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Constituent Assembly Of India -Volume X
Dated: October 16, 1949
An Honourable Member: Who will decide?
Shri T. T. Krishnamachari: 'The idea is that the court shall not decide in this particular matter. It is subject only to the provisions of article 119 by which the President may refer the matter to the Supreme Court and ask for its opinion and the Supreme Court would be bound to communicate its opinion to the President on any matter so referred by him. The House will also remember that there are a few articles in the Constitution specifically, 302A and 267A where there are references to these agreements, covenants, sanads, etc. and even these are precluded from adjudication by any court. The House will recognize that it is very necessary that matters like these should not be made a matter of dispute that goes before a court and one which would well nigh probably upset certain arrangements that have been recommended and agreed to by the Government of India in determining the relation between the rulers of States and the Government of India in the transitory period. After the Constitution is passed, the position will be clear. Practically all the States have come within the scope of Part VIA and they will be governed by the provisions of this Constitution and, excepting so far as certain commitments are positively mentioned in the Consti tution, and as I said the two articles 267A and 302A, the covenants will by and large not affect the working of the Constitution; and it is therefore necessary in view of the vast powers that have been conceded in this Constitution to the judiciary that anything that has occurred before the passing of this Constitution and which might incidentally be operateable after the passing of the Constitution must not be a subject-matter of a dispute in a court of law. I think that Members of this House will understand that it is a very necessary provision so as to save unnecessary disputes by people who might feel that they have been affected or injured and who would rush to a court to make the court recognize such rights and other similar matters which have been paractically extinguished by the provisions of this Constitution excepting in so far as certain articles of the Constitution preserve them. Sir, I hope the House will pass the article without any demur.
(Amendment 403 was not moved.)
Mr. President: There is no amendment to this. Does any Member wish to say anything about this article" I will put this straightaway to vote.
The question is:
"That after article 302A, the following article he inserted:-
'302AA. "Bar of jurisdiction of Courts with respect to certain treaties, agreements, etc,
(1) Notwithstanding anything contained in this Constitution and subject to the provisions of article 119 thereof, neither do Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into byany Ruler of an IndianState and to which the Government of the Dominion of India or any of its predecessor Governments was a party and which has of has been continued in operation after the date of commencement of this Constitution, or in any dispute in respect of any right accuring under any of the provisions of this Constitution relating to any such treaty,agreement, covenant, engagement, sanad or other similar instrument.
(2) In this article-
The motion was adopted.
Article 302AA was added to the Constitution.
# Schedule III
Mr. President: We might take up the other articles and Schedule Ill. They are minor things.
Shri T. T. Krishnamachari: Schedule III and the other articles involve reopening of articles and schedule already passed. We have to take the permission of the House.
Mr. President: You will ask for leave reopen.
Shri T. T. Krishnamachari: Mr. President, in the Order Paper today, beginning from item 1, article 13 to the Third Schedule, with the exception of the items relating to article 264-A, 274DD, 302AA which have been passed and 280A which has been held over, all the other items are for re- opening the articles or Schedules that have been passed. I would therefore request that you put to the House the proposition whether they are willing to allow these articles to be re-opened.
Mr. President: I take it that the House gives leave to re- open these articles.
The Honourable Members-. Yes.
Mr. President: We shall take up Schedule III.
Shri H. V. Kamath (C. P. & Berar: General): What about article Mr. President: Let us finish first this Schedule.
Shri T. T. Krishnamachari: Sir, I move amendments 401 and 402 together:
This is merely an omission which we seek now to rectify. The form of oath that has been prescribed for the Judges of the Supreme Court will be prescribed, if it is accepted by the House to the Comptroller and Auditor-General of India.
Mr. President: There is no amendment to this amendment to the Schedule.
The question is:
"That in item IV of the Form of Oath, in the Third Schedule, after the words 'judges of the Supreme Court'. the words 'and the Comptroller and Auditor-General of India' be
The amendments were adopted. Article 13
Mr. President: Let us take up article 13.
Shri T. T. Krishnamachari : May I request, Sir..............
Shri H. V. Kamath: With regard to this amendment, Sir.........
Shri T. T. Krishnamachari: May I request, Sir, that you take up the first item afterwards, at the end?
Mr. President: We shall take up item I later. Let us begin with article 16.
Shri T. T. Krishnamachari: Sir.. I move amendment No. 393 Which reads thus:
The reason is that we have taken article 16 from the Fundamental Rights Chapter and put it in Part XA, in the Chapter entitled Trade, Commerce and Intercourse within the territory of India. The article now finds place in a different form under article 274-A which reads thus:
The difference between this and the article as it appears in article 16 is only in the phraseology of the articles which says that subject to the powers of Parliament, trade,.commerce and intercourse etc. shall be free. Having taken it over to Part X-A, there is no meaning in keeping article 16 in the Fundamental Rights, and that is why I have moved this amendment.
May I also explain, Sir, to the Members of this House, who, I believe, are aware of the substance of my explanation, that the original idea of putting the article which confers a very restricted right under fundamental rights has got a history behind it. That was because at the time when we framed the Fundamental Rights we felt that the picture of the Constitution would be different, Even so, the right that is conferred is limited by any law made by Parliament, The appropriate place, therefore, for an article of this nature, which is in reality not a fundamental right, in the sense that other, articles, are fundamental rights, is in the chapter relating to trade and commerce. I think the House will have no objection to deleting what is now more or less a surplus article in the articles on fundamental rights.
(Amendment No. 416 was not moved.)
Pandit Thakur Das Bhargava (East Punjab: General)- May I ask a question of Mr. T. T. Krishnamachari? According to him, article 274A now takes the place of article 16. May I just know if article 25 shall apply to article 274A?
Shri T. T. Krishnamachari: My honourable Friend, if he waits for some time, will find that I shall be bringing forward another amendment to indicate that article 25 shall not apply to article 274-A and for eliminating its application to article 16. The normal processes of law, the normal powers that are conferred under this Constitution on the Supreme Court to see that every provision of this Constitution is observed will operate so far as all the articles 274-A to 274-E are concerned. Any special provision that might have operated will be very restricted in so far as article 16, as it now stands, permits. If Parliament had abridged that right by law, what could article 25 do by way of conferring any special right because what could be taken to the Supreme Court under article 16 could be only what Parliament chooses to allow people to take to the Supreme Court?
Shri B. Das (Orissa: General): Sir, as I understood article 16, it confers freedom of trade and commerce and intercourse throughout the territory of India. I listened most attentively to my honourable Friend Mr. T. T. Krishnamachari and I feel that though we have given certain powers under article 274-A or any other article I do not very much understand the idea that the articles on Fundamental Rights which we had discussed so thoroughly in this House on two or three occasions should be tinkered with. Supposing by article 274-A you have conferred equal freedom as is contemplated by article 16, let article 16 also remain. Of course, I heard Mr. T. T. Krishnamachari's argument that there is no need for going to the Supreme Court and to argue that the Fundamental Rights have not been interfered with. But, I am not clear in my mind, whether the subsequent articles do complete justice as was contemplated in article 16. I do not wish at the fag-end of our Constitution-making stage to tinker with the Fundamental Rights that we passed after so much thought, consideration and deliberation.
Shri Brajeshwar Prasad (Bihar: General): Mr. President, I would like to say a word or two.
I am really sorry, Sir, that this article has been deleted from the Fundamental Rights. I hold the opinion that there should be complete freedom of trade and commerce and that neither the provincial Legislatures nor the Parliament should have the right to curtail this fundamental right. I am really sorry that this article has been partly incorporated in article 274-A. I wish that the members of the Drafting Committee had given an amendment deleting article 274-A and not article 16.
Pandit Thakur Das Bhargava: Sir, article 16 constitutes one of the provisions which are under the purview of article 25 and this was a very important Fundamental Right possessed by the citizens that intercourse throughout the territory of India shall be free. It ensures that provincial boundaries shall not hamper any kind of movement and every person shall be able to enjoy the full fruits of the citizenship of the Republic of India. But now since we have passed certain provisions contained in part 10-A, it is true that to a certain extent this freedom has been curtailed and I had occasion to say when these articles were being considered how this right was being taken away, but all the same article 16 was allowed to remain where it was. We value this right because it is one of those right's which could be enforced under' article 25 by the Supreme Court by appropriate proceedings though we have not decided how these proceedings will be worked out because the Fundamental Rights constitute new provisions, but all the same we were tinder the impression that some method will be found by virtue of which we will be able to see that the citizens of this Republic get cheap and easy relief under article 25.
Now this article is being taken away from the Fundamental Rights and 274-A takes its place. My apprehension is that we are being deprived in an unjust manner of the cheap remedies which were secured to us by article 16. This is not the only section, in which attempt is being made in this House at the fag-end of the Session to take away rights or remedies. We have an amendment to article also. We have also seen how under article 307 all the rights are being taken by the Government under the garb of adaptation and modification and sought to be moulded in such manner as the Government considers proper.
I am sorry that I do not agree that article 16 should be taken away from this place of Fundamental Right because after all the appropriate proceedings secured by the Supreme Court may be easier and cheaper in the manner of im plementation. I would like that this article 16 is not deleted.
The Honourable Shri K. Santhanam: Mr. President, I am afraid my Friend Pandit Thakur Das Bhargava is mistaken in his defence of article 16 as against 274-A because if he looks up article 304 relating to amendment of the Constitution, he will find that the process of amendment of 16 is the same as the process of amendment of 274-A. While on the one hand 274-A can be tempered with by Parliament ordinarily, article 16 gives Parliament the power to make any law limiting the freedom of commerce and intercourse throughout the territory of India. At least 274-A ensures the freedom of commerce subject to amendment of the Constitution, while 16 gives the Parliament freedom. You cannot have 16 and 274-A together as they are inconsistent. One of the other must go. Therefore he must choose whether 274-A must go or 16 must go.
Pandit Thakur Das Bhargava: 274-A is a pious declaration. A declaration decree may not be executable. The remedy under article 25 is cheaper and easier.
The Honourable Shri K. Santhanam: 274-A says it shall be free and there is the usual remedy. Anyone is entitled to go to the Supreme Court for enforcing any article of the Constitution, not only the Fundamental Rights. The Supreme Court is the guardian of every article of the Constitution. While 16 is a mere pious declaration leaving to Parliament all powers article 274-A says subject to amendment of the Constitution, trade shall be free, and the only limitations will be those specifically provided the following clauses. Therefore, it is necessary in the interest of consistency and for the freedom of the trade that article 16 should go.
Shri Kuladhar Chaliha (Assam: General): Sir, I have heard Mr. Santhanam with great care, but I find difficulty in following him or accepting his views. it is necessary that rights of intercourse throughout the territory hall be free,. Such rights should always be incorporated in the Statute and if we take it away, probably we will be depriving ourselves of a great right which afterwards will be tinkered with or whittled down somehow or other and wiped out in the process of amendment. We have seen how it has been tinkered slowly and gradually by one section, then by another and then by the third. We have seen that process. If it is taken away, probably we will not be able to talk even here that we have such a right. Therefore these Fundamental Rights should be incorporated in some way, 1, therefore, protest against the deletion of it.
Mr. Naziruddin Ahmad: Mr. President, with great respect I would also submit that I could not follow the reasoning of Mr. Santhanam in this regard. Article 16 was inserted as a part of Fundamental Right, that trade shall be free. Then somehow or other it struck the Drafting Committee to introduce an identical provision, article 274-A perhaps absolutely forgetting the existence of article 16. If they knew of it or remembered it then of course article 16 should have been repealed at the time when 274-A was passed. But subsequently they found that there is an overlapping between 274-A and 16. I submit it is now a question of whether article 16 or 274-A should go. Personally speaking, article 274-A must go because 16 is more favourably situated in the Constitution than article 274-A, Article 16 is subject to the provisions of article 25 making this right justiciable. What justification is there to remove it from the justiciable part of the rights to article 274-A is a thing which is not made quite clear. I therefore, submit that it is not clear as to whether article 274-A should be justiciable. It is very doubtful and it will perhaps tax the intelligence of many constitutional lawyers and the Supreme Court to say whether it is justiciable or not. If this is justiciable there is no reason to remove article 16 and enact it here. I submit that article 274-A must go and 16 must remain in order to make it clearly and obviously justiciable.
Pandit Thakur Das Bhargava: It will be justiciable by appropriate proceedings and not necessarily by a declaratory suit.
Shri Alladi Krishnaswami Ayyar (Madras: General): Mr. President, the objection to the amendment moved by my Friend Mr. Krishnamachari proceeds on an entire misapprehension. As has already been pointed out by Mr. Santhanam the mere fact that a provision finds a place in the Chapter on Fundamental Rights does not carry with it any particular sanctity or any special sanction regard being had to the saving in article 16 itself-"subject to any law made by Parliament".
Article 16 as it found place in the Fundamental Rights ran in these terms:
The article therefore gave a carte blanche to Parliament though the subject matter dealt with is styled a Fundamental Right. It is a right which can be invaded and encroached upon by Parliament in any manner it likes. That is the effect of article 16 of the Constitution as it stood.
The idea of transposing this provision to the Chapter relating to inter-State trade requires explanation. When the Constituent Assembly started its work in pursuance of the Cabinet Mission proposals, it was felt that unless we were in a position to bring inter-State provision as a Fundamental Right there was no scope for even freedom of trade. In the circumstances in which we were then placed it was thought desirable to put the freedom of trade clause in the Chapter on Fundamental Rights having regard to the circumscribed scope of the powers of the Constituent Assembly at the time when the Constituent Assembly started on its work. That is how the provision came to find a place in the Chapter on Fundamental Rights.
The House will remember that the Fundamental Rights Committee was constituted before the later developments in regard to the position of India and to the wider range of the powers of the Constituent Assembly. There is no question now of the Constituent Assembly being in any way restricted in the exercise of its functions and we are in a position to frame any constitution we like for a free and independent India. It is in this setting that the new articles relating to the freedom of trade beginning from article 274-A have been framed. We have. provided in article 274-A that trade and commerce throughout the territory of India shall be free subject to the other provisions in that part. Therefore any legislation by Parliament affecting freedom of trade will be subject to the inhibitions contained in that Chapter.
The mere fact that a provision in regard to freedom of trade finds a place either in one part of the Constitution or in another part of the Constitution does not alter or affect the nature of the right. Articles 274B, 274C and 274D contain the necessary exception and limitations to freedom of trade. There is one other thing also which you may notice in this connection. Article 274-C, far from abridging or restricting the scope of the right to freedom of trade, enlarges the scope of the Fundamental Right.
This provision by restricting the power of the State Government and the Central Government enlarges the scope of the Fundamental Right, if you choose to can freedom of trade a fundamental right within the meaning of the Constitution.
Whether a particular provision is called a fundamental right or not, in regard to the point as to justiciability raised by my Friend Pandit Bhargava, it does not depend upon a particular provision finding a place in the Chapter on Fundamental Right or in other parts of the Constitution. So far as the jurisdiction of the Supreme Court is concerned, it has plenary jurisdiction with regard to the inter pretation of the Constitution. The Supreme Court can be called upon to decide in every case whether a particular Statute or any law is in conformity with the terms of the Constitution or not.
I, therefore, submit there is no particular virtue in the article finding a place in the Chapter on Fundamental Rights. I think, when article 274 was before the House, my Friend Dr. Ambedkar pointed out the advantages of all the provisions relating to trade and commerce finding a place in a single chapter' On these grounds I submit there is absolutely no force in the objection to the proposition as moved by my Friend Mr. T. T. Krishnamachari.
Mr. President: Does Mr. Krishnamachari want to say anything?
Shri T. T. Krishnamachari: No, Sir. Mr. Krishnaswami Ayyar has answered all the points.
Mr. President: I shall then put it to vote. I mean amendment No. 393. asking for the deletion of article 16. The question is:
The motion was adopted.
Article 16 was deleted from the Constitution.
Mr. President: Then we take amendment No. 417.
Shri T. T. Krishnamachari: Sir, I would like to move amendments Nos. 394 and 417 together, because they both relate to article 27. I will first move No. 394:
This is a consequence of the acceptance by the House of the previous amendment 393 to delete article 16.
Mr. President: Let us dispose of it now.
Shri T. T. Krishnamachari, Yes Sir.
Mr. President: This amendment follows upon the decision which has just been taken. The question is:
"That in clause (a) of article 27, the word and figures article 16 be omitted.-
The amendment was adopted.
Shri T. T. Krishnamachari: Mr. President, Sir, I move my amendment No. 417, which reads thus:
Sir, this has become necessary because of the wording of article 307(2) which we have passed in which we have given power to the President to adapt and modify existing laws so as to fit them in with the provisions of the Constitution, as also the Fundamental Rights that we have passed.
Mr. President: There is no amendment to this. Does anyone wish to say anything about it?
Mr. Naziruddin Ahmad: There is no time for amendments at all.
Mr. President: well, this has been there from the 15th inst.
Prof. Shibban Lal Saksena: No, we got it this morning.
Mr. Naziruddin Ahmad: At nine o'clock.
Mr. President: I think it is more or less a consequential amendment.
Mr. Naziruddin Ahmad: The effect of this amendment it is impossible to measure, unless one has the genius of Dr. Ambedkar.
Mr. President: I will put it to vote. The question is:
The amendment was adopted. Article 42
Shri T. T. Krishnamachari: Mr. President, Sir, I beg to move:
"That in clause (1) of article 42, for the words 'may be exercised by him' the words 'shall be exercised by him either directly or through officers subordinate to him' be substituted.
Sir, this has been found necessary, and it does not involve any serious variation, It is fairly......
The Honourable Shri K. Santhanam: Sir. does it mean that a Bill passed by a Legislature could be signed by an officer subordinate to the President?
Shri T. T. Krishnamachari: The clause says, "in accordance with the Constitution and the law." If the Constitution and the law permit that Bills could be authenticated by somebody else, appointed by the President, well, that will be possible.
The Honourable Shri K. Santhanam: The amendment permits such a thing. You are making the Constitution permitting the President to discharge his function through officers- subordinate to him.
Mr. President: It relates to the executive powers and not the legislative powers. Signing of Bills, I suppose comes under legislative Powers.
Shri T. T. Krishnamachari: Yes, this relates to executive powers., I am grateful to you, Sir.
The Honourable Shri K. Santhanam: If you want another instance, there is the question of the declaration of war. Can it be done by the Commanderin-Chief? Can this power be delegated? I do not think that in the absence of this amendment the executive head loses the power to do certain things through his officers. I do not think this is necessary. I do not think in any other Constitution a similar provision is to be found.
Mr. President: Mr. Kamath has given notice of an amendment to that effect.
Shri H. V. Kamath : I move
I have no quarrel with the change of the word 'may' to shall'. It is necessary and right. (An Honourable Member: What is the number of your amendment ?) My amendment has no number, because I gave notice only this morning. I got List XVIII only last night and so could give notice of my amendment to it only this morning.
Sir, while this article was under discussion, it was made clear that the President would not exercise his executive power personally or directly, but certainly only in accordance with the Constitution. The President is only the symbol of executive authority. It does not mean that he will sit in Delhi and order the arrest of so and so and things like that. The Ministers or officers working with him or under him will exercise the executive power in accordance with the Constitution and the law. I fail to see why my honourable Friends Dr. Ambedkar and Shri T. T. Krishnamachari, with the acumen that they possess, still feel it necessary to bring in an amendment of this nature. This is redundant and I submit to the House that the words beginning with "either" and ending with "him" may be deleted, so that the article will read as follows:-
That is sufficient for our purpose.
Mr. Naziruddin Ahmad: I submit that this amendment is not only hasty, but absolutely purposeless also. It has been introduced without enough consideration. I will draw the attention of the House to article 130(1) ,where the executive power of the State is vested in the Governor and may be exercised by him in accordance with the Constitution and the law. While we make a change hem in article 42 we forget to make the same change in article 130(1).
Mr. President: There is an amendment to that effect lower down the Order Paper.
Mr. Naziruddin Ahmed: All right, Sir. It should be obvious that the executive power of the Union, when it vests in the President, may be exercised by him in accordance with the Constitution. This obviously means. that he way exercise that power in accordance with the Constitution, i.e., with the help of agents. In fact there are a large number of departments of the Governments for the purpose such as the Courts. the Police, the Jails and so on. Is it to be supposed that unless we make it clear that the President shall exercise his powers through agents he has to act on his own initiative and personally? It is absurd to suppose so. This attempt to clarify things is grossly exaggerating the idea of going into details. I submit that when we vest the power in the Government or the President, we allow his executive to work in his name.It shows that the President and the Governors are merely legel entities and ornamental figureheads. Everything is done in the name of the President. This is the purport of article 42(1) that the executive power may be exercised by the President in accordance, with the Constitution. That is the obvious significance. Then what is the object of changing the word may' into shall? The use of the word 'may' is very apt.
Shri H. V. Kamath: I think the word 'shall' refers to the constitutional exercise of that power.
Mr. Naziruddin Ahmad: The word 'may' is enough for the purpose. The exercise of this power is optional, and if it is exercised it must be in accordance with the Constitution. The President may not exercise it at all; and if he exercises it he shall do so in accordance with the Constitution. The word 'may' is enough for the purpose. It is difficult on the supur of the moment to see the weakness of this last-minute amendment. I ask, when is the Drafting Committee to finish its labours in order to give us some amount of rest and contentment? We want to go home as early as possible. But the Drafting Committee will not let us do so. As I have repeatedly submitted, they should make tip their minds and give to the House a complete picture of their drafts and not come here every day with fresh amendments of this sort. It is extremely tiresome and irksome for Members to work under these conditions.
Mr. President: I was going to call upon Sir Alladi Krishnaswami Ayyar to explain the position. But before doing so, I want to put him one question which Strikes me also. It is said, 'through officers subordinate to him'. Does it mean that it is contemplated that the President will have officers in the provinces on behalf of the Union, or does it mean that there will be only provincial officers who will act as subordinates to the President? Is it contemplated, as in America, to have two separate sets of officers, one belonging to the Union and the other belonging to the provinces?
Shri Alladi Krishnaswami Ayyar: In regard to purely federal Subjects you can have purely federal official agency; but in regard to concurrent subjects you can utilise the provincial agencies. If the Federal Government is not satisfied with the provincial agencies, the Constitution provides that the Federal Government may have its own agency in regard to concurrent subjects. It is only in regard to provincial subjects that the entire provincial agency is entrusted with the task. There you use the officers subordinate to you. though they may not be directly subordinate. There is power of intervention even when the provincial agency is utilised. Inasmuch as it is for the enforcement of the Federal subjects, he will have the right to utilise the provincial agency.
I want to say something later about the general point raised.
Shri Brajeshwar Prasad: Mr. President, Sir, I rise to Oppose the amendment which has been moved by my Friend, Mr. T. T. Krishnamachari. I hold the opinion that the amendment is not merely thoughtless as my Friend, Mr. Naziruddin Ahmad characterised it, but it-is dangerous. The executive power of the President must vest in his hands and in his hands alone, because he has to perform under the Constitution certain' functions; he has to use certain powers. I do not think unlike my Friend, Mr. Naziruddin Ahmad, that the President is merely an ornamental head. Had he been so, I would have no difficulty in accepting the amendment moved by Mr. T. T. Krishnamachari, but my reading of the Constitution is that the President has very large powers. I therefore hold the opinion, Sir, that it is dangerous, it is risky-it is in my opinion not merely thoughtless-to empower the President to delegate his powers under the Constitution into the hands of executive officers.
Pandit Thakur Das Bhargava: Mr. President Sir, with reference to this amendment, I am not satisfied whether this amendment is necessary. As a matter of fact, when we speak of the exercise of the powers of the President under article 42 And the use of the words "may be exercised by him," we understand that these powers are being exercised by the President in an almost impersonal manner. So far as the executive power of the Union is concerned, it is exercised by the President or by the Governor or by the Prime Minister or by many other officials. It is not that the President must exercise it in a personal manner. There are certain rules and regulations by virtue of which many officials have to exercise the executive power of the Union. If these words are there, it would give rise to the argument that the powers should either be personally exercised by him or by officers subordinate to him. When these officers so exercise these powers, in many cases the President does not even know that these powers are being exercised in his name. Therefore, my submission is that the words "by him" do mean that either the President himself could exercise them or he could delegate those powers.
The second question may arise that the powers delegated by him can be exercised only by people to whom they are delegated because of a certain maxim that delegated powers cannot be delegated further. It would raise many other difficulties if we regard that the exercise by him of these powers is either personal or it is only through officers subordinate to him. Therefore my submission is that the words as they stand are quite sufficient and do not give rise to any sort of ambiguity. Moreover, Sir, I do not agree that the use of the word "shall" is necessary. In a particular context this word "may" does mean "shall".
So far as the question raised by Mr. Kamath is concerned that the powers shall be exercised in accordance with the Constitution and the law, the word 'may" does not relate in any manner to the words "in accordance with the Constitution and the law". My submission is that the words that we have passed already are enough and they answer all the purposes they are intended to answer and no change need be made.
Prof. Shibban Lal Saksena: Sir, the question is, if this amendment is not, made, what harm would accrue? If I see it from that point of view, I think that this amendment is not only redundant, but it is Positively injurious. In fact, nobody thought so far that this article 42 was incomplete. It says that the executive power of the Union shall be vested in the President and may be exercised by him in accordance with the Constitution and the law. Now the amendment says that that power shall be exercised by him either directly or through officers subordinate to him. Is it necessary? Does not the Constitution and the law say that the President shall use officers provided for him for carrying out his purpose. In fact, the clause says "in accordance with the Constitution and the law". As the Constitution and the law prescribe how the President shall exercise his powers either himself or through officers, I think these words are absolutely unnecessary. I do not think any amendment is necessary.
The Honourable Shri N. Gopalaswami Ayyangar (Madras: General): Sir, I feel some difficulty in appreciating the objection which has been raised to this particular amendment. Article 42 says that the executive power of the Union shall be vested in the President. We all know or lots of powers which are Vested in the President but actually he does not exercise those powers. He simply exercise them at the dictation of other people who are responsible to the legislature. That is point number One which I should like the House to appreciate.
The Second thing is that the Constitution itself contemplates that executive action, which is really the exercise of executive power cannot as a matter of fact be done by the President directly. Look at article 64(1). It says:
So, the actualities of the case require that in innumerable matters the Constitution or the law vests the power in the President, but the actual exercise of it is to be left to other people who are held to be responsible to him. No doubt, he takes the responsibility for action taken by these officers. It is impossible as a matter of practical administration for the President to exercise all the powers that are vested in him by the Constitution. Take, for instance, even the powers ,which relate to the exercise of his functions in relation to legislation. On a number of matters, for instance, the power of summoning the Assembly, dissolving the Assembly and so on, he takes action, but the exercise of that power is on the advice of his constitutional advisers. And in the ordinary course he cannot really exercise all the powers that arc vested in him. What is the objection to his asking officers subordinate to him, who owe responsibility to him, to exercise such powers? As it is absolutely unnecessary for him even to look at them before those orders issue, we ought to give him the latitude to select such officers in whom he can have confidence and who may be trusted to exercise this power.
I have no doubt noticed the objection: what is he to do in regard to giving assent to Bills when passed by the Legislature? True, ordinarily we expect the President to sign those Bills in token of his assent to express his assent on them Naturally in a case of that sort he would not ordinarily ask other officers to sign 'for him, but assuming that circumstances arise in which he is unable to append his signature to an assent of that sort, it may be necessary for him to ask that somebody else should sign the assent in his name. I do not see anything which is legally improper, or even from a constitutional point of view improper, for somebody to sign even an assent to a Bill passed by the Legislature if the President is unable to do so or thinks in particular circumstances other people might sip in his name. I think that in order to obviate difficulties which would actually arise, the addition of these words is very necessary.
Shri H. V. Kamath: Is not the purpose that my Friend Mr. Gopalaswami Ayyangar has in view sufficiently met by the phrase "in accordance with the Constitution and the law?" Whatever is delegated to other persons or agents will be done by the President in accordance with the Constitution and the Law.
The Honourable Shri N. Gopalaswami Ayyangar: In that case we shall have to go to Parliament for a law in every case he wants to authorise an officer to do so.' But if Parliament can authorise it, why not the Constitution do so ?
Shri Alladi Krishnaswami Ayyar: Sir, some of the points I wanted to urge have been anticipated by my Friend Mr. Gopalaswami Ayyangar. There is nothing novel in trying to bring the present provision in line with Section 7 of the Government of India Act, 1935. Though Mr. Naziruddin Ahmad, in the plenitude of his literary wisdom, has chastised the Drafting Committee as being careless, I would invite his attention to the language used by the Parlimentary draftsmen in Section 7 of the Government of India Act. I am reading the Section:
Therefore, there is nothing novel or fantastic in making an express provision to the effect that the executive authority can be exercised through official agencies.
So far as the general executive power is concerned, it is vested in the President. So far as the responsibility for carrying on the executive administration is concerned it is vested in the Ministers. So far as the question of utilisation of official agencies is concerned, it is implicit in the very foundation of the Constitution. I should think that even under a provision as it stands without the amendment, it would be perfectly competent for the president to institute any official agency, though the ultimate responsibility for the acts of any official agency, would be that of the President advised by his Cabinet. As a matter of fact, when the original article was drafted it was the lines of article 12 of the Irish Constitution. That article runs thus:-
Shri H. V. Kamath: That is an argument against your view.
Shri Alladi Krishnaswami Ayyar: The present amendment says that the President may exercise the power either directly or through officers subordinate to him.
Shri H. V. Kamath: I have got a copy of the Irish Constitution with me here. Officers are not at all mentioned there.
Shri Alladi Krishnaswami Ayyar: If only you have the courtesy to listen to me you would net have raised the objection. I pointed out that even without an express provision like that it would be competent for the President to have or to institute any official agency, and there are Constitutions in which express provision is not made, and I referred to article 12 of the Irish Constitution which to some extent will support Mr. Kamath's point of view. There are somecounsel who, even when the opposite side makes a concession in favour at one'scontention, would oppose the opposite side. That seems to be the attitudeof my Friend Mr. Kamath, What I pointed out was that it is merely a question of drafting and making the provision clear, The Parliamentary draftsmen in Section 7 of the Government of' India Act made express reference to officials. In the Irish Constitution there is no reference to officials. Even with out a reference to officials it would be perfectly competent for the President to utilise official agency for the purposes of carrying on executive function, though ultimately the responsibility will rest upon the President and the executive in regard to the discharge of any function vested in the executive whether under any statute or whether under the general principles of the Constitution in regard to the functions of the executive.
Therefore, I submit, Sir, that in making quite clear what is implicit, there is nothing wrong. "Official" is the word used there, whatever objection you may have in regard to the Government of India Act of 1935 ,generally, there can be no objection to adopting this wording here. I would also go further and urge the necessity for such 'a provision from a constitutional point of view. The question as to the exact extent to which "he President can delegate his function has been debated in America. If, for example a power is vested in the President, questions might arise as to whether it is possible at all to delegate his authority or whether in every, case issue should come up before the president We are told that in fact nearly 2,000 signatures have to be obtained form the President almost every day so far as the presidential system is Concerned. that has been pointed out recently in a book published in regard to the american Constitution as to the necessity of Presidential signature , in regard to very many Acts of which he may know nothing.
Therefore, we have to divorce these two questions: the question of the, ultimate responsibility and the question of the particular agency which may be employed in the working of any governmental institution or any structure. Therefore. a statute might provide that a particular agency may carry out orders. Even there it does not mean that the Government of the country is not responsible for the proper functioning of the statutory agency. The agency may be a statutory agency or it may be an administrative agency. In all these cases there is nothing to prevent the executive from employing any particular official agency; by putting in the word "officers" all the theory of delegation which has loomed large in the American Constitution will be set at rest.
It is possible that having regard to the fact that our system is founded mainly on British ideas, even without such a provision an official agency might be employed. In the other Dominion Constitutions, a general provision is incorporated to the effect that 'the power is vested in the Queen. The Australian and the Canadian Constitutions say so. It is merely the employment of a particular language and I see absolutely no objection to that: The average layman need not go into the question as to the American law or- Constitution or to the provisions of Dominion Constitutions. To make it clear to the laymen in this country that an official- agency can be employed. this provision is a salutary one.
Shri H. V. Kamath: On a point of clarification, Sir, may I ask my Friend Mr. Alladi Krishnaswami whether any other Constitution in the world makes such a reference to subordinate officers of the executive head of the State in this context:
Mr. President: He read out a Section from the Government of India Act
Shri H. V. Kamath: The Government of India Act is no Constitution of a free State,
Shri Alladi Krishnaswami Ayyar: This question has nothing to do with freedom.
Shri H. V. Kamath: It is a stupid provision.
Mr. President: I will put this to vote,. Mr. Kamath's amendment is really a negative of this.
Shri H.V.Kamath: No, Sir
Mr. President :very well, I will put yours to vote first. The question is :
The amendment was negatived.
Mr. President: Then I will put the proposition moved by Mr. Krishshnamachari. The question is:
That in clause (1) of article 42, for the words 'may be exercised by him' the words 'shall be exercised by him either directly or through officers subordinate to him be substituted."
The amendment was adopted.
Mr. President: I think it is one o'clock now and we shall adjourn. I desire to point out to Members that we shall take up the other, articles, of which notice is given in today's agenda at 4-30 this afternoon.
Pandit Hirday Nath Kunzru: When we agreed to a session being held today it was, I think, understood that the session would be held only in the morning. I do not think anybody was prepared for an afternoon session. I should earnestly request you, therefore, to hold another session tomorrow morning. We have engagements this afternoon which were made because in the normal course the Assembly does not meet in the afternoons.
Mr. President: I did not understand, at any rate, that we would not sit in the after noon today. It was left open and it is for us to decide now whether we shall sit in the afternoon or not. In view of the fact that many Members are anxious to complete the Second Reading stage and many of them are anxious to, go away on account of Dipawali, I think we should sit in the afternoon today. If we do not sit this afternoon, it may be that we may not be able to finish even tomorrow.
The Honourable Shri N. Gopalaswami Ayyangar: As a matter of fact sir. we and several others have accepted invitations to a party at the Government House at 5 P.m. today. If we start at 4-30, I do not think we can do any business.
The Honourable Dr. B. R. Ambedkar: In that case we may meet at 4.
Mr. President: This House has the first claim upon its Members. I therefore fix 4-30 this evening. The House stands adjourned till 4-30 p.m.
The Assembly then adjourned for Lunch till Half-past Four of the Clock.
The Assembly re-assembled after Lunch at Half Past Four of the Clock Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair.
Honourable Dr. B. R. Ambedkar: Sir, I move:
That after article 280, the following new article be inserted:
'280-A.Provisions as to financial emergency.
Sir, having regard to the present economic and financial situation in this country there can hardly be any Member of this Assembly who would dispute the necessity of some such provision as is embodied in this new article 280A and I therefore, do not propose to spend any time in giving any justification for the inclusion of this article In our Draft Constitution. All that I propose to say is this, that this article more or less follows the pattern of what is called the National Recovery Act of the United States passed in the year 1930 or thereabouts, which gave the power to the President to make similar provisions in order to remove the difficulties, both economic and financial, that had Overtaken the American People as a result of the great depression from which they wore suffering. The reason why, for instance, We have thought it necessary to include such a provision in the Constitution is because we know that under the American Constitution within a very short time the legislation passed by the President was challenged in the Supreme Court and the Supreme Court declared the whole of that legislation to be unconstitutional, with the result that after that declaration of the Supreme Court, the President can hardly do anything which he wanted to do under the provisions of the National Recovery Act. A similar fate perhaps might overwhelm our President if he were to grapple with a similar financial and economic emergency In order to prevent any such difficulty we thought. it was much better to make an express provision in the Constitution itself and that is the reason why this article has been brought forth.
Prof. Shibban Lal Saksena: Sir, I beg to move:-
The article if my amendment is accepted will read thus:
My reason for this amendment is this that after the situation has arisen, it might lead to much disturbance and people might lose confidence in the country's credit. The article says that if a situation has already arisen and there is chaos, people will lose confidence in the credit of the State. I want instead of the words "has arisen", the words, "is imminent" to be substituted.
My second amendment is No. 441 which reads as follows:-
If my amendment is accepted, the article will read as under:-
Sir, these amendments of mine are only intended to cover two lacunae in the article. Although the article is an extraordinary one and provides for financial emergency, in the present state of our country, I think it is necessary that the power should be with the executive. I have only tried to compare it with article 275. What I wanted is this: First of all, by changing the words "has arisen" into "is imminent" in clause (1), we would be able to take measures before the situation becomes grave. Therefore as soon as a financial emergency is imminent, we can take the necessary measures if we substitute the words "is imminent' for the words "has arisen".
Then the President should have the power to treat all State Subjects as if they were subjects in the Concurrent List and Parliament should be able to legislate about them. It is quite possible that the State may be forced by some legislation of their own, by their own laws to act in a particular manner and may not have the legal authority to carry out the directions of the President. What I want is that the Parliament should have power to alter those laws of the States and therefore I want that during that period Parliament shall have power to pass laws even on subjects contained in. List No. 2 as if they were in the Concurrent List, so that the necessary financial measures will be taken in order to meet the emergency. I think that unless that is done, a mere order will not enable the President to pass orders or to have them carried out because they may conflict with the laws of the States and it may not be possible for the President to got those laws changed. Further the Provinces may not be agreeable to them. So what I want is that Parliament should be given this power that in those matters laws may be made by Parliament.
I think, Sir, that these amendments are necessary. We want this power. May I also say that this article does not take away any powers of the legislatures also and I think it is necessary in the interests of the State especially when we are in the midst of financial distress.
Shri H. V. Kamath: Sir, may I ask your permission for a verbal change in this amendment No. 438? I propose to use the word "breakdown" instead of the word "chaos".
Mr. President: Yes. (Interruption.)
Shri H. V. Kamath: I have got the President's permission to change the word "chaos" to "breakdown". Sir I move amendments Nos. 438, 442 and 444 of List No. XIX. Amendment No. 438 is to the effect.
Amendment No. 442 is to the effect:
Amendment No. 444 is to the effect:
This new article 280-A invests the President of the Union with further emergency powers, powers in excess of what have been conferred on him by the Constitution under articles 275, 276 and subsequent articles upto 280. This article envisages a contingency or a situation where the financial stability or credit of and a or any part thereof may be threatened. I feel that this contingency or danger to economic stability or credit of India or any part thereof ought not to be regarded as an adequate ground for the proclamation of an emergency. An emergency proclamation can be justified only under more dire circumstances, that is, only in the event of or only when there is danger of a financial breakdown or economic disaster. To invest the President with such wide powers in the event of the financial stability or the credit of India or of a province or State thereof, being threatened is going much too far.
This morning, you rightly observed, Sir that many provinces are complaining about or have already complained about the bill distribution of the Income-tax proceeds, and that a new inroad upon their revenues was made this morning. as some honourable Members felt, by the article on Salas Tax adopted by this House. Some provinces like Madras, and partially the Central Provinces too, have inaugurated prohibition. That has eaten into the revenues of the provinces, and has further put them to extra expenditure on prohibition staff and' ancillary paraphernalia.
Suppose, under these circumstances, the situation in future worsens. The world economic situation may worsen may aggravate. We shall try our. beat to see that our economic conditions improve, but what with devaluation all over the world including the devaluation of our own Rupee, no one would be Such a rash prophet as to say that we will be better off in the near future. Suppose, if the worst comes to the worst, the economic situation worsens further and the provinces, on account of the loss in revenue on account of prohibition and on account of other factors- besides, cannot put into effect the constructive schemes which they have in mind, and suppose they are hard put even to make both ends meet, and their budgets are deficit budgets, imagine, it is not an improbable situations series of deficit budgets-may not be large deficits even small deficits every year--such a situation may be construed by the President as one where the financial stability or credit of the particular province or State is threatened. May I ask, will that be adequate ground for the President to assume to himself the powers which will be his once a proclamation of emergency is made? I say, Sir, if we really want to implement the soheme of provincial autonomy, in spirit as well as letter, this is not the way to treat our constituent units, Certainly see to it that financially, economically, we arc sound. But, on the slightest pretext of the administration not being able to put through their schemes, and not being able to produce surplus budgets, on these pretexts, it will -I will not use any strong words-it will not be wise for the President to proclaim an emergency and assume-to himself all the extraordinary powers that will accrue to him once such proclamation is made.