CONSTITUENT ASSEMBLY OF INDIA - VOLUME VII


Monday, the 29th 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.

TAKING THE PLEDGE AND SIGNING THE REGISTER

The following Member took the Pledge and signed the Register:

Shri Balwant Singh Mehta (United State of Rajasthan).

STATEMENT re FUTURE PROGRAMME

Mr. Vice-President (Dr. H. C. Mookherjee): Before we start discussion of article 8, which has not yet been put to the vote, I beg leave to inform the House that at one time it was decided, of course informally, that we should meet tomorrow from 3 P. M. to 8 P. M., then a large number of Members represented to me that it would be inconvenient for various reasons. Therefore from tomorrow we shall meet at 9-30 A. M. and carry on till 1-30 P. M. That would give usfour hours of work daily.

The second thing which I have to tell the House is that we shall meet upto the 13th of December and then break up,and reassemble on the 27th December. The exact time will be notified hereafter.

Article 8--(contd.)

Mr. Vice-President: Does any honourable Member wish to speak on article 8? If not, I should like to put it to vote.

Pandit Hirday Nath Kunzru (United Provinces: General):Sir, there is no quorum. I do not want to hold up the proceedings but in a House like this we cannot do anything at all consistently with the rules.

(The bells were rung.)

(There being no quorum.)

Mr. Vice-President: The House stands adjourned fro aquarter of an hour.

The Assembly then adjourned till Twenty-five minutes past Ten of the Clock.

The Assembly reassembled at Twenty-five Minutes PastTen of the Clock, Mr. Vice-President (Dr. H. C. Mookherjee)in the Chair.

TAKING THE PLEDGE AND SIGNING THE REGISTER

Mr. Vice-President (Dr. H. C. Mookherjee): I understand there is another Member who has to sign the roll and takethe pledge.

The following Member took the Pledge and signed the Register:--

Lt. Col. Dalel Singh (United State of Rajasthan).

STATEMENT re TIME OF MEETINGS

Mr. Vice-President: For the benefit of those Members who did not attend the House in time, I have to announcehere again that from to-morrow we shall assemble at 9-30 A.M. and continue up to 1-30 P. M. and that we shall hold thelast meeting of the current session on the 13th andreassemble on the 27th December. Our last day will be the13th December and we shall reassemble on the 27th December;the exact time will be announced hereafter.

May I in all humility suggest that it is improper onthe part of Members to be unpunctual in attending the House?We have lost 20 minutes in this way to-day and I do not knowhow we shall be able to explain it to the public (Hear,hear).

Mr. Vice-President: Shall we resume discussion ofarticle 8? Is there any honourable Member who wishes tospeak on it?

The Honourable Dr. B. R. Ambedkar (Bombay: General):Mr. Vice-President, the amendment of Mr. Naziruddin Ahmad, I think, creates some difficulty which it is necessary toclear up. His amendment was intended to remove what hecalled an absurdity of the position which is created by theDraft as it stands. His argument, if I have understood itcorrectly, means this, that in the definition of law we haveincluded custom, and having included custom, we also speakof the State not having the power to make any law. Accordingto him, it means that the State would have the power to makecustom, because according to our definition, law includescustom. I should have thought that construction was notpossible, for the simple reason that sub-clause (3) ofarticle 8 applies to the whole of the article 8, and doesnot merely apply to sub-clause (2) of article 8. That beingso, the only proper construction that one can put or it ispossible to put would be to read the word `Law'distributively, so that so far as article 8, sub-clause (1)was concerned, Law would include custom, while so-far assub-clause (2) was concerned, `Law' would not includecustom. That would be, in my

judgment, the proper reading,and if it was read that way, the absurdity to which myFriend referred would not arise.

But I can quite understand that a person who is notproperly instructed in the rules of interpretation ofStatute may put the construction which my Friend Mr.Naziruddin Ahmad is seeking to put, and therefore to avoidthis difficulty, with your permission, I would suggest that in the amendment which I have moved to sub-clause (3) ofarticle 8, I may be permitted to add the following wordsafter the words "In this article". The words which I wouldlike to add would be--

"Unless the context otherwise requires"

so that the article would read this way--

"In this article, unless the context otherwiserequires--

(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 . . . .' "

I need not read the whole thing.

So, if the context in article 8 (1) requires the termlaw to be used so as to include custom, that constructionwould be possible. If in sub-clause (2) of article 8, it is not necessary in the context to read the word law to includecustom, it would not be possible to read the word `law' toinclude custom. I think that would remove the difficultywhich my Friend has pointed out in his amendment.

Mr. Vice-President: I shall put the amendments, one byone, to vote. I am referring to the numbering of the amendments in the old list.

I put amendment No. 252, standing in the name of Mr.Mahboob Ali Baig to vote. The question is:

"That the proviso to clause (2) of article 8 be deleted."

The amendment was adopted.

Mr. Vice-President: Then I put amendment No. 259,standing in the name of Shri Lokanath Misra. The questionis:

"That after clause (2) of article 8, the following newclause be inserted and the existing clause (3) be renumberedas clause (4) :--

(3) The Union or the State shall not undertake any legislation, or pass any law discriminatory to some community or communities or applicable to some particular community or communities and no other."

The amendment was negatived.

Mr. Vice-President: Then I put amendment No. 260, asamended by Dr. Ambedkar. The question is:

"That for clause (3) of article 8, the following be substituted:--

(3) In this article, unless the context otherwiserequires,

(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 on 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 repeated, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.'"

The amendment was adopted.

Mr. Vice-President: The question is:

"That in clause (3) of article (8) for the words`custom or usage' the words `custom, usage or anything' be substituted."

The motion was negatived.

Mr. Vice-President: The question is.

"That in clause (3) of article (8) for the words`custom or usage having the force of law in the territory ofIndia or any part thereof' be deleted."

The motion was negatived.

An Honourable Member: May I know whether you arereferring to the old or new list of amendments?

Mr. Vice-President: I was referring to the old list for the purpose of convenience. Henceforward we shall goaccording to the numbering in the new list, which was, Iunderstand, distributed to honourable Members last evening.

The question is:

"That article 8, as amended, stand part of the Constitution."

The motion was adopted.

Article 8, as amended, was added to the Constitution.

Pandit Balkrishna Sharma (United Provinces: General):There are some other amendments to article 8 in the form ofinserting a new article 8-A.

Mr. Vice-President: Those are new articles which willbe

taken up presently.

Amendments Nos. 266 to 269 and 272 relate to languageand script, which should stand over as that has been thedecision of the House. I shall take up Amendment No. 270standing in the name of Prof. K. T. Shah.

Prof. K. T. Shah (Bihar: General) : Sir, I beg to move:

"That after article 8, the following new article beadded :--

`8-A. Unless the context otherwise requires, the Rightsof Citizens herein defined in this Part of the Constitutionshall be deemed to be the obligation of the State asrepresenting the community collectively : and theobligations of the citizens shall be deemed to be the Rightsof the State representing the community collectively.'"

Sir, I do not wish to waste the time of the House. MayI point out that this amendment is in substance the same aswas rejected by the House when it was considering theDirectives. I think the old number was 848. In substance itamounts to the same thing. I can make out a case to showthat it is slightly different, both in numbering and perhapsin intention, but as I have no desire to waste the time of the House, I would beg leave to withdraw this amendment, asit seeks to make rights and obligations of the State andcitizen conversely obligations and rights.

Mr. Vice-President: Has the honourable Member thepermission of the House to withdraw his amendment?

The amendment was, by leave of the Assembly, withdrawn.

Prof. K. T. Shah: Sir, if I may speak against myself,it seems to me, Amendment No. 271 on the List is somewhatout of order, because it is a mere recommendation to theDraftsman to insert a clause, rather than a specificamendment, or a clause itself. I do not wish to move it.

Mr. Vice-President: The next amendment is No. 273 in the new list in the name of Mr. L. N. Misra.

Shri Lokanath Misra (Orissa: General): Sir, I beg to move:

"That after article 8, the following new article 8-A be inserted :--

`RIGHT OF SUFFRAGE AND ELECTION

8-A. (1) Every citizen who is not less than 21 years ofage and is not otherwise disqualified under thisConstitution or any law made by the Union Parliament or bythe Legislature of his State on any ground, e.g., non-residence, unsoundness of mind, crime or corrupt or illegalpractice, shall be entitled to be registered as a voter atsuch elections.

(2) The elections shall be on the basis of adultsuffrage as described in the next preceding sub-clause butthey may be indirect, i.e., the Poura and Grama Panchayatsor a group of villages, a township or a part of it having aparticular number of voters or being an autonomous unit oflocal self-government shall be required to elect primarymembers, who in their turn, shall elect members to the UnionParliament and to the State Assembly.

(3) The Primary Members shall have the right to recallthe member they elected to the Parliament or the Assembly of the State.

(4) A voter shall have the right to election and thecost of election shall be met by the State.

(5) Every candidate must be elected by the People andeven if there is no rival, no candidate shall be electedunless he gets at least 1/3 of the total votes'"

Sir, in moving this new article I have in mind theelections that are to come on the basis of adult suffrage.As a worker in the villages and as a man knowing his ownpeople I beg to submit that this new article I propose willgive real prestige and meaning to adult suffrage anddemocracy. I would submit that although I am not yet a manwho would carry weight in the House, in the name ofdemocracy, democracy of the intelligent will, we must frameour election rules for adult suffrage in such a manner thatwe will not reduce democracy to ridicule or adult suffrageto a sham. The first paragraph and the first sentence of the2nd paragraph of this new article I propose are justreproduction of articles 67(6) and 149(2). Therefore I neednot say much about this.

Paragraph (2) is very important and we have almostdecided that the next elections or the future electionsshall be on the basis of adult suffrage. It means that everycitizen who is not otherwise

disqualified under the statuteand is 21 years of age or more shall be entitled to be avoter, and will elect members to the Union Parliament or theState Assemblies. This is a great aspiration, but we knowour people. They are simple, they are good. But they are notas clever or as intelligent as the diplomats or the membersthat will be coming to represent them in the many Houses.While granting adult suffrage we must save it and shape itby making such an arrangement that every adult who isentitled to be a voter will be in a position to choose hisrepresentative intelligently and correctly. Not only that;having chosen his representative intelligently andcorrectly, he will be in a position every moment to assesswhat his representative does in the many Houses, either atthe Centre or in the States. You will see from the Draft Constitution that for every 750,000 persons we will have onerepresentative in the Union Parliament. I beg to submit thatthat is too big a number, and unless we do not mean what wesay, it will be difficult for one member to educate those750,000 people, to do them any good, to serve them, to knowtheir mind, and having known their mind to come to the Houseand represent their grievances and do whatever is possiblefor them. I therefore submit that adult suffrage should beindirect--indirect in the sense that having decided theconstituencies which, let us say, will be a regionconsisting of about 750,000 voters, we will divide thatconstituency into local self-governing units and these unitswill be required to elect their primary members. Suppose wehave 750,000 people. Granting that every village or self-governing unit has about 1,000 voters, we will have about750 units. Suppose every unit has a panchayat whose numbermight be three or five, we will have 750 x 5, that is, about3,750 primary members. And those 3,750 primary members willbe required to elect their representative either to theUnion Parliament or to the State Assembly. If that happensit will be quite good because those 750,000 people will beelecting their primary members to a strength of 3,750, andthose 3,750 members will use their discretion and they willknow the man they will be selecting as their representative.That will be a healthy and real process of election. If that is not going to be done, we all know what happens and therefore will happen in elections. We may raise a dust; wemay make a hue and cry; raise slogans and mesmerism. In aday or two in course of one month in five years we will belecturing, speaking and rais ing the emotions of people andasking them for party devotion. The result will be that onlyfor a month in five years people will be in terrifying touchwith the political busy-bodies. We would be giving themhopes and those hopes will dash down and evaporate as soonas the elections are over. That will not be a desirable realthing. If we really mean that adult suffrage will beeducating the people and elections will be an instructiveprocess, we can have no other way of achieving our objectthan by dividing the constituencies into local self-governing units--manageable units. Those units will be inclose touch with the representatives and the representativeswill be in touch with the units, and there will result areal process of instruction, advice and guidance. I beg tosubmit that it has been a great shame that democracy worksin the name of the people, but the people are nowhere in the picture. For men are little and their capacity cannot transcend their limited experience orgrow except by continuous building upon their historic andtraditional past. They can control great affairs only byacting together in the country and controlling small affairsand finding through experience men whom they can entrustwith larger decisions. This is how they can talk rationallyfor themselves. Democracy can work only if each state ismade up of a host of little democracies and rests, not onisolated individuals however great, but on groups smallenough to express the spirit of neighbourhood and personalacquaintance. I hope I need not speak much about that. Thisgreat

House, this learned House, this responsible Houseknows and can picture the state of things that will happenwhen there will be adult suffrage. It is a vast thingwithout yet any plan or arrangement. By that we may get someparty strength, but we cannot educate the people and givethem the strength and the author ity that they really possessor ought to possess.

Coming to (3)--primary members shall have the right torecall the member they elected to the Parliament or theAssembly of the State--this is a very real fundamentalright. We know that when we are returned to the Assemblieswe come there as representing the masses for five years. Butwhat we care for is the party caucus--the high command--andif it is pleased we are all right. We do not care for thepeople. I therefore submit that if we are to be real membersrepresenting the people, our first concern should be thepeople. They must be our masters. If we serve them well weare there; if we do not we must go out. But that does nothappen now. Therefore it is essential that if people have aright to elect members they must have the right to recallthem if things go wrong. The right to recall is a fundamental right in democracy. Unless we have that wecannot have proper democracy. I therefore submit to you thatif we are going to give the people a right to elect theirrepresentatives who will rule in their name, we must at thesame time give them the right to recall the representativeif things go wrong. In fact what happens here is, we do notcare for the people; there is somebody high up and heselects people. He says so and so must be elected and it isdone. Therefore the selected person's primary business is tolook up and not down. It is a bad state of democracy and Isay we must stop it.

Then regarding (4),--a voter shall have the right toelection and the cost of election shall be met by the State--I say so, because to come to the Assembly is not aprofession or a profiteering business. If that is theconcern of the State and if a person who comes to theAssembly comes to serve the people, it is necessary that theState must see that his election expenses are borne by theState. Otherwise some landlords and some capitalists willbuild up a party to set up candidates and those candidateswill be returned. Let us say here is a poor man, a goodworker, an honest man ; but he has neither the money nor theparty backing. The result is he cannot stand for election.It he stands he comes to ridicule. If you say that theelection is as much in the interest of the State as the President or the Ministers or the bureaucracy, you must saythat in the same manner as they are brought to being,legislative members should also come to the Assembly, theState bearing their election expenditure in a regulated and therefore in the least expensive and most organized manner.This may be laughable, but this is just and fair and unlesswe make such a provision no sincere, honest and real workercan be returned at least for the next fifteen or twentyyears. If we do not do so now, we invite only revolution.And revolution will make everything topsy-turvy. It will have to be done, then by the fire of the people instead of our intelligent understanding, if we chose it now. Thereforethe cost of the elections must legitimately and in fairnessto the cause be borne by the State because election as such is a State affair and is not a private concern. It neednot stagger us now. We must not allow members to comecalculating profit and loss, calculating how much money theywill be making in five years and therefore how much they maybeg, borrow or steal for this parliamentary investment.

Mr. Vice-President: Mr. Misra, I must now ask you tostop because you have had two instalments.

Shri Lokanath Misra: All right, Sir.

Shri Algu Rai Shastri (United Provinces: General):*[Mr. President, I rise to oppose the amendment moved by myFriend. My first reason for doing so is that it has norelation to the question raised here. Matters relating toelections have been dealt with in the Draft Constitution ato ther places where it has been stated

as to how the legislature shall be formed, who shall be the members of the legislatures; what shall be their rights; what shall be theprocedure of their elections. Amendments of this nature maybe moved in the article dealing with such things. This amendment is totally irrelevant to Fundamental Rights of theDraft Constitution. This is my first reason. Moreover, myFriend proposes therein that the State should incur theexpenses of election for all the candidates seekingelection. He says that seeking election to any Legislativeis not a business proposition for any candidate.Consequently it is very necessary that the State should bearthe election expenses. My worthy Friend has forgotten thefact that if the State begins to practice this generosityevery one whose name may appear on the electoral roll andwho may be eligible for election will seek election--if notfor any other reason, at least for the fun of it. No statein the world can hope to remain financially solvent if itadopts the practice of bearing the election expenses of thecandidates. As there would be no financial risk involved inseeking election, for the State would be bearing them all,and as every one would have the freedom to seek election, Iam afraid that every one would try his luck especially whenhe would not be losing anything in particular by beingdefeated at the polls. It is very improper to move anamendment that contains such a proposal or to support itenthusiastically on the ground that it is very important andensures democracy and smooth functioning of the Government.This amendment should be rejected outright and should neverbe accepted.]

The Honourable Dr. B. R. Ambedkar: I cannot accept this amendment.

Mr. Vice-President: The question is:

"That after article 8, the following new article 8-A be inserted :--

`RIGHT OF SUFFRAGE AND ELECTION

8-A. (1) Every citizen who is not less than 21 years ofage and is not otherwise disqualified under thisConstitution or any law made by the Union Parliament or bythe Legislature of his State on any ground, e.g., non-residence, unsoundness of mind, crime or corrupt or illegalpractice, shall be entitled to be registered as a voter atsuch elections.

(2) The elections shall be on the basis of adultsuffrage as described in the next preceding sub-clause butthey may be indirect, i.e., the Poura and Grama Panchayatsor a group of villages, a township or a part of it having aparticular number of voters or being an autonomous unit oflocal self-government shall be required to elect primarymembers, who in their turn, shall elect members to the UnionParliament and to the State Assembly.

(3) The Primary Members shall have the right to recallthe member they elected to the Parliament or the Assembly of the State.

(4) A voter shall have the right to election and thecost of election shall be met by the State.

(5) Every candidate must be elected by the People andeven if there is no rival, no candidate shall be electedunless he gets at least 1/3 of the total votes.'"

The motion was negatived.

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

* [] Translation of Hindustani speech.

Article 9

Mr. Vice-President: The motion before the House is:

that article 9 form part of the Constitution.

Shri C. Subramaniam (Madras: General): Sir, I move:

"That the second para. of clause (1) of Article 9 benumbered as new clause (1a), and the words `In particular'in the new clause so formed, be deleted."

The reason for the amendment is this: article 9 as itstands is a little bit misleading. 9(1) says: "The Stateshall not discriminate against any citizen on grounds onlyof religion, race, caste, sex or any of them". Then it says:"In particular, no citizen shall, on grounds only ofreligion, race, caste, sex or any of them, be subject to anydisability, liability, restriction or condition with regard to--

(a) access to shops, public restaurants, hotels andplaces of public entertainments, or...........".

It would look as if, after a general clause saying thatthe State shall not discriminate, we give instances wherein

the State shall not discriminate by using the words `Inparticular'. As a matter of fact it is not so. After the words `In particular' that clause refers to access to shops,etc. That is not a case where the State has the power todiscriminate. Therefore it should read as a separate clause.That is why I have suggested that the words `In particular'should be removed and it should form a separate clause as 9(1a) thus: "No citizen shall, on grounds only of religion,race, caste, sex or any of them be subject to anydisability,........".

Mr. Vice-President: The Member who has given notice of amendment No. 276 may now move the second part of it, viz.,to insert the words "discrimination" and "and publicworship" after the words `liability' and `public resort'respectively.

(The amendment was not moved.)

Mr. Vice-President: The next two, (277 and 278) areverbal amendments and are therefore disallowed. The words"class or community" are, in my opinion, not necessary.These are implied in the word `religion'.

Amendment No. 282 standing in the name of Shri PrabhuDayal Himatsingka is a comprehensive amendment and may nowbe moved.

As the Member is absent, Syed Abdur Rouf may moveamendment No. 280.

Syed Abdur Rouf (Assam: Muslim): I move, Sir:

"That in Article 9, after the word `sex' wherever itoccurs, the words `place of birth' be inserted."

The intention of this article is to prohibitdiscrimination against citizens. We have prohibiteddiscrimination on grounds of `religion, race, caste or sex'.But I am afraid, Sir, the evil elements who might attempt tomake discrimination against citizens will do so not on theground of religion, race, caste or sex. To attempt to makediscrimination on grounds of religion will be too frontal anattack for anybody to dare. As for caste, the same argumentapplies. As for "sex", I do not think that in the middle of the twentieth century there will be anybody attempting tomake any discrimination on that ground. What was possible inbygone days is not possible now. Now, let us examine whetherthe word "race" can save the situation. Race has got a verycomprehensive meaning and applies in cases like the Aryan race, the Dravidianrace, the Mongolian race, etc. If anybody wants to make anydiscrimination on the ground that a particular gentlemanbelongs to a particular province, the word "race" cannotstand in his way. In my opinion attempts may be made to makediscrimination against citizens on ground of place of birthand that under the guise of local patriotism. To guardagainst this possibility, I have brought in this amendmentand I hope that it will be accepted.

Mr. Vice-President: I will not allow amendment No. 279to be moved but it will be put to the vote. We next come to amendment No. 281. I regard this amendment as merely verbaland therefore over-rule it. Then we come to amendments Nos.283 and 285. Amendment No. 283 may be moved. Professor K. T.Shah.

Prof. K. T. Shah: It is more or less the same as theone moved recently and I do not wish to waste the time to the House by further remarks.

(Amendments Nos. 285, 284, the latter part of 288, and No. 291 were not moved.)

Mr. Vice-President: Then we come to amendment No. 286,first part. This is merely a verbal amendment and thereforeit is disallowed. I need hardly point out that the word"creed" is unnecessary in view of the more comprehensiveword "religion". Then we come to amendment No. 286, secondpart. Amendments Nos. 293 to 301, 304, 305, 306 and 208, areall amendments of similar import and therefore are to beconsidered together. It seems to me that amendment No. 293standing in the name of Professor K. T. Shah is the mostcomprehensive.

Prof. K. T. Shah: Mr. Vice-President, Sir, I beg to move:

"That in clause (1) of article 9, for sub-clauses (a)and (b) the following be substituted :--

`any place of public use or resort, maintained whollyor partly out of the revenues of the State, or in any wayaided, recognised, encouraged or protected by the State, orplace dedicated to the use of general public like schools,colleges, libraries,

temples, hospitals, hotels andrestaurants, places of public entertainment, recreation oramusement, like theaters and cinema-houses or concert-halls;public parks, gardens or museums; roads, wells, tanks orcanals; bridges, posts and telegraphs, railways, tramwaysand bus services; and the like.' "

Sir, in seeking to move this amendment, I am not merelytrying to give a list of places of public use or resort, orthose dedicated to public service, from which in the pastdiscrimination has been made and individuals of particularcommunities or classes have been excluded for no otherreason except their caste or birth. In a Constitutionfounded upon the democratic equality of all citizens, I think it would be absurd, it would be wholly out of place,to allow any such discrimination being made. All places,therefore, which are either wholly or partly maintained outof public funds, or in any way encouraged, supported orprotected by the State, should be accessible, I suggest, inequal measure to all citizens irrespective of caste, sex,birth, etc.

Clearly this is the intention of the article, and I amonly seeking to expand and express it more clearly than hasbeen done in the wording of the article as it stands. It isthe more so as, in later articles, there seems to have beensome exceptions introduced which might permitdenominational, sectarian, or communal institutions not onlyto flourish; but to flourish at the cost of the public. I think it would be a very vicious principle if we toleratethis kind of exclusiveness which would be a blot on realdemocracy. If you mean definitely and clearly that thereshall not be any sectarian or denominational exclusiveness;if you mean definitely and clearly that places of suchutility as schools, or hospitals or asylums shall not bereserved for any reason for the members of a given sect orcommunity, then I think it is not too much to demand thatthese should be made open and accessible to all citizens of this country. And because wehave had in the past very distressing experience of, let ussay, wells not being allowed to be used by members of aparticular class, or canals not being allowed to be usedexcept on certain occasions or under certain conditions, andstill more so, schools, hospitals and other places of thiskind which are of very urgent public necessity, I think itwould be not acting up to the ideals of this Constitution If there is not perfect and real equality amongst the citizensof this country.

The excuse is often made that a given institution ismaintained, or at least initially founded, by some donationsof a munificent member of a given community, and that in hisoriginal deed of trust setting up the institution andproviding the funds, he makes it a condition that onlymembers of a given community or members of a given caste orsub-caste are to be admitted to the benefits of such aninstitution. I think it is a lack of civic sense, andevidently against the idea of equality of citizenship, thatsuch institutions were maintained exclusively orpredominantly for certain communities.

In the past, when the Government of the country was in the hands of an alien race, and that race itself wasdeliberately making exclusion against the children of thesoil a common feature of this policy for holding thiscountry by maintaining clubs, hospitals, schools and othersuch places for their own compatriots so to say, there couldbe some understanding why their example might be followedalso by those, at any rate, who imitated them in mostrespects. But now that principle,--the cause of allexclusiveness, is no more in this country, now that we aredirectly recognis ing and founding our constitution on theequality of all citizens, I submit that to introduce orpermit exclusiveness in any way, whether directly stated orthrough a provision like this included in the Constitution,will make for a tendency of exclusiveness which should bereprobated by us, and should be therefore disallowed.

Our Constitution should make it expressly clear thatall citizens being equal, their public institutions, andplaces of public

resort, etc., which I have mentioned in myamendment, should be quite open, and must be open, to allthose who are citizens of the country. There may be, it ispossible, some claim that any particular class or communitybears the cost of maintenance, if not wholly, at least inpart, on its own shoulders. I have tried to make the amendment so far comprehensive that, even where aninstitution of this kind, or a place of public resort ofthis kind, is founded exclusively and maintained entirely bythe donation of any particular individual, if it receivesany public recognition, protection, safeguard, orencouragement of any kind, from a public author ity, it wouldcome within the scope of this article and as such would bemade accessible to all equally.

I do not think that in any such provision, there wouldbe any injustice to any vested interests, not only becausefrom its very start such a vested interest would be regardedas objectionable in my eyes. It would be open to suchmunificent founders without losing so to say their cheap andeasy method of securing immortality for themselves, to widenthe terms of that trust, if the trust deed stands in theway, and make it possible for all to enjoy the benefits oradvantages of such an institution equally.

We have had in every city in India, such exclusiveinstitutions devoted to a sect. Recently we had adistressing spectacle of a public hospital in Bombay, notbeing accessible to any other community than that of thefounder, which raised a considerable agitation in certainquarters. The refusal of the use of that hospital was openlydefended on the ground that the foundation was a particularclass foundation expressly so stated, and as such notavailable for use to members of other communities.

I think examples like this can be quoted without numberfrom the experience of any place of considerable populationin this country. But the fact that such examples do occur,and that such experience is within the memory and argumentfor us to accept this amendment of mine, and make itimpossible hereafter to authorize any person or any community or class to say that given institution, whetherschool, temples, hospitals, theaters, restaurants or whatnot shall be exclusively reserved for their benefit, if in the slightest degree it receives financial help orassistance or encouragement or safeguard from the State. Ihope the amendment will commend itself to the House and theprinciple of it will be incorporated in the Constitution.

(Amendments No. 38 of List I, Nos. 294, 295, 296, 297,298, 300, 301, 304, 305, 306, 308, and 287 were not moved.)

Mr. Vice-President: Amendment No. 288 standing in thename of Mr. Naziruddin Ahmad consists of three separateamendments. The first amendment is merely verbal and istherefore disallowed. The second and third are the same asamendments Nos. 278 and 284. I am therefore not allowingthese also.

(Amendments Nos. 292 and 302 were not moved.)

Shri Guptanath Singh (Bihar: General): Sir, I have notcome here to compete with my honourable Friends who tableand move irrelevant and useless amendments, but I have comehere to make.......

Shri H. V. Kamath (C. P. and Berar: General): Mr. Vice-President, is the honourable Member in order in making sucha statement in this House?

Mr. Vice-President: I think you had better go on withyour speech.

Shri Guptanath Singh: I have come, Sir, to move thislittle amendment to make the article comprehensive. So, Sir,with your permission, I beg to move:

"That in sub-clause (b) of the second paragraph ofclause (1) of article 9, after the words `wells, tanks,' the words `bathing ghats' be inserted."

I have deleted the word `kunds' from the originalamendment and I only want that "bathing ghats" should beincluded here.

Amendments Nos. 307 was not moved.)

Mr. Vice-President: Amendments Numbers 309 and 322 arethe same. Amendment No. 322 is more comprehensive. I shallallow that amendment to be moved at the proper time.

Then, amendments Nos. 310, 312, 320 and 321 are ofsimilar import. Of these I think amendment No. 310 is themost

comprehensive one.

(Amendment No. 310, 312, 320 and 321 were not moved.)

Mr. Vice-President: So, these amendments go. Then, wetake up amendment No. 311.

(Amendment No. 311 was not moved.)

Mr. Vice-President: Amendment No. 313 is disallowed asbeing verbal. Amendment No. 314. Dr. Ambedkar.

Shri H. V. Kamath: Mr. Vice-President, Sir, may I askwhether this is not merely a verbal or at best a formalamendment liable to be disallowed? It merely seeks tosubstitute the words `State funds' in place of the words`the revenues of the State'.

Mr. Vice-President: I shall keep that in mind. Dr.Ambedkar, will you please deal with that point also?

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

"That in sub-clause (b) of the second paragraph ofclause (1) of article 9, for the words `the revenues of theState' the words `State funds' be substituted."

The reason why the Drafting Committee felt that the words "the revenues of the State" should be replaced by the words "State funds" is a very simple thing. In theadministrative parlance which has been in vogue in India fora considerably long time, we are accustomed to speak ofrevenues of a Provincial Government or revenues. That is theterminology which has been in operation throughout India inall the provinces. Now, the honourable members of the Housewill remember that we are using the word `State' in thisPart to include not only the Central Government and theProvincial Governments and Indian States, but also localauthor ities, such as district local boards or taluka localboards or the Port Trust author ities. So far as they areconcerned, the proper word is `Fund'. It is thereforedesirable, in view of the fact that we are making theseFundamental Rights obligatory not merely upon the CentralGovernment and the Provincial Governments, but also upon thedistrict local boards and taluka local boards, to use awider phraseology which would be applicable not only to theCentral Government, but also to the local boards which areincluded in the definition of the word `State'. I hope thatmy honourable Friend Mr. Kamath will now understand that the amendment which I have moved is not merely verbal, but hassome substance in it.

Sir, I move.

Mr. Vice-President: There is an amendment to amendmentNo. 314. That is amendment No. 40 in List I standing in thename of Pandit Thakur Das Bhargava. He is not here.Therefore, I need not discuss the relevancy or otherwise ofthis particular amendment. The next one is amendment No. 41in List I, in the name of Shri Phool Singh. He is alsoabsent. We now pass on to amendment No. 315 standing in thename of Mr. Mohd. Tahir and Saiyid Jafar Imam.

Mr. Mohd. Tahir (Bihar: Muslim): Sir, with yourpermission, I want to bring to your notice that I had oneamendment No. 286. We have not decided anything about thatamendment. Of course, the first part has been disallowed;the second part still remains.

Mr. Vice-President: I said that that will be put to thevote. Now, I cannot allow you to speak on that. If I make anexception in your favour, everybody else would claim thesame right.

But, I think I have to make one point clear. This doesnot preclude the honourable Member from speaking on hisamendment No. 286 if he gets a chance to speak whileparticipating in the general discussion.

Mr. Mohd. Tahir: Sir, I beg to move "That in sub-clause (b) of clause (1) of article 9, for the words `State or dedicated to the use of the generalpublic' the words `State or any local author ity or dedicatedto the use of the general public and any contravention ofthis provision shall be an offence punishable in accordancewith law' be substituted."

Sir, in moving this amendment I submit that so far asthe first part of my amendment is concerned, viz., theaddition of `local author ity,' I do not press because thedefinition which has been given of `State' includes localauthor ity as well and therefore I do not press it. But sofar as the penal clause is concerned, I will submit a fewwords and I will press it. Sir, in fact this article in ourConstitution gives us a lesson that we

should realise theequality of human beings as such and therefore it isnecessary that some penal clause should be added in this article. For your information I maybring it to your notice and to the notice of the House aswell that in certain parts of our country as we know thereare roads through which the people of scheduled castes andother low castes are not allowed to walk. In certain partsof our country we have found that if a scheduled caste mangoes to draw water from the well, he immediately meets withhis death. These are the sentiments which are working in theminds of certain sections of our country and therefore if weare really sincere that we are going to give relief to thosewho have been disregarded so long, then I submit that thispenal clause must be added in this article. In view of thisI hope that the whole House will agree, if at all they aresincere to give this relief to the general people, to addthis penal clause and accept my amendment as such. With these few words, I move.

Mr. Vice-President: Amendments Nos. 316 to 319 notmoved. No. 323 Prof. K. T. Shah.

Prof. K. T. Shah: Sir, I beg to move:

"That at the end of clause (2) of article 9, thefollowing be added:--

`or for Scheduled Castes or backward tribes, for theiradvantage, safeguard or betterment.'"

The clause, as it is, stands thus:--

"Nothing in this article shall prevent the State frommaking any special provision for women and children."

Sir, it must be distinguished from the precedingarticle. I read it, at any rate, that this is a provisionfor discrimination in favour of women and children, to whichI have added the Scheduled Castes or backward tribes. Thisdiscrimination is in favour of particular classes of oursociety which, owing to an unfortunate legacy of the past,suffer from disabilities or handicaps. Those, I think, mayrequire special treatment; and if they do require it, theyshould be permitted special facilities for some time so thatreal equality of citizens be established.

The rage for equality which has led to provide equalcitizenship and equal rights for women has sometimes foundexception in regard to special provisions that, in the longrange, in the interest of the country or of the race,exclude women from certain dangerous occupations, certaintypes of work. That, I take it, is not intended in any wayto diminish their civic equality or status as citizens. It is only intended to safeguard, protect or lead to theirbetterment in general; so that the long-range interests of the country may not suffer.

In regard to the scheduled castes and backward tribes,it is an open secret that they have been neglected in thepast; and their rights and claims to enjoy and have thecapacity to enjoy as equal citizens happens to be denied to them because of their backwardness. I seek therefore by thismotion to include them also within the scope of this sub-clause (2), so that any special discrimination in favour of them may not be regarded as violating the basic principlesof equality for all classes of citizens in the country. Theyneed and must be given, for some time to come at any rate,special treatment in regard to education, in regard toopportunity for employment, and in many other cases wheretheir present inequality, their present backwardness is onlya hindrance to the rapid development of the country.

Any section of the community which is backward mustnecessarily impede the progress of the rest; and it is onlyin the interest of the community itself, therefore, that it is but right and proper we should provide facilities so thatthey may be brought up-to-date so to day and the uniformprogress of all be forwarded.

I have, of course, not included in my amendment thelength of years, the term of years for which some suchspecial treatment may be given. That may be determined by the circumstances of the day. I only wantto draw your attention to the fact that there are classes of our citizens who may need through no fault of theirs, somespecial treatment if equality is not to be equality of nameonly or on paper only, but equality of

fact. I trust thiswill commend itself to the House and the amendment will beaccepted.

Mr. Vice-President: Now the article is open for generaldiscussion. I call upon Mr. Raj Bahadur of Matsya Union tospeak.

Shri Raj Bahadur (United State of Matsya): Mr. Vice-President, Sir, as you announced to-day in this House thatamendments Nos. 280, 282 and 279 would be taken up fordiscussion, I studied them again and a new meaning, whichdid not occur to me previously, disclosed itself to me. Inamendment No. 280 which was moved by my Friend Syed AbdurRouf, the words used are "place of birth", whereas in the amendment that was to be moved by Mr. Prabhu Dayal, the word`descent' also occurs. It is unfortunate that that amendmentof Mr. Prabhu Dayal has not been moved. Even so, when westudy the article we observe that whereas discrimination issought to be eliminated on other grounds, nothing has beensaid about the discrimination on the basis of descent, onthe basis of privileges enjoyed by some on account of theirdynastic or family status. I, therefore, suggested anamendment to amendment No. 280, to the effect that the words"place of" be deleted, from the words sought to be insertedin the article by the amendment No. 280. It is clear thatthe words "place of" occurring before the word "birth" haverestricted and limited the meaning of the whole amendment to the "place of residence" only. Therefore, if the words`place of' are deleted, we may achieve a double objective.Firstly that the word `birth' when it occurs in the contextof the whole article would imply not only residence, butalso "descent", and as such the purpose which wascontemplated by the mover of the amendment 282 shall besatisfied.

Mr. Vice-President: I said this would be a generaldiscussion but you are putting forward your amendments; Ican hardly allow that. You can speak upon the whole clauseand incidentally refer to your amendment. Kindly excuse meif I ask you to carry out my wish and speak on the articlegenerally.

Shri Raj Bahadur: Yes, Sir. What occurs to me is this.We have seen it in the past and even at present, in thematter of distribution of offices and appointments in theState or in the matter of rights and privileges enjoyed onthe basis of property etc., that there has been somediscrimination on account of "descent"; on account ofdynasty or family status as also on account of factors of anallied nature. It is my humble submission that when we arehere to forge our constitution, we should eliminate allsorts of distinctions aris ing on the basis not only ofreligion, caste, sex etc, but also on the basis of familyand descent. While I agree that the purpose and the ideathat is covered by amendment No. 280 is necessary, I wouldalso suggest that something must be put in this articlewhich may obviate all possibilities of, and eliminate allchances of discrimination, favourit ism, or nepotism, on thebasis of birth or descent. It is common experience, ratherit is a kind of grievance with most of us that in thedistribution of offices and appointments of the State andalso in the services, some discrimination is observed on thebasis of birth and descent. We see it in the recruitment to the Air Force, and to some extent in the Army or elsewherein the services of the Government. It is a grievance with usthat people who are better placed and who happen to be bornwith a silver spoon in their mouth get better chances thanthose born in mud huts or cottages in the villages. Allmust, however, have equal chances.

There is to be a provision in the Constitution to theeffect that there shall be Raj Pramukhs and not Governors,in the States and the States' Unions and in this we observethere would be discrimination again on the basis of birth ordescent, on the basis of one's being a prince or a member ofa royal family or not. That sort of discrimination alsoshould be eliminated. In fact all such discriminationsshould be eliminated.

Shri S. Nagappa (Madras: General): Mr. Vice-President.Sir, this clause as a whole gives independence, especiallyto the class for which this amendment is

intended. I thinkyou are aware that as a result of the hard labour andstruggle under the leadership of Mahatma Gandhi, the countryhas become free politically. But this particular section of the population is doubly free, in that it is not onlypolitically free, but it is also socially free. I hope theHonourable Pandit Jawaharlal Nehru who is the true successorof Mahatma Gandhi will see to it that we in this section of the population are made economically free too and areelevated. Freedom means political, social and economicfreedom. Two aspects of freedom have been covered by thisparticular amendment, thanks to the efforts of Gandhiji whohas brought about such a social revolution.

I would have been much more pleased, if this clausewhich intends to give social rights to this particularcommunity had been more expansive and explanatory. Take forinstance, the question of access to shops. Shops meansplaces where you can purchase things by paying money. Butthere are places where you can purchase service. I wouldlike to know if these places are also included in the word`shop'. When I go to a barber's shop or a shaving saloon, I do not buy anything concrete, but I purchase labour. So alsolaundries. There I purchase the services of a washerman. I would like to know from the honourable the Mover if the word`shop' includes all these kinds of places like laundries andsaloons.

I come to clause (b) where reference is made to placesof public resort maintained wholly or partly out of therevenues of the State. But what about other places which arenot maintained either partly or wholly out of the revenuesof the State? I would request that these words "maintainedwholly or partly out of the revenues of the State" to be deleted. That would be better. Anyway, I would like to getsome explanation from the mover of this clause as to whatplaces are covered by this clauses. I am glad of the socialrevolution brought about by Mahatma Ganhdhi, within such ashort period of years, from 1932 to 1948--only 16 years.Within this short period age-long disabilities andsufferings have been removed. I am confident that it willnot take much time, especially with a statutory provision ofthis sort to carry the reform further. I hope that the PrimeMinisters in the provinces would take note of thisparticular provision and see that before the Act is adopted,even the remaining disabilities vanish away, without waitingfor the adaptation of this Act.

The third aspect of freedom remains, that is, economicfreedom, and I hope that our Prime Minister will look to theeconomic elevation of the downtrodden classes. I support theclause whole-heartedly, and in doing so, request the moverto explain whether the word shop includes places of the kindI have referred to, and also whether places of public resortinclude places like burial or cremation grounds. These arenot maintained out of public revenues or by public bodies,they being generally maintained by religious bodies. I wouldlike to know whether there is to be a separate burial orcremation ground for these unfortunate sons of the soil, orwhether all aspects are covered by this clause. I haveraised this point so that these points may so down in therecord of the proceedings of the House and be useful, ifsome lawyer were to mis interpret the meaning of the clause in some court of law.Most of our courts are courts of law and not justice. One should be more correct in framing the clause. I would liketo know whether the honourable the Mover has considered thisaspect of the matter. If he can include these words not Ishall be pleased: otherwise if he can come forward andexplain whether these disabilities are covered I shall besatisfied. At least it will be on record of the proceedingsof this House, so that lawyers who attempt to misrepresent......

Shri K. Hanumanthaiya (Mysore State): Sir, I take objection to the honourable Member's remarks about lawyers that they are used to "misrepresenting".

Mr. Vice-President: I would ask Mr. Nagappa not to tryto answer the honourable Member.

Shri S. Nagappa: I am not abusing

lawyers. I am onlysaying what they are doing..........

Shri K. Hanumanthaiya: That is worse.

Mr. Vice-President: Mr. Nagappa is not carrying out myrequest.

Shri S. Nagappa: Besides wells and tanks there areother places where one can draw water. I would like to havea full explanatory answer from the honourable the Member.

Sardar Bhopinder Singh Man (East Punjab: Sikh): *[Mr.Vice-President, I feel that the Fundamental Rights, which are being conceded, will be incomplete if places of worshipare not included in the list. It is often seen in life inIndia that the doors of many temples and other places ofworship, meant for the public use, are not kept open for allsections of people by their custodians or Pujaris. This is adark aspect; its prevalence has reduced these centres oflove and fellow-feeling into breeding grounds forcommunalism and mutual hatred. This begets ill-will andhatred against one another. The greatest achievement of theFather of the Nation was to have the gates of temples openedfor the untouchables. Today, we have yet to fulfil thoseexpectations. An argument may be advanced that people, whoare not aware of the ways to be followed and of thereverence to be shown there, cannot be allowed entry intotemples or the places of worship. But my answer to thatwould be that if any such person wants to visit a temple,due precaution should be taken about him. But there is noreason of the discrimination, that one person may be allowedentry while another is stopped from doing so. I say this gapshould be filled up, and this stigma should be removed fromthe face of India. These barriers of religion, which dividepeople of India from one another, should be uprooted forever. Therefore, I wish that this lacuna should be removedby accepting the amendment of Prof. K. T. Shah or amendmentsNos. 296 and 297.]

Mr. Mohd. Tahir: Sir, this article says:

"The State shall not discriminate against any citizenon grounds only of religion, race, caste, sex or any of them.

In particular, no citizen shall, on grounds only ofreligion, race, caste, sex or any of them, be subject to anydisability, liability, restriction or condition with regardto--

(a) access to shops, public restaurants, hotels and places of public entertainment.'

In this connection I have my amendment in which I havesuggested that after the word `hotels' the words"Dharamsalas, Musafirkhanas" be added. Sir we find thatthese two institutions are regularly run throughout ourcountry by private funds. If a traveller who is in need ofaccommodation happens, fortunately or unfortunately, to be ascheduled caste or any other caste man who is not liked bythe management of the Dharamsala he is not allowed to halt in the Dharamsala. And so is the case in respect toMusafirkhanas also. Therefore I submit that these words"Dharamsalas, Musafirkhanas" should be added after the word"hotels".

Prof, Shibban Lal Saksena (United Provinces: General):Sir, this article should not have been put in this form. I would have wished that only the first three lines of thisclause remained in the Draft and the rest were omitted. "TheState shall not discriminate against any citizen on groundsonly of religion, race, caste, sex or any of them," shouldbe enough; by adding the sub-clauses we are reallysubtracting from the generality of the first clause. Ipersonally also think that after we have provided for theabolition of untouchability under article 11, thisparticular sub-clause providing for the elimination ofdisabilities in regard to tanks, wells, roads isunnecessary. So far as such disabilities arise fromuntouchability, nobody will henceforward be able to practisethem. Under article 11 no one can discriminate against anyperson on the ground of untouchability, as it has been madean offence punishable by law. I personally feel that theclause about the use of wells, tanks, roads, etc., does notseem to be worthy of finding a place in our constitution;for such disabilities as exist are merely transitory andwill vanish with time. But if it becomes permanentlyincorporated in the constitution

people in other parts of the world will despise us for the existence of suchdiscrimination in the past. Article 11 is in fairly wideterms, so that every discriminatory action which is supposedto be due to untouchability will be forbidden. I thereforethink that these sub-clauses are unnecessary and all theseamendments would not have been moved if we had confined thearticle to the first three lines only. I may also point outthe revolutionary character of this article. I know thatthere are hundreds of Hindu shops where food is served toHindus only. Food is a matter where Hindus have got specialhabits and they generally will not allow anybody to enterthe place where they eat food. I hope that the Hindu societywill realise that they have now to change those habits andthat anybody who is not a Hindu will be able to enter theseshops or hotels where so far food is served to Hindus only.I think this is a very serious thing because henceforth itwill be a fundamental right of every citizen to enter anyHindu Hotel. Anybody can now claim entry to any place wherefood is sold. I therefore think that we must prepare theground to give effect to this change which is of a far-reaching character. Otherwise, there will be clashes everyday. I wish this clause (a) were kept as a directiveprinciple of State Policy and were not made a fundamentalright. That would have given the necessary time to HinduSociety to adjust itself to the needs of the situation. Thisportion of the article is particularly unnecessary in viewof article 11 which provides for the banning ofuntouchability

Shri R. K. Sidhwa (C. P. & Berar: General): Mr. Vice-President, Sir, I consider this sub-clause--sub-clause (b)of article 9--an important clause, I see that under thisclause "places of public resort" cover places of amusementsand the like and therefore there is no necessity to mentionall the places like theaters and cinemas. Personally I feelthat gardens and all these things are covered by this word"resort". It has been suggested that the words "places ofworship" should also be included here. So long as thiscountry has many religions I do not think it advisable to insert these words in this clause. It can be done only whenwe attain one religion in this country.

But there is one point to which I would like to drawthe attention of the mover of the article. The words usedhere are "the use of wells, tanks, roads and places ofpublic resort..." Ordinarily what we mean by "public" isevery person or collection of persons of all communities,irrespective of caste of creed. But while I was referring to the Indian Penal Code I found the word

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

* [] Translation of Hindustani speech.

"public" is defined in a restricted manner. Section 12 of the Indian Penal Code says that the word "public" includes"any class of the public or any community..." Thedescription "any class of the public" means that a SanatanI will be a "class of the community". The definition of theword `public' is in such a restricted manner that if a wellis to be dug by a Sanatani in a village he will not allowthe use of that well to the reformist or the Scheduled caste. I do not know whether the attention of the honourableMover has been drawn to this. I am only giving anillustration about one community. The Hindu will not allowthe Muslim to draw water from that well, or vice versa. Itmay be said that this relates to the offences caused underthe Indian Penal Code. But the Indian Penal Code relates toso many other offences. I do not know whether there isanother Act where the word "public" is defined collectivelyirrespective of any cast or community. I had tabled anamendment also and I do wish that this should not be left inany ambiguity because this is the fundamental, the basis, onwhich we are protecting the rights of every citizen. For anybreach of the fundamental right anybody can go to a court.Why should we leave it ambiguous and allow the public to goto the Supreme Court for getting the meaning of the word"public" defined? Why should we not make it very clear hereand say that "public" means

everyone irrespective of casteor creed, particularly when you have a restricted definitionin the Penal Code? I therefore submit, with due respect to the knowledge of the legal luminaries that this mattershould be made clear. To me, to every layman the meaning of the word `public' is clear; but we find the meaningdifferent in the law books. This matter therefore requiresexplanation to avoid any kind of complication in the future.

(One or two honourable Members rose to speak.)

Mr. Vice-President: You must forgive me if I am unableto meet the wishes of honourable Members. I want the fullco-operation of the House and I ask it specially just now.Dr. Ambedkar.

The Honourable Dr. B. R. Ambedkar: Sir, dealing with the amendments which have been moved, I accept Amendment No.280 moved by Mr. Rouf.

Shri Syamanandan Sahaya (Bihar: General): Will thehonourable Member give his views also about amendments whichhave not been moved?

The Honourable Dr. B. R. Ambedkar: I am very sorry Icannot give opinions regarding amendments which have notbeen moved.

Shri Syamanandan Sahaya: It was no fault of the memberconcerned.

The Honourable Dr. B. R. Ambedkar: I cannot help it. Iaccept the amendment of Mr. Rouf adding the words "place ofbirth", I also accept the amendment (No. 37 in List I) byMr. Subramaniam to amendment No. 276 dropping the words "Inparticular" in clause (1) of article 9.

With regard to amendment No. 303 moved by Mr. GuptanathSingh, I am prepared to accept his amendment provided he isprepared to drop the word "kunds" from his amendment.

Shri Guptanath Singh: I have already done that, Sir.

The Honourable Dr. B. R. Ambedkar: Then, among the manyamendments which I am sorry I cannot accept, I think it isnecessary for me to say something about two of them. One isamendment No. 315 moved by Mr. Tahir which requires that anycontravention of the provisions contained in article 9should be made a crime punishable by law. My Friend Mr.Tahir who moved this amendment referred particularly to theposition of the untouchables and he said that in regard to these acts which prevent the untouchables from sharingequally the privileges enjoyed by the general public, wewill not be successful in achieving our purpose unless these acts,preventing them from using places of public resort, weremade offences. There is no doubt that there is no differenceof opinion between him and other Members of this House in this matter because all of use desire that this unfortunateclass should be entitled to the same privileges as membersof the other communities without any let or hindrance fromanybody. But he will see that that purpose is carried outentirely by the provisions contained in article 11 whichspecifically deals with untouchability: instead of leavingit to Parliament or to the State to make it a crime, thearticle itself declares that any such interference with their rights shall be treated as an offence punishable bylaw. If his view is that there should be a provision in the Constitution dealing generally with acts which interferewith the provisions contained in article 9, I would like todraw his attention to article 27 in the Constitution whichplaces an obligation on Parliament to make laws declaringsuch interferences to be offences punishable by law. Thereason why such power is given to Parliament is because it is felt that any offence which deals with the Fundamental rights should be uniform throughout the territory of India,which would not be the case if this power was left to thedifferent States and Provinces to regulate as they like. Mysubmission therefore is that, so far as this point isconcerned, the Constitution contains ample provision andnothing more is really necessary.

With regard to amendment No. 323 moved by Professor K.T. Shah, the object of which is to add "Scheduled Castes"and "Scheduled Tribes" along with women and children, I amafraid it may have just the opposite effect. The objectwhich all of us have in mind is that the general public. Forinstance, none of us, I think, would like that a separateschool should

be established for the Scheduled Castes whenthere is a general school in the village open to thechildren of the entire community. If thee words are added,it will probably give a handle for a State to say, `Well, weare making special provision for the Scheduled Castes'. Tomy mind they can safely say so by taking shelter under thearticle if it is amended in the manner the Professor wantsit. I therefore think that it is not a desirable amendment.

Then I come to may Friend Mr. Nagappa. He has asked me to explain some of the words which have been used in thisarticle. His first question was whether "shop" includedlaundry and shaving saloon. Well, so far as I am concerned,I have not the least doubt that the word `shop' does includelaundry and shaving place. To define the word `shop' in themost generic term one can think of is to state that `shop'is a place where the owner is prepared to offer his serviceto anybody who is prepared to go there seeking his service.A laundryman therefore would be a man sitting in his shopoffering to serve the public in a particular respect,namely, wash the dirty cloths of a customer. Similarly, theowner of a shaving saloon would be sitting there offeringhis service for any person who enters his saloon.

The Honourable Shri B. G. Kher (Bombay: General): Doesit include the offices of a doctor and a lawyer?

The Honourable Dr. B. R. Ambedkar: Certainly it willinclude anybody who offers his services. I am using it in ageneric sense.

I should like to point out therefore that the word`shop' used here is not used in the limited sense ofpermitting entry. It is used in the larger sense ofrequiring the services if the terms of service are agreedto.

The second question put to me was whether `place ofpublic resort' includes burial grounds. I should havethought that very few people would be interested in theburial ground, because nobody would care to know whathappens to him after he is dead. But, as my Friend Mr.Nagappa is interested in the point should say that I have no doubt that a place of publicresort would include a burial ground subject to the factthat such a burial ground is maintained wholly or partly outof public funds. Where there are no burial groundsmaintained by a municipality, local board or taluk board orProvincial Government or village panchayat, nobody of coursehas any right, because there is no public place about whichanybody can make a claim for entry. But if there is a burialground maintained by the State out of State funds, thenobviously every person would have every right to have hisbody buried or cremated therein.

Then my Friend asked me whether ponds are included intanks. The answer is categorically in the affirmative. Atank is a larger thing which must include a pond.

The other question that he asked me was whether rivers,streams, canals and water sources would be open to theuntouchables. Well, rivers, streams and canals no doubtwould not come under article 9; but they would certainly becovered by the provisions of article 11 which make anyinterference with the rights of an untouchable for equaltreatment with the members of the other communities anoffence. Therefore my answer to my Friend Mr. Nagappa isthat he need have no fears with regard to the use of rivers,streams, canals, etc., because it is perfectly possible for the Parliament to make any law under Article 11 to removeany such disability if found.

Shri S. Nagappa: What about the courses of water?

The Honourable Dr. B. R. Ambedkar: I cannot addanything to the article at this stage. But I have no doubtthat any action necessary with regard to rivers and canalscould be legitimately and adequately taken under article 11.

Shri R. K. Sidhwa: What about the interpretation of theword `public'?

The Honourable Dr. B. R. Ambedkar: My Friend Mr. Sidhwaread out some definition from the Indian Penal Code of theword `public' and said that the word `public' there was usedin a very limited sense as belonging to a class. I shouldlike to draw his attention to the fact that the word`public' is used here in a special

sense. A place is a placeof public resort provided it is maintained wholly or partlyout of State funds. It has nothing to do with the definitiongiven in the Indian Penal Code.

Shri Mahavir Tyagi (United Provinces: General): May I know what is to happen to the amendments which have beendeclared by you as verbal amendments? Among them I fearthere are some which really aim at making a substantialchange in the meaning of the clause or article concerned.

Mr. Vice-President: In that matter I am the sole judge.You have given me discretionary power and I propose toexercise that power in my own way.

Shri Mahavir Tyagi: I want information. I do notdispute your judgment or your right. I only want to knowwhether the sense of the House will be accommodated inregard to the amendments ruled out or whether suchamendments will be considered by the Drafting Committee orsome other body? My suggestion is that you will be doingwell the House if you will kindly appoint a small sub-committee which will go into these verbal amendments andfind out whether some of them at least aim at effecting achange in the meaning of the clause concerned. I do notdispute what you said. They are out of order because youhave ruled them as such. But even commas and fullstops havesome value. My only request is that......

Mr. Vice-President: May I suggest a better way whichmight appeal to you, way which is better than theappointment of a sub-committee? Those who

think that their amendments are of some substance mayapproach the Drafting Committee directly themselves. If theydo so I am sure due consideration will be shown to them.

Shri Mahavir Tyagi: Now I am satisfied, Sir.

Mr. Mohd. Tahir: As the Honourable Dr. Ambedkar hasanswered my points to my satisfaction with regard to amendment No. 315, I ask for leave to withdraw it.

The amendment was, by leave of the Assembly, withdrawn.

Mr. Vice-President: Now I will put the rest of the amendments to the vote of the House. Dr. Ambedkar hasaccepted the first one.

The question is:

"That for amendment No. 276 in the List of Amendments,the following be substituted--

"That the second para. of clause (1) of article 9 benumbered as new clause (1a), and the words `In particular'in the new clause so formed, be deleted.'"

The motion was adopted.

Mr. Vice-President: The next amendment is 279. Thequestion is:

"That in article 9, after the word `race' the word`birth' be inserted."

The amendment was negatived.

Mr. Vice-President: The next one is No. 280 which, Iunderstand, Dr. Ambedkar has accepted. The question is:

"That in article 9, after the word `sex' wherever itoccurs, the words `place of birth' be inserted."

The amendment was adopted.

Mr. Vice-President: Then we come to the second part of amendment No. 286. The question is:

"That in sub-clause (a) of clause (1) of article 9,after the words `restaurants, hotels' the words`Dharamsalas, Musafirkhanas' be inserted."

The amendment was adopted.

Mr. Vice-President: Amendment No. 293. The question is:

"That in clause (1) of article 9, for sub-clauses (a)and (b) the following be substituted:--

`any place of public use or resort, maintained whollyor partly out of the revenues of the State, or in any wayaided, recognised, encouraged or protected by the State, orplace dedicated to the use of general public like schools,colleges, libraries, temples, hospitals, hotels andrestaurants, places of public entertainment, recreation oramusement, like theaters and cinema-houses or concert-halls;public parks, gardens or museums; roads, wells, tanks orcanals; bridges, posts and telegraphs, railways, tramwaysand bus services; and the like.'"

The amendment was negatived.

Mr. Vice-President: Then we come to amendment No. 296.The question is:

"That in sub-clause (a) of clause (1) of article 9,after the words 'of Public entertainment' the words 'orplaces of worship' be inserted."

The amendment was negatived.

Mr. Vice-President: I do not remember what happened to299. To be perfectly sure, I am going to put it to the

vote.The question is:

"That in sub-clause (a) of clause (1) of article 9, theword `public' be deleted."

The amendment was negatived.

Mr. Vice-President: Then amendment No. 301 standing in the name of Mr. Tajamul Husain. The question is:

"That in sub-clause (a) of clause (1) of article 9,between the words `public' and `restaurants' the words`places of worship' Dharamsalas, Musafirkhanas' be inserted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 303 as revised. Iunderstand that Dr. Ambedkar has accepted it. The questionis:

"That in sub-clause (b) of the second paragraph ofclause (1) of article 9, after the word `wells, tanks' the words `bathing ghats' be inserted."

The amendment was adopted.

Mr. Vice-President: Then amendment No. 305. Thequestion is:

"That in sub-clause (b) of clause (1) of article 9,after the word `roads' add a comm and also the words`hospitals, educational institutions'."

The amendment was negatived.

Mr. Vice-President: Amendment No. 314. The question is:

"That in sub-clause (b) of the second paragraph ofclause (1) of article 9, for the word 'the revenues of theState' the words 'State funds' be substituted."

The amendment was adopted.

Mr. Vice-President: Then the last amendment standing in the name of Professor Shah. No. 323. The question is:

"That at the end of clause (2) of article 9, thefollowing be added:--

`or for Scheduled Castes or backward tribes, for theiradvantage, safeguard or betterment.'"

The amendment was negatived.

Mr. Vice-President: Now, I shall put the article asrevised to the vote. The question is:

That article 9, as amended, form part of the Constitution.

The motion was adopted.

Article 9, as amended, was added to the Constitution.

Article 10

Mr. Vice-President: Shall we pass on to the nextarticle, new article 9-A? The amendments here are in theform of Directive Principles. I disallow them. Then we go toarticle 10.

Shri T. T. Krishnamachari (Madras: General): I thinkthe idea is to hold this over.

The Honourable Dr. B. R. Ambedkar: I request you tohold this article over.

Mr. Vice-President: Then we may go to the next article,10-A.

(Amendment No. 369 was not moved.)

Article 11

Mr. Vice-President: We now come to article 11. Themotion before the House is that article 11 form part of the Constitution. We shall now take up the amendments one byone. No. 370 is out of order. Amendments Nos. 371, 372, 373and also 375 and 378 are of a similar character. I suggestthat amendment No. 375 be moved.

(Amendments No. 375 and No. 371 were not moved.)

Mr. Vice-President: No. 372. Mr. Naziruddin Ahmad.

Mr. Naziruddin Ahmad (West Bengal: Muslim): Sir, Imove:

"That for article 11, the following article be substituted:--

`11. No one shall on account of his religion or castebe treated or regarded as an `untouchable'; and it sobservance in any form may be made punishable by law.'"

I submit that the original article 11 is a littlevague. The word "untouchability" has no legal meaning,although politically we are all well aware of it; but it maylead to a considerable amount of misunderstanding as in alegal expression. The word `untouchable' can be applied toso many variety of things that we cannot leave it at that.It may be that a man suffering from an epidemic orcontagious disease is an untouchable; then certain kinds offood are untouchable to Hindus and Muslims. According tocertain ideas women of other families are untouchables. Thenaccording to Pandit Thakurdas Bhargava, a wife below 15would be untouchable to her loving husband on the groundthat it would be `marital misbehaviour'. I beg to submit,Sir, that the word `untouchable' is rather loose. That iswhy I have attempted to give it a better shape; that no oneon account of his religion or caste be regarded asuntouchable. Untouchability on the ground of religion orcaste is what is prohibited.

Then, Sir, I have one more word to say in thisconnection and that is that in line 3 of this clause in themidst of the sentence, the word

`Untouchability' begins witha capital letter. This is a matter for the Drafting Committee.

(Amendments 373 and 378 were not moved.)

Mr. Vice-President: Amendments Nos. 374, 376, 377, 379,380 and 381. I regard as verbal amendments and they aredisallowed. Amendment No. 372 alone is moved. The article isnow open for general discussion. I call upon Mr. MuniswamyPillai to speak.

Shri V. I. Muniswamy Pillai (Madras: General): Mr.Vice-President, it is a matter of great satisfaction thatthis Constitution has brought out a very important item and thereby untouchability is to be abolished in this great landof ours. Sir, though article 9 concedes many of thefacilities that are required for the abolition ofuntouchability, the very clause about untouchability and itsabolition goes a long way to show to the world that theunfortunate communities that are called `untouchables' willfind solace when this Constitution comes into effect. It is not that a certain section of the Indian community that willbe benefited by this enactment, but a sixth of thepopulation of the whole of India will welcome theintroduction and the adoption of a section to root out thevery practice of untouchability in this country. Sir, underthe device of caste distinction a certain section of peoplehave been brought under the rope of untouchability, who havebeen suffering for ages under the tyranny of the so-calledcaste Hindus and all those people who style themselves aslandlords and zamindars, and were thus not allowed theordinary rudimentary facilities required for a human being.The sting of untouchability went deep into the hearts ofcertain sections of the people and many of them had to leavetheir own faiths and seek protection under religions whichwere tolerant. I am sure, Sir, by the adoption of thisclause many a Hindu who is a Harijan, who is a scheduledclass man will feel that he has been elevated in society andhe has now got a place in society. I am sure that the wholecountry will welcome the inclusion of article 11 in thisConstitution.

Dr. Monomohon Das (West Bengal: General): Mr. Vice-President, Sir, this clause about untouchability is one of the most important of the fundamental rights. This clause does not propose to give any specialprivileges and safeguards to some minor ity community, but itproposes to save one-sixth of the Indian population fromperpetual subjugation and despair, from perpetualhumiliation and disgrace. The custom of untouchability hasnot only thrown millions of the Indian population into thedark abyss of gloom and despair, shame and disgrace, but ithas also eaten into the very vitality of our nation. I havenot a jot of doubt, Sir, that this clause will be acceptedby this House unanimously; not only the Indian NationalCongress is pledged to it, but for the sake of fairness andjustice to the millions of untouchables of this land, for the sake of sustaining our goodwill and reputation beyondthe boundaries of India, this clause which makes thepractice of untouchability a punishable crime must find aplace in the Constitution of free and independent India. Irefuse to believe, Sir, that there is even a single soul in this august body who opposes the spirit and principlecontained in this article. So, I think, Sir, that today the29th November 1948 is a great and memorable day for us theuntouchables. This day will go down in history as the day ofdeliverance, as the day of resurrection of the 5 crores ofIndian people who live in the length and breadth of thiscountry. Standing on the threshold of this new era, at leastfor us, the untouchables, I hear distinctly the words ofMahatma Gandhi, the father of our nation, words that cameout from an agonized heart, full of love and full ofsympathy for these down-trodden masses. Gandhiji said: "I donot want to be reborn, but if I am reborn, I wish that Ishould be born as a Harijan, as an untouchable, so that Imay lead a continuous struggle, a life-long struggle againstthe oppressions and indignities that have been heaped uponthese classes of people." The word Swaraj will bemeaningless to us if one-fifth of

India's population is keptunder perpetual subjugation. Mahatma Gandhi is no more amongus in the land of the living. Had he been alive today, nomortal on earth would be more pleased, more happy, moresatisfied than him. Not only Mahatma Gandhi, but also theother great men and philosophers of this ancient land, SwamiVivekananda, Raja Ram Mohan Roy, Rabindranath Tagore andothers who led a relentless struggle against this heinouscustom, would also be very much pleased today to see that independent India, Free India has at last finally done awaywith this malignant sore on the body of Indian society. As aHindu, I believe in the immortality of the soul. The soulsof these great men, but for whose devotion and life-longservice India would not have been what she is today, wouldbe smiling upon us at this hour at our courage and boldnessin doing away with this heinous custom of untouchability.

Last of all, I cannot resist the temptation of saying afew words about our great and eminent Law Minister andChairman of the Drafting Committee, Dr. Ambedkar. It is anirony of fate that the man who was driven from one school toanother, who was forced to take his lessons outside theclass room, has been entrusted with this great job offraming the Constitution of free and independent India, andit is he who has finally dealt the death blow to this customof untouchability, of which he was himself a victim in hisyounger days.

Sir, I thank you for giving me this opportunity toexpress my views on this matter.

Shri Santanu Kumar Das (Orissa: General): *[Mr. Vice-President, I am grateful to you, Sir, for giving me anopportunity to express my views on clause 11 of the Draft Constitution.

This clause is intended to abolish the social inequity,the social stigma and the social disabilities in oursociety. Every body desires that the practice of

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* [] Translation of Hindustani speech.

untouchability should somehow be abolished but not bodyappears to be very helpful in its abolition. When everybodydesires that this practice should be abolished, I fail tosee why so much time should be wasted in a long discussionover it. The fact is that we merely want to enact laws aboutit and expect the rural people to observe these laws. Wemust ourselves first observe the law for otherwise therewould be no sense in asking others to act upon it. If wefail to observe it, it would be impossible to root out thisevil. Provincial Governments enact laws for the welfare of the Harijans; they pass bills for the removal ofuntouchability, for the removal of disabilities and forpermitting templeentry but you will be surprised, Sir, if Itell you that our members act as fifth columnists in therural areas, for they tell the people there that these lawsare not in force and thus they themselves act against thelaw. I would request the Members of the House to try theirbest to make the law effective so that this present socialinequity in the country may be removed. Sir, I support theclause whole-heartedly.]

Shrimati Dakshayani Velayudhan (Madras: General): Mr.Vice-President, Sir, we cannot expect a Constitution withouta clause relating to untouchability because the Chairman of the drafting Committee himself belongs to the untouchablecommunity. I am not going into the details of the historyand the work done by all the religious heads from timeimmemorial. You know that all the religious teachers wereagainst the practice of untouchability. Coming to a laterperiod, we found a champion in the person of Mahatma Gandhiand one of the items of the constructive programme that heplaced before the country is the abolition ofuntouchability. While I was a student in the College, one ofmy class-mates approached me for subscribing to a fund for the abolition of untouchability. My reply was, `you peopleare responsible for this and therefore it is for you toraise the money and it is not proper that you should ask mefor money'. Even from my younger days, the very thought ofuntouchability was revolting to me. Even in public placeslike schools,

untouchability was observed whenever there wasa tea party or anything of that kind. What I did on thoseoccasions was that I always non-cooperated with thosefunctions. The change of heart that we find in the peopletoday is only due to the work that has been done by MahatmaGandhi and by him alone. We find that there is a vast changein the outlook and attitude of the people today towards theuntouchables. Nowadays what we find is that the people whoare called caste Hindus dislike the very idea of, or thevery term, `untouchability' and they do not like to bechastised for that, because, they have taken a vow that theyare responsible for it and that they will see that it isabolished from this land of ours. Even though there is alarge improvement on the part of the so-called caste Hindus,we cannot be satisfied with that. When this Constitution isput into practice, what we want is not to punish the peoplefor acting against the law, but what is needed is that thereshould be proper propaganda done by both the Central andProvincial Governments. Then only there will be improvementthat we want. If the Provincial and Central Governments hadtaken action previously I think there would have been nonecessity for an article of this kind in this Constitution.Last year I brought a resolution before the ConstituentAssembly for declaring that untouchability should be madeunlawful. When I approached Panditji, he said that this is not a Congress Committee to move such a resolution, and thatit will be taken up in course of time. My reply was that ifa declaration was made in the Constituent Assembly, it will have a great effect. Even people in South Africa werechastis ing us because we were having this practice here. Ifa declaration is made by the Assembly here and now, it will have a great effect on the people and there will be nonecessity for us to incorporate such a clause in the Constitution.

Mr. Vice-President: You have exceeded the time-limit.It is only because you are a lady I am allowing you.

Shrimati Dakshayani Velayudhan: The working of the Constitution will depend upon how the people will conductthemselves in the future, not on the actual execution of thelaw. So I hope that in course of time there will not be sucha community known as Untouchables and that our delegatesabroad will not have to hang their heads in shame ifsomebody raises such a question in an organisation ofinternational nature.

Prof. K. T. Shah: Mr. Vice-President, Sir, lest I bemisunderstood on the remarks that will follow, may I say atthe very outset that I am not against the spirit of thisarticle, or even its actual wording. I think, however, thatthe wording is open to some correction; and if theHonourable the Chairman of the Drafting Committee willconsider what I am going to place before him just now, andbefore the House, I believe he might find room for someamendment himself of this article.

In the first place I would like to point out that theterm `untouchability' is nowhere defined. This Constitutionlacks very much in a definition clause; and consequently weare at a great loss in understanding what is meant by agiven clause and how it is going to be given effect to. Youfollow up the general proposition about abolishinguntouchability, by saying that it will be in any form anoffence and will be punished at law. Now I want to give theHouse some instances of recognised and permitteduntouchability whereby particular communities or individualsare for a time placed under disability, which is actuallyuntouchability. We all know that at certain periods womenare regarded as untouchables. Is that supposed to be, willit be regarded as an offence under this article? I think ifI am not mistaken, I am speaking from memory, but I believeI am right that in the Quran in a certain `Sura', this ismentioned specifically and categorically. Will you make thepractice of their religion by the followers of the Prophetan offence? Again there are many ceremonies in connectionwith funerals and obsequies which make those who have takenpart in them untouchables for a while. I do not wish

toinflict a lecture upon this House on anthropological orconnected matters; but I would like it to be brought to thenotice that the lack of any definition of the term`untouchability' makes it open for busybodies and lawyers tomake capital out of a clause like this, which I am sure wasnot the intention of the Drafting Committee to make.

One more example I will give, Sir, which is of ahygienic, or rather sanitary, character, that seems to becompletely overlooked by the draftsman. What about thosediseases, and people who suffer from, which arecommunicable, and so necessarily to be excluded and madeuntouchables while they suffer? I remember, Sir, the case ofa very well-known personage who was suffering from leprosy,and whom consequently a Public Carrier Company refused tocarry from a particular place to another place. All thewheels of Government were moved to obtain a certificate thathe may be carried in the plane without any harm to otherpassengers. I do not know whether it was his cheque-book orhis munificence that helped him to get over that particulardisability. But I am sure the example should be a warning toour Drafting Committee. Again, if a municipality, forinstance, makes a temporary regulation about Quarantine, andmakes it necessary that people suffering from communicablediseases or infectious or contagious diseases shall besegregated for a while until they are cured, and shall beregarded as untouchables, will it be an offence under thisarticle? Surely it ought not to be possible for anybody to say that the action of that particular municipality is"unconstitutional" and so an offence at law. I trust theChairman of the Drafting Committee will find that there issome sense in the suggestion I have put forward; and that hewill not deal with it as a common opposition.

The Honourable Dr. B. R. Ambedkar: I cannot accept the amendment of Mr. Naziruddin Ahmad.

Mr. Vice-President: Dr. Ambedkar, do you wish to replyto Mr. Shah's suggestion?

The Honourable Dr. B. R. Ambedkar: No.

Mr. Vice-President: I now put amendment No. 372 tovote.

The question is:

"That for article 11, the following article be substituted:--

"11. No one shall on account of his religion or castebe treated or regarded as an `untouchable'; and it sobservance in any form may be made punishable by law.'"

The amendment was negatived.

Mr. Vice-President: I now put article No. 11.

The question is:

"That article 11 stand part of the Constitution."

The motion was adopted.

Article 11 was added to the Constitution.

Honourable Members: "Mahatma Gandhi ki Jai".

Articles 11-A and B

Mr. Vice-President: We have five minutes and I proposeto utilize it. There are two new articles 11-A and Bstanding in the name of Mr. Lari. Amendment No. 382.

Mr. Z. H. Lari (United Provinces: Muslim): Mr. Vice-President: I move:

"That after article 11 the following new articles be inserted:--

`11-A. Imprisonment for debt is abolished.

11-B. Capital punishment except for sedition involvinguse of violence is abolished.'"

Sir, the two clauses are distinct and consequently whenconsidering and adopting them it is not necessary for theHouse to accept both simultaneously or to reject both. It isopen to the House to accept one and not to accept the otheror to accept both.

Mr. Vice-President: Why not move that separately.

Mr. Z. H. Lari: Then I move 11-B first. The House willremember that in the last session of the House, when sittingas the law making body, a Bill was before the House to amendSection 53 of the Indian Penal Code. That Bill went to theStanding Advisory Committee of the Ministry of Home Affairsthat met on 20th march 1948. There they thought and decidedthat this matter of capital punishment should be consideredby this body. That is why they deferred consideration of that Bill. Now I put it before the House in the form asdesired by the Standing Committee.

So far as the question of abolition of capitalpunishment is concerned, it has been done so in variousother countries. At least in thirty countries, including

theDominion of New Zealand, Russia, Holland, Belgium,Switzerland, capital punishment has been abolished. Only theother day this question came up before the House of Commonsand the principle was accepted. No doubt, the House of Lordscame in the way and the result was that the Bill before theHouse of Commons providing for the abolishing of capitalpunishment had to be rejected. But so far as the House ofCommons is concerned, the principle of it has been accepted.

Now, I will place only three considerations before this House. The first consideration is that human judgment is notinfallible. Every judge, every tribunal is liable to err.But capital punishment is irrevocable. Once you decide toaward the sentence, the result is that the man is gone. Itmay be that a mistake would have been committed by atribunal. And I know of cases where subsequently it wasfound out that the man punished was not the real offender.But it was not within the power of any human being to getthe mistake rectified. This is one consideration.

The second consideration is that human life is sacredand its sanctity is I think, accepted by all. A man's lifecan be taken away if there is no other way to prevent theloss of other human lives. But the question is whethercapital punishment is necessary for the sake of preventingcrimes which result in such loss of human lives. I ventureto submit that at least thirty countries have come to theconclusion that they can do without it and they have beengoing on in this way for at least ten years, or twentyyears, without any ostensible or appreciable increase incrimes. Therefore, the result of the experience gained byall these countries shows that you can govern the countrywithout resorting to this punishment. That is the secondconsideration for this House.

The third consideration is that this is a punishmentwhich is really shocking and brutal and does not correspondwith the sentiments which prevail now in the presentcentury. My submission would be that if we can do away withthis capital punishment, it would be a good thing for thecountry and for the people. Many decades back, Dickens saidthat this punishment really encourages that section of thepopulation which is determined on committing murders, tocommit murders because that is accompanied by a sort ofmartyrdom. That concerns only that class of criminals whowant to commit murders deliberately and with a purpose. Tothose who commit murders on an occasion which provides themwith some sort of provocation, my submission would be thatthey can be better punished if life imprisonment is inflicted upon them because they will live for many moreyears and repent their actions and possibly reformthemselves.

Lastly I would submit that the reformative element inpunishment is the most important one, and that should be thedominant consideration.

Keeping all these considerations in mind, namely, offallibility of human judgment, sanctity of human life and the purpose of punishment, we should vote for abolishingcapital punishment.

I have made one exception, i.e., of a situation whichinvolves danger to the State. Naturally, when the existenceof the state is at stake, and many more lives might be lost,it may be said that we should not take any risks. I say thetime will come when even that exception will disappear. Butfor the sake of incorporating an article in the Constitution, we may accept this exception, and it will beopen to the Parliament of the land to go further in two orthree years' time and abolish capital punishment completely.

With these words, Sir, I move.

Mr. Vice-President: Then, will you move 11-A to-morrow?

Mr. Z. H. Lari: No Sir, I will not move it.

Mr. Vice-President: The House stands adjourned till 9-30 A.M. to-morrow.

The Constituent Assembly then adjourned till Half-pastNine of the Clock on Tuesday, the 30th November 1948.