CONSTITUENT ASSEMBLY OF INDIA

Monday, the 17th October, 1949

The Constituent Assembly of India meet in the Constitution Hall, New Delhi, at Nine of the Clock, Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair.
MOTION-RE ALLOWANCES OF MEMBERS
Mr. President : We shall first take up the motion standing in the name of Shri Muniswamy Pillay.

Mr. V.I. Muniswamy Pillay : (Madras : General) : Mr. President, with your permission, I beg to move :

"That the following amendments be made in the Rules governing the allowances of Members of the Constituent Assembly of India :-

    1. That in rule (D), relating to daily allowances, in paragraph 4 of the Handbook for Members, and in paragraph 8 (Relating to allowances admissible to Members residing at the place where the Assembly meets) of the said Hand-book, for the figure, brackets and words `Rs. 45 (Rupees forty five)', the figure, brackets and words `Rs. 40 (Rupees forty)' be substituted.
    2. That exception (c) to Note 1 under rule (A) in paragraph 4 of the Handbook for members, be deleted."
Sir, this motion has been brought before the House for certain reasons. Everyone of the members of this august Assembly knows the present general economic condition in India and also the prevailing financial stringency. There has been a cry throughout this country that some savings must be made here and there to help the Government. This motion I have moved shows that the Members who are entitled to Rs.45 per day by way of daily allowance shall forego 11 per cent of it which makes it Rs.40. I know as a matter of fact that this is a small sacrifice. This august Body has go give a lead to the country to improve the economic conditions that prevail today.

Sir, this sum of Rs.40 to which we propose to reduce our daily allowance does not represent our salary. This matter was before the Staff and Finance Committee and the Members thereof felt that this should be placed before the Constituent Assembly. The Members are offering to cut down their daily allowance by 11 per cent. Voluntarily. I contacted many Members of this August Assembly and found that they are all unanimously of the opinion that a five rupee cut in the daily allowance will not be a hardship. In the circumstances I hope the House will give its consent to reduce the daily allowance of Members from Rs.45 to Rs.40.

The second part of my amendment is that exception (c) to Note 1 under rule (A) in paragraph 4 of the Handbook for Members be deleted. As one coming from Madras I know as a matter of fact that there is arrangement for running a restaurant car from Delhi to Balharshah and also from Balharshah to Delhi in the train service. This arrangement gives some convenience to Members for their meals and other things. At one time there was a feeling that this restaurant car was not meeting the demands mostly of the western style. But the present arrangement which is mostly of the Indian type caters both to vegetarians and non-vegetarians. The arrangements made in this respect from Delhi to Madras and back are in my opinion satisfactory. Of course, from Balharshah to Madras, the arrangement is not completely satisfactory, because the restaurant car is detached at Balharshah. But there are first class refreshment rooms and there are caterers who wait on the passengers at every important station and take orders and supply dinner and other things either in the train itself or at the halting places.

These two changes in the rules are therefore necessary and I hope the Members will vote unanimously for this motion.

Mr. President:There is notice of an amendment to this motion by Shri Shankarrao Deo.

Shri Shankerrao Deo (Bombay : General) : I am not moving my amendment, Sir.

Shri H.J. Khandekar (C.P. & Berar : General) *[Mr. President, Sir, I beg to move : my amendment which I have tabled in respect of the motion under discussion which has been moved by Shri Muniswamy Pillay proposing that the present amount of daily allowances to the Members of the Constituent Assembly should be reduced from rupees forty-five to forty only.

The amendment reads :

"That in the amendments to Rule (D), and to paragraph figure, brackets and words Rs.40 (Rupees forty) the figure, brackets and words Rs.20 (Rupees twenty) be substituted."

In my amendment I propose that Members should draw only rupees twenty for their daily allowance. There is a reason, Sir, for my suggesting this amendment and it is this. While we were fighting for freedom, every one of us, and I may say millions of our countrymen made every possible sacrifice that was needed to make our country free. After the country had made a lot of sacrifices through the efforts and kindness of Mahatmaji we achieved Swarajaya and made our country free. But after independence, I am sorry to say, Sir, such an atmosphere has grown in the country that everyone who took part in the freedom struggle wants now to earn more and to lead a pleasant and prosperous life. We are, no doubt, free now; but to retain out freedom it is necessary for every one of our countrymen to make sacrifices, for if we do not make sacrifice for the security of our freedom, and the conditions that are obtaining at present in the country continue further, I am afraid, we may be overtaken by chaos and our freedom may turn out to be a short-lived one. The financial position of the Government of the country is getting worse and worse and we should, therefore, make all possible sacrifices to improve it.

From the very start ours has been an organization of selfless people. There was an amendment in the name of Shri Shankarrao Deo which he has not moved ; I wish he had moved his amendment. The amendment he has sent in is not befitting a person of his standing who in his renunciating spirit has discarded even Kurta and Topi and does not put on Dhoti of the usual length of nine cubits. An amendment from him should have said that the Members should not take even a pie for their allowance.

He is a bachelor, I mean to say he is unmarried. Secondly, he has no family; and thirdly, his dress is much simpler than ours. I say he is a great and selfless person, nay I should say he is a sage or sanyasin. It was not proper for a great and selfless sage like him to have sent in an amendment like the one he has tabled.

Shri M. Satyanarayana (Madras : General) : May I ask if it is proper for us to speak in this strain about any person ?

Shri H.J. Khandekar : I am not speaking anything against hi, rather I am expressing admiration for him; I consider him a selfless persons and a sage and this is what I have said about him. I do not think that there can be any objection against the terms. I have used about him. I only means to say that an amendment from a leader like him should have been to the effect that the Members should not take even a pie as allowance.

Sir, I am a family man ; I have my family and children, whom I have to provide for. I require clothes and house for them. It is, therefore, natural that I may taken some amount as allowance. But at the same time I do wish to make some sacrifice. So, maintaining a balance between our requirements and the sense of sacrifice, I have moved my amendment and every Member of the House who is at least of my status and not thjat of Shri Shankarrao Deo, should accept a minimum allowance of rupees twenty a day. My amendment, Sir, is quite reasonable. Every Member who has so far been making sacrifices should continue to make sacrifice in future also. I believe for a selfless person, my amendment alone is right and every selfless person should accept it.

Outside this House we hear every one exhorting for sacrifice. We hear talks for making sacrifice from the Members of this House and from the Congress platform. Out leaders are also making constant requests to all to make all possible sacrifice for the country. If we, therefore, accept the amendment of Shri Muniswamy Pillay which lays down a nominal sacrifice of rupees five only, it would not be decent and proper for the honourable Members of this House. This sacrifice is not in conformity with the dignity of the Members of the House. If you go to villages and say that you have sacrificed rupees five a day from your income, the people will laugh at you.

Shri Shankarrao Deo : Is there any discussion necessary on this point?

Shri H.J. Khandekar : I am about to conclude my observations now. So in view of what I have said, Sir, my amendment is very proper and I hope the House will accept it.}

(Shri R.K. Sidhva rose to speak)

Mr. President : Is there any discussion necessary ?

Honourable Members : The question may now be put.

Shri R.K. Sidhva : (C.P. & Berar : General) : Sir, I wholeheartedly support the motion move by .

Mr. President : What is the use of this discussion ?

Shri R.K. Sidhva : Sir, the only point that I want to make is that the cut should be voluntary. the Ministers are also having a cut voluntarily. We can unanimously make a declaration in the House that we shall also forego Rs. 5 a day. That will be more graceful than amending the rules and making it compulsory. Nothing else.

Mr. President : Mr. Sidhva's point is that instead of amending the rules, let it be in the form of a resolution which every Member will undertake to follow. His point is that instead of making it compulsory by an amendment of the rules, let it be in the form of a resolution which every Member will accept.

Shri V.I. Muniswamy Pillay : May I say a few words about the amendment moved by Mr. Khandekar. So far as Mr. Sidhva's point is concerned, a resolution practically comes to the same thing.

Mr. President : How will the office prepare the bills ?

Shri R.K. Sidhva : On the basis of the resolution.

Mr. President : No, the office cannot prepare the bills on the basis of a voluntary resolution, unless the Member concerned gives it in writing. Can you do that for every Member here ? Every Member will have to do it individually.

Shri R.K. Sidhva : The salary of the Ministers is regulated by an Act. The act is not amended. Yet the cut has been only voluntary. In this case also similar procedure should be adopted.

Mr. President : The Ministers are so few in numbers and all of them can give it in writing. But we are here more than three hundred. All of us are not present here.

Seth Govind Dass (C.P. Berar : Geeneral) : For one thing, most of our Members are not here. Therefore, let the Assembly decide this question.

Shri V.I. Muniswamy Pillay : Sir, these rules were made by this Assembly and I think it is only proper that a motion should be moved and carried. Mr. Khandekar was referring to the question whether Members were having any extra expenses. I do think that is relevant. When we accepted the original motion in this house, no personalities were concerned or mentioned. There were some members here having their families and servants. Thus having two establishments entailing heavy expenses. At the time the rules were made the Assembly came to the unanimous conclusion by fixing the allowances at Rs. 45. Now, this motion seeks to reduce it by Rs. 5 and make it Rs. 40 and instead of the circutous route via Bombay and paying more money from the Government, we are providing for the shortest route and paying the amount which is actually due.

Mr. President : I will first put Mr. Khandekar's amendment to the vote. The question is :-

"That in the amendments to Rule (D) and to paragraph 8, for the proposed figure, brackets and words Rs. 40 (Rupees forty) the figure, brackets and words Rs. 20 (Rupees twenty) be substituted."

Mr. President : The question is :-

"That the following amendments be made in the Rules governing the allowances of Members of the Constituent Assembly of India :-

    1. That in rule (D), relating to daily allowance, in paragraph 4 of Handbook for Members, and in paragraph 8 (relating to allowances admissible to Members resident at the place where the Assembly meets) of the said Handbook for the figure, brackets and words Rs. 45 (rupees forty five) the figure, brackets and words Rs. 40 (rupees forty) be substituted.
    2. That exception (c) to Note 1 under rule (A) in paragraph 4 of the Handbook for Members, be deleted."
The motion was adopted

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DRAFT CONSTITUTION (contd.)

Article 59


 






Mr. President : Then we will take up the consideration of the articles on the Order Paper. Article 59, amendment No. 445.

The Honourable Shri K. Santhanam (Madras : General) : May I suggest that we take up the articles for which amendments were circulated earlier. These amendments were given to us only this morning.

Mr. President : They were distributed to Members yesterday evening when we were sitting in the House.

Shri T.T. Krishnamachari : (Madras : General) : Mr. President, Sir, the amendments to articles 59, 62, 141, 175 and 13 would mean reopening the articles already passed. May I suggest that the permission of the House be taken ?

Mr. President : Does the House give leave to reopen these articles ?

Honourable Members : Yes.

Shri T.T. Krishnamachari : Sir, I move

"That for sub-clause (b) of clause (1) of article 59, the following sub-clause be substituted :-

(b) in all cases where the punishment or sentence is for an offence under any law relating to a matter to which the executive power of the Union extends" Sub-clause (b) of the original article 59, which relates to the powers of the President to grant pardons, reads thus :- "(b) in all cases where the punishment or sentence is for an offence under any law relating to a matter with respect to which Parliament has, and the Legislature of the State in which the offence is committed has not, power to make laws." This means that the concurrent field would be left in a very nebulous position. In article 60 it is provided that in matters where Parliament so decides the executive power of the Union will extend to the States in respect of subjects falling within the concurrent field. This position will be left nebulous. Therefore the amendment seeks to remedy that defect, making the power of the President to grant pardon to extend to all matters to which the executive power of the Union extends.

There will have to be a consequential amendment in regard to article 141 where the power of pardon is given to the President, which I shall move presently if this amendment is approved by the House.

The Honourable Shri K. Santhanam : Sir, I have tabled an amendment to this. I could not send it earlier.

I move :

"That in amendment No. 445 of List XX in the proposed sub-clause (b) of clause (1) of article 59, after the words `offence under any law' the words ‘made by Parliament’ be inserted."

I understand the purpose of amendment No. 445, but it goes much wider tan its intention, because the executive power of the Union extends not only to laws made by Parliament but also to some of the laws made by the legislature of a State. For instance, in articles 234 and 234A which deal with the giving of directions, the executive power of the Union extends to some laws made by the Legislature of a State. Yesterday, in the matter of financial emergency, we have provided that the executive power of the Union extends to matters relating to money Bills and financial matters. We do not want that in the case of offence under laws made by a State Legislature the right of pardon should accrue to the President. Therefore I want to limit it to offences under any law by Parliament. The point is when Parliament makes any law under the concurrent List and gives executive power to the Union Executive then the power of pardon should be with the President. But we do not want to give the power of pardon to the President even when the executive power extends t laws made by a State Legislature. Therefore, I think the amendment is too wide and I want to limit it to laws made by Parliament.

I am afraid the Drafting Committee who are naturally very tired are trying to introduce amendments drafted in haste. They have had time to scrutinise them and we have had no time either to scrutinise them.

Shri T.T. Krishnamachari : May I on a point of order say that the honourable Member is perfectly right to speak about himself. If he has had no time, we agree. But I do not think he ought to cast any aspersions on the Drafting Committee as not having had any time to scrutinise them. I would like to say that we have scrutinised every amendment. If we did not have the time to scrutinise these amendments we would not have tabled them.

Shri B.M. Gupte : (Bombay : General) : Saying that they had no time is not casting any aspersions on the Drafting Committee.

The Honourable Shri K. Santhanam : I am not disputing their intention or ability, but I am saying that they are hurried which is a matter of fact.

Mr. President : Now we are at the fag end of the clauses and over four or five clauses we need not quarrel.

The Honourable Shri K. Santhanam : But some of the amendments tabled are matters of substance which, I think, will have to be debated at length. I leave it to you, Sir, but so far as this is concerned I think the words " made by Parliament" are absolutely essential to make the meaning precise and clear.

The Honourable Dr.B.R. Ambedkar (Bombay : General ) : Sir, the amendment moved by my Friend Mr. Santhanam is quite unnecessary. It has been brought in by him because he has forgotten to take account of the provisions contained in article 60. Article 60 says that the executive power of the Union shall extend to all matters and respect to which Parliament has power to make laws, provided that it shall not so extend, unless the Parliament, law so provides, to matters with respect to which the Legislature of the States has also power to make laws that is, matters in the Concurrent List. Therefore, the amendment moved by my Friend Mr. Krishnamachari in sub-clause (b) of clause (1) of article 59 cannot go beyond the power of Parliament to make laws.

The Honourable Shri K. Santhanam : The article does not limit it only to those laws; it can also extend further.

The Honourable Dr. B.R. Ambedkar : No, it cannot extend further. The necessity for bringing an amendment in sub-clause (b) is this: the executive power of the centre extends not only to matters enumerated in List I but may also extend to matters enumerated in List III. And the position of the Drafting Committee is this, that whenever a law is made by Parliament, in respect of any matter contained in List III if the law confers executive power on the Centre, the power of the President to grant reprieve must extend to that law. Therefore, these words are necessary. Mr. Santhanam's amendment is absolutely unnecessary and out of place because article 60 covers the point.

Mr. President : The question is :

"That in amendment No. 445 of List XX, in the proposed sub-clause (b) of clause (1) of article 59, after the words `offence under any law' the words `made by Parliament' be inserted."
 
 


The amendment was negatived.


 











Mr. President : The question is :

"That for sub-clause (b) of clause (1) of article 59, the following sub-clause be substituted :-

      1. in all cases where the punishment or sentence is for an offence under any law relating to mater to which the executive power of the4 Union extends;"
The Amendment was adopted.

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Article 62


 



 
 
 
 
 

Shri T.T. Krishnamachari : Sir, I move :
"That in clause (5) of article 62, for the words `who from the date of his appointment is, for a period of six consecutive months, not a member', the words `who for any period of six consecutive months is not a member' be substituted."

This is a purely verbal alteration in regard to the qualification, or rather the disqualification, of Ministers. If my memory is correct, I think this wording was pointed out to us as being more suitable by my honourable Friend Mr. Gupte at the time we passed this article. And I think Dr. Ambedkar had in mind examining the position. We feel this is the more appropriate wording and therefore we have suggested this amendment.

Incidentally I might mention that there is an amendment tabled by my honourable Friend Mr. Santhanam which may be quite correct, but it is only a matter of variation again of the language. Really the amendment is not a matter of substance but putting the thing in the precise form so as to avoid any mistaken interpretation that may arise in the future.

The Honourable Shri K. Santhanam : It is quite correct as my Friend Mr. Krishnamachari has said that my amendment is only to make matters clear because, as the official amendment stands, there is no clear indication where to begin the period of six months and how to count it. It may also be construed – though it may not appear a very correct interpretation – that the period may be counted even before he became a Minister, because it may be said that if a person is not a member of Parliament he cannot be appointed a Minister. Our object is that a person who is not a member of Parliament may be appointed Minister, but after that appointment he must become a member within six months and must continue to be a member afterwards. Therefore my amendment is :

"That in amendment No. 446 of List XX, in clause (5) of article 62, for the proposed words who for any period of six consecutive months is not a member the words who after the date of his appointment, is for any period of six consecutive months not a member, be substituted."

When we changed from the wording of the Government of India Act 1935, I remember this was discussed by us and we put the words "from the date of appointment" as the beginning of the period. But in interpretation it may mean that afterwards he may cease to be a member after six months and such a case may not be covered. So I agree that the amendment is desirable. But if the words "after the date of appointment" are put in it will become much more precise.

Shri H.V. Kamath : (C.P. & Berar : General) : May I suggest that for the word "after" which Mr. Santhanam suggests, the word "from" would be more appropriate? "After" is not correct.

The Honourable Shri K. Santhanam : "From" may mean that for the first six months he should be member and afterwards if he ceases to be member he may continue to be minister. That is the lacuna which we are trying to fill up.

Shri T.T. Krishnamachari : There is only one point I would like to mention in respect of Mr. Santhanam's amendment. His amendment is practically the same, except for a minor difference, namely, in a position where a person is a Minister who after having been elected duly and later on during four or five months after the original election some irregularity is found in the election and the election is set aside. Mr. Santhanam's amendment would not cover such a case. So I would suggest that we should err on the safe side and that the House should accept the amendment moved by me.

The Honourable Shri K. Santhanam : I do not press my amendment.

The amendment was, by leave of the Assembly, withdrawn.

Mr. President : Then I put No 446. The question is :

"That in clause (5) of article 62, for the words who from the date of his appointment is, for a period of six consecutive months, bot a members the words who for any period of six consecutive months is not a member be substituted."
 
 


The amendment was adopted.

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Article 147


 



Shri T.T. Krishnamachari : I move No. 447, which reads thus :

"That in article 141, for the words with respect to which the Legislature of the State has power to make laws the words to which the executive power of the State extends be substituted."

I have already explained the position while moving amendment No. 445 which the House was good enough to accept. This merely seeks to remedy the position so far as the Governor's powers of granting pardon are concerned.

Mr. President : The question is :

"That in article 141, for the words with respect to which the Legislature of the State has power to make laws the words to which the executive power of the State extends' be substituted."
 


The motion was adopted.

______________

Article 175


Shri T.T. Krishnamachari : Sir, I move :

"That to article 175, the following proviso be added :-

"Provided further that the Governor shall not assent to, but shall reserve for consideration of the President any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that court is by this Constitution designed to fill." The reason why we have to bring in this amendment at this stage is this. An amendment had been tabled by Dr.Ambedkar – No. 3406 of Volume II of amendments to amendments – seeking to recast the 4th Schedule, which the House has now decided to drop, and therefore Dr. Ambedkar could not move it. In that amendment, in clause (7) provision had been made in regard to the substance of the proviso which I have now moved. If the 4th Schedule had been there, this amendment would not have been necessary. At the time we considered article 175 we were not quite sure whether the 4th Schedule will be a part of the Constitution or not. That is my explanation for bringing forward this amendment.

On the merits, the house will recognise that the high courts happen to be, so far as appointment had jurisdiction and all that is concerned, a mater exclusively of Central competence. But there are matters in which the Provinces also can interfere and this proviso is intended to protect any hasty action by a province in regard to the powers of the High Court and it directs that the Governor should reserve such Bills for the assent of the President. The matter is by itself very simple and follows a principle accepted in the body of the Constitution. I think there can be no serious objection to this amendment.

Shri H.V. Kamath : Mr. President, I would request my Friend Mr. Krishnamachari to throw some light on an obscure aspect of the matter, obscure to me. I do not follow his argument when he says that some measures or Bills might be introduced which might endanger the position. First of all, of such Bills were going to be introduced would it not be ultra vires of the legislature at its very inception, ab initio? Will not the introduction of the Bill be prevented by the Constitution ? Then again, I have some objection to the language used in the last portion of this amendment. It is very cumbrous. It could be simplified with advantage to all concerned. Instead of saying, "as to endanger the position … and all that, will it not be enough to say " so derogate from the powers of the High Court conferred upon it by (or under) the Constitution"? That would bring out the meaning of the article clearly. I do not see any necessity for this cumbrous verbiage towards the end of the amendment.

The Honourable Dr. B.R. Ambedkar : tte clause moved by my friend Mr. Krishnamachari is of old standing. It occurs in the instrument of instructions issued to the governor of the provinces under the Government of India Act, 1935.

Paragraph 17 of the Instrument of Instructions says :

"Without prejudice to the generality of his powers as to reservation of Bills our Governor-General any Bill or any of the clauses herein specified, i.e.

(b) any Bill which in his opinion would, if it became law so derogate from the powers of the High Court as to endanger the position that that Court is, by the Act, designed to fulfil." This clause is the old Instrument of Instructions the Drafting Committee had bodily copied in the Fourth Schedule which they had proposed to introduce and it will be found in Vol. II of the amendments at pages 368-369. In view of the fact that the House on my recommendation came to the conclusion that for the reasons which I then stated it was unnecessary to have any such schedule containing instructions to the Governors of the States in Part I, it is felt by the Drafting Committee that, at any rate, that particular part of the proposed Instrument of Instructions, paragraph 17, should be incorporated in the Constitution itself. Now, Sir, the reasons for doing this are these :

The High Court are placed under the Centre as well as the Provinces. So far as the organisation and the territorial jurisdiction of the High Court are concerned, they are undoubtedly under the Centre and the Province have no power either to alter the organisation of the High Court or the territorial jurisdiction of the High Court. But with regard to pecuniary jurisdiction and the jurisdiction with regard to any matters that are mentioned in List II, the power rests under the new Constitution with the States. It is perfectly possible, for instance, for a State Legislature to pass a Bill to reduce the pecuniary jurisdiction of the High Court by raising the value of the suit that may be entertained by the High Court. That would be one way whereby the State would be in a position to diminish the authority of the High Court.

Secondly, in enacting any measure under any of the Entries contained in List II, for instance, debt cancellation or any such matter it would be open for the Provinces to say that the decree made by any such Court or Board shall be final and conclusive, and that the High Court should have no jurisdiction in that matter at all.

It seems to me that any such Act would amount to a derogation from the authority of the High Court which this Constitution intends to confer upon it. Therefore, it is felt necessary that before such law becomes final, the President should have the opportunity to examine whether such a law should be permitted to take effect or whether such a law was so much in derogation of the authority of the High Court that the High Court merely remained a shell without any life in it.

I, therefore, submit that in view of the fact that the High Court is such an important institution intended by the Constitution to adjudicate between the Legislature and the Executive and between citizen and citizen such a power given to the President is a very necessary power to maintain an important institution which has been created by the Constitution. That is the purpose for which this amendment is being introduced.

Shri H.V. Kamath : What about my suggestion to simplify the language?

The Honourable Dr. B.R. Ambedkar : I cannot at this stage consider any drafting amendments.

Shri H.V. Kamath : All right : Do it later on.

Mr. President : I will now put it to vote.

The question is :

"That to article 175 the following proviso be added :

"Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that court, is by this Constitution designed to fill."
The amendment was adopted

____________

Article 13


 



Mr. President : There is a previous amendment of which notice has been given – amendment No. 415.

Shri T. T. Krishnamachari : I do not propose to move it.

Sir, I move.

"That in clause (2) of article 13, after the word ‘defamation’ the word ‘contempt of court’ be inserted."

Sir, the House will recognise that amendment No. 415 was originally tabled, as we had been advised by our legal advisers that there will be certain difficulties in regard to the exception in sub-clause (2) of article 13 in so far as the operation of sub-clause (a) of clause (1) of article 13 is concerned. But, Sir, a number of honourable Members of this House spoke about this amendment to Members of the Drafting Committee and they felt that it is not an amendment merely seeking to remedy a lacuna but altering the character of the clause in its entirety. They objected to two words public order being included. The idea, at any rate, of a part of that amendment was to cover one category of what might be called lapses in the exercise of freedom of speech and expression, namely, a person might be speaking on a matter which is sub judice and thereby interfere with the administration of justice. That is a category of offences which is not covered by the exceptions mentioned in clause (2) or article 13, so far as the right of freedom of speech and expression is concerned. Honourable Members of this house will realize that it was not our intention to allow contempt of court to take place without any let or hindrance, and it is not our idea that sub-clause (a) of clause (1) of article 13 should be used for this purpose.

We, therefore, felt, Sir, that we would restrict ourselves to merely remedying a lacuna rather than extending the scope of the exceptions mentioned in clause (2) and that is why we have decided to drop the original amendment 415 and we have tabled amendment No. 449 in which contempt of court will figure on a par with libels, slander, defamation or any mater which offends against decency or morality, or which undermines the security of, or tends to overthrow, the State. Actually, contempt of court will figure with the first three and it is a very necessary protection so far as our law courts are concerned, and I hope the House will have no objection to accepting this amendment.

Mr. President : There is an amendment by Prof. Saksena. I do not understand it. Will he explain it ?

Prof. Shibban Lal Saksena : (United Provinces : General) For contempt of court read or contempt of court. That has been omitted by inadvertence.

Shri T.T. Krishnamachari : `Contempt of court or any matter' : That comes later. Technically, Sir, there ought to be a comma after "defamation."

Pandit Thakur Das Bhagava (East Punjab : General) Mr. President, with your permission I propose to move my amendment No. 435 which was intended to amend No. 415 but this amendment has not been moved. My amendment seeks to substitute for the words any law the words any reasonable law. That was the old amendment in respect of amendment No. 415. Now instead of 415 Mr. T.T. Krishnamachari has moved an amendment adding the words contempt of court after the word defamation instead of the words morality, public order or the administration of justice and when I gave the amendment it was in view of the words public order or the administration of justice. All the same my amendment does not lose it value in so far as I wanted that the article 13 should be amended. The change in the amendment of Mr. Krishnamachari makes no difference to me. So with your permission I beg to move :

"That for the words any law the words any reasonable law be substituted."

An Honourable Member : Law is always reasonable.

Pandit Thakur Das Bhargava. The law has been defined only a measure which is passed by the legislature. The law can be both reasonable as well as unreasonable. The law that all blue eyed persons be killed will be a good law though an unreasonable one. We are competent to pass any law which is reasonable or otherwise. We certainly pass laws through ignorance, passion, panic and prejudice which look reasonable to some and unreasonable to others. Therefore, the courts have been given the power to see whether the laws are reasonable or otherwise. You have already passed under article 13 certain amendments to the original article 13 which when amended said that the courts are empowered to see whether any restrictions are reasonable or not. The legislature is competent to pass any kind of law and the courts are therefore empowered in certain matters to see that the powers exercised by the legislature are reasonable. So far as the fundamental aspect is concerned. I do not think any person shall doubt that the courts can be armed with a power like this because we have already armed the courts with these powers.

Now coming to the amendment of Mr. T.T. Krishnamachari he wants that the words contempt of court be added after the word defamation in article 13(2) and the clause would read thus :

"Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law, relating to libel, slander, defamation, contempt of court, or any other matter which offends against decency or morality or tends to overthrow the State."

In regard to this contempt of court, my contention is this, that these words need not be added to article 13, because as a matter of fact contempt of law as we understand it consists of a certain piece of conduct not necessarily with freedom of speech, because when you read the law relating to contempt of court, you will find in section 480 of the Criminal Procedure Code that usually the contempt of the ordinary courts of law consists in the infringement of sections 175, 178 and 179 and sections 180 and 288 of the Indian Penal Code. All these sections relate to certain pieces of conduct of the individual. For instance section 175 relates to non-taking of the summons from a court peon, omission to produce document; se3ctions 178, 179 and 180 relate to the refusal to reply to question put by the Court or refusal to take any oath; and similarly section 288 applies when there is an interruption of any judicial proceedings or when there is any insult offered to the court; insult can be offered in many ways and not necessarily by way of speech.

Therefore my submission is that the essence of any of these sections is that a wrong motion or wrong conduct or attitude is penalized and not speech by itself. The courts are empowered to take cognizance of the act of contempt and there and then deal with these offences. My first contention, therefore, is that these sections 175, 178, 180 and 288 which are the subject-matter of contempt as envisaged in section 480 do not relate to the freedom of speech at all and therefore, this amendment is not germane to the subject of the freedom of speech and expression

Moreover, Sir, we have already passed article 118 in this Constitution. It relates to the powers of the Supreme Court and in so far as the contempt of the Supreme Court is concerned it is already covered by law and the Supreme Court is perfectly entitle to deal with cases of contempt. In regard to other courts, Sir, the law is generally contained either in the law of defamation or in Act 12 of 1926. Apart from visible contempt committed in the view of the courts as envisaged in section 480. Criminal Procedure Code. Comments of judicial acts of courts and magistrates are in the nature of technical contempt, and if you want to change the law, relating to such contempt, if you want to take away the powers of freedom of speech, you must enact that f the legislature passes and such law, it must be subject to the scrutiny of the courts.

As far defamation under which such contempt usually comes it is covered by the provisions in the Penal Code. This question of defamation is a very intricate one. In so far as civil defamation is concerned truth is absolute defence but so far as the criminal defamation is concerned the greater the truth the greater the defamation. When you arm the legislature with such plenary powers to make any law and that law is not subject to the scrutiny by the courts, it means that the legislature is given a very free hand and the freedom of speech will be reduced to a mere farce. We had lately an Act which was enacted by the previous Government in so far as they armed the courts to punish persons who made comments in respect of certain judgments. It was called the Judicial Officers' Protection Act and the provisions of that Act were very wide and sweeping. It may be that the contempt of courts may include cases of such contempt also. In regard to such contempt cases, which are technically contempt cases and which are not committed in the view of the court, there and then, they may come within the purview of the contempt law and as such should be controlled and their interpretation should be made amendable to the jurisdiction of the court. If we do not do that, my fear is that the liberty of freedom of speech and expression will practically become a nullity.

If you kindly see the six clauses of article 13, you will find the words reasonable restrictions. But in clause (2) there are no such words reasonable restrictions, which means that a legislature has been given full powers to place any kind of restriction, reasonable or unreasonable. When the subject matter of clause (2) was only confined to certain matters, I could understand that the word reasonable might have been omitted. Even then so far as the question of sedition was concerned when the original article was before us we amended this law and we saw that the word sedition did not cover cases which it ought not to have dealt with. Therefore we changed the words thus : which undermines the security of or tends to overthrow the State, and because these words were changed, the word, "reasonable" was not put in clause (2). Now clause (2) will not only deal with ordinary matters but the question of freedom of speech in regard to the executive authority of the courts is being introduced in it.

Therefore, since we are enlarging the scope of clause (2) it stands to reason that we may also enlarge the scope of the restriction upon the power of the legislature in so far as, if we introduce the word "reasonable" before the word law, then we will attain our object and we will also attain this object of restricting the scope of the legislature in defining defamation, libel, slander, etc. or any other matter which offends again decency or morality. All these matter will be rationalized to a certain extent and instead of reducing the rights and privileges of the citizens of the Republic it would be better if we enlarge their liberties and I therefore suggest that instead of the words any law the words any reasonable law may be substituted. In case we do not agree to amend it further by the addition of these words, my fear is that again we will be going forward in the process which we are unfortunately after, viz. whatever has been given in article 13 may be taken away in some form or other. We have already done this by enacting article 24, articles 244, 278, 307 and other articles.

Therefore, my humble submission is that in regard to this most important matter relating to freedom of speech and expression we should so arrange matters that what has been given is not taken away and whatever powers we have given to the legislatures, they may be curtailed to this extent that they may be subject to the scrutiny of the courts. After all, the courts are as much the creatures of the Government as the legislature. Therefore, there is no point in having suspicion against the authority of the courts when you yourself are giving the legislature the power of arming the courts to hold persons guilty of contempt or proceeding against them in regard to contempt of court, in executive manner. You are by the amendment giving the power to the courts to see whether the law enacted in respect of contempt of court is good or not. As a matter of fact, you are helping the courts in one way and enlarging the authority of the courts in another way. Therefore, I submit that this amendment of mine should be accepted by the House.

Shri R.K. Sidhva : Mr. President, Sir, this amendment relates to article 13 clause (1) (a). Clause (1) (a) says, All citizens shall have the right to freedom of speech and expression. Clause (2) imposes a restriction on making speeches and using any words which may be libel, slander or defamation. My honourable Friend Mr.T.T. Krishnamachari wants that the words contempt of court should be inserted after the word defamation.

First of all, let me state that this is not a consequential amendment. This is a fundamental proposition that is being brought before this House. We know, Sir, about this contempt of court, how the Judges have been exercising their powers in the past, as if they are infallible, as if they do not commit any mistakes. Even third class magistrates, first class magistrates and sub-judges have been passing such strictures which even High Court Judges themselves sit as the prosecutors. They themselves want the judiciary and executive functions to be separated. In cases of contempt of court, the High Court Judges is the prosecutor and he himself sits and decides cases in which he himself has felt that contempt of court has been committed. We have many cases before us. I will quote the illustration of two cases, Mr. B.G. Horniman, the Editor of "Sentinel" and Mr. Devadas Gandhi, Editor of the Hindustan Times. the Allahabad High Court passed strictures against the very reasonable comments made by these two persons. They preferred to go to the jail and went to jail rather than submit to the ex parte decision of the High Court. I cannot understand why my lawyer friends there are very lenient to the judges. After all, Judges have not got two horns; they are also human beings. They are, liable to commit mistakes. Why should we show so much leniency to them? We must safeguard the interest of the public. If a citizen by way of making a speech condemns the action of a third class magistrate or a fourth class magistrate who has passed strictures upon the public, is he not entitled to make a speech and comment upon it ?

It is unfair that in the matter of contempt of court, this clause is to be added. I strongly resent it. It is very unfair that the citizen after having been given some rights, and having been restricted by so many clauses, you want to further restrict it by inserting contempt of court. In contempt of court, we know when certain extraordinary things happen, High Court judges have some sort of power. Here, you have the power right down from the magistrate up to the High Court judges. Even there, I say the High Court judges are not infallible ; they have also committed so many mistakes. They do not want any comment to be made against a High Court judge when comment was necessary in the interest of the public life.

With these words, Sir, I feel that at this juncture the Drafting Committee may drop these words contempt of court which has always been a bone of contention both on the part of the newspapers and the public. I want to know in what constitution contempt of court is being inserted. My honourable Friend Mr. Alladi Krishnaswami Ayyar will guide whether in any constitution in the world contempt of court is included. That power already exists with the judges. Why do you want to put that in the Constitution and make the Judge above everybody? You want to make him a Super God.

Mr. President : This has nothing to do with courts. If you read the article you will see that it says that nothing in sub-clause (a) shall effect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to contempt.

Shri R.K. Sidhva :It relates to the citizens. The citizens shall have the right to freedom of speech and expression provided they do not make a speech which ma be libel, slander, defamation or contempt of court. A judgment may have been passed by a court……

Mr. President : A law may be passed which will prevent defamation of a private individual; but a law may not be passed which will prevent defamation or libel of a court; that is what your argument comes to.

Shri R.K. Sidhva : I do not want any law to be made in respect of contempt of court. I am very clear on this point because in my past experience about contempt of court, from the lowest to the highest court judges have not been impartial. Therefore I am opposed to this amendment.

Mr. Naziruddin Ahmad : (West Bengal : Muslim) : Mr. President, Sir, a warm controversy hangs round Contempt of Court. I submit that the High Court should have the power to punish for contempt in a summary manner. The reason is that the trial in a case must be conducted in an atmosphere of calm without any prejudice, on the evidence alone. If there is no power to proceed for Contempt of Court, any one may start a newspaper trial of a case pending in a Court or it may be that he indulges in public harangues about the merits of a case and thereby seriously prejudice the fair and impartial trial of a case. It is for this reason that contempt of Court has found a place in our statute book. There is an act of 1926 namely the Contempt of Courts Act. There are some contempts which can be punished by event he smallest magistrates. Mr. Sidhva described him as the Fourth Class Magistrate; there is no such thing at all. If there is a man who interrupts the proceedings of a Court, he should be punished summarily by any Court. There are may other serious kinds of contempt which could be punished only the High Court.

It is said that the High Court becomes the complainant or the prosecutor. I do not think so. Really, the dignity of the Court is impaired or its impartiality is challenged and the High Court alone should have the power to punish for contempt. To quote an example, if we show contempt to the President, the President alone should have the summarily power to deal with it. It is by way of analogy that Contempt of Court should be a part of the law. It is already a part of the law, Pandit Thakur Das Bhargava pointed out that we have already provided for Contempt of Court to be dealt with by the Courts in another place and his only objection to this amendment is whether it should find a place in clause (2) of article 13. It is very difficult on the spur of the moment to find out what is the effect of the provision we have already made. We are changing our mind so often and introducing new amendments of a scrappy character so often that it is often impossible to find out what an amendment means. It would, at the most, be overlapping. If there is overlapping that would not be very much of a fault in this Constitution as there is plenty of overlapping in other places. I submit, therefore, that the amendment should rather be accepted.

With regard to Pandit Thakur Das Bhargava's amendment that the words any law should be substituted by the words any reasonable law, it would be useless in practice. If any law is to be passed, it is to be passed by the Legislature. It has always to be assumed that the Legislature passes a law which is, or at least it considers to be reasonable and not unreasonable. After all, a Legislature is absolutely free. The Legislature cannot contravene any constitutional limitation. But the word reasonable cannot be a condition. that condition must be assumed in their very power, and the fact that elected men will make laws necessarily implies that the laws made are reasonable. But supposing we introduce this expression and make it reasonable law it will have no binding force on the Legislature. The word reasonable would not in the least curtail their power or in the least fetter their discretion. In these circumstances, the word reasonable would be absolutely unnecessary and quite meaningless in practice, and so the amendment should not be accepted; and so far as the Contempt of Court amendment is concerned, for the time being it should be accepted, subject of course to further consideration by the Drafting Committee that there is no overlapping in two places.

Shri B. Dass : (Orissa : Genral) : Sir, I seek your protection from the tyranny of the Drafting Committee. The Fundamental Rights were passed by us with great solemnity – I am not a lawyer, but being a common man I understand the Fundamental Rights given to us after great consideration in so many Committees and after serious consideration by this House. What has happened for the last two or three days that we are suffering from the tyranny of the Drafting Committee ? On the 15th we received amendments to article 13 by the same two gentlemen – the Honourable Dr. Ambedkar and Mr. T.T. Krishnamachari – and today Mr. Krishnamachari has moved another amendment. Last night we got the present amendment which the House is concerned. Fundamental Rights cannot suddenly be changed. If today was not the last day of this house to consider further amendments, article 304 would have applied to any changes in the Constitution; for any changes to the Constitution. it says :

"An amendment of the Constitution may be initiated by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting etc."

When Dr. Ambedkar himself as Chairman had provided in Part XVI – Amendment of the Constitution – with such solemnity, how does the change taken place overnight ?

I am not one who thinks very high of the judges particularly as they are trained under the British tradition and they have misapplied justice and kept us down. I have not read in any place of public utterances that the High Court Judges or other court Judges or Magistrates in India have changed since August 1947 and have a better realization of their function and duties. If Dr.Ambedkar, ten years hence on his retirement, writes a book on the vagaries of Courts, about contempt of court, he will see his particular partially overnight to give certain more powers to these magistrates and judges were not called for. It will be a very wonderful book where many penniless lawyers became judges and regulated and controlled the affairs and rule of the allien Raj by the world contempt of court and the chicken-hearted lawyers got frightened at them.

Mr. President : So far as High Courts are concerned, all parties and all people in this country have always held them in high esteem and it is no use casting as persons on them generally. There may have been individual Judges who may have erred, but we should not cast aspersions on the judiciary as a whole.

Shri B. Das : Sir, I bow to your ruling. I wish my heart becomes pure and I respect the Judges in India for their eminent position and for their due discharge of their duties. However, I seek your protection. If I have my personal view, I will oppose any tempering with any articles in the Fundamental Rights to the Third Reading of this Constitution. We must have some sanctity over change of Fundamental Rights. If it were such a mistake, how is it that it was not spotted on the 15th of this month? It is spotted only yesterday. Dr. Ambedkar has been described as the Manu of this century. Do Manus change overnight ? In that case everyone of us will be Manu and not Dr. Ambedkar alone. I think no harm will be done if this amendment to article 13 does not take place. Let Parliament meet, let Dr. Ambedkar himself bring out a Bill and we will examine it on its merits. But why tamper with Fundamental Rights? That is my submission and I do hope, Sir, as our President, you will be pleased to give a ruling over such matters as amendments to Fundamental Rights.

Shri Krishna Chandra Sharma : (United Provinces : General ) : Mr. President, I am jealous for the dignity and respect of the Judges. I hold that in democracy judges should be respected by all classes of people and there should be dignity attached to the person and their functions. But one thing I object to is that this contempt of court addition is unnecessary because the article has the words existing law and there is a provision in Cr. P.C. Section 480, which deals with contempt of Court during the proceedings when the Court itself has the power to punish the man committing the contempt. There is another contempt of court Act which empowers the High Court to take cognizance of any contempt of court anywhere. Therefore in view of the existing provisions – and I think they are sufficient to deal with the situation – no more protection is necessary. This addition is therefore unnecessary and undesirable.

The Honourable Shri K. Santhanam : Sir, I do not think the argument of the last speaker is correct because article 13 will modify the existing law. Therefore provision for contempt of court is necessary but my difficulty is that under article 13(2) every State Legislature is given the power to enact a law relating to contempt of court. If dozen legislatures enact dozen different laws relating to contempt of court. I think the position, especially of newspapers will become very difficult.

For instance, if the Madras Legislature makes a law relating to contempt of court, it will apply, of course, according to its jurisdiction, only to the papers published in Madras. But it will not apply to all papers coming from anywhere in India and circulating in Madras, and that will happen in every province. So far as defamation, slander, etc. are concerned, they are actionable wrongs which are put in the Concurrent List. When there is any confusion, Parliament can step in and bring about uniformity. But in the case of contempt of court, I do not think it is open to Parliament to bring about uniformity. Therefore, if they want to put it in article 13 there must be a separate item in the Concurrent List so that at any time Parliament can step in and bring about some uniformity of law. Otherwise, the insertion of the words contempt of court here, I suggest under clause (2) of article 13 will result in different laws of contempt of court and cause confusion throughout the country. I suggest that steps may be taken to at least reserve powers to Parliament either to make laws for contempt of court, or to see that laws relating to contempt of court are brought into some kind of uniformity. It may be put in the Concurrent List, if the words "contempt of court" are inserted in clause (2) of article 13.

Mr. President : Would you like to reply, Dr. Ambedkar ?

The Honourable Dr. B.R. Ambedkar : Si, this article is to be read along with article 8.

Article 8 says –

"All laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are inconsistent with the provision of this Part, shall, to the extent of such inconsistency be void."

And all that this article says is this, that all laws, which relate to libels, slander, defamation or any other matter which offends against decency or morality or undermines the security of the State shall not be affected by article 8. That is to say, they shall continue to operate. If the words "contempt of court" were not there, then to any law relating to contempt of court article 8 would apply, and it would stand abrogated. It is prevent that kind of situation that the words "contempt of court" are introduced, and there is, therefore, no difficulty in this amendment being accepted.

Now with regard to the point made by my Friend Mr. Santhanam, it is quite true that so far as fundamental rights are concerned, the word "State" is used in a double sense, including the Centre as well as the Provinces. But I think he will bear in mind that notwithstanding this fact, a State may make a law as well as the Centre may make a law, some of the heads mentioned here such as libel, slander, defamation, security of Sate, etc., are matters placed in the Concurrent list so that if there was any very great variation among the laws made, relating to these subjects, it will be open to the Centre to enter upon the field and introduce such uniformity as the Centre thinks it necessary for this purpose.

The Honourable Shri K. Santhanam : But contempt of court is not included in the Concurrent List or any other list.

The Honourable Dr. B.R. Ambedkar : Well, that may be brought in.

Mr. President : Then I will put these two amendments to vote. As a matter of fact, Pandit Thakur Das Bhargava's amendment is not an amendment to Mr. Krishnamachari's amendment, it is independent altogether. I will up them separately. First I put Mr. Krishnamachari's amendment to vote.

The question is :

"That in clause (2) of article 13, after the word defamation the words contempt of court be inserted."
 


The amendment was adopted

-------



Mr. President : Then I will put the amendment of Pandit Thakur Das Bhargava.

The question is :

"That at the end of the amendment No. 415 of List XVIII (Second Week), the following be added :

That for the words any law the words any reasonable law be substituted."
 
 

The amendment was negatived.


 



Mr. President : Then we take up the new article 302AAA, i.e., amendment No. 450. Mr. Santhanam has made a suggestion that in order to complete the amendment which has just been passed. "Contempt of Court" must be included in the Concurrent List, and I think it is consequential and we had better take that thing.

The Honourable Dr. B.R. Ambedkar : I will move an amendment straightaway, Sir, I move :

"That after entry 15 in the Concurrent List, the following entry be added :

15A. Contempt of Court."

Mr. President : I do not think there can be any objection to that.

Mr. Nazirudin Ahmad : There may be many more such things.

Mr. President : May be, but they will come up in time.

So, I will put this to vote.

The question is :

"That after entry 15 in the Concurrent List, the following entry be added :-

15A, Contempt of Court."
 
 

The amendment was adopted.

Entry 15A was added to the Concurrent List.

____

New Article 302AAA


 


Mr. President : Then we take up Amendment No. 450.

Shri T.T. Krishnamachari : Sir, I beg to move :

"That after article 302AA, the following new article be inserted :-

"302AAA. (1) Notwithstanding anything contained in this Constitution, the

Special provisions as to major ports of aerodromes, President may by public notification direct that as from such date as may be specified in the notification:-

    1. any law made by Parliament or by the Legislature of a State shall not apply to any major port or aerodrome or shall apply thereto subject to such exceptions or modifications as may be specified in the notification, or
    2. any existing law shall cease to have effect in any major port or aerodrome except as respects things done or omitted to be done before the said date or shall in its application to such port or aerodrome have effect subject to such exceptions or modifications as may be specified in the notification.
        1. In this article :-
        1. major port means a port declared to be a major port by or under any law made by Parliament or any existing law and includes all areas for the time being included within the limits of such port ;
        2. ‘aerodrome’ means aerodrome as defined for the purposes of the enactments relating to airways, aircraft and air navigation."
      Sir, the reason for moving this article is that certain difficulties have been experienced in regard to what are called international aerodromes, in trying to fit in transit passengers internationals who come in there, but who may not ordinarily for the time, being, come within the scope of the particular laws of the province in which the aerodrome is situation. The idea, I understand is that Santa Cruz Aerodrome in Bombay and Dum Dum in Calcutta are now to be treated as international aerodromes. It is possible that other aerodromes will also be treated as coming under the same category, before long. For instance, if there is absolute prohibition law in regard to liquor in any province, the moment the passenger lands and if he has some liquor with him, he would be coming within the scope of this law of the province, whereas it is only proper that he should come within the scope of the law of the State only when he goes out of the aerodrome into the area covered by the State. Again, there are certain specified security regulations that may be necessary in the aerodromes, but which may not fit in with the scheme of security regulation current in the State. For instances, in military aerodromes the security regulations are very strict because the entire aerodrome is under military control. In the case of civil aerodromes the position is a little different. The Central Government which controls them will have to depend largely on local laws so far as security arrangements and other similar mattes are concerned and it may be necessary not merely to have a preventive staff whom the Central Government is empowered to have by fiscal legislation but also have a special police with special powers for the purpose of dealing with international traffic and those who interfere with it.

      The same contingency will apply to major ports, also particularly to new ports that come into being in areas which were formerly called Indian States. There are some difficulties in future. This is merely enabling provisions to permit the President the limited power to get over the difficulties that might arise which would not necessitate the provinces to alter their laws to suit the special circumstances of a port or aerodrome. It will help the provinces to make a law irrespective of the fact that there is a major port or aerodrome situated in the State and it helps the Centre to control those areas if it desires to do so by passing laws in addition to those existing in the provinces or modifying those laws to suit the special circumstances of the case. Instances might be quoted against the utility of an article of this nature but their validity is limited. There are possibilities of more instances of a different nature arising in the future. I repeat that this is an enabling provision which does not seek to interfere with the powers of the provinces at all. Major ports and aerodromes are admittedly under Central control for all purposes and the Centre is also empowered to have additional legislative control by means of Presidential action.

      The purpose of the amendment is simple one and I am told which is very necessary in regard to the administration o the aerodromes and major ports concerned with international traffic. I hope the House will accept it.

      Mr. Naziruddin Ahmad : Will there be no changes necessary in the Seventh Schedule ?

      Shri T.T. Krishnamachari: No Major ports and aerodromes are Central subjects.

      Mr. President : Prof. Shibbanlal Saksena has given notice of an amendment. He is not in his place and therefore it is not moved.

      Shri. R.K. Sidhva : Sir, I cannot understand how this article is described as a simple one and merely a consequential change is sought to be made.

      Shri R.K. Sidhva : The Mover said that it is simple article concerned with international traffic and should be approved by the House.

      Sir, the preamble does not state why the President should be empowered with extraordinary powers and over rule any law which Parliament may make regarding aerodromes and major ports. These come within the Union List, I do not see why clause (a) provides an law made by Parliament or by the Legislature of a State. I do not think any State is empowered to make laws regarding aerodromes and major ports.

      Sir, if this article is meant for emergencies such as was and so on. I can understand it. During the last two World Wars, entry to the aerodromes and major ports was prohibited to the public and many restrictions were imposed regarding traffic therein. I can understand that. But I cannot understand why when Parliament in the ordinary course make laws, such laws should be superseded by the President. What are the reasons for empowering the President to do so ? No case has been made out for this. Today, in the international airports if any passenger comes from foreign countries he is subjected to search. His luggage and even his person are searched. There are both men and women inspectors at the Custom House for this purpose. All these restrictions are there now and so I do not think there is any need to give the President this power. As I said, I can understand the need for this power in an emergency. But, why when laws enacted by Parliament are there for the purpose ordinarily, should the President have power to overrule those laws? In emergencies the position will be different, I agree, I have personal experience of it. Even relatives of persons embarking or disembarking at ports are not allowed access. Such restrictions are there and have been there is times of emergencies. I do not see any necessity for vesting this power in the President. Instead of this, however, I would suggest the following provision : - "Notwithstanding anything contained in this Constitution, the President may by public notification direct as from such date as may be specified any law may be made in the event of an emergency or war." If these lines are added this article would get a different meaning and may be necessary. Otherwise it will mean you want to deprive Parliament of the power of making laws. I want an explanation as to why the words "Legislature of State" are put in. Has any State power to make laws concerning aerodromes ?

      The Honourable Dr. B.R. Ambedkar : Sir, I think my Friend Mr. Sidhva has entirely misunderstood the position. If he will refer to List II, in Schedule Seven, items 30 and 35 which relate to the matters covered by the amendment moved by my Friend Shri T.T. Krishnamachari, he will see that the power of legislation given to the Centre under items 30 and 35 is of a very limited character. The power given under item 30 is for the purpose of regulation and organization of air traffic. The power given under 35 is for the purpose delimitation of the Constitution and the powers of port authorities. He will very readily see that, so far as the territory covered by aerodromes or air ports and ports is concerned it is part of the territory of the province and consequently any law made by the State is applicable to the area covered by the aerodrome or the port. These entries 30 and 35 do not give the Centre power to legislate for all matters which lie within the purview of the Central Government under the entries. The powers are limited. therefore, the proposal in this article is this that while it retains the areas covered by the aerodromes and by the ports as part of the area of the provinces it does not exclude them it retains the power of the States to make laws under any of the items contained in List II so as to be applicable to the areas covered by the aerodromes and the areas covered by the ports. What the amendment says is that if the Central Government think that for any particular reason such as for instance sanitation, quarantine, etc, a law is made by the State within whose jurisdiction a particular aerodrome or port is located, then it will be open for the President to say that this particular law of the State shall apply to the aerodrome or to the port subject to this, that or the other notification. Beyond that, there is not invasion on the part of the Centre over the dominion of the States in respect of framing laws relating to entries contained in List II, so far as aerodromes and ports are concerned. I hope my Friend, Mr. Sidhva, will now withdraw his objection.

      Mr. President : I shall now put amendment No. 450 to the vote. The question is :

      "That after article 302AA, the following new article be inserted:

      "302AAA (1) Notwithstanding anything contained in this Constitution, the President may by Special provisions as to major ports and aerodromes public notification direct that as from such date as may be specified in the notification –

        1. any law made by Parliament or by the Legislature of a State shall not apply to any major port or aerodrome or shall apply thereto subject to such exceptions or modifications as may be specified in the notification, or
        2. any existing law shall cease to have effect in any major port or aerodrome except as respects things done or omitted to be done before the said date, or shall in its application to such port or aerodrome have effect subject to such exceptions or modifications as may be specified in the notification.
        1. In this article :-
        1. major port means a port declared to be a major port by or under any law made by Parliament or any existing law and includes all areas for the time being included within the limits of such port ;
        2. ‘aerodrome’ means aerodrome as defined for the purposes of the enactments relating to airways, aircraft and air navigation."
The motion was adopted.

Article 302AAA was added to the Constitution.

___________


 


Mr. President : Then we go to the next item, article 306A.

Shri T.T. Krishnamachari : May I suggest that we pass over the next item for the time being and take up Schedule III-A ?

Mr. President : Yes we may take that up.
 


Schedule III-A


 



Shri T.T. Krishnamachari : Mr. President, Sir, I move :

"That after Schedule III, the following Schedule be inserted :
 
 


"SCHEDULE III-A

[ARTICLES 4(1) & 67(1a)]

ALLOCATION OF SEATS IN THE COUNCIL OF STATES


 


To each Sate or Sates specified in the first column of the table of seats appended to this Schedule there shall be allotted the number of seats specified in the second column of the said table opposite to that State or States, as the case may be.
 
 

TABLE OF SEATS

THE COUNCIL OF STATES

REPRESENTATIVES OF STATES FOR THE TIME BEING SPECIFIED IN PART I OF THE FIRST SCHEDULE


 




States                                                                                             Total Seats
________________________________________________________________________

1. Assam ………………………………………………………………… 6

2. Bengali………………………………………………………………… .14

3. Bihar …………………………………………………………………. ...21

4.Bombay.......................................................................................................17

5.Koshal-Vidarbh…………………………………………………………....12

6. Madras ………………………………………………………………….. .27

7. Orissa ……………………………………………………………………. .9

8. Punjab …………………………………………………………………… ..8

9. United Provinces…………………………………………………………... 30

Total…………………………………………………………………………. 144
 
 



REPRESENTATIVES OF STATES FOR THE TIME BEING SPECIFIED IN PART II OF THE FIRST SCHEDULE


 



States and Groups                                                                                         Total

of States                                                                                                         Seats
________________________________________________________________________
            1. Ajmer
             ……………………………………………………................................ ............1
            2.Coorg
            3.Bhopal …………………………………………………………………… .......1
            4.Bilaspur

                …………………………………………………. ....................................1
  5.Himachal Pradesh
  6.Cooch-Behar …………………………………………………………… ............1
  7.Delhi.......................................................................................................................1
  8.Kutch………………………………………………………………………… .....1
  9.Manipur
....................................................................................................................................1
10.Tripura
11.Rampur………………………………………………………………………. ......1
             TOTAL………………………………………………………………………………8
 

REPRESENTATIVES OF STATES FOR THE TIME BEING SPECIFIED IN PART III OF THE FIRST SCHEDULE


 





______________________________________________________________________________
States                                                                                                  Total Seats

1                                                                                                                     2

_______________________________________________________________________________
1. Hyderabad.....................................................................................................11

2. Jammu & Kashmir......................................................................................... .4

3. Madhya Bharat............................................................................................... 6

4. Mysore........................................................................................................... 6

5. Patiala & East Punjab States Union....................................................................3

6. Rajasthan..........................................................................................................9

7. Saurashtra.........................................................................................................4

8. Travancore-Cochin.............................................................................................6

9. Vindhya Pradesh.................................................................................................4

Total..................................................................................................................... 53
Total of all Seats................................................................................................... 205

Sir, these are three tables, one relating to the States specified in Part I, the second relates to States specified in Part II and the third relates to States specified in Part III, and the total number of seats allotted happens to be 205. I would explain, Sir, that the relative article in the Constitution happens to be 67, clauses (1), (2), (3) and (4), and, as honourable members will realise, that under clause (1) the maximum has been fixed at 250, out of which twelve members, shall be nominated by the President and the rest will be representatives o the States. The basis of the scheme envisaged in these tables is the decision of the Union Constitution Committee at a meeting held on the 1st December, 1948 at which the following Members of this House were present :

The Honourable Shri Jawaharlal Nehru.

The Honourable Shir Jagjivan Ram.

The Honourable Dr. B.R. Ambedkar.

Shri K.M. Munshi.

Prof. K.T. Shah.

Shri T.T. Krishnamachari, and

Mr. B.H. Zaidi.

If I may be permitted, I w ill read the relevant portion of the Committee's report.

"The Committee did not go into the details of the revised scheme of allocation of seats in the Council of States prepared by office, as owing to mergers of various types the position of the Indian States is still unsettled. They were of the view that it was advisable to postpone consideration of the detailed allocation of seats to a later date. The Committee while reiterating their previous decision that the representation of units in the Council of States shall be on the scale of one representative for every million of the population up to five millions of the population plus one representative for every additional two millions of the population thereafter, considered it unnecessary to adhere to the other decision that the maximum number of representatives from anyone unit shall be limited to twenty-five. It was found that only two States, namely Madras and United Provinces would be affected by the imposition of such a limitation and that an abrogation of this limit while securing uniformity would involve only an increase by seven seats in the total number of seats which would be well within the overall maximum of 250 members provided for in article 67(1) of the Draft Constitution. "

Sir, it is on the basis of this report made by the Union Constitution Committee that one seat should be allotted to every million up to five millions and thereafter one seat for every additional two millions, that this total has been worked out, and, as honourable Members will see, the total number comes to 205 plus twelve to be nominated by the President, i.e. 217. We still have thirty-three seats in hand before reaching the maximum number mentioned in article 67(1).

I would like to say why this is necessary because we could have adopted a different scheme even though it may be in contravention of the recommendations of the Union Constitution Committee. It may be, as honourable Members of the House will understand, that there is a further splitting up of the Units in Part I. If that will be the case, the number will naturally be increased because by every splitting up of the Units, the commitments will increase by at least five. These reallocations by reason of action taken by future Governments under article 3 of this Constitution may necessitate the raising of this number 217 to a still higher figure, and therefore provision has been made by following the system indicated by the Union Constitution Committee's report, viz. one seat for every millions up to five million and one seat for every additional two millions thereafter, which, I think, is a very fair arrangement and will also freedom of action so far as the future is concerned. I would not claim any infallibility so far as these, figures are concerned. May be that the thing might be arranged in some other manner. For instance, regrouping in regard to States in Part II may be taken exception to. It is a matter of opinion.

I think on the whole the scheme is fair, but should honourable Members of this House or people outside have any objection, of course those objections will be examined and those objections will be placed before you and if you will permit me, the necessary amendments will be moved at a later stage, but I do not think that in the face of the arrangement placed before the House any serious alteration would become necessary between now and the Third Reading stage.

I would like to mention another factor that by reason of making this amendment, I would also have to make three consequential amendments, because of certain variations that have occurred. For one thing, article 67 (1a) refers to Schedule III-B. An amendment will be necessary in regard to this particular sub-clause in the article. An amendment would also be necessary in article 4 because while taking into consideration article 4 we had omitted to mention along with the First Schedule the Schedule relating to the Table of Seats in the Council of States. Article 4 reads thus:

"Any law referred to in article 2 or article 3 of this Constitution shall contain such provisions for the amendment of the First Schedule as may be necessary to give effect to the provisions of the law and may also contain such incidental and consequential provisions as Parliament may deem necessary."

Any alteration of the First Schedule will entail the alteration of Schedule III. The first Schedule and the Third Schedule have got to be taken together. I will move an amendment later for putting in Schedule III-A in article 4. These amendments will moved subsequently if the amendment that I have now moved for the incorporation of Schedule III-A containing the Tables of Seats in the Council of States is accepted by the House.

Shri H.V. Kamath : I do not know why my esteemed friend once again referred to my honourable Colleagues as "people inside the House".

Mr. President : He said "honourable Members and people outside".

The question is :

"That after Schedule III, the following Schedule be inserted :
 
 


SCHEDULE III-A

[ARTICLES 4(1) & 67(1A)]

ALLOCATION OF SEATS IN THE COUNCIL OF STATES


 



To each State or States specified in the first column of the table of seats appended to this Schedule there shall be allotted the number of seats specified in the second column of the said table opposite to that State or States, as the case may be.
 
 

TABLE OF SEATS

THE COUNCIL OF STATES

REPRESENTATIVES OF STATES FOR THE TIME BEING SPECIFIED IN PART I OF THE FIRST SCHEDULE


 



_________________________________________________________________________________
States                                                                                                                 Total Seats

1                                                                                                                                 2

__________________________________________________________________________________
1. Assam .................................................................................................................... 6

2. Bengal.................................................................................................................... 14

3. Bihar....................................................................................................................... 21

4. Bombay .................................................................................................................. 17

5. Koshal-Vidarbh ....................................................................................................... 12

6. Madras..................................................................................................................... 27

7. Orissa........................................................................................................................ 9

8. Punjab.........................................................................................................................8

9. United Provinces.........................................................................................................30

Total ............................................................................................................................. 144
 
 


REPRESENTATIVES OF STATES FOR THE TIME BEING SPECIFIED IN PART II OF THE FIRST SCHEDULE


 




____________________________________________________________________________________
States & Groups of States                                                                                             Total Seats

     1                                                                                                                                             2
_____________________________________________________________________________________
1. Ajmer
                .................................................................................................................................... 1
2. Coorg

3. Bhopal......................................................................................................................................1

4. Bilaspur
                 ....................................................................................................................................1
5. Himachal Pradesh

6. Cooch-Behar............................................................................................................................1

7.Delhi...........................................................................................................................................1

8. Kutch......................................................................................................................................1

9. Manipur
                  ........................................................................................................................................ ...........1

10. Tripura

11. Rampur...................................................................................................................................1

Total..............................................................................................................................................8
 
 


REPRESENTATIVES OF STATES FOR THE TIME BEING SPECIFIED IN PART III OF THE FIRST SCHEDULE


 




____________________________________________________________________________________
States                                                                                                                                     Total Seats

1                                                                                                                                                     2
______________________________________________________________________________________
1. Hyderabad................................................................................................................ 11

2. Jammu & Kashmir........................................................................................................................ .4

3. Madhya Bharat............................................................................................................................. .6

4. Mysore..........................................................................................................................6

5. Patiala & East Punjab States Union................................................................................................. ................................3

6. Rajasthan.........................................................................................................................9

7. Saurashtra........................................................................................................................4

8. Travancore-Cochin...........................................................................................................6

9. Vindhya Pradesh................................................................................................................................ 4

Total ..............................................................................................................................................53
Total of all Seats.....................................................................................................................................205
 
 


The motion was adopted.

Schedule III-A was added to the Constitution.


 




Shri T.T. Krishnamachari : Mr. President, Sir, I move :

"That in clause (1a) of article 67, for the word, figure and letter 'Schedule II-B' the word, figure and letter 'Schedule III-A' be substituted."

I have already explained the need for this amendment. I hope the House will accept the amendment.

Mr. President : This is merely consequential. The question is :

"That in clause (1a) of article 67, for the word, figure and letter 'Schedule III-B' the word, figure and letter 'Schedule III-A' be substituted."
 
 


The amendment was adopted.

_____


Shri T.T. Krishnamachari : Sir, I move :

"That in clause (1) of article 4, after the words 'First Schedule' the words, figure and letter, 'and Schedule III-A' be inserted."

I have also explained the need for this amendment. I hope the House will accept the amendment.

Mr. President : This is also consequential. The question is :

"That in clause (1) of article 4, after the words 'First Schedule' the words figure and letter ' and schedule III-A' be inserted."
 
 


The amendment was adopted.

_____


Shri T.T. Krishnamachari : Mr. President, I move :

"That in clause (1) of article, 4, for the words 'incidental and consequential provisions' the words and brackets 'supplemental, incidental and consequential provisions 9including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States to be affected by such law' be substituted."

This is a modification of the words which we now seek to supplant. There is nothing intrinsic in this amendment which seeks to vary a principle which has been incorporated in article 4.

Mr. Naziruddin Ahmad : Does it enlarge the scope of the original text ?

Shri T.T. Krishnamachari : Only to the extent that article 4 is an operative clause in regard to article 3, and the enlargement is restricted only to the extent that is absolutely necessary.

Mr. President : The question is :

"That in clause (1) of article 4, for the words 'incidental and consequential provisions' the words and brackets 'supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the legislature or Legislatures of the State or States to be affected by such law)' be substituted."
 
 

The amendment was adopted.

_______

Part XVIII.


Shri T.T. Krishnamachari : Mr. President, Sir, I move :

"That for Part XVIII, the following Part be substituted :
 
 

PART XVIII

SHORT TITLE, COMMENCEMENT AND REPEALS


 



Short title                313A. This Constitution may be called the Constitution of India".

Shri B. Das : You have to say "of India, that is Bharat".

Shri T.T. Krishnamachari : We have used the word India as we have used it in other placed in the Constitution.

"314. This article and articles 5, 5A , 5AA, 5B, 303, 311, 331A and 312F of this Commencement Constitution
 Commencement  shall come into force at once, and the remaining provisions thereof shall come into force on the twenty-sixth day of January, 1950, which date is referred to in this Constitution as the date of commencement of this Constitution.

315. The Indian Independence Act, 1947, in so far as its provision are repugnant to this Constitution and the Government of Repeals    India Act, 1935, including the India (Central Government and Legislature) Act, 1946 and, all other enactments amending or supplementing the Government of India Act, 1935, shall cease to have effect:
Provided that nothing in this article shall affect the provisions of the Abolition of Privy Council Jurisdiction Act, 1949."

Sir, the first clause 313A is a formal one. The second clause relates to clause 314 which in the draft Constitution has been left more or less blank after the words "This Constitution shall come into fore on......". This clause puts in articles 5, 5A, 5AA and 5B relating to Citizenship, article 303 (Definitions) and articles 311, 311A and 312A and 312F which are transitory provisions. 311 relates to the election of the provisional Parliament, 311A to the provisional President, and 312F relations to the provisional Parliament so as to determine the method to be followed for the by-elections and the rules to be followed for that purpose. These have been put in as the articles will have to come into force immediately. The remaining articles will come into force on the appointed day, which is the 26th of January 1950.

So far as 315 is concerned, this more or less follows the scheme in the draft Constitution with this exception that we have found it necessary to provide that the operation of the Privy Council Jurisdiction Act passed by this House shall not be affected by this repeal. I do not think there is any need to explain the purport of these articles as they are self-explanatory.

The Honourable Shri K. Santhanam : What about the appointment of a Commission for the delimitation of constituencies ?

Shri T.T. Krishnamachari : That we have not put in, I would like to add this. There may be, for instance, the question of delimitation of constituencies under article 290. This must be preceded by a legislation by the provisional Parliament. I do not think anything could be done in that regard between now and the 26th of January 1950. I will mention here another matter, if I may do so with your permission. These are the articles that to us now appear as being necessary to be put in article 314. The position will be examined at greater length. Actually, I understand the Law Ministry attached to the Government of India is going through the whole matter and is carefully scanning the provisions of the Constitution that will have to come into force before the appointed ate. Should we feel that anything should be added to these articles we shall seek your permission and the permission of the House to incorporate them at a later stage. At the moment these are the only articles affected as far as we can see by going through the articles and scrutinizing the meaning of those articles. But other consequential matters might arise, and if they should arise on a scrutiny and examination of the articles by us we shall certainly bring fresh proposals before the House with your permission.

Mr. President : There are certain amendments relating to the original article, I shall take them up fi the Members want them, and if they fit in with the amendment as now put in. There are three here. One is by Dr. Deshmukh. He is not here; so it is not moved. the next one is by Mr. Brajeshwar Prasad. He too is not here. So it is also not moved. Then there is again an amendment relating to 315 by Dr. Deshmukh. so, it is not also moved. Are there any others?

Shri H.V. Kamath : I have certain amendments in Vol.II of the printed list.

Mr. President : You may move them, but I think we may take these form the beginning. First 314. There are certain amendments. One is by Mr. N. Ahmad regarding numbering of the Chapter. It is verbal and need not be moved. Mr. Prakasam is not here. Mr. Lari is no longer a member. There is no other amendment to 314. To 315 there is one by Mr. Kamath - 3325. He may move it.

Shri H.V. Kamath : Mr. President, I refer to amendments 3325 and 3327 of Printed List, Vol.II. I do not propose to move 3325 because the article as now moved by my honourable Friend Mr. Krishnamachari has made an alteration in 314 regarding the date on which the Constitution will come into force. My amendment which refers to the date of commencement of the Constitution has therefore no validity now. amendment 3327 is a verbal or formal one. The House will see that the marginal heading of article 315 is "Repeals" and in conformity with that, I thought it would be more correct to state at the end of this article instead of the words "shall cease to have effect" - "shall stand repealed". Of Course, am not a lawyer or an authority on matters of constitutional terminology and phraseology. I shall be content with leaving this matter to the collective wisdom of the Drafting Committee.

But, Sir, I would like to make a few observations in regard to the amendment just now moved by my honourable Friend Mr. Krishnamachari, No. 463. The first point is with regard to article 315 as moved by him. This refers to the Indian Independence Act, 1947. If the House will compare this with the original draft of this article, they will see that the words "insofar as its provisions are repugnant to this Constitution" are a fresh insertion. The original draft was silent on this point. I would like to know what exactly is the significance of these words. Do we not state categorically, clearly and unambiguously that with effect from the date of commencement of this Constitution the Indian Independence Act stands repealed, and of course the Government of India Act and what not? When this Constitution comes into force, then all other laws that were in force till that date automatically become null and void. Therefore, these words "insofar as its provisions are repugnant to this Constitution" are wholly unnecessary and should be deleted. I am sorry I had no time to give notice of an amendment.

As regards article 314, it refers to the date of commencement of this Constitution. Certain articles have got - and quite rightly so, - to come into force at once. I have nothing to say on that point. But about the second part of this article which says that the rest of the Constitution shall come into force on the 26th January 1950. I made a suggestion some time ago that, granting with all my heart that the 26th of January has got a sanctity all its own in our national calendar, we might still have another day, and it might very aptly and in the fitness of things signify, the advent of our complete freedom and republican status. We may christen it the "Republic Day". The 26th January would still be regarded as "Independence Day", the day on which we took the famous pledge of independence. But in all humility I suggest that we might have a "Republic Day' which we may observe like other days in our national calendar. I have no objection if the "Independence Day" and the "Republic Day" synchronise, but I think it would add more importance to our national calendar if we had "Independence Day" on the 26th January and another day in January or December as "Republic Day". As a matter of fact, if it were possible, we might have December 9th, 1949, as the Republic Day, because we began this historic Assembly on the 9th December. But perhaps it is not quite possible to get all these things ready by then, so I would suggest a day in January and have it as "Republic Day" to be celebrated like "Independence Day" or "Gandhi Jayanti" or other national days. I would request the House to consider this little submission of mine to the effect that we might as well state that the remaining provisions of this article shall come into force on the midnight of the 25/26th January 1950. Just as in August 1947 we celebrated or we welcomed the advent of freedom on the night of 14/15th August 1947, it would be in the fitness of things if we state here definitely that the remaining provisions thereof shall come into force on the midnight of 25/26th January 1950, and if that were adopted today, it would have the way for the celebration of another historic ceremony.

I do not know what the astrologers will have to say about this matter, because last time when they were consulted, there was a conflict of opinion about the auspiciousness of the date.

Mr. President : They offered their opinion without being consulted.

Shri H.V. Kamath : They were consulted by friends outside and they were not quite agreed whether it was wholly auspicious. I do not think we are always bound by the opinions of astrologers, but other things being equal, we might as well celebrate it on the midnight of 25/26th January 1950.

I hope Mr. T.T. Krishnamachari has been listening to me and that he will try his best to answer the suggestions that I have made.

Mr. Naziruddin Ahmad : I am not moving my amendment, but with regard to the amendment that has been moved by Mr. T.T. Krishnamachari, I have some difficulty about the proposed article 315. Article 315 tries to state that the Indian Independence Act, insofar as it is repugnant to this constitution, shall cease to have effect. I however think that this should be covered by the old article 307. I do not know what has become of it; whether it is proposed to move it or not. But article 307 in the Draft Constitution.............

Mr. T.T. Krishnamachari : Another article 307 has been moved and accepted and is part of the Constitution.

Mr. Nazirudding Ahmad : This article 307 would cover 315. I am referring to the old article, and I suppose that the new article 307 is substantially of the same effect.

Shri T.T. Krishnamachari : Except clause (2).

Mr. Nazirudding Ahmad : Clause (1) says : "Subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until..........."

So, "all laws in force in the territory of India" would also include the Indian Independence Act 1947.

Shri T.T. Krishnamachari: It is expressly mentioned.

Mr. Naziruddin Ahmad: It is not necessary: otherwise you should mention all the other existing Acts which would be covered. The Indian Independence Act is completely in the hands of the Indian Legislature. That Act states that from the appointed date, all laws relating to the Indian administration and all British laws applicable to India, should no longer be affected or modified or dealt with in any way by the British Parliament but this should be dealt with specifically by the Indian Legislature. If that is so, I fail to see how the Indian Independence Act is an Act which requires a special mention. That is certainly within our competence. The British Parliament has no longer any jurisdiction over that. they have enacted a self-denying ordinance and that is certainly a law in force in the territory of India. Those laws which are now existing will have to be adopted under article 307. I do not know how far the office has proceeded with it, because on the 26th January we expect a complete Adaptation Order, fully ready, to be applicable on that date. On and from that date all laws, inconsistent with the present Constitution should be clearly adapted to suit the Constitution.

I think the word "Repeal" in the marginal note is inapplicable because we are not repealing the Independence Act: we are merely trying to say that insofar as it is inconsistent with the present Constitution it shall cease to have effect. We really modify the Act or adapt it to suit the present Constitution and that purpose would certainly be served by article 307. I, therefore, oppose article 315. All that we want is not the repeal but really an adaptation.

With regard to article 314, there is one expression which is coming up before the House repeatedly, namely, "the date of the commencement of this Constitution". Sometimes we say, "the commencement of the Constitution". On other occasions we say "the date of the commencement of this Constitution." I think the words 'the date of' are absolutely unnecessary and tautological. We mention here the "26th day of January 1950". which date is referred to in this article as the "date of" the commencement of this Constitution. The 26th day of January 1950 is certainly a 'date of' and if that is referred to as the commencement of this Constitution the words 'date of' are absolute unnecessary. The use of this expression has been rather indiscriminate in many places that they occur, and in any places they do not occur. I should think these words should be deleted by the drafting Committee so as to make the expression absolutely neat and clear and yet complete.

I would like to know what progress has been made in the adaptation of the existing laws because this is extremely important and things should be ready on the 26th January. This will affect courts, offices and various other persons. We should have a completely adapted series of Acts, as was done in the case of the government of India Act, all the Acts were adapted and an Adaptation Order was printed and circulated before time so as to be ready on the date that the Constitution came into effect, that is, on the 1st April, 1937.

I should like to know what progress has been made already, because if that is not taken in hand, there may be an impasse and confusion. So this requires clarification and if we have taken that in hand, then article 35 will be absolutely unnecessary.

The Honourable Shri K. Santhanam : Sir, I have just two points to make with reference to amendment No. 463. I think before any other article is brought into operation, it is desirable to have at least the Preamble and article 1 also to be brought into operation because all the other clauses refer to India and so before article 1 comes into operation, I do not think it is quite right that other articles should be brought into operation. I suggest that the Preamble and article 1 also may be added. These articles should be brought into immediate operation while the rest may come into operation on the 26th of January.

Mr. Naziruddin Ahamd : The difficulty would be that the Preamble has not yet been accepted by the House.

The Honourable Shri K. Santhanam : It will have to be accepted before the Constitution is complete. I am only suggesting this.

Shri R.K. Sidhva : May I know why you want the Preamble to be made applicable immediately ?

The Honourable Shri K. Santhanam : Preliminary to bringing the whole Constitution into force, we are bringing some provisions of the Constitution into force and the object of the Constitution and the name of the country must be there before any part of the Constitution can be brought into force. You may consider that suggestion for what it is worth.

In proposed article 315 there are provisions what are hardly consistent with the dignity of the new Constitution. It says : "The Indian Independence Act, 1947, insofar as its provisions are repugnant to this Constitution and the Government of India Act, 1935, shall cease to have effect." The Independence Act to the extent it is not repugnant to the provisions will continue in existence and be in force. I think the entire Independence Act must be repealed. The only fundamental law must be the Constitution. The validity of all other laws must be derived from the Constitution. When the Government of India Act 1935 was passed, all the previous Acts were completely repealed. I do not think we should leave the Indian Independence Act as if it is continued together with the Constitution as a fundamental law of the country so that it can be argued in the Supreme Court that a certain provision of the Indian Independence Act, because it is not repugnant to the provisions of the Constitution will continue in force. Our Supreme Court should not derive any authority from the Indian Independence Act; it should derive its authority only from the Constitution. I think this is an elementary principle which is necessary for the dignity of the whole Constitution. We should not say that our Constitution consists of the Constitutions which we have enacted and the Indian Independence Act to the extent it is not repugnant to the provisions of the Constitution. So I think this is a matter of importance and I suggest that Mr. Alladi and others should put their heads together and see that we do not enact a clause which is likely to be detrimental to the dignity of the Constitution we are making.

Shri B. Das : Mr. President, Sir, in article 314 it says : "This article 311 will come into force at once." when the article 311 was passed I understood that those members of provincial legislatures that are Members of this House will continue till the 26th of January, 1950. I wish it should be made clear that all members of provincial legislatures, that our comrades and colleagues here will remain with us until the 26th of January, 1950 when the Republic will be declared. I hope no mistake will be made on that quarter if we accept the present article 314 (Interruption). I respectfully request you to examine article 311 and I want to know whether our colleagues here from the provincial legislatures will continue to remain with us till the 26th January, 1950 when the Republic will be declared. Otherwise if that is not contemplated, I oppose the inclusion of article 311 here.

Shri R.K. Sidhva : It is clear.

Shri Alladi Krishnaswami Ayyar (Madras : General) : Mr. President, I just want to say a word or two in regard to the first objection of my honourable Friend Mr. Santhanam. I might point out that in the Draft Constitution, article 315, there is no reference to the retention of any revision of the Dominion Act after our Constitution comes into force. I would read the language of the said original article. "The Indian Independence Act, 1947 and the Government of India Act, 1935, including the India (Central Government and Legislature) Act, 1946 and all other enactments amending or supplementing the Government of India Act, 1935, shall cease to have effect." On a careful consideration I am inclined to agree with Mr. Santhanam, namely, that there is no question of the retention of any of the provisions of the earlier Act after our new Constitution comes into force. No doubt we might give a fresh lease of life to certain laws which were passed under the old Constitution and adopt them, so to speak, as the law under our Constitution. that is necessary and that provision has been made. I might also point out we were particularly anxious that the Constitution which we are making or passing must not be traceable to section 7 of the Independence Act and we took the view that there is no necessity of even the Governor General's assent being required for the new Constitution. The new Constitution will not be a constitution passed under or in pursuance of the wide and comprehensive powers given under section 7 or 8 of the Indian Independence Act. Therefore, when once we pass a Constitution, use our own free will, independent of and without reference to any earlier Act, there is no need of mentioning that the independence Act will continue to be in force to any extent whatever. I might mention that even when an Act like the government of India Act of 1935 was passed it was in pursuance of an Act of Parliament and the earlier Government of India Act was treated as repealed, excepting in so far as the provisions of the earlier government of India Act were in terms adopted and continued by particular sections of the Government of India Act. Under those circumstances there is force in the suggestion of Mr. Santhanam, but they are in the nature of a drafting amendment. If permission is given tat might be dropped at a later stage. The reason why I am mentioning this is that having emerged from the Drafting Committee, it is only fair that it should be amended again by the Drafting Committee. There will be no difficulty whatever in regard to that point.

Then some technical point was raised by my honourable Friend, Mr. Kamath, with regard to the words 'cease to have effect'' ; for the very reason for which he has been fighting we advisedly put in the express words "cease to have effect". On the point as to repeal, we are to remember we are an independent body. The Independence Act emanated from another Parliament. There is no question of our repealing another Act. That is why advisedly the draft Constitution contained the express provision "cease to have effect". Therefore, consistent with the ideas of my honourable Friend Mr. Kamath, who always stands for the independence of this country, for the Constitution not having reference to anything emanating from the British Parliament, it is appropriate and fitting that the expression 'cease' should be there instead of the word 'repealed'.

Then, Sir, lastly the point mentioned by Mr. Santhanam : one regarding the coming into force of the Preamble and secondly, that India shall be a Union. I think, if I may say with respect to my honourable Friend who is always careful about his points, there is no force in that objection. So far as the Preamble is concerned, though in an ordinary statute we do not attach any importance to the Preamble, all importance has to be attached to the Preamble in a Constitutional statute, there is no such thing as the Preamble immediately coming into force. The Preamble will come into force in all its plentitude when the Constitution comes into force. There is no reason to say that the Preamble will come into force earlier than when the Constitution comes into force.

Secondly, I do not think we can bring into force the article that India shall be a Union because India does not immediately become a Union of States as it is understood throughout the Constitution. A Union must be understood with the entire constitutional mechanism that has been created under the Constitution which we are passing. We cannot conceive of a body or soul without limbs. If the limbs do not begin to operate how can a Union come into existence. So far as that point is concerned, even Homer nods and there is no force in the objection raised by Mr. Santhanam that the article must come into force immediately.

Mr. President : There was one point raised by Mr. Das with regard to article 311.

Shri T.T. Krishnamachari : That is very clear, Sir.

Shri Alladi Krishnaswami Ayyar : I have not caught the point.

Shri Kuladhar Chaliha (Assam : General) : Sir, I want to understand from the Drafting Committee how you can reconcile article 311(3) with article 314. Article 314 says that it shall come into force at once. These Members will have to vacate immediately I think. I want to have an answer from Mr. Krishnamachari. If that is the consequence, we cannot support this.

The Honourable Shri K. Santhanam : This will come into effect when the Third Reading is passed.

Mr. President : That is exactly the point raised by Mr. B. Das also.

Shri T.T. Krishnamachari : Sir, in regard to the point raised by Mr. B.Das and Mr. Kuladhar Chaliha, I would like to say this. Article 311(3) says:

"If a member of the Constituent Assembly of the Dominion of India was on the sixth day of October 1949, or thereafter becomes at any time before the commencement of this Constitution a member of a House of the legislature of a Governor's province then, as from the date of commencement of this Constitution the seat of such member shall, unless he has ceased to be a member of that Assembly earlier, become vacant."

Here, article 314 says that the date of the commencement of the Constitution is 26th of January 1950. Even though these articles are to come into force immediately, the date of the commencement of the Constitution will be the operating factor. I do not think there is any doubt about that. I can tell honourable Members this. The idea is that Members who have double membership remain Members until the 25th of January. (Interruption). Honourable Members will please hear me patiently. We will have to examine the position again if instead of the words ''ate of commencement of the Constitution ''the words ''appointed date'' would suit better. Because, the appointed day happens to be the 26th of January. The position will be examined by Dr. Ambedkar and the Drafting Committee and if it is felt that the position of the Members will in any way be prejudicially affected, I will give this assurance to this House, that we will try to safeguard it by a suitable amendment and I think honourable Members need have no fear in that matter.

Dr. B. Pattabhi Sitaramayya (Madras : General) : I should like to know what was the object with which this was included. The date of commencement of the Constitution being evident and the tenure continuing till that date, what was the object of including this article mentioning the articles which are immediately coming into force? Probably it is to bring the elections into operation. If so, can you have an implied purpose and a declared purpose which are different from each other. this must be re-examined.

Shri T.T. Krishnamachari : The honourable Doctor has really put his finger on th point. The point is that, notwithstanding the fact that the vacancies have not occurred until the 25th of January, elections will have to be held so that the new Members will be enabled to take their seats on the 26th of January, on which date the vacancies will definitely occur. The idea is to enable the President of the Constituent Assembly to hold these elections notwithstanding the fact the actual vacancies will occur later. The wording of article 311 is clear. Both articles 311 and 312F permit the President of the Constituent Assembly to make appropriate rules for the purpose of enabling elections to be held on the supposition that the seats will become vacant on the 25th of January. The position as the doctor has understood is correct and the position is also perfectly clear I do not think any Member will be prejudicially affected by the fact that these articles are being brought into effect immediately from the time the Constitution is finally passed, or the Third Reading has been passed. If we do not do it, the President of the constituent Assembly will not be empowered to take any action under articles 311 and 312F.

With regard to the wording of article 315, I must bow to the superior wisdom of my honourable Colleauge Mr. Alladi Krishnaswami Ayyar. If he now feels that the wording is not as it should be, I suppose the matter has definitely to be reconsidered. I would only say this, when experts differ, the layman is literally at sea. The reason why we made this change in the draft article is because of the advice that has been given to us by the constitutional Adviser of this honourable House which is in these terms. "This article provides without any qualification that the Indian Independence Act, 1947 and certain other Parliamentary enactments shall cease to have effect. There are, however, certain provisions of the Indian Independence Act which would not cease to have effect. For example, there is no reason why the provision of that Act stating that His Majesty's Government in the United Kingdom have no longer any responsibility as respects the government of any of the territories which immediately before August 1947 were included in British India, that the suzerainty of His Majesty over the Indian States lapses, etc., should not continue to remain in force. There is nothing in this provision that is repugnant to the new Constitution. hence the proposed amendment." My honourable Friend Mr. Alladi Krishnaswami Ayyar holds the view that as this Constitution is completely independent in character, it acts on its own volition and therefore all the other enactments that preceded it must automatically cease to have effect. I quite agree. But, this is the opinion that was given to us by the Constitutional Adviser and it is only on the lines of this opinion that we put in these words "in so far as its provisions are repugnant to this Constitution".

I had originally thought of suggesting that we might, in order to make the meaning of this particular article clear, split it up into two and call it 315(1) with the following words : "The Indian Independence Act, 1947, in so far as its provisions are repugnant to this Constitution", then put the figure (2) and put the following words after it. "The Government of India Act, 1935 including the India (Central Government and Legislature) Act, 1946, and all other enactments amending or supplementing the Government of India Act", and thereafter, put these words below, which shall apply to both (1) and (2) ; shall cease to have effect". In view of the position taken up by my honourable Friend Mr. Alladi Krishnaswami Ayyar, I would suggest with your permission that the House do pass this article in this form and we will have it examined.(??)

My honourable Colleague, the Chairman of the Drafting committee is not here. We shall have the position re-examined and if necessary, at the Third Reading Stage, when we are convinced that these words "in so far as its provisions are repugnant to this Constitution" should be eliminated, we shall eliminate them at the Third Reading Stage.

I therefore suggest that we shall pass this article in the present form and if any change is necessary, we shall take adequate legal advice and the eminent lawyer members of the Drafting committee will examine it. We will put my honourable colleague Mr. Alladi Krishnaswami Ayyar against Dr. Ambedkar and Mr. Munshi and we will probably be able to arrive at a settlement so far as the wording is concerned. I do hope that...........

The Honourable Shri K. Santhanam : Would it not be better that the opposite course is adopted ?

Shri T.T. Krishnamachari : I have suggested one course. My honourable Friend Mr. Santhanam takes the opposite view. It is for the House to decide whether my view is proper or the opposite view. I would also suggest that before we finalise the wording of the article, we shall have the benefit of the views of Sir B.N. Rau about this matter. We shall immediately write to him about this matter and ask him if he would revise his view in the light of the expression of opposite views in the House. Therefore, I suggest that this article be accepted by the House in its present form, subject to this condition that the whole thing will be re-examined and if on examination we find that the objections mentioned by my honourable Friend Mr. Santhanam and supported by my honourable Colleague have any validity, the article will come before the House in a revised form.

So far as the objection to the wording "cease to have effect" is concerned, which my honourable Friend Mr. Kamath wants to be supplanted by the word "repealed", I think my honourable Colleague Mr. Alladi Krishnaswami Ayyar has answered him adequately. The House need, therefore, have no qualms in accepting the wording 'cease to have effect'.

Shri H.V. Kamath : What about the two suggestion that I made in regard to a separate Republic day and also about the midnight ceremony ?

Shri T.T. Krishnamachari : That is a matter for the appropriate authorities and not for the Drafting Committee.

Mr. Naziruddin Ahmed : Is it proper to accept this subject to reconsideration ? If these controversial matters are left over for the Third Reading, other matters will have no time. I suggest it should be dropped. It is included in 307.

Mr. President : That again is a controversial matter. In some form it has to be passed today so that the Second Reading may be completed. If any question arises for revision, that may be done at the Third Reading stage, and as Mr. Krishnamachari said they will have the matter re-examined and if we find that any amendment is necessary, we shall take that up at that stage. If we leave it also, then we could not bring anything new at that stage.

The Honourable Shri K. Santhanam : If the words 'In so far as it s provisions are repugnant to this Constitution, are omitted, it will have unanimous acceptance and there is nothing to prevent them in re-introducing those words if they are found essential. Now we are asked to take it in a form which we dislike and it is said that they will consider it later. There is no difficulty for the Drafting Committee to re-introduce the words if it is considered essential.

Mr. President: It is really a matter for the House to decide. I will put the two views separately.

The question is :

"That for Part XVIII, the following Part be substituted :
 
 

PART XVIII

SHORT TITLE, COMMENCEMENT AND REPEALS

'313. This Constitution may be called the Constitution of India'. "

The amendment was adopted.



Mr. President : The question is :

"This article and articles 5, 5A, 5AA, 5B, 303, 311, 311A and 312F of this Constitution shall come into force at once, and the remaining provisions thereof shall come into force on the twenty-sixth day of January, 1050, which date is referred to in this Constitution as the date of commencement of this Constitution."
 
 

The amendment was adopted.

__________

Article 315


 


Mr. President : The question is :

"That in proposed article 315 the words 'in so far as its provisions are repugnant to this Constitution be deleted."
 
 

The amendment was adopted.


 


Mr. President : The question is :

"That proposed article 315, as amended, stand part of the Constitution".
 
 

The motion was adopted.

Article 315, as amended, was added to the Constitution.

__________

Article 306A


 



Mr. President : We go to 306A.

It is suggested that we had better begin the Preamble. It may be moved.

Shri T.T. Krishnamachari : It is not necessary to move it. The Preamble may be taken into consideration.

Mr. President : The Preamble is moved. I shall have to take up the various amendments to the Preamble now. I have a large number of amendments - many of them printed in the printed list.

Maulana Hasrat Mohani (United Provinces : Muslim ) : I understand that you hae already decided that the Preamble will be taken up last. How is it that there are some articles remaining undiscussed and you pass to the Preamble?

Mr. President : Not many articles left.

Maulana Hasrat Mohani : Even one article - unless you finish the articles, you cannot take up the Preamble.

Mr. President : Very well, let us take up 306A.

The Honourable Shri Satyanarayan Sinha (Bihar : General): Sir, are you taking up the Preamble ?

Mr. President : No, Maulana hasrat Mohani objects to the Preamble being taken up before all the other articles are finished.

There is one more article of which notice was given and it has been standing over, amendment No. 472 by Mr. Naziruddin Ahmad. And I understand it is the same as another article of which notice was given by Pandi Thakur Das Bhargava.

Pandit Thakur Das Bhargava: Sir, it was held over on the 3rd June, by you order.

Mr. President : Then shall we take it up now? Which of them shall we take up. Mr. Nazirudding Ahmad's or that of Pandit Thakur Das Bhargava ?

Pandit Thakur Das Bhargava : Sir, I beg to move that...............

Shri R.K. Sidhva : Sir, there are other articles also of which notice has been given by other Members.

Mr. President : There is no other amendment by the Drafting Committee.

Shri R.K. Sidhva : But there may be other Members who may have amendments besides these two.

Mr. President : Amendments for the addition of new articles ?

Shri R.K. Sidhva : Yes,

Mr. President : I do not thin they will arise now.

Pandit Thakur Das Bhargava : Sir, I udnerstand Shri Gopalaswami Ayyangar has just come and so I may be allowed to move, after he has done.

Mr. President : There are so many articles of which notice was given and which are dropped now. We have dealt with the whole Constitution from every point of view and we cannot begin now taking up new articles. I know Pandit Thakur Das Bhargava's amendment was held over, but it has been covered by other amendments.

Pandit Thakur Das Bhargava : It is not covered, Sir.

Mr. President : Very well. We take up article 306A now.

The Honourable Shri Satyanarayan Sinha (Bihar : General) :Sir, are you taking up the Preamble ?

Mr. President : No, Maulana Hasrat Mohani objects to the Preamble being taken up before all the other articles are finished.

There is one more article of which notice was given and it has been standing over, amendment No. 472 by Mr. Naziruddin Ahmad. And I understand it is the same as another article of which was given by Pandit Thakur Das Bhargava.

Pandit Thakur Das Bhargava: Sir, it was held over on the 3rd june, by your order.

Mr. President : Then shall we take it up now? Which of them shall we take up. Mr. Nazirudding Ahmad's or that of Pandit Thakur Das Bhargava ?

Pandit Thakur Das Bhargava : Sir, I beg to move that...............

Shri R.K. Sidhva : Sir there are other articles also of which notice has been given by other Members.

Mr. President : There is no other amendment by the Drafting Committee.

Shri R.K. Sidhva: Yes,

Mr. President : Amendments for the addition of new articles ?

Shri R.K. Sidhva : Yes,

Mr. President : I do not think they will arise now.

Pandit Thakur Das Bhargava : Sir, I understand Shri Glopalswami Ayyangar has just come and so I may be allowed to move, after he has done.

Mr. President : There are so many articles of which notice was given and which are dropped now. We have dealt with the whole Constitution from every point of view and we cannot begin now taking up new articles. I know Pandit Thakur Das Bhargava's amendment was held over, but it has been covered by other amendments.

Pandit Thakur Das Bhargava : It is not covered, Sir.

Mr. President : Very well. We take up article 306A now. Mr. Gopalaswami Ayyangar.

The Honourable Shri N. Gopalaswami Ayyangar : (Madras : General) : Sir, before I read out the motion. I would request yur permission, Sir, not to move item 379, but to move item 451 instead.

Sir, I move:

"That with reference to Amendment no.379 of List XV (Second Week), after article 306, the following new article be inserted:

'306A. (1) Notwithstanding anything contained in this Constitution,

      (a) the provisions of article 211A of this Constitution shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the State shall be limited to
        (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for the State; and
                        do hereby ordain and establish this Constitution for India".