CONSTITUENT ASSEMBLY OF INDIA VOLUME IV


Monday, the 21st July 1947.

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

PRESENTATION OF CREDENTIALS AND SIGNING OF THE REGISTER

Mr. President: I understand there are three members who have not yet signed the Register who are present to day. They may p1ease sign.

The following members presented their Credentials and signed the Register:

1.Dr. H. C. Mookerjee (West Bengal : General).

2. Mr. F. R. Anthony (C.P., & Berar:General).

3. Kumaraja Sir M. A. Muthiah Chettiyar (Madras : General)

CONDOLENCE OVER THE ASSASSINATION OF GEN. AUNG SAN AND HIS COLLEAGUES IN BURMA

Mr. President: Honourable Members received with the greatest grief the sad news of the tragic circumstances in which General Aung San and his colleagues lost their lives as a result of a dastardly outrage the day before yesterday. The news must have shocked Indians particularly because our relation. with Burma have been of a very friendly character even after Burma was separated. General Aung San was one of those men who had brought Burma to the door of independence and that be should lose his life and that this colleagues should lose their lives at the hands of their own countrymen is tragic beyond words.

I do not know when the word will come to realise that violence, and violence particularly of this type can never solve any problem of the world. If this outrage is any indication of a deep-laid plot, Burma is in, I would fear, for very difficult times. But we have hopes that the Government there which has been brought into power with the overwhelming support of the people will be able to control the situation and that the people of Burma will be able to enjoy the fruits of that independence which those who have lost their lives have just won for her.

I hope the House will permit me to convey our sence of sorrow and our condolences to the people of Burma, to the members of the Government there as also to the members of the bereaved families I hope Honourable members will express their assent by standing in their places.

The Assembly assented, the members standing in their places.

Shri Gokulbhai D. Bhatt (Eastern Rajputana States) :

*[Mr, President, with your permission, I would like to ask one or two questions. For how many days more will this Session of the Assembly continue? Are we going to meet again in August? I wish to know it in order to facilitate my programme.]*

Mr, President: *[I hope that the Assembly will conclude its session within this month, as we have before us one more report of another Committee to consider after we finish the report of the Committee When the Assembly finishes discussions over that report, the great task before us, requiring a major portion of our time would have finished,Besides that, one or two resolutions are also expected. I hope they will not take a long time. Hence I think that thee business of this sitting would be finished by the end of this month. It is possible that 'the members may have to come again on the 15th August.]*

REPORT ON THE PRINCIPLES OF A MODEL PROVINCIAL CONSTITUTION-contd.

CLAUSE 22

Mr, President: We shall now take up the discussion of the clause that we were discussing that day. The amendments have been moved and the motion as well as the amendments are open to discussion.

I would like to know if there is any other amendment of which notice has been given, which had not been moved. My-own impression is that all amendments have been moved.

Mr Aney, you wanted to speak on this ?

Mr. M.S. Aney (Deccan States): Mr. President, Sir, I only wanted to make one observation with regard to the second amendment moved by Mr. Santhanam to Clause 22 that it was, in my opinion a superfluous amendment. He wants to make sure that any rules that may be made will not infringe the primary principle which has been already provided for viz adult franchise, but I believe it is a well known principle

that under the rule making powers those who have to frame the rule have to see that nothing is introduced into the rules which is inconsistent with the principles already embodied in the Statute itself. In view of that and in view of the fact that adult suffrage has already been provided for by a distinct provision in the' Statute the second amendment which he has proposed appears to me to be unnecessary.

Shri K. Santhanam (Madras: General): With regard to the objection raised by Sir N. Gopalaswamy Ayyangar, I have given notice of an amendment which may also be taken up with this. It is in the new supplementary list. I would like to state that no provision has been made for 'lie first election. Unless something is made, that clause is difficult to apply and so I have tabled an amendment as follows:

"That the following be inserted at the beginning of Clause 22,.

'For the first election to the Provincial Legislature under this Constitution. the constituencies, qualifications of voters and other particulars shall be such as may be prescribed, in the Scheduled to this Constitution,"'

Then the clause will run as given and then my amendments will come. I move this amendment as I do not think there is any point to be cleared about it

Mr. President: Does anyone wish to speak about the clause or any of the amendments that have been moved?

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

*[] English translation of Hindustani Speech begins.

I will put the amendments to vote.

This is Mr. Santhanam's amendment.

"That the following be inserted at the beginning of Clause 22:

'For the first election to the Provincial Legislature under this Constitution, the constituencies, qualification of voters and other particulars shall be such as may be prescribed, in the Schedule to this Constitution'."

The Honourable Sardar Vallabhbhai J. Patel (Bombay: General):I accept Mr. Santhanam's as well as Seth Govind Das's amendment.

Mr. President: I put Mr. Santhanam's amendment to vote.

The amendment was adopted.

Mr. President.- Mr. Santhanam's second amendment is as follows:

'That in Clause 22 after the words 'from time to time' the following be inserted: 'in accordance, with the procedure for amendment the Provincial Constitution".

The amendment was adopted.

Mr. President: There is another amendment by Mr. Santhanam as follows :

"That in item (b) of Clause 22. for the words 'the qualifications for the franchise' the following be substituted:

Limitations to adult franchise on grounds of non resident or personal disabilities not based on birth, race, religion or community'."

The amendment was adopted.

Mr President: There is another amendment moved by Mr. Munshi as.. follows:

"That the second proviso to Clause 22 be deleted."

The motion was adopted.

Mr. President: There is another amendment moved by Seth Govind Das as follows:

"That after proviso (2) in Clause 22, the following now proviso be added:

(3) that all provisions under Clause 22(a) to (j) will be made on the principles and in conformity with the instructions laid down in the schedule annexed hereto as to maintain uniformity in there matters throughout the Indian Union'." The amendment was adopted.

Mr. President: Now I put the clause, as amended to vote.

Clause 22, as amendment, was adopted.

Clause 23

The Honourable Sardar Vallabhbhai J. Patel: Sir, I move Clause 23:

"(1) If at any time when the Provincial Legislature is not in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require.

(2) An ordinance promulgated under this clause shall have the force and effect as an Act of the Provincial Legislature assented to by the Governor but every such ordinance-

(a) shall be laid before the Provincial Legislature and shall cease to operate at the expiration of six weeks from the re assemble of the Provincial Legislature, or if

before the expiration of that period resolutions disapproving it are passed by the Legislature, upon the passing of the second of those resolutions: and

(b)may be withdrawn at any time by the Governor.

(3)If and in so far as an ordinance under this clause makes any provision which the Provincial Legislature would not under this Constitution be competent to enact, it shall be void."

Ordinance making power has been subjected to much criticism; but by long experience it has been found that it is necessary to have such provision in the case of an emergency when the Legislature is not sitting and there is not enough time to call the Legislature and there is immediate necessity of passing an urgent legislation.

I do not think there are many amendments to this clause. I move this proposition for the acceptance of the House.

(Messrs. Ajit Prasad Jain, H. V. Pataskar, R. K. Sidhwa, Shibbaydal Saksena and M. Ananthasayanam Ayyangar did not move their amendments.)

Mr. Naziruddin Ahmad (West Bengal: Muslim): Sir, I beg to move that the following new clause be added after Clause 23:

"24. All matters incidental to or consequential upon the Clauses above shall be deemed to be part of, and included in the said clauses."

Sir, my object in moving this amendment is to remove all technical difficulties that may arise at the time of the drafting of the final bill. We have accepted in the House a large number of amendments in the original Report and it is just possible that there may be some gap or omission here and there, met with at the time of the final drafting- I therefore propose this amendment so as to remove any such technical difficulties.

Mr. President: Mr. Naziruddin, I think yours is not an amendment but the addition of a new clause. We had, I think, better dispose of Claim 23, and then go on to this new clause.

No amendment has been moved to this clause, Clause 23. If any member wishes to speak about it, he can do so now.

(No member rose to speak.)

I shall now put the motion:

"23. (1) If at any time when the Provincial Legislature is not in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require.

(2)An ordinance promulgated under this clause shall have the same force and effect as an Act of this provincial Legislature assented to by the Governor, but every such ordinance-

(a)shall be laid before the Provincial Legislature and shall case to operate at the expiration of six weeks from the re assemble of the Provincial Legislature, or, if before the expiration of that period resolution disapproving it are passed by the Legislature, upon the passing of the second of those resolution; and

(b)may be withdrawn at any time by the Governor.

(3)If and in so far as an ordinance under this clause makes any provision which the Provincial Legislature would not under this Constitution be competent 'to enact, it shall be void."

The motion was adopted.

Mr. President: Mr. Naziruddin Ahmad will please move his clause.

Mr. Naziruddin Ahmad: Sir, I beg to move that the following new clause be added after Clause 23:

"All matters incidental to or consequential upon the clauses above shall be deemed to be part of and included in, the said clauses."

Sir, I submit that this clause would be necessary to remove technical difficulties at the time of the drafting. We have introduced some new amendments in this House-, without perhaps Much. notice. It is, therefore, just possible that there may be gaps here and there, I mean, unintention at gaps or technical difficulties. So at the time of drafting a point may arise that particular things i.e. things incidental to certain amendments adopted here or consequential upon those amendments-are not meant to be included in the Report. It is for this reason that I have proposed this new clause. I do not know of any gaps, apparent gaps, ,just now, but all the same I have brought forward this clause so that if

there is any gap or omission, then this clause may be helpful to the draftsmen. With these few words I submit it for the acceptance of this House.

Mr. President: A new clause, Clause 24, has been proposed to be added here. Personally I have not been able to quite understand the effect of this additional clause. If any member wishes to speak about it. I shall be obliged if he would enlighten me on it.

Shri M. Ananthasayanam Ayyangar (Madras. General): Sir, I do not think there is any need for such a new clause as this because we are here only approving the general principles. Things ancillary, incidental, supplementary, consequential, etc, will naturally have to be added when the final drafting is done. The clause now proposed is vague. With it, it is not enough to meet the situation, without it we are none the worse of. In any case it need not be considered or voted upon now.

Mr. President: As there is no other speaker, I shall put the motion to House.

The motion is that the following new clause be added after Clause 23.

"24 All matters incidental to or consequential upon the clauses above shall be disputed the part of, and included in, the said clauses."

The motion was negatived.

Mr. President: There is notice or another additional clause by Mr. Santhanam. Will Mr. Santhanam please move it

Shri K. Santhanam: Sir, I beg to move that after Clause 23 the following new clause be inserted :-

`24 The Governor of a province in which the legislature consists of a single chamber shall have the right to return at his discretion a Bill passed by the legislature for reconsideration and may suggest amendments. If the Bill is passed again by the legislature with or without, amendments by an absolute majority he shall assent to it."

This is an amendment of some substance. As things stand in the drift of the model constitution, if a legislature passes a law by a santch vote or by a very narrow majority it will have to become law immediately because there is no power of veto or any other power vested in the Governor. Sir, I myself do not want any power of veto for the Governor; 11 want full autonomy and full responsible government in every province. But I want to give the Governor the power to send a Bill passed by the provincial Assembly for reconsideration. If after reconsideration the Assembly passes it by an absolute majority he will have no power of veto but will have to give to his assent to it.

Sir, I have limited this power only to those provinces which will have unicameral legislatures because where there are two chambers the revisory function will belong to the Upper House. I have also vested this power in the Governor's discretion. Obviously a ministry which rushes a Bill through by a narrow majority will not care to advise reconsiderations and so it should be a power in the Governor's discretion.

Sir, I move.

Pandit Lakshmi Kanta Maitra: (West Bengal: General): Sir, I am afraid 'this amendment cuts at the very root of the democratic principle which forms the basis of this constitution. What after all is- Mr. Santhanam's point? It is that if in any province with a unicameral legislature a Bill is passed by a narrow majority the Governor should be invested with additional powers-which are to be exercised by him in his discretion to make suggestion to the legislature to reconsider the whole situation and then come to a decision. Now I ask the House to consider the result of such a procedure. In my opinion the inevitable result would be that the Governor would be antagonised and would straight away come into conflict with the popular ministry which would be functioning. I do not see any necessity for it; on the other hand if any measure has been passed in inordinate haste and without due consideration and discrimination, the legislature surely is not debarred from repealing it or amending it at subsequent sessions, if it is not the product of mature deliberation. So I feel that to invest the Governor with powers like this would be directly to trench upon the independence and responsibility of

the legislature. It will unnecessarily bring the Governor into conflict with the ministry and I feel that the motion should not be supported..

Mr. N. V. Gadgil (Bombay: General): Sir, I desire to make a suggestion which need not be incorporated here and now but may be considered as the proper stage later on. I suggest that there should be a time-limit within which the Governor should send a Bill back with or without amendments, failing which it should be taken automatically that he has assented to the Bill. The American constitution contains this kind of provision and it should be embodied here.

Pandit Lakshmi Nanta Maitra: While laying down a time-limit, does Mr- Gadgil accept the principle that the Governor will be in a position to reconsider the whole situation over the head of the legislature?

Shri M. Ananthasayanam Ayyangar: Sir,I consider this a very whole-some provision. I do not know why my friend Pandit Maitra has any ,doubt as to the intention of Mr. Gadgil in supporting this amendment. He accepts the principle and then says that there should be a time-limit. In the American constitution a time-limit of ten days is fixed. There must be a period within which the Governor must consider the matter and send it back for reconsideration of the House. After all a sufficient number of members might not have been present, there may be important matters involved relating to minorities and other matters where consideration at some greater length should have been bestowed on a Bill instead of its being through. The Governor would have to be watchful at every stage; it is not as if he would actually try to interfere at every stage with a popular ministry. He will be on his guard; has will be the President of the Council of Ministers from time to time and will exercise a wholesome,influance. If inspite of all this a situation suddenly arises where a particular section wants to rush a Bill through let him put his check upon that and send it for reconsideration of the legislature.. There are similar provision in the Government of India Act-. I can assure my friend Pandit Maitra that a popular Governor would not try to interfere except in very special cases. I support the amendment.

Mr. Tajamul Husain (Bihar: Muslim): Sir, I rise to support the amendment. What Would-be the position if a Bill is sent for the assent of the Governor and he is not satisfied with the provisions of the Bill? Ordinarily a Governor who is selected on adult franchise will not interfere with any measure which is passed by the legislature. But in case he is not satisfied with the Bill is have to sign it against him conscience? Or is he to send it back to the House with his amendments or make a total rejection? I think under the English constitution if a Bill passes through the House of Commons it goes to the House of Lords and is then sent to the King for his assent. In practice the King always assents though he has the right to reject a Bill in which case it goes back to the Houses of Parliament. If it passes again without any amendments and is again sent to the King for his assent he must sign it or he must abdicate. Similarly if the Governor is given power to refuse his consent or if he sends the Bill with his amendments it is for the provincial legislature to reconsider he Bill in the light of the Governor's suggestions. If they pass the Bill again in its original form the Governor must sign it or he must got out. Therefore I support the amendment that a chance must be given to the Governor and that he should not act merely as a figurehead-

Mr. Ramnarayan Singh (Bihar: General): Sir, I strongly support the amendment. We have provided in the constitution for an elected Governor and so I do not see why people should be so afraid of him that they do not want to give him any powers. From time to time it is necessary that the Governor should take the initiative and there will be no harm if any legislation is reconsidered. I appeal to the House to give some power to the Governor so that he may be of some use to society, otherwise it is better

to get rid of the Governor altogether Sir, I think this amendment should be accepted by the House.

The Honourable Mr. Hussain Imam (Bihar: General): Mr. President, I intervene in this debate in order that the practice might be established, when things of this nature are being discussed of advising the Constituent Assembly on the practice all the world over. I regret, Sir, at this moment many of my colleagues have not before them Constitutions of the world. They have also probably not read the exhaustive notes which have been circulated by the staff of the Constituent Assembly at the instance of the Constitutional Adviser.

The practice in U.S.A., to give only one instances is that the President has the power, in spite of there being dual chambers-the Senate and the House of Representatives to vote a Bill but that the veto can be overridden if a majority of two-thirds of both Houses reject it. In addition to that he has another veto. which is a pocket vito, by means of which he can disallow a Bill if it is' passed within ten days of the sittings of the House. There are any number of instances to indicate what the world is doing. It will be very useful if the practice could be established of the Honourable the President getting the Constitutional Adviser to indicate, on such controversial issues, what the practice in other parts of the world is. No doubt the Constitutional Adviser has issued a book to us. It will be very useful to us. Still there is room for more information on world practice.

I think Mr. Santhanam's amendment is very essential. He has urged in this amendment that it will have effect only in those provinces in which the legislature consists of a single chamber. The Mover thinks that where there is a second chamber, it will act as a brake on the Lower House. But we know. Sir, that there is need for further clarification where, if there- is any difference between the two Houses there are different methods of tackling it in different Countries. In regard to Money Bills the practice in some places is that the Second Chamber is made hors de combat. It has no power. In regard to other Bills, in some, of the Constitutions, the Second Chamber can vote finally, In other Constitutions, they have to sit together and come to a decision joinly, the Second Chamber's votes being usually overridden by the majorities in the Lower House. But what I was saying was that it is wrong on our part still to dream that we will be having Governors appointed by an outside authority. In future, the Governors will not be there to serve the cause of the powers-that-be. The Governor will be our man elected by adult franchise. It. is therefore necessary that you must give him full trust and confidence. If you place your confidence in him and if you provide, as suggested by Mr. Santhanam these checks and balances, you will arrive at a happy mean in which there will be one House ready to set right matters if the other goes wrong. This is the only method by which we can avoid pitfalls. I support the amendment.

Kumararaja, Sir M. A. Muthiah Chettiyar, (Madras : General): Sir I am very glad that Mr- Santhanam has moved this amendment and that there is the prospect of the House accepting it. But my happiness is mitigated by. the fact that the amendment is restricted in its application to Provinces where there is no second chamber.

Sir, the experience that we have of second chambers where they exist does not warrant the belief that they are a sufficient check against hasty legislation. In the last few years the Lower House has rushed through legislation with such haste that many mistakes have crept in and there have been many occasions when the leaders of the Lower House have requested the members of the Upper House to correct and send beck the Bill to the Lower House. All this, will be avoided if the Lower 'House is given a chance to reconsider the matter.

There are many reasons necessitating this opportunity or reconsideration. Sir on many occasions all the Standing Orders are suspended and legislative measures published in

the Gazette only the previous evening, ace carried through the Legislature the next morning in the twinkling of an,-eye. They say that an emergency has arisen and that if the legislature does not pass the measure before it adjourns, the Governor would have to issue an Ordinance.

For these reasons I do suggest that we should go a step further and remove from the amendment the reference to single chambers so that this check may be there even in Provinces where there are two chambers.

With regard to the possible misuse of the power by the Governor I am glad that my hon. friend Mr. Hussain Imam has pointed that the Governor is not going to be a stranger. he is going to be a provincial man or an Indian from another province.That being some may be expected to guage public opinion. If in his opinion he feels that the legislature is rushing through a measure against public opinion, he may be expected to send back the measure for reconsideration. There may be occasions when legislators may not have time to study any piece of legislation brought before them and they will be only glad to get a chance to look at it once again Press and public opinion in the country would play a great part in shaping the views of the Governor.If the governor acts wrongly he will be told so by the Ministry and by publicopinion. I do not think the Governor will misuse the power to send back legislative measures. I hope that the Mover and the leaders of the parties will find it possible to remove this reference to single chamber and provide for this check even in places where there are two chambers.

B Pocker Sahib Bahadur (Madras: Muslim): I have great pleasure in supporting this amendment. At the same time I must express; my dissent from the view of the previous speaker that this should be extended even to cases where there is a bicameral legislature. The Upper House is a sufficient check against hasty legislation'.- Therefore, in the Provinces in which there is an Upper House it is not necessary that this power should be given to the Governor. I support the amendment.

Mr. Naziruddin Ahmad: I beg to support the amendment. Sir, in the speeches delivered here in this connection, one aspect of the thing has not been mentioned. It is that in some cases legislation may be ultra vires irregular or illegal in some respects. In such cases, the Minister who has sponsored such legislation may himself desire to reconsider the matter. A provision like this would give, him an opportunity to reconsider 'his attitude when he finds that public opinion is against the measure. It is inconceivable that a Governor, under the new Constitution, would act in an improper manner. In the circumstances power like this. may be very much desired by the Ministers themselves. I believe that a power like this exists in the Government of India Act of 1935 much of which has been copied in-this Report. The Government of India Act of 1935 has now been admitted to be a model legislation. As I have already submitted the Governor should be given this power in provinces where there is no second chamber and he may be expected to act in a beneficial manner.

Mahboob Ali Baig Sahib Bahadur (Madras: Muslim). W. President, the other day we accepted a clause empowering provinces to choose whether they would have a second chamber or not, implying thereby that this House would accept a second chamber in the case of those provinces who choose to have it. How could we deny in these circumstances the same restraining influence to provinces which choose to have only one chamber? Either you must allow provinces to have second chambers or you must allow that restraining influence to the Governors for remitting bills for reconsideration in the case of provinces which select only one chamber. Sir in the case of provinces which elect to have only one chamber, the Governor must have this restraining influence to check hasty legislation, and we cannot deny to such provinces a provision of this kind. This is consistent, logical and- necessary. Therefore I support the amendment.

K. T. M. Ahmed

Ibrahim Sahib Bahadur (Madras: Muslim): Mr. President, Sir. it, is absolutely necessary for the Governor to have this power to prevent hasty legislation. I submit that his power is not inconsistent with democratic principles. In the Union Constitution, there is a provision a the effect that the President should have the power of returning bill which have been passed by the National Assembly for reconsideration within a period of six months. What the Union Constitution seeks to give to the President of the Nation must in justice be given to ,me Governors of provinces. There is nothing undemocratic about it.

Further., Sir, the Governors of provinces are invested with very great powers, and the Provincial Constitution Committee says that the Governors will not abuse those powers as they are elected Governors. Then, Sir, it is obvious that if the President of the Union who is elected by a limited franchise is given power to send back bills to the National, Assembly for reconsideration, it is in the fitness of things that the Governors who are elected on adult franchise should be given the same power. I am therefore-glad to support the amendment moved by Mr. Santhanam.

The 'Honourable Sardar Vallabhbhai Patel: Sir, I am prepared to accept this-amendment of Yr. Santhanam with one change. I suggest-that the last four words "by an absolute majority" should be dropped.

It was suggested that this should also cover the provinces where there are two chambers. I think it is not necessary because, where there are two chambers, if they differ, the case will come for reconsideration at a joint session. Therefore it is not necessary.

Mr. President: Mr. Santhanam, do you wish to say anything in reply?

Shri K. Santhanam: I will just say that I accept the suggestion made by Sardar Patel, but I wish make one remark. When a bill is sent. back for reconsideration, both the parties will marshal their forces, and unless the ministry has got 51 per cent., it is likely to be defeated. It does not matter whether the words "by an absolute majority" are there or not. The effect will be just the same.

Pandit Lakshmi Kanta Maitra: I do not know whether the amendment moved by Mr. Santhanam has been accepted by the House or not. It is not clear to me think it is not clear to many members of the House as to what the decision of the House is with regard to the words "by an absolute majority".

Mr. President: What are you speaking about, Mr. Maitra?

Pandit Lakshmi Kanta Maitra: I want to know whether you are going to put the vote of the House the deletion of the words "by an absolute majority".

The Honourable Sardar Vallabhbhai Patel: Mr. Santhanam has accepted the amendment.

Mr. President: How does it stand now?

The Honourable Sardar Vallabhbhai Patel: Without any reference to the remarks made by Mr. Santhanam, I accept his amendment but with the deletion of the words "by an absolute majority".

Dr. B. R. Ambedkar (Bombay: General): The sentence will read now, "If the Bill is passed again by the legislature with or without amendments, he shall ass-ant to it".

Mr. President: Then I put Clause 24 to vote. The resolution as now amended, with those four words "by an absolute majority" omitted, will now read:

"The Governor of a Province in which the legislature consists of single chamber shall have the right to return at his discretion a Bill passed by the legislature for reconsideration and may suggest amendments. If the Bill this passed again by the legislature with or without amendments, he shall assent to it."

The motion was adopted.

Part II-The Provincial Judiciary

Mr. President: We shall go to Part II-The Provincial Judiciary.

The Honourable Sardar Vallabhbhai j. Patel: Sir, I move:

"1. The provisions of the Government of India Act, 1935, relating to the High Court should be adopted mutatis mutandis; but judges should be appointed by the President of the Federation in consultation with the Chief Justice of the Supreme Court, the Governor of the Province and the Chief Justice of the High Court of the

Province (except when the Chief Justice of the High Court himself is to be appointed).

2.The judges of the High Court shall receive such emoluments and allowances as may be determined by Act of the Provincial Legislature and until then such as are prescribed in Schedule........

3.The emoluments and allowances of the judges shall not be diminished during their term of office."

This clause proposes to incorporate the provisions of the 1935 Act regarding High Courts, but regarding the appointment of the Judges it provides that the appointment shall be made by the President of the Federal Legislature in consultation with the Chief Justice of the Supreme Court and the, Governor of the Province. With so man checks and counter checks these appointments place the High Court Judges beyond any influence of the parties or any other influences and beyond any suspicion or doubt of such a nature. There is thus enough guarantee provided for the independence of the Judiciary. The other two clauses are purely consequential relating to pay and allowances for which I hope there are no amendments. I therefore move the proposition for the acceptance of the House.

(Dr. Subbarayan, Mr. Mallayya, Mr. Ramalingam, Chettiar and Seth Govind Das did not move their amendments.)

Mr. President: Then there is no amendment to this clause. Does any one wish to say anything about this clause?

Sir Alladi Krishnaswami Ayyar: (Madras: General): Mine is also an amendment.

Mr. President: 'You may move it at this stage.

Sir Alladi Krishnaswami Ayyar: With your leave I propose to move the following amendment to Clause 1 in II.

At the end of Clause 1 in Part II, add the following: Provided that-

(a)all the High Courts in the Union of India shall have the right to issue prerogative writs or any substituted remedies therefor throughout the area subject to there appellate jurisdiction;

(b)the restriction as to jurisdiction in revenue matters referred to in section 226 of the Government of India Act, 1935, shall no longer apply to the High Courts; and

(c)in addition to the powers enumerated in section 224 of the Government of India Act, 1935 the High Courts shall have powers of superintendence over subordinate courts as under section 107 of the Government of India Act, 1915."

The object of these amendments is to remove certain patent and glaring defects in the jurisdiction of the High Court to get rid of anomalies and to provide an adequate and effective machinery for the enforcement of fundamental rights. Clause (a) of the amendment deals with prerogative writs or any substituted remedies therefor. The reference to substituted remedies is to enable a simple remedy by application for writs in accordance with the procedure obtaining in England under recent enactment's. Under the law as it stands the High Courts of Calcutta, Bombay and Madras have the right to issue prerogative writs within the limits of their ordinary original jurisdiction. The remedy by application was substituted for the Writ of Mandamus by the Specific Relief Act, but the remedy is confined to the presidency towns. There is no conceivable reason why a citizen outside the limits of the presidency town should be left to the dilatory remedy of an ordinary suit while a remedy by application to the High Court is available to a resident of the presidency town. In regard to the prerogative writ of habeas corpus, the Criminal Procedure Coda has enabled application of substituted remedy for habeas cropus being available throughout the appellate jurisdiction of the High Court. The Privy Council has recently held that the remedy by way of Certiorari enabling the High Court to remedy proceedings of judicial and quasi-judicial bodies acting in excess of jurisdicticn is available within the presidency town. Clause (a) when passed will enable all the High Courts in the Union of Indian to exercise the jurisdiction in regard to these matters throughout the area subject to their appellate jurisdiction. The Clause also will provide an effective-remedy for the fundamental

rights guaranteed under the constitution. Clause (b) is intended to remedy an anomaly in the jurisdiction of the High Court. The anomaly goes back to the days of Warren Hastings. Under the law as it stands there is no bar even to a district munsiff entertaining a suit which involved a right to revenue, but the High Courts are debarred from entertaining such suits, The other day the Federal Court while upholding the right of a litigant in every respect ruled that the suit field in the High Court was liable to be dismissed on the technical ground based on section 226 of the Government of India Act. The need for removing this bar on the jurisdiction of the High Court is universally felt by the profession and has been emphasted in several statements of the High Courts in India. The last clause is intended to remedy a defect introduced by the Act of 1935 under which the High Courts were deprived of the powers of superintendence in certain respects- over the subordinate courts. This amendment.. 1 venture to state, has the universal support of the profession and I commend it your acceptance.

Shrimati G. Durgahai (Madras: Generaly: Mr. President, Sir, I wish to make it clear at the very outset that I stand here to support Clause 1 in Part II relating to the Provincial 'Judiciary. Sir, I wish to confine myself to that portion of the clause which lays down the procedure for the appointment of.judges to the Provincial Courts. The clause runs on the following lines:

". ....the judges should be appointed by the President of the Federation in consultation with the Chief justice of the Supreme Court, the Governor of the Province and the Chief Justice of the High Court of the Province (except when the Chief Justice of the High Court himself is to be appointed)."

Sir, we see thus by the manner provided in this clause we introduce some kind of intervention on the part of an external authority in matters relating to the provinces and the Provincial Governments. I think this kind of intervention and this kind of procedure laid down providing for the necessity for an external authority is bound to provoke in the minds of some people at least the fear that this is a sort of encroachment over the jurisdiction of the Provincial Government as opposed to the principles of provincial autonomy. But, Sir I confess myself was holding this view for some time, whether it would not be desirable to leave this matter to the discretion of the Provincial Governments, namely the Governor acting on the advice of his Ministers. But on a careful consideration of the matter I find that the manner as suggested by the authors of this clause has greater advantages over the other. Hereafter in the new sot-up conditions are bound to be different a-id the High Courts have got to take upon themselves greeter and heavier tasks and onerous responsibilities. They are the repositories of the Constitution; they have got to interpret the constitution. They are the guardians of the fundamental rights in the Constitution Every common man must look to these courts for fair treatment and justice. They have got to see that their rights are safeguarded and they are in safe custody. Therefore if we have got to achieve this I we have got to see to the successful working of these High Courts and this depends mostly upon the quality of the judiciary and the manner in which it is composed. The independence of the judiciary is a thing which has to be decided and this independence to a large extent depends on the way in which these judges are to be appointed. They should not be made to feel that they owe their appointment either to this person or that person or to this party or to that party. They have to feel that they are independent. It is only in that case that get efficiency of administration of justice. It is with a view to secure this kind of independence that some sort of check is necessary and the authors of the clause have provided for this check by bringing in some external authority to have something to do with the appointments relating to the Provincial courts. We may

fell why the Chief Justice of the Supreme Court also is brought into this picture but in the interests of the purity of administration of justice the Supreme Court has a great part to play hereafter. It is the highest of the High Courts of India and it will have a general advisory jurisdiction and a general 'appellate jurisdiction which is similar to that now exercised by the Privy Council relating to Indian units. Therefore, it is to review the work of all High Courts and also exercise the powers of general superintendence, direction and control in all matters relating to the provincial judiciary Several matters of the High Courts have got to one before this Court by way of revision, reference and appeal. Therefore, the Chief justice of the Supreme Court has got a great deal to do with these High Courts and not only that, the Supreme Court in itself has got to be composed from among the judges of the High Courts as we see. Therefore considering all these matters I feel that it is highly necessary that the Chief Justice of the Supreme Court is consulted by the President of the Federation in making these appointments to the provincial courts. Of course, this need-not really leave a fear in our minds that the freedom of the provinces is curtailed to a large extent but this sort of check will be used 'only on ram occasions and generally the recommendations made by the Governor on the advice of his Ministers and in consultation with the Chief Justice of the High Courts will be accepted so long as they are right and also their choice is bound to be good generally, except in very rare instances when the intervention of the Federal Authority is to be brought.

There is another point to be taken into consideration, namely 'this, that we need not feel that we are doing something very unusual. These is no one uniform principle in all federal constitutions of the world that this power of appointment to the judges of the High Courts of the units should always rest with only the Provincial Governments. It is not necessary. We have got an instance provided to us in the Canadian constitution where the power of appointment rests with the Governor General who will make the appointment. Therefore we can accept this principle without any fear or favour and adopt it in our system.

With these few observation, Sir, I support this clause and I commend it for the acceptance of the House.

B. Pocker Sahib Bahadur: Mr. President, Sir, I have great pleasure in supporting the amendment moved by Sir Alladi Krishnaswami Iyyar. Every one of those clauses is absolutely necessary having regard to the difficulties which people have been experiencing as a result of the Government of India Act of 1935 and also the recent ruling of the Privy Council regarding certiorari. Until the recent ruling, we were having this remedy by way of unit of certiorari as regards the mofussil also, but as a result of the Privy Council ruling, we are restricted as regards that remedy only to Presidency towns. It is absolutely necessary that such a remedy must be available to the people of the mofussil also,

As regards the power of superintendence to be vested in the High Courts we were having the remedy before the passing of the Government of India Act of 1935, but all such remedies were excluded by the new provisions of the 1935 Act, all the litigant public have been feeling very much about the absense of the right of superintendence in the High Courts as regards proceedings in the mofussil courts. The result is that people are now restricted to remedy under Section 15 of the C.P.C. which is inadequate and does not cover all cases in which remedy is necessary. Therefore, Sir, it is necessary that these matters should be made very clear, particularly for the reason that hereafter we may not be able to rely on English practice and on precedents in England.

I do not know, how far I am right; but I presume for the time being that English precedents and practice may not be available to us as authority here after.In view of these circumstances, it is absolutely

necessary that these clauses should find a place in the measure that we are passing.

I have only to make another observation in connection with this clause. I have given notice of an amendment in which I suggested that instead of the Chief Justice of the High Court of the Province concerned, it must be the High Court itself that should be consulted. Instead of the consultation being confined to the Chief Justice, the consultation must be with the High Court. My amendment being an amendment to another amendment given notice of by Dr. Subbarayan as Dr. Subbarayan has not moved that amendment, my amendment fails. However, I would like to make this remark for the Drafting Committee that it is very desirable that the consultation should not be restricted to the Chief Justice of the High Court, but should be with the High Court as such, so that the matter may be considered by all the Judges of the High Court at the Judges Meeting, and the result might be communicated to the authorities concerned.

With these observations, I support the amendment proposed by Sir Alladi Krishnaswami Ayyar.

The Honourable Mr. Jaipal Singh (Bihar:General): Mr. President, I support Part II, Clauses 1 to 3. At the same time, I would like to have some information from the Honourable Mover as to whether any discussion has taken place and when we shall know anything about any result of the agitation that has been carried on in this country by all parties in regard to the separation of the judiciary from the executive, whether we are going to get this matter considered in the report Pandit Jawaharlal Nehru will submit on behalf of the Union powers Committee. 'I only want to ask this question and I hope the Honourable Mover will give us some information on this point.

Rai Bahadur Syamanandan Sahaya (Bihar: General): Sir, I wanted to draw the attention of the Mover and the House to Clause 3 of Part II in which it is laid down that the "emoluments and allowances of the Judges shall not be diminished during their term of office". I was thinking, Sir, that the term "diminished" would not meet the requirements and that this should be replaced by the word, "varied". I am sorry I have not tabled an amendment, because there were other amendments which I thought would be moved. In any case, the matter is of importance and I therefore wanted to draw the attention of the Mover to this. Perhaps it may be rectified at the stage of drafting. The reasons and the principle which I suppose guided the members of the Provincial Constitution Committee to lay down that the emoluments' will not be diminished during their term of office will be precisely the same as in the case of increasing their salary also. You would not naturally want the judiciary to be constantly looking up either for increasing their salary, or be under the apprehension that there will be a decrease in their salary. In these circumstances, I think it will be desirable that the word "diminished" should be changed by the word " varied" with the approval of the mover.

I have not formally moved an amendment. But I think the matter is of sufficient importance to be brought to the notice of the House.

Shri M. Ananthasayanam Ayyangar: I find, Sir, with all respect, that this amendment may bring in complications for this reason. I agree with Sir Alladi Krishnaswami Iyyar that the powers of the High Court have to be enlarged. There are a number of restrictions placed under the Government of India Act now on the powers of the High Court regarding revenue jurisdiction This is No. 1 in his amendment by which he wants to, correct this Act. In his amendment he wants to say that the High Court shall exercise jurisdiction over all revenue matters also without any of the restrictions or limitations contained in the Government of India Act. One of them is under section 226 which runs as follows:

"Until otherwise provided by Act of the Appropriate legislature no High Court shall have any original jurisdiction in any matter concerning the revenue or concerning any act ordered or done in the collect on thereof

according to the usage and practice of the country... .. ."

Does he want by the Constitution Act to confer original jurisdiction in revenue matters also or in the matter of collection? These have been exempted. If such a power should be given here and incorporated in the Constitution Act itself, any change that may be necessitated by experience will have to be made by way of an amendment to the Constitution Act. There is absolutely no objection to the legislature of the High Court removing the restrictions.

So far the jurisdiction of the High Court in the matter of writs is concerned, they are subject now to any Order in Council that may have been passed by the Government, under section 223, Orders in Council by His Majesty the Kink or otherwise. Some of the writs may be obsolete, some of them may be necessary or may be found obsolete later on. Should we go into the details? In case there is need to modify this, there will have to be two-thirds majority in both the Houses and all the processes and procedure for modifying the constitution will have to be gone-through as in other substantial matters. We can easily say the provincial legislature shall be entitled to enlarge the jurisdiction of the High Court or place a restriction upon that. I do not feel that any of these matters need to be incorporated in a Constitution Act like this.

Again Clause (c) says that in addition to the powers enumerated in section 224 of the Government of India Act, 1935, the High Courts shall have powers of superintendence over subordinate courts as under section 107 of the Government of India Act. I do not deny that the High Court's powers may be enlarged in the manner suggested by Sir Alladi in his amendment. But the local legislature is competent to give not only those powers, but additional powers also not contemplated in section 107 of the Government of India Act. Why should we restrict to this or that? Evidently, Sir Alladi finds that the draft constitution placed before the House which we are discussing, seeks to embody all the provisions that exist in the present Government of India Act. I agree that we ought not to bodily incorporate those provisions whether they are good or bad. The framers of the constitution will go into the details and empower the local legislature to pass laws and regulations without intervention of His Majesty in Council, to enlarge the jurisdiction of the High Court in necessary matters, empower it to issue writs wherever necessary. These are details which will have to be referred to a Committee how and in what manner jurisdiction has to be enlarged. For this, the legislature, as we propose to have it, is entitled to go into these things. Certainly, my friend Sir Alladi would say that it is not a matter which could be disposed of at a sitting by all people; that it must be referred to a Committee of experts, so that they may look into every one of these clauses before incorporating them finally into the Bill. We have not that opportunity. lie merely says the High Court's powers ought to be enlarged in a particular manner which may be good or, bad. We admit it is good. Sometime later on, it may be found bad or oppressive or hard. There may be a necessity for decentralisation.

The powers of superintendence by the High Courts may be unnecessary, and uncalled for in certain matters. Therefore if we irrevocably confer all these powers on the Provincial High Courts, it will be very difficult. Why should we introduce those details? I should therefore say that my friend only wanted to bring to notice, by placing this amendment, the need for enlarging the powers of the High Courts in this direction. No doubt he has chosen the wrong method. The right method will be to place it before the Legislature and see to it that the Provincial Legislature has all the powers to enlarge the powers of the High Court in the matter of superintendence regarding revenue matters. I therefore request him not to press his amendment because it will lead to unnecessary complications.

Mr. K. M. Munshi (Bombay: General): Mr.

President, Sir, the remarks of my friend Mr. Ananthasayanam are based on the present Government of India Act. But the reason why Sir Alladi's amendment is necessary has been placed before the House fully. The position with regard to Prerogative Writs is a technical matter and naturally therefore there might be a certain amount of difficulty for ordinary men to understand it but we must realise the important fact in this country, viz., that only the High Courts of Calcutta, Bombay and Madras which have inherited the jurisdiction of the King's Bench Division have the power to issue Prerogative Writs within the original jurisdiction of those cities. Other High Courts have not that power nor does the power of these three High Courts extend beyond the original jurisdiction of the three towns concerned. The intention of this Clause is to see that every High Court in India should have the same power of issuing Prerogative Writs as the King's Bench Division has in England. This is not covered by the Government of India Act nor converted by anything else. What this amendment seeks is that the High Courts in India in the Provinces should have the powers possessed by the King's Bench Division. Those Preprogative Writs- were ancient and known to the English Common Law but many of them have now been brought into use in Calcutta, Madras and Bombay and as lawyermembers of the House would realize during the difficult days of 1942 to 1945 when the Defence of India Act was in operation, these writs did a great deal of service in vindicating them.

Further we have to consider this fact also that this Constitution of India, of Free India, wilI be a kind of Charter. It will also contain Fundamental Rights and also recognize the Rights of Citizens in certain Fundamental Rights and certain obligations on the part of Government. Now all those must be enforced by some kind of remedy in the nature of the remedies which are now secured by a Britisher from the King's Bench Division. In the Constitution of the Union where the Supreme Court is constituted the Supreme Court has been invested with the power to issue these Prerogative Writs. With regard to the Constitutional rights and various other rights, if the power is only invested in the Supreme Court and not in any other High Court, it will follow that every citizen in order to vindicate his rights would have to come to Delhi. The intention of the amendment moved by Sir Alladi is that all the High Courts must have similar powers to issue Writs within their jurisdiction. This is the 'Only meaning of this clause. It is necessary to have it in the Constitution because otherwise a Legislature may take away or attempt to take away certain powers of the High Court. Any analogy of the Government of India Act would not apply. This being the object, it is necessary that this amendment should be there.

I know that the word 'Prerogative Writs' is a very vague word. That is this reason why Sir Alladi's amendment uses the words"any substituted remedies therefor". The idea is that either in a form defined by the Constitution or by any law made under the authority of the Constitution, those Writs will be preserved. There is no doubt about it.

The Prerogative Writs are largely the creature of common law in England but attempts are made in England to put them in the Statute book in a precise form. There is no reason why we should now allow the Common Law form to remain in its vagueness, in the present proposals. Some attempt will be made later to define those Writs in a proper legislation. The principle embodied in the amendment is that the High Courts in the Provinces must have the power to issue Prerogative Writs or some remedies of the kind. So, the- objections raised by my friend Mr. Ananthasayanam are not valid.

As regards Clause (b), there is a restriction imposed by the Government of India Act as regards jurisdiction in revenue matters. This is only done as a matter of history. This amendment recognizes the principle that even revenue matters are subject to law. As regards Clause (c)-General

superintendence, the High Courts will have superintendence over all Subordinate Courts and this clause does not require any elaboration.

The object is that this principle must be embodied in the Constitution. It is not intended that the Provincial Legislature should have the power to tinker with these powers of the High Court. The actual power and independence of the High Courts in these matters have to be maintained in order that the liberties and rights of citizens are not curtailed by a majority in the Legislature. In defence of civil liberties and in the interests of democracy these powers are essential.

Mr. Tajamul Husain: Clause 3 of Part II lays down that the Pay of the Provincial High Court Judges cannot be decreased during their term of Office, but it does not say anywhere that it cannot be increased. Sir, we must maintain the dignity and impartiality of the High Courts at all costs, If we do not mention in our Act that their pay shall not be increased and decreased, it will be giving them a chance_because after all they are human beings-they will be looking upto the Legislature forfavours of increment of their pay. This is a very important matter. I have not given notice of any amendment. The reason was that some honourable members had sent amendments. Therefore, Sir, my friend Rai Bahadur Shyamnandan Shahai has suggested the change, which I hope the Honourable Mover will accept. At present the provision reads:

"The emolument and allowances of the Judges shall not be diminished during their term of office."

I suggest substituting the word "varied" for the word "diminished"; with this change it will read:

"The emoluments and allowances of the Judges shall not be varied during their term of office".

I submit this for the acceptance of the House.

Shri L. Krishnaswami Bharathi (Madras: General): Sir, I wish to say one thing in reference to Clause 1 of Part II. The first part of it reads:

"The provisions of the Government of India Act, 1935, relating to the High Court should be adopted mutatis mutandis, .... ..."

I find Sections 219 to 231 of the Government of India Act relate to High Courts. With reference to one of the important provisions in that Act, I find the question of language comes in. Section 227 of that Act reads:"All proceedings in every High Court shall be in the English language".

I do not know if sufficient attention has been given to this aspect of the matter. I do not think, Sir, it is the intention of the Mover that the proceedings in the High Courts shall be in the English language. We are now talking of a national language. or All-India language. My own personal view is that in every province, the provincial language shall be the language in which all the proceeding of the Province, including those of the High Court, shall be carried on. It may be that for some transitional period, we may have the English language, but I do not think we can allow English to be the language of our High Courts for all time to come. But the position is, if we accept the first part of this Claus as it stands with the words "mutatis mutandis" we may be committed to having the English language. I therefore, wish that some suitable provision may be made in this clause so as to avoid Section 227 of the Government of India Act with reference to the English Language.

Mr. President: As there is no one else who wishes to speak the Mover of the Resolution may reply to the debate, if he wishes to.

The Honourable Sardar Vallabhbhai J. Patel: Sir, I accept Sir Alladi's amendment.

With regard to one or two questions that have been put, I would like to say a few words. Regarding the question raised by Mr. Jaipal Singh as to what has been done about the separation of the judiciary from the executive, I can only say that this is not the place to ;Introduce that subject. This clause we are now considering only refers to the formation of the High Court its constitution, the method of appointment of the judges, its powers and things like that. The real question which he has raised can be decided by the

Legislature, it is a matter of policy to be decided by them; and I do not think there will be difficulty now in separating the judiciary from the executive.

The other point raised is about changing the word 'diminished' Into varied', that the word 'diminished' should be substituted by the word varied'. I do not think this change is necessary for the existing provision says that the emoluments etc., should not be varied to the disadvantage of the judges, and that clears the position. So I do not propose to have any changes made in the wording.

As I said, I accept Sir Alladi's amendment, and I commend the proposition for the acceptance of the House.

Mr. President: I shall now put the motion to the House.

Shri L. Krishnaswami Bharathi: My point regarding the language in the High Court has not been answered to. It is an important point.

Mr. President: It is, of course, an important point; but I suppose the Drafting Committee will attend to it.

Shri L. Krishnaswami Bharathi: Sir 'mutatis mutandis means everything as it is, which means that you cannot vary the provision in the Government of India Act, at the time of drafting our provision. If we accept it as it is, the Drafting Committee will be committed to keeping English as the language of the High Court.

Dr. B. Pattabhi Sitaramayya (Madras: General): Sir, I think 'mutatis mutandis' means with the necessary changes.

Mr. President: Yes, that is my impression also. This will cover any changes that the Drafting Committee may suggest ultimately.

I shall put Sir Alladi's amendment to vote.

That the following proviso be added at the end of Clause 1:

"Provided that-

(a)all the High Courts in the Union of India shall have the right to issue prerigative writs or any substituted remedies therefor throughout the area subject to their appellate Jurisdiction;

(b)the restriction as to jurisdiction in revenue matters referred to in section 226 of the Government of India Act, 1935, shall no longer apply to the High Courts; and

(c) in addition to the powers enumerated in section 224 of the Government of India Act, 1935, the High Courts shall have powers of superintendence over subordinate courts as under section 107 of the Gov ernment of India Act, 1915."

The motion was adopted.

Mr. President: Then I shall put the resolution to the vote of the House as amended, i.e., with the addition of the proviso which has been just accepted. I do not think I need read out the whole clause.

Part II, as amended was adopted.

Part III-Provincial Public Service Commission and Provincial Auditor-General

Mr. President: Now we pass on to Part III.

The Honourable Sardar Vallabhhhai J. Patel: Sir, this part refers to the Public Service Commissions and the Auditors-General.

"Provisions regarding Public Service Commissions and Auditors-General should be inserted on the lines of the provisions of the Act of 1935. The appointment of the Chairman of members of each Provincial Public Service Commission and of the Auditor General should be vested in the Governor in his discretion."

It is proposed to give the power to the Governor. I move the proposition for the acceptance of the House.

Mr. President: There are amendments to this by Shri Khurshed Lal and Shri Gopinath Srivastava, Shri S. L. Saksena, Pandit and Mr. Santhanam.

(The amendments were not moved.)

Shri K. Santhanam: Sir, with reference to Part III, I have an amendment (No. 23 on Second Supplementary List, dated the 16th July 1947). Though I do not want to move the amendment a", this stage, I want you, Sir, to give a ruling that this can be taken up when the Union Constitution is taken up for consideration, as it has been suggested that it can be taken up at that time. In only want to make sure that this will not be ruled out then. I want to know whet-her you will permit me to move the amendment at that time.

Mr. President: If you wish to move the amendment now you can do so I can give you no promise as to the future. I can permit you to withdraw your amendment now if you wish to, and

the question will be considered at the right time, whether the amendment can be moved in connection with the other report.

Shri K. Santhanam: Sir, I do not wish to move my amendments.

Mr. President:- The question is:

"That Part III be accepted."

The motion was adopted.

Part IV-Transitional Provisions

The Honourable Sardar Vallabhbhai J. Patel: Sir, I move:

"1. Any person holding office as Governor in any Province immediately before the commencement of this Constitution shall continue as such and shall be deemed to be the Governor of the Province under this Constitution until a successor duly elected under this Constitution assumes office.

2.There should be similar provisions mutatis mutandis in respect of the. Council of Ministers, the Legislative Assembly and the Legislative Council (in Provinces which decide to have an Upper House).

3.The Government of each Governor's Province shall be the successor of the Government of the corresponding Province immediately before the commencement of this Constitution in respect of all property, assets, rights and liabilities."

These are provisions for the transition period in order to avoid an interregnum. I do not think there can be any controversy over this acid I hope it will be accepted.

Shri T. A. Ramalingam Chettiar (Madras: General): I do not wish to move my amendment to Clause 1 (No. 119 on list, dated the 15th July 1947).

Shri K. Santhanam: I do not want to move my amendment to Clause 3 (No. 120 on List, dated the 15th July 1947).

Shri M. Ananthasayanam Ayyangar: I do not wish to move my amendment to Clause 1 (No. 24 on Second Supp. List dated the 16th July 1947).

(Pandit Govind Malaviya, Shri Rohini Kumar Chaudhury, Shri M. Ananthasayanam Ayyangar, Shri Mohanlal Saksena and Prof. N. G. Ranga did not move their amendments in the 3rd and 4th Supplementary Lists)

Mr. President: There are two amendments by Mr. Ananthasayanam Ayangar, which are independent propositions. I shall take them up later.

Mr. k. M. Munshi: I have only one remark to offer with regard to Clause 3 of this part which says:

The Government of each Governor's Province shall be the successor of the Government of the corresponding Province immediately before the commencement of this Constitution in respect of all property. assets, rights and liabilities."

I feel, Sir that the words "successor of the Government" might create difficulties and at this stage it would serve no useful purpose to keep Clause 3. I therefore submit. that Clause 3 should be deleted. The words do successor Government" might lead to other complications which need not be invited at this stage.

Mr. H. V. Kamath (C. P. & Berar: General): Mr. President Clause 1 of of this part is of course unexceptionable and I think there will be, no difficulty in the way of its acceptance by this House. But upon its acceptance certain consequences will, to my mind, flow from it and therefore I wish to draw your attention and the attention of this August Assembly to those consequential aspects of this clause, viz., Clause 1 of Part IV. This clause says:

"Any person holding office as Governor in any province immediately before the commencement of this Constitution shall continue as such and shall be deemed to be the Governor of the Province under this Constitution until a successor duly elected under this Constitution assumes office."

We are today passing from the darkness of servitude to the light of freedom. But there is bound to be an interregnum between our Dominionhood- and that Republican Independence for which we are striving. This interregnum may be long or it may be short, and again there will be another time-lag between today and the commencement of this constitution. By 'Commencement' I believe the promulgation of this constitution is meant. I presume that the constitution will be promulgated perhaps by the end of this year but between now and that date of Me promulgation of the constitution we are entering upon a new state and that is the state of Dominionhood. The Indian Union will be

formally ushered in or inaugurated as a Dominion on the 15th of next month. Therefore, if according to this clause, in December when the constitution is likely to be promulgated, there are certain Governors in certain Provinces, they are likely to continue as such and they will be deemed to be the Governors under this constitution, I want to emphasise the word "shall be deemed to be the Governor of the Province under this constitution." I think A would be derogatory to the dignity of the constitution, if certain non-nationals are permitted to continue as Governors under this Constitution after the commencement of this Constitution and before elections under this constitution take place. As we all know, very shortly, in the middle of next month, it will be within cur power; within Vie competence of our own leaders to say who will be Governors and where.. If, unfortunately some non-nationals-Europeans or Britishersremain or are appointed as Governors in certain provinces, on August 15th. it will follow that in December when the Constitution will be inaugurated or will commence, they will be there and therefore they will continue- as Governors; under this Constitution till the elections take place and their successors assume office. There form Sir, I submit that this is a position which, as a Sovereign body today an aspiring to become shortly a Sovereign legislature of the Dominion, we cannot envisage or tolerate. We have struggled hard these many years and decades to see the end of foreign rule in India. A few months less than five years ago our cry, our revolutionary campaign of 'Quit India' was launched and it is a happy coincidence that in the very month of August we in India are attaining Dominionhood if not independence, quite a good degree of independence, and power will, I hope, come into Our hands. Thus, Sir when it will be within our competence to have our own Governors, I for one want that our own nationals and citizens of the India Union should be the Governors when the new Constitution is inaugurated. I wish to draw your attention to these words in the Transitional Provisions I am quoting: "In any province immediately before the commencement of this Constitution". We should take care to sea that the Governors in all our Provinces immediately before the commencement of this Constitution are Indians, our own nationals and not non-nationals or foreigners. Have we undergone all these troubles and fought the rulers on so many occasions merely to see these martinets, these panjandrums and these minions of a foreign imperialism continuing their rule in our Provinces? I should like to see the end of it. I do not like to see the day when even after the commencement of this Constitution these very Europeans, whom we asked to quit five years ago, will be continuing as our rulers in certain provinces. I was hard put to it, some days ago to explain to a common man why Lord Mountbattenwas recommend-ad for the Governor-Generalship of the Dominion of India. We can quite understand and appreciate the high considerations of diplomacy, political strategy and tactics which influences the recommendation of Lord Mountbatten for the Governor-Generalship. But the common man fails to understand it all. It is true that we cannot always act on the views of the common man. But, at the same time, in a democracy the psychology of the common man has its place. Democracy is largely conditioned by the psychological reflexes of the common man. I would request the Hon'ble Mover and this Assembly to bear these considerations in mind and see that the Governor of any Province immediately before the commencement of this Constitution is not a non-national. It is our men, our citizens who should be there. It is only if we see to this that we can produce the necessary psychological reaction in the mind of the common man. We will fail to produce this essential psychological effect if on the dawn of freedom and. independence he were unfortunately to see the same foreigner still stalking the land as ruler or Governor. Our. Quit India Resolution' is fast

bearing fruit. At such a time we should create in the mind of the common man the impression that all power has been taken over by us towards the consummation of the 'Quit India Resolution' which was inaugurated by us five years ago.

(nanyah pantha ayanaya vidyate)

When we are shortly going to witness the dawn of independence we must make a supreme effort to see that the common man is able to grasp the fact that we are out on masters and that there is no foreigner ruling over us. The sooner we do this the better it is for us and for our country. If we achieve this we will have gone a long way towards awakening the 'shakti' necessary for building up our Indian Union.' I am sure I am voicing the feeling of a vast majority in this Assembly when I say that at the time of the inauguration of the Provincial Constitutions, no foreigner remains as Governor in any of the Provinces. It would be a mistake to allow a foreigner to continue as Governor of a province, after that date.

Sir, I will conclude with the words used on another historic occasion and request this August Assembly to tell the foreigner "We asked you to Quit India five years ago. We now again tell you with more power, more authority in our hands: For God's sake go. Leave India to its own fat,,. Leave India free to build up a strong Independent Sovereign Republic." "Jai Hind."

Sri M. Ananthasayanam Ayyangar: I should like to say a few words with regard to the Transitional Provisions. These ought to be absolutely transitional. That is my desire.

We must congratulate ourselves, Sir that we have spent five days over the elaborate provisions recorded in this Constitution submitted to the Assembly. I am sure we will be able to finish the details considered by the Expert Committee that will be appointed. to go into the details of the formalities and bring out the Constitution at an early date. All that I am anxious about is that, when the British Government who originally fixed 30th June 1948 for ushering in a new Constitution have advanced the date, we should not be found unready. We should have our Constitution ready and there should be no delay on our part. I do want that 26th January 1948, the day which we have been celebrating as Day of Independence for India should surely be the day when we celebrate the Independence of India. Let it not be said that we have unnecessarily dragged the proceedings here. We will not be charged with that. We have spent only five days on this important matter. We have not left the details to take care of themselves. I hope all concerned will be able to push through the necessary work so that on the 26th day of January we will really have an Independent India and work under an Independent Constitution. As regards the present Governors continuing till then, I amsure that they will not continue for any longer time than is necessary. When the new constitution comes into being,, I expect that only nationals will be appointed as Governors.

Thirdly, after the new constitution is framed, it will take some time before elections lake place; before delimitation of constituencies takes place. All these will take some time. I do not want to have any definite date fixed within which elections should take place under the new constitution. At the same time I would like to urge that after the new constitution has been framed, care should be taken to see that within six months and not later than that, the new constitution must be in full swing. Even before the constitution is drafted, since we are providing for adult franchise; we should ask the existing Governments to prepare the electoral roles regarding adults in every village and town. Thereafter., tine delimitation of constituencies will have to take place. No effort should be lost and all efforts must be made to see that the new constitution comes into being as early as possible. With these words, I support these transitional provision clauses.

Mr. President: Does anyone else wish to speak about this?

Shri Biswanath Das (Orissa : General): Mr. President, Sir, I heartily,

congratulate the Honourable Sardar Patel for having piloted the report within the shortest possible time, Sir, while congratulating him, 1 must also confess that the constitution that has been drafted for the provinces gives them less powers than what the provinces were enjoying under the Act of 1935.

We expect to have under the new dispensation a government of the people for the people and by the people. Now, all these three slogans Will be meaningless if we do not have the leaders of the people of the provinces as governors of the provinces. Sir, the interim period that lies between the present and the date of the election should not be marred by having men of the permanent services as Governors of provinces. Sir, I support the decision taken in nominating Lord Mountbatten as the Governor-General. There may be important reasons and justifications for the same. The country will be fully with our leaders in that. Sir, that cannot however be translated into the provinces. I am not here to make any distinction between nationals and non-nationals. Sir, I cannot agree to see that people, who have been public servants, continue as governors of provinces. Moset of the I.C.S. people do not have the Indian outlook and cannot in any sense be ermed as servants of the people. That being the case, I would submit that it would be very hard on the country to tolerate a system of administration in which the same I.C.S. regime is being perpetuated in the provinces. I believe our leaders will not commit this blunder.

Sir with these submissions, I fully support the resolution and congratulate the Committee on having presented a report which was acceptable to the House so as to be passed within the shortest possible time.

The Honourable Sardar Vallabhbhai J. Patel:

Sir, I suggest a verbal alteration in Clause 1, third line Instead of the words "shall continue." I want. to insert the words "may be continued"."Any person holding office as Governor in any Province immediately before the commencement of this Constitution may be continued'. In the fourth line I suggest the insertion of the word "when so continued" after the word "and". These are purely verbal alterations.

I will now remind the House that perhaps some of the friends who gave valedictory orations have forgotten that there is still one clause, Clause 15, to be moved. It is a controversial clause and it will take some time.

She C. Subrahmaniyam (Madras: General)- May be continued-by whom? Who is the authority to continue him as Governor under the new Constitution?

The Honourable Sardar Vallabhbhai J. Patel: No doubt by the Government of India, who is the authority to appoint him. There is no difficulty about that.

Mr. H. V. Kamath: "May continue" or "may be continued". Why not may continue"?

The Honourable Sardar Vallabhbhai J. Patel: Put in "may continue" if you like.

Dr. P. S. Deshmukh (C. P. & Berar: General): "May be continued" is better. "May continue" is likely to be interpreted as "should continue" and Mr. Kamath would be defeating just the object that he has in view. "May be continued" involves continuation only if so ordered by the Government.

Mr. President: I put this resolution to vote with this verbal change. In place of "shall continue" substitute the words "may be continued" and in the fourth line add the words 'when so continued' after the word 'and'.

The motion was adopted.

Mr. President: Mr. Munshi, you moved that Clause 3 be deleted. I am sorry I did put that to vote, but I take it that it is accepted.

The motion was adopted.

Mr. President: I shall now put the whole resolution as amended by the deletion of Clause 3 to vote, because there was some misunderstanding.

Part IV as amended, was adopted.

Mr. President: Mr. Ananthasayanam Ayyangar has given notice of an amendment.

(The amendment was not moved.)

CLAUSE 15

Mr. President: There was one clause which was passed over and that was Clause 15 and we may take up that now.

The Honourable Sardar Vallabhbhai J. Patel: I move:

"15. (1) In the exercise of his

responsibilities, the Governor shall have the following special responsibility, namely the prevention of any grave menace to the peace and tranquillity of the Province or any part thereof.

(2)In the discharge of his special responsibility, the Governor shall act in his discretion :

Provided that if at any time in the discharge of his special responsibility he considers it essential that provision should be made by legislation, but is unable to secure such legislation he shall make a report to the President of the Federation who may thereupon take such action as he considers appropriate under his emergency powers."

Honourable Members may kindly refer to my introductory speech in this connection. This question of discretionary powers of the Governor is a matter which requires very careful consideration. On the one hand it encroaches upon the powers of the Ministry. The Governor has not got the services under him and it he is to exercise his functions in his discretion, if he is given authority to take control of the services for the purpose of discretionary responsibility, then it is difficult to conceive how the ministry can function and it almost amounts top a sort of introduction of Section 93 under the provisions of his Act. Again on the other side there is a feeling that looking to the conditions prevailing in the country, some provision should be made for giving special responsibilities to meet with the difficult situation which has arisen in the country today. For this purpose this clause requires careful consideration and I hope all points of view will be made clear in this debate. I therefore move this proposition for the acceptance of the House.

The Honourable Pandit Hirday Nath Kunzru (U.P. General): Mr. President, I venture to suggest that it will be in the interest of us all if the discussion of this question is postponed till tomorrow. We have a new amendment before us of which notice has been given by Mr. Munshi and I think it is desirable that, we should have some time to think over it. There is no doubt that we have been thinking about this question for many days, but no suggestion was before us in the exact form which it has assumed in Mr. Munshi's amendment. I suggest, therefore, that we might take it up tomorrow. It is only half-past twelve now and the House will not lose more than half an hour if we adjourn the discussion till tomorrow. I hope that my suggestion will meet with the approval of the House, and of you, Mr. President.

Mr. President: I was going to suggest that 'instead of not utilising this half hour we might have the amendments moved and further discussion might take place tomorrow if that meets with the approval of the House. Thus the members will have an opportunity of considering the amendments also with the speeches of the Movers of those amendments if that meets with the wishes of the House.

The Honourable Pandit Hirday Math Kunzru: Are you suggesting that the amendment should be moved today and that the speeches might be reserved till tomorrow?

Mr. President: If any mover of any amendment wishes to have that right, I shall give him that right.

Dr. B R. Ambedkar: It should not be. concluded today.

Mr. President: The first amendment is by Messrs. Ajit Prasad Jain, Khurshed Lal and Gopinath Srivastava.

(The amendment was not moved.)

(Messrs. K. Santhanam, Kala Venkata Rao, M. Ananthasayanam. Ayyangar, Shibban Lal Saksena, and Pandit Govind Ballabh Pant did not Move their amendments.)

Mr. B. M. Gupte (Bombay: General): I beg to move Sir, that the proviso to sub-clause (2) of Clause 15 be deleted and the following new subclauses be added:

"(3) If in the discharge of his special responsibility the Governor is satisfied that a situation has arisen in which immediate action has to be taken, he may. by a proclamation assume to himself all or any of the powers vested in or exercisable by anyprovincial body or authority except the High Court.

(4)The Proclamation shall be communicated forthwith to the President of the Union, who may thereupon take such

action as he considers appropriate under his emergency powers.

(5)The Proclamation shall cease to operate at the expiration of 2 weeks, unless revoked before then by the Governor himself or by the President of the Union under his emergency powers, whichever is earlier."

Mr. President: Pandit Hirday Nath Kunzru.

The Honourable Pandit Hirday Nath Kunzru: Mr. President, the amendment of which I have given notice runs as follows.

"That for clause 15, the following be substituted:

'Whenever the Governor is satisfied that there is a grave menace to the peace, and tranquillity of the Province or any part thereof, he may, in his discretion report to the President of the Federation.

NOTE.-The President may take such action on the report under the emergency powers vested in him as he considers appropriate'."

Sir, I shall reserve my speech till. tomorrow because it will obviously be an advantage to consider the matter as a whole after all the amendments have been moved.

Mr. President: Mr. Munshi.

Mr. K. M. Munshi: Sir, this amendment is only an elaboration of Mr. Gupte's amendment. I think I should also reserve whatever I have to say on the amendment for tomorrow.

Mr. M. S. Aney: On a point of order, Sir, Mr. Munshi's amendment is an amendment to an amendment given notice of by Pandit Govind Ballabh Pant but inasmuch as Pandit Pant did not think it worth while to move his amendment at all there is no question of Mr. Munshi moving an amendment to that.

Mr. President: May I point out that an amendment in the same words as Pandit Gobind Ballabh Pant's has been moved by Pandit Kunzru?

Mr. M. S. Aney: Then it will require a change in the wording which should be "moved by Pandit Hirday Nath Kunzru."

Mr. K. M. Munshi: Mr. Aney seems not to have read the paper correctly. I have moved two amendments one to Pantji's, and another to Mr. Gupte's amendment. Since the former amendment was not moved, and Mr. Gupte has moved his amendment, I am perfectly in order in spite of Mr. Aney's protest. The amendment is:

"That for Clause 15 the following be substituted:

'(1) Where the Governor of a Province is satisfied in his discretion that a grave situation has arisen which threatens the peace and tranquility of the Province and that it is not possible to carry on the Government of the Province with the advice of his Ministers in accordance with the provisions of section 9 he may by Proclamation, assume to himself all or any of the functions, of Government and all or any of the powers vested in or exercisable' by any Provincial body or authority; and any such Proclamation may contain. such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the objects of the Proclamation including provisions for suspending in whole or in part of the operation of any provisions of this Act relating to any Provincial body or authority: Provided that nothing in this sub-section shall authorise the Governor to assume to himself any of the powers vested in or exercisable by a High Court or to suspend, either in whole or in part, the operation of any provision of the Act relating to High Courts. (2)The Proclamation shall be forthwith communicated by the Governor to the President of the Union, who may thereupon take such action as he considers appropriate under his emergency powers. (3)The Proclamation shall cease to operate at the expiration of two weeks, unless revoked earlier by the Governor himself or by the President of the Union."

Mr. H. V. Kamath: With due deference to the legal and constitutional ability of 'Mr. Kunzru, I would like to submit that the phrase "satisfied in his discretion" is not quite happy. One may say or do something in one's discretion, but "to be satisfied in one's discretion" is not usual.

Mr. President: We shall adjourn the discussion of this till tomorrow.

Honourable Pandit Hirday Nath Kunzru: I shall deal with Mr. Kamath's point tomorrow.

Mr. President : We might now take up the other item on the agenda, namely the report of the

Committee dealing with the Union Constitution. Pandit Nehru will move the motion which stands in his name.

Mr. H. V. Kamath: Mr. President, last night we received notice of a motion to be moved by Dr. Nehru tomorrow regarding our National Flag, I would request you to let us know up to what hour we could send in amendments to this motion.

Mr. President: Since you received the notice last night-, you could have sent in your amendment by now, but if you have not sent it, you may send it up to 5 O'clock today.

Maulana Hasrat Mohani (U.P. : Muslim): I do not find any mention of the amendment moved by me about this Union Report. There is an amendment by Dr. Deshmukh. I submitted mine at the time.

Mr. President. The amendments have been circulated as Honourable members know. We would have received that amendment late in the afternoon of Saturday. But all amendments have not been placed on the table.

Maulana Hasrat Mohani: I gave my amendment to Mr. lengar two days before Dr. Deshmukh's amendment. It must find a place in the agenda and it must be before all Honourable members.

Mr. President: We shall consider it when we come to that.