CONSTITUENT ASSEMBLY OF INDIA - VOLUME X


Friday, the 14th October. 1949

No constitutional Government can function in any country unless any particular constitutional authority remembers the fact that its authority is limited by the Constitution and that if there is any authority created by the Constitution which has to decide between that particular authority and any other authority, then the decision of that authority shall be binding upon any other organ. That is the sanction which this Constitution gives in order to see that the President shall follow the advice of his Ministers, that the executive shall not exceed in its executive authority the law made by Parliament and that the executive shall not give its own interpretation of the law which is in conflict with the interpretation of the judicial organ created by the Constitution.

Shri H V. Kamath : If in any particular case the President does not act upon the advice of his Council of Ministers, will that be tent amount to a violation of the Constitution and will he be liable to impeachment ?

The Honourable Dr. B. R. Ambedkar: There is not the slightest doubt about it.

The Honourable Shri K. Santhanam (Madras: General): I may add to Dr. Ambedkar's statement, and point out that there are certain marginal cases in which the President may not accept the advice of the Minister,, When a Ministry wants dissolution it will be open to the President to say that he will instal another Ministry which has the confidence of the majority and continue to run the administration. There are some marginal cases where he may have in the interests of responsible government itself to over-ride the advice of his responsible Ministers.

The Honourable Dr. B. R. Ambedkar: I would only like to say one thing in reply. That was once the position. It has been defined very clearly in Macaulay's History of England what the King can do. But I say that these are matters of convention. In Canada this question arose when Mr. Mackenzie King wanted dissolution. The question was whether the Governor-General was bound to give a decision or whether he was free to call the leader of the Opposition to form an alternative Ministry. On the advice of the British Government, the Governor-General accepted the advice of Mr. Mackenzie King and dissolved the Parliament.

Shri H. V. Kamath : Instead of Dr. Ambedkar's obiter dictum why not have a Constitutional provision?

The Honourable Dr. B. R. Ambedkar : We cannot discuss this question in this way.

Mr. Naziruddin Ahmad : We have now opened up a very debatable proposition, namely, whether the Ministry and the President would be bound to follow the decision of Parliament. The ruling on the British Constitution on this point will not really be relevant. The British Constitution has long-established conventions. There is no statutory enactment. The powers of the King and of the Executive are well-known through the centuries. But ours is going to be a statutory constitution. So I think we should have some provision to make the point clear. Otherwise it may one day lead to an impasse. The precedent of the British Parliament in the King's Bench Division will not at all help us. So far as the Canadian precedent is concerned, that is also is based upon conventions and understandings established for a long services of years. So far we have established no precedent at all to fall back upon. But as this is reopen a dead subject I do not think we need proceed further with this discussion. But we cannot take the opinion of Dr. Ambedkar as binding.

Shri Alladi Krishnaswami Ayyar (Madras: General): Sir, I did not want to interpose in the debate, but I find that the point raised as to the necessity of a provision is entirely without substance. We have provided in article 61(3) that the Council of Ministers shall be collectively responsible to the House of the People.-If a President stands in the way of the Council of Ministers discharging that responsibility to the House he will be guilty of violation of the Constitution and he will be even liable to

impeachment. Therefore it is merely a euphemistic way of saying that the President shall be guided by the advice of his Ministers in the exercise of his functions. This Council of Ministers will be collectively responsible to the House of the People, and the House of the People must meet all situations in regard to the budget, in regard to legislation, in regard to every matter connected with the administration of the country. Therefore, if the Council of Ministers is to discharge their responsibility, it will be the duty of the President to see that the Constitution is obeyed and therefore article 61 along with clause (3) of article 62 make quite clear all the incidence of responsible government. Otherwise we will have a detailed list of all the incidence of responsibility; that the Prime Minister is responsible when dissolution of the Parliament is to. be effected, what exactly the advice or the occasions when the advice tendered by the Council should be followed by the President, etc. Some such attempt was made in Ireland on account of the distrust of the Crown in those days. In the earlier Irish Constitution, some provisions were inserted stating in detail what are the incidence of responsibility. Now, if you just look at Canada, or Australia, or any other Constitution in which responsible government obtains or some semblance of responsible government obtains, there are no detailed provisions. The German pandiu who framed the German Constitution attempted some kind of definition but that resulted in failure as we know as soon as a conflict between the powers of the President and of the Ministry arose, and that led to the collapse of the German Reich. Therefore, under those circumstances, I venture to submit that there is absolutely no necessity for setting out in detail what are the functions and the incidence of responsible government in an article of the Constitution.

Prof. Shibban Lal Saksena : Mr. President, Sir, we have framed a Constitution in which we have provided- for even very small details. Our Constitution differs from the Constitution of England in that the English Constitution is based on conventions. Here in a vital matter like this, we have not stated anywhere that the President is bound to call the Leader of the majority party to. form the Cabinet and that he is bound to accept the advice of the Ministry. The Schedule providing for an Instrument of Instructions has also been taken away. Dr. Ambedkar has just now explained to us that conventions on this question have developed in other countries. I had hoped when Schedule IV was being deleted, provisions will be made in the Constitution to cover these points. In fact, at one time Dr. Ambedkar told me that we should frame all these details because we were just commencing a big experiment in democracy. Now that we are providing even for small details in the Constitution, I do feel that these fundamental things, that the President shall be bound to call the leader of the majority party to form the Cabinet, and that he will be bound to accept the advice of the Cabinet, should be incorporated in some instrument of instructions or in some articles of the Constitutional.

Mr. President : I think we have discussed this matter enough. Mr. Krishnamachari, do you want to say anything ?

Shri T. T.Krishnamachari :No. Sir, Dr. Ambedkar has replied.

Shri H. V. Kamath : What is your own reaction to the debate. Sir ? The issue was originally raised by you.

Mr. President : It is not a question of my reaction. It is for the House to decide.

Mr. Naziruddin Ahmad : Permission may be given to reopen the matter.

The Honourable Shri K. Santhanam : This is purely consequential.

Mr. President : I have to put this amendment to the vote. That is all my reaction.

The question is

"That clause (5a) of article 62 be omitted."

The amendment was adopted.

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

"That clause (6) of article 67 be omitted."

This is a very important clause and I can appreciate the vigilance of my honourable Friend Mr. Shibban Lal

Saksena in moving a negative amendment to this amendment. I would at once tell the House that this important clause which deals with election to the House of the People on the basis of adult franchise is not being omitted in any lighthearted manner. I would like to ask the House to refer to article 289-B which reads thus:- "The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult franchise; that is to say, every citizen, who is not less than twentyone years of age on such date as may be fixed in this behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appro priate Legislature on the ground of non-residence. unsoundness of mind, crime or corrupt or I illegal practice, shall be entitled, to be registered as a voter at any such election. "

Substantially the whole of clause (6) of article 67 has been produced in 289-B which the Drafting Committee felt was the proper place for putting in the qualifications of voters. Therefore, Sir, clause (6) of article 67 is no longer neces sary and that is the provocation for my moving this amendment.

(Prof. Shibban Lal Saksena did not move his amendment.)

Mr. President : The question is :

"That clause (6) of article 67 be omitted.'

The amendment was. adopted.

Shri T. T. Krishnamachari Sir, I move "That for clause (7) of article 67, the following clause be substituted '(7) The representation in the House of the People of the territories comprised within the territory of India but not included within any State shall be such as Parliament may by law provide'."

Sir, the original clause (7) reads thus: "Parliament may, by jaw, provide for the representation in the House of the People of territories other than States."

The House will remember that we passed yesterday a new article 67-A which is more or less an enabling article. It does not wholly take away the need for a clause like clause (7) and it was felt that this clause must be amplified in there manner suggested in my amendment.

Mr. President : There is no amendment to this. The question is:

"That for clause (7) of article 67, the following clause be substituted :- '(7) The representation in the House of the People of the territories comprised with in the territory of India but not included within any State shall be such as Parliament may by law provide'."

The amendment was adopted.

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

'That for the proviso to article 109 the following proviso be substituted:

'Provided that the said jurisdiction shall not extend to-

(i)a dispute to which a State for the time being specified in Part III of the First Schedule is a party, if the dispute arises out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the date of commencement of this Constitution and has, or has been. continued in operation after that date,

(ii)a dispute to which any State is a party, if the dispute arises out of any provision of treaty, agreement, covenant, engagement, sanad, Or other similar instrument which provides that the said jurisdiction shall not extend to such dispute'."

I would request honourable Members to refer to,the Draft Constitution before this article was passed by the House. They will find these two provisos reproduced there word for word. It was felt at the time we moved this Draft Article 109 that in the circumstances in which we were then placed we could not ask the House to pass a proviso like proviso (1) and hence there is no proviso in the article as accepted-by the House covering the case of States in para In as we had for its omission and only the incorporation of proviso (2) in the terms in which it has been then accepted by the House. But now circumstances have ,changed and we find that a proviso similar to proviso (1) of the original draft has to find a place and therefore I have moved this amendment. I hope the

House will accept it.

Mr. President :-The question is

"That for the proviso to article 109 the following proviso be substituted:

'Provided that the said jurisdiction shall not extend to-

(i)a dispute to which a State for the time being specified in Part III of the First Schedule is a party, if the dispute arises out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the date of commencement of this Constitution and has, or has been, continued in operation after that date;

(ii)a dispute to which any State is a party, if the dispute arises out of any provision of a treaty, agreement, covenant, engagement, sanad, or other similar instrument, which provides that the said jurisdiction shall not extend to such dispute'."

The amendment was adopted. Article 112

Shri T. T. Krishnamachari : May I request you to hold over this article till tomorrow ? There are certain Members in this House who have represented that they would like to examine this article a little further, and if it is not inconvenient, I would request the chair to hold it over till tomorrow.

Mr. President : It is held over. We will take up amendment No. 365. Article 119.

Shri T. T. Krishnamachari :In moving amendment No. 365, I would like you to permit me to incorporate in this amendment, amendment No. 388 which I have tabled today- Sir, I move :

"That article 119 be renumbered as clause (1) of article 119, and to the said article as so renumbered the following clause be added. (2)The President may, notwithstanding anything contained in clause (1) of proviso to article 109 of this Constitution, refer a dispute of the kind mentioned in the said clause to the Supreme Court for opinion and the Supreme Court may, after such hearing as it thinks fit, report to the President its opinion thereon." This again happens to be part of article 119 as it originally appeared in the Draft Constitution. Practically word for word, except for the minor variations I have introduced in my subsequent amendment with regard to the last three lines of this amendment, it appeared in the original article 119. We have now felt that it ought to be restored, though it was not originally put in 119 as it was passed by the House. The intention is more or less self-explanatory. It is a question of empowering the President to refer a matter like the one mentioned in the amendment to the Supreme Court for its opinion and for the Supreme Court to report to the President its opinion thereon and it varies vitally from the provision of article 119 as it stands now. It is found necessary in circumstances now present in view of the enlargement of the scope of the Constitution by the additions that have since been made.

Mr. President : The question is

"That article 119 be renumbered as clause (1) of article 119, and to the said article as so renumbered the following clause be added:- (2)The President may notwithstanding anything contained in clause (i) of the proviso to article 109 of this Constitution, refer a dispute of the kind mentioned in the said clause to the Supreme Court for opinion and the Supreme Court may. after such hearing as it thinks fit, report to the President its opinion thereon'." The amendment was adopted. Shri T. T. Krishnamachari : Sir, I move :

"That in clause (3) of article 135, for the words 'shall have an official residence' the words 'shall be entitled without payment of rent to the use of his official residences' be substituted."

This refers to the Governor. The amendment to article 48 referred to the President and it has been accepted by the House.

Shri H. V. Kamath : In my humble judgment there is a little discrepancy here. We have provided rent-free residences to the President and the Judges of the Supreme Court at the Centre. Similarly, on the same reasoning, should we not provide rent-free residences to the Governor and the High Court Judges? Why do we provide it for the Governor only ?

The Honourable Dr. B. R. Ambedkar : Logic cannot

be employed to make a proposition absurd.

Mr. President : The question does not arise here. The question is:

"That in clause (3) of article 135, for the words 'shall have an official residence' the words 'shall be entitled without payment of rent to the use of his official residences' be substituted."

The amendment was adopted.

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

"That in clause (3) of article 135, for the words 'the Legislature of the State the word 'Parliament' be substituted."

The appointment of the Governor is ' now being made by the President. It is therefore felt that it would not be proper to leave-his emoluments to be decided by the legislature of the State as it originally was when we had intended that the Governor should be elected. This should have been amended earlier,. but we found that we could do it only at the last stage. Therefore, I am moving ,that the emoluments of the Governor shall be determined by Parliament by law.

Prof. Shibban Lal Saksena : I am glad that the change is being made. I would only like to know who will pay the salary of the Governor will it come out of the provincial exchequer or the Central exchequer ?

Mr. President : It will be a charge on the provincial revenues.

The question is :

"That in clause (3) of article 135 for the words 'Legislature of the State' the word Parliament be substituted."

The amendment was adopted.

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

"That clause (4) of article 144 be omitted."

Sir, clause (4) is similar to article 62(5) (a) which has been omitted and the reason for moving this is that this House has decided that there should be no Fourth Schedule to this Constitution, and as this clause is entirely dependent on the fact that there should be such a Schedule, it is no longer necessary.

Mr. President : The question is

"That clause (4) of article 144 be omitted."

The amendment was adopted.

Shri T. T. Krishnamachari : Sir, I move

"That clause (2) of article 149 be omitted."

Clause (2) of article 149 is much the same as the previous article which the House has accepted, in- regard to the House of the People. This clause (2) as it now stands provides for election on the basis of adult suffrage and so oil and we find that this has been transposed. Now article 289-B deals with elections to Parliament and with elections to the Legislature of a State. Therefore this clause is not necessary.

Prof. Shibban Lal Saksena : I am not moving my typed amendment which reads :

"That amendment 369 of List IV (Second week) be deleted."

Mr. Naziruddin Ahmad : Some of the Members including my humble self find it difficult to follow these changes of mind. When clause (2) of article 149 was there, then article-289-B should not have been passed : we should have passed immediately another amendment just to remove mere duplication. So far as the present amendments are concerned they have been circulated to us only today. The Members have had no time to consider them. The result of these hurried and rapid amendments might be that there might be other anomalies requiring further clarifications and corrections. It is difficult to follow them and the way we have been amending our old decisions on the ground of anomalies and duplications shows the danger of adopting them without real consideration.

Mr. President : I think all these articles were introduced under a separate part dealing with elections, and so it was considered necessary to remove all those which dealt with elections to this one place.

Mr. Naziruddin Ahmad : Why were they not thought of at the time of those amendments ?

Shri T. T. Krishnamachari : The explanation that the Chair has given is perfectly right. Actually we thought of a complete chapter and at the time that the chapter was introduced and accepted by the House we did not move for the deletion of this article because it was thought that it could be done at the end of debate in the Second Reading. We felt that various other things would arise and an amendment could be made

to deal with these articles at the end. That is why we have brought it up now.

Mr. President : The question is

"That clause (2) of article 149 be omitted."

The amendment was adopted.

Shri T. T. Krishnamachari : Sir, I move

"That in clause (4) of article 149 for the words 'Legislature of the State' the word 'Parliament' be substituted."

The reason is this: that the powers that are given to the Legislature of a State under clause (2) have now been given under article 290 to Parliament. It was a question of delimitation of other things and therefore this alteration is necessary. I am sure that my honourable Friend, Mr. Naziruddin Ahmad, would not find fault with us for not having at that time moved for a deletion of these words in substitution for the word "Parliament" because we felt that we could do it later on and therefore we had left it out at that time. It was not that we were unaware of the fact that we were doing something contrary to clause (4)of article 149.

Shri B. V. Kamath : There is a little verbal slip committed by the Drafting Committee in this connection. The word "Parliament" ought to substitute the phrase "the Legislature of the State"; otherwise if the amendment is accepted as it is, the clause would read as follows:

"With effect from such date as the Parliament may by law determine." The Parliament' is obviously incorrect.

Shri T. T. Krishnamachari : I am very grateful to my honourable Friend for drawing our attention to it. May I ask you to treat the amendment that has been moved by me as :

"the Legislature of the State?"

I am very grateful to my honourable Friend.

Shri H. V. Kamath : Why not treat it as your amendment further amended by me ?

Prof. Shibban Lal Saksens : This is an important amendment. Here it is said:

"Upon the completion of each census, the representation of the several territorial constituencies in the Legislative Assembly of each State shall subject to the provisions of article 289 of this Constitution, be readjusted by such authority, in such manner and with effect from such date as the Legislature of the State may by law determine........

The intention was that when the new census is completed and the constituencies have been readjusted, then the Legislature of the State shall be the proper authority to readjust them. Now the powers have been given to Parlia ment. I welcome this from the point of view that it shall be somewhat uniform. But I want to know what is the machinery by which this will be dope because the population of a province may increase and how with the new Constituencies be readjusted ? I am sure every province would like to be heard before such readjustment and as such there should be some provisions by which Par Lament, before making such an amendment, should be able to know the views- of the Legislature of the State concerned. Take my own province: the population is six crores and we may have 500 seats. But suppose the population, increases-then the constituencies may have to be changed. Or take another province where the population is small and it increases : will they be able to increase the constituencies according to the population ? We have to provide how the Legislature of a State can be heard before the Parliament takes its decisions.

Mr. Naziruddin Ahmad : I would submit only one word in reply to what has been said by Mr. T. T. Krishnamachari. For one of my remarks in the previous amendment, Mr. Krishnamachari says that I am finding fault with them. I am not really finding fault with him but I just explained my difficulty which is shared by a number of Members in the House. Mr.T.T. Krishnamachari is on the other hand finding fault with Members.

Shri T. T. krishnamachari : Sir, if I caused any annoyance to my friend I would like to apologise. In regard to my honourable Friend Prof. Shibban Lal Saksena's remarks I would ask him once again to read article 290. So far as the machinery is concerned the intention was that the machinery should be created and probably would be created. But at the moment we

cannot say anything more than what is said in article 290 read with clause (4) of article 149.

Mr. President : The question is

"That in clause (4) of article 149 for the words 'the Legislature of the State' the word 'Parliament' be substituted."

The amendment was adopted.

Shri T. T. Krishnamachari : Sir, may I request you to hold over amendment No. 371 as it is analogous to amendment No. 364 regarding which you were good enough to accede to my request to hold it over till tomorrow. Sit, I move :

"That to article 230 the following words be added at the end:-

,or any decision made at any international conference, association or other body'."

I think my honourable Friend Mr. Kamath would certainly appreciate this amendment, particularly in view of the fact that he was so keen to elaborate the provisions of the relative entries in List I of Schedule VII. The article as amended would, read :

"Notwithstanding anything in the foregoing provisions of this Chapter, Parliament his power to make any law for any State or part thereof for implementing any treaty, agreement of convention with any other country or countries or any decision made at any international conference, association or other body."

I think this makes it perfect and meets with all contingencies that might occur in which Parliament will have to make legislation for implementing international agreements and decisions of international conferences to which this country is or will be a party.

Shri H. V. Kamath : I am quite satisfied with the statement made by my Friend Mr. Krishnamachari.

Mr. President : The question is

"That to article 230, the following words be added at the end:-

,or any decision made at any international conference, association or other body'."

The amendment was adopted Shri T. T. Krishnamachari : Sir, in respect to amendment No. 373 I would ask your permission to hold this over till tomorrow.

Shri R. K. Sidhva : I can understand changing one's mind after some days but this was presented to the House yesterday and so soon the honourable Member has changed his mind.

Shri T. T. Krishnamachari : Sir, I move

Mr. Naziruddin Ahmad : Sir, on a point of order, this is supposed to be a very important clause and it was circulated to us only this morning. We have many other things to do besides attending this House and we require time to consider the amendments. We cannot just now deal with them on the spur of the moment.

Mr. President : Very well, the amendment may be held over.

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

"That sub-clause (c) of clause (1) of article 303 be omitted."

Before I move article 303 I would like, Sir, to have your permission to move an item in clause 303(1) (b) which has been held over. Items (b) and (c) of clause (1) of article 303 were held over and my amendment No. 375 is to ask per mission of the House to delete item (c). Item (b) will have to be moved and if you will give me permission I will move it. There is no amendment to this. It relates to the definition of Anglo-Indians. Sir, I move :

"That item (b) of clause I of article 303 as it originally stood in the Draft Constitution be adopted."

Shri H. V. Kamath : Sir, what will happen to those persons whose progenitors in the male line were of Australian or American descent ? "Anglo" refers to England and not Europe. This is somewhat badly drafted. What about those of American, Australian or Canadian descent ? I do not know how this difficulty will be overcome.

Shri T. T. Krisnamachari : This is the definition is the Government of India Act and we have only borrowed it.

Shri H. V. Kamath : Can we not rectify a mistake in the Government of India Act ?

The Honourable Shri K. Santhanam : The words "European descent" will include persons of Australian and American descent also.

Shri H. V. Kamath ; Sir, are you satisfied with this draft ? I wonder.

Mr. President : Do not put me personal questions. I am satisfied with whatever the House adopts. Item (b) of clause (1) of article 303 was held over on the 16th

September......

Mr. Naziruddin Ahmad : We are reminded of it only when the honourable Member read the revised draft form. It was not on the agenda. It shows gross carelessness.

Mr. President : Article 303 is on the agenda and no omissions or corrections in that article are now coming before us. I do not think it is any use holding over any further. I have looked over the amendments in the second printed list and I do not find any substantial amendment to this.

The question is : "That item (b) of clause (1) of article 303 as it originally stood in the Draft Constitution be adopted."

The motion was adopted. Shri T. T. Krishnamaphari : Sir, I move

"That sub-clause (c) of clause (1) of article 303 be omitted."

This refers to the Indian Christians and there is no reference in the Constitution to Indian Christian as such because the rights that were originally given to them have now been abrogated by the amendments that have been moved. Therefore, Sir, this definition is no longer necessary.

Mr. Naziruddin Ahmad : What is this amendment, Sir ?

Mr. President : The definition of the word 'Christian' that is given in clause (c) in article 303(1) is to be omitted, because the word 'Christian' does not occur anywhere in the constitution.

That is the amendment.

The question is:

"That sub-clause (c) of clause (1) of article 303 be omitted."

The amendment was adopted.

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

"That for sub-clause (III) of clause (1) of article 303 the following sub-clause be substituted:-

'(III) Indian State' means any territory which the Government of the Dominion of India recognised as such a State'."

The reference is to page 157 of the Draft Constitution and it has reference to an item that has already been passed. In the original as we have passed already this (III) is split up into two and deals with a definition as respects the period before the commencement of the Constitution and as respects the period after the commencement of the Constitution. That has now been found to be unnecessary and therefore, this definition has been substituted.

Shri H. V. Kamath : Sir, is it very necessary to say "the Government of the Dominion of India ?" Is it not enough to say "the Government of India?"

Mr. President : There is a confusion. The Government of India means. also the Government of India under the new Constitution, but the Government of the Dominion of India means the Government which was in power before the commencement of the Constitution. I think it is to avoid that confusion that this amendment is brought in.

Mr. Naziruddin Ahmad : It seems to me, Sir, that the word 'Dominion' has been used in reference to the future.

The Honourable Shri K. Santhanam : I think that instead of the words such a State" occurring at the end, the words "an Indian State" would be better.

Shri T. T. Krishnamachari : I am advised that if the amendment proposed by Mr Santhanam is accepted the meaning Will not be clear. The real fact is this that there is no need for the definition of an Indian State in so far as the Constitution- after it comes into operation is concerned. It only has to refer to those States before the commencement of the Constitution. Therefore' it is not necessary to relate the 'Indian State' to the Constitution as such after it comes into operation and that is why we have shortened the definition that was originally accepted by the House into one, instead of two alternatives, and I am advised that the phrase "as such" exactly suits the purpose for which it is intended.

The.Honourable Shri K. Santhanam : Even in the new Constitution the words 'Indian State' have occurred and will have to be interpreted for the purpose of assets and liabilities. Therefore, we have to say that 'Indian State' means any territory which was recognized as an 'Indian State' by the Dominion of India. This is purely a verbal- amendment.

Shri T. T. Krishnamachari : In the new Constitution wherever reference is made to an 'Indian State', it is made as a State and

its relation to what existed previously is to the corresponding Indian , State and the corresponding province. There is no place where the 'Indian State' occurs for the purpose of interpretation as things would exist after the Constitution comes into operation.

Mr. Naziruddin Ahmad : May I ask a question as to where in this Constitution the expression 'Indian States' have been used ? We must have an idea of the context in which this term is used in order to define it.

Mr. President : Mr. T. T. Krishnamachari has just mentioned two instances.

Shri T. T. Krishnamachari : If my honorable Friend wants a ready reference, I would ask him to refer to article 273-A which has now been held over and to 267-A which has been passed. There are a number of other articles as well of this nature.

The Honourable Shri K. Santhanam : At least the article 'a' occurring in the words 'such a State' may be dropped.

Mr. President : Is there any harm in saying 'recognized as an Indian State' ?

Shri T. T. Krishnamachari : That would not be correct, Sir. If we put the words 'Indian State', it must be as 'an Indian State', and it cannot be stated merely as 'Indian State'. Whether we retain the word 'State, or 'Indian State', the article will be necessary whether it is 'a' or 'an'. May 1, Sir, read the definition in the Government of India Act?

"Indian State means any territory not being part of British India which His Majesty's Government recognized as being such a State, whether described as a State, an estate, jagir or otherwise."

Mr. President : I do not suppose there will be any difficulty about the meaning. It is question of English.

Shri T. T. achari : We have more or less followed the precedent of the Government of India Act in these matters.

Mr. President : The question is :

"That for sub-clause (111) of clause (1) of article 303 the following sub-clause be substituted:-

'(111) 'Indian State' means any territory which the Government of the Dominion of India record as such a State'."

The amendment was adopted.

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

"That for sub-clause (nn) of clause (1) of article 303, the following sub-clauses be substituted:-

'(nn) 'Rajpramukh' means-

(i)in relation to the State of Hyderabad, the person who for the time being is recognised by the President as the Nizam of Hyderabad;

(ii)in relation to the State of Jammu and Kashmir or the State of Mysore, the person who for the time being is recognised by the President as the Maharaja of that State; and

(iii)in relation to any other State for the time being specified in Part III of the First Schedule, the person who for the time being is recognised by the President as the Rajpramukh of that State,

and includes in relation to any of the said States any person for the time being recognised by the President as competent to exercise the powers of the Rajpramukh in relation to that State'."

Sir, the original definition which this amendment seeks to replace referred only to Ruler, I propose to follow upto his amendment with a definition of 'Ruler', which is as follows

"(nn) 'Ruler' in relation to an Indian State means the Prince, Chief or other PC". on by whom any such covenant or agreement as is referred to in clause (1) of Article 267A of this Constitution was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor or such Ruler."

As I said earlier, this splits up the original sub-clause (nn) in article 303 (1). It dearly states who is a Rajpramukh and in so referring to Rajpramukh, also permits the use of the word Nizam for the Ruler of Hyderabad and Maharaja for the Rulers of Jammu and Kashmir and Mysore. It also makes the distinction between Rajpramukh and Ruler clear, in that the Ruler will be a person,, who will not be a Rajpramukh, but will be a person who had entered into an agreement with the Government of India as is referred to in article 267-A, which was

passed by the House yesterday even though he does not happen to have. ruling powers. It has been provided that he must be a person who has been recognised by the President as a Ruler. Provision has also been made that the President should also recognise his successor as such Ruler.

Shri H. V. Kamath : Unfortunately, Sir, there are two lacunae in this amendment It omits to define, firstly, Up- Rajpramukh and also Maharajpramukh. I am told that there is one person, the Maharana of Udaipur who is known as the Maharajpramukh. These are not defined in this amendment. These omissions must be filled before it can be good.

Mr. President : There is notice of an amendment bringing in the definition of Up-Rajpramukh. That is coming up later. The word Maharajpramukh has never been used.

An Honourable Member : He has no powers.

The Honourable Shri K. Santhanam : About the definition of Ruler, Sir,, the last sentence says, "and includes any person who for the time being is recognised by the President as the successor of such Ruler." If he is the successor of such Ruler, he will automatically be the Ruler. We cannot have a Ruler and a successor at the same time. I think the last portion would lead to confusion. it might suggest that at a time, there can be a Ruler and successor recognised for the same State. I think that is an impossibility. If he is the real successor, he becomes' automatically the Ruler. At one time, there can be only one Ruler or successor. There cannot be both.

Shri T. T. Krishnamachari : The difficulty in my honourable Friend's Process ,of thinking is that there is no such thing as automatic succession. Succession has got to be recognised by the President.

The Honourable Shri K. Santhanam : What I meant is as soon as somebody is recognised as the successor, he will be the Ruler. Otherwise, there is no meaning in recognising a successor.

Shri T. T. Krishnamachari : There is a certain amount of confusion because we shall have Rulers without a State. Only the Rajpramukh is related to a State. The other Rulers will be more or less connected with the Estates that they held in the past. The idea really is that the person who succeeds to the estate must be recognised by the President. If he does not recognise him, be does not become the Ruler. There is nothing automatic about it. If the President recognises one person as a Ruler, until there is a vacancy, it is unlikely that he will recognise another as a successor. There must be a vacancy before the successor could be recognised. I see no difficulty in the wording as it is.

The Honourable Shri K. Santhanam : May I enquire whether a person who has lost his State by merger in a province continues to be a Ruler or he has become successor ?

Shri T. T. Krishnamachari.: The whole difficulty is, this is rather intricate. It is baffling. I admit that a person who has lost his State is nevertheless a Ruler, under the definition in (nn), and also for the purpose of Article 267- A.

The Honourable Shri K. Santhanam : Why not his son also be Ruler ?

Shri T. T. Krishnamachari : Might be.

The Honourable Dr. B. R. Ambedkar : If I may say so, this definition of Ruler is intended only for the limited purpose of making payments out of the privy purse. It has no other reference at all.

The Honourable Shri K. Santhanam : My point is whether it will be so construed as to mean two people at the same time entitled to the allowances. I want to ensure that at a time there will be only one person who will be entitled under thecovenant to receive payment.

Mr.President : I think that is just secured by this, because the person recognisedas, the Ruler alone will be entitled to the payment.

The Honourable Dr. B. R. Ambedkar : That would be governed by the provisions regarding recognition. I am sure the President is not going to recognise two or three or four persons. This expression is deliberately used in order to give the power to the President.

The Honourable Shri K. Santhanam : He might be called the Ruler or successor.

Mr. President : Mr. Santhanam,

I think that is quite clear. The idea is to preserve those privileges which have been conferred on the Rulers to those who are recognised as their successors. That is to say, if a person is recognised as the Ruler, only that person who is recognised as his successor will inherit those privileges and not other successors.

I do not suppose any further discussion is necessary. I shall put it to vote.

The question is : -

"That for sub-clause(nn)of clause(1) of article 303, the following sub-clauses be substituted:-

'(nn) 'Rajpramukh' means-

(i)in relation to the State of Hyderabad, the person who for the time being is by the President as the Nizam of Hyderabad;

ii)in relation to the State of Jammu and Kashmir or the State of Mysore, the person who for the time being is recognised by the President as the Maharaja of that State; and

(iii)in relation to any other State for the time being specified in Part III of the First Schedule, the person who for the time being is recognised by the President as the Rajpramukh of that State.and includes in relation to any of the said States any person for the time being recognised by the President as competent to exercise the powers of the Rajpramukh in relation to that State;"

(nnn) 'Ruler' in relation to an Indian State means the Prince, Chief or other person by whom any such covenant or agreement as is referred to in clause (1) of article 267A of this Constitution was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler';

The amendment was adopted.

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

"That for sub-clause (r) of clause (1) of article 303, the following sub-clause be substituted:- (r)'railway'does not include-

(a)a tramway wholly within a municipal area, or

(b)any other line of communication wholly situate in one State and declared by Parliament by law not to be a railway'."

Sir, the original definition stood thus:

"A railway does not include a tramway whether wholly within a municipal area or not."

It has now been found that there are railways in certain States which are not railways in the sense that they are accepted to be railways,; but they are something in between a railway and a tramway. The definition is so altered as to permit the Parliament by law to recognise what is not to be a railway. This has been necessary because since we framed the original definition, certain things have transpired, in that most of the Indian States have or are about to transfer their railways to the Government of India and the conditions existing in those States have to be taken into account and provided for. That is why this amendment is being introduced.

Shri R. K. Sidhva : Sir, tramways are never known as railways. I think it is redundant to say tramway within a municipal area. A tramway is a tramway. Who has brought into the brain of the Drafting Committee that tramway is a railway ? It looks so awkward. I therefore feel, Sir, that subparagraph (a) is redundant.

The Honourable Shri K. Santhanam : I am afraid my honourable Friend is wrong. Even at the time when the original definition was under discussion, I pointed out that it was wrong to say that a railway does not include a tramway. Because mechanically, there is no difference whatsoever between a railway and a tramway, except it may be that the latter has only one carriage or two carriages. Therefore this amendment is necessary. Otherwise. in many places, many lines may be called tramways and there may he disputes. We do not want to have any kind of dispute. Therefore, the present definition is the proper definition to be adopted.

Mr. Naziruddin Ahmad : With regard to paragraph (b) I have some difficulty. it was stated by Mr. Krishnamachari in this argument......

Shri T. T. Krishnamachari : May I suggest to the honourable Member to accept the argument of the expert who spoke before me in support of this amendment and

ignore anything that I said before.

Mr. Naziruddin Ahmad : It is now clear that Mr. T. T. Krishnamachari is merely a conduit pipe. After all, he has taken the responsibility of explaining the matter. He has explained that the word State really means an Indian State and does not mean a province. In the new state of affairs, a State also includes a province. What. is meant probably is a State mentioned in Part III of the first schedule. If that is so, it should be specifically stated. Because otherwise if there are small railways in any Indian province in Part 1, they would alsobe excluded. If it is the intention to exclude Indian States on the ground thatthey have not come to terms up to this time, we should specifically state that.

Shri T. T. Krishnamachari : Right through the Constitution we have used onlyone word 'State'. Where we wanted to differentiate, we have mentioned themas States in Part I or Part It and so on. So I fail to see the force of Mr. Naziruddin Ahmad's speech. Mr. President : Mr. Krishnamachari did not base his argument on the use of the word State. He did not say that either.

Nuziruddin Ahmad : During the argument he mentioned the case of an Indian State. That had misled me.

Mr. President :The question is

"That for sub-clause (r) of clause (1) of article 303, the following sub-clause be substituted:- (r)'railway' does not include-

(a)a tramway wholly within a municipal area, or

(b)any other line of communication wholly situate in one State and declared by Parliament by law not to be a railway'."

The amendment was adopted.

Shri. T. T. Krishnamachari : May I request you to permit me to move an amendment which has been tabled and has just been circulated. It has not been numbered and it refers to Up- rajpramukh. I move:-

"That to clause (1) of article 303, the following sub-clause be added:

'(y)'Up-rajpramukh' in relation to any State means the person who for the time being is recognised by the President as the Up-rajpramukh of that State'."

Sir, I am indebted to my honourable Friend the Prime Minister of Mysore for drawing my attention to this defect.

As regards the question raised by Mr. Kamath about Maharajpramukh, I would only like to say that there is no mention in this Constitution of Maharajpramukh although one such person exists. We have not constitutionally recognised the existence of such a person. This definition arises out of the fact that we had to make mention of the name Up- rajpramukh in two places in the amendments that were moved yesterday in regard to removal of disqualifications for office. I hope the House will accept my amendment.

Shri. H. V. Kamath :There is some little difficulty in this connection. In accordance with the Sanskrit and Hindi philology as well as etymology, the proper spelling should be Up-rajpramukh; otherwise I have heard British and Other foreign journalists pronouncing it as Aprajpramukh.

Mr. President : The spelling will be corrected but I do not think that will prevent the ignorant people from mispronouncing it.

Shri Jainarain Vyas (United State of Rajasthan): Sir, I do not agree with the position of Maharajpramukh. He presides over the meetings of the Princes and if he is not recognised as the Constitutional Maharajpramukh, then all the meetings over which he presides will be null and void.

Mr. President : Is there anything like the meeting of the Princes as it used to be of the Chamber of Princes ?

Shri Gokulbhai Daulatram Bhatt (Bombay States) : [Sir, there is an article in the Covenant of Rajasthan which says: "If any meeting of the princes is held, it would be presided over by the Maharana of Udaipur as Maharajpramukh, if he be present in the meeting." It has been clearly mentioned therein. It is plain that this implies a question of his dignity. No other administrative power has been vested in him. But to that extent it is there and it deserves consideration. Hence it should be reconsidered.]

Shri T. T. Krishnamachari : We have not put in any provision of that nature in Part VI A.

Mr.

President : Is there any provision for a meeting of the Princes in our Constitution ?

Shri Gokulbhai Daulatram Bhatt : Meeting of the Princes of the States that have been merged to form the Rajasthan Union is at present provided for.

An Honourable Member : There is a provision in the Covenant.

Mr. President : Not in the Constitution.

Shri Gokulbbai Daulatram Bhatt : The terms Rajpramukh and Uprajpramukh are there in the Covenant.

Mr. Naziruddin Abmad : Covenants are part of the Constitution. They have joined as under the covenants. So we should recognise them. This requires careful consideration.

Shri H. J. Khandekar (C. P. & Berar : General) : I think this would be held over.

The Honourable Shri K. Santhanam : Here it is only the question of definition. We do not want a definition unless it is to be used in the Constitution.

Shri T. T. Krishnamachari : Sir, this will have to be accepted because an amendment in which this word occurs has already been accepted. If it is a definition of a term which has not found a place in the Constitution, that is a different matter, but my friend's contention is not a bar to the acceptance of this amendment.

Mr. President : So there is no question about Up- rajpramukh. We leave the question of Maharajpramukh for future consideration.

Shri Gokulbhai Daulatram Bhatt : I would like it to be made clear lest it way be held that, just as Rajpramukh and Up- rajpramukh are mentioned, so also he should have been specifically mentioned.

------------------------------------------------------------------------------------

*[ ] Translation of Hindustani speech.

Mr. President : In our Constitution we have only used the term Uprajpramukh. The qualifying word may not create any difficulty.

Shri T. T. Krishnamachari : I have been informed that the allowance of the Marajpramukh of Udaipur is not as Maharajpramukh but as a Ruler who gets his privy purse under articles 267-A and therefore there is no need for a special title to be mentioned in the Constitution. I

Mr. President : I am putting this to vote now.

Shri H. J Khandekar : What will be the position if the Up- rajpramukh is a lady ? What will be the name ?

Mr. President : In that way we have got women Chairman of Committees. That does not create any difficulty so far as English is concerned.

The question is :

"That to clause (1) of article 303, the following sub-clause be added:- '(y) 'Up-rajpramukh' in relation to any State means the person who for the time being is recognised by the President as the Up-rajpramukh of that state.,,

The amendment was adopted.

Mr. President : We then go to the Schedule.

Shri Yadhishthir Mishra (Orissa States) : Sir, I suggest that the consideration of the First Schedule may please be held over for tomorrow.

Shri Brajeshwar Prasad: Yes, Sir. It may be held over. We got the list at I o'clock this morning only.

Mr. President : It may be moved, and we will take up the amendments tomorrow morning.

FIRST SCHEDULE

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

"That for the First Schedule the following be substituted:-

"FIRST SCHEDULE

(Articles 1 and 4)

The States and the territories of India

PART I.

Name of States. Names of corresponding Provinces.

1. Assam Assam

2. Bengal West Bengal

3. Bihar Bihar

4. Bombay Bombay

5. Koshal-Vidarbh Central Provinces and Berar

6. Madras Madras

7. Orissa Orissa

8. Punjab East Punjab

9. United Provinces. United Provinces.

Territories of States

The territory of the State of Assam shall comprise the territories which immediately before the commencement of this Constitution were comprised in the Province of Assam, and Khasi States and the Assam Tribal Areas.

The territory of the State of Bengal shall comprise the territory which immediately before the commencement of this Constitution was comprised in the Province of West Bengal

Shri B. Das (Orissa : General) : We wanted utkal to be the name of Orissa

The Honourable Dr. B. R. Ambedkar : You may move

an amendment.

"The territory of the State of Bombay shall comprise the territory which immediately before the commencement of this Constitution was comprised in the Province of Bombay and the territories which by virtue of an order made under section 290A of the Government of India Act, 1935, were immediately before such commencement being administered as if they formed part of that Province or which immediately before such commencement were bring administered by the Government of that Province under the provisions of the Extra- Provincial Jurisdiction Act,1947.

The territory of each of the other States shall comprise the territories which immediately before the commencement of this Constitution were comprised in the corresponding Province and the territories which, by virtue of an order made under section 290A of the Government of of India Act, 1935, were immediately before such commencement being administered as if they formed part of that Province.

PART II.

Names of States.

1. Ajmer 2. Bhopal

3. Bilaspur

4. Coorg

5. Cooch-Behar

6. Delhi

7. Himachal Pradesh

8. Kutch

9. Manipur

10. Rampur

11. Tripura

Territories of States

The territory of the State of Ajmer shall comprise the territories which immediately before the commencement of this Constitution won composed in the Chief Commissioner's Provinces of Ajmer-Merwara and Panth Piploda.-

The territory of each of the States of Coorg and Delhi shall comprise the territory which immediately before the commencement of this Constitution was comprised in The Chief Commissioner's Province of the same name.

The territory of each of the other States shall comprise the territories which, by virtue of an order made under section 290A of the Government of India Act, I before the commencement of this Constitution administered as if they were Chief Commissioner's Province of the same name.

PART III

Names of States.

1.Hyderabad

2.Jammu and Kashmir

3.Madhya Bharat

4.Mysore

5.Patiala & East Punjab States Union

6, Rajasthan

7.Saurashtra

8.Travancore

9. Vindhya Pradesh

Territories of States

The territory of the State of Rajasthan shall comprise the territories which immediately before the commencement of this Constitution were comprised in the United State of Rajasthan and the territories which immediately before such commencement were being administered by the Government of that State under the provisions of the Extra-Provincial Jurisdiction Act, 1947. The territory of the State of Saurashtra shall comprise the territories which immediately before the commencement of this Constitution were comprised in the United States of Kathiawar (Satkrashtra) and the territories which immediately before such commencement were being administered by the Government of that State under the provisions of the Extra-Provincial Jurisdiction Act, 1947

The territory of each of the other States shall comprise the territory which immediately before the commencement of this Constitution was comprised in the corresponding Indian state.

PART IV.

The Andaman and Nicobar Islands."

Sir, I do not think the amendment which I have moved calls for any explanation.

Shri Jainarain Vyas : I would like to know if Sirohi State has been put in anywhere.

The Honourable Dr. B. R. Ambedkar : Sirohi, I understand is administered under the Extra-Provincial Jurisdiction Act, 1947, partly by Bombay and partly by Rajasthan. That is the reason why it has not been separately mentioned.

Shri Jainarain Vyas : But it is neither in Bombay, nor in Rajasthan. at the moment.

Mr. Naziruddin Ahmad : I have one or two suggestions to make. With regard to the expression "under section 290-A of the Government of India Act, 1935". I submit an explanation should be added to say that it is the Act, as adapted. And the second suggestion is that in Part II, the names are arranged in the alphabetical order, but I find items 4 and 5 are in an irregular order, and item 4 should come after item 5. That will make it absolutely alphabetical.

Mr. President : You mean Coorg and Cooch-Behar, yes, I think so.

Shri T. T. Krishnamachari : So far as the first point raised by Mr. Naziruddin Ahmad is concerned, I may point out that it was stated on a previous occasion that the short title of the Government of India Act as adapted, is the Government of India Act, 1935.

Mr. President : I think we shall rise now. We shall meet again at ten o'clock tomorrow morning when the amendments will be taken up.

Shri R. K. Sidhva : Is the Preamble also to be taken up- tomorrow ?

Mr. President : Yes, if possible, we shall try to finish it.

Shri R. K. Sidhva : Is there any further article or amendment coming up 7

Mr. President: There are one or two articles we have left over.

Seth Govind Das (C.P. & Berar : General): Will the Preamble be the last thing to be considered ?

Mr. President: Yes, that is the usual thing, I suppose. There is another article-264-A on the agenda-which has not been reached.

Shri R. K. Sidhva: Sir, everyday new articles are brought in and new amendments and we send in our amendments, but as the original amendments are not moved, our amendments also are not to be moved and they are stopped.

Mr. President: I have never stopped amendments in that way. So far as technical difficulties are concerned, I have never allowed them to come in the way of any amendment.

The House now stand adjourned to ten o'clock tomorrow morning.

The Assembly then adjourned till ten of the clock on Saturday the 15th October, 1949.