CONSTITUENT ASSEMBLY OF INDIA - VOLUME-V


Wednesday, the 20th August 1947

ANNOUNCEMENT re PERSONNEL OF COMMITTEE TO CONSIDERTHE INDEPENDENCE ACT, ADAPTATION RULES, ETC.

Mr. President: There will be further discussion tomorrow about this.

Before we adjourn, I desire to make an, announcement, A committee consisting of Mr. Mavalankar, Mr. Hussain Imam, Shri Purushottamdas Tandon, Dr. Ambedkar, Mr. Alladi Krishnaswami Ayyar, Mr. Gopalaswami Ayyangar and Mr. B. L. Mitter is appointed to consider the Indian Independence Act, the adaptations of the Government of India Act, 1935, the Rules and Standing Orders of the Legislative Assembly, the Rules' and Standing Orders in force in the Constituent Assembly, etc. and report on the following matters:-

(1) What are the precise functions of the Constituent Assembly under the Indian Independence Act?

(2) Is it possible to distinguish between the business of the Constituent Assembly as a constitution-making body and its other business and can the Constituent Assembly set apart certain days or periods solely for the former?

(3) Should the members representing the Indian States in the Constituent Assembly be given the right to take part in proceedings which do not relate to constitution-making or to the subjects in respect of which they have acceded?

(4) What new Rules or Standing orders, if any, and what amendments if any in the existing Rules or Sanding Orders should be made by the ,Constituent Assembly or its Presidents?

I think this covers the points which were discussed in the earlier part of the day. I am appointing this Committee and expect the Committee will give us their Report very soon.

Dr. P. S. Desmukh: Sir, there is one point which I would like to suggest, and that is the examination of the permissibility or otherwise of the same members being a member of two legislatures. Hereafter, we are going to be.........

Mr. President: I think that this is covered by the Adaptations.

The House stands adjourned till 10 A.M. tomorrow.

The Assembly then adjourned till Ten of the clock on Thursday, the .21st August 1947.

CONFIDENTIAL

APPENDIX 'A'

No. CA/23/Com./47

CONSTITUENT ASSEMBLY OF INDIA

REPORT OF THE UNION POWERS COMMITTEE

FROM

PANDIT JAWAHARLAL NEHRU,

CHAIRMAN, UNION POWERS COMMITTEE.

TO

THE PRESIDENT,

CONSTITUENT ASSEMBLY OF INDIA

SIR,

On the 28th April 1947, the Hon'ble Sir N. Gopalaswamy Ayyangar on behalf of our Committee, presented our first report to the Constituent Assembly. In doing so, he referred to the changes that were developing in the political situation and were likely to affect the nature and scope of the Committee's recommedations, and sought permission to submit a supplementary report at a later date. The House was pleased to grant us leave to do so.

2. Momentous changes have since occurred. Some parts of the country are seceding to form a separate State, and the plan put forward in the Statement of the 16th May on the basis of which the Committee was working is, in many essentials, no longer operative. In particular we are not now bound by the limitations on the scope of Union Powers. The first point accordingly that we considered was whether, in the changed circumstances, the scope of these powers should not be windened. We had no difficulty in coming to a conclusion on this point. The severe limitation on the scope of central authority in the Cabinet mission's plan was a compromise accepted by the Assembly much, we think, against its judgement of the administrative needs of the country, in order to accommodate the Muslim League. Now that partition is a settled fact, we are unanimously of the view that it would be injurious to the interests of the country to provide for a weak central authority which would be incapable of ensuring peace, of coordinating vital matters of common concern and of speaking effectively for the whole country in the international sphere. At the same time, we are quite clear in our minds that there are many matters in which authority must lie solely with

the Units and that to frame a constitution on the basis of a unitary State would be a retrograde step, both politically and administratively. We have accordingly come to the conclusion-a conclusion which was also reached by the Union Constitution Committee-that the soundest framework for our constitution is a federation, with a strong Centre. In the matter of distributing powers between the Centre and the Units, we think that the most satisfactory arrangement is to draw up three exhaustive lists on the lines followed in the Government of India Act of 1935, viz., the federal, the provincial and the concurrent. We have prepared three such lists accordingly and these are shown in the Appendix.

We think that residuary powers should remain with the Centre. in view however of the exhaustive nature of the three lists draw up by us, the residuary subjects could only relate to matters which, while they may claim recognition in the future, are not at present indentinable and cannot therefore be included now in the lists.

3. It is necessary to indicate the position of lndian States in the scheme proposed by us.. The States which have joined the Constituent Assembly have done so on the basis of the 16th May Statement. Some of them have expressed themselves as willing to cede wider powers to the Centre than contemplated in that Statement. But we consider it necessary to point out that the application to States in general of the federal 1st of subjects, in so far as it goes beyond the 16th May Statement, should be with their consent. It follows from this that in their case residuary powers would vest with them unless they consent to their vesting in the Centre.

4. To enable States and, if they so think fit, Provinces also, to cede wider powers to the Centre, we recommend that the constitution should empower the Federal Government to exercise authority within the Federation on matters referred to them by one or more Units, it being understood that the law would extend only to the Units by whom the matter is referred or which afterwards adopt the law. This follows the Australian model as set out in section 51 (xxxvii) of the Australian Constitution Act.

5. We have included in the federal list the item the strength, organisation and control of the armed forces raised and employed in Indian States". Our intention in doing so is to maintain all the existing powers of co-ordination and control exercise over such forces.

6. We recommend to the Assembly the proposals contained in para 2-D of our previous report on the subject of federal taxation. It is quite clear, however, that the retention by the Federation of the proceeds of all the taxes specified by us would disturb, in some cases violently, the financial stability of the Units and we recommend therefore that provision should be made for an assignment, or a sharing, of the proceeds of some of these taxes on a basis to be determined by the Federation from time to time.

I have the honour to be,

NEW DELHI; Sir,

July 5, 1947. Your most obedient servant, JAWAHARLAL NEHRU,

Chairman.

APPENDEX

LIST I-FEDERAL LEGISLATIVE LIST

1. The defence of the territories of the Federation and of every part thereof and generally all preparation for defence, as well as all such acts as may be conducive in times of war to its successful prosecution and after its termination to effective demobilisation.

2. Requisitioning of lands for defence purposes including training and manoeuvres.

3. Central Intelligence Bureau.

4. Preventive detention, in the territories of the Federation for reasons .,of State.

5. The raising, training, maintenance and control of Naval, Military and Air Forces and employment thereof for the defence of the territories of the Federation and for the execution of the laws of the Federation and its Units; the strength, Organisation and control of the armed forces raised and employed in Indian States.

6. Defence industries.

7. Naval, Military and Air Force works.

8. Local self-government in cantonment areas, the constitution and powers

within such areas of cantonment authorities, the regulation of house accommodation in such areas and the delimitation of such areas.

9. Arms, firearms, ammunition and explosives.

10. Atomic energy, and mineral resources essential to its production.

11. Foreign Affairs; all matters which bring the Federation into relation with any foreign country.

12. Diplomatic, consular and trade representation.

13. United Nations Organisation.

14. Participation in international conferences, associations and other bodies and implementing of decisions made thereat.

15. War and Peace.

16. The entering into and implementing of treaties and agreements with foreign countries.

17. Trade and Commerce with foreign countries.

18. Foreign loans.

19. Citizenship, naturalization and aliens.

20. Extraditions.

21. Passports and visas.

22. Foreign jurisdiction.

23. Piracies, felonies committed on the high seas and offence committed in the air against the law of nations.

24. Admission into, and emigration and expulsion from, the territories of the Federation; pilgrimages to places beyond India.

25. Port quarantine; seamen's and marine hospitals, and hospitals connected with port quarantine.

26. Import and export across customs frontiers as defined by the Federal Government.

27. The institutions known on the 15th day of August, 1947, as the Imperial Library, the Indian Museum, the Imperial War Museum, the Victoria Memorial and any other institution declared by Federal law to be an institution of national importance.

28. The institutions known on the 15th day of August, 1947, as the Benares Hindu University and the Aligarh Muslim University.

29. Airways.

30. Highways and waterways declared by the Federal Government to be Federal highways and waterways.

31. Shipping and navigation on inland waterways, declared by the Federal Government to be Federal waterways, as regards mechanically propelled vessels, and the rule of the road on such waterways; carriage of passengers and goods on such waterways.

32. (a) Posts and telegraphs; provided that the rights existing in favour'of any individual State Unit at the commencement of this Constitution shall be preserved to the Unit until they are modified or extinguished by agreement between the Federation and the Unit concerned or are acquired by the Federation, subject however, always to the power of the Federal Parliament to make laws for their regulation and control;

(b) Telephones, wireless, broadcasting, and other like forms of communication, whether owned by the Federation or not;

(c) Post Office Savings Bank.

33. Federal Railways; the regulation of all railways (other than minor railways) in respect of safety, maximum and minimum rates and fares, station and service terminal charges, interchange of traffic and the responsibility of railway administrations as carriers of goods and passengers; the regulation of minor railways in respect of safety and the responsibility of the administrations of such railways as carriers of good$ and passengers.

34. Maritime shipping and navigation, including shipping and navigation on tidal waters.

35. Admiralty jurisdiction.

36. Ports declared to be major ports by or under Federal Law or existing Indian Law including their delimitation.

37. Aircraft and air navigation : the provision of aerodromes, regulation and Organisation of air traffic and of aerodromes.

38. Lighthouses, including lightships, beacons and other provision for the safety of shipping and aircraft.

39. Carriage of passengers and goods by sea or by air.

40. The Survey of India, the Geological, Botanical and Zoological Surveys of India, Federal Meteorological organisations.

41. Inter-Unit quarantine.

42. Federal Judiciary.

43. Acquisition of property for the purposes of the Federation,

44. Federal agencies and institutes for the following purposes, that is to say, for research, for professional or technical training, or for the promotion of special studies.

45. Census.

46. Offences against laws with

respect to any of the matters in this list.

47. Enquiries, surveys and statistics for the purposes of the Federation.

48. Federal services and Federal Public Service Commission.

49. Industrial disputes concerning Federal employees.

50. Reserve Bank of India.

51. Property of the Federation and the revenue therefrom, but as regards property situated in a Unit subject always to legislation by the Unit, save in so far as Federal Law otherwise provides.

52. Public debt of the Federation.

53. Currency, foreign exchange, coinage and legal tender.

54. Powers to deal with grave economic emergencies in any part of the territories of the Federation affecting the Federation.

55. Insurance.

56. Corporations, that is to say, the incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations, but not including corporations owned or controlled by a Federated State and carrying on business only within that State or co-operative societies, and of corporations, whether trading or not, with objects not confined to one Unit, but not including universities.

57. Banking.

58. Cheques, bills of exchange, promissory notes and other like instruments.

59. Patents, copyright, inventions, designs trademarks and merchandise marks.

60. Ancient and Historical Monuments: archaeological sites and remains.

61. Establishment of standards of weight and measure.62. Opium, so far as regards cultivation and manufacture, or sale for export.

63. Petroleum and other liquids and substances declared by Federal Law to be dangerously inflammable, so far as regards possession, storage and transport.

64. Development of industries where development under Federal control is declared by Federal Law to be expedient in the public interest.

65. Regulation of labour and safety in mines and oilfields.

66. Regulation of mines and oilfields and mineral development to the extent to which such regulation and development under Federal control is declared by Federal Law to be expedient in the public Interest.

67. Extension of the powers and jurisdiction of members of a police force belonging to any part of a Governor's Province or Chief Commissioner's Province, to any area in another Governor's Province or Chief Commissioner's Province, but not so as to enable the police of one part to exercise powers and jurisdiction elsewhere without the consent of the Government of the Province or the Chief Commissioner, as the case may be; extension of the powers and jurisdiction of members of a police force belonging to any Unit to railway areas outside that Unit.

68. All Federal elections; and Election Commission to superinted,. direct and control all Federal and Provincial elections.

69. The salaries of the Federal Ministers and of the Chairman and Vice-Chairman of the Council of States and of the Speaker and Deputy Speaker of the House of the People; the salaries, allowances and privileges of the members of the Federal Parliament.

70. The enforcement of attendance of persons for giving evidence or Producing documents before committees of the Federal Parliament.

71. Duties of customs including export duties.

72. Duties of excise on tobacco and other goods manufactured or produced in India except- (a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics; non-narcotic drugs; (c) medicinal and toilet preparations containing alcohol, or any substance included In sub-paragraph (b) of this entry.

73. Corporation tax.

74. State lotteries.

75. Migration from one 'Unit to another.

76. Jurisdiction and powers of all courts, with respect to any of the matters in this list.

77. Taxes on income other than agricultural Income.

78. Taxes on the capital value of the assets, exclusive of agricultural land, of individuals and companies; taxes on the capital of the companies.

79. Duties in respect of succession to property, other than agricultural land.

80. Estate duty in respect of property other than

agricultural land.

81. The rates of stamp duty in respect of bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts.

82. Terminal taxes on goods or passengers, carried by railway or air; taxes on railway fares and freights.

83. The development of inter-Unit waterways for purposes of flood control, irrigation, navigation and hydroelectric power.

84. Inter-Unit trade and commerce.

85. Fishing and fisheries beyond territorial waters.

86. Federal manufacture and distribution of salt; regulation and control of manufacture and distribution of salt by other agencies.

Note.-A section should be incorporated in the constitution itself prohibiting the imposition of any duty or tax on salt.

87. Fees in respect of any of the matters in this list, but not including fees taken in any Court.

LIST II-PROVINCIAL LEGISLATIVE LIST

1. Public order (but not including the use of naval, military or air forces in aid of the evil power); the administration o justice; constitution and Organisation of all courts, except the Supreme Court, and fees taken therein; preventive detention for reasons connected with the maintenance of public order; persons subjected to each detention.

2. Jurisdiction and powers of all courts except the Supreme Court, with respect to any of the matters in this list; procedure in Rent and Revenue Courts.

3. Police, including railway and village police.

4. Prisons, reformatories, Borstal Institutions and other institutions of a like nature, and persons detained therein; arrangements'with other Units for the use of prisons and other institutions,

5. Public debt of the Province.

6. Provincial Public Services and Provincial Public Service Commissions.

7. Works, lands and buildings vested in or in the possession of the Province.

8.Compulsory acqusition of land except for the purpose of the Federation.

9. Libraries, museums and other similar institutions controlled or financed by the Province.

10.Elections to the provincial Legislature and of the Governors of the provinces subjected to the provisions of paragraph 68 of list I.

11. The salaries of the Provincial Ministers. of the speaker and Deputy Speaker of the Legislative Assembly, and if there is a Legislative Council, of the Chairman and Deputy Chairman,thereof; the salaries, allowances and privileges of the members of the Provincial Legislature; and-the enforcement of attendance of persons for giving evidence or producing documents before Committees of the Provincial Legislature.

12. Local Government, that is to say, the Constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.

13. Public health and sanitation hospitals and dispensaries; registration of births and deaths.

14. Pilgrimages, other than pilgrimages to places beyond India.

15. Burials, and burial and burning grounds.

16. Education including Universities other than those specified in paragraph 28 of List I.

17. Communications, that is to say roads, bridges, ferries, and other means of communication not specified in List I; minor railways subject to the. provisions of List I with respect to such railways; municipal tram ways; ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; ports, subject to the provisions in List I with regard to major ports; vehicles other than mechanically propelled vehicles.

18. Water, that is to say, water supplies, irrigation and canals-drainage and embankments, water storage and water power.

19. Agriculture, including agricultural education and research, protection against pests and prevention of plant diseases; improvement of stock and prevention of animal diseases; veterinary training and practice; pounds and the prevention of cattle trespass.

20. Land, that is to say, rights

in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and revolution of agricultural land; land improvement and agricultural loans; colonization; Courts of Wards: encumbered and attached estates, treasure trove.

21. Forests.

22. Regulation of mines and oilfields and mineral development subject to-the provisions of List I with 'respect to regulation and development under Federal Control.

23. Fisheries.

24. Protection of wild birds and wild animals.

25. Gas and 'gasworks.

26. Trade and commerce within the Province; markets and fairs.

27. Money lending and money lenders.

28. Inns and innkeepers.

29. Production, supply and distribution of goods; development of industries, subject to the provisions in List I with respect to the development of certain industries under Federal control.

30. Adulteration of foodstuffs and other goods.

31. Weights and measures except establishment of standards.

32. Intoxicating liquors and narcotic drugs, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors, opium and other narcotic drugs, but subject, as respects opium, to the provisions of List I and, as respect poisons and dangerous drugs, to the provisions of List III.

33. Relief of the poor; unemployment.

34. The incorporation, regulation, and winding-up of corporations not being corporations specified in List I, or Universities; unicorporated trading literary, scientific, religious and other societies and associations, co-operative societies.

35. Charities and charitable institutions; charitable and religious endowments.

36. Theatres, dramatic performances and cinemas, but not including the sanction of cinematograph films for exhibition.

37. Betting and gambling.

38. Offences against laws with respect to any of the matters In this List.

39. Inquiries and statistics. for the purpose of any of the matters in this List.

40. Land revenue, including the assessment and collection of revenue, the maintenance of'land records, survey for revenue purposes and records of rights, and alienation of revenue.

41. Duties of excise on the following goods manufactured or produced in the Province and countervailing duties at the same 'or lower rates on similar goods manufactured or produced elsewhere in the territories of the Federation- (a) alcoholic liquors for human consumption;

(b) opium, Indian hemp and other narcotic drugs and narcotics; non-narcotic drugs;

(c) medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (B)'of this entry.

42. Taxes on agricultural Income.

43. Taxes on lands and buildings, hearths and windows.

44. Duties in respect of succession to agricultural land.

45. Estate duty in respect of 'agricultural land.

46. Taxes on mineral rights, subject to any limitations Imposed by any Act of the Federal Parliament relating to mineral development.

47. Capitation taxes.

48. Taxes on professions, trades, callings and employments.

49. Taxes on animals and boats.

50. Taxes on the sale of goods and on advertisements.

51. Taxes on vehicles suitable for use on roads, whether mechanically propelled or not, including tramcars.

52. Taxes on the consumption or sale of electricity.

53. Cesses on the entry of goods into a local area for consumption, use or sale therein.

54. Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling.

55. The rates of stamp duty in respect of documents other than those specified in the provisions of List I with regard to rates of stamp duty.

56. Dues on passengers and goods carried on inland water-ways.

57. Tolls.

58. Fees in respect of any of the matters in this List, but not including fees taken in any Court.

LIST III-CONCURRENT LEGISLATIVE LIST

1. Criminial Law. including all matters included in the Indian Penal Code at the date of commencement of this Constitution, but excluding offences against laws

with respect to any of the matters specified in List I or List II and excluding the use of the naval, military and air forces In aid of the civil power.

2. Criminal Procedure, including all matters included in the Code of Criminal Procedure at the date of commencement of this Constitution.

3. Removal of prisoners and accused persons from one Unit to another Unit.

4. Civil Procedure, including the law of Limitation and all matters included in the Code of Civil Procedure at the date of commencement of this Constitution: the recovery in a Governor's Province or a Chief Commissioner's Province of claims in respect of taxes; and other public demands, including arrears of land revenue and sums recoverable as such, arising outside that Province.

5. Evidence and oaths; recognition of laws, public acts and records and judicial proceedings.

6. Marriage and divorce;. infants and minors; adoption.

7. Wills, intestacy, and succession, save as regards agricultural land.

8. Transfer of property other than agricultural land; registration of deeds and documents.

9. Trusts and Trustees.10. Contracts, including partnership, agency, contracts of' carriage, and other special forms of contracts, but not including contracts relating to agricultural land.

11. Arbitration.

12. Bankruptcy and insolvency.

13. Administrators-general and official trustees.

14. Stamp duties other than duties or Fees collected by means of judicial stamps, but not including rates of Stamp duty.

15. Actionable wrongs, save in so far as included in laws with respect to any of the matters specified in List., II.

16. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.

17. Legal, medical and other professions.

18. Newspapers, books and printing presses.

19. Lunacy and mental deficiency, including places for the reception or treatment of lunatics and mental deficients.

20. Poisons and, dangerous drugs.

21. Mechanically propelled vehicles.

22. Boilers.

23. Prevention of cruelty to animals.

24. Vagrancy; nomadic and migratory tribes.

25. Factories.

26. Welfare of labour; conditions of labour; provident funds; employers' liability and workmen's compensation; health insurance, including invalidity pensions; old age pensions.

27. Unemployment and social insurance.

28. Trade union; industrial and labour disputes.

29. The prevention of the extension from one unit to another of infectious or contagious diseases or pests affecting men, animals or plants.

30. Electricity.

31. Shipping and navigation on inland waterways as regards mechanically propelled vessels, and the rule of the road on such waterways, and the carriage of of passengers and goods on inland waterways subject to the provisions of List I with respect to Federal waterways.

32. The 'Sanctioning of cinematograph films for exhibition.

33. Persons subjected to preventive detention under Federal authority.

34. Economic and social planning.

35. Inquiries and statistics for the purpose of any of the matters in this List.

36. Fees in respect of any of the matters in this List, but not including fees taken in any Court.