CONSTITUENT ASSEMBLY OF INDIA VOLUME IV


Monday, the 21st July 1947.

REPORT ON THE PRINCIPLES OF THE UNIONCONSTITUTION

The Honourable Pandit Jawaharlal Nehru (U.P.: General): Mr. President, Sir. I beg to move :

"That the Constituent Assembly do proceed to take into consideration the Report on the principles of the Union Constitution submitted by the Committee appointed in pursuance of the Resolution of the Assembly of the 30th April, 1947.

This Report has been circulated and, after the full Report was circulated a supplementary Report or rather an addendum to the previous report has also been circulated. In this Supplementary Report certain changes have been made in the previous Report. So I am putting before the House the report as amended by the Supplementary Report. I ventured to circulate a note on this report to the members of this House two days ago in which I pointed out that so, far as the Preamble and part of Clause 1 were concerned, they were covered more or less by the Objective Resolution of this House. That Resolution holds. It may have to be varied in regard to smaller matters because of Political developments since it was Passed.

A Sub-Committee has been asked to go into the question of drafting.. We are not changing the Objectives Resolution at all. What I mean is, adapting it to the Preamble. The Objectives Resolution is history and we stand by all the principle laid down in it. In adapting it to the Preamble, certain obvious changes have to he made. At the present moment, as the House is aware, we are not going into the drafting of the Constitution, but are establishing the the principles on which this should be drafted. Therefore, that draft of the Preamble is not necessary. We have settled the principles. So I suggested in my note that we may not consider this matter

*Appendix 'A'.+Appendix 'B'.

Part II dealing with Citizenship has not been finally decided yet by the Sub-Committee and Part III dealing with Fundamental Rights has already been considered by this House and passed. I would therefore suggest that we might begin consideration of this Report from Part IV. ,Chapter I, The Federal Executive. There are one or two minor matters which you may have to consider in Parts I and IL It is. not necessary to take these one or two simple matters. It is better to begin with Part IV and consider the rest at a later period.

May I point out that I just mentioned that Fundamental Rights have been considered by this House and passed. All that we have passed will of course come up before the House once again for final consideration. There are many new members and it has been pointed out to me by some of them that they were not present here when these Fundamental Rights were considered and passed. Well, it is perfectly true. It is a little dim- cult for us to go back repeatedly and start afresh That I do not think will be proper. But, as a matter of fact, all these things will finally come up before the House and it will be open to any of the members to paint out anything or to amend any part of it at that time. so, I suggest, Sir, that we may proceed now with Part IV, Chapter I, If you have got ,he printed pamphlet, it is on page 5. It begins with Federal Executive.

The Report is a fairly long one. At the end of the Report, you will find and Appendix dealing with the judiciary. This is the Report of the ad hoc Committee on the Supreme Court. That is Only for your information because these conclusions have been more or less incorporated in the Report.

Obviously, when we consider the constitution, the fundamental law of the nation as it is going to be, it is an intricate and important matter and we cannot just rush through it without giving it sufficient time and consideration. I may inform the House that so far as the Union Constitution Committee was concerned, it gave it their very earnest Consideration, not once, but several times. We met the Provincial Constitution Committee also on several occasions and this is the result of our joint consultation, but mostly of the Union

Constitution Committee's work itself.

I have just been given the list of amendments. This paper contains 228 amendments. I am told, in all we have reached the figure 1,000, I have not seen them as yet, none of them. It is rather difficult for me to deal with them now. I should like to abide by the wishes of the House in the matter.

If I may suggest one thing at present, it is this: that we start with Part IV-Federal Executive. The very first thing that comes up is how the Head of the Federation should be elected. I understand that there are several view points on that. Possibly that particular item may be taken up. It is a simple item. The views may be this way or that: but this is a simple issue and we may consider it now, not only because it is the first item, but because it can easily be taken up without a knowledge of the ,other large number of amendments. I beg to move this.

May I, Sir, now go on with item I of Part IV?

Mr. President: I will first put the resolution that the Report be taken into consideration.

Maulana Hasirat Mohani: I have stated that before you take into consideration the Report. I want to make certain points clear. In this paper, which he claims to be a supplementary report, Pandit Nehru has made certain suggestions. After all, these are only his Suggestions. Is it necessary for myself or for anybody else to accept his suggestion? I for one do not accept these suggestions.

Besides, I have got very strong reasons for that. Pandit Nehru the other day said that we have already passed the Objectives Resolution and we have to keep that resolution before us in drafting everything now or afterwards.

Mr. President: Maulana Saheb, the simple proposition that I am putting to this House at the present moment is that the Report of the Committee be taken into consideration. When that is accepted, we will go clause by clause.

Haji Abdul Sathar Haji Ishaq Sait (Madras:Muslim): Sir, members can express their views whether this report should be taken into consideration. or not, We should have a right to speak on that motion. Maulana Saheb is speaking on that motion.

Mr. President: Is it your suggestion that the Report should not be taken into consideration?

Maulana. Hasrat Mohani: Yes. What I say is this, Pandit Nehru says that he has got the Objectives Resolution already passed by the House.

Maulana Hasrat Mohani: Yes. What I say is this. Pandit Nehru in that Objectives Resolution. It says simply that we will have a Republic. It does not say whether the Republic will be a Unitary Republic or a Federal Republic. Even if it is a Federal Republic, it does not make it clear whether that Federal Republic, will be of a centrifugal or centripetal character and unless and until we decide all these things, it is futile to determine the model of Provincial Constitutions. This is why I suggested in my speech the other day: you want to get one thing passed in your provincial constitution; when you have passed the provincial constitution and when I propose on the occasion of a proposed revised Union Constitution Report coming for consideration before the next meeting of the Consembly perhaps in October, an amendment to the effect that it must be a Union of Indian Socialist Republics, then you may say, "you are precluded from doing that as that will be something like a settled fact. We have passed the provincial constitution and now there is no scope, left for Hasrat Mohani to add anything or to say against that."

I am afraid, Sir, that it will be very easy for you to declare my amendments to the Union Constitution out of order as you did the other day in connection with an amendment proposed by my friend. Mr. Tajamul Husain. You will say "Well the provincial constitution has been accepted and passed, now, your amendments are out of order. You will say, that the report has been accepted and therefore my amendments are out of order. I will have raised no objection at this stage if this matter stands over. Then I will have every right to propose amendments on the occasion *hen you go clause by

clause. Or I will have full rights to say that I oppose the Objectives Resolution also. I have got two reasons. One I have made clear that it does not decide anything.

Mr. Shankar Dattatraya Deo (Bombay: General): We cannot follow a single word or any idea.

Mr. President: (To Maulana Hasrat Mohani) Come to this mike, please.

Mr. Jainarain Vyas (Jodhpur State): On a point of order, Sir. The Honourable Member has already started considering the Report. The question before the House is whether the Report be considered or not That question must be considered first.

Maulana Hasrat Mohani: Before considering the Report he should make certain points clear. It puts me at a great disadvantage if I accept this Report.

Mr. President: As I understand it, the Maulana's point is that I should give him a promise at this stage that his amendment will not be ruled out of order. Obviously I cannot give any promise to any member before the matter actually comes up. But you may all have noticed that I am very liberal in the matter of allowing amendments to be moved even if they come out of time. Unless there is any technical ground, I do not see any reason why his amendment may be ruled out of order. More than this I cannot say anything at +,his stage. I have given some sort of promise that Maulana wanted. I take it that the House wishes that we should proceed with the consideration of this report.

Many Honourable Members: Yes, yes.

The motion to take the Report into consideration was adopted.

B. Pocker Sahib Bahadur: I wanted to say one word about the proposition you have put.

Mr., President: I put it to vote and it has been carried.

The Honourable Pandit Jawaharlal Nehru: Sir, I suggest that we should begin with Part IV, Chapter I.

"Clause 1 (1) The Head of the Federation shall be the President (Rashtrapati) to be elected as provided below.

(2)The election shall be by an electoral college consisting of-

(a)the members of both Houses of Parliament of the Federation, and (b)the members of the Legislatures of all the Units or where a Legislature is bicameral the members of the Lower House thereof.

In order to secure uniformity in the scale of representation of the units the votes of the Unit Legislatures shall be weighted in proportion to the population of units concerned.

Explanation.-A Unit means a Province or Indian State which returns in its own individual right members to the Federal Parliament. In Indian States which are grouped together for the purpose of returning representatives to the Council of States a Unit means the group so formed and the Legislature of the Unit means the Legislatures of all the states in that group.

(3)The election of the President shall be by secret ballot and on the system of proportional representation by means of the single transferable vote.

(4)Subject to the above provisions, elections for the office of President shall be regulated by Act of the Federal Parliament."

Now Sir, one thing we have to decide at the very beginning is what should be the kind of governmental structure, whether it is one system where there is ministerial responsibility or whether it is the Presidential system as prevails in the United States of America; many members possibly at first sight might object to this indirect election and may prefer an election by adult suffrage. We have given anxious thought to this matter and we came to the very definite conclusion that it would not be desirable, first because we want to emphasize the ministerial character of the Government that power really resided in the Ministry and in the Legislature and not in the President as such. At the same time we did not want to make the President just a mere figure-head like the French President. We did not give him any Teal power but we have made his position one of great authority and dignity. You will notice from this draft Constitution that he is also to be Commander-in-Chief of the Defence Forces just as the American President is. Now, therefore, if we had an election by adult franchise and yet did

not give him any real powers, it might become slightly anomalous and there might be just etxraordinary expense of time and energy and money without any adequate result. Personally, I am entirely agreeable to the democratic procedure but there is such a thing as too much of a democratic procedure and I greatly fear that if we have a wide scale wasting of the time, we might have no time left for doing anything else except preparing for the elections and having elections. -We have got enough elections for the Constitution. We shall have elections 'on adult franchise basis for the Federal Legislature. Now if you add to that an enormous Presidential election in which every adult votes in the whole of India, that will be a tremendous affair. In fact even- financially it will be difficult to carry out and otherwise also it will upset most activities for a great part of the year. The American Presidential election actually stops many activities for many many months. Now it Is not for we to criticise the American system or any other system. Each country evolves the system of its choice. I do think that while there are virtues in the American system, there are great defects in that system. I am not concerned with the United States of America. I am concerned with India at present, and I am quite convinced in my mind that if we try to adopt that here, we shall prevent the development of any ministerial form of Government and we shall waste tremendous amount of time arid energy. It Is said that the American Presidential election helps the forging of unity of the country by concentrating the mind of the entire country on the Presidential election and on the conduct of those elections. One man becomes the symbol of the country. Here also he will be a' symbol of the country; but I think that having that type of election for our President would be a bad thing for us.

Some people suggested, why have even this rather complicated system of election that we have suggested? Why not the Central Legislature by itself elect the preside itself elect the president? That will be much simpler, of course, but there is the danger that It will be putting the thing very much on the other side, of having it on too narrow a basis. The Central Legislature may, and probably will be dominated, say, by one party or group which will form the ministry. If that group elects the President, inevitably they will tend to choose a person of their own party. He will then be even more a dummy than otherwise. The President and the ministry will represent exactly the same thing. It is possible that even otherwise the President may represent the same group or party or ideas. But we have taken a middle course and asked all the members of all the legislatures all over India, in all the units to become voters. It is just likely, that they will be choosing a party, man. Always that is possible of course. Anyway, we may rule out electing the President by the Central Legislature as being on too narrow a basis.To have it on adult franchise, you must have some kind of electoral college; It has been suggested that we may have some kind of electoral college which will include all manner of people-members of municipalities, district boards and so on. That, I think. will be introducing confusion without doing good to anybody. It will mean a large number of petty elections for making up the electoral college. In the various legislatures you have already a ready-made electoral college-that is, the members, of the legislatures all over India. Probably they will number a few thousands. And presumably these members of the legislatures will he lit a better position to judge of the merits of the individual in question or the candidates than some other larger electoral college consisting of municipal members and others. So I submit to the House that the method that this Committee bus suggested is quite feasible and is the Tight method to choose a good man who will have authority and dignity in India and abroad.

You will notice that in choosing this method, we have taken care to prevent

any weightage in voting, because legislatures, a hag been explained, I believe in a note, may not be,representative of the population of the numbers of the population. A province like the United Provinces or Madras may have a provincial legislature of 300 persons representing some 60 or 55 million people. I do not know how many. Another legislature may have 50 members representing som 50,000. It will be rather absurd to give the same weightage and the result will be that a number of very small units in the country will really dominate the scene.Therefore weightage has been disallowed and some formula will have to be worked out carefully to see that voting is according to the population of the units concerned. I beg to move.

Mr. President: We shall take up the amendments to this motion, and resume discussion on this, next day.

Before we depart I would like to make one announcement. We have now the Report of the Union Powers Committee which had been circulated. Members may send in their amendments till day after tomorrow 5 P.m. i.e., up to Wednesday, the 23rd at 5 P.m. (Some Honourable Members: "We have not received the Report"). I understand the Report was circulated long ago, in fact that it has been circulated twice. But if still any member has not received a copy, he may take it now."

Some Honourable Members: We are anxious to know the time-table for the next session. May we put off giving notice of amendments till Thursday evening?

Mr. President: Yes, notice of amendments to Union Powers Committee's Report may be given till 5 P.m. on Thursday, the 24th instant.

The House then adjourned till Ten of the Clock, on Tuesday, the 22nd July 1947.

CONFIDENTIAL

APPENDIX 'A'

No. CA/ 63/Cons./47

CONSTITUENT ASSEMBLY OF INDIA

COUNCIL HOUSE,

New Delhi, the 4th July, 1947.

FROM

PANDIT JAWAHARLAL NEHRU,

CHAIRMAN,

UNION CONSTITUTION COMMITTEE

To

THE PRESIDENT.

CONSTITUENT ASSEMBLY OF INDIA.

Sir,

On behalf of the members of the Committee appointed by the Honourable the President in pursuance of the resolution of the Constituent Assembly of the 30th April, 1947, to report on the principles of the Union Constitution, I have the honour to submit the annexed Memorandum which embodies the recommendations of the Committee together with explanatory notes where necessary.

I have the honour to be,Sir,Your most obedient servant,

JAWAHARLAL NEHRU,

Chairman.

No. CA/63/Cons./47

CONSTITUENT ASSEMBLY OF INDIA

Memorandum on the Indian Constitution

Preamble.-We, the people of India, seeking to promote the common (Mod do hereby, through our chosen representatives, enact, adopt and give to Ourselves this Constitution.

PART I

FEDERAL TERRITORY AND JURISDICTION

1. Name and Territory of Federation.-The Federation hereby established shall be a sovereign independent Republic known as India.

Save as otherwise provided or under this Constitution or any treat,.:, or agreement the territories included for the time being in Schedule I shall be subject to the jurisdiction of the Federation.

[NOTE.-The structure proposed to be established by this Constitution being federal in character, the term Federation has been used.]

"India" has been suggested for the name of the State as being the shortest and the most comprehensive.

The words 'save as otherwise provided by or under.... and treaty or agreement" are necessary, because there may be Indian States which, though unfederated and therefore not in the Schedule, may have ceded jurisdiction for certain special purposes by some treaty or agreement.

2.Admission of New Territory.-The Parliament of the Federation may from time to time by Act include new territories in Schedule I upon such terms as it thinks fit.

[Cf. Art. IV, Section 3(1), of the Constitution of the U.S.A., and Section 121 of the Australian Constitution. The power to admit new States is vested in the Congress in the U.S.A. and in the Commonwealth Parliament in Australia.

As a matter of nomenclature it may be explained that in this draft the

Legislature of the Federation is referred to as "Parliament"; Unit Legislatures are referred to as "Legislatures". The Federal Parliament consists of the President and a National Assembly comprising two Houses.]

3.Creation of new units and alteration of boundaries of units The Parliament of the Federation may by Act, with the consent- of the Legislature of every Province and the Legislature of every Indian State affected thereby,-

(a)create a new unit;

(b)increase the area of any unit;

(c)diminish the area of any unit;

(d)alter the boundaries of any unit;

and may with the like consent make such incidental and consequential provisions as it may deem necessary or proper.

(NOTE.-This corresponds to S. 290 of the Act of 1935, but is wider in that it provides for the possibility of Indian State territory being included in a province.]

APPENDIX A

SCHEDULE I

TERRITORIES SUBJECT TO THE JURISDICTION OF THE FEDERATION

I. Governor's Provinces-

Madras,

Bombay,

West Bengal,

The United Provinces,

Bihar,

East Punjab,

The Central Provinces and Berar,

Assam,

Orissa.

II.Chief Commissioners' Provinces-

Delhi,

AjmerMerwara,

Coorg,

The Andaman and Nicobar Islands, Panth Piploda.

III. Indian States-

[Here enumerate the acceding or ratifying Indian States:-

(1)Single States.(2)Groups of States.]

[The Governors' Provinces and the Chief Commissioner's Provinces specified in the Schedule will be automatically within, the jurisdiction of the Federation of India. As regards Indian States, some procedure will. have to be prescribed for determining which of them are to be included in the Schedule initially. Under the Act of 1935, accession was to be evidenced by "Instruments of Accessor" executed by the Rulers. If it is considered undesirable to use this term or adopt this procedure, some kind of ratification may have to be prescribed.

If any of the Provinces specified in the Schedule should be partitioned before the Constitution comes into operation, the Schedule will have to be amended accordingly.]

*PART II

CITIZENSHIP

1.Citizenship.-At the date of commencement of this Constitution every person domiciled in the territories subject to the jurisdiction of the Federation-

(a)who has been ordinarily resident in those territories for not less than five years immediately preceding that date, or

*This part is subject to the decision of the ad hoc Committee on Citizenship Clause.

(b)who, or whose parents, or either of whose parents, was or were born in India.

shall be citizen of the Federation:

Provided that any such person being a citizen of any other State may, in accordance with Federal law, elect not to accept the citizenship hereby conferred.

Explanation.-For the purposes of this clause-

"Domicile" has the same meaning as in the Indian Succession Act, 1925.

2. After the commencement of this Constitution-

(a)every person who is born in the territories subject to the jurisdiction of the Federation; (b)every person who is naturalised in accordance with Federal law, and (c)every person, either of whose parents was, at the time of such person's birth, a citizen of the Federation;

shall be a citizen of the Federation.

3.Further provisions governing the acquisition and termination of Federal citizenship may be made by Federal law.

Explanation-In this Constitution, unless the context otherwise requires "Federal law" includes any existing Indian law as law as in force within the territories subject to the jurisdiction of the Federation.

[NOTE.-The Provisions regarding citizenship will doubtless rouse keen controversy. The present draft is merely meant as a basis for discussion. Cf. Art. 3 of the Constitution of the Irish Free State 1922. which runs-

'Every person, without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State at the time of the coming into operation of this Constitution, who was born in Ireland or either of whose parents was born in Ireland, or who has been ordinarily resident

in the area of the jurisdiction of the Irish Free State for riot less than seven years, is a citizen of the Irish Free State and shall, within the limits of the jurisdiction of the Irish Free State, enjoy the privileges and be subject to the obligations of such citizenship:

Provided that any such person being a citizen of another State may elect not to accept the citizenship hereby conferred; and the conditions governing the future acquisition and termination of citizenship in this Irish Free State shall be determined by law."

Clause 1 is on the lines of the above provision, except that a period of five years has been substituted for seven years in accordance with S. 3(1) (c) of the Indian Naturalisation Act, VII of 1926.

The clause has had to be drafted with due regard to the probability that the Federation will not initially exercise jurisdiction over the whole of India.

A person born in India and modiciled in Bombay, who happens to be resident in London at the commencement of the new Constitution, will be a citizen of the Federation under this clause; but not one domiciled in Sind or Baluchistan, if the Federation does not initially exercise jurisdiction there. It is, however, open to any person to acquire a new domicile by taking up his fixed habitation in another area before the Constitution comes into operation.

Under the Indian Succession Act, 1925, every person has a "domicile of origin which prevails until he acquires a new domicile. Briefly, his domicile of or gin is in the country n whch at the time of his birth his father was domiciled, and he can acquire a new domicile by taking up his fixed habitation n another country. There is also a provision in the Act enabiling any person to acquire a domiciled, British India by making and depositing in some office in British India, appointed in this behalf by the Provincial Government, a declaration in writing of his desire to acquire such domicile provided that he has been resident in British India for one year preceding the date of the declaration. Generally speaking, a wife's domicile during her marriage follows the domicile of her husband. If any person who is at present domiciled, say, in Hyderabad, wishes to acquire a domicile, say, in Delhi before the coming into operation of this Constitution he can do so either by taking his fixed habitation in Delhi or by following the procedure prescribed in the above, provision of the Indian Succession Act, so that at the date of commencement of the Constitution he will become domiciled "in the territories subject to the jurisdiction of the Federation".

Clauses 2 and 3 follow the provisions suggested by the ad hoc Committee; Clause 2 is not necessary, if we are content to leave the matter to Federal law under Clause 3. In this connection. there is much to be said in favour of the view of the Calcutta Weekly Notes:

"It is not possible lo define exhaustively the conditions of nationality, whether by birth or naturalisation, by the Constitution. If certain conditions are laid down by the Constitution, difficulties may arise regarding the interpretation of future legislation which may appear to be contrary to or to depart in any way from them. For example, the draft of the nationality clause placed before the Constituent Assembly lays down that any person born in the Union would be a citizen of the Union. But what about a woman citizen of the Union marrying an alien national or about an alien woman marrying a Union national? Would the Union Legislature have power to legislate in the first case that the woman would lose her Union nationality or in the second case that she would acquire Union nationality (such being the law of most of the countries)? These are in triguing questions,but all these things have to be pondered before a rigid clause is insertedIn the Constitution itself. it would, in our opinion therefore, be better to specify who would be citizens of the Indian Union at the date when the Constitution comes into force as in the Constitution of the Irish Free State and leave the law regarding

nationality to be provided for by legislation by the Indian Union in accordance with the accepted principles of Private International Law." (Calcutta Weekly Notes, Vol. LI No. 27, May 26, 1947).

The same journal in two subsequent issues (Vol. LI, Nos. 28 and 29, June 2, and June 9, 1947) has drawn attention to a host of other questions arising out of Clause 2 and on the whole it may be better altogether to omit that clause, leaving the matter at large to be regulated by Federal law under Clause 3).

PART III

FUNDAMENTAL RIGHTS INCLUDING DIRECTIVE

PRINCIPLES OF STATE POLICY

1.Fundamental Rights:-[Here enumerate the Fundamental rights and principle of State policy as passed the Constituent Assembly.]

PART IV

CHAPTER I

THE FEDERAL EXECUTIVE

1. Head of the Federation.-(1) The Head of the Federation shall be the President (Rashtrapti) to be elected as provided below.

(2)The election shall be by an electoral college consisting of-

(a)the members of both Houses of Parliament of the Federation, and (b)the members of the Legislatures of all the Units or, where a Legislature is bicameral, the members of the Lower House thereof.

In order to secure uniformity in the scale of representation of the Units, the votes of the Unit Legislatures shall be weighted in proportion to the population of the Units concerned.

Explanation.-A Unit means a Province or Indian State which returns in it own individual right members to the Federal Parliament. In Indian States which are grouped together for the purpose of returning, representatives to the Council of States, a Unit means the group so formed and the legislature of the Unit means the Legislatures of all the States in that group.

(3)The election of the President shall be by secret ballot and on the system of proportional representation by means of the single transferablevote.

(4)Subject to the above provisions, elections for the office of President. shall be regulated by Act of Federal Parliament.

[NOTE.The provision about weighting of the votes according to the population of the Units is necessary to prevent the swamping of the votes of a large Unit by those of a much smaller Unit which may happen to have a relatively large Legislature. The mode of weighting may be illustrated thus: In a Legislature where each legislator represents 1 lakh (100,000) of the population, his vote shall count as equivalent to 100, that is, 1 for each 1.000 of the population: and where the Legislature is such that the legislator represents, 10,000 of the population, his vote shall count as equivalent to 10 ton the same scale.]

2.Term of office of President.-(1) The President shall hold office for 5 years:

Provided that-

(a)President may by resignation under his hand addressed to the Chairman of the Council of States and the Speaker of the House of the People resign his office;

(b)a President may, for violation of the Constitution, be removed from office by impeachment in the manner provided in subclause (2).

(2)When a President is to be impeached for violation of the Constitution, the charge shall be preferred by either House of the Federal Parliament, but no proposal to prefer such charge shall be adopted by that House except upon a resolution of the House supported by not less than two-thirds of the total membership of the House.'

(b)When a charge has been so preferred by either House of the Federal Parliament the other House shall investigate the charge or cause the charges to be investigated and the President shall have the right to appear and to be represented at such investigation.

(c)If as a result of the investigation a resolution is passed supported by not less than two-thirds of the total membership of the House by which the charge was investigated or cause to be investigated declaring that the charge preferred against the President has been sustained, the resolution shall have the effect of removing the President from his office as from the date of the resolution.

(3)A person who holds, or who has held, office as President shall be

eligible or re-election once, but only once.

[NOTE.-Sub-clauses (1) (b) and (2) follow Art. 12(10) of the Irish Constitution sub-clause (3) is also taken from the Irish Constitution.]

3.Age qualification.-Every citizen of the Federation who ha completedthe age of thirty-five years and is qualified for election as a member of the House of the People shall be eligible for election as President.

[NOTE.-This follows Art II, Section 1(5), of the Constitution of the U.S.A. and Article 12(4) of the Irish Constitution.]

4.Conditions of President's Office.-(1) The President shall not be a member of either House of the Federal Parliament and if a member of either House be elected President, he shall be deemed to have vacated his seat in that House.

(2)The President shall not hold any other office position 'of emolument.

(3)The President shall have an official residence and shall receive such emoluments and allowances. as may be determined by Act of the Federal Parliament and until then, such as are prescribed in Schedule.

(4)The emoluments and allowances of the President shall not be diminshed during his term of office.

[NOTE-These follow the provisions of Articles 12(6) and (11) of the Irish Constitution.]

5.Casual vacancies and procedure at electionsAppropriate provision should be made for elections to fill casual vacancies, the detailed procedure for all elections, whether casual or not being left to be regulated by Act ,of the Federal, Parliament:

Provided that-

(a)an election to fill a casual vacancy shall be held as soon as possible after and in no case later than six months from, the date of occurrence of the vacancy; and

(b)the person elected as President at an election to fill a casual vacancy shall be entitled to hold office for the full term of five years.

6Vice-President.-(1) In the event of the absence of the President or ,of his death, resignation, removal from office, or incapacity or failure to exercise and perform the powers and functions of his office or at any time atwhich the office of the President may be vacant, his functions shall be dischargedby the Vice-President pending the resumption by the President ofhis duties or the election of a new President, as the case may be.

(2)The Vice-President shall be elected by both Houses of the Federal Parliament in joint session by secret ballot on the system of proportional representation by means of the single transferable vote and shall be exofficio President of the Council. of States.

(3)The Vice-President shall hold office for five years.

7.Functions of the President.-(1) Subject to the provisions of this Constitution the executive authority of the Federation shall be vested in the President.

(2)Without prejudice to the generality of the foregoing provision-

(a)the supreme command of the defence forces of the Federation shall be vested in the President;

(b)the right of pardon and the power to commute or to remit punishment imposed by any court exercising criminal Jurisdiction shall be vested in the President, but such power of commutation or remission may also be conferred by. law on other authorities.

[NOTE.-The italicized words in sub-clause 2(b) are necessary, because of the provisions of the Criminal Procedure Code, which, in this respect, will probably continue to be in force even after the commencement of the new Constitution. Similar limiting words occur in the Irish Constitution also.]

8.Extent of executive authority of the Federation.-Subject to the provisions of this Constitution, the executive authority of the Federation shall extend to the matters with respect to which the Federal Parliament has power to make laws and to any other matters with respect to which authority has been conferred the Federation by any treaty or agreement, and shall the exercised either through its own agency or through the Units.

9.The executive authority of the Ruler of a Federated State awl continue to be exercisable in that State with respect to Federal subjects, until otherwise provided by the appropriate

Federal authority.

[NOTE.-Like the corresponding provision in section 8(2) of the Act of 1953 this clause gives the Rulers of Indian States, who have acceded to the Federation, concurrent executive power even in Federal subjects, until otherwise provided by Federal authority. (In this respect, the position of the Provincial units is rather different: these have no executive power in respect of Federal subjects save as given by Federal law.) Such a clause is necessary, for otherwise, all statutory powers in respect of Federal subjects will come to an end in the acceding States upon the ,commencement of this Constitution.)

10.Council of Ministers.-There shall be a Council of Ministers with the Prime Minister at the head, to aid and advise the President in the ,exercise of his functions.

11.Advocate-General for the Federation.-The President shall appoint a person, being one qualified to be appointed a judge of the Supreme Court, to be Advocate-General for the Federation, to give advice to Federal Government upon legal matters that may be referred to him.

12. Conduct of business of the Federal Government,All executive action of the Federal Government shall be expressed to be taken in the name of the President.

CHAPTER II

THE FEDERAL PARLIAMENT

13.Constitution of the Federal Parliament,-The legislative power of the Federation shall be vested in the Parliament of the Federation which shall consist of the President and the National Assembly, comprising two Houses, the Council of States and the House of the People.

14.(1) (a) The Council of States shall consist of-

(i)not more than 10 members nominated by the President in consultation with universities and scientific bodies; (ii)representatives of the Units on the scale of one representative for every whole million of the population of the Unit upto five million plus one representative or every additional two million of the population, subject to a total maximum of 20.

ExplanationA Unit means a province or Indian State which returns In its own individual right members to the Federal Parliament. In Indian States which are grouped together for the purpose of returning representatives to the Council of States a Unit means the group so formed.

(b)The representatives of each Unit in the Council of States shall be elected by the members of the Lower House of the Legislature of suchUnit.

(e)The House of the People shall consist of representatives of the Peopleof the territories of the Federation in the proportion of not less than 1representative for every million of the population and not more than 1 representative for every 750,000 of the population.

(d)The ratio between the number of members to be elected at any time for each constituency and the population of that constituency, as ascertained at the last preceding census shall, as far as practicable, be the some throughout the territories of the Federation.

(2)The said representatives shall be chosen in accordance with the provisions in that behalf contained in Schedule;

Provided that the elections to the House of the People shall be on the basis of adult suffrage.

(3)Upon the completion of each decennial census, the representation of the several Provinces and Indian States or groups of Indian States in the two Houses shall be readjusted by such authority, in such manner, aidfrom such time as the Federal Parliament may by Act determine.

(4) The Council of States shall be a permanent body not subject to dissolution but, as near as may be, one-third of the members thereof shall retireIn every second year In accordance with the provisions in that behalfcontained in Schedule-

(5)The House of the People unless sooner dissolved shall continue for four years from the date appointed for its first meeting and no longer, and the expiration of the said period of four years shall operate as a dissolution of the' House:

Provided that the said period may during an emergency be extended by the President for a period not exceeding one year at a time and not exceeding in any cm beyond the period

of six months from the expiry of the period of the emergency.

[NOTE.Taking into account only the "willing" Provinces, this clause gives the Council of States a maximum strength of about 260 members and the House of the People a maximum strength of between 300 and 400 members. The following tabular statement will serve to give a general picture of the composition of the Upper House under the above scheme (The composition of the Lower House will be on a purely population basis.)

COUNCIL OF STATES

Provinces

Madras20Bombay12Bengal (W)12U.P20Punjab(E)9Bihar20C.P10Assam7Orrisa6Total116StatesHyderabad10Mysore6Travancore5Baroda3Gwalior4Jaipur3Kashmir4Jodhpur2Udaipur2Patiala2Rewa2Cochin1Bikaner1Kolhapur1Indore147For the groups of the remaining states whose population individually does not amount to one million. 24

Total 71

15.There should be the usual provisions for the summoning prorogation and dissolution of Parliament. for regulating the relations between the two Houses, the mode of voting, privileges of members, disqualification for membership, Parliamentary procedure, including procedure in financial matters. In particular, money Bills must originate: in the Lower House. The Upper House should have power to suggest amendments in money Bills; the Lower House would consider them and thereafter, whether they accept the amendments or not, the Bill as amended (where the amendments are accepted) or in its original form (where the amendments are not accepted) shall be presented to the President for assent and, upon his assent shall become law. If there is any difference of opinion as to whether a Bill is a money Bill or not, the decision of the Speaker of the House of the People should be final. Except in the case of money Bills both the Houses should have equal powers. of legislation. and deadlocks should be resolved by joint meetings of the two Houses. The President should have the power of returning Bills which have been passed by the National Assembly for reconsideration within a period of six months.

16.Language.-In the Federal Parliament, business shall be transacted in Hindustani (Hindi or Urdu) or English, provided that the Chairman or the Speaker, as the case may be, may permit any member who cannot adequately express himself in either language to address the House in his mother tongue. The Chairman or the Speaker, as the ease may be, shall make arrangements for giving the House, whenever he thinks fit, a summary of the speech in a language other than that used by the member and such summary shall be included in the record of the proceedings of the House.

[NOTE.-This follows the corresponding provision in the Constituent Assembly Rules.]

CHAPTER III

LEGISLATIVE POWERS OF THE PRESIDENT

17.Power of President to promulgate ordinances during recess of Parliament.-(1) If at any time when the Federal Parliament is not in session the President 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 section shall have the same face and effect as an Act of the Federal Parliament assented to by the President, but every such ordinance-

(a)shall be laid before the Federal Parliament and shall cease to operate at the expiration of six weeks from the re-assmebly of Federal Parliament, or, if before the expiration of that period resolutions disapproving it are passed by-both Houses, upon the passing of the second of those resolutions; and (b)may be withdrawn at any time by the President.

(3)If and so far as an ordinance under this section makes any provision which the Federal Parliament would not under this Constitution be competent to enact, it shall be void.

[NOTE.-The ordinance-making power has been the subject of great criticism under the present Constitution. It must however be pointed out that

circumstances may exist where tile immediate promulgation of a law is absolutely necessary and there is no time in which to summon the Federal Parliament. In 1925, Lord Reading found it necessary to make an ordinance suspending the cotton excise duty when such action was immediately and imperatively required in the interests of the country. A democratically elected President who has moreover to act on the advice of ministers responsible the Parliament is not at all likely to abuse any ordinance-making power with which he may be invested. Hence the proposed provision.]

CHAPTER IV

THE FEDERAL JUDICATURE

18. Supreme Court.-There shall be a Supreme Court with the constitution, powers and jurisdiction recommended by the ad hoc Committee on the Union Judiciary, except that a judge of the Supreme Court shall be appointed by the President after consulting the Chief Justice and such other judges of the Supreme Court as also judges of the High Courts as may be necessary for the purpose.

[NOTE.-The ad hoc Committee* on the Supreme Court has observed that it will not be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Federation. They have suggested two alternatives, both of which involve the setting up of a special panel of eleven members. According to one alternative, the President, in consultation with the Chief Justice, is to nominate a person for appointment as puisne judge and the nomination has to be confirmed by at least seven members of the panel. According to the other alternative, the panel should recommend three names, out of which the President, in consultation with the Chief Justice, is to select one for the appointment. The provision suggested in the above clause follows the decision of the Union Constitution Committee.]

CHAPTER V

AUDITOR-GENERAL OF THE FEDERATION

19.Auditor-General.-There shall be an Auditor-General of the Federation who shall be appointed by the President and shall only be removed from office in like manner and on the like grounds as a judge of the Supreme Court.

20.Functions of Auditor-General.-The duties and powers of the Auditor-General shall follow the lines of the corresponding provisions in the Act of 1935.

CHAPTER VI

SERVICES

21.Public Service Commission.-There shall be a Public Service Commission for the Federation whose composition and functions shall follow the lines of the corresponding provision in the Act of 1935, except that the appointment of the Chairman and the members of the Commission shall be made by the President on the advice of his ministers.

22.Provision should be made for the creation of AllIndia Services whole recruitment and conditions of service will be regulated by Federallaw.

CHAPTER VII

ELECTIONS

23.Elections to the Federal Parliament.-Subject to the provisions of this Constitution, the Federal Parliament may, from time to time, make provision with respect to all matters relating to or connected with elections to either House of the Federal Legislature including the delimitation of constituencies.

24.Superintendence, direction and control of elections.-The superintendence, direction and control of all elections, whether Federal or Provincial, held under this Constitution including the appointment of election tribunals for decision of doubts and disputes arising out of or in connection with such elections shall be vested in a Commission to be appointed by the President.

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

*For Committee's Report See Appendix.

PART V

DISTRIBUTION OF LEGISLATIVE POWERS BETWEEN THE FEDERATION AND THE UNITS

The provisions to be inserted under this head will depend upon the decisions that may be taken upon the report of the Union Powers Committee. The Union Constitution Committee has, however, decided that-

(1)the Constitution should be a Federal structure with a strong Centre; (2)there should be three exhaustive legislative lists, viz., Federal. Provincial and Concurrent, with

residuary powers to the Centre;

(3)'the State should be on a par with the Provinces as regards the Federal Legislative list subject to the consideration of any special matter which may be raised when the lists have been fully prepared. PART VI

ADMINISTRATIVE RELATIONS BETWEEN THE FEDERATIONAND THE UNITS

1.The Federal Parliament in legislating for an exclusively Federal subject may devolve upon the Government of a Unit, whether a Province, an Indian State or other area, or upon any officer of that Government, the exercise on behalf of the Federal Government of any functions in relation to that subject.

(2)The authority of the Federal Government will also extend to the executive power and authority in so far as it is necessary and applicable for the purpose as to secure that due effect is given within the Unit to every Act of the Federal Parliament which applies to that Unit; and the authority of the Federal Government will extend to the giving of directions to a Unit Government to that end.

(2)The authority of the Federal Government will also extend to the giving of directions to the Unit Government as to the manner in which the litter's executive power and authority should be exercised in relation to any matter which affects the administration of a Federal subject.

[NOTECf. Section 122, 124 and 126 of the Government of India Act

PART VII

FINANCE AND BORROWING POWERS

1.Revenues derived from sources in respect of which the Federal Parliament has exclusive power to make laws will be allocated as Federal reveneus but in the cases specified in the next succeeding paragraph the Federation will be empowered or required to make assignments to Units from Federal revenues.

2.Provision should be made for the levy and, if necessary, distribution of the following taxes, viz., customs, Federal excises, export duties, death duties and taxes on income other than agricultural income and taxes on companies.

3.The Federal Government will have power to make subventions or grants out of the Federal revenues for any purpose, notwithstanding that the purpose is not one with respect to which the Federal Parliament may make laws.

4.The Federal Government will have power to borrow for any of the purposes of the Federation upon the security of Federal revenues subject to such limitations and conditions as may be fixed. by Federal law.

5.The Federal Government will have power to grant a loan to, or guarantee a loan by, any Unit of the Federation on such terms and under such conditions as it may prescribe.

[NOTE.-Cf. Sections 136 to 140, 162 and 163(2) of the Government of India Act, 1935.]

PART VIII

DIRECTLY ADMINISTERED AREAS

1.The Chief Commissioner's Provinces should continue to be admintered by the Centre as under the Government of India Act, 1935, as an interim measure, the question of any change in the system being considered subsequently, and all centrally administered areas including the Andamans and the Nicobar Islands should be specifically mentioned in the Constitution.

2. Appropriate provision should be made in the Constitution for the administration of tribal areas.

[NOTE.-The provision to be made regarding tribal areas should incorporate the scheme for the administration of such areas as approved by the Constituent Assembly on the report of the Advisory Committee.]

PART LX

MISCELLANEOUS

The provisions for the protection of minorities as approved by the Constituent Assembly on the report of the Advisory Committee should be incorporated in the Constitution.

PART X

AMENDMENT OF THE CONSTITUTION

An amendment to the Constitution may be initiated in either House of the Federal Parliament and when the proposed amendment is passed in each House by a majority of not less than two-thirds of the members of that House present and voting and is ratified by the legislatures of Got less than half of the Units of the Federation, it shall be presented to the President for his assent; and upon such assent being given, the amendment shall come into operation.

Explanation,"Unit"

in this clause has the same meaning as-in Clause 14 of Part IV. Where a Unit consists of a group of States, a proposed amendment shall be deemed to be ratified by the legislature of the Unit, if it is ratified by the majority of the legislatures of the States in the Group.

PART XI

TRANSITIONAL PROVISIONS

1.The Government of the Federation shall be the successor to 'the Government of India established under the Government of India Act, 1935, as regards all property, assets, rights and liabilities.

[If, before the commencement of this Constitution, two successor Governments should be set up in India, this clause may have to be amended, in as much as there may be a division of assets and liabilities]

2.(1) Subject to this Constitution, the laws in force in the territories of the Federation immediately before the commencement of the Constitution shall continue in force therein until altered or repealed, or amended by a competent legislature or other competent authority.

(2)The President may by Order provide that as from a specified date any law in force in the Provinces shall, until repealed or amended by competent authority, have effect subject to such adaptations and modifications as appear to him to be necessary or expedient for bringing the provisions of that law into accord with the provisions of this Constitution.

3.Until the Supreme Court is duly constituted under this Constitution, the Federal Court shall be deemed to be the Supreme Court and shall exercise all the functions of the Supreme Court:

Provided that all cases pending before the Federal Court and the Judicial Committee of the Privy Council at the date of commencement of this Constitution may be disposed of as if this Constitution bad not come into operation.

4.Excepting holders of the offices specified in Schedule-every person who immediately before the date of the commencement of this Constitution, was in the service of the Crown in India, including any judge of the Federal Court or of any High Court, shall, on that date be transferred to the appropriate service of the Federation or the Unit concerned and shall hold office by a tenure corresponding to his previous tenure.

[NOTE.-Under the next succeeding clause there will be a provisional President from the commencement of the new Constitution, so that there will be no room for a Governor-General. Similarly, in the Provinces there will be no room for any Governor appointed by His Majesty. The same may be true of the holders of certain other offices. All such offices may be enumerated in a Schedule. The proposed provision applies to persons holding office other than those mentioned in the Schedule. Cf. Article 77 of the Transitory Provisions of the Constitution of the Irish Free State, 1922, reproduced below:

"Every existing officer of the Provisional Government at the date of the coming into operation of this Constitution (not being an officer whose services have been lent by the British Government to the Provisional Government) shall on that date be transferred to and become an officer of the Irish Free State (Saorstat Eireann) and shall hold office by a tenure corresponding to his previous tenure."]

5.(1) Until both the Houses of the National Assembly have been duly constituted and summoned under this Constitution, the Constituent Assembly shall itself exercise all the powers and discharge all the duties of both the Houses.

Explanation-For the purposes of this sub-clause,- the Constituent Assembly shall not include any members representing territories not included in Schedule I.

(2)Such person as the Constituent Assembly shall have elected in this behalf shall be the provisional President of the Federation until a President has been elected as provided in Part IV of this Constitution.

(3)Such persons as shall have been appointed in this behalf by the provisional President shall be the provisional council of ministers until ministers are duly appointed as provided in Part IV of this Constitution.

[NOTE.-It is essential that on the date of commencement of

this Constitution there should be a Legislature and an Executive ready to take over power. The most practicable course is that the Constituent Assembly should itself be the provisional Legislature. The clause regarding the provisional Executive is consequential. These provisions may however require modification after the passing of the new Dominion Act amending the Government of India Act, 1935.]

6.As there may be unforeseen difficulties during the transitional period, there should be a clause in the Constitution on the following lines.

The Federal Parliament may, notwithstanding anything contained in Part X, by Act.-

(a)direct that this Constitution, except the provisions of the said Part and of this clause, shall, during such period, if any, as may be specified in the Act, have effect subject to such adaptations and notifications as may be so specified ; (b)make such other provisions for the purpose of removing any such difficulties as aforesaid as may be specified in the Act.

No Act shall be made under this clause after the expiration of three years from the commencement of this Constitution."

[NOTE.The-removal-of-difficulties-clause is now quite usual: see, for example, section 310 of the Government of India Act. 1935. The period of three years has been borrowed from Article 51 of the Irish Constitution. This clause will make the process of amendment comparatively easy during the first three years.

CONSTITUENT ASSEMBLY

ad hoc Committee on supreme Court

We, the undersigned members of the Committee appointed to consider the Constitution and powers of the Supreme Court have the honour to submit this our report.

2.We considered the question under the following heads:

I.Jurisdiction and powers of the Supreme Court.II.Advisory jurisdiction of the Court.III. Ancillary powers of the Court.IV.Constitution and strength of the Court.V.Qualifications and mode of appointment of judges.VI.Tenure of office. and conditions of service of judges.

I.JURISDICTION AND POWERS OF THE SUPREME COURT

3.A Supreme Court with jurisdiction to decide upon the constitutional validity of acts and laws can be regarded as a necessary implication of any federal scheme. This jurisdiction need not however belong exclusively to the Supreme Court. Even under the existing Indian Constitution, the question of the validity of acts and laws is permitted to be raised in any court whenever that question arises in a litigation before that court.

4.A Supreme Court for certain purposes being thus a necessity, we consider that the Court may well be given the following additional powers under the new Indian Constitution:-

(a)Exclusive jurisdiction in disputes between the Union and a Unit or between one Unit and another

5.The Supreme Court is the best available forum-for the adjudication of such disputes, and its jurisdiction should be exclusive.

(b)Jurisdiction with respect to matters arising out of treaties made by the Union

6.The treaty-making powers belongs to the Union as part of the subject of 'Foreign Affairs'. It would therefore be appropriate to investthe Supreme Court of the Union with jurisdiction to decide finally, though not necessarily in the first instance, upon all matters arising out of treaties including extradition between the Union and a foreign State. At this stage we do not deal with inter-unit extradition, because this will depend upon the ultimate distribution of powers between the Union and the Units.

(c)Jurisdiction in respect of such other matters within the competence of the Union as the Union Legislature may prescribe

7.If the Union Legislature is competent to legislate on a certain matter, it is obviously competent to confer judicial power in respect of that matter on a tribunal of its own choice; and if it chooses the Supreme Court for the purpose, the Court will have the jurisdiction so conferred.

(d)Jurisdiction for the purpose of enforcing the fundamental rights guaranteed by the Constitution

8.Clause 22 of the draft the Fundamental Rights provides that the right to move the

Supreme Court by appropriate proceedings for the enforcement of fundamental rights is guaranteed. We think however, that it is undersirable to make the jurisdiction of the Supreme Court in such matters exclusive. The citizen will practically be denied these fundamental rights if, whenever they are violated, he is compelled to seek the assistance of the Supreme Court as the only Court from which he can obtain redress. Where there is no other Court with Vie necessary jurisdiction, the Supreme Court should have it; where there is some other Court with the necessary jurisdiction, the Supreme Court should have appellate jurisdiction, including powers of revision.

(e)General appellate jurisdiction similar to that now exercised by the Privy Council

9.Under the new Constitution the jurisdiction of the Privy Council as the ultimate appellate authority will disappear and it is obviously desirable that a similar jurisdiction should now be conferred on the Supreme Court. So far as the British Indian Units are concerned, this jurisdiction should be co-extensive with the present jurisdiction of the Privy Council. As regards the Indian State units, there are at least two clases of cases where, in the interests of uniformity, it is clearly desirable that the final decision should rest with the Supreme Court, namely:

(1)cases involving the interpretation of a law of the Union, and (2)cases involving the interpretation of a law of a Unit other than the State concerned.

Sir B. L. Mitter suggests that such uniformity can be obtained either by invoking the appellate authority of the Supreme Court or by a reference of the particular issue to the Supreme Court. Cases involving the constitutional validity of a law of the Union or of any Unit have already been dealt with; they will all necessarily fall within the Supreme Court's jurisdiction.

10.It will also, of course, be open to any Indian State Unit to confer by special agreement additional jurisdiction upon the Supreme Court in respect of such matters as may be specified therein.

II.ADVISORY JURISDICTION OF THE COURT

11.There has been considerable difference of opinion amongst jurists and political thinkers as to the expediency of placing on the Supreme Court an obligation to advise the Head of the State on difficult questionsof law. In spite of arguments to the contrary, it was considered expedient to confer advisory jurisdiction upon the Federal Court under the existing Constitution by Section 213 of the Act. Having given our best consideration to the arguments pros and cons, we feel that it will be on the whole better to continue this jurisdiction even under the new Constitution. It may be assumed that such jurisdiction is scarcely likely to be unnecessarily invoked and if, as we propose, the Court is to have a strength of ten or eleven judges, a pronouncement by a full Court may well be regarded as authoritative advice. This can be ensured by requiring that references to the Supreme Court for advice shall be dealt with by a full Court.

III.ANCILLARY POWERS OF THE COURT

12.Power should be conferred upon the Supreme Court as under section 14 of the Act 1935 to make rules of procedure to regulate its work and provisions similar to those contained in Order 45 of the Civil Procedure Code should be made available so as to facilitate the preparation of the record in appeals to the Supreme Court as well as the execution of its decrees. It does not seem to us necessary to continue the restriction now placed on the Federal Court by section 209 of the Act of 1935. If the Supreme Court takes the place of the Privy Council, it may well be permitted to pronounce final judgements and final decrees in cases where this is possible or to remit the matter for further inquiry to the Courts from which the appeal has been preferred where such further inquiry is considered necessary- Provision must also be made on the lines of section 210 of the Act of 1935 giving certain inherent powers to the Supreme Court.

IV.CONSTITUTION AND STRENGTH OF THE COURT

13.We think that the

Supreme Court will require at least two Division. Benches and as we think that each Division Bench should consist of five judges, the Court will require ten judges in addition to the Chief Justice, so as to provide for possible absences or other unforeseen circumstances. Moreover, one of the judges may be required to deal with many miscellaneous matters incidental to appellate jurisdiction (including revisional and referential jurisdiction).

V.QUALIFICATIONS AND MODE OF APPOINTMENT OF JUDGES

14.The qualifications of the judges of the Supreme Court may be laid down on terms very similar to those in the Act of 1935 as regards the judges of the Federal Court, the possibility being borne in mind (as in the Act of 1935) that judges of the superior courts even from the States which may join the Union may be found fit to occupy a seat in the Supreme Court. We do not think that it will be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Union. We recommend that either of the following methods may be adopted. On method is that the President should in consultation with the Chief Justice of the Supreme Court (so far, as the appointment of puisne judges is concerned) nominate a person whom he considers fit to be appointed to the Supreme Court and the nomination should be confirmed by a majority of at least 7 out of a panel of 11 composed of some of the Chief Justice of the High Courts of the constituent units, some members of both the Houses of the Central Legislature and some of the law officers of the Union. The other method is that the panel of 11 should recommend three names out of which the President, in consultation with the Chief Justice, may select a judge for the appointment. The same procedure should be followed for the appointment of the Chief Justice except of course that in this case there will be no consultation with the Chief Justice. To ensure that the panel will be both independent command confidence the panel should not be an ad hoc body but must be one appointed for a term of years.

VI.TENURE OF OFFICE AND COMMONS OF SERVICE OF JUDGES

15.The tenure of office of the judges of the Supreme Court will be the same as that of Federal Court judges under the present Constitution Act and their age of retirement also may be the same (65). Their salary and pensions may be provided for by statutory rules. It is undesirable to have temporary judges in the highest Court in the land. Instead of having temporary judges, the system of having some ad hoc judges out of a panel of Chief Justices or judges of the High Courts may be adopted. In this connection we invite attention to the Canadian practice as embodied in section 30 of the Canadian Supreme Court Act. The section runs as follows:-

"30. Appointment of ad hoc 'judge.-If at any time there should not be a quorum of the judges of the Supreme Court available to hold or continue any session of the Court, owing to a vacancy or vacancies, or to the absence through illness or on. leave or in the discharge of other duties assigned by statute or order in council, or to the disqualification of a judge or judges, the Chief Justice, or, in his absence, the senior puisne judge, may ion writing request the attendance at the sittings of the Court, as an ad hoc judge, for such period as may be necessary of a judge of them Exchequer Court or, should the Judges of the said court be absent from Ottawa or for any reason unable to sit of a judge of a provincial superior court to be designated in writing by the Chief Justice or in his absence by any Acting Chief Justice or the senior puisne judge of such provincial court upon such request being made to him in writing.

4.Duties.-It shall be the duty of the judge whose attendance has been so requested or who has been so designated in priority to other duties of his office, to attend the sittings of the supreme Court at the time and for the period for which his attendance shall be required, and while so attending he shall possess the powers and privileges and

shall discharge the duties of a puisne Judge of the Supreme Court."

16.Not all the recommendations that we have made need find a place in the Constitution Act. The main features may be embodied in the Constitution Act and detailed provisions in a separate Judiciary Act to be passed by the Union Legislature. The form of procedure in the Supreme Court. e.g., for the enforcement of fundamental nights may also be provided for in the Judiciary Act. We may point out that the prerogative writs of mandamus, prohibition and certiorari have been abolished in England by a statute of 1938. Corresponding orders have been substituted and the Supreme Court of Judicature has been empowered to make rules of court prescribing the procedure in cases where such orders are sought [See section 7-10 of the Administration of Justice (Miscellaneous Provisions) Act, 1938].

17.We understand our terms of reference to relate only to the constitution and powers of the Supreme Court. We have, therefore, said nothing about the High Courts of the Units, although we have had to refer to them incidentally in some of our suggestions relating to the Supreme Court.

1. S. Varadachariar.2. A. Krishnaswami Ayyar.New Delhi. Mau 21, 1947 3. B. L. Mitter.4. K. M. Munshi.5. B. N. Rau.

CONFEDENTIAL

APPENDIX 'B'

NO. CA/63/Cons./47

CONSTITUENT ASSEMBLY OF INDIACOUNCIL HOUSE,

New Delhi, the 13th July 1947.

FROM

PANDIT JAWAHARLAL NEHRU,

CHAIRMAN, UNION CONSTITUTION COMMITTEE.

To

THE PRESIDENT,

CONSTITUENT ASSEMBLY OF INDIA.

DEAR SIR,

1.On behalf of the members of the Committee appointed by you in Pursuance of the resolution of the Constituent Assembly of the 30th April 1947, 1 submitted a memorandum embodying the recommendations of the Committee.

2.The Committee met again on the 12th July 1947. and decided on certain modifications to be mad? in the said memorandum. I have the honour to submit this supplementary report containing these recommendations.

3.In the opinion of the Committee, clause 3 of the memorandum should Contain the following additional sub-clause to enable the Federal Parliament to alter the name of any Unit, namely:

" (e) alter the name of any Unit."

4.The Committee is of opinion that the following should be added to sub-clause (2) of clause 6 of Chapter I of Part IV of the memorandum lo make it clear that if a member of the Council of States is elected as Vice President he shall vacate his seat as such member, namely:

"and if a member of the Federal Parliament is elected to be the Vice-President, he shall vacate his seat as such member".

5.The Committee is further of the opinion that Part X of the memorandum on the Indian Constitution should be replaced by the following:-

PART X

AMENDMENT OF THE CONSTITUTION

The amendment of the Constitution may be initiated in either House of the Federal Parliament and when the proposed amendment is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent; and upon such assent being given the amendment shall come into operation:

Provided that if such amendment is in respect of any provision of the Constitution relating to all or any of the following matters, namely:-

(a)any change in the Federal Legislative List,(b)representation of Units in the Federal Parliament, and(c)powers of the Supreme Court,

it will also require to be ratified by the legislatures of Units representing a majority of the population of all the Units of the Federation in which Units representing at least one-third of the population of the Federal States are included.

Explanation."Unit" in this clause has the same meaning as in Clause 14 of Part IV. Where a Unit consists of a group of States a proposed amendment shall be deemed to be ratified by the legislature of the Unit, if it is ratified by the majority of the legislatures of the States in the Groups."

Yours sincerely

JAWAHARLAL NEHRU.