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Constituent Assembly Of India - Volume V
Dated: August 30, 1947
Mr. President: Clause 17.
The Honourable Sardar Vallabhbhai J. Patel: The Committee discussed this and there were several other suggestions made by the House and the clause was referred back to the Committee. After further consideration of this clause, which enunciates an obvious principle, the Committee came to the conclusion that it is not necessary to include this as a fundamental right. It is illegal under the present law and it cm be illegal at any time.
Mr. President: Has anybody anything to say?
Shri M. Ananthasayanam Ayyangar (Madras: General): It is unfortunate that religion is being utilised not for the purpose of saving one's soul but for disintegrating society. Recently after the announcement by the Cabinet Mission and later on by the British Government, a number of conversions have taken place. It was said that power had been handed over to Provincial Governments who were in charge of these matters. This is dangerous. What has religion to do with a secular State? Our minorities are communal minorities for which we have made provision. Do you want an opportunity to be given for numbers to be increased for the purpose of getting more seats in the Legislatures ? That is what is happening. All people have come to the same opinion that there should be a secular State here; so we should not allow conversion from one community to another. I therefore want that a positive fundamental right must be established that no conversion shall be allowed, and if any occasion does arise like this, let the person concerned appear before a Judge and swear before him that he wishes to be converted. This may be an out-of-the-way suggestion but I would appeal to this House to realize the dangerous consequences otherwise. Later on it may attain enormous propositions. I would like this matter to be considered and the question referred back for a final draft for consideration at a later sitting.
Shri R. V. Dhulekar: [Mr. President, my opinion is that clause 17 should be retained as it stands. In the present environment, all sorts Of efforts are being made to increase the population of a particular section in this country, so that once again efforts may be made to further divide this country. There is ample proof, both within this House and outside that many who live in this country are not prepared to be the citizens of this country. Those who have caused the division of our land desire that India may be further divided Therefore in view of the present circumstances,I think that this clause should be retained. it is necessary that full attention should be paid to this. While on tour, I see every day refugees moving about with their children and I find them at railway stations, shops,bakeries and at numerous other places. The men of these bakeries abduct these women and children. There should be legislation to stop this. I would request you that an early move should be made to stop all this and millions of people would be saved.
I submit that we cannot now tolerate things of this nature- We are being attacked, and we do not want that India's population, the numerical strength of the Hindus and other communities should gradually diminish, and after ten years the other people may again say that we constitute a separate nation". These separatist tendencies should be crushed.
Therefore I request that Section 17 may be retained in the same km as is recommended by the Advisory Committee-
The Honourable Sardar vallabbbbai J. Patel: Much of this debate may be shortened if it be recognised that there Is no difference of opinion on the merits of the case that forcible conversion should not be or cannot be recognised by law. on that principle there is no difference of opinion. The question is only whether this clause is necessary
* [English translation to Hindustani speech.
in the list of fundamental rights. Now, if it is an objective for the administration to act, it has a place in the Second Part which consists of non-justiciable rights. If you think it is necessary, let us transfer it to the Second Part of the Schedule because it is admitted that in the law of the land forcible conversion is illegal. We have even stopped forcible education and, we do not for a moment suggest that forcible conversion of one by another from one religion to another will be recognised. But suppose one thousand people are converted, that is not recognised. Will you go to a court of law and ask it not to recognise it ? it only creates complications, it gives no remedy. But if you want this principle to be enunciated as a seventh clause, coming after clause 6, in the Second Schedule, it is unnecessary to carry on any debate; you can do so. There is no difference of opinion on the merits of the case. But at this stage to talk of forcible conversion on merits is absurd, because there cannot be any question about it.
Shri R. V. Dhulekar: [I agree that it may be transferred there]
The Honourable Sardar Vallabhbhai J. Patel: [It will be transferred.]
(At this stage Mr. Hussain Imam walked zip to the rostrum to speak.)
The Honourable Sardar Vallabhbhai J. Patel: Do you advocate forcible conversion ?
Mr. Hussain Imam: No, Sir I very much regret the attitude of certain Members who are in the habit of bringing in controversial matters without any rhyme or reason. It was really almost uncalled for attack which the last speaker made on the Mussalmans, without mentioning names. But I regret that in the atmosphere which we are trying to create of amity such intrusions should be allowed to intervene and mar the fair atmosphere.
Sir, what I came to suggest was that this is such a fundamental thing, that there is no need to provide for it. According to the, law everything which has been done under coercion is illegal. Anything done by reason of fraud can never stand. Forcible conversion is the highest degree of undesirable thing. But it is not proper, as the Sardar himself has admitted, to provide it in the justiciable fundamental rights. The only place which it can occupy is in the annals of High Court judgements. Any number of judgements exist which have declared that anything done by reason of fraud or coercion is illegal. Therefore it is not justiciable and cannot be justified by any sensible person in the world I strongly advocate that it is not necessary to put it in any of the lists of Fundamental Rights.
Shri R. V. Dhulekar: [I want to ask you whether any Hindu has embraced Islam by speeches.]
Mr. President: Then I shall put the motion.
The motion was adopted.
Mr. President: Then we come to Clause 18 (2).
*  English translation of Hindustani speech.
The Honourable Sardar Vallabhbhai J. Patel: This is the last clause, that-
This clause was referred back to the Committee and it came to the conclusion that the last sentence is not necessary, i.e., "nor shall any religious instruction be compulsorily imposed on them" because it is already covered by Clause 16 which we have passed. That being dropped, I move the proposition, without that that particular sentence, for the acceptance of the House.
K.T. M. Ahmad lbrahim Sahib Bahadur (Madras: Muslim): Sir, I move that the following be added after the word "institutions" in Clause 18(2)
Sir, it is well known that there are in existence certain institutions maintained by the State, specially for the benefit of certain communities which are educationally backward, and if this clause is applied to such institutions also, the very object of establishing such institutions would be defeated. Therefore, it is necessary that, in order that the object of the establishment and maintenance of such educational institutions mainly for the benefit of that particular community may not be defeated, this. clause should not apply to them. This is a very simple proposition and I hope the House will accept it.
Shri Mohanlal Saksena (United Provinces: General): Sir, I move that, the following proviso be added to clause 18 (2):
I do not want to make any long speech. It is obvious that if any institution wants to impart religious education and wants to take State aid as well, then it is necessary. that the syllabus of religious education should be approved by the State; otherwise, it should forego the aid. We know that in the name of religion all sort of things are being taught and since the children are the trust of the State, it is necessary that before the State gives any aid, it should at least approve the syllabus of the religious instruction that is prescribed and imparted in any institution to which it gives such aid. With these words, Sir, I move.
Mrs. Purnima Banerji: Sir, my amendment, is to clause 18 (2) It reads as follows:-
The purpose of the amendment is that no minority, whether based on community or religion shall be discriminated against in regard to the admission into State-aided and State educational institutions. Many of the provinces, e.g., U.P., have passed resolutions laying down that no educational institution will forbid the entry of any members of any community merely on the ground that they happened to belong to a particular community--even if that institution is maintained by a donor who has specified that that institution. should only cater for members of his particular community. If that institution seeks State aid, it must allow members of other communities to enter into it. In the olden days, in the Anglo-Indian schools (it was laid down that, though those school were specifically intended for Anglo-Indians, 10 per cent. of the seats should be given to Indians. In the latest report adopted by this House, it is laid down at 40 per cent. I suggest Sir, that if this clause is included without the amendment in the Fundamental Rights, it will be a step backward and many Provinces who have taken a step forward will have to retrace their steps. We have many institutions conducted by very philanthropic people, who have left large sums of money at their disposal. While we welcome such donations, when a principle has been laid down that, if any institution receives State aid, it cannot discriminate or refuse admission to members of other communities, then it should be follow. We know, Sir, that many a Province has got provincial feelings. If this provision is included as a fundamental right, I suggest it will be highly detrimental.. The Honourable Mover has not told us what was the reason why he specifically excluded State-aided institutions from this clause. If he had explained it, probably. the House would have been convinced. I hope that all the educationists and other members of this House will support my amendment.
Mr. K. M. Munshi: Mr. President, Sir, the scope of this clause 18 (2) is only restricted to this, that where the State has got an educational institution of its own, no minority shall be discriminated against. Now, this does recognise to some extent the principle that the State cannot own an institution from which a minority is excluded. As a matter of fact, this to some extent embodies the converse proposition over which discussion took place on clause 16, namely no minority shall be excluded from any school maintained by the State. That being so, it secures the Purpose which members discussed a few minutes ago. This is the farthest limit to which I think, a fundamental right can go.
Regarding Ibrahim Sahib's amendment, I consider that it practically destroys the whole meaning and content of this fundamental right. This minority right is intended to prevent majority control legislatures from favouring their own community to the, exclusion of other communities, The question therefore is : Is it suggested that the State should be at liberty to endow school for minorities ? Then it will come to this that the minority will be a favoured section of the public. This destroys the very basis of fundamental right Submit that it should be rejected.
The next amendment moved by my Honourable friend Mr. Mohanlal Saksena is really irrelevant to this clause. However good it might be, it does not relate to the fundamental right we are dealing with. It says:
This clause refers only to State institutions and not to those aided by the State. The amendment seeks to control the nature of the religious education that is given in State-aided schools. Therefore, it is outside the scope of the general proposition before the House. In regard to its content also, it says "duly approved by the State". Now, the State may approve one kind of religious education for one community and may not approve for the other. It introduces an element of discrimination which would be much more dangerious than others. I therefore, submit that it should not be accepted by the House.
Then comes Mrs. Banerji's amendment. It is wider than the clause itself. As I pointed out, clauses 16 and 18 are really two different propositions. This is with regard to communities. Through the medium of a fundamental right, not by legislation, not by administrative action this amendment seeks to close down thousands of institutions in this country.
I can mention one thing in so far as my province is concerned there are several hundreds of Hindu Schools and several dozens of Muslim Schools, Many of them are run by charities which are exclusively Hindu or Muslim. Still the educational policy of the State during the Congress regime has been that, as far as possible no discrimination should be permitted against any pupil by administrative action in these schools. Whenever a case of discrimination is found, the Educational Inspector goes into it; particularly with regard to Harijans, it has been drastically done in the Province of Bombay. Now if you have a fundamental right like this, a school which has got a thousand students and receives Rs. 500 by way of grant from Government, becomes a State aided School. A trust intended for one community maintains the School and out of Rs. 50,000 spent for the School Rs, 500 only comes from Government as grant. But immediately the Supreme Court must hold that this right comes into operation as regards this School. Now this, as I said, can best be done by legislation in the provinces, through the ad ministrative action of the Government which takes into consideration susceptibilities and sometimes makes allowances for certain conditions. How can you have a Fundamental law about this? How can you divert crores of rupees of trust for some other purpose by a stroke of the pen ? The idea seems to be that by placing these two lines in the constitution everything in this country has to be changed without oven consulting the people or without even allowing the legislatures to consider it. I submit that looking into the present conditions it is much better that these things should be done by the normal process, of educating the people rather than by putting in a Fundamental Right. This clause is intended to be restrictive that neither the Federation nor a unit shall maintain an institution from which Minorities are excluded. If we achieve this, this will be a very great advance that we would have made and the House should be content with this much advanced Mr. Hussain lmam:
I will not take more than two minutes of the time of the House. I think there is nothing wrong with the amendment which has- been In moved by Mrs, Banerji She neither wants those endowed institutions to be closed, nor their funds to be diverted to purposes for which they were not intended. What she does as is that the State being a secular State, must not be a party to exclusion. It is open to the institutions which want to restrict admission to particular communities or particular classes, to refuse State aid and thereby, after they have refused the State aid, they are free to restrict their admission of the students to any class they like. The State will have no say in the matter. Here the word 'recognize' has not been put in. In clause 16 we put the all embracing word 'recognise'. Therefore all this trouble arose that we had to refer that to a small Committee. In this clause the position is very clear. And Mr. Munshi as a clever lawyer, has tried to cloud this. It is open to the institution Which has spent Rs. 40,000 from its funds not to receive Rs. 500 as grant from the State but it will be oven to the State to declare that as a matter of State policy exclusiveness must not be accepted and this would apply equally to the majority institutions as well as, minority institutions. No institution receiving State,aid Should close its door to any other class of persons in India merely because its door has originally so desired to restrict. They are open to refuse the State aid and they can have any restriction they like.
Mr. M. S. Aney: Sir, I am only putting this for the sake of clarification. In the Advisory Committee Report we have recommended that the last portion of this Clause, viz., 'nor shall any religious instructions be compulsorily imposed upon them' be deleted and only the rest of the thing Should be put to the vote of the House but the condition under which we made that recommendation was that clause 16 should be accepted by this House. That was the condition. Now what have we done ? Clause 16 we have referred to a certain Committee for consideration. Under those circumstances the whole clause including the last portion that is to be deleted will have to be put to the vote of the House. Is the entire clause going to be put to, the vote or only the first part?
Mr. President: I think the proposal is to have the last portion excluded.
Pandit Hirday Nath Kunzru: Mr. President, I support the amendment moved by Mrs. Banerji. I followed with great interest Mr. Munshi's exposition. His view was that if we accepted the principle that educational institutions maintained by the State shall be bound to admit boys of all communities, it would be a great gain and that we should not mix up this matter with other matters howsoever important they may be. I appreciate his view point. Nevertheless I think that it is desirable in view of the importance that we have attached to various provisions accepted by us regarding the development of a feeling of unity in the country that we should today accept the principle that a boy shall be at liberty to join any school whether maintained by the State or by any private agency which receives aid from State funds. No school should be allowed to refuse to admit a boy on the score of his religion. This does not mean, Sir, as Mr. Munshi seems to think, that the Headmaster of any School would be under a compulsion to admit any specified number of boys belonging to any particular community. Take for instance an Islamia School. If 200 Hindu boys offer themselves for admission to that School, the Headmaster will be under no obligation to admit all of them. But the boys will not be debarred, from seeking admission to it simply because they happen to be Hindus. The Headmaster will lay down certain principles in order to determine which boys should be admitted. It is the common experience of every School that the number of boys seeking admission into it is much larger than can be accommodated.
Now, in order to weed out a certain number of students, the Headmaster lays down certain principles which are purely secular and educational. The Headmaster of a Hindu High School or the Headmaster of a Muslim High School will be completely free if Mrs. Banerji's amendment is accepted, to reject Muslim or Hindu boys as the case may be because they do not satisfy the standards laid down by the respective Headmasters. I think this is a sufficient guarantee that a Headmaster will be in a position to act in accordance with the principle that all schools whether maintained or aided by the State should be open to boys of all communities and that it will not impose on him a burden which he cannot bear.
Sir, we have decided not to allow separate representation in order to create a feeling of oneness. throughout the country. We have even disallowed cumulative voting because, as Sardar Vallabhbhai Patel truly stated the other day, its acceptance would mean introduction by the backdoor of the dangerous principle of communal electorates which we threw out of the front door. So great being the importance that we attach to the development of a feeling of nationalism, is it not desirable, is it not necessary that our educational institutions which are maintained or aided by the State should not cater exclusively for boys belonging to any particular religion or community? If it is desirable in the case of adults that a feeling of unity should be created, is it not much more desirable where immature children and boys are concerned that no principle should be accepted which would allow the dissemination, directly or indirectly, of anti-national ideas or feelings?
Sir. since the future welfare of every State depends on education, it is I think very important that we should today firmly lay down the principle that a school, even though it may be a private school, should 'be open to the children of all communities if it receives aid from Government. This principle will be in accordance with the decisions that we have arrived at on other matters so far. Its non-acceptance will be in conflict with the general view regarding the necessity of unity which we have repeatedly and emphatically expressed in this House.
The Honourable Sardar Vallabhbhai J. Patel: I do not propose to take any time, to the impatience of the House, in replying. I only wish to say that this is a simple non-discriminatory clause against, the minorities in the matter of admission to schools which are maintained by the State. It is only a question whether that principle should be extended to such an extent as to include all schools which receive small or large aids. That question the committee considered at length and came to the conclusion that if we accepted this principle at present it would be enough and that the rest could be left to the legislature to be adopted wherever conditions were suitable. But in the Fundamental Rights to do away with this will be a big step forward. That was the view. Therefore I cannot accept this amendment at present Shri Mohanlal Saksena: Before you put the amendments to vote, I wish to say a few words about my amendment. Mr. Munshi has said that my amendment is not relevant. I would suggest that it should be referred to the committee appointed to consider clause 16.
The Honourable Sardar Vallabhbhai J. Patel: That is also not relevant.
Mr. President: I will first put the amendment of Mr. Ahmed Ibrahim Sahib to vote.
The question is:
The motion was negatived.
Mr. President: I will now put the amendment of Shrimati Purnima Banerji to vote.
The question is:
The motion was negatived.
Mr. President: Next I will put the amendment moved by Shri Mohanlal Saksena to vote.
The question is:
The motion was negatived.
Mr. President: I will now put the original clause to vote.
The question is:
The motion was adopted.
Mr. President: This part of the Report is now finished. The Schedule will be taken up later.
I have to make a certain announcement before we part. Members will recollect that it was suggested that clause 16 be referred to a SubCommittee and that Sub-Committee will report, not to this House, but to the Drafting Committee which will consider that Report; I am suggesting the names of gentlemen who seem to be interested in that particular clause.
The Honourable Sardar Vallabhbhai J. Patel: Shall we take the second part?
Mr. President: Not now. The House will recollect that yesterday we had elections to fill up vacancies in the- House Committee. Only two nominations were received and there were only two vacancies and therefore these two nominations are now accepted. Those gentlemen are declared elected. They are:
Shriyut Omeo Kumar Das and Shri V. C. Kesava Rao.
Then, the House has now to adjourn. Under one of the rules, the, President has power to adjourn the House for only three days. This adjournment is going to be of much longer duration and this House has to authorise the President to call it whenever he considers suitable, because we expect that the Drafting Committee will prepare the report and I propose to circulate that to the Members well in advance before calling a meeting of the Assembly, so that they may study and consider the Report and then come to the meeting of the Assembly. It it not possible today to anticipate by what time the Drafting '-Committee's report will be available and therefore it is not possible today to indicate' even the approximate date for the meeting. I would therefore ask the House to give me leave to fix a, suitable date when the Report is ready.
The Assembly agreed.
Mr. R. K. Sidhwa: Can you give us any faint idea as to when it is likely to be?
Mr. President: I won't like to commit myself to anything at this stage.
Mr. Tajamul Husain: May I know whether there will be a meeting of the Legislature in the meantime?
Mr. President: It is not for me, but for the Government.
Shri Mohanlal Saksena: Sir, I beg to move that the Assembly do stand adjourned till 'a date to be fixed by the President.
Mr. Tajamul Husain: I second it.
Mr. President: Mr. Mohanlal Saksena says that the House be adjourned to a date to be fixed by the President. I take it that is the wish of the House.
Honourable Members: Yes, yes.
Mr. President: The House, in accordance with this resolution, stands adjourned to a date to be fixed by me.
The Assembly then adjourned to a date to be fixed by the President:
CONSTITUENT ASSEMBLY OF INDIA
Council House, New Delhi, the 25th August 1947.
THE HONOURABLE SARDAR VALLABHBHAI J. PATEL,
ADVISORY COMMITTEE ON MINORITIES,FUNDAMENTAL RIGHTS, ETC.
THE PRESIDENT, CONSTITUENT ASSEMBLY OF INDIA.
In continuation of my letter No. CA/24/Com/47, dated the 23rd April 1947, I have the honour. on behalf of the committee, to submit this supplementary report on Fundamental Rights.
2. We have come to the conclusion that, in addition to justiciable fundamental rights, the constitution should include certain directives of State policy which, though not cognisable in any court of law, should be regarded as fundamental in the governance of the country. The provisions that we recommend are contained in Appendix A.
3. In para 8 of our previous report, we had referred to the recommendation ofthe Fundamental Rights Sub-Committee that the right of the citizen tohave redress against the State in a Court of law should not be fettered by undue restrictions. After careful consideration, we have come to. the conclusion that it is not necessary to provide in the constitution for any further right in this connection than those already contained in clause 22 as accepted by the Assembly in the April-May session.
4. The Constituent Assembly had referred back to us clauses 16, 17 and 18(2) of our previous report. We have re-examined the clauses and our recommendations are as follows:-
We recommend that the latter portion of the clause, namely "nor shall any religious instruction be compulsorily Imposed on them" be deleted in view of clause 16 above which we have recommended for retention. We recommend that the rest of the clause, be adopted by the Assembly.
We have examined the question as to whether the scope of the clause should be extended so as to include State-aided educational institutions also and have come to the conclusion that in present circumstances we would not be justified in making any such recommendation.
5. The Fundamental Rights Sub-Committee in their report to us had recommended the adoption of Hindustani, written either in Devanagari or the Persian script, as the national language of the Union of India, but we had thought it to postpone consideration of the. matter in April 1947. In view of the fact that the Constituent Assembly is already seized of the matter by certain recommendations of the Union Constitution Committee's report, we thin' it unnecessary to incorporate any provision on the subject in the list of fundamental rights.
6. We have also examined numerous amendments in the nature of new provisions, notice of which had been given by several members during the April-May session of the Assembly, and have not been able to accept any of them. Some of them relate to matters Which have already been provided for either in the clauses already accepted by the Assembly or in new clauses which we have recommended in this report; and the other seem to us unnecessary or inappropriate.
FUNDAMENTAL PRINCIPLES OF GOVERNANCE
1. The principles of policy set forth in this part are intended for the guidance of the State. While these principles are not cognizable by any court, they are nevertheless fundamental in the governance of the country and their application in the making of laws shall be the duty of the State.
2. The State shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
3. The State shall, in particular, direct its policy towards securing-
4. The State shall, within the limits of its economic capacity and development, make effective provision for securing the, right to work, to education and to public assistance in case of unemployment, old age, sickness, disablement- and other cases of undeserved want.
5. The State shall make provision for securing just and humane conditions of work and for maternity relief for workers.
6. The State shall endeavour to secure, by suitable legislation, economic Organisation and in other ways, to all workers, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.
7. The State shall endeavour to secure for the citizens a uniform civil code.
8. Every citizen is entitled to free primary education, and It shall be the duty of the State to Provide within a period of 10 years from the commencement of this Constitution for free and compulsory primary education for all children until they complete the age of 14 years.
9. The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the aboriginal tribes, and shall protect them from social injustice and all forms of exploitation.
10. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of 'Public health as among its primary duties.
11. It shall be the obligation of the State to protect every monument or Place or object of artistic or historic interest, declared by the law of the Union to be of national importance, from spoliation, destruction, removal, disposal or export. as the case may be, and to preserve and maintain according to the law of the Union all such monuments or places or objects.
12. The State shall promote international peace and security by the prescription of open, just and honourable relations between nations by the firm establishment of the understandings of international law as the actual rule of conduct among governments and by the maintenance of justice and the scrupulous respect for 'treaty obligations in the dealings of organised people with one another.