The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Half Past Nine of the Clock, Mr. Vice-President (Dr. H. C. Mookherjee, in the Chair.
Mr. Vice-President (Dr. H. C. Mookherjee): We shall resume discussion of Article 13.
I should like to know the views of the House as to the way we should deal with the following amendments--we postponed consideration of these amendments yesterday:
Amendments No. 442, No. 499, second part of No. 443,No. 468 and No. 501.
Shri M. Ananthasayanam Ayyangar (Madras: General): MayI suggest that in as much as these relate to the free choice of vote and some other matters which are not already prescribed in article 13, these may stand over and be allowed to be moved as a separate clause later on in the Fundamental Rights, and that we need not delay the passing of article 13, amendments with respect to which have already been moved, and the discussion may start?
Mr. Vice-President: Is that the view of the House?
Honourable Members: Yes, yes.
Mr. Vice-President: Then we shall proceed with the general discussion of the article. A large number of honourable Members desire to speak on this article.Therefore, with the permission of the House, I would like to limit the duration of the speeches to ten minutes each ordinarily. I shall extend the time wherever I consider necessary. Have I the permission of the House to fix this time-limit?
Honourable Members: Yes.
Shri H. V. Kamath (C. P. and Berar: General): On a point of order, Sir, Two amendments have been held over.Unless they are moved, how can general discussion on the article as a whole go on?
Mr. Vice-President: What are those amendments please?
Shri H. V. Kamath: No. 499 and No. 442.
Mr. Vice-President: They will form part of a new clause.
Sardar Bhopinder Singh Man(East Punjab: Sikh): *[Mr.Vice-President, I regard freedom of speech and expression as the very life of civil liberty, and I regard it as fundamental. For the public in general, and for the minor ities in particular, I attach great importance to association and to free speech. It is through them that we can make our voice felt by the Government, and can stop the injustice that might be done to us. For attaining these rights the country had to make so many struggles, and after a grim battle succeeded in
*  Translation of Hindustani speech.
getting these rights recognised. But now, when the time for their enforcement has come, the Government feels hesitant;what was deemed as undersirable then is now being paraded as desirable. What is being given by one hand is being taken away by the other. Every clause is being hemmed in by so many provisos.
To apply the existing law in spite of change conditions really amounts to trifling with the freedom of speech and expression. From the very beginning we have stood against the existing laws, but now you are imposing them on us. You want to continue the old order so that there should be no opportunity of a trial, of putting up defence and of an appeal. If a meeting is held, then for breaking it up lathis may be used, and people may be put into jail without trial; their organisations may be banned and declared illegal. We do not like this shape of things. If you want to perpetuate all that, then I would like to say that by imposing all these restrictions you are doing a great injustice. There are a few rights to which I attach very great importance. You have included them in the articles relating to directive principles of State policy, and so we cannot go to a Court of law for their enforcement. You arediluting these rights with the result that nothing solid remains.
Mr. Vice-President, I want that these rights should not be restricted so much, and all opposition that is peaceful and not seditious should get full opportunity, because opposition is a vital part of every democratic Government.To my mind, suppression of lawful and peaceful opposition means
heading towards fascism.]
Seth Govind Das (C. P. and Berar: General): *[Mr. Vice-President, article 13 is the most important of all the articles concerning Fundamental Rights. The rights that have been granted to us by these articles are all very important.Yesterday Shri Damodar Swarup Seth and Shri K.T.Shah moved their amendments in this House. The purporse of the amendments is that the rights which have been given to us with one hand are being taken away by the other hand. This may be true to some extent but if we consider the present national and international situation as also the fact that we have achieved freedom only recently and our government is in its infancy, we shall have to admit that it was necessary for the government to retain the rights it has done after granting these fundamental rights. We should see what is happening in our neighbouring country, Burma. We should also keep in view what is happening in another great country of Asia--I mean war-torn China. In view of what is happening in our neighbouring countries and of the situation in our own country, we should consider how necessary it is that the Government should continue to have these powers.
I would have myself preferred that these rights were granted to our people without the restrictions that have been imposed. But the conditions in our country do not permit this being done. I deem it necessary to submit my views in respect to some of the rights. I find that the first sub-clause refers to freedom of speech and expression.The restriction imposed later on in respect of the extent of this right, contains the word 'sedition'. An amendment has been moved here in regard to that. It is a matter of great pleasure that it seeks the deletion of the word 'sedition'.I would like to recall to the mind of honourable Members of the first occasion when section 124 A was included in theIndian Penal Code. I believe they remember that this section was specially framed for securing the conviction of Lokamanya Bal Gangadhar Tilak. Since then, many of us have been convicted under this section. In this connection many things that happened to me come to my mind. I belong to a family which was renowned in the Central Provinces for its loyalty. We had a tradition of being
* Translation of Hindustani speech.
granted titles. My grandfather held the title of Raja and my uncle that of Diwan Bahadur and my father too that of Diwan Bahadur. I am very glad that titles will no more be granted in this country. In spite of belonging to such a family I was prosecuted under section 124 A and that also for an interesting thing. My great grandfather had been awarded a gold waist-band inlaid with diamonds. The Brit ish Government awarded it to him for helping it in 1857 and the words "In recognition of his services during the Mutiny in 1857" were engraved on it. In the course of my speech during the Satyagraha movement of 1930, I said that my great-grandfather got this waist-band for helping the alien government and that he had committed a sin by doing so and that I wanted to have engraved on it that the sin committed by my great-grandfather in helping to keep such a government in existence had been expiated by the great-grandson by seeking to uproot it. For this I was prosecuted undersection 124 A and sentenced to two years' rigorous imprisonment. I mean to say that there must be many Members of this House who must have been sentenced under this article to undergo long periods of imprisonment. It is a matter of pleasure that we will now have freedom of speech and expression under this sub-clause and the word 'sedition' is also going to disappear.
The next matter to which I would like to draw your attention is sub-clause (b) of this article. The expression" to assemble peacefully without arms", occurs in it. I want to draw your attention to the words "without arms" in particular. I agree that we should have the right of assembling in this way without arms only. We had accepted the creed of non-violence and through it we have
achieved freedom. It is true that in the present world situation weare compelled to maintain armies. But I hold that the welfare of humanity can be secured by means of non-violence alone. We should have a right of assembling but assembling without arms.
I would also like to draw your attention to the two following sub-clauses and these are sub-clauses (f) and (g)which run as follows:
"to acquire, hold and dispose of property;" and
"to practise any profession or to carry on any occupation, trade or business."
Speaking for myself I may say that just as I hold that humanity cannot achieve its welfare except through non-violence so also I do believe that there cannot be stable peace, unless and until private property is abolished. I am not a socialist or a communist but at the same time I hold that what the big capitalists, traders, zamindars,talluqdars have to do to protect their property does not allow of their enjoying true happiness. It is not true to say that people lacking wealth alone are unhappy. They are no doubt unhappy but in the present economy the moneyed are more unhappy than the moneyless, and this band of gold is today crushing the richman's neck. This wealth has been in their possession for long and that is why they are anxious to retain it. It is not for pleasure that they want to keep it. If they are forcibly deprived of their wealth, socialism or communism would not be established. The example of Russia bears testimony to it. Individual property was expropriated there by force and the result has been that it could not be destroyed. On the other hand it is increasing. But if we make an effort to change values in this country and the world and bring about such a psychological atmosphere as makes people eager to rid themselves of the burden of property, we would have reached the desired goal and there would then be the possibility of the establishment of a true socialistic state. There has been change in values in the world from time to time. It is a historical fact that at one time man devoured man. At that time the man who had the capacity of devouring the greatest number of men, must have been worshipped by the society, because he must have been recognised as the bravest among them. Times changed to usher in the epoch of slave-trade. Respectability was judged by the number of slaves one had. Those conditions changed. Today the capitalists are characterised by our society as plunderers and dacoits. They no doubt make such remarks about capitalists, but I may be excused for saying that the major ity of the socialists are such that if they were to get hold of this property, they would forsake socialism. The necessity is for a change in outlook. If there is a change in values by the propagation of these ideas in society and if the capitalists are looked down upon as thieves and pilferers by everyone they would not like to keep their wealth. Such a change of mind and heart can be brought about only through non-violence. I hope that in time to come the articles concerning property will not find a place in the Constitution.
I heartily support the whole of the article 13 on the Fundamental Rights.]
Shri Jaipal Singh (Bihar: General): Mr. Vice-President,Sir. So far as I am concerned, this particular article in no way frightens me, although the various fundamental rights have been hedged in by so many exceptions. To me it is obvious that whatever we put into the Constitution, its value, its use to us will depend upon the way we work all these things. But there are one or two things on which I would like Dr. Ambedkar to enlighten me. The first point on which I would like his clarification is in regard to the amendment which he has moved, amendment No. 491, where in he seeks to substitute the word "aboriginal" by the word "scheduled". Sir, I am always at a disadvantage whenever anything affecting aboriginals has to be discussed at this stage for the obvious reason that the two reports of theTribal sub-committees have not been fully discussed on the floor of this House, with the result that the House has
not been able to obtain its collective view point or arrive at a collective decision as has been the case with all the other articles, that is to say, articles which affect the non-tribals of our country.
Take the question of this word 'tribal'. As far as I know neither of the sub-committees had gone into the work of scheduling. I know it for a fact that the sub-committee of which I was a member did nothing of the sort and, in fact,bodily the Drafting Committee has just put into the Draft Constitution whatever obtained in the Government of India Act. Now, look at the list.
My second point that I want to have clarified is whether the advisory councils or the regional councils,which are envisaged in the recommendations of the two sub-committees, will operate outside the so-called scheduled areas. If they do not, then I want to know from Dr. Ambedkar what is going to happen to the Adibasis, who are in millions, outside those scheduled areas. As far as I can understand the language of the Constitution, the regional councils and the advisory councils are to advise the Governor to participate as it were in the legislation of the State only in regard to the scheduled areas. Well, once it is accepted that the regional councils and the advisory councils may operate also outside the scheduled areas then my point is met.
Take the case of West Bengal. In West Bengal, according to what is proposed, there shall be no scheduled areas; inWest Bengal there are 16 lakhs of Adibasis. I want to know what is going to happen to them. There is no regional council; there will be no advisory council there. Who is going to advise the Governor in regard to their welfare, in regard to whatever should be done or should not be done,what act may operate for them or against them? I think that is a point that has to be clarified.
Sir, the Tribes inventory that is in this Draft Constitution is most unsatisfactory. I will exemplify one or two cases. Sir, you yourself come from West Bengal. Bengal has been carved into three provinces, Bengal united, now West Bengal, Bihar and then Orissa. The Brit ish had their own arguments for their territorial boundaries. At the present moment, you know it only too well that none of these three provinces seems to be satisfied with the boundary alignment. West Bengal wants something of Bihar; Bihar also wants something of West Bengal. Orissa also is clamouring for some more territory from Bihar. That is the present political situation, but, how does it affect the Adibasis?Now the Tribal Sub-Committee in a way has been outmoded to this extent that lakhs and lakhs of States people have been integrated into provinces. Take the question of Orissa. When the Tribal Sub-Committee went to Orissa it had to deal only with those areas that were excluded or partially excluded.The present position is that about 24 States have been integrated into Orissa and several others into the Central Provinces. Most of these States are overwhelmingly populated by Adibasis. What happens in regard to them? Whatever scheduled areas the Sub-Committee has recommended is really insignificant. It does not cover the whole Adibasis population, particularly of the two provinces of the Central Provinces and Orissa.
I would like Dr. Ambedkar, therefore, to tell me quite clearly that whatever provisions, whatever little concessions that he desires this Constitution should have,will apply also to those areas that are not particularly specified within the scheduled areas.
Then I come to article 13 (1) (b), namely, to "assemble peaceably and without arms". I have to point out that this matter of the Arms Act has been very mischievously applied against the Adibasis. Certain political parties have gone to extremes to point out that because Adibasis carry bows and arrows, lathis or axes, which they do daily as a normal part of their life, which they have done for generations and generations, and what they are doing today they have done before, that they are preparing for trouble.
Let me give you the instance of the Oraons. We have in this
Assembly only one Oraon member. Now the Oraon group of Adibasis constitutes the fourth largest block of Adibasis in India. Just about now, they have what we call Jatras orMelas. These are annual occasions for their cultural activities. They have a certain ceremony in which the head of the Oraon village will carry the flag and the rest of them carry lathis with them and proceed into the various akhadas or villages. It is a festival for the people; they have done it in a harmless way for generations and generations and, now we have been told last year and the year before last that we should not carry weapons. I do not mind pointing out there are several Members here from Bihar who will never be able to get back to their homes unless they are escorted with people and with arms. In my own part,we live in the jungles and every one, even women, may I point out, carry what might be designated arms, but they are not arms in that sense. Whenever we have to hold meetings,if people come with their own usual things, I want to know whether it is going to be interpreted that we are assembling unpeaceably and carrying arms for an unlawful purpose. Theseare the only points, Sir, that I want to have clarified.
I will give one more instance. Every seven years, it is the custom in Chota Nagpur to have what they call. EraSendra, Janishikar. Every seven years, the women dress as men and hunt in the jungles--dressed as men, mind you. That is the occasion when naturally women like to show masculine prowess. They arm themselves like men with bows and arrows,lathis, belas and so forth. Now, Sir, according to this particular article in the Constitution, the Government might interpret that women every seven years were getting together for a dangerous purpose. I urge the House to do nothing that is going to upset the simple folk. They have been among the most peaceful citizens in our country and we should be very very cautious in doing anything which might be misunderstood by them and lead to trouble.
Sir, I have, as I have said, no difficulty in accepting this particular article, but I thought I should seek clarification from Dr. Ambedkar on these two particular points.
Mr. Vice-President: Mr. Hanumanthaiya.
Kazi Syed Karimuddin: (C. P. & Berar: Muslim): I have not caught your eye, Sir.
Mr. Vice-President: Unfortunately, I have only two eyes. They will be turned to your side the next time.
An Honourable Member: Why do you not have a third eye,Sir?
Mr. Vice-President: Why can you not come to the front Bench? I say it is the fault of the House that they unanimously chose an old man as the Vice-President. His eye-sight is not as good as that of younger men. Mr.Hanumanthaiya.
Shri K. Hanumanthaiya (Mysore): Mr. Vice-President,Sir, this article incorporates some of the most cherished rights of us all. For the last sixty and odd years during which the freedom movement was taking shape, we made innumerable speeches and sacrifices in order to win the fundamental rights that are incorporated in this article.But, the point of view of many members here as well as the opinion of some people outside is that these fundamental rights have been so much curtailed that their original flavour is lost. Sir, every law, whether it is in the form of a right or a duty, takes shape according to the condition of the society then prevailing. We went through a course of suffering and sacrifice which were imposed upon us by the repressive laws of Brit ish imperialism; this naturally made us votaries of unadulterated fundamental rights and that was our hope. But, ultimately when we emerged out of thoseinnumerable difficulties, we are faced, within our ownsociety, with elements who want to take advantage of thoserights in order to do violence to men, society and laws.Hence it is that the Drafting Committee as well as theGovernments in the various provinces and the Centre, arehard put to safeguard these rights in their pristine purity.No man who believes in violence and who wants to upset theState and society by violent methods should be allowed tohave his way
under the colour of these rights. It is forthat purpose that the Drafting Committee has thought it fitto limit the operation of these fundamental rights.
The question next arises whether this limitingauthor ity should be the legislature or the court. That is avery much debated question. Very many people, veryconscientiously too, think that the legislature or theexecutive should not have anything to do with laying downthe limitations for the operation of these fundamental rights, and that it must be entrusted to courts which arefree from political influences, which are independent andwhich can take an impartial view. That is the view taken bya good number of people and thinkers. Sir, I for one, thoughI appreciate the sincerity with which this argument isadvanced, fail to see how it can work in actual practice.Courts can, after all, interpret the law as it is. Law oncemade may not hold good in its true character for all time tocome. Society changes; Governments change; the temper andpsychology of the people change from decade to decade if notfrom year to year. The law must be such as to automaticallyadjust itself to the changing conditions. Courts cannot, in the very nature of things, do legislative work; they canonly interpret. Therefore, in order to see that the lawautomatically adjusts to the conditions that come into beingin times to come, this power of limiting the operation of the fundamental rights is given to the legislature. After all, the legislature does not consist ofpeople who come without the sufferance of the people. The legislature consists of real representatives of the peopleas laid down in this Constitution. If, at a particular time,the legislature thinks that these rights ought to beregulated in a certain manner and in a particular method,there is nothing wrong in it, nothing despotic about it,nothing derogatory to these fundamental rights. I am indeedglad that this right of regulating the exercise of fundamental rights is given to the legislature instead of to the courts.
Then, Sir, here in article 13, about seven fundamental rights are incorporated. I wholeheartedly feel the Drafting Committee has done well in incorporating the first four freedoms, freedom of speech and expression, freedom toassemble peaceably and form associations, and to move freelythroughout the territory of India. The next three clauses,to reside and settle in any part of the country, to acquire,hold and dispose of property, and to practise anyprofession, or to carry on any occupation, trade orbusiness, Sir, in my opinion do not take the character of fundamental rights. They are not really fundamental rights.They are matters incidental to legislation, that can bepassed either by the Parliament or the legislatures of theUnits. I find these three rights which are incorporated asfundamental rights in this article 13 are not so treated byany other country except, perhaps, Ireland and Switzerland.In America, we do not find these three rights incorporatedas fundamental rights. To acquire property, to settle downin a particular town, to practise any trade or profession inany part of the country he likes, are not really fundamental rights. I may be pardoned if I say this that the men who didthe work of shaping these constitutional proposals, amajor ity of them, have come from the uppermost strata ofsociety. After all, they can think of what suits theirpsychology and their class or their strata of society. It isfrom that point of view they have framed these three rights.Really speaking, whether these three rights are fundamentalor not, we ought to judge from the point of view of thepeople of the villages and people of the Units. I for onefeel that these are rather not rights, but liabilities thatare sought to be imposed upon the people of the villages andof the Units. I very much wish that the Drafting Committeeand this Assembly could now delete these three rights andrelegate them to the discretion of the legislature of theUnits but now it is too late and we have to accept themsomehow or anyhow. Here arises a conflict in the future
thatthe Units in order to safeguard the rights and interests of the people within their respective areas, may try tocircumvent these three rights that are conferred by thisConstitution. It will happen. I have no doubt whatsoever inmy mind, that here arises a plentiful source of litigation.Yesterday I happened to read Sir Ivor Jennings' opinionabout our Fundamental Rights. He says, the rights conferredin this Chapter and especially in this section are socomplicated, are worded in such a verbose manner, that itwill be a fruitful source of income to constitutionallawyers. There is a good deal of truth in it. Theenunciation of the Fundamental Rights and the exceptionsadded on by provisos are so worded--and they had to be likethat because it is impossible to foresee all exigencies, andmake provision for them now alone--that there will belitigation on a scale which none of us have ever seen orcontemplated. Every man who feels aggrieved can go to anyCourt of Law and the Supreme Court will be full of casesbetween individuals and individuals, between individuals andState, between State and State, between the CentralGovernment and State Governments. This litigation--I do notsuppose--will be helpful to the interest of the country.Litigation--I need not argue about it--litigation surelyruins both the Parties to it. There is a Kannada proverb themeaning of which is "a successful party in a case is as goodas defeated and a defeated party in a case is as good asdead". And whenever there arises litigation in interpretingthese clauses, political controversies also arise conferring fundamental rights in this manner-especially the last threeclauses--will continuously raise political storms in theshape of litigation in regard to interpretation of theseFundamental Rights.
Kazi Syed Karimuddin: Mr. Vice-President, Sir, there isno denying the fact that this article is the very life of the Draft Constitution. Without this article the Constitution will be a dead letter. It must also beunderstood that the Rights contemplated under article 13 areadmittedly inalienable rights and the point involved iswhether these rights can be delegated to the Governments orwe are going to lay down principles which cannot be subjectmatter of legislation or the vagaries of the legislatures.My submission is that these are Fundamental Rights regardingindividuals a contemplated under article 13 which cannot bemade subject matter of the vagaries of the Legislatures.Clauses (2) to (6) of this article rob the people of theonly guarantee which will make them secure and my submissionis that clauses (2) to (6) are very dangerous clauses.Suppose, in a State there is a political party, which ishostile to the Central Government and they frame laws to thegreat detriment of the political minor ity or the religiousminor ities. What can be done? People have to suffer and there would be untold miseries. Particularly the wording'subject to operation of existing laws' is very unjust. Whatis the situation today in India? Practically there is astate of siege. There are Goonda Public Safety Act, etc. inall the provinces in which there is neither appeal, nor anywarrant is necessary for arrest, and searches can be madewithout justification. In spite of this, the article laysdown that the existing laws will be recognized. These unjustlaws which do not provide appeals and which do not provideany proper representation will be recognized under article13. There is no doubt that we are living in an emergencyperiod but that does not mean that article 13 should be inconsonance with emergencies. Another part of the article isthe right to assemble peacefully and without arms. Whatgreater restriction could have been laid down by the framersof the Constitution than this and in spite of that the legislatures of the States are empowered to have morerestrictions as embodied in clauses (3) and (4). Now thepoint is whether a particular legislation is in the interestof the people, or whether that can be delegated to thejudiciary or to the States' Legislatures. My submission isthat you must realise that
we cannot entrust theinterpretation of these clauses in the Fundamental Rights to the vagaries of legislatures. In the State Legislatures the major ity is capable of practically oppressing theminor ities, political or communal. The very purpose of thisFundamental Right is being defeated. The Fundamental Rightsare being enacted only with a view to placing restrictionson the legislation. By these clauses (2) to (6) we areenlarging the scope of this article 13 and we are enlargingthe scope of the powers of the Provincial Legislatures orStates. This is entirely to the detriment of the politicalor religious minor ities. If this article as it stands ispassed, my submission is that it will be taking away thoserights which are given in article 8 of the Constitution.There is no parallel to these restrictions in anyConstitution of the world. In the American Constitution allthese rights have been entrusted to the judiciary simplybecause the political parties who are elected from time totime cannot be entrusted with the interpretation of laws.The main principle should have been whatever is notforbidden should have been allowed. Apart from that, twoamendments have been moved, one by Mr. Mohamed Ismail and the other by Mr. Tahir. My submission is that both theseamendments are very innocent and both these are verynecessary for the protection of the minor ities. Mr. Ismail'samendment advocates that personal law should be respectedand this should be embodied in this Constitution. The peopleoutside and the Members of the Constituent Assembly mustrealize that a Muslim regards the personal law as part of the religion and I really assure you that there is not asingle Muslim in the country--at least I have not seen one--who wants a change in the mandatory provision of religiousrights and personal laws and if there is any one who wants achange in the mandatory principle, or religion as a matterof personal law, then he cannot be a Muslim. Therefore ifyou really want to protect the minor ities--because this is a secular State it does not mean that people should have noreligion--if this is the view of the minor ity Muslims or anyother minor ity that they want to abide by personal law,those laws have to be protected. The amendment of Mr. Tahiris very important and I feel that every Member of theConstituent Assembly must realize that it is importantbecause we have seen after 15th August, whether Muslims areresponsible or the Hindus are responsible for communalpassion, it has eaten away everything that is good insociety. It was really a canker that was destroying thesociety and would have done so but for the CentralGovernment. Then communal passion should be made an offence.In my opinion this is a very vital amendment that has beenmoved and it should be accepted by Dr. Ambedkar; Sir, as Ihave said even Dr. Ambedkar in his book 'States andMinor ities' has said--
"No law shall be made abridging the freedom of thepress, of association and of assembly except forconsideration of public order and morality."
In 1947 he was agreeable that only the first part ofarticle 13 should be enacted in our Constitution and withina year he is so changed that he has placed so manyrestrictions that take away what has been given underarticle 8.
Mr. Vice-President: You seem to make the mistake thatDr. Ambedkar is responsible for everything connected withthis Draft Constitution. There was the whole Drafting Committee.
Kazi Syed Karimuddin: My submission is that if you takethe opinion of the minor ities in this House--a Sikhrepresentative has spoken, and I am speaking now--and if youtake votes, you will find that the minor ities in the countrywill say that article 13 is not sufficient protection for them. Therefore, I earnestly plead for deletion of clauses(2) to (6). I strongly support the other two amendments towhich I have referred. If article 13 is passed as it stands,it is not acceptable to the minor ities. It is no freedom ofspeech that you are guaranteeing It is no freedom of thepress that you are giving. You are giving by one hand andtaking it away by the
Chaudhari Ranbir Singh (East Punjab: General): Mr.Vice-President, Sir, I am not in agreement with those whoare for abolition of these provisions from the text duringthe transitional period. This is why I gave notice of twomore provisions to article 13. They are as under:
"That the following new clauses (7) and (8) be added toarticle 13:
'(7) Nothing in sub-clauses (d), (e) and (f) of thesaid clause shall affect the operation of any existing lawor prevent the State from making any law imposingrestrictions on non-agriculturists to acquire and holdagricultural land, for the protection of the interests of the tillers of the soil or the peasantry.
(8) Nothing in sub-clauses (d), (e) and (f) of the saidclause shall prevent the State from making laws to declarethe minimum of economic holdings of land inalienable'."
Sir, after further consideration, I changed my mind and didnot move these amendments, because I think in sub-clause (5)of the article, the words "in the interests of the generalpublic" denote, mean and cover my point that whenever theimposition of restrictions is found to be necessary for theprotection of the interests of the tillers of the soil andlabourers, the governments will have the right to impose thenecessary restrictions on any section of the society, or mayallow to continue such laws as are already in existence,which the Governments think are necessary for the protectionof the interests of the peasantry or labourers.
I come from East Punjab, and there is a law which isknown as the Land Alienation Act, according to which certainclasses are debarred from acquiring
land, by law. I agree with my Friends, specially Harijanswho advocate that the Harijans and other persons who areactually the tillers of the soil should have the right toacquire land. But I fail to understand the argument thateach and every person whether he is a tiller of the soil ornot, should be put on a par with the tillers of the soil,and should have the liberty to acquire agricultural land. Ifthat is to be the case, then we will be creating a newproblem--the problem of zamindaries,--the same problem ofzamindaries which we are abolishing or have promised toabolish from our country. In several provinces, laws for theabolition of the zamindari system have already been enacted.As regards the Punjab, I am of the view, that it cannot bedenied that the absence of zamindari system in the Punjab inits acute form as it exists in other provinces is the resultof the Land Alienation Act, and this is the real reason whythe agriculturists are in a more advanced position in thePunjab than in other provinces. I therefore, feel verystrongly and rightly that the legislatures of the State and the various governments should have the full liberty toimpose restrictions on the non-tillers of the soil onacquiring or holding agricultural lands, and to declare aminimum economic holding of land inalienable, for theprotection of the interests of the tillers of the soil orthe peasantry.
Moreover, the overwhelming major ity of the populationof our country depends on agriculture and they are thetillers of the soil. So the words "general public interests"can mean only the interests of the peasantry and thelabourers, and not only the interests of the vocal middleintelligentia and vested people.
Mr. Vice-President: Maulana Hasrat Mohani (Cheers) I amglad the House recognises the excellent services rendered byMaulana Hasrat Mohani to this country. He was the first tostand for total independence of our Mother-Land.
Maulana Hasrat Mohani (United Provinces: Muslim): *[Mr.Vice-President, when I rose to speak, my first impulse wasto support whole-heartedly the amendment moved by Mr. Kamathand even now I have come here with that idea. In the laterspeeches and amendments, one amendment has been moved by Mr.Muhammad Ismail of Madras and I give my full support to it.Besides, I also support the amendment of Mr. K. T. Shah. Mr.Muhammad Ismail in the second part of his amendment has mademention of personal liberty. Mr. K.T. Shah's amendment isalso of
similar nature. I shall speak at the end about hisamendment. First of all, I would like to give full supportto Mr. Kamath's amendment. Mr. Kamath has said that everyone should have the right to bear arms. This is a testamendment. If Dr. Ambedkar and his committee are honest,then surely they ought to accept this section and include itin the article at once. If he wavers or raises any objectionas I know he is capable of doing, as Dr. Ambedkar's legalabilities are established, and if he wishes, he can turnnight into day and day into night and can prove itconclusively,--then I would like to tell him that this is atest amendment and, if you do not include it, it would meanthat your tendency is the same as that of the Brit ishGovernment. You know what the Brit ishers had done. They hadpromulgated the Arms Act in India. The result was that allthe inhabitants of Hindustan were kept as imbeciles. If youalso have the same design, then it is a different matter.But if there is any national Government and an IndianGovernment, then there is no reason why you should depriveanybody of this right. If you too will forge an Arms Act andwill deprive the people of this right, then I would say thatyour attitude and way of doing things is much worse thanthat of the Brit ishers. It will be much worse. The Arms Act,enforced by the Brit ish Government, was applicable to oneand all with the exception of the ruling class. We wereunder the impression that under our own Government thisrestriction will be removed. Unfortunately at present herewe have
* Translation of Hindustani speech.
a party Government and they want to retain it, so that theAct may be applied against their political opponents and maynot be enforced against their own party men.
On the basis of my own experience, I would like to saysomething about U. P. In particular I would tell you aboutKanpur city which I represent. The U. P. Government therehave singled out the Socialists, the Communists,Independent-Socialists,--including Muslims--ForwardBlockists and even those who were suspected of standingagainst them as rival candidates in the elections and putrestrictions on them, and on one plea or the other they werebrought under the provision of the Defence of India Act.Some were branded as Goondas, others were stamped asCommunists, there were others who were told that they weresupporting Hyderabad and collecting funds. There were yeto thers who were told that they were connected with thosemembers of the Communist Party who are working under groundand they were sent to jails. In short, they applied this Actagainst all rival parties, and such was the illtreatmentagainst the Muslims that every Muslim of position at Kanpurwas house-searched and even if a kitchen-knife was found inhis house, the Arms Act was applied and he was sent to jail.Some of them have been released and some are still in jails.Therefore, I would like to submit that for you, who are aparty Government, this is a test amendment. You ought toaccept Mr. Kamath's amendment and give the right of bearingarms to everybody. If you are not prepared to do this, thenyou will be setting an Indian bureaucracy in place of theEnglish bureaucracy.
Another point which I should like to submit is that the amendments of both Mr. Ismail and Prof. Shah are of similarnature. As regards personal rights and liberty I would liketo say that so long as you do not prove anything openlyagainst anybody in a court of law, it should not be lawfulto detain anybody under Defence of India Rules, be he yourrival party man or any other. If you send somebody to jailunder Defence of India Act or under some other ordinance,then what would happen to the right of Habeas Corpus, andwho would give that right, since the High Court will have nojurisdiction over it? And even if High Court interferes inone or two cases, it does not mean that it will be possiblein all cases. Therefore, I submit that this should not beincluded and that everybody should have personal liberty.
I would like to submit my third point in few words,namely,
regarding Mr. Ismail's amendment which has beensupported by several members. I would like to say that anyparty, political or communal, has no right to interfere in the personal law of any group. More particularly I say thisregarding Muslims. There are three fundamentals in theirpersonal law, namely, religion, language, and culture whichhave not been ordained by human agency. Their personal lawregarding divorce, marriage and inheritance has been derivedfrom the Qoran and its interpretation is recorded therein.If there is any one, who thinks that he can interfere in thepersonal law of the Muslims, then I would say to him thatthe result will be very harmful.]
I say from the floor of this House that they will come to grief. Mussalmans will not submit to any interference in their personal law, and if anybody has got the courage tosay so then I declare.....
Mr. Vice-President: Order, order.
Maulana Hasrat Mohani: He should remain convinced--andI declare in the House--that Mussalmans will never submit to any interference in their personal
law, and they will have to face an iron wall of Muslimdetermination to oppose them in every way.
Shri Vishwambhar Dayal Tripathi (United Provinces:General): Will you give the right of human sacrifice tothose who believe in it and may claim it under the pretextof their personal law?
Mr. Vice-President: Will honourable Members please taketheir seats?
Shri Brajeshwar Prasad (Bihar: General): I rise tosupport article 13 with all its reservations and safeguards.These restrictions are necessary in our national interest.Let me adduce the reasons for saying so.
An Honourable Member: Is the honourable Member readinghis speech?
Mr. Vice-President: He is reading his speech and I havegiven him permission to do so.
Shri Brajeshwar Prasad: Personal freedom has to becurtailed if the menace of capitalism is to be met. Nation-states of the nineteenth century were not confronted witheven a small part of the dangers that confront a modernstate. Political conspiracies of international dimensionswere unknown. The political criminal in the pursuit of hisnefarious designs resorted to methods and anties very wellknown to the administrators of old. The laws and judicialinstitutions were strong enough to grapple with theseproblems. The technique and methods widely employed bymodern law-breakers cannot effectively be checked byjudicial institutions and ordinary laws of the nineteenthcentury. The state must be vested with wide discretionarypowers and the freedom of the individual must be seriouslycurtailed if the parasitical class that thrives on profitand exploitation is to be liquidated and the communists areto be checked from endangering the safety and existence of all the institutions of our modern life.
Shri Rohini Kumar Chaudhari (Assam: General): Thehonourable Member is reading his speech so swiftly that wecannot follow him. May I suggest that his speech should betaken as read?
Mr. Vice-President: Do you agree, Mr. BrajeshwarPrasad, that it should be taken as read? (After a pause) Mr.Brajeshwar Prasad does not agree to the suggestion made bythe Honourable Member Shri Rohini Kumar Chaudhari.
Shri Brajeshwar Prasad: It is wrong to regard the Statewith suspicion. Today it is in the hands of those who areutterly incapable of doing any wrong to the people. It is not likely to pass into the hands of the enemies of themasses. And constitutional guarantees of individual freedomwill not for long remain sacrosanct if the machinery of theState passes into the hands of the reactionaries. If youwant to prevent the political reactionaries from gainingpolitical power and ascendancy, the rulers of the land mustbe vested with large discretionary powers.
In a modern progressive State there is not muchconflict between the individual and the State. For the Stateis composed of individuals. It is we ourselves purged andpurified of our selfishness. The individual has no power ofhis own, separate and distinct from the State. The State and the individual are
the two sides of the same coin.
In the nineteenth century the executive author ity hadnot developed the technique and mechanism of the modernState. It had very little part to play in the life of itscitizens. The executive author ity in the modern State has adominant part to play. It is not handicapped by any lack oftechnique.
The needs of modern life, of socialism and collectivismcannot be fulfilled if the State is not vested with amplepowers. The trend of modern politics is towardsregimentation of ideas and conduct. The doctrines of Milland Spencer have become thoroughly unrelated to the needsand demands of the age. It is the society and not theindividual which has become the object of primary concernand loyalty both of political theorists and actualadministrators. The objective conditions of our modern lifehave relegated the individual from the Olympian heights ofhonour and glorification accorded by the individualistschool to a position of utter insignificance and neglect.
Individual freedom is risky in a community where morethan 80 per cent of the people are sunk in the lowest depthsof poverty, illiteracy, communalism and provincialism.
It is sheer illusion to think that the personal rightsof the individual can be firmly secured if these are laiddown in the Constitution in clear language without anyreservations and safeguards. The enjoyment of these rightsis dependent upon the fulfilment of certain socialconditions outside the scope of any constitution. Man cannever enjoy the blessings of personal freedom as long associety remains organized on the basis of capitalism, aslong as the menace of war and foreign intervention loomslarge on the horizon, as long as poverty, illiteracy,communalism and provincialism remain in our midst. It isonly with the decline of the forces of organized religionsand the establishment of a World State based on the idealsof economic equality and political liberty that man will beable to achieve the content of personal freedom.
It is not entirely due to the wickedness or ignoranceof constitutionmakers that there are restrictions onindividual rights. The legacy of centuries of backwardnessand foreign misrule cannot be wiped out by one stroke of thepen. The concomitants of the age cannot be brushed aside byany constitutional guarantees. Constitutional guaranteesmerely facilitate the achievement of personal rights, which are essentially of an inward character, to be secured by theexercise of reason and proper conduct. We must think, speakand act properly if we are to obtain and enjoy the rights ofpersonal freedom. It is only with the growth and developmentof education to communal dimensions that the foundations ofpersonal liberty can be securely laid.
Shri H. V. Kamath: Sir, may I request my Friend to havea few full-stops if not other punctuation marks?
Mr. Vice-President: The Honourable Member's time is up.But what Mr. Kamath said has certainly not added to thedignity of the House.
Prof. Yashwant Rai (East Punjab: General): *[Mr. Vice-President, Sir, the Harijans of the Punjab are very muchindebted to the Chairman of the Drafting Committee forhaving included article 13 in the Constitution. At presentit is the custom in the Punjab that only one particularcommunity can purchase land and take to agriculture. But theHarijans, 90 per cent of whom are cultivators, are notpermitted to purchase land to cultivate, or to build houses.When this article receives the assent of the House, theywill have the facility of purchasing land for building theirhouses, as also land for agricultural purposes if they havethe capacity to do so. I hope that the many handicaps fromwhich the Harijans suffer in Punjab, causing the clashesthat are taking place in almost every village between themand the landlords, as a result of which they are keptconfined to their houses in some villages, as also theirother difficulties will not have to be faced by them infuture. They find themselves in their present plight thoughthey thought that the Congress Government would be anational Government and on coming to
power it would permitthem to purchase land and would remove all theirdifficulties. Our
* Translation of Hindustani speech.
Indian National Congress was wedded to the creed that onestablishing its Government every one will get house-building and agricultural facilities and no one will haveany difficulty on these accounts. People are also realis ingthat now the Congress is in power all these facilities will have to be afforded to the Harijans.
Therefore clause (f) of article 13 is very necessarybecause it provides the facilities we wanted. I think thatthe difficulties with which we are faced today will soondisappear. I therefore support this article.]
Shri Rohini Kumar Chaudhari: Mr. Vice-President, Sir, Imust congratulate the House for having decided to drop theword "sedition" from our new Constitution. That unhappy word"sedition" has been responsible for a lot of misery in thiscountry and had delayed for a considerable time theachievement of our independence.
While on this article, I should also like to draw theattention of the House to the unhappy condition which hadprevailed so far as the relations between us and the peopleof the tribal areas were concerned. The Brit ish Governmentwanted to keep these regions as their own preserve, nothaving imagined for a moment that they will have at any time to quit this country. They wanted to keep the tribal peoplecompletely under them for all ages to come and they wantedto have the hills as their own place of preserve and therefore they had introduced rules which prevented theordinary people of the plains from mixing with theirbrethren in the hills. I am glad, Sir, that in this articlewe have laid down that all people will be able to travelfreely throughout the territory of India. But it is mostunfortunate that we cannot do away with the proviso to saythat a particular State may lay down a law by which thisfreedom of movement can be restricted. Sir, I can only drawthe attention of the House to a very unfortunate incidentwhich took place even after the achievement of independence.A few months ago some Members of the Central Legislatureheaded by our friend the Honourable Mr. Santhanam hadoccasion to pay a visit to the Manipur State. Although theofficers of the Provincial Government had allowed us to gothere freely, we were held up there for more than an hour bythe orders of the Manipur State. I believe that after thepassing of this Constitution such a state of things willnever occur and that immediately after the passing of thisConstitution steps will be taken to allow us free ingressand egress to those parts of the States which are nowinhabited by the scheduled tribes. There should be greaterfriendliness between the scheduled tribes and the people of the plains and all steps should be taken to remove thebarriers to our movement in those places.
Then, Sir, I am glad to find in this article thatpeople will be free to carry on their profession in any part of India. That is quite good in so far as it stands onpaper, but many times the Brit ish Government said they wouldnever allow a lawyer to practise in any of these hills. Ibelieve, Sir, after the passing of this article of the Constitution, steps will be taken to remove any restrictionon any professional man practis ing in any part of India.
It is now my misfortune to have to say a few wordsabout Professor Shah's amendment No. 416. It is very easy, Ishould say much easier, to deal with one who writes out hisamendments and thinks over them. But it is very difficultand dangerous to deal with one who carries all hisamendments, thousand and one of them, in his brain and thendirectly pours them out from his brain on the floor of this House. Sir, amendment No. 416 introduces certain words aboutthings being subject to the provisions of this Constitution,and all those things. On the one hand we find that the Househas practically agreed to remove these words "Subject to theprovisions of this Constitution".
But we find the Professor Sahib has put that jumble of wordsin that amendment. Does he
want to use these words to rhymein the Constitution? Poets are fond of using several wordsjust for the sake of rhyming. If it is intended for the sakeof rhyming to use all those words, I can understand it, buto therwise I think they are meaningless. I would also warn myfriends against the use of the word `guaranteed'. We haveseen, Sir, advertisements of all and sundry articlespromis ing guarantee. I have myself been a victim of such anadvertisement. A big full-page advertisement of a certainmedicine guaranteed that if you use that medicine for sevendays you will benefit your health and become strong likeSandow. The word `guarantee' was actually there. But what Ifound after using that medicine for seven or fourteen dayswas that the medicine had no effect. It did not bring aboutany improvement in my health. Also in the case of a lot ofjewellery in the market, though they were all chemicaljewels, the merchants offer guarantee to the effect that thejewellery will retain its brightness and quality. But aftera fortnight the brightness disappears and the thing becomesblack in colour. So, the use of the word 'guarantee' is veryperilous. It is not necessary to use that word in thiscountry. We in India are so much used to this word that whenwe see it used we begin to suspect it. When we see anythingguaranteed, we understand that it is not guaranteed and is not genuine. Therefore it is better to leave the Constitution as it is without the word `guarantee'. Withoutthat word we can understand it better. Then we shall knowthat there is no attempt to cover-up anything not wanted.The clause, as it is without the word `guarantee' is quiteall right.
Sir, this article with the amendments which have beenaccepted has my whole-hearted acceptance.
Prof. Shibban Lal Saksena (United Provinces: General):Mr. Vice-President, this article may be truly stated to bethe charter of our liberties and this is probably the mostimportant article in the whole Draft Constitution. In theoriginal form in which it was presented to this House, itwas open to many criticisms and they were justified. Now I think it has been materially altered. The promise made byDr. Ambedkar to accept the amendment of Mr. Bhargava andothers gives me hope that this article in its final formwill be a real charter of our liberty.
Sir, let us analyse the criticisms made in some of the amendments moved by my friends. First of all, the criticismis that all the provisos were meant to nullify the libertiesgiven in the first clause. But if we carefully examine eachof the sub-clauses, we will find that this criticism is notjustified. In clause (2), the word 'sedition' has been takenaway, and the word 'author ity' has been dropped. So that,what remain in clause (2) are the exemptions of lawsrelating to libel, slander, defamation, or any matter whichoffends against decency or morality or undermines thefoundation of the State. These alone will remain on theStatute Book.
As was pointed out yesterday, even in America where thecourts are given absolute power, the Supreme Court has beenobliged to limit it. What we are doing is that instead of the Supreme Court we ourselves are limiting this thing. Thislimitation in the present form is less wide than itoriginally was. I think this should satisfy the House.
In this connection I only want to say one word more.Clause (1) (a) says that every citizen shall have the rightto freedom of speech and expression. As proposed in one ofmy amendments we should bring in here the freedom of thePress. I hope Dr. Ambedkar would bring in some amendment toinclude freedom of the press in this sub-clause.
As regards clause (3), I am glad that after theaddition of the word 'reasonable' it has become a much widercharter of liberty. It now reads:
"Nothing in sub-clause (b) of the said clause shall affectthe operation of any law, or prevent the State from makingany law, imposing in the interests of public order`reasonable' retrictions on the exercise of the `rightconferred by the said sub-clause'."
Under this, the existing laws, in so far as they
imposerestrictions which are not in the interests of public orderor morality, are nullified. Everybody will admit that publicorder has to be provided for. The sub-clause as amended ismuch better than what it was. The Supreme Court could nowlay down what offends against public order and what doesnot.
Coming to clause (4), I must say that labour will nowfeel that today they have got their charter of liberty. Theycan now form unions subject to reasonable restrictions in the interests of public order or morality. So, labour todaywill thank Dr. Ambedkar for accepting amendments whichmodified the original clause. In the original form you couldnot hold a meeting because it would be against the wishes of the general public. Now you will have to prove that thedecision to ban a meeting is in the public interest ormorality. This is the great charter of liberty for labour.
Then I come to clause (5). This qualifies sub-clauses(d), (e) and (f). It says: "Nothing in sub-clauses (d), (e)and (f), shall affect the operations etc. etc." "or for theprotection of the interests of the Scheduled Castes". Wehave added the word 'reasonable' therein. It is veryimportant. The rights such as freedom to move aboutthroughout the country are very important. Some friendspointed out that there are many laws at present in existencein the East Punjab, for instance, which are really very badand that this clause will not nullify many of them.
And then there is clause (6) which relates to carryingon of professions. After the amendments that have beenaccepted this clause also has become much better.
One thing more I want to say. Mr. Kamath in hisamendment wants the right to bear arms. In mostConstitutions throughout the world this right has beenrecognised. We ourselves throughout recent history haveasked that this should be our right. In fact I remember,when Mahatma Gandhi wrote to Lord Irwin in 1930 about theEight Points, which he wanted to be accepted, one was aboutthis right to bear arms. The question of this right to beararms dates back to 1878 when, after the mutiny, the Brit ishGovernment disarmed the Nation. I think that after freedomwe should at least allow this thing, as only an armed peoplecan support the Government. I hope Dr. Ambedkar will dosomething about it.
Then as regards sedition, our great leaders likeLokmanya Tilak and others were the victims of section 124-A.I congratulate Dr. Ambedkar for having put in the clause asit has emerged.
Shri H. J. Khandekar (C. P. and Berar: General): *[Mr.Vice-President, I rise to submit to the House my views onarticle 13. I believe that if the man-in-the-street were toread this article upto sub-clause (g) he would most likelybegin to believe that this country has secured its freedomand that every individual within it has also been grantedthe right of freedom. But if the same person were to proceedfurther in his study of this article and goes through thesub-clauses (2), (3), (4), (5) and (6) he would revise hisopinion and become fully convinced that our country has notas yet attained Swaraj in its correct sense. It would meanthat what had been granted by the right hand has been takenaway by the left, in the succeeding sub-clauses.
* Translation of Hindustani speech.
I believe that a major ity of the Members of this House holdthe same view in this respect as I do.
If we confine ourselves to an examination of clause(1), we find, Sir, that the rights granted to the citizensof India under this article are many. Sub-clause (a)specifically grants freedom of speech and expression--forsecuring which, as you and the major ity of the Members ofthis House are aware, we resorted to individual Satyagrahaunder the leadership of Mahatma Gandhi in the year 1941, andas a consequence thousands, nay, hundreds of thousands ofpeople of this country had to rot in the prisons. At thattime all of us believed that when Swaraj is establishedevery citizen of this country would also secure for himselfthe right of freedom of speech and expression. We, no doubt,find that article 13 grants
this freedom of speech andexpression. But all this has been taken away indirectly byclause (2).
I may point out that the Provincial Governments haverecently enacted many repressive laws. I am afraid thatarticle 13 will allow these laws to remain in force even in the future. What is worse, this article leaves scope for theenactment of further repressive laws in future. In severalprovinces such laws as the Goonda Act, Essential ServicesAct, and Public Safety Act have been passed. It may come asa surprise if I inform the House that, since the advent of the Popular Ministries, Section 144 has been constantlyreigning in the big cities of this country. Consequentlythere cannot be a public gathering of even five or sevenpersons in cities, nay, not even for carrying onconversation among themselves or giving vent to their ideasand feelings. If this situation continues also in thefuture, I am afraid that the freedom which he had beenwishing to establish in this country, the freedom that hasbeen granted in Clause (1) (a) of article 13, will beentirely lost under clause (2) of that article.
I feel, Sir, that I should discuss before you each of these sub-clauses, one by one, so that I may be in aposition to request you in the end that this article shouldbe sent back to the Drafting Committee with a request that,after having carefully reconsidered it and having put in itwhat is really required in the circumstances of the country,it should resubmit it to the House. I believe that the Housewould then pass it with pleasure. But I am afraid that allwould be lost if the article is passed as it is today.
Again sub-clause (b) of clause (1) grants, Sir, theright "to assemble peacefully and without arms." But clause(3) of the article takes away the entire significance ofthis sub-clause. Similarly sub-clause (c) grants the right`to form associations or unions'. Thus we are given theimpression that we would have the right to form associationsor unions and thus to carry on organised agitation. Forinstance, we are given to believe that we could carry onorganised agitation for the welfare of Labour, that we canmake, in an organised fashion, a demand for the grant ofbonus, and if necessary can assemble in public meetings toback up this demand. The truth is that the law restrictingthe right of holding public meetings would be enforced.Consequently in view of such a law or laws of this kind to be passed in future it may not be possible to hold anypublic meeting. Thus it is clear that the Government wouldbe in a position to prevent if it so desires, any agitationby Labour for demanding bonus, since all these restrictivelaws would be applicable to the workers also. I, therefore,fail to see the significance of the right of formingassociations when I find that its substance is taken away byclause (4). I submit that this article is neither for thegood of labour nor of the general community.
Further we read of the right to 'move freely throughoutthe territory of India'. This is sub-clause (d). Under itevery citizen of India would have the right to move freely into any province or any village ofIndia. But the substance of this right is taken away byclause (5). I would make this clear by an illustration. It is a matter of great amazement that in this country there isa law known as the Criminal Tribes Act under which a personsis considered a criminal from the moment of his birth. Thereare also some unfortunate communities in this country whosemembers would not have the right to move freely in theterritory of India granted under this sub-clause to everycitizen of India. I believe, Sir, that you are aware thatunder the Criminal Tribes Act the people following pastoraloccupations cannot go to any particular part of India theywould like to go. Now they do not have that freedom. We havein our province a tribe known as Mang Garodi. If it has togo from the village of Khape to the village of Janwanver it is followed by the Police who sees to it that it goes onlyto the latter village and nowhere else. Similarly if it goesfrom Janwanver to katol the Police of
the former place wouldgo up to Katol to entrust the Police of the latter place tokeep watch over it. Thus they have no freedom of movement,whatever freedom of movement is now given under sub-clause(d) is taken away by clause (5) of the same article. If theintention is not to give to the criminal tribes, who arealso citizens of India, the freedom which they are entitledto, it is something extremely unjust.
Similarly further on we find the right `to acquire,hold and dispose of property'. My friend Prof. Yashwant Raihas said with reference to this freedom that there is anunfortunate section--the scheduled castes--in the Punjab whocannot purchase land on account of the provisions of theLand Alienation Act. Moreover the right that you havegranted by this sub-clause to every citizen has been takenaway by the clause which permits the Land Alienation Act toremain in force even in future. Thus the right which theHarijans should also, like other citizens, get under thisConstitution would not be available to the Harijans of thePunjab on account of the Land Alienation Act of the Punjab.
Pandit Thakur Dass Bhargava (East Punjab: General):*[This article would most certainly confer this right.]
Shri H. J. Khandekar: By what article please?
Pandit Thakur Dass Bhargava: It will be conferred bythis very article 13.
Shri H. J. Khandekar: I do not find this specifiedhere. If this article is passed as it is, the rights thatthe Harijans of the Punjab should get will not be availableto them.
Mr. Vice-President: May I point out to you that itwould be better if you address the Chair and not carry onconversation among yourselves?
Shri H. J. Khandekar: Very well, Sir, Sub-clause (g)grants the right to practise profession or to carry on anybusiness etc. But all these rights are taken away by clause(6). I would like to place before you, Sir, the difficultywe would be placed in by these provisions. The mostunfortunate people in this country, in my opinion, are thesweepers. Whatever we may talk about the grant of rights to these unfortunate sweepers the fact remains that theseunfortunate people have never been given any rights by anyperson in India nor have they ever enjoyed any right said tohave been granted to them. To talk of their "freedom topractise any profession or trade" is a mockery to them. I donot know of the conditions prevailing in other provinces butI know what happens in my province. If a sweeper working
*[ ] Translation of Hindustani speech.
under a Municipal Committee desires to give up his work, inmy province, he would have to give a notice in writingaddressed to the District Magistrate of his intention to doso and can leave his service only if that officer agrees torelease him. I am of the view that even the very name ofsweeper is a matter of contempt by people. I haveconsequently held the opinion and have repeatedly said to the sweepers, and I would like again to communicate thisopinion through your, Sir, to the sweepers of this country,to give up their present occupation which makes them lookeddown upon as untouchable by the people of the country,because their work is considered to be so dirty andpolluting. I advise them to take to such occupations as arefollowed by other people. If the sweepers of the wholecountry were to leave, on my advice, their presentoccupation, and which they could in exercise of the freedomgranted by the clause (8), I am sure that they would inviteagainst them the objection of clause (6) which refers to`service in public interest'. The fact is that if all thesweepers of Delhi, or Bombay or Calcutta were to stopcleaning latrines, sweeping the streets, they would be saidto be acting against public interest; and under this law andunder the Essential Services Act they would be compelled todo this work. Then how can you say that all human beingsshall have equal rights under this sub-clause? The handicapsfrom which we suffer, from which the peasant suffers, fromwhich the workers suffer, from which the sweepers sufferwould continue to remain even under
this article, if itremains as it is. It is, therefore, my submission, and Ibelieve that the House after having heard what I havealready said, would consider it proper, that this articleshould be referred back to the Drafting Committee for beingamended. It may then be placed before the House foradoption. This is my proposal, With these words I resume myseat.]
Shri Algu Rai Shastri (United Provinces: General):[*Mr. Vice-President, all the important aspects of fundamental freedom have been dealt with in article 13. Fromthis point of view this article is very important. It isgoing to be accepted with some minor amendments. Manyfriends have attacked its provisions on the grounds that thefundamental rights conferred by this article have been takenaway by the limitations imposed therein. I feel that alongwith freedom responsibility is essential. The friends whourge that the rights given in this article have been takenaway under the sub-clauses (2), (3), (4), (5) and (6), havenot taken have not taken into consideration the people whowill elect members to the legislatures which have beenauthorised under these provisions to apply theserestrictions, and the people who would compose theselegislatures. I submit that those who would sit in the legislatures would be representatives of the people and theywill impose only those restrictions which they considerproper. Such restrictions would be in the interest of thepeople. Only those restrictions will be imposed which wouldbe necessary in the interest of public health, unavoidablynecessary for the maintenance of public peace and desirablefrom the viewpoint of public safety. No restriction will beimposed merely to destroy the liberties of the people.
Freedom is a great art--even greater than the art ofmusic and dancing. One who is adept in music or dancingkeeps his voice under control and maintains restraint andcontrol over his bodily movement, and on the movement of hisfeet. He has to move in accordance with certain recognisedrules of music and dancing. He cannot sing and dance out oftune and time, in an unrestrained manner. He remains fullybound to the rules. Full freedom is being conferred upon usbut it can never mean that we should not be under anyrestrictions whatsoever. Freedom of speech does not mean
*[ ] Translation of Hindustani speech.
that we can give expression to whatever comes to our mindwithout observing any limitation or rule in this respect. Inlegislatures we have to follow certain rules andregulations. We are here as the representatives of thesovereign people but even then there are hundreds ofrestrictions upon us. Freedom by its nature implieslimitations and restrictions.
`KAVIHIN ARTH AKHAR BAL SANCHA, KARTAL TAL GATIHIN NAT NACHA'
The dancer dances to the measure of clapping. The poetis bound by the significance of words. A dancer dancesaccording to certain fixed timings and never makes a falsemovement. His movements are in harmony with the tal. When anation or a community attains freedom, it begins to bear agreat responsibility on its shoulders. We cannot thereforesay that the restrictions that have been imposed will retardour progress.
One of my friends made a reference to the Bhangicommunity. I have been working amongst them since 1924. Ihave thus a personal experience extending over a period oftwenty four years. There can be no doubt about theindescribable wretchedness of the Bhangis and of our otherso called untouchable brethren. It is indeed verydeplorable. But the restrictions provided for in article 13do not imply that Bhangis will continue to remain bound to their present occupation. Under this article there would beno compulsion for any person to follow any particularoccupation. This article as a matter of fact, instead ofprescribing the compulsory pursuit of any occupation,provides for unrestricted freedom to every individual tofollow any vocation he pleases. I think that the freedomsgranted under sub-clauses (f) and (g) need clarification. Insub-clause (f) is specified the right of a person toacquire, hold and
dispose of property; while in sub-clause(g) It is stated that there is freedom of a person topractise any profession or to carry on any occupation, tradeor business or other means of livelihood of one's choice. It is true that the State has been authorised to restrict thisfreedom in sub-clauses (5) and (6). But a little reflectionwould show that it was necessary to limit the freedom sowidely provided for in sub-clauses (f) and (g) of clause (1)of article 13. Such unrestricted freedom as is provided in these two sub-clauses could not be free from grave danger.For instance, we have in our society the practice ofprostitution. Is this to continue in future also as it hasdone till now? It should not in any circumstances bepermitted to continue. Evidently there must be someprovision whereby its practice may disappear by providingfor a profession worthy of being adopted. Evidentlyrestrictions have to be imposed on it.
Again, there is freedom in our society to earn one'slivelihood by selling intoxicants. In the directivePrinciples we have now included a provision for theintroduction of Prohibition but in the Fundamental Rights wehave given every one the unrestricted rights to earn hislivelihood. Both the provisions appear to be contradictoryto each other. Thus it is necessary to provide that no oneshall be permitted to earn a living by selling intoxicantsexcept for medicinal purposes.
Again begging is a common profession in our societytoday. Should it be permitted to continue as it is? I submit that there should be a good arrangement for bringing it toan end.
We have now attained freedom. We should do nothingwhich may endanger it. It is our duty to be good citizens.We have also to see that freedom is not misused. Up till nowwe were under foreign rule. Indian subjects received step-motherly treatment from the rulers. In England no intoxicantcan be mixed with any medicine other than in the prescribedproportion but here bottles of country wine are being soldopenly in the market. Our `Freedom'--our own mother--cannever permit us--her children--to have this because shecannot permit her children to go astray.
Good citizenship implies restrictions:
"SATYAM BRUYAT PRIYAM BRUYAT NA BRUYAT SATYAMAPRIYAM"
Be truthful and sweet in speech, but do not speak outthe unpleasant truth. Anyone has the freedom to state thetruth, but not the freedom to speak out the unpleasanttruth. This is a restriction and good citizens have toaccept this restriction. I beg, therefore, to express myappreciation of article 13 read with the amendment moved byDr. Ambedkar and which already been referred to.
I would like to make another observation. I feel thatthe rights guaranteed in sub-clauses (f) and (g) are rathertoo wide. I have already said something about freedom ofmaking a living.
I shall resume my seat after saying a few words aboutthe right to acquire property. The type of freedom beingguaranteed implies that the capitalists and feudalaristocrats would have full rights to acquire and dispose ofproperty. But the mode in which property is being acquiredand held is such as permits the property owners to have allthe benefits while workers who create this property have allthe toil as their share. `The ox produces and the horseconsumes'--this saying is being fulfilled. Of course, thisshould not be so. I submit that this right of propertyshould be so interpreted in future as to permit thetransformation of individualistic capitalism into Statecapitalism. All the means of production and the distributionof the commodity should be owned and controlled by the Stateand not by the individual. "Unless the individual ownershipyields place to collective ownership--social ownership--there cannot be real Swaraj."
To reach this goal it is necessary that theserestrictive provisions should be interpreted in this way.With these words I express my support for this article.]
Shri Amiyo Kumar Ghosh (Bihar: General): Mr. Vice-President, Sir, we are dealing today with one of the mostimportant clauses of this Constitution We are dealing with the freedom
of citizens. That is to say what rights theIndian people have under this Constitution. On reading theentire clause, I feel that the rights which have beenrecognised under sub-clause (1) of this article have been toa great extent abrogated by the subsequent provisos. In aConstitution, there are two important points, namely whatare our rights and what form of Government we are going tohave. These are the two important subjects in a Constitutionand others flow from them and therefore one expects that sofar as the rights of the people are concerned, they shouldbe expressed in clear, simple and straight language, so thata common man when he reads the Constitution can understandexactly and precisely what are his rights and what are thechecks to his rights. I do not propose to say that at timesof emergencies or grave needs, freedom does not require to be checked to a certain extent. I believe in checks andbalances, but at the same time, I must say that those checksshould be very precise, and clear and should not be couchedin ambiguous language and left to courts for decisions.
Now you will find, Sir, that in all these sub-clauses(2), (3), (4), (5) and (6) we have used the words "interestof general public", `general public interest `public order' and `property' without defining them and I think it will take centuries for the Supreme Court toexactly say what really these words mean. By incorporatingsuch words in the sub-clauses, wide powers have been givento the Central and the Provincial Legislatures to frame lawsby which they can restrict the freedom which has been givento the people under sub clause (1) of this article. I do notlike to enter into any criticism of this article, but theonly thing I want to say is that the entire clause is verydisappointing.
Specially, I will draw the attention of the HonourableDr. B. R. Ambedkar to sub clause (5). Now, Sir, in this sub-clause (5) the rights which have been recognised in sub-clauses (1) (d), (e) and (f) above have been practicallynegatived and have given rise to grave anxiety in the mindsof many regarding the exact position in matters ofresidence, acquisition and disposition of properties. Theexact significance of clause (5) in respect of (e) and (f)requires further clarification. Next I cannot understand whyin this clause, the words, "for the protection of theinterests of any aboriginal tribe" have been incorporated.What it exactly means I fail to understand. Does it mean the`tribal area' or does it mean that wherever any aboriginaltribe lives, irrespective of their numbers the legislaturescan frame laws safeguarding their interest as, for instance,if there be 15 aboriginals living in Delhi, can the CentralLegislature frame a law by which they can restrict therights of other people in the interests of these fifteen orsixteen aboriginals? I could understand that wherever theremay be some aboriginals the legislature can make a law, bywhich they can restrict the rights of all others for theprotection of those few.
Sir, I feel the position is ambiguous and clumsy andshould be made clear I fail to understand why clause (d) hasbeen tacked with sub-clause (5). Free movement has beenrestricted by that sub-clause. My own personal view is thatthere should not have been any restriction regardingmovement. The citizens should have been given a free rightto move. Only on administrative or political grounds theCentral or provincial legislatures could be empowered toframe laws judiciously by which they can restrict themovement of the people and this power should be workedsparingly and in very emergent circumstances. In everymatter of freedom, restrictions have been imposed in theinterest of general public. What this interest is, we do notknow and has not been stated anywhere. Such words can beinterpreted differently in different States and the Centreand may give rise to separate and conflicting laws. Sir,this would create great confusion. Therefore, I submit, ifthis article is read and viewed, it only gives rise todisappointment, and with a little more effort and with aslight
inclination this article could have been framed insuch a language that it would have been a model article in the whole of the Constitution.
Mr. Vice-President: Mr. T. T. Krishnamachari.
Shri Mahavir Tyagi: May I know, Sir, is it by referenceto the slips that you are calling the speakers?
Mr. Vice-President: I am not prepared to give youinformation as to how I conduct my work.
Shri Gopal Narain (United Provinces: General): So thatwe need not stand every time. Have we to stand every time orsend slips, Sir?
Mr. Vice-President: The remedy lies in your hands; youcan do both, you can send a slip and stand, or you can doneither.
Shri T. T. Krishnamachari (Madras: General): Sir, asthe speaker that spoke before me said, this is perhaps themost important article in this Part and one which enumerates the rights for the attainment ofwhich we in India have undergone all the troubles to obtainour freedom. Actually, Sir, it is in the manner in which theState is going to allow the people to use the rightsenumerated in this particular article that the people canfeel that all that they have done in the past and thesacrifices that they have made in the past to obtain freedomwas worth while.