Wednesday, the 1st December 1948
Shri H. V. Kamath: In the draft article the antecedentsof the words 'other' matter were libel, slander, defamationand sedition, all of them.
Shri K. M. Munshi: I cannot agree with my honourablefriend.
Mr. Vice-President: Do you press amendment 449?
Mr. Naziruddin Ahmad: Yes.
Mr. Vice-President: It will be put to vote. We nextcome to 450, 451, 452, 453, 465 and 478--all are of similarimport and should be considered together. Amendment 450 isallowed.
Sardar Hukum Singh (East Punjab: Sikh): Mr. Vice-President, Sir, I beg to move:
"That clause (2), (3), (4), (5) and (6) of article 13be deleted."
Sir, in article 13(1), sub-clauses (a), (b) and (c),they give constitutional protection to the individualagainst the coercive power of the State, if they stood bythemselves. But sub-clause (2) to (6) of article 13 wouldappear to take away the very soul out of these protectiveclauses. These lay down that nothing in sub-clauses (a),(b), (c) of article 13 shall effect the operation of any of the existing laws, that is, the various laws that abrogatethe rights envisaged in sub-clause (1) which were enactedfor the suppression of human liberties, for instance, theCriminal Law Amendment Act, the Press Act, and other varioussecurity Acts. If they are to continue in the same way asbefore, then where is the change ushered in and so loudlytalked of? The main purpose of declaring the rights asfundamental is to safeguard the freedom of the citizenagainst any interference by the ordinary legislature and theexecutive of the day. The rights detailed in article 13(1)are such that they cannot be alienated by any individual,even voluntarily. The Government of the day is particularlyprecluded from infringing them, except under very specialcircumstances. But here the freedom of assembling, freedomof the press and other freedoms have been made so precariousand entirely left at the mercy of the legislature that thewhole beauty and the charm has been taken away. It is not only the existing laws that have been subjected to thisclause, but the State has been further armed withextraordinary powers to make any law relating to libel,slander etc. It may be said that every State should have thepower and jurisdiction to make laws with regard to suchmatters as sedition, slander and libel. But in othercountries like America it is for the Supreme Court to judgethe matter, keeping in view all the circumstances and theenvironments, and to say whether in dividual liberty hasbeen sufficiently safeguarded or whether the legislature hastransgressed into the freedom of the citizen. The balance iskept in the hands of the judiciary which in the case of allcivilized countries has always weighed honestly andconsequently protected the citizen from unfair encroachmentby legislatures. But a curious method is being adopted underour Constitution by adding these sub-clauses (2) to (6). TheHonourable Mover defended these sub-clauses by remarkingthat he could quote at least one precedent for each of theserestrictions. But it is here that the difference hes, thatwhereas in those countries it is the judiciary whichregulates the spheres of these freedoms and the extent of the restrictions to be imposed, under article 13, it is the legislature that is being empowered with these powers bysub-clauses (2) to (6). The right to freedom of speech isgiven in article 13(1)(a), but it has been restricted byallowing the legislature to enact any measure under 13(2),relating to matters which undermine the author ity orfoundation of the State; the right to assembly seemsguaranteed under 13(1)(b), but it has been made subject to the qualification that legislation may be adopted in theinterest of public order--13(3). Further under 13(4) to13(6), any legislation restricting these liberties can beenacted "in the interest of the general public". Now who isto judge whether any measure adopted or legislation enactedis "in the interest of the general public" or "in theinterest of public order", or whether it
relates to "anymatter which undermines the author ity or foundation of theState"? The sphere of the Supreme Court will be verylimited. The only question before it would be whether thelegislation concerned is "in the interest of the publicorder". Only the bona-fides of the legislature will be themain point for decision by the Court and when once it isfound by the court that the Government honestly believedthat the legislation was needed "in the interest of thepublic order", there would be nothing left for itsinterference. The proviso in article 13(3) has been soworded as to remove from the Supreme Court its competence to consider and determine whether in fact there werecircumstances justifying such legislation. The actualprovisions and the extent of the restrictions imposed wouldbe out of the scope of judicial determination.
For further illustration we may take the law ofsedition enacted under 13(2). All that the Supreme Courtshall have to adjudicate upon would be whether the lawenacted relates to "sedition" and if it does, the judiciarywould be bound to come to a finding that it is valid. itwould not be for the Judge to probe into the matter whetherthe actual provisions are oppressive and unjust. If therestriction is allowed to remain as it is contemplated in13(2), then the citizens will have no chance of getting anylaw relating to sedition declared invalid, howsoeveroppressive it might be in restricting and negativing thefreedom promised in 13(1)(a). The "court" would be bound tolimit its enquiry within this field that the Parliament ispermitted under the Constitution to make any laws pertainingto sedition and so it has done that. The constitution is notinfringed anywhere, and rather, the draft is declaring validin advance any law that might be enacted by the Parliament--only if it related to sedition. Similar is the case of otherfreedom posed in article 13(1) but eclipsed and negatived inclauses (2) to (6).
It may be argued that under a national government, the legislature, representative of the people and elected onadult franchise, can and should be trusted for the safecustody of citizens' rights. But as has been aptly remarked,"If the danger of executive aggression has disappeared, thatfrom legislative interference has greatly increased, and it is largely against this danger that the modern declarations of fundamental rights are directed, asformerly they were directed against the tyranny ofautocratic kings."
The very object of a Bill of Rights is to place theserights out of the influence of the ordinary legislature, andif, as under clauses (2) to (6) of article 13, we leave itto this very body, which in a democracy, is nothing beyondone political party, to finally judge when these rights, sosacred on paper and glorified as Fundamentals, are to beextinguished, we are certainly making these freedomsillusory.
If the other countries like the U.S.A. have placed fullconfidence in their Judiciary and by their long experienceit has been found that the confidence was not misplaced, whyshould we not depend upon similar guardians to protect theindividual liberties and the State interests, instead ofhedging round freedom by so many exceptions under these sub-clauses?
Sir, I commend this amendment to the House.
Mr. Vice-President: The next amendment on the list isthe alternative amendment No. 451, in the same of Mr.Mahboob Ali Baig.
Mahboob Ali Baig Sahib Bahadur: Sir, I move:
"That the following words be inserted at the beginningof clauses (2), (3), (4), (5) and (6) of article 13:--
'Without prejudice and subject to the provisions ofarticle 8."
My purpose in moving this amendment is twofold.Firstly, I want to know the mind of Dr. Ambedkar and theDrafting Committee how article 8 stands in relation to theseprovisos. It may be asked whether these clauses (2) to (6)are governed by article 8 or not. If these clauses aregoverned by article 8, may I refer to article 8 itself. Itsays:
"All laws in force immediately before the commencementof this Constitution in the territory of India, in so far asthey
are inconsistent with the provisions of this Part."
The words "inconsistent with the provisions of this part" donot affect the existing laws relating to libel, the existinglaws relating to restrictions on the exercise of the rightswith regard to association or assembly. That means that theexisting laws mentioned in clauses (2) to (6) are not allrendered void under Article 8. The intention is clear fromthe footnote that is appended to article 15, where thereason for the inclusion of the word "personal" is givenThere it is said:
"The Committee is of opinion that the word 'liberty'should be qualified by the insertion of the word 'personal'before it, for otherwise it might be construed very widelyso as to include even the freedom already dealt with inarticle 13."
Thus it is very clear that if the existing law relates tolibel, if it relates to meetings or associations, or freedomof speech or expression, then that existing law stands inspite of the fact that article 8 says that any law in forcewhich is inconsistent with the fundamental rights is void.So we come to this position. In the past the existing laws,for instance, the Criminal Law Amendment Acts, the PressActs or the Security Acts laid down restrictions which areinconsistent with the liberties mentioned in clause (1).They shall be in operation and they are not rendered void.That seems to be the meaning that can naturally be attachedto this.
The second point which I wish to submit is this. By the Constitution certain powers are given to the legislature orthe executive. Whether a court can question the validity orotherwise of such action, order or law is another question.My opinion is that where there is a provision in the Constitution itself giving power to the legislature or in this case the State covering the legislature, executive, local bodies and such other institutions, thejurisdiction of the court is ousted, for the court would saythat in the constitution itself power is granted to the legislature to deprive, restrict or limit the rights of thecitizen and so they cannot go into the validity or otherwiseof the law or order, unless as it is said there is malafides. It is for the author ities to judge whether certaincircumstances have arisen for which an order or law can bepassed. Anyhow I pose this question to the Chairman of theDrafting Committee whether in these circumstances, viz.,where there is in existence a provision in the constitutionitself empowering the legislature or the executive to passan order or law abridging the rights mentioned in clause(1), the court can go into the merits or demerits of theorder or law and declare a certain law invalid or a certainAct as not justified. In my view the court's jurisdiction isousted by clearly mentioning in the constitution itself thatthe State shall have the power to make laws relating tolibel, association or assembly in the interest of publicorder, restrictions on the exercise of....
The Honourable Dr. B. R. Ambedkar (Bombay: General):Sir, if I might interrupt my honourable friend, I haveunderstood his point and I appreciate it and I undertake toreply and satisfy him as to what it means. It is thereforeunnecessary for him to dilate further on the point.
Mahboob Ali Baig Sahib Bahadur: The third point which I would submit is this. The new set up would be what is calledparliamentary democracy or rule by a certain politicalparty, by the party executive or party government and we canwell imagine what would be the measure of fundamental rightsthat the people would enjoy under parliamentary democracy orrule by a party. In these circumstances is it not wise ornecessary in the interest of the general public that thefuture legislatures ruled by a party or the executive ruledby a party are not given powers by this very constitutionitself? For as has been said 'power corrupteth' and ifabsolute power is placed in the hands of party government byvirtue of the terms of this constitution itself, suchlegislature or executive will become absolutely corrupt.Therefore, I move that if at all these provisos
arenecessary, they must be subject to the provision that no lawcan be passed, no law would be applicable which is inconsistent with the freedoms mentioned in sub-clause (1).Sir, I move.
Mr. Vice-President: The next group consists of amendments Nos. 454, 455, 469, 475, 481, and the first part of 485. They are of similar import and I allow amendment No.454 to be moved. There are certain amendments to the amendment also.
Pandit Thakur Dass Bhargava: Sir, I move:
"That in clauses (2), (3), (4), (5) and (6) of article13 the words "affect the operation of any existing law, or"be deleted."
To this clause an amendment has been given by theHonourable Dr. Ambedkar.
Mr. Vice-President: May I suggest that when you moveamendment No. 454 you move it along with your new amendment?
Pandit Thakur Dass Bhargava: I have moved No. 454, towhich an amendment, stands in the name of the Honourable Dr.Ambedkar. To this latter I have given an amendment which isNo. 3 in today's list. I have also given two otheramendments to amendment No. 454. So I shall, with yourpermission, move them in one bloc.
Sir, I move:
"That with reference to amendment No. 49 of list 1 of the Amendment to Amendments--
(i) in clause (2) of article 13 for the word 'any' where it occurs for the second time the word 'reasonable' be substituted and the word 'sedition' in the said clause be omitted.
(ii) that in clauses (3), (4), (5) and (6) of article 13 before the word 'restrictions' the word 'reasonable' be inserted."
The net result of these amendments is the following: I want that the words 'affect the operation of any existinglaw or" be deleted and also that before the word"restrictions" in clauses (3), (4), (5) and (6) the word"reasonable" be placed. I also want that in clause (2) for the word 'any' where it occurs for the second time, the word'reasonable' be substituted.
If my suggestion is accepted by the House then clause(3) would read:
"Nothing in sub-clause (b) of the said clause shallprevent the State from making anything, imposing in theinterests of public order reasonable restrictions on theexercise of the right conferred by the said sub-clause."
As regards the effect of amendment No. 454, if thefollowing words are taken away--
"Affect the operation of any existing law, or"
the result will be that, not that all the present laws which are in force today will be taken away, but only such laws orportions of such laws as are inconsistent with thefundamental rights according to article 13, will be takenaway, and article 8 will be in force.
Now I will deal with these amendments separately. I want to deal with 454 first.
You will be pleased to observe that so far as article 8is concerned, it really keeps alive all the laws which arein force today, except such portions of them as areinconsistent with the fundamental rights conferred by PartIII. These words--"affect the operation of any existing law,or"......
Mr. Vice-President: How can you deal with a thingunless it is moved by Dr. Ambedkar?
Pandit Thakur Dass Bhargava: In the first instance, aresolution has been passed by this House that all amendmentsshall be taken as moved without being formally moved.Secondly, if you allow me another chance to speak on the amendment when moved by Dr. Ambedkar, I will be content to move my amendment then. Only with a view to save time, Ihave taken this course and, I had asked for your permission,though it was unnecessary to do so.
Mr. Vice-President: All right.
Pandit Thakur Dass Bhargava: Thank you. I was speakingof the effect of the words--"affect the operation of anyexisting law, or" and I submitted to the House that so faras the words of article 8 go, even if these words are notthere, all the present laws shall be alive. They shall notbe dead by the fact that article 8 exists in Part III. Thearticle reads thus:
"All laws in force immediately before the commencementof this Constitution in the territory of India, in so far asthey are inconsistent with the provisions of this Part,shall, to the extent of such inconsistency, be
So that the real effect which this Constitution wants togive is that so far as those laws are inconsistent, theyshould be made inoperative, The rest will continue. So If these words are not there--"affect the operation of anyexisting law, or"--that would make no difference. If youexamine the amendment to be moved by Dr. Ambedkar, theresult is the same because in his amendment the words "in sofar as it imposes" appear. Thus article 8 governs article 13according to my amendment as well as his. The amendment ofDr. Ambedkar is unnecessary if the House accepts myamendment No. 454.
Mr. Vice-President: It seems to me that if Dr. Ambedkarmoves his amendment, then your amendment will not benecessary at all.
Pandit Thakur Dass Bhargava: My amendment will still benecessary as it deals with other matters also.
Mr. Vice-President: I do not wish to discuss the matterwith you.
Pandit Thakur Dass Bhargava: There are several clausesin this Constitution in which an attempt has been made tokeep the present laws alive as much as possible. Article 8is the first attempt. According to article 8 only to theextent of inconsistency such laws will become inoperative.Therefore, any further attempt was unnecessary.
In article 27 an attempt has again been made to keepalive certain of the laws that come within the purview ofarticle 27 in the proviso. Then again not being content withthis, another section is there in the Constitution, namely,article 307, which reads:
"Subject to the other provisions of this Constitution,all the laws in force in the territory of India immediatelybefore the commencement of this Constitution shall continuein force therein until altered or repealed or amended by acompetent Legislature or other competent author ity."
The laws in force are defined in Explanation No. 1 and there is clause (2) which deals with certain aspects of thequestion. Even if these sections were not there, even thenthe general principle is that the law would continue inforce unless repealed by any enactment or declared illegalby any Court. Therefore, so far as the continuance of thepresent law is concerned, the words "affect the operation of any existing law, or" are surplus, unnecessary and futile.But I would not have submitted this amendment before theHouse if these words were only surplus. They have anothertendency and that has been emphasized by the previousspeaker. There are good many amendments in the list of amendments to the same effect. I have receivedrepresentations from various bodies and persons who havesaid in their telegrams and letters that these words shouldbe removed, because the apprehension is that as article 8 ispart of the Constitution, so is article 13 part of the Constitution. In sequence article 13 comes later andnumerically it is of greater import. If article 8 is goodlaw, so is article 13. As a matter of fact article 13 issufficient by itself, and all the present laws, it may andcan be argued, must be continued in spite of article 8. Thisis the general apprehension in the public mind and it istherefore that Dr. Ambedkar has also been forced to table anamendment No. 49 to my amendment No. 454.
This interpretation and argument may be wrong; this maybe unjustifiable; but such an argument is possible. In myopinion the law must be simple and not vague andununderstandable. Therefore these mischievous and misleadingwords should be taken away. As they have further the effectof misleading the public I hold that these words, unlesstaken away, shall not allay public fear.
When I read these different sections from 9 to 13 andup to 26, and when I read of these Fundamental Rights, to befrank I missed the most fundamental right which any nationalin any country must have viz., the right to vote.
Mr. Vice-President: That is not the subject matter of the present discussion. The honourable Member should confinehis remarks to his amendment.
Pandit Thakur Dass Bhargava: In considering article 15also the House will come to the conclusion that the mostimportant of the Fundamental Right of personal liberty
andlife has not been made justiciable nor mentioned in article13. If the House has in its mind the present position in thecountry, it will come to the conclusion that the presentstate of things is anything but satisfactory. Freedom ofspeech and expression have been restricted by sub-clause(2). Fortunately the honourable Member Mr. Munshi has spoken
before you about deletion of the word sedition. If thesewords 'affect the operation of existing laws' are notremoved the effect would be that sedition would continue tomean what it has been meaning in spite of the contraryruling of the Privy Council given in 1945. If the presentlaws are allowed to operate without being controlled orgoverned by article 8 the position will be irretrievablyintolerable. Thus my submission is that in regard to freedomof speech and expression if you allow the present law to becontinued without testing it in a court of law, a situationwould arise which would not be regarded as satisfactory bythe citizens of India.
Similarly, at present you have the right to assemblepeaceably and without arms and you have in 1947 passed a lawunder which even peaceable assemblage could be bombedwithout warning from the sky. We have today many provisionswhich are against this peaceable assembling. Similarly inregard to ban on association or unions.
The Honourable Dr. B. R. Ambedkar: Is it open to myhonourable Friend to speak generally on the clauses?
Mr. Vice-President: That is what I am trying to drawhis attention to
The Honourable Dr. B. R. Ambedkar: This is an abuse of the procedure of the House. I cannot help saying that. Whena member speaks on an amendment, he must confine himself tothat amendment. He cannot avail himself of this opportunityof rambling over the entire field.
Pandit Thakur Dass Bhargava: I am speaking on the amendment; but the manner in which Dr. Ambedkar speaks andexpresses himself is extremely objectionable. Why should heget up and speak in a threatening mood or domineering tone?
Mr. Vice-President: Everybody seems to have lost histemper except the Chair. (Laughter). I had given a warningto Mr. Bhargava and, just now, was about to repeat it whenDr. Ambedkar stood up. I am perfectly certain that he wascarried away by his feeling. I do not see any reason whythere should be so much feeling aroused. He has been under astrain for days together. I can well understand his positionand I hope that the House will allow the matter to restthere.
Now, I hope Mr. Bhargava realises the position.
Pandit Thakur Dass Bhargava: I will speak only on the amendment. But when a Member speaks on an amendment, it is not for other members to decide what is relevant and what is not.
Mr. Vice-President: I was about to say so, but I wasinterrupted.
Pandit Thakur Dass Bhargava: Sir, I repeat that unlessand until these offending words are removed and if thepresent law is allowed to continue without the validity of the present laws being tested in any court, the situation in the country will be most unsatisfactory. I am adverting to the present law in order to point out that it isobjectionable and if it continues to have the force of law,there will be no use in granting Fundamental Rights.Therefore I am entitled to speak of the Fundamental Rights.I will certainly not speak if you do not allow me, but Imaintain that whatever I was and am saying is perfectlyrelevant. (Hon. Members: 'Go on'). Sir, if I do not refer to the situation in the country and to the fact that this lawdoes not allow the present state of tension in the countryto be moved, what is the use of the Fundamental Rights. Iask.
Mr. Vice-President: Kindly remember one thing which isthat you may refer to it in a general manner and not makethat the principal point of your speech on this occasion.You may refer to all that in such a way as to adopt a viamedia where your purpose will be served without taking upmore time than is actually necessary.
Pandit Thakur Dass Bhargava: I am alive to the factthat it is a sin to take up the time of the Houseunnecessarily. I have been exercis ing as
much restraint aspossible. I thank you for the advice given by you. I willnot refer to the present situation also if you do not likeit.
But a few days ago the Honourable Sardar Patel, in aConvocation Address delivered by him, told the whole countrythat the labourer in the field and the ordinary man in thestreet has not felt the glow of India's freedom. Nobodyfeels that glow today, though India is free. Why? If theFundamental Rights are there and if they are enjoyed by thepeople, why is there not this glow of freedom? The reason isthat these offending words seem to nullify what article 8seems to grant in respect of the present laws and people donot take us seriously. That is the cause of the generalspathy of the people. If I referred in connection with thismatter to the present situation , my object was only toemphasise that the present situation is very unsatisfactory.I will leave the matter at that.
As regards the amendment for the addition of the word'reasonable' I will beg the House kindly to consider itcalmly and dispassionately. We have heard the speeches ofSardar Hukam Singh and Mr. Mahboob Ali Baig. Both of themasked what would happen to the Fundamental Rights if the legislature has the right to substantially restrict theFundamental Rights? That is quite true. Are the destinies of the people of this country and the nationals of this countryand their rights to be regulated by the executive and by the legislature or by the courts? This is the question ofquestions. The question has been asked, if the Legislatureenacts a particular Act, is that the final word? If youconsider clauses (3) to (6) you will come to the conclusionthat, as soon as you find that in the Statement of Objectsand Reasons an enactment says that its object is to servethe interests of the public or to protect public order, thenthe courts would be helpless to come to the rescue of thenationals of this country in respect of the restrictions.Similarly, if in the operative part of any of the sectionsof any law it is so stated in the Act, I beg to ask whatcourt will be able to say that, as matter of fact the legislature was not authorised to enact a particular law. Mysubmission is that the Supreme Court should ultimately bethe arbiter and should have the final say in regard to thedestinies of our nationals. Therefore, if you put the word'reasonable' here, the question will be solved and all thedoubts will be resolved.
Sir, one speaker was asking where the soul in thelifeless article 13 was? I am putting the soul there. If youput the word 'reasonable' there, the court will have to seewhether a particular Act is in the interests of the publicand secondly whether the restrictions imposed by the legislatures are reasonable, proper and necessary in thecircumstances of the case. The courts shall have to go into the question and it will not be the legislature and theexecutive who could play with the fundamental rights of thepeople. It is the courts which will have the final say.Therefore my submission is that we must put in these words"reasonable" or "proper" or "necessary" or whatever goodword the House likes. I understand that Dr. Ambedkar isagreeable to the word "reasonable". I have therefore put in the word "reasonable" to become reasonable. Otherwise ifwords like "necessary" or "proper" had been accepted, I donot think they would have taken away from but would havematerially added to the liberties of the country. ThereforeI respectfully request that the amendment I have tabled maybe accepted so that article 13 may be made justiciable.Otherwise article 13 is a nullity. It is not fullyjusticiable now and the courts will not be able to say whether therestrictions are necessary or reasonable. If any cases arereferred to the courts, they will have to decide whetherrestriction is in the interests of the public or not butthat must already have been decided by the words of theenactment. Therefore the courts will not be able to saywhether a fundamental right has been infringed or not.Therefore my submission is that, if you put in the word"reasonable", you
will be giving the courts the finalauthor ity to say whether the restrictions put are reasonableor reasonably necessary or not. With the words, I commendthis amendment to the House.
The Honourable Dr. B. R. Ambedkar: Sir, I move:
"that with reference to amendment No. 454......"
Shri H. V. Kamath: On a point of order, Sir, hasamendment No. 454 been moved?
Mr. Vice-President: Please continue.
The Honourable Dr. B. R. Ambedkar:
"with reference to amendment No. 454 of the List of amendments--
(i) in clauses (3), (4), (5) and (6) of article 13, after the words 'any existing law' the words 'in so far as it imposes' be inserted, and
(ii) in clause (6) of article 13, after the words 'in particular' the words 'nothing in the said clause shall affect the operation of any existing law in so far as it prescribes or empowers any author ity to prescribe, or prevent the State from making any law' be inserted."
Syed Abdur Rouf (Assam: Muslim): On a point of order,Sir, I think that Dr. Ambedkar's amendment cannot be anamendment to amendment No. 454. Amendment No. 454 seeks todelete clauses (2), (3), (4), (5) and (6), whereas Dr.Ambedkar's amendment seeks to insert some words in thoseclauses and cannot therefore be moved as an amendment to anamendment.
Mr. Vice-President: It seems to me that what Dr.Ambedkar really seeks to do is to retain the originalclauses with certain qualifications. Therefore I rule thathe is in order.
Shri H. V. Kamath: This will have the effect ofnegativing the original amendment.
Mr. Vice-President: Kindly take your seat.
The Honourable Dr. B. R. Ambedkar: From the speecheswhich have been made on article 13 and article 8 and the words "existing law" which occur in some of the provisos toarticle 13, it seems to me that there is a good deal ofmisunderstanding about what is exactly intended to be donewith regard to existing law. Now the fundamental article isarticle 8 which specifically, without any kind ofreservation, says that any existing law which is inconsistent with the Fundamental Rights as enacted in thispart of the Constitution is void. That is a fundamentalproposition and I have no doubt about it that any trainedlawyer, if he was asked to interpret the words "existinglaw" occurring in the sub-clauses to article 13, would read"existing law" in so far as it is not inconsistent with thefundamental rights. There is no doubt that is the way inwhich the pharse "existing law" in the sub-clauses would beinterpreted. It is unnecessary to repeat the propositionstated in article 8 every time the phrase "existing law"occurs, because it is a rule of interpretation that forinterpreting any law, all relevant sections shall be takeninto account and read in such a way that one section isreconciled with another. Therefore the Drafting Committeefelt that they have laid down in article 8 the full andcomplete proposition that any existing law, in so far as it is inconsistent with the Fundamental Rights,will stand abrogated. The Drafting Committee did not feel itnecessary to incorporate some such qualification in usingthe phrase "existing law" in the various clauses where thesewords occur. As I see, many people have not been able toread the clause in that way. In reading "existing law", theyseem to forget what has already been stated in article 8. Inorder to remove the misunderstanding that is likely to becaused in a layman's mind, I have brought forward this amendment to sub-clauses (3), (4), (5) and (6). I will readfor illustration sub-clause (3) with my amendment.
"Nothing in sub-clause (b) of the said clause shallaffect the operation of any existing law in so far as itimposes, or prevent the State from making any law, imposingin the interests of public order."
I am accepting Mr. Bhargava's amendment and so I willadd the word "reasonable" also.
"imposing in the interests of public order reasonablerestrictions on the exercise of the right conferred by thesaid sub-clause."
Now, the words "in so far as it imposes" to my mindmake the idea complete and free from any doubt that
theexisting law is saved only in so far as it imposesreasonable restrictions. I think with that amendment thereought to be no difficulty in understanding that the existinglaw is saved only to a limited extent, it is saved only ifit is not in conflict with the Fundamental Rights.
Sub-clause (6) has been differently worded, because theword there is different from what occurs in sub-clauses (3),(4) and (5). Honourable Members will be able to read for themselves in order to make out what it exactly means.
Now, my friend, Pandit Thakur Dass Bhargava enteredinto a great tirade against the Drafting Committee, accusingthem of having gone out of their way to preserve existinglaws. I do not know what he wants the Drafting Committee todo. Does he want us to say straightaway that all existinglaws shall stand abrogated on the day on which the Constitution comes into existence?
Pandit Thakur Dass Bhargava: Not exactly.
The Honourable Dr. B. R. Ambedkar: What we have said isthat the existing law shall stand abrogated in so far asthey are inconsistent with the provisions of thisConstitution. Surely the administration of this country isdependent upon the continued existence of the laws which arein force today. It would bring down the whole administrationto pieces if the existing laws were completely and whollyabrogated.
Now I take article 307. He said that we have madeprovisions that the existing laws should be continued unlessamended. Now, I should have thought that a man whounderstands law ought to be able to realize this fact thatafter the Constitution comes into existence, the exclusivepower of making law in this country belongs to Parliament orto the several local legislatures in their respectivespheres. Obviously, if you enunciate the proposition thathereafter no law shall be in operation or shall have anyforce or sanction, unless it has been enacted by Parliament,what would be the position? The position would be that allthe laws which have been made by the earlier legislature, bythe Central Legislative Assembly or the ProvincialLegislative Assembly would absolutely fall to pieces,because they would cease to have any sanction, not havingbeen made by the Parliament or by the local legislatures,which under this Constitution are the only body which areentitled to make law. It is, therefore, necessary that aprovision should exist in the Constitution that any lawswhich have been already made shall not stand abrogated for the mere reason that they have not been madeby Parliament. That is the reason why article 307 has beenintroduced into this Constitution. I, therefore, submit,Sir, that my amendment which particularises the portion of the existing law which shall continue in operation so far asthe Fundamental Rights are concerned, meets the difficulty,which several honourable Members have felt by reason of thefact that they find it difficult to read article 13 inconjunction with article 8. I therefore, think that this amendment of mine clarifies the position and hope the Housewill not find it difficult to accept it.
(Amendment No. 50 to amendment No. 454 was not moved.)
(Amendments Nos. 455, 469, 475 and 481 were not moved.)
Mr. Vice-President: Then we shall take up amendment No.485, first part. The House can well realize that I am goingthrough a painful process in order to shorten the time spenton putting the different amendments to the vote.
Syed Abdur Rouf: I want the first part of the amendmentto be put to the vote.
Mr. Vice-President: Then we come to another group, 456,472, 484 and 495.
(Amendments Nos. 456, 472, 484 and 495 were not moved.)
Mr. Vice-President: The next group consists of amendments Nos. 457, 466, 473 and 494.
(Amendments Nos. 457, 466, 473 and 494 were not moved.)
Mr. Vice-President: Then amendment No. 458 standing in the name of Mr Mohd. Tahir and Saiyid Jafar Imam.
Shri M. Ananthasayanam Ayyangar: That has already beencovered by Mr. Mahboob Ali Baig's amendment.
Mr. Vice-President: Still, it would depend upon theMover.
Mr. Mohd. Tahir (Bihar: Muslim): Sir, I beg to
"That in clause (2) of article 13, after the word'sedition' the words 'communal passion' be inserted."
Now. Sir, we find that under this clause we are givingpowers to the State to make laws as against certain offencessuch as libel, slander, defamation, sedition and similaroffences against the State. Now I want that these words"communal passion" be also added after the word "sedition"--which means, agitating or exciting the minds of onecommunity as against the other.
These words, Sir, libel, slander, defamation, sedition,are the common words found in the Indian Penal Code andfortunately or unfortunately, we find that this word doesnot find a place in the Indian Penal Code. The reason isvery simple, because, the Indian Penal Code and the old lawswere framed by a Government which was foreign to us. Now,this is the time when we must realise our merits anddemerits. We know that the agitation and the excitement ofcommunities against communities have done a great loss anddisservice to our country as a whole. Therefore, Sir, I think that the addition of this word is necessary. To tellthe truth, I would say that if in our country which is nowan independent country, we are really sincere to ourselves,this word also must find a place in the Constitution. I would request and appeal to Dr. Ambedkar and the House as awhole to give sound reasoning and due consideration for theaddition of this word.
At the end, Sir, I may submit that an amendment hasbeen moved by Mr. Munshi and I do not know whether it isgoing to be accepted or not. In case that amendment is goingto be accepted by the House. I would appeal that this wordmay be given a place in that amendment or wherever it isfound suitable. With these words. Sir, I move.
Mr. Vice-President: We come next to amendment No. 459.It is in the name of Mr. Thomas. It is verbal and thereforedisallowed.
Next we take up amendments nos. 460, 461 and the secondpart of 462. I would allow amendment No. 461 to be movedbecause that I regard as most comprehensive of the three.That is covered by Mr. Munshi's amendment. Is amendment No.460 moved?
Pandit Thakur Dass Bhargava: I do not want to move it.
Mr. Vice-President: Amendment No. 462; Mr. Kamath.
Shri H. V. Kamath: It is covered by amendment No. 461.
Mr. Vice-President: Amendment No. 462, first part. Iwas dealing with the second part just now. The first part ismore or less a verbal amendment and is disallowed.
Then, amendments Nos. 463 and 464 coming from twodifferent quarters are of similar import. Amendment No. 464,standing in the name of Shri Vishwambhar Dayal Tripathi maybe moved.
(Amendment No. 464 was not moved.)
Mr. Vice-President: What about amendment No. 463, in the name of Giani Gurmukh Singh Musafir?
Giani Gurmukh Singh Musafir: Not moving, Sir.
Mr. Vice-President: Then, we take up amendments nos.467 and 474. Amendment no. 467 may be moved. It stands in the name of Mr. Syamanandan Sahaya.
Shri Syamanandan Sahaya (Bihar: General): Sir, I beg to move:
"That in clause (3) of article 13, the word'restrictions' the words 'for a defined period' be added."
Sir, in moving this amendment before the House, whatwas uppermost in my mind was to see whether actually even in the matter of the three freedoms so much spoken of, namely,the freedom of speech, freedom of association and freedom ofmovement, we had really gone to the extent that every onedesired we should. I must admit that I did not feel happyover the phraseology of the clauses so far as this generaldesire in the mind of every body, not only in this House,but outside, obtained. I will, Sir, refer to the wording ofsub-cause (b) of clause (1) of article 13. This sub-clauselays down that all citizens shall have the right to assemblepeaceably and without arms. This is the Fundamental Rightwhich we are granting to the people under the Constitution.Let us see how this fits in with clause (3) of article 13which is the restricting clause. Clause (3) lays down thatnothing in sub-clause (b) of the said clause (1) shallaffect the operation of any
existing law, or prevent theState from making any law, imposing in the interests ofpublic order restrictions on the exercise of the rightconferred by the said sub-clause, Sir, the only right which we are giving by sub-clause (b) is the right to assemblepeaceably and without arms. This right to assemble is not ageneral right of assembly under all conditions. To assemblepeaceably is the first condition precedent and there is alsoa second condition. That condition is that the assemblyshould be without arms. On the top of these conditions weare laving down in sub-clause (3) that there shall be afurther restricting power in the hands of the State. I wouldmuch rather that clauses (3) and (4) did not form part of our Constitution. But, if the Drafting Committee and theother people who have considered the matter carefully thinkthat it is necessary to lay down restrictions even in thematter of assembling peaceably and without arms, I might respectfully submit that it would be necessaryto further restrict this restricting power by saying thatany law restricting this power must be for a specifiedperiod only. I do not think the House will agree that anyState should place on the statute book a permanent lawrestricting this Fundamental Right of peaceful assembly.
The most that the Constitution could accommodate aparticular Government at a particular time under aparticular circumstance was to give it the power to restrictthis right under these conditions but for a specified anddefined period only and that I submit, Sir, is the purposeof my amendment. The best interpretation that one could puton this clause is that the Drafting Committee has erred toomuch on the cautions side in this matter and they laveprobably kept the Government too much and the citizens toolittle, in view. I will submit that both in sub-clauses (3)and (4) the words 'for a defined period' should be added inorder that if a State at any time has to pass legislation torestrict these rights, they may do so only for a period. Itdoes not mean that once a State has passed such alegislation it is debarred from following it up by a secondlegislation in time if necessary but we must lay down in the Constitution that we shall permit of no such restrictive lawto be a permanent feature of the law of the land. A Stateshould not be empowered to pass a legislation restrictingpermanently peaceful assembly and assembly without arms. I think such a general power in the armoury of any State,however popular or democratic, would not be desirable. In the larger interests of the country, and particularly at theformative stage of the country, to give such wide powers in the hands of the State and with regard to such Fundamental rights as, freedom of speech, freedom of assembly andfreedom of movement would, I believe, be harmful and resultin the creation of a suffocating and stuffy atmosphere asopposed to the free air of a truly free country. Sir, I movethe amendment and commend it to the acceptance of the House.
(Amendment No. 470 was not moved.)
Mr. Vice-President: 471 is disallowed as verbal. Nos.476 and 477 are of similar import. I allow 476.
The Honourable Dr. B. R. Ambedkar: Sir I move--
"That in clause (4) of article 13, for the words 'thegeneral public' the words 'public order or morality' be substituted."
These words are inappropriate in that clause.
Mr. Vice-President: 477 is identical, 479, 480 and 486are of similar import
(Amendments Nos. 479, 480, and 486 were not moved.)
Mr. Vice-President: 482 and 483.
(Amendment No. 482 was not moved.)
Mr. Vice-President: 483--Sardar Hukam Singh.
Sardar Hukam Singh: Sir, I beg to move:
"That in clause (5) of article 13, after the words'existing law' the word 'which is not repugnant to thespirit of the provisions of article 8' be inserted."
The Honourable Dr. Ambedkar has rightly appreciated ourfears and we feel that is the object of most of the amendments that have been moved Certainly there are fears inour minds that if these articles stand independently--articles 8 and 13,--then there is a danger of
differentconstructions being put on them. Dr. Ambedkar has emphasisedthat if relevant articles of the Constitution are inquestion, all those articles that relate to one subjectshall be taken into consideration when some construction isgoing to be put by any Court and then article 8 would governbecause it says that "All laws in force immediately beforethe commencement of this Constitution in the territory ofIndia, in so far as they are inconsistent with theprovisions of this Part, shall to the extent of suchinconsistency, be void". That we have adopted, and this is what we feel that it should be made clear that certainlythose parts which are inconsistent would be void to thatextent. If that is the object as Dr. Ambedkar has explained,then why not make it clear in this section as well. Where isthe harm? I do not see that we would lose anything or thatit would change the beauty of the phraseology even if wemake it clear that these provisions are subject to article8. This is to be admitted that there are certain laws inforce just at present that restrict the liberty of thepeople. For instance I can quote the Land Alienation Act inPunjab. That allows only certain castes to purchase land of their own caste and precludes other castes to purchase thatland. If this distinction were based on some economicground, if it were to be enacted that all small tillers'rights would be safeguarded and their small lands would notbe alienable, we could understand that alright and such aprovision would be welcome. But when the discrimination isthere, we too feel that such a law should stand abrogated sofar as it is inconsistent with the provision in clause (5)or article 13. Because that gives freedom to acquire holdand dispose of property and if that law remains--LandAlienation Act, as it is and definition is not changed of the "agriculturist", there would be a conflict and theremight be certain constructions by Court which would beunfair. So if that is the object as Dr. Ambedkar hasexplained that article 8 would govern, then we should makeit clear and that is why I have suggested that after the words 'existing law' the words 'which is not repugnant to the spirit of the provisions of article 8' be inserted. That is my object and it should be made clear beyond any doubt.
Mr. Vice-President: Then we come to amendment No. 485,second part, standing in the name of Syed Abdur Rouf, and the first part of amendment No. 488 standing in the jointnames of Dr. Pattabhi Sitaramayya and others. The latterseems to be the more comprehensive of the two and may be moved.
(Amendment No. 488 was not moved.)
Mr. Vice-President: Then in that case, the second part of amendment No. 485, standing in the name of Syed AbdurRouf may be moved.
Syed Abdur Rouf: Sir, I beg to move:
"That in clause (5) of article 13, for the word'State', the word 'Parliament' be substituted."
Sir, in sub-clauses (d), (e) and (f), we have got themost valuable of our Fundamental Rights. But clause (5)seems to take away most of our rights, because States havebeen given power to restrict, to abridge and even to takeaway the rights if and when they like. We remember the word'State' has been defined as to include even localauthor ities etc, within the territory of India or under thecontrol of the Government of India. Even village panchayats,small town committees, municipalities, local boards allthese, to a certain extent become States, and it has beenleft to these States to deal with these valuable Fundamental rights. Sir, I will bring one instance before you. Suppose,due to political views, a particular village or panchayatarea is divided between the major ity and the minor ity. Now,if the major ity of the Panchayat by a resolution asks the minor ity not to move freely in the area or to reside there,or to dispose of their property, which law will prevent the major ity from doing so, and which law is there to safeguardthe interests of the minor ity? As these; are most valuablerights, the State should not be trusted with making lawsregarding these rights. In my opinion, Sir, it is
only theParliament which can to the satisfaction of the people, dealwith these questions. As it is very dangerous to leave thispower in the hands of the small States, which will compriseeven village panchayats, we must be very careful and,therefore, I suggest that in place of 'State', the word'Parliament' should be substituted.
Mr. Vice-President: Then amendments Nos. 487, 489 and490 are of similar import. No. 487 may be moved.
(Amendment No. 487 was not moved.)
Mr. Vice-President: Amendment No. 489 standing in thejoint names of Mr. Mohd. Tahir and Saiyid Jafar Imam.
Mr. Mohd. Tahir: Sir, I beg to move:
"That in clause (5) of article 13, the word 'either'and the words 'or for the protection of the interests of anyaboriginal tribe' be omitted."
Sir, I am not going to make any speech in thisconnection, but want only to submit that the removal of these words would make the clause of a general character,which certainly includes the safeguards of the interests of the aboriginal tribes as well. I understand the Drafting Committee was also of this opinion, but I do not know whythis clause was worded in this manner. Anyhow, I think itbetter to delete the words in the manner I have suggested.
Mr. Vice-President: Amendment No. 490 is the same asthe one now moved, and it need not be moved.
Amendment No. 488, second part, and No. 491 are ofsimilar import. Amendment No. 491, standing in the name ofDr. Ambedkar may be moved.
The Honourable Dr. B. R. Ambedkar: Mr. Vice-President,Sir, I move:
"That in clause (5) of article 13, for the word'aboriginal', the word 'cheduled' be substituted."
When the Drafting Committee was dealing with thequestion of Fundamental Rights, the Committee appointed for the Tribal Areas had not made its Report, and consequentlywe had to use the word 'aboriginal', at the time when theDraft was made. Subsequently, we found that the Committee onTribal Areas had used the phrase "Scheduled Tribes" and wehave used the words "scheduled tribes" in the scheduleswhich accompany this Constitution. In order to keep thelanguage uniform, it is necessary to substitute the word"Scheduled" for the word "aboriginal".
Mr. Vice-President: There is, I understand, anamendment to this amendment, and that is amendment No. 56 ofList I, standing in the name of Shri Phool Singh.
(Amendment No. 56 of list I was not moved.)
Mr. Vice-President: That means this amendment No. 491stands as it is.
Then we come to amendment No. 488.
(Amendment No. 488 was not moved.)
The Honourable Dr. B. R. Ambedkar: Sir, I move:
"That in clause (6) of article 13, for the words'public order, morality or health', the words 'the generalpublic' be substituted."
The words 'public order, morality or health' are quiteinappropriate in the particular clause.
Mr. Mohd. Tahir: *[Mr. President, my amendment No. 500is as follows.
"That after clause (6) of article 13, the following newclause be added.
'(7) The occupation of beggary in any form or shape ofperson having sound physique and perfect health whethermajor or minor is totally banned and any such practice shallbe punishable in accordance with law.'"
Sir, I have moved this amendment for this reason that,if the House agrees with this amendment surely it willresult in solving to a great extent the difficulties oflabour which exist in our country. Our industries, which arevery vital and in many places have failed due to lack oflabour, can flourish to a great extent. Besides, I wouldlike to state that in our country thousands, lakhs paycrores of human beings will imbibe the spirit of self-reliance and self-respect. We see that in our country manyable-bodied persons who
* [ ]Traslation of Hindustani speech.
can work and can earn their livelihood, are to be foundbegging on road sides. If you tell them that they can work,that they can maintain themselves by earning theirlivelihood and can do good to their country by their labour,they would say in reply "Sir, this is our ancestralprofession and we are forced to do it". I would
like to saythat there are so many countries on this earth: but if youlook around, you will find this ugly spot only on the faceof our country. Therefore, I want that there should be somesuch provision in our Constitution as would be beneficial toour country. Obviously, those that are helpless, forinstance many of our unfortunate countrymen, who are blindlame and cannot use their hands and feet, really deservesome consideration. In such cases begging on these and othersimilar grounds may be justified. But even in this matter, I would submit that the State should be responsible and somesuch institution or home be founded in some places wherethey might be brought up, while those that are able-bodiedand healthy should be forced to work. By doing so, ourlabour problem will be solved to a great extent and croresof human beings, who have taken to begging as profession,would be prevented from doing so. This will create in themthe spirit of self-respect and self-reliance. Therefore, Ihope that Dr. Ambedkar will accept this amendment of mineand the House will also help me by accepting it. With thesewords, I submit this amendment for the consideration of theHouse.]
The Assembly then adjourned till Half Past Nine of theClock on Thursday, the 2nd December 1948.