not only the rightsthat have been guaranteed in clause (1) but also thoseguaranteed in clause (3). My friend, Mr. Naziruddin Ahmad,wants to incorporate what is contained in clause (4) inclause (1). The working as it stands seems to be enough, andhis amendment is not necessary. it is also not definite. It is rather clumsy. Under these circumstances, I am opposing the amendments moved by Mr. Naziruddin Ahmad andalso the amendment relating to the deletion of clause (4).The article as it stands may be accepted.
B. Pocker Sahib Bahadur (Madras: Muslim): Mr. Vice-President, Sir, I wish to speak a few words on this article.As was observed by Mr. Ananthasayanam Ayyangar, I would saythat this is the most important article of the wholeConstitution and we have to take care to see that the rightsconferred by this article are not watered down or in any waymodified by other articles or even by the other clauses ofthis every article. Now, Sir, recent experience after wegained independence has taught us that we have to be muchmore careful in safeguarding the individual liberties and the rights of the citizens now than when we were ruled bythe foreigners. I must say that the recent behaviour ofcertain provincial governments has taught us that it is verynecessary to take careful measures to see that they are notallowed to behave in the manner they have behaved. I amreferring to the way in which the sacred rights andliberties of the person were being dealt with by certainprovincial governments under the cloak of the powers thatthey are said to possess. Very often, Sir, it has become thefashion with these Provincial Governments to say: "Well,some state of emergency has arisen and therefore, in thepublic interest, we shall utilities the powers conferred bythe Public Safety Act and we shall have to curtail the liberties of so many people and put them in jail". And thisis done without those people knowing on what grounds theyare arrested, what is the sin that they have committedagainst the State or against the peace of the country, inorder to deserve the curtailment of their liberty in thisirresponsible fashion; and they are kept in that state ofmind for weeks and months, without even being told what theground is on which they are arrested and detained, eventhough the Government is bound to furnish them with thereasons for their arrest and detention, under the provisionsof the Act under which the Government proposed to arrest them.
Now, Sir, if we look at the irresponsible way in whichthings were done very recently, it is very necessary that wemust have very strong safeguards against the misuse andabuse of the powers which may be conferred on theseGovernments. I would say, Sir, that one principle which wehave to bear in mind and we should always keep in view inframing this Constitution is that ministries may come andministries may go, but the judicial administration must goon unaffected by the vicissitudes in the lives of theseministries and the changes in the Government. It is more topreserve their own power, I mean, the power of theparticular party or the clique in power that these measuresare resorted to than for any public purpose. Such a state ofaffairs should never be allowed to be tolerated. I shallrefer to one instance, Sir.
In Madras the legislature was in session and all of asudden, one evening, a notification was issued that the legislature was prorogued. For what reason it was done,nobody knew, and the next morning an ordinance was issued.To what effect? Apart from so many other things, there wasthe Public Safety Act and under that Act many people werearrested and detained in jail, without even being told whatthey are arrested for and why they are detained. Well, theywere forced to resort to such remedies as were availableunder the existing law and applications were pending in theHigh Court for issue of writs of Habeas Corpus and the HighCourt issued in deserving cases writs of Habeas Corpus. Themoment a person was released by the order of the High Court,that very moment he was re-arrested and put in jail again.And not satisfied with all these apparently, the Governmentfelt annoyed by the independent way in which the High Courtwas exercis ing the legal powers conferred on it underSection 491 of the Criminal Procedure Code. What happenedwas that one evening the Legislature was prorogued and thenext morning an ordinance was issued, even taking away thepower of the High Court to issue writs under section 491 of the CriminalProcedure Code. Now, Sir, is there any bona fides in this?Can any reasonable man say that this could be done with anybona fides? This is the most scandalous way in which thepowers conferred on the Government were being exercised.Under the cover of the powers conferred on them, they haveacted in the most irresponsible way. Therefore, it is that Isay, Sir, that the powers of courts should not be made todepend upon the will and pleasure of the Government and theyshould under no circumstances be allowed to interfere with the powers that vest in courts of law. if the very guaranteeof personal liberty on which democratic form of Governmentis based and the powers vested in courts of law to enforcesuch rights independently are allowed to be interfered with,no one is sage. Of course, if is not a question of major itycommunity; it is not a question of minor ity community butthe powers that be at the time clap in jail such of theindividuals or groups of people, whom they do not like andwhom they do not want to be at liberty, perhaps for the fearthat they may undermine the power which they are enjoying.It is one thing to make safeguards on occasions when thereis general disturbance of the peace of the country, but it is quite another thing to give full powers to theGovernments to do anything they like under the guise of these `emergency powers' and empower them to take awaypowers vested in Courts of Law to protect the personalliberty of citizens.
Now, Sir, I would only like to point out this, thatthis is certainly one of the very important rights which hasbeen conferred under this Constitution, but I am afraid,Sir, that clause (4) takes away with one hand what is givenby the other, and therefore, I would heartily support the amendment that has been moved for the deletion of thisclause. There is no necessity for that clause at all. Ofcourse, as regards the powers to be exercised in case ofemergency, there is provision under section 280 and eventhat would require modification and we shall have to dealwith it when we reach that article, but by the provisions ofthis clause whatever powers are given by the previousclauses are interfered with and I would strongly support the amendment for the deletion of this clause. There is nonecessity for it and as has been already pointed out by oneof the honourable Members this will lead to a conflict witharticle 280 and there will be complications aris ing out ofit. With these few words, I support the amendment for thedeletion of this clause.
Prof. Shibban Lal Saksena (United Provinces: General): Mr. Vice-President, Sir, now we have come to this last part of this Chapter and this article 25 gives the right to everycitizen in the country to see that all the libertiesguaranteed in this chapter are made available to him. He cango to the Supreme Court and demand that these laws beenforced. Sir, this is the crowning section of the wholechapter. Without it, all the articles which we have passedwill have no meaning. As my honourable Friend, Mr. Ayyangar,has said, this is the most important section in the Constitution. This is, in fact, what makes all thefundamental rights become real. Everybody can have hisremedies if any wrong is done to him, under this article.
I think, Sir, the article as it has been worded is veryproper, and the demand for the deletion of clause (4) is nota proper one, at the present stage of our nationaldevelopment; though as a matter of principle, it may be saidto be correct. In America and England there are noprovisions under which the fundamental rights can besuspended. In fact, in England we have no such rights; theyare unwritten rights. Still, in the present stage of ourdevelopment, when the State is in fact being built up. I think this provision for the suspension of the rights in anemergency, as provided in the Constitution, is necessary.There will be an occasion for us to examine those articlesunder which these articles can be suspended and we will seewhether those provisions are reasonable. But to say thateven in an emergency, in a rebellion or on other suchoccasions, there should be no power to the State to suspend this Part of the Constitution, will, I think, be going toofar, especially at this time of our national development. I think very soon when our State becomes stable, we shall beable to drop clause (4).
Clause (3) empowers the Parliament to make laws toempower the local courts to decide this question. I thinkthis is also taking away to some extent the rights conferredhere. Sir, the Supreme Court is the final author ity. I havein fact a very high respect for the Supreme Court. I wantthat the Supreme Court should be a sort of a body almostindependent of the Parliament. It should not be interferedwith by the Parliament as in America. I therefore, thinkthat this clause (3) which says that the Parliament will have power to make laws empowering any other court to decidethis thing should not have been here. If Parliament does notwant that the full import of the rights should be granted,they may empower any court to deal with this subject. I hopethat in the first ten or fifteen years during which weexperiment with this Constitution, we shall realise whetherany Parliament is so determined as to make these rights nulland void.
Sir, clause (2) gives the famous rights which are givenall over the world, writs of habeas corpus and others. I think everybody will agree that this is very important andvery good. Therefore, I think the article as it is, can beaccepted, though, I think in later years if clause (3) isagainst the fundamental principles, it may be dropped. Whenour State becomes stable, clause (4) may also be dropped.That I think would be the proper form of this article aftersome time, when our democracy has become stable.
Sir, when we consider this article as the operativepart of this chapter, we may review what we have done. Infact, this is a Chapter on Fundamental Rights. We haveguaranteed against discrimination of all sorts; we haveguaranteed that untouchability shall be abolished, whichwill be the most historic act done by the Assembly so far;we have granted the Charter of Liberty in article 13. I hopewe will also pass article 15 wherein personal liberty andequality before law shall be guaranteed. Then, we haveprovided safeguards to minor ities, both religious andcultural. The right to property has yet to be finallyadopted. I think all these rights are the most importantrights, the most valued rights of any citizen. I also wantto say to my friends who yesterday thought that they werenot sufficient to guarantee the rights of minor ities, thatthe ultimate right of the minor ity is the good will of the major ity. I personally feel that the major ity has gone to the farthest extent in this matter. I may also point out onething. The Fundamental Rights Committee was appointed beforethe partition took place. In fact, these rights were writtenin this form before the partition had taken place. Theminor ities rights were laid down on the basis that therewill be no partition. Yet, we have not changed them. I amnot letting out a secret when I say that our great leaderSardar Patel told us, "kindly do not interfere with theserights, religious and cultural, because they form part of anagreement arrived at before the partition." If anybody saysthat these rights are not enough, I think it is the heightof ungratefulness. I think we have guaranteed rights whichour people will, probably, tell us in the future that webartered away these rights. We have now declared that noreligious education shall be given in the schools. Thirtycrores of our people are Hindus; yet they shall not have theright to be taught even the universal religious book, theGita, in the schools. Why have we done that? Because, atthat time, before the partition, it was thought that in viewof the fact that there are various religions, let it not bedone. Now, when only three crores out of thirty-three arethe minor ity, still, the major ity is denying itself theopportunity of teaching the children the religious preceptsof its community. Yet, we have not changed these rights,because our leader has told us not to interfere with them. I think the way in which the major ity has tried to accommodatethe minor ity will be taken note of and it shall not be rightfor anybody to come forward and loudly accuse the major ity that it has not provided sufficientsafeguards. I think the rear guarantee of the minor ity isthe good win of the major ity. I hope that with thesefundamental rights, we win be able to produce in thiscountry a State which shall be a State based and inspired bythe ideals or the great leader, the father of the Nation, sothat we can have in our country a really secular State; aState based on the ideals of Mahatma Gandhi.
With these words, Sir, I support this article.
Prof. N. G. Ranga (Madras: General): Mr. Vice-President, Sir, I am unable to understand the line ofargument advanced by those friends who want clause (4) to be deleted, and who do not want to vest in the President or theRepublic the power to suspend these fundamental rights underarticle 280 in case of emergencies. Sir, it has been said bymore than one speaker that this article is the greatestguarantee for individual liberty in our country and that the Supreme Court is being set up as the biggest champion of the liberties of our people. But, has it been considered bythese friends that just as individuals and groups have theirrights, the society as a whole has certain rights vis-a-vis individuals and groups which are bent upon destroying thatsociety, subverting the social order and dissecting thesocial organisation through violent means? Is it not a fact,Sir, that in the recent decades of this century there havebeen such attempts made by organized groups and minor itiesin different countries to subvert the social order anddestroy the social life of the major ity of the peoplethemselves? What is the guarantee then for the continuanceof the social order and social rights of the major ity of thepeoples in the different countries if an organized violenteffort is made by a tiny minor ity? No effort has been madein this Constitution and in this Chapter to safeguard such asociety. It may be said that there is a safeguard for theState; but is it not a fact that in Germany and Italy, agroup of people organized for violence were able to get atthe State and then subvert the whole of the society anddestroy the fundamental rights of the major ity of the peoplethemselves? Is it not also a fact that in Soviet Russia eventoday an organized minor ity is in the saddle and is incharge of the State and is able to deny the fundamental rights not only to the whole of the major ity of the peoplethere, but also the fundamental rights of these individuals,as are being detailed here? Therefore, Sir, it is as wellfor us all to keep in mind this extreme need that society asa whole should safeguard itself against the possibility oforganized minor ities based upon violence, intent upon theuse of violence, trying to use that violence. My Friend Mr.Pocker has tried to create a sort of bogey out of what hadhappened in Madras. Similar things could easily havehappened in other provinces also. Can we deny, Sir, or cananyone else deny the fact that there were people at thattime in Madras Presidency who made it their business to useall possible violent means in order to subvert our ownsociety in the South, in order to go to the aid of a gang ofpeople who had made themselves the enemies of the society asa whole in India and of the State, the Indian State as wellas the Provincial States? Sir, what is it that the MadrasGovernment could have done except what it had actually done--just catch hold of those people, restrain their libertiesfor a temporary period in order to prevent them from goingto the rescue or from abetting the violent means and methodsadopted by the Razakar movement in a particular part of ourcountry? It cannot be denied by these friends that many of these friends whose liberty had to be restrained for a timehad been, directly or indirectly, in league with thosepeople who had their contacts with the Razakar movement; andunder those circumstances how could it be possible for anysociety to safeguard itself except by telling these friendsthat they should hold themselves in check and if they couldnot do so voluntarily it would be the charge of the Society,of the State, to restrain the liberties of these people fora time?
Secondly, Sir, let us not forget that there is a world-wide conflict today between two great ideologies. There istotalitarianism on the one side, and on the other side,there is democracy. In this conflict we have to decide whatwe are going to do. These Fundamental rights can come to beexercised only by that society and those individuals whohave a due respect for law, who have a due respect forfundamental rights of other people along with themselves andwho therefore are prepared to behave themselves with a duesense of responsibility and restraint. Wherever suchconditions do not obtain and wherever there are groups andparties who organize and make it their business to destroythe State and try to capture the State, certainly it wouldnot be possible for any State or Society to respect thesefundamental rights. That is the first pre-requisite for theexercise of these fundamental rights. Sir, it is a well-known fact that these concepts of fundamental rights haveemerged out of the terrible sufferings that people have hadto go through during the last two centuries in differentcountries all over the world. These are all sacred rights,rights that are sanctified by the very experiences of peoplein different countries. It is all true but why are theserights being conceded and how are they being claimed?Because the personality of the individual is found to beinviolable. The individual is found to be just as violableas society. An individual's right to liberty has got to besafeguarded at all costs, in every possible manner by thesociety as well as the State. If the life of that societyitself is endangered, then.
Maulana Hasrat Mohani (United Provinces: Muslim): Whatabout the right to strike?
Mr. Vice-President: Maulana Saheb, please do notinterrupt.
Prof. N. G. Ranga: Mahatma Gandhi himself has alreadyanswered it in regard to strikes. It is possible for anyoneto be allowed to go on strike or groups of people to go onstrike provided they keep themselves non-violent. The momentthey over-step the bounds of non-violence and begin toexercise violence against others who do not believe in thatline of action re less-strikes,--whether you call themstrikes or lock-outs, they have got to be banned and thepeople who indulge in these lock-outs have got to be dealtwith in the only way by which society can possibly do so inorder to safeguard itself. Sir, let us remember that individuals can exist not in vacuum but in a society.Therefore, the first condition precedent for any individualfor the exercise of fundamental rights is the existence ofsociety the fundamentals of which, the soundness of which isits own organization. Therefore, those individuals who donot believe in social life, who are anti-social, who areintend upon disrupting and destroying society necessarilycannot be expected to claim and enjoy-these fundamental rights. This is a very fair condition that every individualhas got to satisfy.
Another thing is, it is not the Supreme Court which isgoing to ensure the exercise of this fundamental right toindividuals or groups as much as an individual's and group'sown capacity to stand up to its own fundamental rights andmake the necessary sacrifice. It can do so in one of twoways. One is that of the Western World, that is, resortingto violence. The other is that of Mahatma Gandhi--resortingto Satyagraha. Now, a Satyagrahi cannot at one and the sametime be both non-violent and violent in his expression, inhis activities, in his incitement of others, in the variousother methods that he adopts in order to subvert thesociety. A Satyagrahi has necessarily to be a peculiarindividual, an individual distinguished from otherindividuals by the degree to which he can restrain himselfand also ask his own followers to restrain themselves andpursue a non-violent line of action both in word, thoughtand action. Now such a Satyagrahi can always safeguard hisown fundamental rights. In view of the fact that everyonecannot be a Satyagrahi and ordinary people also have got to be safeguarded, these fundamental rights are being enshrined in this particularchapter. Therefore those who wish to enjoy this fundamentalright, to safeguard their enjoyment, have got to dischargeparticularly their duty towards society as a whole. Theremay be groups and there are groups in this country, theremay be individuals and there are plenty of them in thiscountry, who do not believe in their duties towards society,but who only wish to exploit to the uttermost possibleextent these fundamental rights. We know, Sir, of certainpamphleteers; we know of certain organizations; also we knowof certain other communal champions who wish to exploitthese liberties. What is it that Society has got to do? Itthey are only of negligible importance, then it is open to the ordinary rule of law to restrain them. But if on theother hand they become sufficiently powerful and vociferousthey have got to be dealt with by the State as such and If they attain a province-wide or a nation-wide importance, itwill be the duty of the President of the Republic to invokearticle 280 and declare an emergency and suspend theoperation of these fundamental rights and deal with thesegentlemen as they deserve to be.
Shri H. V. Kamath: Does my honourable Friend, Prof.Ranga, propose to deal with even vociferous minor ities?
Prof. N. G. Ranga: Yes, but only those people who arevociferous in abusing others, without any sense ofresponsibility, without any restraint and without any senseof morality; and we know that we have had plenty of suchpeople who were the cause of lot of disturbances, and. .
Mr. Vice-President: The answer you have already givenis sufficient.
Prof. N. G. Ranga: Thank you, Sir.
Then, Sir, it is true the major ity also can go mad, and therefore the people have to be protected from theirtyranny. The major ity can go mad in an organized and in anunorganized fashion. If they go mad in an unorganizedfashion, without any leadership from the State, or societyor anybody, then it is the duty of the State to come into the arena and deal with those people as best as it might,even at the peril of its own existence. A state which is notprepared to restrain its own unorganized or disorganizedmajor ities, who believe in inflicting private punishmentupon various people, whether they are organised or not, sucha state does not deserve to exist. But on the other hand, If the major ity is organized and it begins to function throughthe State itself, then who is to guarantee and uphold thesefundamental rights? It may be said that he Supreme Courtwould be expected to do so. It is also quite possible thatwhen an organized major ity is functioning through the Stateand begins to misbehave in this fashion, the Supreme Courtmight be set at naught as it happened in Nazi Germany andFascist Italy. Then what is the guarantee for theseindividuals or groups? There is a book by Prof. Laski called"Liberty in the modern State" in which...
Shri Krishna Chandra Sharma (United Provinces:General): But what is the point? What is the relevancy of all that you say now to the point under discussion?
Prof. N. G. Ranga: There he makes it perfectly clearthat.
Mr. Vice-President: Mr. Sharma wants to know to whatextent what you say is relevant to the article underdiscussion.
Shri H. V. Kamath: Sir, it is for you to decide.
Mr. Vice-President: But I want to hear Prof. Ranga I think there is some connection however slight.
Prof. N. G. Ranga: The Supreme Court expected to issuewrits, mandamus, and various other things. If there were anorganised party which refuses to respect these writs issuedby the Supreme Court, what is the guarantee then for thesefundamental rights? That is the relevancy. My answer is, it is the duty of every group to offer Satyagraha, provided thatSatyagraha is carried out, and is offered in the Gandhianfashion, in a non-violent manner, and in a self-sacrificingfashion; these are the conditions under which Satyagraha canbe offered. That is the instrument that Mahatma Gandhi hasfashioned for the country and.
Shri H. V. Kamath: Sir, is the right to offerSatyagraha a fundamental right?
Prof. N. G. Ranga: Sir, I can only say that it is basicto all your fundamental rights. But Satyagraha need not beenshrined in any constitution. It can be enshrined only in the capacity of the people to offer sacrifice, and to offerthemselves also as sacrifice. This conception of fundamental rights has come into existence in the world only becausethere were so many people in the history of the world whowere prepared to offer themselves to martyrdom in order toestablish these rights, in order to get this conceptionaccepted by the whole of the civilized world and by thewhole of the democratic world as fundamental rights.
Lastly, Sir, I wish to sound a note of warning. Let usremember that we can exercise these rights only within theorbit or within the ambit of democracy, and whenever thereis serious danger to the very concept of democracy, to theexercise of democratic functions, to the institutions ofdemocracy, it must be the duty of the State as well as thatof the President of our Republic to set aside thesefundamental rights in order to safeguard our people. Ourfriends, of course, who claim to belong to some sort ofminor ity are nervous about it. But let me warn them in thisway. It may be that their religion countenances totalitarianism, may be their cult countenancestotalitarianism, but there can be no place fortotalitarianism in this country, and if every any group orindividual were to try to establish totalitarianism in thiscountry, especially to establish a totalitarian State, thenit will be the sacred duty of the Supreme Court as well asthat of the President of the Republic of this Country to seethat this Constitution is maintained at all costs, and thesefundamental rights are not allowed to be exercised by thosepeople or groups in such a way as to jeopardise our society.
Mr. Vice-President: Shri Rohini Kumar Chaudhari. Youwill please be brief.
Shri Rohini Kumar Chaudhari (Assam: General): Mr. Vice-President, Sir, this is the first time that I have broughtthese books to my table, and the House need not beapprehensive because I have brought them here, that I willbe unnecessarily long or irrelevant. I would only like totell you, sir, once again that I am rather short of hearing,so far as bell-rings are concerned, though I can hear allright where whispering accusations are made.
Mr. Vice-President: I wish I had known this before, I would have thought twice before calling you to the mike Shri Rohini Kumar Chaudhri: Sir, I welcome this articlebecause the enunciation of these fundamental rights would bemeaningless if this article were not here to enable us toget our justice from the Supreme Court. I can quiteunderstand the coyness of my friend Mr. Naziruddin Ahmadwhile he was moving his amendment. After all the man who isalways fond of finding out small faults of drafting has beencaught napping, and it has been found, and he has himselfadmitted it, that the whole of his amendment is notexplicit. But I would submit that what he intended to conveyhas been conveyed by the article itself. Every person will have the right to move the Supreme Court whenever he findsthat a fundamental right has been infringed. Supposing wewant to say that the Queensway is open to traffic, one neednot say that every person shall have the right to go through Queensway. Similarly, the article as it stands here is quiteexplicit and does not require the amendment tabled by Mr.Naziruddin Ahmad.
I also welcome the provision which has been made hereinthat in some cases the Supreme Court may delegate its powersto some other courts. That will be a blessing to distantplaces like Assam and Coorg, because people from such placeswill find it extremely difficult to come and seek relief in the Supreme Court which is bound to be located somewhere in the United Provinces or Delhi. But at the same time I wouldlike to mention here that such power of delegation should beexercised very sparingly because after all the personnel of the Supreme Court would no doubt be more qualified than thepersonnel of a High Court. Therefore to shut out thepossibility or the chance of any particular province fromcoming to the Supreme Court and of making the High Court toexercise the Supreme Court jurisdiction would be some what anomalous.
I now come to the fourth clause of article 25. I wish Ihad spoken before my honourable Friend Mr. AnanthasayanamAyyangar had spoken because he would have been able toexplain some of the difficulties which I feel about thisclause. Furthermore, I as well as most members of the Houselook upon our honourable Friend Mr. Ananthasayanam Ayyangaras something akin to Guru Dronacharya of old who can,notwithstanding his personal feelings and opinions, give aproper interpretation of the provision as taken by theframers of this draft. Subject to correction I consider thatclause (4) should have been omitted or there should be asubstantial modification of this clause. The Fundamental rights are in the very nature of them rights which shouldnever be taken away from the people. According to thisclause these Rights can be taken away in a state ofemergency. Article 280 says that in a state of emergency the President can keep the whole of article 25 suspended. Let ussee what will be the result of this suspension--what will bethe evil effect and what may be the possible good effect ofthis suspension. The evil effect of this suspension would bethat in a state of emergency you can ignore article 11 whichdeals with untouchability. That is to say we conceive a setof circumstances which would entitle the State or any personto infringe against article 11 and go without anypunishment. Any state, or any temple or any author ity caninfringe article 11 in a state of emergency. Does this Housesupport such a view? Will the House under any circumstancesagree to a suspension of the Constitution in so far asarticle 25 is concerned, and allow people who infringeagainst it to go with impunity?
Let us take again article 17 where traffic in humanbeings has been prohibited. Does the House agree that asuspension of the Constitution should take effect so thatthe people can indulge in traffic in human beings withimpunity? I say that such a state of things may actuallytake place. Remember the last war when actually traffic inhuman beings was carried on for the exigencies of the war.What is after all the Women's Volunteer Service? What was W.A. C.? Everybody knows for what purpose the Women'sVolunteer and Auxiliary Corps were organized and whatfunctions they carried on. Traffic in human beings wasactually carried on there, and it was carried on during thewar in different cities where women were actually engagedfor dancing and other purposes in order to keep up themorale of the troops. Do you, by agreeing to a suspension ofarticle 25, countenance the possibility of traffic in humanbeings of this kind in a state of emergency which is spokenof during the war? I therefore wish that this last clause--clause (4)--of this article should either be deleted oramended in such a manner that it is not possible to suspendthe entire article at any time but it can be suspended undercertain most unavoidable circumstances. But, as a matter offact I cannot envisage any circumstance which would make itnecessary for you to suspend this article in any respect.During a state of emergency what you may want to suspend is article 13 where freedom ofspeech, freedom of association and all these things havebeen mentioned. It may be necessary during a period ofemergency or when war is actually going on, to restrict thefreedom of speech and the freedom of movement and otherrights which are mentioned in that article. But that articlealso contains in every phase of it provisos which empowerthe State to restrict those rights. So far as that article,provisions which are most essential during a state ofemergency, is concerned you have already got limitations andrestrictions mentioned in the article itself. For thatpurpose the suspension of article 25 is not necessary.Therefore in my humble opinion, and subject to correctionsand explanations which might be given by my honourableFriend Dr. Ambedkar or by any other member in this House, I would submit that it would be better from every point ofview to do away with this clause (4) altogether or to amendit in a suitable manner.
Pandit Lakshmi Kanta Maitra (West Bengal: General): Doyou suggest that article 280 should also be deleted?
Shri Rohini Kumar Chaudhari: I was referring to article280 in my speech.
You are not called upon to answerthat.
The Honourable Dr. B. R. Ambedkar: Mr. Vice-President,Sir, of the amendments that have been moved to this articleI can only accept amendment No. 789 which stood in the nameof Mr. Baig but which was actually moved by Mr. NaziruddinAhmad. I accept it because it certainly improves thelanguage of the draft. With regard to the other amendments Ishall first of all take up the amendment (No. 801) moved byMr. Tajamul Husain and the amendment (No. 802) moved by Mr.Karimuddin. Both of them are of an analogous character. Theobject of the amendment moved by Mr. Tajamul Husain is todelete altogether sub-clause (4) of this article and Mr.Karimuddin's amendment is to limit the language of sub-clause (4) by the introduction of the words `in case ofrebellion or invasion'.
Now, Sir, with regard to the argument that clause (4)should be deleted, I am afraid, if I may say so without anyoffence, that it is a very extravagant demand, a very tallorder. There can be no doubt that while there are certainfundamental rights which the State must guarantee to theindividual in order that the individual may have somesecurity and freedom to develop his own personality, it isequally clear that in certain cases where, for instance, theState's very life is in jeopardy, those rights must besubject to a certain amount of limitation. Normal, peacefultimes are quite different from times of emergency. In timesof emergency the life of the State itself is in jeopardy andif the State is not able to protect itself in times ofemergency, so that it may survive that emergency and live todischarge its functions in order that the individual underthe aegis of the State may develop, must be guaranteed assafely as the right of an individual. I know of noConstitution which gave fundamental rights but which givesthem in such a manner as to deprive the State in times ofemergency to protect itself by curtailing the rights of theindividual. You take any Constitution you like, wherefundamental rights are guaranteed; you will also find thatprovision is made for the State to suspend these in times ofemergency. So far, therefore, as the amendment to deleteclause (4) is concerned, it is a matter of principle and Iam afraid I cannot agree with the Mover of that amendmentand I must oppose it.
Now, Sir I will go into details My Friend Mr. TajamulHusain drew a very lurid picture by referring to variousarticles which are included in the Chapter dealing withFundamental Rights. He said, here is a right to take water,there is a right to enter a shop, there is freedom to go to a bathing ghat. Now, if clause (4) came into operation, he suggestedthat all these elementary human rights which the Fundamentalpart guarantees--of permitting a man to go to a well todrink water, to walk on the road, to go to a cinema or atheatre, without any let or hindrance--will also disappear.I cannot understand from where my friend Mr. Tajamul Husaingot this idea. If he had referred to article 279 whichrelates to the power of the President to issue aproclamation of emergency, he would have found that clause(4) which permits suspension of these rights refers only toarticle 13 and to no other article. The only rights thatwould be suspended under the proclamation issued by the President under emergency are contained in article 13; allother articles and the rights guaranteed thereunder wouldremain intact, none of them would be affected. Consequently,the argument which he presented to the House is entirelyoutside the provisions contained in article 279.
Shri H. V. Kamath: What about article 280?
The Honourable Dr. B. R. Ambedkar: All that it does isto suspend the remedies. I thought I would deal with thatwhen I was dealing with the general question as to thenature of these remedies, and therefore I did not touch uponit here.
Taking up the point of Mr. Karimuddin, what he tries todo is to limit clause (4) to cases of rebellion or invasion.I thought that if he had carefully read article 275, therewas really no practical difference between the provisionscontained in article 275 and the amendment which he hasproposed. The power to issue a proclamation of emergencyvested in the President by article 275 is confined only tocases when there is war or domestic violence.
Kazi Syed Karimuddin: Even if war is only threatened?
The Honourable Dr. B. R. Amedkar: Certainly. Anemergency does not merely arise when war has taken place--the situation may very well be regarded as emergency whenwar is threatened. Consequently, if the wording of article275 was compared with the amendment of Mr. Karimuddin, hewill find that practically there is no difference in whatarticle 275 permits the President to do and what he would beentitled to if the amendment of Mr. Karimuddin was accepted.I therefore submit, Sir, that there is no necessity foramendments Nos. 801 and 802. So far as I am concerned, No.801 is entirely against the principle which I have enunciated.
I will take up the amendments of my friend Mr. Kamath,No. 787 read with No. 34 in List III, and the amendment ofmy friend Mr. Sarwate, No. 783 as amended by NO. 43. Myfriend Mr. Kamath suggested that it was not necessary toparticularize, if I understood him correctly, the variouswrits as the article at present does and that the mattershould be left quite open for the Supreme Court to evolvesuch remedies as it may think proper in the circumstances of the case. I do not think Mr. Kamath has read this articlevery carefully. If he had read the article carefully, hewould have observed that what has been done in the draft isto give general power as well as to propose particularremedies. The language of the article is very clear:
The Supreme Court shall have power to issue directionsor orders is the nature of the writs of......"
These are quite general and wide terms.
Shri H. V. Kamath: On a point of explanation, Sir. With the accepted amendment of my friend Mr. Baig, the clausewill read thus:
The Honourable Dr. B. R. Ambedkar: Yes, the words"directions and orders" are there.
Shri H. V. Kamath: And "writs".
The Honourable Dr. B. R. Ambedkar: Yes.
While the powers of the Supreme Court to issue ordersand directions are there, the draft Constitution has thoughtit desirable to mention these particular writs. Now, thenecessity for mentioning and making reference to theseparticular writs is quite obvious. (These writs have been inexistence in Great Britain for a number of years. Theirnature and the remedies that they provided are known toevery lawyer and consequently we thought that as it isimpossible even for a man who has a most fertile imaginationto invent something new, it was hardly possible to improveupon the writs which have been in existence for probablythousands of years and which have given completesatisfaction to every Englishman with regard to theprotection of his freedom. We therefore thought that asituation such as the one which existed in the Englishjurisprudence which contained these writs and which, If Imay say so, have been found to be knave-proof and fool-proof, ought to be mentioned by their name in the Constitution without prejudice to the right of the Supreme Court to do justice in some other way if it felt it wasdesirable to do so.) I, therefore, say that Mr. Kamath needhave to ground of complaint on that account.
My friend Mr. Sarwate said that while exercis ing thepowers given under this article, the Court should have thefreedom to enter into the facts of the case. I have no doubtabout it that Mr. Sarwate has misunderstood the scope andnature of these writs. I therefore, think, that I need makeno apology for explaining the nature of these writs. (Anyonewho knows anything about the English law will realise andunderstand that the writs which are referred to in thearticle fall into two categories. They are called in onesense "prerogative writs", in the other case they are called"writs in action". A writ of mandamus, a writ ofprohibition, a writ of certiorari, can be used or appliedfor both; it can be used as a prerogative writ or it may beapplied for by a litigant in the course of a suit orproceedings. The importance of these writs which are givenby this article lies in the fact that they are prerogativewrits; they can be sought for by an aggrieved party withoutbringing any proceedings or suit. Ordinarily you must firstfile a suit before you can get any kind of order from theCourt, whether the order is of the nature of mandamus,prohibition or certiorari or anything of the kind. But here,so far as this article is concerned, without filing anyproceedings you can straightaway go to the Court and applyfor the writ. The object of the writ is really to grant whatI may call interim relief.) For instance, if a man isarrested, without filing a suit or a proceeding against theofficer who arrests him, he can file a petition to the Courtfor setting him at liberty. It is not necessary for him tofirst file a suit or a proceeding against the officer. (In aproceeding of this kind where the application is for aprerogative writ, all that the Court can do is to ascertainwhether the arrest is in accordance with law. The Court atthat stage will not enter into the question whether the lawunder which a person is arrested is a good law or a bad law,whether it conflicts with any of the provisions of the Constitution or whether it does not conflict. All that theCourt can inquire in a habeas corpus proceedings is whetherthe arrest is lawful and will not enter into the question--at least that is the practice of the Court--of the merits of the law. When a person is actually arrested and his trialhas commenced, it is in the course of those proceedings thatthe court would be entitled to go into the facts and to come to a decision whether a particular law under which a personis arrested is a good law or a bad law. Then the court willgo into the question whether it conflicts with theprovisions of the Constitution. Consequently, the amendment moved by my friend Shri V. S. Sarwate, if I maysay so, is quite out of place. It is not here that such aprovision could be made. If he refers to article 115, hewill find that a provision for similar writs has been madethere. But those are writs which could be issued inconnection with questions of fact and law. They wouldcertainly be investigated by the Courts.)
Now, Sir, I am very glad that the major ity of those whospoke on this article have realised the importance and thesignificance of this article. If I was asked to name any particular article in this Constitution as the mostimportant--an article without which this Constitution wouldbe a nullity--I could not refer to any other article exceptthis one. It is the very soul of the Constitution and thevery heart of it and I am glad that the House has realisedits importance.
There is however one thing which I find that theMembers who spoke on this have not sufficiently realised. It is to this fact that I would advert before I take my seat.(These writs to which reference is made in this article arein a sense not new. Habeas corpus exists in our CriminalProcedure Code. The writ of Mandamus finds a place in ourlaw of Specific Relief and certain other writs which arereferred to here are also mentioned in our various laws. Butthere is this difference between the situation as it existswith regard to these writs and the situation as will nowarise after the passing of this Consultation. The writswhich exist now in our various laws are at the mercy of the legislature. Our Criminal Procedure Code which contains aprovision with regard to habeas corpus can be amended by theexisting legislature. Our Specific Relief Act also can beamended and the writ of habeas corpus and the right ofmandamus can be taken away without any difficulty whatsoeverby a legislature which happens to have a major ity and thatmajor ity happens to be a single-minded major ity. Hereafterit would not be possible for any legislature to take away the writs which are mentioned in this article. It is notthat the Supreme Court is left to be invested with the power to issue these writs by a law to be made by the legislatureat its sweet will. The Constitution has invested the Supreme Court with these rights and these writs could not be takenaway unless and until the Constitution itself is amended bymeans left open to the Legislature. This in my judgment isone of the greatest safeguards that can be provided for thesafety and security of the individual. (We need nottherefore have much apprehension that the freedoms whichthis Constitution has provided will be taken away by anylegislature merely because it happens to have a major ity.)
Sir, there is one other observation which I would liketo make. In the course of the debates that have taken placein this House both on the Directive Principles and on theFundamental Rights. I have listened to speeches made by manymembers complaining that we have not enunciated a certainright or a certain policy in our Fundamental Rights or inour Directive Principles. References have been made to the Constitution of Russia and to the Constitutions of othercountries where such declarations, as members have sought tointroduce by means of amendments, have found a place. Sir, I think I might say without meaning any offence to anybody whohas made himself responsible for these amendments that. (Iprefer the Brit ish method of dealing with rights, TheBrit ish method is a peculiar method, a very real and a verysound method.) Brit ish jurisprudence insists that there canbe no right unless the Constitution provides a remedy for it. It is the remedy that makes a right real. If there is noremedy, there is no right of all, and I am therefore notprepared to burden the Constitution with a number of piousdeclarations which may sound as glittering generalities butfor which the Constitution makes no provision by way of aremedy. It is much better to be limited in the scope of ourrights and to make them real by enunciating remedies than tohave a lot of pious wishes embodied in the Constitution. Iam very glad that this House has seen that the remedies that we have provided constitute a fundamentalpart of this Constitution.) Sir, with these words I commendthis article to the House.
Shri H. V. Kamath: On a point of clarification, Sir, aswe are dealing with justiciable fundamental rights and theguaranteeing of these by the Supreme Court and in view of the fact that article 280 has also been invoked, will it notbe more desirable to say that "the rights guaranteed by thisarticle shall not be suspended wholly or in part".... or anysimilar set of words which the legal luminaries may choose?
The Honourable Dr. B. R. Ambedkar: "Shall not besuspended" covers both. It is unnecessary to specify it.
Mr. Vice-President: I will now put the amendments oneby one to the vote.
The question is:
The amendment was negatived.
Mr. Vice-President: The question is:
The amendment was negatived.
Mr. Vice-President: Amendment No. 787 standing in thename of Mr. Kamath.
Shri H. V. Kamath: In view of the remarks made by Dr.Ambedkar of this matter, I do not wish to press it.
The amendment was, by the leave of the Assembly,withdrawn.
Mr. Vice-President: Then we come to amendment No. 789standing in the name of Mr. Mahboob Ali Baig, but moved byMr. Naziruddin Ahmad.
The question is:
The amendment was adopted.
Mr. Vice-President: Amendment No. 794 standing in thenames of Dr. Ambedkar, Mr. Madhava Rau and Mr. Saadulla.
The question is:
The amendment was adopted.
Mr. Vice-President: Amendment No. 43 of List 1 standingin the name of Mr. Sarwate.
Shri V. S. Sarwate: I do not wish to press it.
The amendment was, by leave of the Assembly, withdrawn.
Mr. Vice-President: Amendment No. 44 of List 1.
The question is:
The amendment was negatived.
Mr. Vice-President: Amendment No. 801.
The question is:
The amendment was negatived.
Mr. Vice-President: Amendment No. 802 standing in thename of Mr. Karimuddin. The question is:
The amendment was negatived.
Mr. Vice-President: Amendment No. 805 by Mr. NaziruddinAhmad. The question is:
The amendment was negatived.
Mr. Vice-President: I will now put to the vote article25 as amended by amendments Nos. 789 and 794. The questionis:
That article 25, as amended, stand part of the Constitution.
The motion was adopted.
Article 25, as amended, was added to the Constitution.
Mr. Vice-President: We next come to article 25-A.Amendment No. 108 by Mr. Lari.
(The amendment was not moved.)
Mr. Vice-President: We then come to article 26. Themotion before the House is:
That article 26 form part of the Constitution.
Amendment No. 809 is of a negative character and therefore disallowed.
(Amendment No. 810 was not moved.)
Amendments Nos. 811 and 812 are of similar import. Ishould say they are almost identical. I allow 811 to be moved.
The Honourable Dr. B. R. Ambedkar: Sir, I move:
This part does not guarantee but only confers theserights. Therefore to bring the language in conformity, Ipropose this amendment.
Mr. Vice-President: There is an amendment to this amendment. No 48 of List 1.
(The amendment was not moved)
(Amendment No. 813 was not moved.)
I shall now put article 26 to vote.
Shri T. T. Krishnamachari: How can the article be putto the before the amendment is put to the vote?
Mr. Vice-President: The question is:
The amendment was adopted.
Mr. Vice-President: The question is that:
That article 26, as amended stand part of the Constitution.
The motion was adopted.
Article 26, as amended, was adopted to the Constitution.
(Amendments Nos. 814, 815 & 816 were not moved.)
Mr. Vice-President: Amendments Nos. 817 and 818 are to be considered together. 817 may be moved; it stands in thename of Dr. Ambedkar.
The Honourable Dr. B. R. Ambedkar: Sir, I move:
The object of introducing this addition of clause (2a)of article 10 is because this is a new clause which wasadopted by this House. It is, therefore, necessary to make areference to it in this article.
Mr. Vice-President: There is an amendment to this amendment.
The Honourable Dr. B. R. Ambedkar: I have moved it asamended.
Mr. Vice-President: I see.
(Amendment No. 818 was not moved.)
Amendment No. 819 is a verbal amendment. Amendment No.829 may be moved.
The Honourable Dr. B. R. Ambedkar: Sir, I move:
Mr. Vice-President: Amendment No. 48 of List I standingin the name of Mr. Naziruddin Ahmad. Does he wish to moveit?
Mr. Naziruddin Ahmad: Sir, I beg to move:
Mr. Vice-President: It is very much like a verbal amendment.
Mr. Naziruddin Ahmad: Yes, Sir; because I was called, Ihad to obey the ruling of the Chair and that is why I came to the mike to move it, but this is verbal.
Mr. Vice-President: I am very grateful. I take it thatyou are not moving it.
Mr. Naziruddin Ahmad: No, Sir. I have already moved the amendment, but I do not wish to press it.
Mr. Vice-President: Amendments Nos. 822 and 823 are ofsimilar import. No. 822 can be moved.
The Honourable Dr. B. R. Ambedkar: Sir, I move:
(Amendments Nos. 50 of List No. 1, 65 of List No. IVand 823 were not moved.)
Mr. Vice-President: The article is now open fordiscussion.
(At this stage Mr. Kamath rose to speak.)
Mr. Vice-President: I hope you will permit me to getthe things through before we disperse, in which case, Ishall adjourn the House at 1 o'clock.
Shri H. V. Kamath: I am equally anxious. Mr. Vice-President, I am here seeking only a little light from Dr.Ambedkar with regard to his amendment No. 820 moved by him.I fail to see clearly why the words in the article as itstands at present should be substituted by the words heproposes to. In case his amendment is accepted, it will meanthat Parliament shall have power only for prescribingpunishment for the acts referred to in clause (b). Then whatabout the Parliament's power to make laws with respect to any of the matters which under this power are required to beprovided for by legislation in clause (a)? Does he intend byhis amendment to take away the power which is sought to beconferred by clause (a) of this article? It is conceivablethat there are certain matters about which there are notlaws already in force. Therefore, if there be such matterswith regard to which there is no law in force, does heintend by his amendment to take away the power which issought to be conferred by clause (a) of this article? It isconceivable that there are certain matters about which thereare not laws already in force. Therefore, if there be suchmatters with regard to which there is no law in force, doeshe intend by his amendment to take away the power sought to be conferred by clause (a) of this article, which is `tomake laws with respect to any of the matters which underthis Part are required to be provided for by legislation byParliament'? The amendment seeks to give power only forprescribing punishment and not for making laws with respectto the matters required to be provided for by legislationunder this Part. I want to know exactly what the import ofhis amendment is and why this clause (a) is sought to beamended in this fashion.
The Honourable Dr. B. R. Ambedkar: I am sorry, Mr.Kamath has not been able to understand the scheme which isembodied in article 27. This article embodies threeprinciples. The first principle is the wherever thisConstitution prescribes that a law shall be made for givingeffect to any fundamental right or where a law is to be madefor making an action punishable, which interferes withFundamental Rights, that right shall be exercised only byParliament, notwithstanding the fact that having regard to the List which deals with the distribution of power, suchlaw may fall within the purview of the State Legislature.The object of this is that Fundamental Rights, both as to their nature and as to the punishments involved in theinfringement thereof, shall be uniform throughout India.Therefore, if that object is to be achieved, namely, thatFundamental Rights also shall be uniform, then, that powermust be exercised only by the Parliament, so that there maybe uniformity.
The second thing is this. If there are already Actswhich provide punishments for breaches of Fundamental rights, unless and until the Parliament makes another or abetter provision, such laws will continue in operation. That is the whole scheme of the thing. I do not see why thereshould be any difficulty in understanding the provisionscontained in article 27.
Shri H. V. Kamath: I am sorry, Sir, that Dr. Ambedkarhas not been able to follow me clearly. (Laughter)
The Honourable Dr. B. R. Ambedkar: It is quitepossible.
Mr. Vice-President: Mr. Kamath, it may be the otherway.
Shri H. V. Kamath: Sir, he has answered a differentpoint from the one which I raised. My point was different.Perhaps he was not listening to me carefully. He was talkingto some one else. If you will permit me, Sir, I shall try toexplain the point.
Mr. Vice-President: Yes; but do not address the House;you must address the Chair.
Shri H. V. Kamath: I am addressing you, Sir, as Ialways do. The difficulty that arises is this. In thearticle as it stands at present, clause (a) gives Parliamentalone the power. I do not question this; I agree Parliamentand Parliament alone should have the right. You say hereParliament shallhave power to make laws with regard to any of the matters.Further on, you say that Parliament shall, as soon as maybe, after the commencement of this Constitution, make lawsto provide for etc., etc. Now, Dr. Ambedkar wants tosubstitute this latter part by amendment No. 820. You wantto omit the words "provide for such matters" and retain onlythe proviso as regards punishment. What about making lawsfor such matters? Why do you delete that portion? Why do youretain only the part regarding punishment? That was mypoint, but Dr. Ambedkar has answered a different point.
The Honourable Dr. B. R. Ambedkar: The reason why forinstance, I have introduced an amendment in clause (a) isbecause it is only in specific matters that Parliament hasbeen given this penal author ity and these article arereferred to in my amendment. My friend Mr. Kamath will seethat clause (a) contains no reference to any of the articleswhich specifically give Parliament the power to make laws.It is to make that point clear that I thought it would bedesirable to make a reference to clause (2a) of article 10,article 16, clause (3) of article 25 and article 26,because, these are the specific articles which are to bedealt with exclusively by Parliament.
Mr. Vice-President: I shall now put the amendments tovote. All of them stand in the name of Dr. Ambedkar.
Amendment No. 817 as amended by amendment No. 56 ofList III.
The question is:
The amendment was adopted.
Mr. Vice-President: Amendment No. 820.
The question is:
The amendment was adopted.
Mr. Vice-President: Amendment No. 822.
The question is:
Mr. Vice-President: The question before the House is:
The motion was adopted.
Article 27, as amended, was added to the Constitution.
Mr. Vice-President: The House stands adjourned till Tenof the Clock tomorrow.
The Assembly then adjourned till Ten of the Clock onFriday the 10th December 1948.