Friday, the 26th November 1948
The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock, Mr. Vice-President (Dr. H. C. Mookherjee) in the Chair.
STATEMENT re EIRE ACT
The Honourable Pandit Jawaharlal Nehru (UnitedProvinces: General): Mr. Vice-President, Sir, the House is aware that certain developments have taken place recently in Eire which affect the relationship of Eire with other Common wealth countries. On the 17th of November the Eire Act, entitled the Republic of Ireland Act, was given a first reading in the Dail. The second reading took place on the 24th of November.
In view of the close relationship that has existed between Eire and the other Common wealth countries, it was considered desirable to clarify the position that would result from the passage of this Bill. The Government of India have been in communication on this subject with theGovernment of the United Kingdom and the Government of Eire and both these Governments have been good enough to inform us of the position, as they view it, that will arise after the passage of the Republic of Ireland Act. They have sent us the texts of the speeches made in their respective Parliaments on this subject.
As the passage of this Act might affect Indian citizensin Eire and Eire citizens in India, the Government of India are naturally interested in a clarification of this subject.
In the course of the speech made by Mr. Costello, the Prime Minister of Eire, on the second reading of theRepublic of Ireland Bill on the 24th November in the Dail,he said:
"In the new Bill provisions will be made to ensure that Common wealth citizens shall be afforded comparable rights to those afforded to our citizens in the Brit ish Common wealth.There is one thing I should like to make clear to our friends in Britain and in the Common wealth generally; it is that after the passage of this Bill we will continue,provided they so desire, the exchange of citizenship rightsand privileges. Ireland does not now, and when the External Relations Act is repealed, Ireland does not intend to,regard their citizens as foreigners or their countries as foreign countries. Throughout, the position of the Irish Government is, that while Ireland is not a member of the Brit ish Common wealth of nations, it recognises and confirms the existence of a specially close relationship aris ing not only from ties of friendship and kinship but from traditional and long established economic, social and trade relations based on common interests with the nations that form the Brit ish Common wealth. This exchange of rights and privileges, which it is our firm desire and intention to maintain and strengthen, in our view constitutes a special relationship which negatives the view that other countries could raise valid objections on the grounds that Ireland should be treated as a foreign country by Britain and theCommon wealth countries for the purpose of this exchange of rights and privileges. These are the considerations which we put forward to Britain and the Common wealth countries. We find that they, on their part, were equally determined not to regard the passage of this Bill as placing Ireland in thecategory of foreign countries or our citizens in the category of foreigners, but were prepared to continue the exchange of citizenship and trade preference rights.Accordingly, the factual exchange of rights that has existed hither to will continue unimpaired. By reason of the factthat we have eliminated from this exchange controversialforms, we may reasonably hope that a greater spirit ofgoodwill and co-operation will actuate this factua lrelationship."
On the part of the United Kingdom, Mr. Attlee, thePrime Minister, made the following statement in the House of Commons yesterday, the 25th November 1948:
"In 1937 a new constitution was enacted in Eire in which the Crown played no part. The Eire Executive Author ity(External Relations) Act which was passed in 1936, however,authorised His Majesty the King to act
on behalf of Eire incertain matters within the field of external affairs as and when advised by the Eire Executive Council to do so. InDecember 1937, the U.K. Government stated, after consultation with the Governments of Canada, Australia, NewZealand, and South Africa, that they, like those Governments, were prepared to treat the new Constitution as not effecting a fundamental alteration in the position of Eire as a member of the Common wealth.
On the 7th September last the Prime Minister of Eire,Mr. Costello, announced that the Eire Government were preparing to repeal the External Relations Act. Subsequently, Mr. Costello confirmed this intention."
Mr. Attlee then refers to various discussions with the Eire Ministers in order to explore the consequences which would flow from the legislation proposed in Eire:
"As a result of these discussions the United Kingdom Government have been able to give the most careful consideration to the relations between the U.K. and Eire when the Republic of Ireland Bill comes into force. The U.K.Government recognise that, as has been stated by Eire Ministers, Eire will then no longer be a member of theCommon wealth. The Eire Government have however, stated that they recognise the existence of a specially close relationship between Eire and the Common wealth countries and desire that this relationship should be maintained. These close relations arise on ties of kinship and from traditional and long established economic, social and trade arrangements based on common interest. The U.K. Government for their part fully associate themselves with the views expressed by Mr. MacBride and are at one with the Eire Government in desiring that these close and friendly relations should continue and be strengthened.
Accordingly the U.K. Government will not regard the enactment of this legislation by Eire as requiring them to treat Eire as a foreign country or Eire citizens as foreigners. The other Governments of the Common wealth will,we understand, take an early opportunity of making a statement as to their policy in the matter.
So far as Eire citizens are concerned the position in the U.K. will be governed by the Brit ish Nationality Act,1948. The Eire Government have stated that it is their intention to bring their legislation into line with that in Common wealth countries so as to establish by Statute that in Eire, citizens of Common wealth countries receive comparable treatment.'
I should like to associate the Government of India with the Statements made in the Eire and Brit ish Parliaments and to say that we are perfectly prepared to continue on a reciprocal basis the exchange of citizenship rights and privileges with Eire. What our future relationship with the Commonwealth is going to be is a matter which, the House knows, is under close consideration and I trust that a satisfactory solution will be arrived at before very long.For the present we are concerned with the situation as it is. I should like to make it clear that after the passage of the Republic of Ireland Bill, we shall not consider Ireland in the category of foreign countries or her citizens in thecategory of foreigners, provided Ireland offers our countryand our citizens the same rights and privileges.
I should like to add that between Eire and India therehas been for a long-time past a close bond of sympathy and friendly feeling. The Government of India trust that as in the past there will continue to be close and cordial relationship between the Governments and peoples of Eire and India.
Shri H. V. Kamath (C. P. & Berar: General): May I request you to be so good as to direct that copies of the Republic of Ireland Bill and of the speeches made there on in the Dail Eireann, and by Mr. Attlee in the House of Commons are supplied to Members of this House, as also the statement made by the Honourable Pandit Jawaharlal Nehru?
Mr. Vice-President (Dr. H. C. Mookherjee): That can besupplied. For that we have got to obtain the documents first. When they are secured, they will be supplied to all the Members.
Honourable Pandit Jawaharlal Nehru: In the statement I have already made I have quoted extensively from the speeches of Mr. Costello and Mr. Attlee in their respective Parliaments so that the honourable Member's point will perhaps be met if a copy of my present statement including the references to the statements made in the Dai Eireann and in the House of Commons in London is distributed. That certainly can be done. As to the copy of the Republic of Ireland Bill, certainly it can be made available, but I am not quite sure if it is possible to doso very soon. Perhaps it will meet the purpose of the Houseif some copies are obtained and placed on the table of theHouse.
Mr. Vice-President: That would meet the situation, I think. I now call upon Shrimati Durgabai to move the motion which stands in her name.
MOTION re ADDITION OF SUB-RULES TO RULE 38-P
Shrimati G. Durgabai (Madras: General): Mr. Vice-President, sir, I beg to move the following motion standing in my name:
"(a) That the existing rule 38-P be renumbered as sub-rule (1) of rule 38-P, and to the said rule as so renumbered the following sub-rules be added:--
`(2) The President shall have the power to disallow amendments which seek to made merely verbal, grammatical or formal changes.
(3) The President shall also have the power to select for consideration and voting by the House the more appropriate or comprehensive amendment or amendments out of the amendments of similar import and any such amendment not so selected may, unless withdrawn, be deemed to have been moved and may be put to the vote without discussion'."
Sir, let me make it clear at the very outset that my object in bringing this motion before the House is mainly to secure quicker disposal of the very large number of amendments so far received to the Draft Constitution and thus expedite the work before us. I believe there are already more than four thousand amendments received to the Draft Constitution. I consider that it would be very difficult for us to consider such a large number of amendments within a reasonable time and therefore it is considered essential that a special procedure should be devised in order to secure quicker disposal of the work and also expedite the work. Sir, the procedure suggested by me in the amendment placed before you, if adopted by the House, would not only help us to secure this object but also enable us to spend the limited amount of time available on more useful amendments and also amendments of a substantial nature. The object of the rule is to give the Chair the power to select the more appropriate or comprehensive amendment or amendments out of the amendments of similar import. It also gives the Chair the power to disallow such amendments as seek to make merely verbal or grammatical or formal changes. Sir, before I commend the motion for the acceptance of the House, I appeal to all to understand the scope of my amendment in the spirit in which it is placed before you. It need not create any fears or apprehensions in the minds of Members or any section of the Members of the House that it seeks to curtail their privileges. In giving this power to the Chair, I do not think that we are doing anything unusual and I am also sure that the Chair in exercis ing this power would displease none but please all. We have ample reason to believe that the Chair would be very judicious in exercis ing this power. With these few remarks I commend my motion to this House for its acceptance.
Mr. Vice-President: We shall now take up the amendments one by one.
Mr. Naziruddin Ahmad (West Bengal: Muslim): May I offer my remarks now?
Mr. Vice-President: There will be general discussion after the amendments have been moved. You would be given sufficient time to put your point of view before the House.The first amendment stands in the name of Mr. NaziruddinAhmad.
Mr. Naziruddin Ahmad: Mr. Vice-President, Sir, I think it is my duty, while moving the amendments which stand in my name, to give expression to certain general thoughts which arise in my mind, but
before doing so it will be proper forme to move the first amendment, which stands in my name.Sir, I beg to move:
"that in the proposed sub-rule (2) of rule 38-P, after the words 'President shall', the words `after hearing the Member who has given notice of any amendment' be inserted."
Mr. Vice-President: Are you not moving amendment No. 1?
Mr. Naziruddin Ahmad: I am sorry, I missed it. I also move:
"that the proposed sub-rule (2) of rule 38-P be deleted."
Mr. Vice-President: I suggest, Mr. Naziruddin Ahmad,that you also make now any general observations you wish to make.
Mr. Naziruddin Ahmad: I bow to your ruling.
Sir, I should have thought that the rules, which are in existence and which have been framed after a considerable amount of care and based on other models, are sufficient to give ample power to the Chair to regulate the debate. These rules were framed on the supposition that the Members also exercise a considerable amount of discretion and restraint in their speeches. The present motion implies a kind of suspicion about the willingness and ability of the Members to keep to that wholesome line as well as perhaps a littledoubt as to the ability of the Chair under the ordinary rules to regulate the debate. What are the rules which are applicable to this situation? An amendment can be ruled outvery justly if it is irrelevant, mere tedious repetitions and the like, defamatory or unparliamentary or objectionable from that point of view. What has happened which has induced the charming lady to come forward here to move this amendment? I submit that the experience of what has happened in the House gives a clue. For some time past, I very much regret to find that amendments of a so-called drafting or formal nature or of some grammatical significance are being ruled out practically in the debates, not that you, Sir,rule them out, but in the treatment of those amendments,Members are to a certain extent hustled by some Members in the House and the replies given are often few, laconic and unhelpful, and in many cases there are no replies but a large number of counter-allegations and facts are adduced.
I submit that a consideration of the proposed rules will show how carelessly these amendments have been drafted,and what mistakes lie almost in every line of these amendments. It is from a consideration of these amendments alone that the great necessity of allowing drafting improvements follows.
Sir, the motion is to the effect that the President shall have the power to disallow amendments which seek to make merely verbal, grammatical or formal changes. I have already submitted that they can always be ruled out on grounds of irrelevance, repetition and various other well-known reasons. But can they be properly rejected, merely on the ground that they are verbal? Can there be any amendment which can be described as merely verbal which changes the meaning of the context? Then, there is the question of grammatical amendments. I think the little mistakes which the honourable Mover of the Draft Constitution has committed have startled many Members. I ask you, Sir, in all humility:should you rule out an amendment merely because it is a grammatical amendment? Does it necessarily follow that a grammatical amendment is an unsubstantial amendment, that ithas no relation to the clauses to which it appertains? I believe grammar is an agreed set of rules for the sake of clarity and clearness of meaning. Grammar is nothing if it does not add to clarity of thought, expression and writing.In these circumstances, I believe that the proposed sub-clause (2) of rule 38-P is absolutely misconceived.
Then coming to formal changes, can you rule out a formal change or should you rather be inclined to rule out a mere verbal-looking change because behind a verbal-looking change, there may lurk an important change in the meaning of the passage? In these circumstances, I beg to submit that there is a fear that though all the Members have absolute confidence in the strict impartiality and extreme kindness with which you have been
dealing with them, there lies asuspicion behind these changes that the Honourable Mr. Vice-President will perhaps be unable to regulate the procedure with the existing rules. I submit, Sir, that Members have always shown a disposition cheerfully, willingly and readily to obey your rulings and your helpful guidance. I submit it would be far better to leave the matter in the hands of Members, leave them to the good sense of individual Members and the good sense of the House. Instead of trying to force the hands of Members and to a certain extent put you, Sir,in an awkward position, I submit that these rules should go.These are the things which strike me at the moment. For sometime, I feel that amendments of a drafting or formal natureor which look like them are being regarded with some amount of disfavour. They are being apparently rejected without any debate, without any argument and without any sufficient consideration. I submit, Sir, that this gives a sense of frustration amongst Members who have come here in a humble capacity to assist in the framing of a first-class Constitution. Sir, the momentous Constitution which we are making today would be a farcical affair otherwise. It would be copied as a model by other Constituent Assemblies in the world. We find hundreds of years after the speeches, the proceedings of Constituent Assemblies are read by constitutional lawyers and historians with a great deal of interest. I ask you, Sir, and my honourable Friends in theHouse as to whether these proposed changes are at all called for and whether they do not cast a suspicion upon thegeneral body of Members as well as individual members as to their willingness and ability to stick to the strict rules of business.
Sir, as to the drafting of these rules, the less saidthe better. I submit that the proposed clause (2) is absolutely unnecessary. Then coming to clause (3), we have a startling piece of draftsmanship and I say that it has been so carelessly, so hopelessly drafted that it should berejected on the face of it altogether. That shows the needof a careful revision in the House of a far more importantdocument than these amendments themselves, namely, the Constitution. Sir, in clause (3), the first partdeliberately clashes with the second.
The first part, Sir, seeks to select certain amendmentsfor consideration. For what purpose? The amendment says "the amendment not so selected may be put to the vote". What dowe come to? You have been specifically requested to select an amendment and for what purpose? Thepurpose is to select the amendment and then put to the votea different amendment, namely, the one not so selectedTherefore, I beg to submit the very drafting of clause (3)is absolutely, hopelessly and ridiculously faulty. I havenever spoken in this strain at any time in this Assembly,but circumstances, tendencies and the whispers we hear allround compel me to speak like this. Can the House acceptclause (3) where the latter part absolutely rejects theformer? I submit, Sir, I have tabled an amendment to removethe word `not' and then you can make some sense out of it. Ishall request you to reject this amendment because it is`verbal' and because it is verbal I shall bow to yourruling. We will have enacted a piece of legislation whichshall have no meaning at all. While pointing out thedangerous character of the word `not', I shall seek yourpermission not to move for its deletion and leave the Houseand the honourable Members to consider what has been really achieved.
Then, Sir, I submit, part (b) seeking to introduce Rule38-W is also mischievous. It is also badly conceived andbadly drafted. What is the effect of this rule? It purportsto remove a lacuna, that is the supposed absence of anypower of the Vice-President to act as President within themeaning of certain rules. Sir, I find on a close examinationthat the powers of the Vice-President have never beendefined with clarity, and it is attempted at this late stageto meet the situation. I submit, Sir, that as we haveprovided for a Vice-President without defining his
powers,it is obvious that the Vice-President has the powers of the President or the Chairman, as the case may be. Supposing for the sake of argument that a further clarification wasnecessary, Rule 38-W falls far behind the requirements of the situation. I submit that it is attempted by this Rule toregularise any irregularity which may have been committed byyou, Sir, in giving rulings, declaring decisions regardingthe orders of the House. If for one moment we can assumethat you have been acting illegally--which I hope andbelieve you are not--once we concede that you have not beenacting with jurisdiction, then, this power given by theproposed Rule 38-W will not legalise what has happenedalready. In fact, if it is supposed that you have no power to do anything beyond the mere fact of presiding, then, whatwill happen to the acts done by you, Sir, as the presidingofficer of this august House, before the passing of therule? I have attempted to regularise the procedure. I shouldhave thought that such a suspicion was unnecessary; but If the suspicion has any legal basis, if you entertain anysuspicions in this respect, you should have something by wayof introducing a new Rule 14-A as I have suggested in myamendment, that the Vice-President shall have all the powersof the President in certain respects, with the importantExplanation that this Rule shall have retrospective effectas if it was passed on the 4th of November of from the dateon which you have been pleased to preside over thedeliberations of this House.
In an amendment of a rule consisting of only twoprovisions, one an amendment to Rule 38-P and the other anew Rule 38-W, there are so many gross errors. I submit thatthis will show.......
Shrimati G. Durgabai: Mr. Vice-President, Sir, I havenot moved that part of the motion (b).
Mr. Vice-President: That has not yet been moved.
Mr. Naziruddin Ahmad: I realise the force of thissubmission. But, am I to understand that this will not be moved?
Shrimati G. Durgabai: I have only moved the firstmotion.
Mr. Vice-President: Why not put it conditionally, `if'.
Mr. Naziruddin Ahmad: `If' such a motion is movedafterwards, it shows lack of appreciation of the points inissue. I was suggesting certain considerations from ageneral point of view: do we require drafting amendments orwhat are merely described as merely drafting amendments asdistinct from substantial amendments--as if draftingamendments are not substantial amendments? This un-preciseway of thought is staggering to those who have anyexperience in this line. I submit that the entire Housewould rather protest against the introduction of theseRules. We are entitled from the draftsmen or from themembers in charge of these legislations some clarity ofthought, clarity of expression and purposeful writing. Isubmit, Sir, these Rules lack all these essential qualities.
On the merits, I submit, Sir, sub-rule (2) should go.You cannot be asked to rule out an amendment merely becauseit is `verbal', `grammatical' or `formal'. I submit, thepowers which you have got already, the great traditionswhich we have hitherto built up and the great rules of theHouse of Commons and other Parliaments which are before usare quite sufficient. The most important thing is the goodsense of the Members and Movers. In this respect, so far asI am concerned, Sir, I am perfectly willing to obey theslightest wishes of the House properly expressed, privatelyor publicly. What are you going to do with regard tomistakes of a similar nature which lurk everywhere in the Constitution? Not that these mistakes show any lack of poweror draftsmanship on the part of the eminent authors of theBill; but every Bill should be revised. We have not got asecond Chamber. The Bill has not gone through a SelectCommittee. At an earlier stage, I suggested a selectCommittee; that is the place where drafting amendments andother things could be coolly and properly discussed. Thatwas ruled out on the ground that it was dilatory. Some of the amendments were carelessly described by eminent membersas merely dilatory or of a
frivolous nature. I think theword `frivolous' cannot be applied to any Member of this House. If there is anything frivolous, the rules give youample power to rule them out. I submit from every possiblepoint of view, from the point of view of generalconvenience, from the point of view of general efficacy of the rules which have been found efficacious so far, thesenew rules should be dropped.
Am I to move all the amendments, Sir?
Mr. Vice-President: I think you had better move all the amendments which stand in your name dealing with sub-rules(2) and (3). If you want to make any further observations,you are at liberty to do so.
Mr. Naziruddin Ahmad: In regard to amendment No. 2which I have already moved, I have sought to introduce aclause that before rejecting an amendment, you would bepleased to give the Member who is ruled out a chance ofexpressing his opinion, giving his reasons. I have no doubtthat while rejecting an amendment on the ground suggested in the rule, in view of the fact that your hands are attemptedto be forced, I think this provision should be necessary.But I may well leave it to the good sense of the House andyour innate sense of justice and fair-play which you have sofar displayed. Then I come to amendment No. 6.
I beg to move:
"That in the proposed sub-rule 38-P, for the word`amendments' the words `such amendments' be substituted."
This is only verbal.
Then I move No. 8:
"That in the proposed sub-rule (2) of rule 38-P, thecomma after the word `verbal' and the word, `grammatical' be deleted."
I submit the office or officer who has dealt with the amendment is apparently unfamiliar with this method ofexpression of a deletion or a comma and a word. In fact forpurposes of clarity this is perfectly admissible as is shownby all
the leading author ities on legislative drafting. I submit itoften happens that if I move for the deletion of the word"grammatical", the effect would be that the comma is leftbehind which would be wrong. They two go together but theyhave been treated by the office as separate amendments.Then, Sir, I also move amendment No. 9:
"That in the proposed sub-rule (2) of rule 38-P the words `and to remit them to the Drafting Committee' be addedat the end."
I do not exactly know my own position. Unofficially I amhearing that I am the object of these proposed rules. I amthe target. It is an open secret that I am the target--notthe unhappy target but the happy target. If that is so, Ishould acknowledge a deep debt of gratitude to thehonourable lady Member who has done me this signal honour,viz., proposing the most unconstitutional, most undemocraticrule expressing want or faith in a particular Member in theHouse and also with a lurking suspicion about the ability of the Chair--whoever may be for the time being occupying theChair--his ability to conduct the proceedings of the House.Sir, in these circumstance I feel highly honoured by this.My object is not to carry amendments. My object is in my ownhumble way to suggest improvements. It may be that in theultimate analysis and on further consideration, I may beproved to be wrong and my amendments unsubstantial. I shallbe very glad if they are ruled out after consideration butthat is not what is taking place. I have not been moving allmy amendments. There are similar amendments in variousgroups where I have moved only one as a type and I haverefrained from moving the rest because I know the samearguments will be repeated. In these circumstances I beg tosubmit that the rules should not be directed against one ortwo men. The other rule is--Part (3) of the rule--perhapsdirected against another respected and indefatigable memberof the House, viz., Professor K. T. Shah. In fact this isthe impression which is freely being given out. I do notthink, Sir, you should be given rules to gag Members. Evenif the rules are accepted by the unanimous vote of the Houseyou will not exercise them without asking for the reason,without knowing the purpose and the effect of the amendments. I submit amendments cannot be ruled out on theirface
value. They may have, and they often have, verysubstantial value. I submit the way the amendments are beingdealt with in the House gives colour to that impression.While we are framing the Constitution, while we areproviding for freedom of thought and expression and actionsubject to certain well-recognized checks, here you arechecking, curtailing the very freedom of debate, the freedomof an individual Member who has devoted some time and energyin a humble attempt in a most insignificant capacity toimprove the drafting. But I am not discouraged by the factthat they are not accepted. A good work according tophilosophers is its own reward and I shall be happy if afterall these, these rules are accepted and my amendments areridden roughshod over. Provided I have attempted to do myduty, I shall be happy. If I am ruled out the responsibilitywill not be mine. The responsibility will be that of theMembers and of you, Sir. I submit that these rules should bewithdrawn. From a drafting point of view they are badlyhandled and they are misconceived. They give out a very badodour. There is something like a High Command feeling behindthese rules. I submit that this gives the impression oftotalitarianism. If you do not tolerate the reasonabledebate of the minor ity--I am using the word minor ity not in the communal sense but in a numerical sense--then thefreedom that you think of would be a mockery. If thisConstituent Assembly should show us this example, then theunderlings of Government, the various Provincial Author itieswill ride rough-shod over the minor ity and that is fatal todemocracy. The efficacy of democracy is the right given to aminor ity to express their views freely, subject only torules of relevancy and other rules which are well known.These artificial rules for the sake of decency, for the sake of appearance and for the good name of the House, should be dropped. I submit,Sir, these proceedings will be read all the world over and Isubmit that we should..........
Mr. Vice--President: May I point out that these shouldcome towards the end. There are several amendments standingin your name which should be moved first of all.
Mr. Naziruddin Ahmad: Sir, I move:
"That the proposed sub-rule (3) of rule 38-P be deleted."
No. 13, about the absurd word `not', I do not move. I will leave to the honourable Member in charge of the amendment to keep it and try to make out a meaning.
Mr. Vice-President: Mr. Biswanath Das--Are you movingNo. 15? In that case Mr. Naziruddin Ahmad will not move it.
Shri Biswanath Das (Orissa: General): I will move it.
Mr. Naziruddin Ahmad: May I say what I feel about it.With regard to amendment No. 15 which my honourable Friendhas kindly intimated his desire to move, I may say that itwill not do to proceed without a discussion. The provisothat you will select some amendments without discussion ispurposeless and meaningless. There should be discussion. Howcan you ask the House to give its opinion withoutdiscussion? After all democracy is Government by debate, byfree exchange of thought, but what is attempted to be givenhere is an author ity to be given to you to select amendmentswithout discussion.
Then, Sir, I move amendment No. 17:
"That after the proposed sub-rule (3) of rule 38-P, thefollowing proviso be added:
`Provided that before the President so selects anyamendment, the member who has given notice of any amendmentshall have the right to explain the nature and purport ofhis amendment'."
I have made my purpose absolutely clear. I submit thatall the safeguards which I have suggested are necessary, orwe should content ourselves with the existing rules.
Sir, in case there are mistakes of the nature I havesuggested, should we allow them to go on uncorrected, and toremain in the Constitution as so many faults and blemishes?Or should we ask the Drafting Committee to revise them andcorrect them where necessary? What should be the procedure,and what are the characteristics of the amendments whichshould be left to the drafting committee? How will theDrafting Committee
understand the meaning and purport whicha member attaches to his amendment if you do not give him anopportunity to explain them? Is he to dance attendance onthe Drafting Committee and be its suitor, or should he be alitigant humbly making his submissions before the Drafting Committee? Sir, these are weighty considerations forremoving the blemishes in the Constitution. I have saidenough and if this does not convince the House, and if stillI am ruled out, I shall cheerfully bow down to the decisionof the House, knowing that I have discharged my duty. Thankyou, Sir.
Mr. Vice-President: I have to inform the House that Ihave in my hand a letter of author ity from our Presidentwhich I shall read out, and I think that will clear up muchof the misunderstanding. It runs thus:
"I hereby delegate to the Vice-President, Dr. H. C.Mookherjee, my powers and duties under all the rules inChapter VI of the Constituent Assembly Rules excepting rules38-U and 38-V therein."
Shri B Das (Orissa: General): Sir, on a point ofinformation. I would like to know if there is any time limiton speakers on this motion. If there is none, I suggest, youhave the prerogative to lay down a time limit so thatfilibustering speeches may not be made.
Mr. Vice-President: I am not inclined, in a matter ofsuch vital interest, to place any time limit on any one, solong as irrelevant matters are not introduced in thediscussion.
Now, Mr. Kamath may move Amendment No. 3.
Shri H. V. Kamath: Mr. Vice-President, Sir, the motionmoved by my honourable Friend Shrimati Durga Bai seeks toclothe or invest the President with certain extraordinarypowers, and as a consequence, to abrogate or abridge theinherent rights of Members of this House, either inherent orconferred upon them by the rules of procedure which we havealready passed. I am sure that none of my colleagues here,no colleague of mine here, will lightly or willinglysurrender any of his rights, and I am equally sure that the President and you, Sir, will, as you have always been, bezealous in the vindication of the rights of Members of this House. I desire, therefore, to request my colleagues here to bestow their very earnest consideration on the motion beforeus today, and I would appeal to you, Sir, also to permit afull discussion on the motion before the House.
Coming now to my amendment, Sir, it is purely a verbal amendment which seeks to bring this clause or sub-rule inconformity with the rules that we have already passed. If the House turns to rule No. 31, sub-rule (4), the language employed there is--
"The Chairman may disallow any amendment which he considers to be frivolous or dilatory."
But the expression here that--"The President shall have the power to disallow . . ." is a very clumsy expression. I have not seen it used in any of the rules which make up this booklet which is with every one of us--Rules of Procedureand Standing Orders. It is far more correct to say that "the President may disallow amendments. . . . etc." On thisproposed sub-rule (2) I have to make one observation. Thisseeks to give special powers to the President by empowering him to disallow amendments. But after being disallowed whatwill happen to these amendments? Will they be consigned to the waste-paper basket or even to some less envious fate?Under rule 38-R even suggested changes in punctuation and marginal notes have to be referred to the Drafting Committee. If so, I do not see why we should not adopt thevery amendments. I am glad to see that my honourable FriendsMr. Pataswar and Mr. Gupta have tabled amendments to this effect and I hope the House will agree to this course,namely, that all these amendments disallowed under rule 38-P(2) shall be referred to the Drafting Committee forconsideration and necessary action.
Then, Sir, I shall not move amendment No. 7 because If the amendment suggesting reference to the Drafting Committeeis adopted, there is no need for this to be moved.
My next amendment is No. 11 which relates to rule 38-P(3), and in which for the words "The President shall havepower to select", etc.,
I seek to substitute the words "mayselect", etc. The reasons I gave for my first amendmentapply with equal force to this also.
I then come to my amendment No. 12 which seeks to insert the words "same or" before the word "similar".Instead of saying "amendments of similar import" I think it is more comprehensive to say "amendments of the same or similar import".
My next amendment is No. 14 which seeks to substitute the word "may" for "shall" wherever it occurs. Under theexisting rules the President has two kinds of powers,--discretionary and mandatory. In the Rules of Procedure which we have adopted, you find that in the case of mandatory powers the word used is "shall" and in the case of discretionary powers the word used is "may". Rule 33 says that the President has no discretionand has got to put the motion to the vote. Here when the President has selected for consideration and voting any oneamendment or amendments which in his judgment are proper orcomprehensive, all the other amendments which have not been so selected must be deemed to have been moved and must beput to the vote. There is no discretion allowed to the President and the word "shall" in place of "may" will bringout the meaning of the proposed sub-rule.
Here again the construction of the proposed sub-rule isto my mind very defective. It is said here that anyamendment not so selected may, unless withdrawn, be deemedto have been moved. But an amendment cannot be withdrawnunless it has been moved in the House; it can be withdrawnthen only by leave of the House. I do not understand,therefore, how the proposed sub-rule is to be construed,i.e., an amendment shall be deemed to have been moved unlesswithdrawn. The question of withdrawal arises only after ithas been moved in the House; therefore this portion of thesub-rule has to be rewritten and recast.
Again I fail to see how any motion can be deemed tohave been moved unless it is actually moved in the House. It is a strange procedure which, I am sure, will not besanctioned in any other legislature in the world. Unless anamendment is formally moved in the House the Presidentcannot assume that it has been so moved. I submit that thisis a fundamental matter and I hope the House will not acceptthe amendment as it stands. If the Member does not want to move the amendment he will say so; and if he wants to moveit he must be given a chance to move it in the House, and ifit is not so moved it should be deemed to have been notmoved at all. If it has not been moved it certainly cannotbe put to the vote. So any amendment that a Member wishes to move must be formally moved in the House. The proposed sub-rule seeks to abrogate the right of a Member to move anamendment in the House and seeks to confer that powerindirectly on the President. I do not see how this can bedone--is it by some sort of jugglery or magic? If we adoptthis procedure it may waste more time of the House and theremedy may be worse than the disease. Therefore I havetabled the proviso amendment No. 16, which reads:
"That in the proposed sub-rule (3) of rule 38-P, afterthe words `without discussion' at the end, the followingprovision be added:
"Provided that a member whose amendment has not been so selected for consideration shall, if he so desires, be permitted by the President to state why his amendment should be considered'."
This, Sir, seeks to protect and vindicate the inherent rightof a Member of this House, and I am sure, Sir, that you willbe the last person to abrogate or abridge any of theinherent rights of Members of this House.
To illustrate my point, I would only say this: thatthis amendment to proposed sub-rule 3 relates to amendmentsof substance--substantial amendments. Therefore, no Memberhere, I hope, will surrender to the President his right ofmoving amendments in the House.
It may be argued that the President will select wiselysuch an amendment which covers all the other amendmentstabled on that subject, or which are of similar import.Perhaps this may be acceptable in case the President givesprior ity to those
Members who have tabled amendments toparticipate in the discussion. But even that, Sir, Ipersonally will not accept and every Member who wishes to move his amendment must be given the right to move it in theHouse.
Take, for instance, the amendments that have beensuggested to the Preamble to our Constitution. There arevarious amendments invoking God. Perhaps, the Presidentadvised by the Drafting Committee, or the ConsultativeCommittee, or some other persons in high places, might select one of these amendments. But if you peruse them and scrutinise them carefully, you will find that every amendment, besides an invocation to God, does contain certain other matters which are not covered by other amendments, and certainly if onlyone amendment is selected and the rest are not, Members whohave given notice of the other amendments will have no chance to put their point of view before the House.
I therefore appeal to this House and to you not to pass this motion as it has come before the House. It has got to be drastically and radically reworded and recast so as not to infringe the rights of the honourable Members of this House. If I may be pardoned for saying so, if this motion ispassed as it has come before us, I have no doubt in my mindthat this sovereign body, the first sovereign body inIndia's recent history, will become the laughing-stock of the world.
Shri Biswanath Das: Sir, I move:
"That in the proposed sub-rule (3) of rule 38-P, the words `without discussion' he deleted."
I do not know whether I have to thank myself or besorry that I should have been scheduled with my honourableFriend, Mr. Naziruddin Ahmad, though altogether from adifferent point of view. Sir, in the first place, I mustfrankly state that I fully support my friend, ShrimatiDurgabai for this amendment. This is a very necessary anduseful one and has our fullest support. The reason for thisis that we have been here for the last three weeks, and needI say that we have not been able to finish even 21 articlesin the course of these 21 days that we have been sitting.The country outside is anxiously waiting to have aConstitution for our country so that the new set-up will bein working order at least from 26th January 1949. That beingtheir anxiety, we share with our countrymen this anxiety. Weare anxious therefore to see that this phase of our activityshould terminate as early as possible. From that point ofview I welcome and support the resolution of my friend,Shrimati Durgabai.
Having stated so far, I will state why I have givennotice of this amendment. I will just take the stages thatwe have been following in connection with our work, namely:first, we have passed the Objectives Resolution and thereafter motions for appointment of committees came beforethis House. They were discussed on each occasion. Thecommittees sat and deliberated and submitted their reports.The reports were discussed threadbare in this House--word byword and phrase by phrase--and they were voted upon.Principles were determined and all these were handed over to the Drafting Committee--a set of expert gentlemen elected byus--to put them in proper phraseology. It has been seen in the course of these 21 days that the honourable Members of the Drafting Committee have, so far as possible, brought inexpressions and used those with great care and caution fromconstitutions of countries which have been working theirconstitutions for ages. If English language, a comma, a fullstop, idioms, or any set phraseology has to be questioned, Ishould say they have done ample justice in their selectionsand in the choice of their expressions and phrases. Thesehave been amply demonstrated in the course of ourdiscussions both here and elsewhere. That being so, thereis, I believe, little need for us to waste time over verbal,grammatical or formal changes in words and phrases in theshape of amendments.
If one day has to be allotted for one article. I amafraid we have to sit for more than one year because we have313 articles and then there are eight schedules each ofwhich also has a number of
sections. I shudder to think whatextent of time will be necessary if we have to go ondiscussing every amendment of which notice is given,irrespective of the fact that what it wants discussed isperhaps a comma, a semi-colon, a grammatical error, etc.; which have also to be debated and voted upon in this House.Under the circumstances the resolution that has been movedby Shrimati Durgabai is very necessary after our experienceof the last 21 days.
Looking at the Chair, I must frankly say that, you,Sir, have given us ample scope, despite protests fromcertain quarters, to express our views and have on nooccasion given room for any honourable Member to feel thathis point of view was not allowed to be properly placedbefore the House.
Speaking of the Congress party, I may mention that wehave been meeting from day to day not even excluding Sundaysfor two, three and four hours at a stretch discussing theseamendments and other possible and necessary amendments. Ifeel, Sir, that the consultative committee appointed by theCongress party is doing ample justice to their work and thatexplains why new amendments that have not been given noticeof by honourable Members have also been brought in,discussed and adopted by the House. All these go to showthat ample caution is being exercised in this regard in ouranxiety to see that a proper Constitution is evolved.
Sir, the motion moved by Shrimati Durgabai iscomprehensive enough. It gives scope for fair discussion andexpresses the fullest confidence in the Chair to give ampleopportunities to Members to discuss all aspects of everyquestion. It makes mention of comprehensive amendment'. It is very clear. To give an illustration: Suppose amendments1, 2, 3, 4, 5, 6, 7 and 8 have been given notice of. TheVice-President selects No. 8 or 7 and 8. These will be fullydiscussed and all shades of opinion would be placed beforethe House before the vote is taken on them. But I do notknow why Shrimati Durgabai says at the end of the proposedsub-rule (3) `without discussion'. Nothing is being donewithout discussion. We discuss the whole thing. Nothingremains to be discussed after the comprehensive amendmentshave been debated, and that is why I have tabled myamendment for the omission of the words `withoutdiscussion'. I differ from my friend Mr. Naziruddin Ahmad inthinking that any amendment is put to the vote withoutdiscussion. That will be an injustice to the HonourableHouse and is never done. The procedure of the ConstituentAssembly is different from that of the Legislatures. TheConstituent Assembly has got its own procedure which allowsfull scope for the discussion of resolutions and othermotions. If our friends want to take in Constitution-makingas much time as the representatives of the States took inAmerica in the 18th century, we will have to sit at it forone or two years and even more. Are my friends willing andanxious to devote that amount of time for this purpose? Isay that the country is anxiously waiting for aConstitution. We want to bury alive this Act of 1935 asearly as possible. How long are we to go on withAdaptations? Therefore I request my friends to accept themotion before the House, of course without the words`without discussion', for, nothing is done here withoutdiscussion.
Sir, in this work-a-day world, we cannot afford tospend so much time over a Constitution which may be changedin course of time. After all, the provisions for effecting achange in the Constitution are more elastic than thoseprovided in other Constitutions. Under the circumstancesthere need be no anxiety on this score.
Before I conclude I would quote a story from SrimathBhagavatham. Emperor Khatwanga was taken to Heaven. It wasthen found that he had still a few nimishas or seconds oflife on earth still remaining. He runs away from the heavenwith the idea of serving his people even during those fewremaining seconds. What should we learn from this? Are we tostay long here discussing commas and semi colons in thesedays of trouble, strain and distress throughout the country?Why cannot we leave these to the Drafting
Committee ofexperts who have spent so much of their valuable and useful time on it? In the circumstances I appeal to my friends toaccept the motion with the amendment I have suggested.
With these few words I move my amendment.
Mr. Vice-President: The amendments are now open forgeneral discussion.
Shri Damodar Swarup Seth (United Provinces: General):Mr. Vice-President, Sir, with your permission and to mygreat pain and sorrow, I propose to oppose the motion movedby honourable Shrimati Durgabai and oppose it, Sir, with allthe vehemence at my command. Sir, I wonder whether we areconsidering the Draft Constitution of free Independent Indiaclause by clause in all seriousness and solemnity or whetherwe are rushing through an emergency legislation to be passedby a certain date and if it is not passed by that date, theheavens will fall and the earth will stop moving on itsaxis. Already, a very large number of amendments have beenwhipped off and vetoed by the major ity party and more willbe vetoed by them in future. And now this motion to amendthe rules to give more power to the Honourable the Presidentto disallow certain amendments; if that is the attitude, it is possible that he major ity party or the party in power mayhave their own way, but, Sir, it will not be possible todeceive the Indian people that this Constitution has beenmade by them and for them. We may deceive the world outside,but we cannot certainly deceive our own selves. Because the major ity party have got in their hands the proverbial lathi,they can have the proverbial she-buffalo of their choice,but what about the Indian people and also what about theparty in major ity too? As I have just said, a very largenumber of amendments which ought to have been moved by themembers of the major ity Party have been vetoed. So, there isno democracy even in the major ity party, what to say ofothers, Sir. It is dictatorship of the party bosses pure andsimple. I therefore say, Sir, that the motion is not suitedto the conditions of the day. I have full faith in thedignity, impartiality and honesty of the Chair and I haveevery hope that the Chair will uphold the rights of theHouse. But, Sir, the passing of this motion will mean thatwe have bid goodbye to democracy. Democracy requires thatevery amendment here, every amendment tabled, must bediscussed in all its aspects. There should be no party-whipfor not moving amendments. As I have said, Sir, we are notdoing anything that can be characterised as an ordinary job.We are considering the Draft Constitution of free,independent India; we are moulding our destiny. So, noamendment which has been tabled should be disallowed. Ifamendments are vetoed like this, that will be a negativeattitude to democracy. I therefore, Sir, appeal in allhumility even to the members of the major ity party that it is in their own interests as also in the interests of thepublic, that they insist on moving every amendment anddiscuss it in all its aspects. By doing that, they will bedoing the sacred duty which has been entrusted to them bythe Indian people. If, however, they in their intoxicationof being in major ity, neglect this duty, then they may passthis Constitution as they like but the Indian people willnever own that Constitution. As I said on a previousoccasion, I repeat once more that this Constitution has notactually been made by the Indian people and it will at bestbe considered to have been made and passed by only fifteenper cent. representatives of the population of this countryand that too by indirect election which in the words ofProfessor Laski maximises corruption. I therefore hope, Sir,that this House will seriously ponder over this motion andreject it and will give the House an opportunity to discussand consider in all their aspects all the amendments whichhave been so far tabled.
Prof. K. T. Shah (Bihar: General): Mr. Vice-President,Sir, I am much obliged to you for allowing me thisopportunity to express my sense of deep regret andresentment against this amendment to the rules calculated topounce upon what little liberty of
speech we have in this House. We, Sir, may not be all able to cast pearls of wisdom before honourableMembers; but I trust that you will not regard, and thoseresponsible for drafting this Constitution will not regard,us all as swine before which pearls of wisdom cannot be casteven by them.
The new amendment to the Rules tries to shut outamendments which are supposed to be, or which are taken to be, merely verbal, grammatical, or formal. Verbal amendments, Sir, have been made often, not only by the otherMembers of this House, but also by the draftsmen themselves.If such a rule is to be in operation against only those whohave not had the honour to belong to the Drafting Committee,but is not to be used against those who, after havingdrafted after very careful weighing of each phrase, afterearnest consideration of the various articles and clauses ofthis Constitution, discover that they are not what thedraftsmen actually intended them to convey, and try to alterwords or make verbal amendments, it would hardly be fair,especially if non-official Members should not be at libertyto do so. This, in my opinion, would be so unjust andunparliamentary that I trust this House will not entertainsuch a proposition.
Sir, the other day I had the misfortune to suggest whatlooked like a merely verbal amendment, that is, to changethe words, "all citizens" to "every citizen". Much to mysurprise, I was happy to find that even the learned Dr.Ambedkar was able to see the justice of that suggestion, andmade a promise that he would consider, and considerfavourably, what looked like only a mere verbal change. Onthe other hand, an amendment which Dr. Ambedkar himself madeto article 40 was also, unless one was able to see thearguments which he was pleased to advance in support of it,a verbal amendment. The idea remains substantially the same.
Verbal amendments of this kind, whatever theappearance, are suggested, not merely for the fun ofproducing a debate or for seeing one's name in the papers.Verbal amendments very often embody a difference inexpression which is a difference of approach, if not also of the ideal behind. And though we may not all be author itieson English lexicography, we may nevertheless be able toindicate a difference in outlook and a difference inviewpoint, by a change of words, which is not necessarily to be discarded because we happen to be not gifted with thetechnical skill and the specialised knowledge and experiencein legal draftsmanship.
In support of this view, I would further suggest, Sir,that there is ample power in the rules as they stand for theChair to economies the time of the House, if this is theonly reason why an attempt is now made to curtail freedom ofspeech and the freedom of debate in this House. I suggestthat after all we are making a constitution which, we hope,will last for some years; and the attitude which I find sooften in many exalted quarters, that after all, there is nowfull power with us to revise or change it, should not affectour outlook on this matter. It may be that we are not ableto maintain the constitution which we draft now for a longperiod of years. We may have occasion,--circumstances mayprove stronger than our desires,--to make changes, and the Constitution which we sit down to draft today may not lastas long as we may desire. Nevertheless, I think it is not in the mind of any Member that the constitution which we drafttoday so solemnly and so seriously should be changedtomorrow, because by lack of foresight, by want ofdiscussion, by the absence of light thrown upon all cornersof it, so to say, we were unable to perceive at the rightmoment all that lurked in the wording of the Constitution,and suddenly we discovered that we had provided for thatwhich was not intended.
Sir, lawyers are a very clever class of people. Theynecessarily have to be clever, because they are eminentlyparasitical; they live upon the quarrels, the misfortunes,and tragedies of mankind; and, therefore they would always find a way of re-discovering any interpretation, inventing ameaning, providing an outlook
which perhaps the originalauthors of the Constitution never intended. This cannot, ofcourse, be avoided, so long as the legal profession enduresin the manner it endures today. But it may at least besafeguarded if we have proper discussion, if all angles ofapproach, all expressions of opinion are before this House,for it finally to judge in the matter, and take the bestthat appeals to its sense of fairness and propriety in thematter of the constitution.
Sir, I am unable to follow the reasoning which requiresthat we must expedite this constitution, and seeks themethod of expediting in some such curtailment of theopportunities of debate of the members as we find in this amendment of the Rules. Sir, if you really desire to curtailthe time spend upon this matter, I put it to you: why shouldwe not meet twice a day or meet for a longer time, or sitduring the summer? Or are we so soft, are we so intent uponcomfort and enjoyment to ourselves, that we can only thinkof meeting in the most fashionable season, in a mostcomfortable room, most comfortable conditions, and eschewour duty, merely because in the heat of summer or in themidst of social engagements, we will not find it soconvenient?
I put it to you, Sir, that if you lengthen thesittings, for instance, if you sit in the afternoons from 3to 9, you will have a very good evidence as to how manyMembers ventilate their opinions. See to it, Sir, that youtax our energies properly. See to it Sir, that you make fulldemands on our enthusiasm, or desire to work for the countrythrough this door; and you will find that only those who arewilling to stand the strain will be present. The time willthus be effectively curtailed without any wastage, withoutany feeling that the minor ity, or those who may not have thefavour of the major ity, may be left out of their fair sharein shaping this Constitution.
I put it to you, Sir, and to the whole House, that theone and only way to deal with this Constitution, deal withit properly, deal with it satisfactorily, deal with it sothat the generations which come behind us may bless us formaking it, is to provide proper time and not to curtail thetime. If you desire to hurry--and I personally see no reasonwhy we should hurry--you should meet longer, more often,why, even during the time when the Legislature is insession, which body can very well meet at night, and dealwith those parts of the constitution which demand detailedknowledge, which require for full discussion not so manybroad principles and occasions of declamation, but whichnecessitate earnest study and detailed knowledge of matterslike finance, matters like judicial procedure, and so on.
I do not wish to take the time of the House byenumerating the many sections. Correct expression in eachwould require not merely a knowledge of English, not merelya mastery of punctuation, not merely appropriateness inform; it would require very much more detailed knowledge of the history and economics of this country, which I ventureto think will not be served by your hurrying through the Constitution in the manner which seems to be fashionable andfavoured by the major ity today. In so doing, I do not thinkthat the major ity is serving the interests of the country,if they desire to curtail liberties of speech, if theydesire to make rules or amend rules, which will diminish theopportunities we have of placing our views, our outlook, ourangle of approach, before this House. Very often, Sir, whenwe draft amendments in the seclusion of our study, we haveonly one brain to go by. We come here and see the light of our fellows. When we come here and find other expressions,other angles of approach, are properly backed by facts orreason. I for my part, am quite prepared to say, I wouldhave no hesitation, no shame in revis ing my own judgment,and accepting the wiser judgment of others. But that cannot be done if that judgment is placedbefore us without reason, and if it is not illustrated withsome facts. If you shut out the means of approach, if youshut out, Sir, the very door of discussion, if you putamendments
which are tabled here "without discussion" tovote, you will deny the most elementary right of freedom tospeech to Members. But that would mean that you are backedby the brute major ity behind you, and not the reasoningintelligentsia of the country with you.
Sir, I would like to put it from another angle. Afterall, you have very learned technical draftsmen at yourservice. Ask them, enquire of them enquire even of thisChairman of the Drafting Committee itself whether othercountries, who have had to make their constitution afterlarger experience than ourselves, have not also taken timeover this matter of such vast importance for unborngenerations as well as the present? Sir, the Government ofIndia Act itself took several years to get throughParliament, a body which has much greater experience than wemay have in making such enactments. The French people hadafter liberation devoted two years just to the making of the Constitution alone. The American people, when they becamefree and had only 13 few states with a population not even ahundredth of ours, took two years to pass the constitution,without reckoning all the wrangles that went on before thefinal Draft was settled from time to time, before they came to the United States, as it is now called.
Sir, I can give you innumerable examples where time hasbeen taken and rightly taken. Why, the fundamentalconstitution of the country should be studied, should beconsidered, should be viewed from every angle before it ispassed. And that will not be served, I repeat, Sir, by yourhurrying through in this manner. If, therefore, it is opento me to move, I would certainly suggest that this matter bereferred back to the Drafting Committee itself, or theSteering Committee of this House or whatever the appropriatebody may be, to see to this matter. I am not againstexpediting, getting the constitution as rapidly passed aspossible. I am against this being very hurriedly gonethrough; I am against its being gone through in a slip-shodmanner, and that is why I suggest to you: Let us discoverother ways like more time being devoted to it, and morespace being devoted. Let us also remember that we are oftenreproached with getting our allowances, unearned. I,therefore, suggest, Sir, that the House will do well indeed,if instead of passing a motion like this today, which theycan very well pass with a major ity pledged to it, you willreconsider the matter, and bring it up again with suchamendments in time and so on, if you find there is a desirefor obstructiveness for its own sake. That would permit thefullest possible discussion, that would leave no room foranybody to feel that their expression was not fully placedbefore them and at the same time serve to make the Constitution full, complete and accurate, and much betterthan attempts like this would let it be. Thank you, Sir.
Prof. Shibban Lal Saksena (United Provinces: General):Mr. Vice-President, Sir, I had given notice of an amendmentto the amendment No. 7 of Mr. Kamath; but it has been time-barred and so I will only explain my view point. I hadwished that at the end of Mr. Kamath's amendment No. 7, thefollowing words be added: "and clause (a) (3) be deleted."
I have carefully heard the speeches of my friends Mr.Damodar Swarup Seth and Professor K. T. Shah, and otherfriends. I feel that they are equally earnest about passingthis Constitution with all the speed that is possible. Atpresent, the way in which we are proceeding it has takennine days to pass twenty articles. It comes to about twoarticles a day on the average. In the Constitution we havegot 315 articles and eight Schedules, so that, normally, itshould take at this rate about two hundred days to pass thewhole Constitution. This is the minimum time which I think will be required, because,we all know that during these nine days the Congress Partymembers have not been moving most of their amendments, andonly a very few amendments are moved on their behalf. I donot think that things could be done quicker than they arebeing done now, and I do not think that there is anypossibility of
passing this Constitution unless we give atleast 200 days for this purpose. There is only one wayavailable to do it quicker and that is by increasing thetime of our sittings. Even if we increase the time of thesittings from three hours to five it will take many daysstill. I personally feel that we are not wasting any timeeven now, for the time which is saved is used by theCongress Party in selecting the amendments, which amendmentsto move and which not to move, and in this way, that reallysaves the time of the House. I do not think there can be anymethod by which we can go at a quicker rate.
This particular motion of my friend Shrimati Durgabaisupposes that some quicker progress is possible by thismethod; I personally feel that it will not serve thispurpose. First of all, we have got Mr. Naziruddin Ahmad whohas tabled many amendments of a formal nature; he himself is not moving most of them. Similarly, with regard to thesecond part of clause (3), which says that amendments which are over-lapping or of a similar import, shall not be moved,I feel that this is something very serious. There may be anumber of amendments on a particular subject, and the Housemay be willing to accept one amendment and not the otherselected by the Chair. Although it has been stated that theywill be deemed to have been moved. I personally feel that itwill not be proper to deem them to have been moved unlessthey are commended to the House by a speech by the mover. Ifeel that it would be undemocratic to deem amendments tohave been moved without their being moved in the House.Though we are not really saving very great time of theHouse, we would be giving rise to a justified complaint onbehalf of many Members that by this we are trying to gagthem. I do not think they will be gagged because you willalways allow those amendments which have substance in themto be moved. But, still, it could be complained by those whoare opposed to the Congress that they are being hustled andgagged. Therefore, it is my earnest wish to commend to myfriend Shrimati Durgabai to reconsider this motion and tosee whether it is proper to press it, and whether the realpurpose would be served by this motion. I feel veryintensely that the Constitution is a permanent thing and assuch there should not be any complaint that we are notproperly considering it. I hope this motion will bereconsidered and that my remarks will be borne in mind myfriends.
Shri B. N. Munavalli (Bombay States): Mr. Vice-President, Sir, I am in entire agreement with the motion sofar as its substance is concerned; but in so far as itcurtails the privileges and rights of individual Members of the House, I am constrained to oppose it.
Sir, we have been meeting here and s particng articleby article, but we have not been s particng in vain. It isonly on important points and important amendments thatdiscussions are taking place. Some of the honourable Membershave been wise enough, when they found that their amendmentshave no substance, to withdraw them. Under thesecircumstances, I think that by passing this motion, we willbe laying down a very bad precedent for the otherlegislatures to follow. I therefore strongly oppose thismotion and appeal to the House, that as a Sovereign Body,the precedents that we lay down are likely to be followed byother legislatures, if we pass this motion; it will be a badprecedent and honourable Members should oppose this motion.
Maulana Hasrat Mohani (United Provinces: Muslim): Sir,I must strongly oppose the motion put forward by ShrimatiDurgabai. Even when our President has not got theseextraordinary powers such as are suggested in the motion, byexperience we have found, by seeing the proceedings of this House, it has given rise to so many misgivings, in the mindsof ordinary Members of this House. I may explain what I amsaying. I have got here a copy of two whips issued by theCongress Party meeting. Every day before the holding of thesession of this House,............
Mr. Vice-President: They are not supposed to bereferred to here.
Maulana Hasrat Mohani: I want to say
Mr. Vice-President: Will you please stop referring to these Congress whips? They are not supposed to be documentsto be used here.
Maulana Hasrat Mohani: What I find here is that itappears to be that whatever is decided there is beingcarried out here to the word. This gives rise to a misgivingon the part of ordinary Members, because it makes the wholething to be a one-party business, or even I consider oneman's show. If that is the case, if we give extraordinarypowers to the President, I would be justified in asking thequestion, where is the use of holding this farce of aConstituent Assembly if it is to be a party business, I meanthe business of the Congress Party, or an one man's show?
Shri Algu Rai Shastri (United Provinces: General):*[Mr. President, I thank Shrimati Durgabai for bringingforward a motion to expedite the passage of the Constitutionand save our time. I do not agree with my friends who haveopposed this motion. I think it is improper to say that the Constitution is being rushed through. We know that it islong since the Constituent Assembly was formed, that it hasbeen given ample time to prepare the Constitution and that aDrafting Committee composed of able persons has been busypreparing this Draft Constitution. We had already acceptedits fundamental principles, we had also accepted theFundamental Rights embodied in the Draft constitution. Itdoes not appear proper to move, at this stage, meregrammatical amendments seeking to insert "the" or to dot the`I's' or cross the t's in some places in the Draft Constitution. To move such amendments, I think, is sheeninjustice to the people at whose expense the entireadministrative machinery is functioning. We ought to saveevery pie and every minute.
I have listened to what my friend Seth Damodar Swaruphas just said. Here in this House he says that there shouldbe no hurry in considering the Draft Constitution; whileoutside the House I have heard these very friends say "Thework of framing the Constitution is taking a considerableamount of time. God knows when it will be finalised andelections will be held under the new Constitution". It isnecessary and in fact people are anxious that we shouldfinalise the Constitution quickly and hold fresh electionson the basis of adult suffrage, in which every person of theage of twenty one years may exercise his vote and elect hisreal representative in order that the administration may beunder the control of the real representatives of the people,and the administration may justly bear the name of a PopularGovernment. The present Constituent Assembly has been formedby means of indirect election. People holding views like myfriend Seth Damodar Swarup even go to the length of sayingthat the present Constituent Assembly is a useless body andthat it should be dissolved and the Draft Constitutionprepared by it should be placed before a fresh Assemblyelected on the basis of adult franchise. Seth Damodar Swarupand people of his way of thinking say all these things andat the same time they demand here more and more time forconsidering this Draft Constitution. The present suggestion,or I should say the motion before
* Translation of Hindustani speech.
the House, may perhaps require modification here and there,but the motion as a whole is a welcome one and I endorsewhole-heartedly the object behind it. It confers power onthe President to disallow amendments which seek to make merely verbal or grammatical changes--such as comma, semi-colon and such other things. The Drafting Committee itselfmay effect such changes. The Consultative Committee whichsits every day or the other bodies that are there can effectsuch changes. I said in the very beginning that English is not our language but we have drafted the Constitution inthat language. I am afraid we cannot easily detect any grammatical mistakes that might have been committed. It is unnecessary for me to remark that we are not well conversantwith its phraseology and other niceties of idioms. A manfrom England
may go on amending this draft throughout hislife. We would like this Constitution in English to berepealed and substituted by a constitution written in ourown language. It is for this reason that we are unable tomake it as perfect as we would like. In so far as the question of improvement of the language of the Draft isconcerned there is one difficulty. Pandit Nehru, Dr.Ambedkar and Shri K. M. Munshi are all brilliant masters ofEnglish language. But the style of each is marked with his individuality. It is evident that none of us is in aposition to judge which of these brilliant styles is correctfrom the point of view of the English usage, and which wordsand idioms are appropriate and which are not. I believe thepurpose and the meancng in view would be substantiallyconveyed whatever style we may agree to employ for ourpurposes. I therefore, submit that amendments aiming toimprove the language of the Draft are entirely useless, andwe should not waste our time in considering such amendments.
As regards the many amendments which are more or lesssimilar in form or have the same object but have been tabledby different members, I would submit that the House shouldselect one of these and consider it only. We can, I submit,depend in this respect on the discretion of Mr. President.If he declares an amendment to be an all embracing one,which, in his opinion, would enable us to improve thelanguage of the Draft, that amendment may be taken up forconsideration by the House. It is true that there must beopportunity for a full expression of opinion, but in my viewit is not proper that there should be long-winded speechesor that the proceedings should be unnecessarily prolongedday after day.
I may, in this connection, draw your attention to whatthe people of India are already saying about us. If youtravel in a 3rd class compartment of a railway train youwould find what the people think about us, from thedisparaging references to the electric fans, the pleasinglight, and the other amenities provided to us while we aredrawing up a constitution for them.
Shri K. T. Shah gave to us the instances of othercountries which devoted two or even three years for framingtheir constitution. But may I ask how many years have beendevoted by us to the same task? Till now, we have devotedtwo years to it. How is it then people still say thatsufficient time has not been given to us to consider andpass our constitution? We must remember that each day we sithere involves an expenditure of thirteen to fourteenthousand rupees of public money--or it may be even twenty-four to twenty-five thousand rupees for all I know. This isthe price the country is paying for each sitting of this House. It is plain that we cannot continue to put this heavyfinancial burden on the poor people of our country. It iswell known that our people are not prosperous. We cannot, Isubmit, continue to tax the slender resources of our peoplein this manner for a mere idle discussion of the niceties ofidioms and words.
One can appreciate, no doubt, the incurring ofexpenditure on experts or for the purpose of enablingMembers of this House to introduce really thought-provokingamendments or to suggest new ideas. It is plain that in thisrespect there would not be what may be termed `a gaggingorder' in this House. No one, I submit, is being stifled in this respect. I submit that the charge levelled here thatthe expression of opinion is being stifled and that decisionare being taken on the strength of a brute major ity iswithout any substance. There is every opportunity for amplediscussion. I submit that it is no use complaining andblaming the country for returning to this House a major ityof members of a party whose numerous sacrifices for thepeople were in the people's minds at the time of electionsand which really has the confidence and support of the vastmajor ity of the nation. If we look at Russia we find thatthe Communist Party has absolute domination over the State.It alone controls and carries on the administration. No one,I believe, can condemn the Communist party for
thiscondemnation there can be only when a party begins to actunjustly. But if the party assembles to discuss questions,and if its members come to an unanimous agreement, and if itcontinues to serve the people, there is no occasion, Isubmit, for any complaint or criticism. There is completefreedom of expression; really valuable ideas come before usand thereby we are able to make progress in our affairs. Thebusiness of the House also is expedited by the partyfunctioning in this manner, and I believe that the countryalso will be grateful to the party for acting in thismanner.
In the circumstances I do not see on what ground peoplehere grumble against this party practice. But even if theygrumble, the people approve the practice of the party, sparticng questions in its meetings so that its spokesmen mayexpress their opinions in the House and so that the othermembers of the party may not indulge in unnecessary speechesand the time of the House may be saved. I submit, that wewould be involved in an unending affair and would not beable to make any progress towards the completion of ourbusiness, if we listen to those who wish to adopt delayingtactics and to be free to make changes in punctuation marks,as a comma here and a full stop there. In my opinion, such acourse would be grossly unfair to our poor people. I believeit will not do to agree to the proposal that Members shouldbe permitted to speak without any restriction or that thereshould not be a rule--what some Members here refer as`Section 144'--for the regulation of the debate in theHouse.
May one enquire what ideas, what wonderful ideas, youare going to place before the House if you get unrestrictedfreedom of speech? It is clear that Members may moveamendments only if these contain some new ideas or some newsuggestions which would remove substantial defects in thisDraft. I am sure that Mr. President would not prevent anyone here from moving such amendments for improving theDraft. In my opinion the motion which has been broughtforward by Shrimati Durgabai only states that only oneamendment--and the one which is the most comprehensive--outof several amendments having the same form and object buttabled by different Members, would be permitted to be moved.I believe, under this proposal, every one of those who gavenotice of his intention to move any one of such amendmentswould have full freedom to place before the House any newsuggestions he may have, while participating in the debateon the selected amendment. But no one would have freedom toindulge in mere repetition. Repetition is not allowed in anyParliament or Legislature or any where else. I repeat that in no country and in no parliament is there freedom toindulge in `mere repetition'. There is no reason why thisrule should not be enforced here. I, therefore, fullysupport the motion brought forward by Shrimati Durgabai and totally dissent from those who have opposed it.]
*  Translation of Hindustani speech.
Shri M. Ananthasayanam Ayyangar (Madras: General): Sir,I support the motion made by our friend Shrimati Durgabai. Iam afraid Prof. K. T. Shah and other friends who have tabledamendments and who have spoken against this motion haveunnecessarily created a panic though there is absolutely nocause for alarm. I am sure they would all agree with me andwith the mover of the motion that on merely verbal, formalor grammatical changes, we should not spend much of ourtime. After all, the same idea can be put in various formsor various shapes endlessly. Are we to go on spending timeupon them all? Of course, I agree with Prof. Shah that weshould not hustle ourselves. But on important issues, poweris given to the President to select such amendments as willcover in substance all the other amendments, and if one suchamendment does not cover the substance, two or three or fouramendments can be selected by him. We do not restrict hispower in this direction at all. He can choose one or moreamendments for the purpose of discussion.
Moreover, it is not as if all these amendments areruled out
once and for all. According to Rule 38-R. they arebefore the committee which will ultimately incorporate themso far as they are found useful, in substance or inimproving the language and so on, when the Draft Constitution comes before us for final adoption. This rulethat we are bringing in does not take away the efficacy ofrule No. 38-R.
Moreover, this is not a novel procedure that we arebringing in. When the Irish Bill was before the House ofCommons--and that is the Mother of Parliaments, and it neverwants to hustle anybody--they had this rule in the House ofCommons, that is Standing Order No. 28, and this presentmotion which has been placed before this House is copied,word for word, from the Standing Order No. 28 of the Motherof Parliaments. Therefore, it cannot be said that this willstifle discussion, and I am surprised that our friendsshould unnecessarily get alarmed about it.
Then, as regards substantial propositions, any numberof such propositions can come up before us. The Presidentcan allow them, and others can be taken to have been moved.It is not as if they are thrown out. The President is not,under this rule, called upon to prevent discussion ofimportant matters. As a matter of fact, he has been allowingthem. All the amendments on a particular article are allowedto be moved and s particon is allowed on them and also onthe main article. Under these circumstances, where is thenecessity for any alarm?
So far as the Congress Party is concerned, it does gothrough all the amendments and find out what amendmentsshould come up before the House. But with regard to theother, we have noticed how many amendments are being moved.We can spend 50 days or two months or three months on thesediscussions. But should there not be an end to it? It istrue we should not stifle ourselves, but expedition alsoshould be there. We have already spent two years. Of coursethe opinion of every Member here is absolutely necessary toshape the discrticon and the decision of this House. But weall realise that none of us is here to waste time. That isunderstood by all. But each one of us should know what heshould do in the interest of expedition, while at the sametime not loicng sight of the necessity for discussions onimportant issues. I would appeal to my friends not to workthemselves into a panic regarding this rule which is intended merely to expedite matters, consistently with theefficiency of our discussions.
It has been suggested that we may have sittings both in the morning and in the evening, and if the House is willing,we can have this arrangement from next Monday. But thatalone will not be helpful without this rule. I thereforesubmit that this rule, as proposed by Shrimati Durgabai,should be accepted by the House, without any amendment.
Shri H. V. Kamath: Sir, on a point of information. Is acopy of the Rules of Procedure of the House of Commons, orthe particular rule referred to by Mr. Ayyangar before you?Otherwise, I would request him to supply a copy to you.
Mr. Vice-President: Yes, it is here.
Maulana Hasrat Mohani: Sir, may I know, on a point ofinformation whether the particular rule referred to in theRules of Procedure of the House of Commons relates toordinary business or to the business of constitution making?I think as far as constitution making is concerned, nowherein the world is such an obstacle introduced on freediscussions.
Mr. Vice-President: Is the Member asking forinformation or supplying information?
Shrimati G. Durgabai: Mr. Vice-President, Sir, I do notthink I should take up the time of the House any more, toanswer the charges made against my motion, by some Membersof this House. Already, my Honourable friend Mr. Ayyangarhas taken the trouble to answer some of the points raised bythose Members who opposed my motion. But I consider itnecessary to answer one point. I have heard some Members saythat this is quite an unusual procedure that we are adoptinghere. But I submit, there is nothing unusual a bout it. Andjust now one Member asked whether the procedure that we nowadopt is used only with
regard to ordinary Bills or withregard to the business of constitution making. Mr. Ayyangarhas already said that the same procedure was adopted underStanding Order No. 28 of the House of Commons with regard to the passage of the Irish Home Rule Bill. Not only that. Evenin connection with the passage of the Government of IndiaAct 1935, the same procedure was adopted to expedite thework. There are various kinds of procedures designed tosecure the quick disposal of work, and we thought that thisone which we have suggested, is the least dangerous, andalso the most acceptable to the Members of this House.Therefore, I ventured to bring this motion before you,expecting unanimous consent to its adoption. But all sortsof points have been raised and I have heard Members say thatthis rule would defeat the principle of democracy and alsothat it would shut the mouths of Members. I submit there is nothing of that kind in my motion. I have already explainedthat in moving this amendment, my object was not to curtailthe privileges of members. If they would only go through myamendment carefully, they would never find fault with mebecause it is only discussion of such points which aremerely verbal or grammatical that would be affected by this amendment. We have gone through the voluminous lists of amendments and found that many of them are of a merelyverbal or grammatical nature. It is only these amendmentsthat will be disallowed. Already rule 38-R is there underwhich the Drafting Committee can again go through theseamendments and if necessary can incorporate them. Thereforeall the discussion that has taken place against this amendment is unnecessary, and I appeal to the House tounhesitatingly accept this motion of mine. The President hasmade it clear that he will be very judicial in exercis inghis power, and in selecting amendments he will displease noone but please everyone.
Sir, I again appeal to the House to accept this motion.
Shri H. V. Kamath: Sir, my honourable Friend Mr.Ayyangar has sought to mislead the House by quoting rule 28of the House of Commons. That rule supports amendment No. 16that I have moved.
Shri M. Ananthasayanam Ayyangar: My friend cannot go onmaking another speech. If he does not accept it, let himnot.
Shri H. V. Kamath: I will with your permission, Sir,read that rule 28.
"In respect of any motion or in respect of any Billunder consideration either in Committee of the whole Houseor on report Mr. Speaker or in Committee the Chairman ofways and Means and the Deputy Chairman shall have power toselect new clauses or amendments to be proposed, and may, ifhe thinks fit, call upon any member who has given notice ofan amendment to give such explanation of the object of the amendment as may enable him to form his judgment upon it." Ialso want to incorporate it, that every member who has givennotice of an amendment.................
Mr. Vice-President: That cannot be done now. But inorder to prevent a heated discussion I will take the libertyof going outside my duties and pointing out that this sub-rule (3) does not prevent the President, if of course youhave confidence in him to that extent, from making such arequest to Members who have submitted amendments.
I shall now start taking votes on the amendments.
An Honourable Member: Does the President already havethese powers?
Mr. Vice-President: If he had them there would be nosense in bringing forward this motion.
Mr. Vice-President: The question is:
That the proposed sub-rule (2) of rule 38-P be deleted.
The motion was negatived.
Mr. Vice-President: The question is:
That in the proposed sub-rule (2) of rule 38-P, afterthe words "President shall", the words "after hearing themember who has given notice of any amendment" be inserted.
The motion was negatived.
Mr. Vice-President: The question is:
That in the proposed sub-rule (2) of rule 38-P, for the words "shall have the power to" the word "may" be substituted.
The motion was negatived.
Mr. Vice-President: The question is:
That in the proposed sub-rule (2) of
rule 38-P, for theword "amendments" the words "such amendments" be substituted.
The motion was negatived.
Mr. Vice-President: The question is:
That in the proposed sub-rule (2) of rule 38-P, the words "and to remit them to the Drafting Committee" be addedat the end.
The motion was negatived.
Mr. Vice-President: The question is:
That the proposed sub-rule (3) of the 38-P be deleted.
The motion was negatived.
Mr. Vice-President: The question is:
That in the proposed sub-rule (3) of rule 38-P, for the words "shall also have the power to" the words "may,further," be substituted.
The motion was negatived.
Mr. Vice-President: The question is:
That in the proposed sub-rule (3) of rule 38-P, for theword "similar" the words "same or similar" be substituted.
The motion was negatived.
Mr. Vice-President: The question is:
That in the proposed sub-rule (3) of rule 38-P, for theword "may" wherever it occurs, the word "shall" be substituted.
The motion was negatived.
Shri Biswanath Das: Sir, I beg leave of the House towithdraw my amendment.
The amendment was, by leave of the Assembly, withdrawn.
Mr. Vice-President: The question is:
That in the proposed sub-rule (3) of rule 38-P, afterthe words "without discussion" of the end, the followingproviso be added:--
"Provided that a member whose amendment has not been so selected for consideration shall, if he so desires, be permitted by the President to state why his amendment should be considered."
The motion was negatived.
Mr. Vice-President: The question is:
That after the proposed sub-rule (3) of rule 38-P, thefollowing proviso be added:--
"Provided that before the President so selects any amendment, the member who has given notice of any amendment shall have the right to explain the nature and purport of his amendment."
The motion was negatived.
Mr. Vice-President: The question is:
"That the existing rule 38-P be renumbered as sub-rule(1) of rule 38-P, and to the said rule as so renumbered thefollowing sub-rules be added:
(2) The President shall have the power to disallow amendments which seek to make merely verbal, grammatical or formal changes.
(3) The President shall also have the power to select for consideration and voting by the House the more appropriate or comprehensive amendment or amendments out of the amendments of similar import and any such amendment not so selected may, unless withdrawn, be deemed to have been moved and may be put to the vote without discussion."
The motion was adopted.
Mr. Vice-President: If I may say so, I would appeal toMembers to make better use of their time.
Shrimati G. Durgabai: Sir, I move:
"That after Rule 38-V, the following new Rule be inserted:--
Definition.--38-W. In this Chapter (excepting in rules38-U and 38-V thereof), the expression 'President' includesany person for the time being presiding over the Assembly."
The Honourable the President of this House hasdelegated his powers to the Vice-President on his behalf toexercise all functions under Chapter VI-A of the Rules ofProcedure, excepting in regard to Rules 38-U and 38-V. Thesetwo rules, I am sure the Honourable Members are aware,relate to authentication of Bills. Excluding these twoRules, the President now has delegated all other powersunder Chapter VI-A to the Honourable the Vice-President nowpresiding over the Assembly to exercise all functions on hisbehalf.
Since it has already taken place, it is consideredessential to introduce this new rule and incorporate it in the Rules of the Procedure of this Assembly.
In short, that is the object of my motion. I hope thatthe House would find no difficulty in accepting it.
Sir, I move:
Mr. Vice-President: We shall now take up the amendmentsfrom 18 to 23.
Mr. Naziruddin Ahmad: Sir, I move:
"That the motion relating to the insertion of new rule38-W be deleted."
By way of alternative amendment, I move:
"That for the motion relating to the insertion of newrule 38-W the following motion be subtituted:--
(b) That after
Rule 14, the following new Rule 14-A be inserted:--
Person presiding to have "14A. The person presiding over theAssembly under rules 13 powers of President in and 14 shall have all the powers of the President under Chapter certaincases. V of these rules except under rules 38-U and 38-V."
Sir, I also move:
"That to the new rule 14-A, the following Explanationbe added:--
`Explanation.--This rule shall have retrospective effect as if it was made on the 4th day of November 1948.'"
Sir, I move:
"That in the proposed rule 38-W, for the words `anyperson for the time being presiding over the Assembly' the words `the Chairman' be substituted."
Sir, I move:
"That in the proposed rule 38-W, the followingExplanation be added:--
`Explanation.--This rule shall have retrospective effect as if it was made on the 4th day of November 1948.'"
Before proceeding further, I want to make one pointquite clear. I fully agree with the principle of this amendment and I fully support the principle. But I regretthat I cannot accept it in the present form. It is, as Ihave already indicated, badly conceived and badly drafted,and I shall show how it is so.
Sir, the powers of the Vice-President are described inRules 13 and 14. Rule 13 says that "in the absence of the President, the Vice-President, as the President maydetermine, shall preside over the Assembly." So in theabsence of the President, you have been by specialnomination or request been presiding over this Assembly.
Then Rule 14 says: "If the President is absent and there is no Vice-President present to preside over theAssembly, the Assembly may choose any member to perform theduties of the Chairman."
I find there has been a serious lacuna here and thishas been rightly spotted by the Honourable Member, ShrimatiDurgabai, namely, that the powers of the Vice-President havenever been defined anywhere. It has never been statedanywhere that the Vice-President, beyond presiding shall have any powers of deciding matters according to rules. Ishould have submitted, as I have submitted before, that theprovision giving power to the Honourable the Vice-Presidentto preside, includes the power to give rulings, to declarethe decisions of the House: and we have been doing thatduring the absence of the Honourable the permanent Presidenton account of illness. Sir, if however, it is thought thatthe Honourable the Vice-President, beyond presiding, mustaccording to the rules be deemed not to have any furtherpowers, that he has to sit mute as a silent witness to whatis happening in the House without being able to control thedebate, to call any Member to order and may do this and maynot do that as the presiding officer of the House, then I think one would be going too far. But supposing that is so,that beyond the power to preside you have no further power to act otherwise, that is, to give decisions of the House,give rulings on points of order. If this is the lacuna, it has to be cured with effect from the date that you began to presideand not with effect from today. If there is a lacuna and ithas to be remedied, then the remedy has to be givenretrospective effect.
That is in short the effect of my amendment. In fact, Iwish to give it retrospective effect: that is one greatprinciple. I think the moment we are disposed to accept theprinciple of this amendment, retrospectively follows as anecessary corollary. Then, Sir, the question is, where willyou put it? Rules 13 and 14 indicate the powers of the Vice-President and, in the absence of the Vice-President, anyperson duly elected by the House to preside. I think this isthe proper place to insert the provision. I suggest,therefore, that the place of the proposed new rule is afterrule 14 as rule 14-A.
Then, supposing, for the sake of argument,--I have toguard against all possible cases--it is felt that thelocation should not be after rule 14, but exactly at theplace where Shrimati Durgabai would place it, that is at 38(W), then retrospectively must be given by means of amendment No. 23 by means of an explanation that this
ruleshall have retrospective effect, as if it was made on the4th day of November 1948. But 4th is not accurate. I have toput a day in anticipation because on the 4th day of Novemberwe began to sit, but you began to preside somewhat later.But if this date is changed from the date on which you beganto preside over the House, this amendment should be made. Ihave taken it a little backward to obviate all objections.But if any objection is taken on the ground of this date Ishall accept any amendment that may be suggested. The onlyreason for not putting the actual date was my ignorancethereof. I submit retrospective effect must be given. If there is no need to make the rule, everything is alright.But if this rule is adopted, then what will happen to thesuspected illegality committed by you prior to this date andsince you began to preside? I submit the rule is absolutelyunnecessary or, in the alternative, it should be givenretrospective effect either in rule 14-A or at the placesuggested by Shrimati Durgabai with the explanationsuggested in my amendment (No. 23). If the House is disposedto accept the amendment moved by Shrimati Durgabai, itshould be inserted after the proposed rule 38-W. In any casethe Explanation giving retrospectively must be insertedeither here or there.
Mr. Vice-President: The motion and the amendments arenow open for discussion.
Shrimati G. Durgabai: Sir, I am sorry I cannot acceptthe amendments of my Honourable friend Mr. Naziruddin Ahmad,because we have to propose definition of the term `the President' under the rules. What he said was that afterrules 13 and 14, we should bring in 14-A. It has no place,because the term `the Chairman' in two places has beendefined as one presiding over the Assembly. But our purposeis not that. Under Chapter VI-A, the Vice-President has beengiven the power by the President. Therefore it is necessaryto define the term there, and his amendment to bring this as14-A, after 13-A does not fit in. Therefore I am sorry Icannot accept his amendment.
Mr. Vice-President: I shall now put the amendments, oneby one, to vote.
Mr. Naziruddin Ahmad: I am prepared to accept theposition as explained by Shrimati Durgabai. But no reply hasbeen given to my arguments in support of amendment No. 23.Supposing we accept the amendment of Shrimati Durgabai, theExplanation would come as in amendment No. 23 in the amendment.
Shrimati G. Durgabai: Sir, I do not think amendment No.23 is necessary. The explanation is quite unnecessary,because the powers of the President are already there, underdelegation.
Mr. Vice-President: Being a negative motion, amendmentNo. 18 to delete new rule 38-W is out of order.
Mr. Naziruddin Ahmad: I beg leave to withdraw myamendments Nos. 19, 20 and 22.
Amendments Nos. 19, 20 and 22 were, by leave of theAssembly, withdrawn.
Mr. Vice-President: I shall now put amendment No. 23 tovote.
The question is:
"That in the proposed rule 38 W, the followingExplanation be added:--
`Explanation.--This rule shall have retrospectiveeffect as if it was made on the 4th day of November 1948.'"
The motion was negatived.
Mr. Vice-President: I shall now put the new Rule 38-Wto Vote.
The question is:
"That after Rule 38-V, the following new Rule be inserted:--
`Definition.--38-W. In this Chapter (excepting in rules 38-U and 38-V thereof), the expression `President' includes any person for the time being presiding over the Assembly.'"
The motion was adopted.
Mr. Vice-President: We have a quarter of an hour more.We can resume discussion of article 8 of the Draft Constitution.
Pandit Lakshmi Kanta Maitra: (West Bengal: General): Wemay adjourn now.
Mr. Vice-President: Our time is valuable. We should notwaste a quarter of an hour.
The Honourable Dr. B. R. Ambedkar: Sir, I move:
"That for clause (3) of Article 8, the following be substituted:--
`(3) In this article--
(a) the expression `law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom, or usage having the force of law in the
territory of India, or any part thereof;
(b) the expression `laws in force' includes laws passed or made by a Legislature or other competent author ity in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any past thereof may not be then in operation either at all or in particular areas."
Sir, the reason for bringing in this amendment is this:It will be noticed that in article 8 there are twoexpressions which occur. In sub-clause (1) of article 8,there occurs the phrase "laws in force", while in sub-clause(2) the words "any law" occur. In the original draft assubmitted to this House, all that was done was to give thedefinition of the term "law" in sub-clause (3). The term"laws in force" was not defined. This amendment seeks tomake good that lacuna. What we have done is to split sub-clause (3) into two parts (a) and (b), (a) contains thedefinition of the term "law" as embodied in the originalsub-clause (3), and (b) gives the definition of theexpression "laws in force" which occurs in sub-clause (1) ofarticle 8. I do not think that any more explanation isnecessary.
Mr. Mohd. Tahir: (Bihar: Muslim): Sir, I beg to move:
"That in clause (3) of article 8, for the words `customor usage' the words custom, usage or anything' be substituted."
I do not want to make a long speech. I only want to saythat the word "anything" will be more comprehensive if it isused after the word "usage". It is legal phraseology to say"custom, usage or anything having the force of law". Dr.Ambedkar has moved another amendment. If that amendment isaccepted, I suggest that this amendment also may be acceptedby the House With these words, I move.
Mr. Naziruddin Ahmad: Sir, before I move my amendment,I beg to point out that as a comprehensive amendment hasbeen moved by the honourable Dr. Ambedkar, I think thepresent amendment should be suitably adapted to apply tothat amendment. I wish to move the second part of it only.
Mr. Vice-President: First of all, find out whether heaccepts it or not.
Mr. Naziruddin Ahmad: Unless I argue the matter, hewill not accept it. I think, Sir, this amendment will haveto be accepted.
I beg to move:
That in amendment No. 260 which has been moved by Dr.Ambedkar, the words "custom or usage having the force of lawin the territory of India or any part thereof" be deleted.
Mr. Vice-President: How can you add to that amendmentwithout giving notice? It is out of order. You can only makea suggestion.
Mr. Naziruddin Ahmad: I have already given notice of anamendment to the original article. In view of the amendmentof Dr. Ambedkar, there should be consequential changes.
Mr. Vice-President: All right.
Mr. Naziruddin Ahmad: Sir, I hate to waste the time of the House, but I wish to ask the House to consider theabsurdity that these words which I seek to delete will leadto. The absurdity is that in the first part of clause (3) wesay that "law" includes "custom or usage having the force oflaw in the territory of India or any part thereof". Regardedapart from the context, this is absolutely unexceptionable.Law must be supposed to include "custom or usage having theforce of law", but we must look to the application of thedefinition in the context. This must be read along withclause (2) of article 8. In clause (2) it is stated that"the State shall not make any law which takes away orabridges the rights conferred by this Part and any law madein contravention of this clause shall, to the extent of thecontravention, be void". I respectfully draw the attentionof the House to the word "make" in line I and to the word"made" in line 3 of sub-cause (2). Sir, you say that "theState shall not make any law" and also that "law includescustom or usage having the force of law". Therefore applyingthe explanation in clause 3(a) to clause (2), what is saidis "the State shall not make any law, i.e., `make' anycustom or usage having the force of law". The point is that"custom or usage having the force of law" is not `made' byanybody. It grows.
"Custom" has been defined in the OxfordDictionary as follows:--
"Custom means in law the usage which by continuance hasacquired the force of law or right especially the specialuse of a locality, trade, society or the like."
Therefore in no sense a custom is made by the State. Acustom is made usually by the people of a locality or afamily or group or the like. It is made by continuance of anobservance. Here you use the words "the State shall not makeany law, i.e. custom or usage having the force of law". Evenin independent India the State cannot have any hand in themaking of a custom or usage having the force of law. I thinkthese words should be deleted. These are the difficultieswhich beset me at every stage. I submit, Sir, that thesewords are not happy in the context and should be deleted.
The Honourable Shri B. G. Kher: (Bombay: General): Sir,the wording is `includes', not "means".
Mr. Naziruddin Ahmad: I am very glad for the kindinterruption. It does not remove my difficulties at all.Does it mean to say that the State `makes' a custom orusage? Still you have the difficulty to face that the Statehas to make a law including custom or usage.
The Honourable Shri B. G. Kher: Of course, it means`whenever necessary That is always understood in law. I amsorry to interrupt.
The Honourable Dr. B. R. Ambedkar: Probably he may notfind it necessary to continue his speech if I refer to himthis fact, namely, that the expression "law" in (3) (a) hasreference to law in 8(1).
Mr. Naziruddin Ahmad: I am again grateful for the kindinterruption of Dr. Ambedkar that the words `custom andusage' have the force of law and so forth. This explanationapplies also to clause (2), that is, the State shall notmake any law. My remarks do not relate to article 8(1) butto 8(2). The difficulty is exactly where it was. I am notwiser, though happier for the kind unterruption.
(Amendments Nos. 263 and 264 were not moved).
Mr. Vice-President: Article 8 is now open for generaldiscussion.
Honourable Members: We should like to adjourn now.
Mr. Vice-President: As there seems to be a differenceof opinion, the House stands adjourned till 10 o'clocktomorrow.
Shri Satyanarayan Sinha: (Bihar: General): We shallmeet on Monday.
Mr. Vice-President: I should have thought that as wewere very anxious to have the money of the country, we wouldalso meet on Saturday. The House stands adjourned till teno'clock on Monday.
The Assembly then adjourned till Ten of the Clock onMonday, the 29th November 1948.