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Constitution Assembly Of India - Volume VIII

Dated: May 27, 1949

The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Eight of the Clock, Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair.

Pandit Balkrishna Sharma (United Provinces: General): Mr. President, Sir, may I with your permission draw you attention to one of the important matters in regard to the issue of new coins in our country? Our trouble is that the Indian Parliament as such is not sitting these days and the Constituent Assembly is the only supreme body which is in session. Now, the whole question regarding the issue of new coins is being discussed, I believe, in the Finance Department and I have been informed that certain decisions also have been taken in this regard. The question of the issue of coins is of great importance and I have been informed that not even the Finance Committee so far has been taken into confidence in regard to the design of the new coins. Particularly, I have been informed that the English alphabets find a prominent place in the new coins even though there is one Asoka Stambha and though the effigy of king has been done' away with. I would, therefore, request you, Sir, to be pleased to give an opportunity to this House to consider this question, and if necessary, to call in the Honourable the Finance Minister for this purpose.

Mr. President: I am afraid we cannot take up this question in this House. We are here for the purpose of preparing the Constitution and the question which is raised by the honourable Member really belongs to the legislative side of the House and I would suggest that he might take it up there or, as the Assembly is not sitting, he might take it up with the Government.



The Honourable Shri N. Gopalaswami Ayyangar: (Madras: General): Mr. President, Sir, I rise to move:

"That after paragraph 4 of the Schedule to the Constituent Assembly Rules, the following paragraph be inserted, namely:-

'4-A. Notwithstanding anything contained in paragraph 4, all the seats in the Assembly allotted to the State of Kashmir may be filled by nomination and the representatives of the State to be chosen to fill such seats may be nominated by the Ruler of Kashmir on the advice of his Prime Minister.'"

Sir, very few words are really needed from me to commend this motion to the House. Kashmir is one of the States which under the rules frame for the composition of this Assembly have to be represented in the House Rules have been framed as to how this representation could be secured. But though Kashmir acceded to the Indian Dominion so far back as the end of October 1947, this representation has not materialised. honourable Members will remember that the conditions in Kashmir have been in a fluid state all these months. The accession itself we asked for by the Ruler of Kashmir; it was supported by the largest political party in the State, and the Governor-General accepted the accession. As I said, that acceptance was somewhere about the end of October 1947.

Before I go to the Rules, I must point out that all States which have acceded to the Indian Dominion have been included in the Schedule to the Constituent Assembly Rules. One of these States is Kashmir. Again, in the Draft Constitution that has been placed before the House, in Part III of Scheduled I, honourable Members will find Kashmir as one of the States which would be put into that Schedule. But, so far as representation goes, the procedure has undergone changes from time to time on account of the difficulties that cropped up in respect of implementing the rules that were originally framed for the return of State's representatives to this House. The last of such rules is contained in Rule 4 of the Constituent Assembly Rules that are now in force. In this rule, the seats allotted to the States have of the States concerned, and the remainder to be nominated by the Ruler himself.

So far as Kashmir is concerned, the number of seats allotted under these rules to this State is four, that is to say, one or every million of the population. If this rule is to be followed, not less than half of this number would have to be elected by the legislature. There is, under the Constitution of Kashmir, a legislative Assembly which is called the Praja Sabha. Elections to this Assembly took place about the months of December 1946 and January 1947 and this Assembly came into existence soon after these elections were over. There was one meeting held within two or three months therefore, which was convened for the purpose of passing the budget of the State. All this happened before the transfer of power and the change in the status of Indian States that took place after the transfer of power. After the 15th of August 1947, Kashmir stood by itself till, somewhere about the end of October 1947, it acceded to India. There has been no meeting of this Praja Sabha since about April 1947. From October 1947, honourable Members are aware that there was a great deal of disturbance owing to the raids that were made on the western portion of Kashmir State and all that followed. The conditions have been very difficult.

Now, this Assembly has not been in existence since then. It exists perhaps on paper; but it is dead. In October 1947 accession took place. Soon after that took place, the Maharaja set up an emergency administration the head of which was Sheikh Mohammed Abdulla, the leader of the most popular party in Kashmir. In March 1948, he substituted for this emergency administration what he called a popular interim Government, consisting of a Council of Ministers. He called Sheikh Mohammed Abdulla to accept the office of Prime Minister and left it to him to choose his colleagues. This Government was to work on the principle of joint responsibility. In the Proclamation that he issued setting up this new Government, he made no reference to the Praja Sabha, but called upon this new Government, as soon as peace had been restored, to convoke a National Assembly which should proceed to frame a Constitution of the State. At present, the old Praja Sabha is dead; the new National Assembly has not come into existence, because if conditions not having settled down to that level of peace and tranquillity, and also of economic and political equilibrium which alone can justify the convoking of the National Assembly.

In these circumstances, we have to choose a method by which we could get representatives into this Assembly taking the present facts into consideration. I take it honourable Member will concede that it is very important that Kashmir, which is now a part of India, should be represented in this Assembly. I wish that representation had been brought about much earlier then now; but various things have conspired to prevent that, but we are today in a position to bring to this House four persons who could be said to be fairly representatives of the population of Kashmir. The point that I wish to urge is that, while tow of these representatives would in any case under the present rules be persons who could be nominated by the Ruler, we are suggesting that all the four persons should be nominated by the Ruler on the advice of his Prime Minister. The Prime Minister happens to represent the largest political party in the State. Apart from that,we have got to remember that the Prime Minister and his Government are not based upon the Praja Sabha which is dead, but based rather upon the fact that they represent the largest political party in the State. Therefore, it is only appropriate that the head of this Party who is also the Prime Minister should have the privilege of advising the Ruler as to who would be the proper representative of Kashmir in the Constituent Assembly. That is why we have made this suggestion. Under the circumstances, that is about the best that could be done. It would produce a certain amount of intimate relationship between this Constituent Assembly and the Government and people of Kashmir. Those representatives would come here and take part in the further proceedings of this House. As honourable Members are aware, most of the articles relating to the provinces and States are yet to come up for consideration and it is only right that Kashmir should have the opportunity to participate in the discussions which will finalise those articles.

I do not wish to say much more now. However, one small point I should like to clear up in view of one of the amendments of which notice has been given. It has been suggested that instead of Kashmir, we should substitute Jammu and Kashmir. Jammu and Kashmir no doubt describes the State better. But the reason why in this particular motion I have used the word Kashmir is that that word has been used in all statutory enactments and rules that have so far been framed in which this particular State has had to be mentioned.

Pandit Lakshmi Kanta Maitra (West Bengal: General): I would like to know Sir, if the word " Kashmir" includes or means both Jammu and Kashmir?

The Honourable Shri, N. Gopalaswami Ayyangar: Kashmir means Jammu and Kashmir. In the Government of India Act, for instance, if you will look at the Schedule giving the names of the States, it will be found that this State is described as Kashmir. in the Draft Constitution, the Schedule mentions the State as Kashmir. In the list that is attached to the Constituent Assembly Rules, it is already described as Kashmir. So I think it would be best in these circumstances to use only the word " Kashmir" and both the amendment and the word that I have used mean exactly the same thing. I would therefore, request honourable Members to let this description of the State as Kashmir stand, because if you change it, we shall have to change other things which are already in our Statues and Rules.

Pandit Lakshmi Kanta Maitra: May I interrupt the honourable Member? The motion contemplates that four seats will be allotted to Kashmir and that they will be returned to this Constituent Assembly. The honourable Member explained just now that the word "Kashmir" means, as in all other Statutes and Acts, Jammu and Kashmir. It is contemplated to have four representatives. I want to know whether it is contemplated to have these representative in such a way that Jammu and Ladakh are also represented by these nominees?

The Honourable Shri N. Gopalaswami Ayyangar: " Kashmir" in this motion means the whole of Jammu and Kashmir, the sovereignty over the whole of which still remains with the Government of that State. The idea is that four persons should be chosen who can be trusted to represent the interests of the whole State, not only Jammu and Ladakh, but I believe a person who can represent the interests of even the Mirpur-Jammu area-- if the Prime Minister chooses to nominate him as being a person who can represent the interests of the State as a whole--it would not bar such a person being recommended by him. So really what we are contemplating to do is this. We do not recognise anything that might have happened as a result of the military operations which have recently been suspended. But what we really want is to bring into the Assembly persons who will represent the State as a whole. And the Prime Minister, the person who represents the Government as also the largest political party, he is in our opinion, the best person to make recommendations the Ruler who will nominate on such recommendation. Sir, at this stage, I do not wish to sat anything more. I move.

Maulana Hasrat Mohani (United Provinces: Muslim): Sir, I beg to oppose the motion and for good reasons, of you will allow me.

Mr. President: You can oppose it after the amendment have been moved. There are certain amendments of which notice has been received, and............

Maulana Hasrat Mohani: Sir, will you allow me to express my opposition here and now? I do not want to wait for the amendment, because my opposition has nothing to do with the amendments.

Mr. President: I think we shall take the amendments to the motion, and then after the amendments have been moved, when the whole question is discussed, the Maulana may take his chance.

Mr. Kamath may move his amendment.

Shri H. V. Kamath (C. P. & Berar: General): My amendment being of a verbal nature, in view of what Mr. Ayyangar has said just now, I do not move the amendment, but I hope you will be so good ad to let me catch your eye later on, as I wish to speak on the motion.

Mr. President: I make no promise. Prof. Shah may move his amendment.

Maulana Hasrat Mohani: I have to point out that I want to oppose this motion in the sense that I so not want that you should allow the opportunity to move things at this stage.

Mr. President: You can oppose the motion at that stage. But at this stage, we shall take up the amendments first. They will be moved and after that, you can have your say.

Prof. K. T. Shah (Bihar: General): Mr. President, Sir, I beg to move:

"That in the proposed paragraph 4-A, the word 'all' be deleted."

"That in the proposed paragraph 4-A, before the word 'Kashmir' wherever it occurs, the words 'Jammu and, be inserted,"

"That in the proposed paragraph 4-A, for the words 'may be' where they occur for the first time, the words 'may' pending the holding of a plebiscite, under the auspices of the United Nations' Organisation, and without prejudice to the result of that plebiscite, be' be substituted."

"That in the proposed paragraph 4-A, for the words 'by nomination' the words 'by election by the Praja Sabha of the State of Jammu and Kashmir' be substituted."

"That in the proposed paragraph 4-A, for the words 'nominated' the word 'elected' be substituted."

"That in the proposed paragraph 4-A, for the words 'by the Ruler of the Kashmir on the advice of his Prime Minister' be deleted."

Mr. President, Sir, I am fully conscious of the seriousness and delicacy of the task I have taken upon myself in.....

Pandit Balkrishna Sharma: May I request the honourable Mover of the amendment to read out to the House how the motion would read, after his amendments?

Prof. K. T. Shah: Yes, it will read thus:

"Notwithstanding anything in para. 4, the seats in the Assembly allotted to the State of Jammu and Kashmir may, pending the holding of a plebiscite under the auspices of the United Nations' Organisation, and without prejudice to the results of that plebiscite, be filled by election by the Praja Sabha of Jammu and Kashmir and the representatives of the State to be chosen to fill such seats may be elected."

I was saying Sir, that no one can be more aware of the seriousness and delicacy of the task I have taken upon myself in tabling this amendment, and in advancing arguments that I have to place before this House to convert it to my view-point. Being so aware of the gravity of this task and its delicateness, I assure, you, Sir, that I shall not use a single phrase or expression, nor gesture, nor tone which would, in any way in the least import passion or prejudice in the arguments. I am aware that this subject is coloured very deeply by lone-standing prejudice. I am aware, Sir, that there will be deep feeling on the matter, and therefore, so far as it lies in me, I assure you again, Sir, that I shall not use a single expression, nor one gesture which might give rise to any feeling unbecoming this House and unwarranted by the seriousness of the case.

Before I proceed to develop my arguments, Sir, may I in all humility, place before this House something like my credentials to speak on this subject.

Sir, I have been acquainted with Kashmir State and its governance for now something like fifteen or more years. I have known the principal parties concerned in this matter by first-hand knowledge and working with them. I have helped--in however small a way it may be,--to shape what is called the 'new Kashmir' from the day that it was in draft form, then the present Prime Minister was good enough to come down to Bombay and consult me on the matter for fifteen days. I had also the honour to be invited to be a Planning Adviser to the preceding Government of Kashmir, in connection with which I had to visit Kashmir State, study the situation and know its people, know its administration, from not merely the superficial tourist's stand-point, but from the stand-point of a close student of affairs. A bookworm as i may be. I had some opportunity to know these first hand.

I have, perhaps to my own misfortune, been associated with this matter even after the developments of the last few years; and in the course of this argument, I shall try and place before you, Sir, certain considerations which I trust will show you, that if I say anything on the subject I am not saying it from merely superficial newspaper headline knowledge of the matter, but from some close study, close observation and personal knowledge of the subject with which we are dealing.

Sir, after this Preface let me now proceed to the amendment that I have suggested. I have, Sir, in the first place, suggested, that the word "all" be omitted. After all the definite article would remain; and that would include all, even without our using that expression. It, is however, not a merely drafting change that I am suggesting. There is, as you will perhaps see when I go on with the further development of my theme, three is some significance attached to the idea that the word "all" at any rate be omitted.

Sir, I have next suggested that the nomenclature be changed, and the State be described more correctly as the "State of Jammu and Kashmir."

That is the official title of the State; and in an official document like this I do not see any reason why we should not give the correct description, the proper title of the State. It is once more, I assure you, Sir, not a mere matter of terminology, or nomenclature, or mere verbal emendation. As I shall show you, there is some significance in this matter, which makes it more then ever necessary that you should not omit the other part, and, it one may say so, the first part of the title of that ancient State.

By calling it the State of Kashmir only you are perpetrating or perpetuating an error, which according to the honourable the Mover, has apparently happened in all our documents. May I ask, Sir, if we have made a mistake in the first instance of we have been carried away by the importance of one section of the State, by the importance of the personages connected with that part of the State, is that any reason why we should forget the other and no less important part of the State, and in this formal document continue to perpetuate that mistake, and speak only of " Kashmir", when we really mean " Jammu and Kashmir"?

It is admitted, Sir, it is common knowledge, it is a fact not denied by the honourable the Mover of this resolution, that that is the correct name of the State. And those at any rate who remember the campaign of the present Prime Minister of the State in connection with 'Quit Kashmir' will realise that in the sequence of events that have happened, it is liable, if you describe it in this manner, to be gravely misunderstood wherever such nomenclature is allowed to be used; and our public records will be disfigured to that extent.

Sir, as you will see later on here is a matter which is not, as my honourable Friend Mr. Kamath suggested, merely a matter of verbal change, There is a significance attached to it which I hope this House will realise as we go on. The State of Jammu and Kashmir is correctly described as Jammu and Kashmir because, so to say, there are two States in one Kingdom, just as Scotland and England were two States under the First of the Stuarts. The King was King James the Sixth of Scotland and King James the First of England. There were two 'Crowns worn by one person. In regard to the State of Jammu and Kashmir until about the communal rising of 1933, it was for all practical administrative purposes actually divided into two provinces more or less distinct, though under the same Ruler.

I trust I have said enough to demonstrate to the House that the matter o nomenclature in not merely a matter of verbal emendation; that it has behind it a significance, a significance, in the sequence of events, not confined only to this House or to this country. It has repercussions outside this country, as I will try to show later on; and, therefore, we must be very careful in every word that we use, so that our expression, our nomenclature, our whole wording is in conformity with the situation and the correct facts.

Next, Sir, I come to a very difficult and delicate matter, namely the suggestion that the election be, pending the holding of a plebiscite under the auspices of the United Nations Organisation and without prejudice.........

Dr. B. Pattabhi Sitaramayya (Madras: General): I wish to raise a point o order, Sir, at this stage. The reference to the plebiscite and to the United Nations Organisation has nothing whatever to do with the representation proposed to be given to the Kashmir State in this motion. I think this amendment should be ruled out of order.

Mr. President: What has the honourable Member to say on the point of order?

Prof. K. T. Shah: If has been the declaration of the highest authority in India also that the accession of the State made by the Maharaja, who was the complete constitutional head on the day that that accession was agreed to, was subject to confirmation by the result of the plebiscite.

The Honourable Shri Jawaharlal Nehru (United Provinces: General): That is absolutely incorrect-- cent per cent incorrect. I am amazed, surprised and astounded that such a statement is made by Professor Shah.

Prof. K. T. Shah: If i am wrong I am open to correction. We ourselves have accepted the United Nations decision to hold this plebiscite and an Administrator has been appointed. If I am in your hands.

Mr. President: The point is whether the accession was conditional. The accession, so far as I understand from the Prime Minister was unconditional and complete. The result of that accession may be altered as a result of the plebiscite, but the accession as such was complete and final. Therefore the question of the accession does not arise.

Prof. K. T. Shah: I am not for a moment suggesting that the representatives of Jammu and Kashmir should not come here; nothing of the kind.

Pandit Balkrishna Sharma: The point of order that has been raised by Dr. Pattabhi Sitaramayya seems to by very pertinent, inasmuch as this resolution is the Constituent of the act of accession which the Government of India and the Constituent Assembly have accepted; and, therefore it is only in relation to that that we are here making provision for the representatives of Jammu and Kashmir to sit in our Assembly. It has absolutely nothing to do with the plebiscite. As the Prime Minister has Pointed out, the accession was complete and without any reservation on the part of the Maharaja. That the result of the accession may probably be upset by plebiscite has nothing whatever to do with the proposition we are considering now.

The Honourable Shri Ghanshyam Singh Gupta (C. P. & Berar: General): I entirely agree that this part of the amendment is out of order. We have to see whether it has any bearing on the proposition. If it has no bearing on the main proposition the amendment must be ruled out of order. From the information that has been given by the Honourable the Prime Minister and from th information that you, Sir, were pleased to convey, it is clear that the accession of Kashmir was unconditional. Now when the accession was unconditional, the question of plebiscite has no bearing. The main proposition says that the seats in the Assembly allotted to the State of Kashmir shall be filled by nomination and the representative of the State to be chosen to fill such seats may be nominated by the Ruler. It place no time-limit; it places no condition. Such a condition cannot be placed because the accession was unconditional as we were just informed. By presuming a thing which is not in existence and which is not warranted by facts now brought to the notice of the House, I humbly submit that this amendment is surely out of order.

Mr. President: I am inclined to agree that the point raised by Dr. Pattabhi Sitaramayya is a solid and valid one. The accession of Kashmir was unconditional and what we are concerned with here is the representation of that State in this Assembly. When the plebiscite will take place and what the result of the plebiscite will be, we are not concerned with here. We are only concerned with the representation of the State in this House. The method suggested has found favour with the Mover. The honourable Member may move his amendment with regard to the method, but he cannot put down any condition with regard to the status of the Member who will be returned to this House. Those members will sit as any other Members without any condition being attached to their status or tenure. So that part of th amendment is ruled out of order.

Prof. K. T. Shah: I bow to your ruling, Sir, and therefore shall confine myself to the other part of the amendment, which naturally would suffer as much as it was an integral part of my argument. I shall nevertheless my and make the argument as much self-contained as I possibly can, notwithstanding the lopping off of a very integral part of my amendment.

The next amendment, Sir, suggests that the representatives be elected by the Praja Sabha of Jammu and Kashmir. Sir, it is an admitted fact that representation of the States is secured. as the honourable the Mover himself was pleased to declare, partly by election and partly by nomination by the Ruler. Moreover we have allowed nineteen months or more to elapse between the date of the accession and the present suggestion that the representatives may be chosen. I am aware, Sir, that there have been circumstances, there have been developments which have made if difficult, if not impossible, to secure the representation of Kashmir in this Assembly.

Wherever there were popular legislatures, they were allowed to elect half the number of representatives, the other half being nominated by the Ruler. Why should that salutary principle be departed from in this case? As the honourable the Mover himself said the Praja Sabha of Kashmir was elected in 1946-47 and, therefore, it is still within its normal life.

Sri R. K. Sidhva (C. P & Berar: General): Does it exit? What is its strength?

Prof. K. T. Shah: It may be that not all the members may be within the jurisdiction where the King's writ runs. That, however, does not upset the technical position that the legislative body of Jammu and Kashmir exists, and that body has a right, according to the precedent which we have followed in these matters in the past, to elect at least half the number of representatives. I do not know why a departure should be made in the case of Kashmir alone.

Now in the original motion, the whole of the representatives of Kashmir are required to be nominated and that too nominated on the advice of the Prime Minister. We have taken it for granted that that Government or that authority represents the majority of the Kashmir population. That would have been of course evident had any new elections taken place. But circumstances have changed and the Nationalist party has come to power. The fact must be remembered by the House that the population of Kashmir and Jammu, put together, is something like 76 per cent Muslims and 24 per cent Hindus, including Dogras and other non-Muslims. It is for the House in its wisdom to decide whether, given this composition of the population given this course of events that have happened in the meanwhile, whether it is possible that the election could take place on a fair basis even while the frontier itself is in danger; and even while, though the ' cease-fire" has been declared, truce has not yet been signed and peace has not yet returned to the State. The danger to Kashmir, or rather the danger to India from any untoward happening in Kashmir is left more to the imagination of the House then any words of mine can describe.

While I am unwilling at this moment to complicate the issues in this manner, I should explain to the House the gravity of the consequences that may occur. I am bound to place before this House this question that if we depart from the practice of election, partly of election and partly of nomination by the ruler at his own will and not as is here required wholly by the ruler, on the advice of his Prime Minister, it is a matter for the House to say.

I realise, and I am prepared to say frankly to the House, that my amendment suggests not the same practice as was followed in the past with regard to the other States. I have been driven to suggest that is should be wholly election because of the extraordinary circumstances of the situation. Had the situation been in the State as normal and peaceful as in other cases, had the situation been uncomplicated by any third party intrusion in the matter, I would have certainly followed the same precedent; and required that at least part of the representatives in a proper form. But as the situation is there today, with all the complications that have arisen, all the representatives of the people must be elected. That is my submission. I am not asking too much when I say that we shall not be departing from democratic principles, or idea or justice, or prudence or wisdom in this matter if we say that the people of Kashmir, and the people of Kashmir alone, shall elect all the representatives to this House. If this party claims to represent the entire or at least a large majority of the people of Kashmir, then there is no reason to fear that they cannot send their representatives according to their wishes. They need not, therefore, shirk the suggestion I am making of calling upon the representatives to be elected and not nominated.

In this matter I am constrained to point but that the developments all along in the history of Jammu and Kashmir in the last three and a half years should not be overlooked. You must not overlook the agitation that was started in February 1946 whereby a responsible party or the leader or the responsible party had started a campaign of 'Quit Kashmir' and in consequence thereof events developed and created all the difficulties that have since ensued. I do not like this House to be a party to anything that might look as if it was a surrender to one man's wishes, that nothing can be done until t he Maharaja is removed or complete power is handed over to him. Whether or not he holds the complete confidence of all the people of Kashmir has yet to be proved. I am aware that he may have a large following; but at the same time, it you want proof beyond the possibility of doubt, there is no season why you should not send invitation for an election even under the limited franchise that is prevailing. If you have adult franchise that would be better. But even under the limited franchise of 1946, if you hold an election you will get the true representatives of the people.

You must also not forget that have happened have invested the other countries and the sister Dominion and those outside with interest in the matter. That being so they will not take any decision unilaterally made by us, without demur. If you want to have peace restored, if you want to live in peace with your neighbours, you should not give needless occasion for them to say that here you are pursuing a design and committing an act and taking steps whereby your own declarations, and, what is more, whether interests the others may have, are being jeopardised. If that is going to be a slur on the good name of this country, and its claim to stand always for the people or for those who are oppressed, then I think it is not too much to demand the should be the true reflex of the people of Kashmir in all that they may be pleaded to say in this House as regards the interest of that State whenever that portion of the Constitution is reached.

Mr. President: Your amendment is that there should be a fresh election and that the Sabha should elect the representatives.

Prof. K. T. Shah: I only say that they should be elected.

Mr. President: You also say that the Sabha should send representatives. If so, how does the question of general election arise?

Prof. K. T. Shah: I say that they should be elected by the Sabha.

Mr. President: If it is the rump of the Sabha, what is the change?

Prof. K. T. Shah: I suggest that it would be better is they were elected by adult franchise. But that is not to be. If you want to get the true reflex of the popular opinion in Kashmir, then you should have that through the Praja Sabha which is the legislature of the State though it may be every unpleasant for us to do so.

Sir, in this connection I feel it my duty to place before the House one or two considerations. We only recorded last week the ratification of our closer association with the British Commonwealth. And if we now complete this act, the two events together carry their own significance.

Secondly I would like the people in this House to realise that the position of Kashmir as it is..........

Pandit Balkrishna Sharma: May I know from the honourable Mover of the amendment then the elections to the Sabha took place?

Prof. K. T. Shah: In November or December 1946.

Pandit Balkrishna Sharma: Was there snowfall in Kashmir at that time?

Prof. K. T. Shah: I do not know that. The elections are held in winter.

Pandit Balkrishna Sharma: The present Prime Minister was then in prison.

Prof. K. T. Shah: He was not the Prime Minister then. He was in prison.

Pandit Balkrishna Sharma: Where are the present members of the Sabha?

Prof. K. T. Shah: I do not know that. You must ask th post-office in Kashmir.

Shri R. K. Sidhva: Does the honourable Member know whether the Praja Sabha exists now, where it exists, what its strength is, where the members are?

Prof. K. T. Shah: The Praja Sabha should know the addresses of its members. Whether the members can collect together or not I do not know. The members may be available or may not be available. As least a quorum may be available to constitute a meeting of the Praja Sabha, if you want to consult the Praja Sabha, if you want to know the opinion of the people of Kashmir. If you do not want, then this motion may be passed.

Pandit Balkrishna Sharma: Is the honourable Member aware that some or most of the members of the Praja Sabha have gone over to Pakistan and those that remain are working for Pakistan? Is he aware of it?

Prof. K. T. Shah: I am not aware. Some have gone.

Mr. President: It will save time if there is no interruption.

Prof. K. T. Shah: I thought I should answer questions put by honourable Members, but I will ignore questions in future.

Two or there more points I would like to place before the House. First, I would like the House to remember the composition of the population of Kashmir, its geographical position, its connection and the possibilities that may happen there. I think the House is aware that we have spent so far something like one hundred crores on Kashmir. What are we getting in return? We have spent--I do not know--how many lives in Kashmir. We are still not out of the wood to the extent that normal conditions, and perfect peace have been restored and normal constitutional progress may be resumed.

The Honourable Shri Jawaharlal Nehru: I strongly protest against the remarks made by the honourable Member. Here we are not discussing the future of Kashmir.

Mr. President: We are discussing only the resolution. The honourable Member is not justified in making remarks on subjects which are not covered by the resolution.

Prof. K. T. Shah: I submit, Sir, that I would not go into those questions. I will not make even those remarks. I will only conclude by saying that this is a very serious matter. The House must bear in mind....

An Honourable Member: What do you mean by serious?

Prof. K. T. Shah: I cannot tell you what is serious, how it is serious.

Shri Jaspat Roy Kapoor (United Provinces: General): The serious thing is that the honourable Member is so ignorant about Kashmir that he even does not know who and where the members of the Praja Sabha are.

Prof. K. T. Shah: The mater is of sufficient importance for the House to take all the aspects of it into consideration and then come to a decision on it Sir, I move.

Mr. President: Prof. Shibban Lal Saksena.

Prof. Shibban Lal Saksena(United Provinces: General): I am not moving my amendment, Sir.

Mr. President: We may now take up the discussion of the motion and the amendments.

Shri H. V. Kamath: Mr. President, Sir, there can be no two opinions in this House that we are all jubilant that very shortly representatives from want is in the words of our Prime Minister the Lovely land of Kashmir, the beauty of which persists in the midst of much spoliation and desecration, will take their seats in this august House. The importance of the subject that we are discussing today cannot be over-estimated. My Friend, Professor Shah, first moved his amendment seeking to substitute. "Jammu and Kashmir" for "Kashmir". May I point out to him that after what was said about this matter by the Honourable Shri Gopalaswami Ayyangar, the amendment reduces itself to merely one of a drafting character. The Honourable Shri Gopalaswami Ayyangar assured us that though the word "Kashmir" only was used, what was meant was the whole State. If Professor Shah takes the trouble of turning to Part III of the First Schedule of the Draft Constitution, he will find that this State is referred to as merely Kashmir/ After this, there is no scope, there is no justification for the amendment moved by Professor Shah. To my mind, some points arise in connection with the motion moved by the Honourable Shri Gopalaswami Ayyangar and I would request that in his reply he may kindly throw some light on them. Firstly, we have not been told--at any rate I did not hear--how many members or representatives from this State will be nominated by the Ruler on the advice of the Premier to take their seats in this House.

The Honourable Shri N. Gopalaswami Ayyangar: I mentioned four.

Shri H. V. Kamath: I am sorry I did not hear that. The number of members is four. i hope we will stick to the population figures that were returned at the last census. In this connection the point arises whether not merely Jammu and Kashmir but also Ladakh--I mean the entire territory including Mirpur and Poonch, will be represented. The Honourable Shri Gopalaswami Ayyangar said that till a few months ago the situation in Kashmir was somewhat fluid, but now it is being stabilised. It is very happy news for us, very welcome news. There is every reason for gratification that the situation is getting fast stabilised. There have been divergent rumours and reports in the press about certain areas in Kashmir formerly held by Pakistan and what was wrongly called the Azad Kashmir forces. The resolution of the U.N.C.I.P.........

Pandit Balkrishna Sharma: Sir, may I draw your attention to the fact that this sort of remarks may be considered as out of order. We are not discussing the whole gamut of Kashmir.

Mr. President: I was just going to draw his attention to the fact that this sort of remarks is wholly irrelevant. We are now only concerned with the sending of four representatives of this House from Kashmir.

Shri H. V. Kamath: I bow to your ruling. I will not dilate on that point any further. I will take the next point and that is the composition of the representation from Kashmir to this Assembly. I was never at any time in my life for separate electorates. I never supported at any time separate electorates which have been the basis on which elections in this country and even on this House were held. We are all very well aware that under the Cabinet Mission Scheme members were elected to this House on the basis of separate electorates. I was very unhappy when that took place. I hoped at that time that that situation would come to an end very soon. Only yesterday we completed the task which we began sometime last year or a few months before that, that is to say the work which we began eighteen or twenty-one months ago, by reason of which we did away with separate electorates.

Mr. President: There is no question of separate electorate in this.

Shri H. V. Kamath: I am coming to that point. The point was referred to by Prof. Shah about the population in Kashmir, about how many Hindus are there, how many Muslims and how many Sikhs. From every province they elected members to this House in July 1946, The basis of representation was one member per million of the population, of he province or state, that is to say for a province like C. P. and Berar which had 160 lakhs of non-Muslims and about 10 or 12 lakhs of Muslims there were 16 non-Muslims of Hindus sent to this House and one Muslim. Here the population of this State which will shortly be represented in this House, is, I believe about 10 lakhs or thereabout of Hindus and the rest Muslim. In conformity with the decision which we have adopted only yesterday and during the last few months, I for one, would be happy if for this new nomination we die away with the separate outlook. I would welcome if the whole of Jammu and Kashmir were represented by all Hindus, if necessary, or all Muslims, provided you get the best men available on the spot. I hope that considerations of communal representation will not guide or affect the matter of nomination of these representatives from Kashmir to this House. That would be completely in conformity with the stand that we have been taken, the decision we have taken in this House on this matter of separate electorates.

Mr. President: May I point out that so far as the representation of the States in this House is concerned, there has never been any question of representation by communities. So far as the States are concerned, all the members who have here come here irrespective of the community to which they belong, unlike the members of the provinces. Therefore, that question does not Aires here.

Shri H. V. Kamath: As we were elected under the Cabinet Mission Scheme, I hope there would be one policy, one method adopted for representation of all the States and I hope that in the case of Kashmir, there would not be departure from the method adopted for the States, in contradistinction to the provinces.

Then, Sir, there is one other point, which I would like the honourable Mover of the motion to clarify when the time comes. In the last November--December session of this Assembly, I raised a point when the rules were being amended, as to whether and when all the States that are still unrepresented in this House will be duly and suitably represented. This is the last session, to my mind, of the Constituent Assembly and the most important one for that reason: and we would have been very happy indeed if the whole of India with all the State who have integrated with it or acceded to it, were represented in this Assembly.

Dr. P. K. Sen (Bihar: General): On a point of order, Sir, the honourable Member is again digressing and his remarks do not bear upon the motion at all.

Mr. President: I am inclined to think that reference to other States is unnecessary and irrelevant.

Shri H. V. Kamath: I thought that Kashmir as a State which has acceded to the Indian Union was on a per with other State which have acceded to the Indian Union, and in that light i was going to.....

Mr. President: So far as I am aware all the States which have acceded have already come in except Bhopal and Kashmir. As far as Hyderabad is concerned, I do not know in what stage of accession it is, but so far as the other States, about whose accession there is no doubt, they have all come in except kashmir and Bhopal and steps are being taken today to bring in Kashmir.

Shri H. V. Kamath: As far as Hyderabad is concerned.....

Mr. President: That question does arise now. It is not necessary; I shall inform myself later on.

Shri H. V. Kamath: The Home Minister, Sardar Patel, told us last Budget session about the position as regards Hyderabad, and as Kashmir is naturally on a par with other States that have acceded to the Indian Union. I only hoped--I do not insist-- that all the States that have acceded to the Indian Union would be represented in this House.

Shri R. K. Sidhva: The matter of sending representatives to this Assembly is a simple one. Why extraneous matter is brought in by the honourable Member, I fail to understand.

The Honourable Shri Jawaharlal Nehru: The honourable Member is a master of irrelevancy. He does not quite understand what has happened. Nearly all the States which have acceded are represented hare except Kashmir.

Shri H. V. Kamath: Mr. President, You yourself said that Bhopal has acceded and still is not represented here. I do not know whether I am irrelevant or somebody is forgetful. Here, Sir, I have got a tabular statement where to total number of members present in this House at present is given

Mr. President: What is the point?

Shri H. V. Kamath: Sir, I only wanted to say that still there are twenty-one members to take their seats in this House and I hope that steps would be taken early to see that all these 21 members including those from the States of Jammu and Kashmir will take their seats in this House during this very important session. I wonder whether the interruptions were at all necessary. I was not going to dilate any further, and I am sorry if the Prime Minister misunderstood the trend of my argument, and thought fit to interrupt me. There is one last point, Sir, and I have done. I do not know why the Prime Minister is getting impatient.

The Honourable Shri Jawaharlal Nehru: Depressed.

Shri H. V. Kamath: I would try to cheer him before I end my little speech. The last point is this. (Interruption). Mr. Balkrishna Sharma will have his chance, I hope.

Mr. President: What is the point?

Shri H. V. Kamath: The last point is this. In yesterday's issue of an important Daily of this city, there was a report that the Maharaja of Kashmir was going on a short holiday and somebody else would act as Regent. I hope, Sir, that this resolution which we are going to pass today will be implemented by the Ruler of Kashmir on the advice of his Prime Minister before he leaves the State on a short holiday.

Lastly, I would have been happy if the person referred to as the Prime Minister here has been designated otherwise. There is only on Prime Minister in India. I am told there was a recent circular issued to all provinces--I do either as Chief Ministers or as Premiers and that the title Prime Minister should be reserved only for the Prime Minister of the Indian Union. Therefore, I would have been happy if the Honourable Mr. Gopalaswami Ayyangar, who moved this motion, had used the term " Premier" in place of Prime Minister", because I feel that it conflicts with the circular issued by the Government of India to all the provinces quite lately.

These are the points which I hope the mover of the motion would clarify in his reply to the debate. i hope we will be able to welcome our friends from Kashmir in this House at a very early date.

Maulana Hasrat Mohani: Sir, I am not opposing this motion of Mr. Ayyangar on the ground that it wants the Kashmir representatives to be nominated, nor on the ground that some of my honourable Friends have tabled amendments, some wanting that 50 per cent. Should be elected and 50 per cent nominated. I do not care whether cent. per cent. are elected or nominated. But what I object to is this. I do not know, of course; but I do not see any necessity for sending any Kashmir representatives to this Constituent Assembly at this stage. Pandit Nehru got angry because he says that this accession has been complete and there is no doubt about that. He says that Kashmir has acceded to India and therefore they have every right to ask for their representatives to be sent hare to this Constituent Assembly. While I need not quarrel on that subject, I have to ask a question from my Friend, Mr. Ayyangar. I accept this contention of the Prime Minister that this accession has been complete although I am doubtful whether he is absolutely right in this. Because, he himself not once or twice, but many times, has said that this accession depends on the final decision of the plebiscite, of the votes of the Kashmir people. Of course, now, he has made up his mind; he has created difficulties and his move is that this plebiscite will never take place and therefore he says that this accession is complete and there is no doubt about it. Even admitting that, I ask Mr. Gopalaswami Ayyangar why he should anticipate the decision of the Government of India and why should he come forward at this stage to propose this thing. I say, why at this stage. Because, generally we find that in all those States which have acceded to India, invariably the Rulers of those States, have been pensioned off and the administration has been taken over by the Indian Government or some provincial Government of India. I do not know what is in the mind of the Prime Minister or the Government of India, as to what will be that status of the kashmir Government. After accession, will be also be pensioned off and the administration of Kashmir taken over by the Government of India? Is that so? Then, I say that this thing has not yet been decided and if this has not yet been decided, then, I think that there is no status for the Maharaja of Kashmir for the present and therefore this question of his nominating representatives for the Constituent Assembly does not arise. I say that the whole thing is premature. Unless and until you decide the status of the Kashmir Government and the status of the Maharaja, it is hopelessly absurd to set down any proposal of this kind. It is on this ground that I totally object to this motion. I think he should not be allowed to move such a motion at this stage.

The Honourable Shri Jawaharlal Nehru: Sir, this very simple motion of my honourable colleague has led some members of refer to almost all connected matters, not with this motion, but in regard to Kashmir, and so we have been led to think of this vast and intricate and difficult problem of Kashmir. It is a little difficult in this context to confine oneself to the simple proposition that has been placed before the House. Nevertheless, I do not intend to go beyond that proposition; not do I think need this House to beyond it although several members may be tempted to do so.

The proposition before the House is a very simple one. Now, I say that I have a vast admiration for the erudition an learning of Professor Shah. Nevertheless, I have followed with some surprise not only what he has said today, but what he has and done in regard to kashmir for a number of years. I have been also connected with Kashmir in many ways and, in a sense, I belong to Kashmir more particularly than to any part of India. I have been connected with the fight for freedom in Kashmir and I know about the various groups, various people, various individuals from the Maharaja down to number folk there. And so, if I venture to say anything in this House, I do so with far greater authority than Prof. Shah can presume to have on the subject. I speak not as the Prime Minister, but as a Kashmiri and an Indian who has been connected with these matter. It amazed me to hear Prof. Shah propose that the so-called Praja Sabha of Kashmir should send representatives to this House. If Prof. Shah knows anything about Kashmir, he should know that there is nothing more bogus than the Praja Sabha in Kashmir. He ought to know that the whole circumstances under which the last elections were held were fantastic and farcical. He ought to know that it was boycotted by all decent people in Kashmir. It was held in the depth of winter, to avoid people going to the polling booths. And winter in Kashmir is something of which probably Members in this House have no conception of. An honourable Member asked me about winter, and whether it was snowing. But when it snows in a cold country, it is called warm weather. In winter it is 20 to 30 degrees below snowing weather. The election was held when the roads ware impassable, when the passes could not be crossed; in fact, it was just not possible for the voters to go. But apart from that, when the National Conference of Kashmir, in spite of difficulties, difficulties including that of their leaders being in prison, including Sheikh Abdullah and other, in spite of all that, when they decided to contest these elections, then their candidates were arrested, many of them, and all kinds of obstacles ware put in; and it was quite clear that they would not be allowed to stand. So they decided to boycott it and they did boycott it, with the result that the whole national movement of Kashmir boycotted those elections, just as the national movement in 1920 boycotted elections in India. And it was and amazingly successful boycott. Of course people got in. By boycotting you cannot keep another man out; but the percentage of voting was so very small--I forget the exact fraction--it was almost negligible; and the type of people who got in were the type who had opposed the freedom movement throughout, who had done every injury possible to the idea of the freedom of Kashmir till then. And subsequently some o them, when Kashmir adopted this new status and became much freer than it ever was, they subsequently sought refuge in Pakistan. Now that is the kind of body referred to; it is a bogus body; it is really no body at all. It is a disembodied spirit. It does not meet. It does not do anything and many of its members are not just traceable. And now Prof. Shah calmly, tells that the Praja Sabha can elect Members to this honourable House; it is a monstrous proposition.

I admit that it is not desirable for any Members of this House to come by nomination or be selected by some narrow process; but unfortunately many of us here, from the States I means, have not come exactly as we should have liked them to come. They have been sent, partly by nomination, partly by election, by election again, by bodies which are not often properly constituted; but we had to take things as they were, and we wanted them here to help us in this work of constitution-making. So though the process suggested for Kashmir is not ideal, yet I do think that it is a process than has been adopted in regard to many States in India. It is a process where you get a popular government with the representative of the popular party at the head of it, recommending to the Ruler that certain names should go. Even from the point of view of democracy, that is not an incorrect process. It is not 100 per cent. correct; but the House should see what better method you can suggest. I can understand Maulana Hasrat Mohani, and I am inclined to agree with him that it would have been--if I heard hem correctly--it would have been better and more graceful for us to have had the representatives of Kashmir here much earlier. But we did not do it. It was our fault, may be it was other people's fault; but whatever the reason, we did not do it. It was our fault, may is that a reason why we should continue the error in the future? During the next two or three months, or however long this House meets, when we are going to finalise this Constitution, it is desirable for us to give every opportunity to the representatives of the Kashmir State and of any other State, to come here and participate, even though they have not done so up to this stage. So I submit that the motion moved by Mr. Ayyangar i the only way out of this difficulty.

I would suggest to him and beg of him to accept a small change in the wording of the motion. What he has put down is perfectly correct, he has put down "Kashmir", as it occurs in the various Acts, etc. He has taken it naturally from these enactments. But because there is a slight confusion in people's minds, it would be better to describe it a little more fully as "Kashmir State" and then putting within brackets, the words "otherwise known as the State of Kashmir and Jammu". No doubt, so far as the proposition that people should be entitled to come from Jammu and Kashmir is concerned, I think it is up to us to give them every opportunity to do so. And secondly, so far as the method is concerned, I can think if no other, and no fairer method than what has been proposed in this motion.

Shri T. A. Ramalingam Chettiar (Madras: General): Sir, the question may now be put.

Mr. President: The question is:

"That the question be now put."

I take it that that is the wish of the House.

The motion was adopted.

The Honourable Shri N. Gopalaswami Ayyangar: Sir, I have really little to say. But I think a few words have to be said about one or two observations that were made by my honourable Friend, Maulana Hasrat Mohani. He doubted whether the Prime Minister's description of this accession as being complete is altogether correct. I maintain that it is perfectly correct. The accession was offered by the Maharaja and it was accepted by the Governor General of the time. I have a copy of that document before me. It is an absolutely unconditional offer. But my honourable Friend referred to what has happened since and I know my other honourable Friend Prof. Shah also seemed to imply what the Maulana contended. Now the correct position is this. The accession is complete. No doubt, we have offered to have a plebiscite taken when the conditions are created for the holding of a proper, fair and impartial plebiscite. But that plebiscite is merely for the purpose of giving the people of the State the opportunity of expressing their will, and the expression of their will, will be only in the direction of whether they would ratify the accession that has already taken place--not ratify in the sense that that act of ratification is necessary for the completion of the accession, but if the plebiscite produces a verdict which is against the continuance of accession to India of the Kashmir State, then that we are committed to is simply this, that we shall not stand in the way of Kashmir separating herself away from India. In this connection, should like to draw the attention of the House to the Provisions of the Indian Independence Act under which, when a State accedes and subsequently wishes to get out of the act of accession, thus separating itself from the main Dominion, it cannot do so except with the consent of the Dominion. Our commitment is simply this, that if and when a plebiscite comes to be taken and if the verdict of that plebiscite is against Indian, then we shall not stand in the way of the wishes of the people of Kashmir being given effect to, if they want to go away from us. That is all that it means. So I maintain that the statement that the accession at present is complete is a perfectly correct description of the existing state of things.

Then he asked why should representative be brought in at this stage. We are not bringing them into House for the purpose of placing there seal on the act of accession. We are giving them an opportunity for the exercise of the rights which they have obtained by virtue of the fact then accession has already taken place. We are making a new constitution which affects not merely the Union as a whole but affects the units of the Union and Kashmir, on account of the fact of accession, is t present a unit of that Union. In fashioning the constitution for the whole Union it is only right that representatives of all units should find seats in this Assembly.

I think I need to reply at length to my honourable Friend Prof. Shah's objections. They have been dealt with already by the Honourable the Prime Minister. I would only say this. There has been a delay no doubts Prof. Shah seemed to suggest that the cease fire took place some months ago and he could not understand why this step was not taken immediately after. A cease fire only suspends military operations and takes some time before things settle down sufficiently for us to see our way through. I believe I am correct in saying that the first meeting of this Constituent Assembly as a constitution-making body after the cease fire suspended military operations and things began to settle down is the present one. I do not think we can be convicted of delay in bringing this proposition forward at this meeting.

I do not think I need reply to the other points in his speech but there is one amendment of which he has given notice and has pressed which I should deal with. He wants the omission of the Word "all" in paragraph 4-A. The word "all" was put in deliberately, because in the present rules there is provision for a certain proportion of the number of seats being nominated to by the Ruler himself without reference to anybody else. Now what we are suggesting is that not merely a proportion but all the seats should be nominated by the Ruler and in doing so he should be guided by the advice of his Prime Minister. That is the only reason why the word "all" has been put in there. I think there is no harm in retaining the word.

As to the other amendment which he has proposed to the word "Kashmir" the Prime Minister has already suggested that we might perhaps make this clear. I would, with your permission, Sir, be willing to propose an amendment to the effect that after the words "State-of Kashmir" the following words shall be inserted within brackets "otherwise known as the State of Jammu and Kashmir". If that is acceptable to the House my motion may be passed in that amended form.

There is only one other point to which I need make any reference at all and that is the one raised by my honourable Friend Mr. Kamath. He seemed rather perturbed by the use of the expression "Prime Minister" in this connection. He would rather like the word "Premier" to be substituted. Unfortunately here I am unable to comply with his suggestion, because the head of the Council of Minister and so long as that is there we have got to respect the expression that is used in the Kashmir Constitution.

Perhaps I might also refer to the other point, namely election by the people, which my honourable Friend Prof. Shah suggested. General elections directly by the people are not possible in the present condition of Kashmir. But if his suggestion was that, even on the limited franchise that was in force before, we could do something in this direction, that also would mean a general election of the purpose of getting together a Praja Sabha and such election are not possible today. So, my contention is that there can be no direct election of these representatives of the people under the present conditions of Kashmir and those elections will have to be held even if you have to find a new Praja Sabha. The be course in the circumstances is the one I have suggested.

I hope the House will carry this motion.

Mr. President: The suggestion which has been made by the Honourable Prime Minister has been accepted by the mover, viz., that after the words "State of Kashmir" within brackets the words "otherwise known as the State of Jammu and Kashmir" be inserted in the original proposition, If that is accepted by the House, then I shall take up the other amendments.

The question is:

"That after the words 'State of Kashmir' in the proposed paragraph 4-A, the following words within brackets be inserted, viz., 'otherwise known as the State of Jammu and Kashmir".

The amendment was adopted.

Mr. President: The question is:

"That in the proposed paragraph 4-A, the word 'all' be deleted."

"That in the proposed paragraph 4-A, before the word 'Kashmir' wherever it occurs, the words 'Jammu and' be inserted."

"That in the proposed paragraph 4-A, for the words 'by nomination' the words 'by election by the Praja Sabha of the State of Jammu and Kashmir' be substituted."

"That in the proposed paragraph 4-A, for the word 'nominated' the word 'elected' be substituted."

"That in the proposed paragraph 4-A, the words 'by the Ruler of Kashmir on the advice of his Prime Minister' be deleted."

The amendment were negatived.

Mr. President: The question is:

"That after paragraph 4 of the Schedule to the Constituent Assembly Ruler, the following paragraph be inserted, namely:-

'4-A, Notwithstanding anything contained in paragraph 4, all the seats in the Assembly allotted to the State of Kashmir (otherwise as the State of Jammu and Kashmir) may be filled by nomination and the representatives of the State to be chosen to fill such seats may be nominated by the Ruler of Kashmir on the advice of his Prime Minister.'"

The motion was adopted.


* Article 104

The Honourable Dr. B. R. Ambedkar : (Bombay: General): Sir, I would request that article 104 be postponed.

* Article 105

Mr. President: Then I shall proceed to article 105.

(Amendment Nos. 1879 and 1880 were not moved.)

Mr. President: The question is:

"That article 105 stand part of the Constitution."

The motion was adopted.

Article 105 was added to the Constitution.

* Article 106

Mr. President: Article 106.

(Amendment Now. 1881 and 1882 were not moved.)

Mr. President: There is an amendment to this amendment. Since the main amendment is not moved I suppose this amendment drops.

Shri T. T. Krishnamachri (Madras: General): It is covered by amendment No. 1883 to which I shall move my amendment.

Mr. President: So much the better.

Tajamul Husain (Bihar: Muslim): Sir, may I with your permission move this amendment for Mr. Naziruddin Ahmad?

Mr. President: Yes.

Tajamul Husain: Sir, I move:

"That in clause (1) of article 106 after the words 'High Court' where they occur for the second time, the words 'duty qualified for appointment as a judge of the Supreme Court be inserted."

It at any time there is no quorum of the Judges of the Supreme Court to hold a Session, the Chief Justice may consult the Chief Justice of the High Court concerned and ask him to attend the sitting of the High Court as an ad hoc Judge for such period as may be found necessary for the Judge of the High Court to be nominated by the Chief Justice of India. No argument is necessary. The Judge who sits as an ad hoc Judge in the Supreme Court must be duly qualified for appointment as a Judge of the Supreme Court: otherwise he cannot sit.

Shri T. T. Krishnamachari: Sir, I shall with your leave move amendment No. 124 in List VI. Sir, I move:

"That with reference to amendment No. 1883 of the List of Amendments, in clause (1) of article 106, after the words 'Chief Justice may' the words 'with the previous consent of the President and' be inserted."

The wording of this amendment is fairly simple as the House will understand that article 106 provides for the appointment of ad hoc Judges by the Chief Justice of the Supreme Court and sit in any of the Benches constituted by him to decide any particular case. Well, the article as it now stands means that the Chief Justice can do it without any reference to the Government of the day. I think, Sir, that the position is not quite as it ought to be for the reason that while the appointment of any of the Judge of the Supreme Court, including the Chief Judge, is done by the Executive, and addition to the Court should not be made without any reference to the Executive whatever. Of course, there are administrative and financial problems that might arise by the Chief Justice making a request to any of the High Court Judges of any State to co-operate with him in this manner, and even the propriety of the occasion demands that the Chief Justice should not act except in consultation with the head of the Executive. Therefore, Sir, I have moved that the words "with the consent of the President" should be put in. Actually, it will not be a very difficult matter to obtain his consent, as in most cases it will be a formal matter. Also, there is this safeguard, namely, there are occasions when the Supreme Court has decided matters which have a political flavour. The possibility of any political bias being exercised by the Chief Justice in the matter of the selection of an ad hoc Judge to help to decide any particular case can also be partly obviated by this safeguard. The history of the Judiciary in America has been almost a history of how politics has influenced the attitude of the judiciary. Any student of the American Constitution would know that politics has influenced to a vary large extent the decisions in constitutional cases by the Supreme Court of America. There is undoubtedly need for a safeguard for providing that the Executive shall have some say in a matter like this and if they really feel that the selection of a particular Judge is not proper, it is probable that the attention of the Chief Justice might be invited to that particular aspect of the matter.

It is not merely to provide against a contingency like one I have mentioned but also to conform to the proprieties involved in a matter like this that I have moved this amendment. I hope the House will have no difficulty in accepting it. Sir, I move:

The Honourable Dr. B. R. Ambedkar: I accept the two amendment--No. 124 of List No. VI and amendment No. 1883.

Mr. President: There have been two amendments moved. Both have been accepted by Dr. Ambedkar. I will now put them to the vote.

Mr. President: The question is:

"That with reference to amendment No. 1883 of the List of Amendments, in clause (1) of article 106, after the words 'Chief Justice may' the words 'with the previous consent of the President and' be inserted."

The amendment was adopted.

Mr. President: The question is:

"That in clause (1) of article 106, after the words 'High Court where they occur for the second time, the words 'duty qualified for appointment as a judge of the Supreme Court' be inserted."

The amendment was adopted.

Mr. President: The question is:

"That article 106, as amended, stand part of the Constitution."

The motion was adopted.

Article 106, as amended, was added to the Constitution.

* Article 107

Mr. President: Amendment No. 1884. This is a negative amendment. So I rule it out.

Amendment No. 1885. That question has been decided. So this need not be moved.

Shri Jaspat Roy Kapoor: I am not moving amendment No. 1886 as there is another amendment on the same lines.

Mr. President: Amendment No. 1887 is more or less a verbal amendment. So it need not be moved.

The Honourable Dr. B. R. Ambedkar: Sir, I beg to move:

"That in article 107 the words 'subject to the provisions of this article' be deleted."

Those words are quite unnecessary.

Shri T. T. Krishnamachari: I move:

"That in article 107, in line 3, after the words 'at any time'. the words 'with the previous consent of the President' be inserted.'

Sir, the purpose of this amendment is much the same as that of the amendment moved by me to the earlier article and accepted by the house. This article deals with the attendance of retired judge in the sittings of the Supreme Court. For the reasons mentioned by me earlier it will be necessary for the Chief Justice to obtain the previous consent of the President, before inviting any such person to act as a Judge of the supreme Court.

(Amendments Nos. 1889 and 1890 were not moved.)

Mr. President: We have now the amendments and the article for discussion.

The Honourable Dr. B. R. Ambedkar: I accept amendment 125 moved by Shri T. T. Krishnamachari.

Mr. President: The question is:

"That in article 107, in line 3, after the words 'at any time', the words 'with the previous consent of the President' be inserted."

The amendment was adopted.

Mr. President: The question is:

"That in article 107 the words 'subject to the provisions of this article' be deleted."

The amendment was adopted.

Mr. President: The question is:

"That article 107, as amendment, stand part of the Constitution."

The motion was adopted.

Article 107, as amended, was added to the Constitution.

* Article 108

Mr. President: Article 108 is for the consideration of the House.

Shri H. V. Kamath: Mr. President, I move:

"That for article 108, the following be substituted:-

'108. The Supreme Court shall sit at such place or places as the Chief Justice may, with the approval of the President, from time to time appoint.'"

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