CONSTITUENT ASSEMBLY OF INDIA - VOLUME VII


Thursday, the 2nd December 1948

Sir, I do not say that this article is perfectlyworded; nor can I maintain that the exceptions to parts ofthis article provided by clauses (2), (3), (4), (5) and (6)do not curtail the liberty and the right conceded toindividual citizens in clause (1). But, as a student ofpolitics, I have to realise that there can be no absoluteright and every right has got to be abridged in some manneror other under certain circumstances, as it is possible thatno right could be used absolutely and to the fullest extentthat the words conveying that right indicate. It is merely amatter of compromise between two extreme views. Having gotour freedom only recently, it is possible that we want allthe rights that are possible for the individual to exercise,unfettered. That is one point of view. The other view isthat having got our freedom, the State that has been broughtinto existence is an infant State which has to pass throughvarious kinds of travail, and what we could do to ensurethat the State continues to function un-impaired should beassured even if it entails an abridgment of the rightsconferred by this article. I have no doubt in my mind that,though I have had to say something perhaps harsh on certainoccasions in regard to what the Drafting Committee has donegenerally, in this article, the Drafting Committee haschosen the golden mean of providing a proper enumeration ofthose rights that are considered essential for theindividual, and at the same time, putting such checks onthem as will ensure that the State and the Constitutionwhich we are trying to bring into being today will continueunhampered and flourish.

Sir, language is always rather a difficult affair. Whatlanguage conveys to me it may not convey to another person,and as my honourable Friend Dr. Ambedkar put it, we arelegislating in a language which is foreign to us, the exactimport of which we do not understand. Should we do it in oneof our own languages? The difficulty would be all thegreater for the reason that the language of one set ofpeople is not the language of another set of people.Besides, precise thinking in our own language so that wecould adopt it for constitutional purposes has not yetdeveloped. Actually we have to depend for the interpretationof the particular restrictions that are enumerated herein onthe Supreme Court or some other author ity that would comeinto being in the future, to ensure that the peoples' rightsare not abridged.

Speaking today in the context of the situation in which we are placed, we cannot but envisage that those rights willbe abridged in order to maintain the stability of the State.This State that has now been brought into being has been putto a lot of travail in the first eighteen months of itsexistence and every Member of this House knows it. Specialpowers are needed by the Government to meet not merely with the refugee problem, not merely with the fact that there arevarious forces in this country which do not like this Stateto grow in the present form, but also with the variouseconomic troubles that now face this country. Are we tobuild up our Constitution, putting in these restrictionswhich are necessary today in the light of things that standas they stand today, or are we to visualise a time whenthings will be normal and when it will not be necessary for the State to use these powers, is the problem. Again, I think, the Drafting Committee and my honourable Friend Dr.Ambedkar have chosen the golden mean in this particularmatter.

There is one other matter on which I would like to lay stress before I sit down. We in this House, though the bulkof us belong to one party, have got different ideas on economic matters. We were all together inone particular fact that the Brit ish should go; we are allunited in the desire that we should have a stableconstitution which will ensure to the common man what heneeds most, what he did not obtain in the former regime.But, in the achievement of that goal in the methodology to be adopted for the achievement of that

goal our ideas varyconsiderably, and vary from one end to the other. I am happyto see that the Drafting Committee has chosen to avoidimporting into this particular article the economicimplications in the enumeration of fundamental rights thatobtain in other constitutions. I think it has been a verywise thing. I know a friend of mine in this House hasobjected to one particular sub-clause (f) of article 13,namely, to acquire, hold and dispose of property. I wouldlike to assure him and those who hold the opinion that heholds that this does not really mean that there is any particular right in regard to private property as such, nomore than what any person even in absolutely socialisticregime will desire, that what he possesses, what areabsolutely necessary for his life, the house in which helives, the movables that he has to possess, the things whichhe has to buy, should be secured to him, which I think anysocialistic regime, unless it be communistic, will concede,is a right that is due to an individual.

Actually the economic significance that attaches to anyenumeration of Fundamental Rights, such as the rightsconceded in the Bill of Itights in the American Constitutionand the addition to these in the Fourteenth Amendment, findsno place so far as this particular Constitution isconcerned, and I am able to say that that is one of the bullfeatures of this Draft Constitution. We have chosen to avoidas far as possible, in spite of the fact that the vestedinterests are still with us and they have a certain amountof influence--we have chosen to avoid as far as possiblelaying that stress on the importance of the economicsurroundings which is a significant feature of the AmericanConstitution, and I do hope that my honourable Friend, whoobjected to a particular sub-clause in this article namelyclause (f), will now realise that it has no meaning so faras property rights are concerned except in something that isdear to an individual and which is very necessary to concedein an enumeration of rights of this nature.

Sir, the future, what it is going to be none of usreally know, but we allmost of us--envisage that the futurewill be one which will be bright, the future will be onewhere the State is going to be progressive, where the Stateis going to interfere more and more in the economic life of the people not for the purpose of abridgment of rights ofindividuals, but for the purpose of bettering the lot ofindividuals. That is the State that I envisage, a Statewhich will not be inactive, but will be active and interferefor the purpose of bettering the lot of the individual in this country; and I do feel, Sir, that as it is a well knowncanon that in any Constitution that is forged there shouldbe a reconciliation of past political thought which will atonce pave the way for a new level of thinking, a new levelof progressive and critical thinking. I think thoseconditions are at any rate possible in an enumeration of theRights such as is found in article 13. Sir, there is no useour comparing this particular article which happens to bethe crux of the Fundamental Rights with either what obtainsin the commentaries of the English Constitution or whatobtains in the text of the American Constitution or anyother Constitution, for the reason that the setting istotally different. There is no use anybody saying that aparticular feature is not found in the English Constitution.English jurisprudence is something totally different for thereason that English Parliament does not provide for theenumeration of all these rights which is absolutely based oncustom on which you cannot depend for ever becauseParliament there is supreme and can make laws contravening every recognised custom.They do not have to have a Constitutional amendment for thatpurpose. Parliament can fomnuiate new laws which might cutright across the conventions, and the usages of the Constitution established over centuries. But so far as theAmerican example is concerned--and certainly there are otherexamples which are modelled on the American example--thereis one distinction between our

own way of thinking and whatthe Founding Fathers in America thought and what wassustained in America until recently, viz., the economicbasis of the American Constitution is something totallydifferent from what we envisage to be the economic basis of our Constitution. So any analogy is only applicable up to apoint, and therefore any of our friends who seek to importparticular provisions of the American Constitution orparticular words either in this particular article or inlater articles, have to recognize that the bulk of theopinion of this House is something totally different fromthe economic bias that more or less determined the AmericanConstitution, right at the inception and later on as well,on which bias legal literature has built up severalconventions attached to that Constitution.

Sir, I would like to say this that the amendmentsproposed by my honourable Friend Dr. Ambedkar particularlyto clauses (4), (5) and (6) are a great improvement on theoriginal draft and my own view is that they do take away thelacunae that existed in the original draft. But I shouldlike to lay emphasis on one particular amendment moved by myFriend Mr. Munshi who is not here. The value of thatamendment happens to be only, to a very large extent,sentimental. The word `sedition' does not appear therein.Sir, in this country we resent even the mention of the word`sedition' because all through the long period of ourpolitical agitation that word `sedition' has been usedagainst our leaders, and in the abhorrence of that word weare not by any means unique. Students of Constitutional lawwould recollect that there was a provision in the AmericanStatute Book towards the end of the 18th Century providingfor a particules law to deal with sedition which wasintended only for a period of years and became more or lessdefunct in 1802. That kind of abhorrence to this word seemsto have been more or less universal even from people who didnot have to suffer as much from the import and content of that word as we did. Just all the same the amendment of myhonourable Friend Mr. Munshi ensures a very necessary thingso far as this State is concerned. It is quite possible thatten years hence the necessity for providing in theFundamental Rights an exclusion of absolute power in thematter of freedom of speech and probably freedom toassemble, will not be necessary. But in the present state of our country I think it is very necessary that there shouldbe some express prohibition of application of these rightsto their logical end. The State here as it means in the amendment moved by my honourable Friend Mr. Munshi as Iunderstand it, means the Constitution and I think it is verynecessary that when we are enacting a Constitution which inour opinion is a compromise between two possible extremeviews and is one suited to the genius of our people, we musttake all precautions possible for the maintenance andsustenance of that Constitution and therefore I think the amendment moved by my honourable Friend Mr. Munshi is ahappy mean and one that is capaable of such interpretationin times of necessity, should such time unfortunately comeinto being so as to provide the State adequate protectionagainst the forces of disorder.

Sir, one other matter which I would like to mentionbefore I sit down is this. Sub-clause (c) of art. 13 (1) isvery important. I do not know if people really realise asthey would know in other countries and particularly in U.S.,labour has had to undergo an enormous amount of trouble toobtain elementary rights on matters of the recognition of their rights, in the matter of the right to assemble together as a Union. I do not think that in my view clause (4) of this particular articleunnecessarily abridges the rights conferred by sub-clause(c) of clause (1). My own feeling is that we have more orless sought to cut across the difficulties which the othercountries have faced in this particular matter and we haveensured for labour the very legitimate right to come together, to agitate and to obtain for themselves and for the members of their Union the rights that are

justlytheirs. That I think is more or less a charter for workersin this country and I am happy to see that the vestedinterests have not tried in any way to abridge thisparticular right. On the whole, Sir, this particular articlewith the amendments proposed by my honourable Friend Mr.Munshi and the three amendments proposed for clauses (4),(5) and (6) by Dr. Ambedkar and also the addition of theword `reasonable' which has been brought in by my honourableFriend Mr. Thakur Dass Bhargava, represents in my opinion afairly reasonable enumeration of our rights and a fairlyconservative abridgment of those rights. The working of these particular rights depends upon the genius of ourpeople, upon how we develop ideas of liberty which are stilltoday in a very undeveloped state. It is no doubt true thatour leaders are sometimes hasty, they want more powers, whenthey are faced with difficult situations and they think theonly way in which they could deal with them is to have morepowers. They do not recognize that they are leaders of thepeople the chosen leaders of this country each one with apersonality of his own and the aggregate effect of theirpersonality and their influence can cut right across thenecessity for any drastic powers. That kind of confidencewill come only later on--at the moment they merely want tofollow in the footsteps of people who preceded us in thegovernment of this country, who had no touch or contact with the people, who could never get on to a platform andpersuade the people to do any particular thing, who onlywanted powers which could be exercised through the medium of the bureaucracy. That mentality will change, and will surelychange, because our leaders are very eminent people. Surely,the House will realise that the Prime Minister and theDeputy Prime Minister, if they get upon a platform can swaymillions of people if they could only get their voices toreach them. It only depends upon the type of leaders that weget for the abridgment of these rights which are enumeratedhere to become a dead letter, and that is in the lap of thegods. For the time being we have done the very best possiblewhich human ingenuity can devise.

Sir, I support the article before us.

Shri Lakshmi Narayan Sahu (Orissa: General): *[Mr. VicePresident, I would like to make an observation with regardto article 13 which is now under discussion. The articleconfers certain rights on the citizens, but the words`subject to the other provisions of this article' occurringin the very beginning of the article, serve as a warning tous that the article confers freedom, no doubt, but that it is only within a limited sphere. Moreover the sub-clauses(2), (3), (4), (5) and (6) that follow, re-emphasise thatunless the freedom granted is enjoyed within the prescribedlimits, people would get into great difficulty. I feel,however, that both the words `subject to other provisions ofthis article' and the sub-clauses (2), (3), (4), (5) and (6)should be deleted from the article. We shall be able tovisualize the true picture of our freedom only when this hasbeen done. So long as the sub-clauses remain, we can nothave a correct picture of our freedom. Moreover I feel thatliberty has been considerably narrowed during the draftingprocess. It is just like the narrowing of the size of atemple as a consequence of its main entrance being made toolarge during the process of constructing the temple. It isof no

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

[] Translation of Hindustani speech.

use whatever. There is an Oriya proverb which is meant for such a situation. It is-

Ghare na pasuna chal vaguchi Devalku Mukhashala Bil Gala.

It means that it is no use making a house with so small anentrance that one's entry into the house is rendereddifficult without striking his head against the door-frame.Though there has been considerable discussion on thearticle, we wish that we discuss it more thoroughly and thatthe Drafting Committee gives more consideration to it. Thus,whatever drawback we find in the article should be removed.In my opinion sub-clauses (2), (3), (4),

(5) and (6), mustbe deleted. Unless this is done we shall not have the tasteof freedom and shall continue to remain in a condition offear. Those who till recently were seeking to organisedisobedience of laws are, being today, in the seat of power,apprehensive of the violation of laws by other people, andunder this apprehension, are seeking to make the law socomprehensive and rigid as to prevent any one outside theruling group from going beyond its control. I would like tosay that article 13 which is now under discussion betrays anununderstandable apprehension on the part of author ity. Thefact is that there are many provisions in this Draft Constitution which would prevent the citizens fromcommitting any disorder. Thus article 25 provides that "Theright to move Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part isguaranteed". I submit, therefore, that all the restrictiveprovisions contained in article 13 should be deleted. Mybelief is that article 25 will be as helpful to thegovernment as to good citizens. Unless the restrictiveprovisions of this article are deleted, we cannot properlyenjoy our National Freedom. Moreover it had always been ourloud assertion that self-government is better than goodgovernment. Now we have grown indifferent to self-governmentand are rais ing the slogan of good government. With so manyrigid provisions what good government can you have and forwhom?

Those who are in power at present are apprehensive thatthe people and political parties other than those of theruling group would practise disobedience of laws. That iswhy so many restrictive provisos have been included in theDraft Constitution. It is precisely why I insist that theFundamental Rights should be treated as fundamental andinviolable. It is not proper therefore to delimit them by somany restrictive clauses and sub-clauses.

There is one observation I would like to make about theAdibasis. I agree to a certain extent with what Shri JaipalSingh has said. Adibasis move about with arms. This articlelays down that all citizens shall have the right "toassemble peaceably and without arms". We should thereforeconsider whether or not this clause takes away from theAdibasis their customary right to bear arms. In view of theprovisions contained elsewhere in the constitution. I think,this will not affect the right of Adibasis to bear arms. Ifthis view be correct Adibasis need not fear the loss of their right. Though I have no objection to the words"assemble peaceably and without arms" being put in here, yetI feel that nowhere in the Draft Constitution can be foundany provision regarding the repeal of the Arms Act and thegrant of the right to the people to bear arms--a right whichis essential to make our people fearless. Therefore, I wouldlike that a provision for the repeal of the Arms Act andmaking it permissible to the people to bear arms be includedin the Draft. I would not like to say anything more about this matter.

We often talk of minor ities today but we should stopthis kind of talk now. What is a minor ity? When we are goingto make one and the same provision for all, I fail to seewho remains to constitute the minor ity. It may be saidagainst this view that the Depressed Classes are a minor ity,the aboriginals are in a minor ity and the Muslims are in aminor ity. But once it is conceded that a particular group isa minor ity there is the danger that many other groups wouldbegin to clamour for being considered as minor ities.Formerly in the political sphere the Muslims were considereda minor ity. But then the Depressed Classes got themselvesincluded in this category. I am afraid that among theDepressed Classes themselves new groups would begindemanding the status of a new minor ity. The same is, in myopinion, the case of the aboriginals. I would, therefore,like that the word `minor ity' wherever it occurs in theDraft Constitution should be deleted and the article 13should be so drafted that all may feel that they have gotreal Swaraj and that they have no cause for apprehension andthat

they have as unrestricted a freedom as any one else.

Shri Deshbandhu Gupta (Delhi): *[Mr. Vice-President, Ihave had an opportunity once before of representing my viewson the recommendations of the Drafting Committee. I was notat that time in a position to congratulate my Friend, Dr.Ambedkar and the Drafting Committee, on certain of therecommendations, which related to the Chief Commissioners'Provinces. But today. I feel that on article 13, whichrelates to our Fundamental Rights, and particularly afterthis amendment as it stands, the Drafting Committee deservesour hearty congratulations.

Some of my friends here have objected saying that whathas been given by one hand has been taken away by the other.But if you ponder a little, you will find that it is not so.If some one is given a freedom by which the freedom of theother is curtailed, then I would say, that such a demand is not for the right type of freedom. For example, it has beenstated that restrictions have been imposed on the movementof people belonging to the criminal tribes. I would like toask, why should not restrictions be imposed on the movementof the criminal-tribe people, when they are a source ofdanger to other law-abiding citizens? Could anyone beserious in saying that restrictions and conditions imposedon the criminal tribes should not have been imposed at all?Or that the presence of those restrictions and conditionshas in any way curtailed our freedom? Similarly in respectof land, it has been stated that henceforth our Harijanbrethren would not be able to purchase any land for themselves and the Land Alienation Act would continue tostand as it is. It is perfectly correct to say that the mostobjectionable feature of the Land Alienation Act was thatcertain castes had been mentioned therein. For example, aBania or a Brahmin or a Harijan could not purchase land. Itwas wrong. But in fact, that restriction is being sweptaside today by the conferment of the Fundamental Right thatall citizens shall have the right to acquire property. Fromnow on, if any restriction is imposed, it would have to beproved whether it is proper or improper. That question wouldbe decided, under the provisions of this section, by the Supreme Court. It is a big gain. Formerly, the phraseologyof the article was defective, but that defect has beenremoved by the acceptance of the amendment of my Friend,Pandit Thakur Dass Bhargava, which seeks to add the word`reasonable'. Now, there is nothing to warrant theimposition of any undue restriction. If there would be any,then against that an appeal could be preferred, and thatwould be decided by our Supreme Court which would becomposed of great experts in India. That is why I feel thatwe should welcome this article and that it would be wrong togive an impression that it curtails our freedom in anysense. We should realise that our country is now a freecountry. I agree with my Friend, Shri Algu Rai Shastri that,along with rights, certain obligations and responsibilitieshave also come upon

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

[] Translation of Hindustani speech.

us. If we do not stand by those obligations then our freedomwould be the freedom of the jungle. That freedom, I think,would not be such as to merit a welcome from us. Therefore,I think, this article as amended, should be accepted by us.We should realise that it forms the basis of ourconstitution, and it is a thing of which we can rightly feelproud and which will raise us in the estimation of the whole world.]

Shri M. Ananthasayanam Ayyangar (Madras: General): Sir,I consider article 13 as the most important article, as itdeals with some of the fundamental rights which are commonto all free countries and all free citizens in the world. Anumber of amendments have been moved to this article whichcan all be classified under three heads. Some want to removeall restrictions on the rights that have been set out inclause (1). The fundamental rights guaranteed in clause (1)of article 13 are freedom of speech and expression, assemblyand association, right to move freely inside the territory,right to

practise any profession, right to reside--these arethe fundamental rights that have been guaranteed. There areexceptions to these fundamental rights that have been setout in this clause and they are to be found in thesubsequent clauses (2), (3), (4), (5) and (6). Some of the amendments are for the deletion of the clauses; and some tomake improvements so that these provisos may not take awaythe rights that have been guaranteed under clause (1).

Pandit Thakur Dass Bhargava has moved an amendmentsaying that if any restrictions have to be imposed uponthese rights that have been guaranteed in clause (1), theymust all be reasonable. I believe that that amendment wouldsufficiently meet the situation.

Regarding freedom of speech we have improved upon therestriction that has been imposed in clause (2). The word`sedition' has been removed. If we find that the governmentfor the time being has a knack of entrenching itself,however had its administration might be it must be thefundamental right of every citizen in the country tooverthrow that government without violence, by persuadingthe people, by exposing its faults in the administration,its method of working and so on. The word `sedition' hasbecome obnoxious in the previous regime. We had thereforeapproved of the amendment that the word `sedition' ought to be removed, except in cases where the entire state itself issought to be overthrown or undermined by force or otherwise,leading to public disorder; but any attack on the governmentitself ought not to be made an offence under the law. Wehave gained that freedom and we have ensured that nogovernment could possibly entrench itself, unless thespeeches lead to an overthrow of the State altogether.

Then there are certain amendments which have been givenfor adding to the fundamental rights that have been set out.They require some detailed consideration. The foremost ofthose amendments relates to guaranteeing that every citizenshall have the right to exercise his personal law. Let ussee what this means. We have already discussed personal lawat some length in the Directive clause where a direction hasbeen given that a uniform code of civil law must be evolvedearly or late. Amendments have been moved that unless aprovision is made in the Fundamental Rights there is nosafety and that the major ity community may introduce its ownpersonal law or flagrantly violate the personal law of any community. Let us take the communities. There are three mainreligions. Let us take Muhammadanism. There is absolutely noprovision in the Fundamental Rights that you ought to riderough-shod over their personal law. The law of the land asit exists today gives sufficient guarantee so far as that isconcerned. But our friends who moved the amendments wanted adouble guarantee that their personal law ought not to beinterfered with. My submission is that it is impracticable,for, in an advanced society, even the members who belong to a particular community may desire their personal law to be changed. Let us take the Muhammadan law. I would onlyrefer to two or three amendments that have been made to thatlaw as set out in the Shariat. As recently as in 1939 theCentral Legislature passed a law for enabling thedissolution of Muslim marriages under certain circumstances.You will be pleased to note that under the Muslim Law, a manhas got the unilateral right to declare a marriage void bypronouncing the word talak and there is another form ofdivorce called kulamp. Woman normally has no right todissolve a marriage. She has to go to a court of law andvarious matters have to be set out such as impotency and soon. All that has been made easy now. Another considerationis that a woman who cannot lead a family life with thehusband in the same household is entitled under certainconditions to separation. These have hitherto not beenenvisaged nor provided for in the Dissolution of MuslimMarriages Act. As a member of the Assembly I was a member ofone of the committees that considered this question. We leftthe question entirely for the Muslims Members concerned tosettle. The

Shariat Law was introduced in the Assembly andan Act was passed bringing into line with the Shariat Lawthe different pieces of legislation in the provinces ofIndia. This was done four years ago. The Wakf Validation Actwas passed in 1930. A time may come when members belongingto the particular community may feel that in the interestsof the community progressive legislation has to be enacted.But if we make a provision here that the personal law shallnot be interfered with, there will not be any right to themembers of that community itself to modify that law.Therefore it is not necessary that we should introduce it asa fundamental right. There is absolutely nothing in thisConstitution which allows the major ity to override the minor ity. This is only an enabling provision. Without theconsent of the minor ity that is affected, no such law willbe framed. I therefore feel it is unnecessary to include itin the Fundamental Rights.

Then my friend, Mr. Kamath wanted that we should havethe right to bear arms and that this right should be put in the Fundamental Rights. It is true that for a long time theCongress has been from year to year passing resolutions thatwe must have the right to bear arms. The situation haschanged now. We were then slaves and wanted to equipourselves sufficiently so that in case of need we can usethe arms for getting out of the foreign yoke. But, today in the civilised world I should like to ask my honourableFriend if he feels that everybody should be allowed to fighteven to defend himself. Except in extreme circumstances noforce should be used. Even when force has to be used, itmust be concentrated in the State. The State it is that muststand between man and man and citizen and citizen when theywant to fight. No individual citizen ought to be allowed toattack another. Very often the right to bear arms is abused.

Shri H. V. Kamath: Not even in self-defence?

Shri M. Ananthasayanam Ayyangar: Very often defence isoffence in the hands of strong young men whose blood is verywarm like that of my friend. Mr. Kamath's defence very oftenmeans offence.

Shri H. V. Kamath: I strongly protest against thatremark, Sir.

Shri M. Ananthasayanam Ayyangar: I am sorry, Sir.

Mr. Vice-President: He has expressed his regret.

Shri M. Ananthasayanam Ayyangar: I have the greatestregard for my young friend and his youthful enthusiasm.

So far as the communal point is concerned, there is anamendment here which requires it to be included as a fundamental right. I am afraid it is

not possible to do so. There is provision made in the PenalCode under sections 153 and 155-A for the purpose. That is ample.

As regards freedom of thought, I am surprised to see anamendment moved saying that freedom of thought ought to beallowed. Nobody can prevent freedom of thought. It is a fundamental right. It is only freedom of expression that hasto be allowed. Now, freedom of press means freedom ofexpression. As regards the secrecy of telegraphic andtelephonic communications, it is a debatable point and weought not to allow any change in the existing provision.

Now, therefore, except the amendments which areacceptable to Dr. Ambedkar, the others should not beaccepted. They are objectionable and ought not to find aplace in the Constitution.

Shri Satyanarayan Sinha (Bihar: General): I move thatthe question be now put.

Mr. Vice-President: An enquiry was made of me as to howI have tried to conduct the proceedings of this House. Irefused to supply the information at that time, because Ithought it might be left to my discretion to explain how Iconduct the proceedings. I see that I have not been able tosatisfy all the members who desire to speak. At the presentmoment I have here 25 notes from 25 different gentlemen allanxious to speak. There is no doubt that each one of themwill be able to contribute something to the discussion. Butthe discussion cannot be prolonged indefinitely. This doesnot take into account those other gentlemen equallycompetent to give their opinion who stand up and who havedenied to themselves the

opportunity of sending me notes. Ihave tried to get the views of the House as a whole. IfHonourable Members will kindly go through the list ofspeakers who have already addressed the House they will findthat every province has been represented and every so-calledminor ity from every province has been represented. In myview, in spite of what Pandit L. K. Maitra says, Bengaloesare a major ity. In my view therefore the question has beenfully discussed. But, as always, I would like to knowwhether it is the wish of the House that we should closethis discussion.

Honourable Members: Yes, yes:

Mr. Vice-President: Then I call upon Dr. Ambedkar toreply.

The Honourable Dr. B. R. Ambedkar (Bombay: General):Mr. Vice-President, Sir, among the many amendments that havebeen moved to this article 13, I propose to accept amendmentNo. 415, No. 453 as amended by amendment No. 86 of Mr.Munshi, and amendment No. 49 in list I as modified by Mr.Thakur Dass Bhargava's amendment to add the word`reasonable'.

Mr. Vice-President: Will you kindly tell us how youpropose to accept amendment No. 415.

The Honourable Dr. B. R. Ambedkar: The amendment whichseeks to remove the words `subject to the other provisionsof this article'.

Mr. Vice-President: And then?

The Honourable Dr. B. R. Ambedkar: Then I accept No.453 as modified by amendment No. 86, and amendment No. 49 inList I as modified by the amendment of Pandit Thakur DassBhargava which introduces the word `reasonable'.

Now, Sir, coming to the other amendments and the pointraised by the speakers in their speeches in moving thoseamendments, I find that there are just a few points whichcall for a reply.

With regard to the general attack on article 13 whichhas centred on the sub-clauses to clause (1), I think I maysay that the House now will be in a

position to feel that the article with the amendmentsintroduced therein has emerged in a form which is generallysatisfactory. My explanation as to the importance of article8, my amendment to the phrase "existing laws" and theintroduction of the word "reasonable" remove, in myjudgment, the faults which were pointed out by honourablemembers when they spoke on this article, and I think thespeeches made by my friends, Professor Shibban Lal Saksenaand Mr. T. T. Krishnamachari and Mr. Algu Rai Shastri, willconvince the House that the article as it now stands with the amendments should find no difficulty in being acceptedand therefore I do not want to add anything to what myfriends have said in support of this article. In fact I findconsiderable difficulty to improve upon the arguments usedin their speeches in support of this article.

I will therefore take up the other points. Most of themhave also been dealt with by my friend, Mr. AnanthasayanamAyyangar and if, Sir, you had not called upon me, I wouldhave said that his speech may be taken as my speech, becausehe has dealt with all the points which I have noted down.

Now, the only point which I had noted down to which Ihad thought of making some reference in the course of myreply was the point made by my friend, Professor K. T. Shah,that the fundamental rights do not speak of the freedom of the press. The reply given by my friend, Mr. AnanthasayanamAyyangar, in my judgment is a complete reply. The press ismerely another way of stating an individual or a citizen.The press has no special rights which are not to be given orwhich are not to be exercised by the citizen in his individual capacity. The editor of a press or the managerare all citizens and therefore when they choose to write innewspapers, they are merely exercis ing their right ofexpression, and in my judgment therefore no special mentionis necessary of the freedom of the press at all.

Now, with regard to the question of bearing arms aboutwhich my friend Mr. Kamath was so terribly excited, I thinkthe position that we have taken is very clear. It is quitetrue and everyone knows that the Congress Party had beenagitating that there should be right to bear arms. Nobodycan deny that. That is history. At the same time I think theHouse

should not forget the fact that the circumstances whensuch resolutions were passed by the Congress no longer exist.

Shri H. V. Kamath: A very handy argument The Honourable Dr. B. R. Ambedkar: It is because theBrit ish Government had refused to allow Indians to beararms, not on the ground of peace and order, but on theground that a subject people should not have the right to bear arms against an alien government so that they couldorganise themselves to overthrow the Government, andconsequently the basic considerations on which theseresolutions were passed in my judgment have vanished. Underthe present circumstances, I personally myself cannotconceive how it would be possible for the State to carry onits administration if every individual had the right to gointo the market and purchase all sorts of instruments of attack without any let or hindrance from the State.

Shri H. V. Kamath: On a point of clarification, Sir,the proviso is there restricting that right.

The Honourable Dr. B. R. Ambedkar: The proviso doeswhat? What does the proviso say? What the proviso can do isto regulate, and the term `regulation' has been judiciallyinterpreted as prescribing the conditions, but the conditions can never be such as to completely abrogate the right of the citizen to bear arms. Therefore regulation by itself will not prevent a citizen who wants to have theright to bear arms from having them. I question very much the policy of giving all citizens indiscirminately any such fundamental right. For instance,if Mr. Kamath's proposition was accepted, that every citizenshould have the fundamental right to bear arms, it would beopen for thousands and thousands of citizens who are todaydescribed as criminal tribes to bear arms. It would be opento all sorts of people who are habitual criminals to claimthe right to possess arms. You cannot say that under theproviso a man shall not be entitled to bear arms because hebelongs to a particular class.

Shri H. V. Kamath: If Dr. Ambedkar understands theproviso fully and clearly, he will see that such will not bethe effect of my amendment.

The Honourable Dr. B. R. Ambedkar: I cannot yield now.I have not got much time left. I am explaining the positionthat has been taken by the Drafting Committee. The point isthat it is not possible to allow this indiscriminate right.On the other hand my submission is that so far as bearing ofarms is concerned, what we ought to insist upon is not theright of an individual to bear arms but his duty to beararms. (An Honourable Member: Hear, hear.) In fact, what weought to secure is that when an emergency arises, when thereis a war, when there is insurrection, when the stability andsecurity of the State is endangered, the State shall beentitled to call upon every citizen to bear arms in defenceof the State. That is the proposition that we ought toinitiate and that position we have completely safeguarded bythe proviso to article 17.

Shri H. V. Kamath: (rose to interrupt).

Mr. Vice-President: You do not interrupt, Mr. Kamath.You cannot say that I have not given you sufficient atitude.

The Honourable Dr. B. R. Ambedkar: Coming to thequestion of saving personal law, I think this matter wasvery completely and very sufficiently discussed and debatedat the time when we discussed one of the DirectivePrinciples of this Constitution which enjoins the State toseek or to strive to bring about a uniform civil code and I do not think it is necessary to make any further referenceto it, but I should like to say this that, if such a savingclause was introduced into the Constitution, it woulddisable the legislatures in India from enacting any socialmeasure whatsoever. The religious conceptions in thiscountry are so vast that they cover every aspect of life,from birth to death. There is nothing which is not religionand if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do notthink it is possible to accept a position of that sort.There is nothing extraordinary in saying that we ought tostrive hereafter to limit the

definition of religion in sucha manner that we shall not extend beyond beliefs and suchrituals as may be connected with ceremonials which areessentially religious. It is not necessary that the sort oflaws, for instance, laws relating to tenancy or lawsrelating to succession, should be governed by religion. InEurope there is Christianity, but Chistianity does not meanthat the Christians all over the world or in any part ofEurope where they live, shall have a uniform system of lawof inheritance. No such thing exists. I personally do notunderstand why religion should be given this vast, expansivejurisdiction so as to cover the whole of life and to preventthe legislature from encroaching upon that field. After all,what are we having this liberty for? We are having thisliberty in order to reform our social system, which is sofull of inequities, so full of inequalities, discriminationsand other things, which conflict with our fundamental rights. It is, therefore, quite impossible for anybody toconceive that the personal law shall be excluded from thejurisdiction of the State. Having said that, I should alsolike to point out that all that the State is claiming in this matter is a power to legislate. There is no obligationupon the State to do away with personal laws. It is onlygiving a power. Therefore, no one need be apprehensive of the fact that if the State has the power, the State willimmediately proceed to execute or enforce that power in amanner that may be found to be objectionable by the Muslimsor by the Christians or by any other community in India.

We must all remember--including Members of the Muslimcommunity who have spoken on this subject, though one canappreciate their feelings very well--that sovereignty isalways limited, no matter even if you assert that it isunlimited, because sovereignty in the exercise of that powermust reconcile itself to the sentiments of differentcommunities. No Government can exercise its power in such amanner as to provoke the Muslim community to rise inrebellion. I think it would be a mad Government if it didso. But that is a matter which relates to the exercise of the power and not to the power itself.

Now, Sir, my friend, Mr. Jaipal Singh asked me certainquestions about the Adibasis. I thought that was a questionwhich could have been very properly raised when we werediscussing the Fifth and the Sixth Schedules, but as he hasraised them and as he has asked me particularly to give himsome explanation of the difficulties that he had found, I amdealing with the matter at this stage. The House willrealize what is the position we have laid down in the Draft Constitution with regard to the Adibasis. We have twocategories of areas,--scheduled areas and tribal areas. Thetribal areas are areas which relate only to the province ofAssam, while the scheduled areas are areas which arescattered in provinces other than Assam. They are really adifferent name for what we used in the Government of IndiaAct as `partially excluded areas'. There is nothing beyondthat. Now the scheduled tribes live in both, that is, in thescheduled areas as well as in the tribal areas and thedifference between the position of the scheduled tribes inscheduled areas and scheduled tribes in tribal areas isthis: In the case of the scheduled tribes in the scheduledareas, they are governed by the provisions contained inparagraph V of the Fifth Schedule. According to thatSchedule, the ordinary law passed by Parliament or by thelocal Legislature applies automatically unless the Governordeclares that that law or part of that law shall not apply.In the case of the scheduled tribes in tribal areas, theposition is a little different. There the law made byParliament or the law made by the local legislature of Assamshall not apply unless the Governor extends that law to thetribal area. In the one case it applies unless excluded andin the other case, it does not apply unless extended. That is the position.

Now, coming to the question of the scheduled tribes andas to why I substituted the word "scheduled" for the word"aboriginal",

the explanation is this. As I said, the word"scheduled tribe" has a fixed meaning, because it enumeratesthe tribes, as you will see in the two Schedules. Well, theword "Adibasi" is really a general term which has nospecific legal de jure connotation, something like theUntouchables. It is a general term. Anybody may includeanybody in the term `untouchable'. It has no definite legalconnotation. That is why in the Government of India Act of1935, it was felt necessary to give the word `untouchable'some legal connotation and the only way it was foundfeasible to do it was to enumerate the communities which indifferent parts and in different parts and in differentareas were regarded by the local people as satisfying thetest of untouchability. The same question may arise withregard to Adibasis. Who are the Adibasis. Who are theAdibasis? And the question will be relevant, because by thisConstitution, we are conferring certain privileges, certainrights on these Adibasis. In order that, if the matter wastaken to a court of law there should be a precise definitionas to who are these Adibasis, it was decided to invent, soto say, another category or another term to be called`Scheduled tribes' and to enumerate the Adibasis under that head. Now I think my friend, Mr. Jaipal singh, if he were to take the several communities which are now generallydescribed as Adibasis and compare the communities which arelisted under the head of scheduled tribes, he will find thatthere is hardly a case where a community which is generallyrecognised as Adibasis is not included in the Schedule. I think, here and there, a mistake might have occurred and acommunity which is not an Adibasi community may have beenincluded. It may be that a community which is really an Adibasi community has not been included, but if there is acase where a community which has hitherto been treated as anAdibasi Community is not included in the list of scheduled tribes, we have added, as may be seen in the draft Constitution, an amendment whereby it will be permissiblefor the local government by notification to add any particular community to the list of scheduled tribes whichhave not been so far included. I think that ought to satisfymy friend, Mr. Jaipal Singh.

He asked me another question and it was this. Supposinga member of a scheduled tribe living in a scheduled area ora member of a scheduled tribe living in a tribal areamigrates to another part of the territory of India, which isoutside both the scheduled area and the tribal area, will hebe able to claim from the local government, within whosejurisdiction he may be residing, the same privileges whichhe would be entitled to when he is residing within thescheduled area or within the tribal area? It is a difficultquestion for me to answer. If that matter is agitated inquarters where a decision on a matter like this would lie,we would certainly be able to give some answer to thequestion in the form of some clause in this Constitution.But, so far as the present Constitution stands, a member ofa scheduled tribe going outside the scheduled area wouldcertainly not be entitled to carry with him the privilegesthat he is entitled to when he is residing in a scheduledarea or a tribal area. So far as I can see, it will bepractically impossible to enforce the provisions that applyto tribal areas or scheduled areas, in areas other thanthose which are covered by them.

Sir, I hope I have met all the points that were raisedby the various speakers when they spoke upon the amendmentsto this clause, and I believe that my explanation will givethem satisfaction that all their points have been met. Ihope that the article as amended will be accepted by theHouse.

Mr. Vice-President: I shall now put the amendmentswhich have been moved, which number thirty, to the vote oneby one. Amendment No. 412.

The question is:

"That for article 13, the following be substituted:--

"12. Subject to public order or morality the citizensare guaranteed--

(a) freedom of speech and expression;

(b) freedom of the press;

(c) freedom to form

association or unions;

(d) freedom to assemble peaceably and withoutarms;

(e) secrecy of postal, telegraphic and telephoniccommunications.

13-A. All citizens of the Republic shall enjoy freedomof movement throughout the whole of the Republic. Everycitizen shall have the right to soiourn and settle in anyplace he pleases. Restrictions may, however, be imposed byor under a Federal law for the protection of aboriginaltribes and backward classes and the preservation of publicsafety and peace."

The amendment was negatived.

Mr. Vice-President: Amendment No. 415. I understand it hasbeen accepted by Dr. Ambedkar.

The question is:

"That in clause (1) of article 13, the words "Subjectto the other provisions of this article" be deleted".

The amendment was adopted.

Mr. Vice-President: Second part of amendment No. 416.The first part of the amendment has been already blocked asamendment No. 415 has been accepted.

The question is;

"That in clause (1) of article 13, after the words "allcitizens shall have" the words "and are guaranteed" beadded."

The amendment was negatived.

Mr. Vice-President: Amendment No. 420.

The question is:

"That before sub-clause (a) of clause (1) of article13, the following new sub-clause be inserted:--

"(a-1) to freedom of thought;"

The amendment was negatived.

Mr. Vice-President: Amendment No. 421.

The question is:

"That in sub-clause (a) of clause (1) of article 13,after the word "expression", the words "of thought andworship; of press and publication:" be added."

The amendment was negatived.

Mr. Vice-President: Amendment No. 422.

The question is:

"That at the end of sub-clause (a) of clause (1) ofarticle 13 the words "both in the Press and the Platform" be inserted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 428.

The question is:

"That at the end of sub-clause (c) of clause (1) ofarticle 13, the words "for any lawful purpose" be inserted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 429.

The question is:

"That in sub-clause (d) of clause (1) of article 13,after the words "move freely" the words "in a lawful manner"be inserted."

The amendment was negatived.

Mr.Vice-President: Amendment No. 430.

The question is:

"That in sub-clause (e) of clause (1) of article 13,after the words "and settle" the words " in a lawful manner"be inserted.'

The amendment was negatived.

Mr. Vice-President: Amendment No. 482.

The question is:

"That in sub-clause (g) of clause (1) of article 13,after the words "or business" the words "in a lawful manner"be inserted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 438 as modified byamendment No. 79 of List II.

The question is:

"That for amendment No. 438* of the List of amendments,the following be substituted :--

"That after sub-clause (g) of clause (1) of article 13,the following new sub-clause be added:-

"(h) to keep and bear arms;"

and the following new clause be added after clause (6):--

"(7) Nothing in sub-clause (h) of the said clause shallaffect the operation of any existing law, or prevent theState from making any law, imposing, in the interests ofpublic order, peace and tranquallity, restrictions on theexercise of the right conferred by the said sub-clause."

The amendment was negatived.

Mr. Vice-President: Amendment No. 440.

The question is:

"That after sub-clause (g) of clause (1) of article 13,the following new sub-clause be added:--

(h) to follow the personal law of the group orcommunity to which he belongs or professes to belong.

(i) to personal liberty and to be tried by a competentcourt of law in case such liberty is curtailed."

The amendment was negatived.

Mr. Vice-President: Amendment No. 502.

The question is;

"That after clause (6) of article 13, the following newclauses be added:-

"(7) Nothing in clauses (2) to (6) of this articleshall affect the right guaranteed under sub-clause (h) ofclause (1) of this article.

"(8) Nothing in the clauses

(2) to (6) shall affect theright guaranteed under sub-clause (i) of clause (1) of thisarticle.

"(9) No existing law shall operate after thecommencement of the Constitution so far as the same affectsadversely the right guaranteed under sub-clause (i) ofclause (1) of this article and no law shall be passed by theParliament or any State which may adversely affect the rightguaranteed under sub-clause (i) of clause (1) of this article ."

The amendment was negatived.

Mr. Vice-President: Amendment No. 445. I shall explainone thing. Honourable Members will note that I am callingout the amendments in the order in which they were moved.That is why the numbers are not consecutive. Amendment No.445.

*"That after sub-clause (g) of clause (1) of article13, the following new sub-clause be added:--

(h) to keep and bear arms in accordance withregulations or reservations made by or under Union Law."

The question is:

"That the following new clause be added after clause(1) of article 13:--

"Liberty of the person is guaranteed. No person shallbe deprived of his life, nor be arrested or detained incustody, or imprisoned, except according to due process oflaw, nor shall any person be denied equality before the lawor equal protection of the laws within the territory ofIndia."

The amendment was negatived.

Mr. Vice-President: Amendment No. 447.

The question is:

"That clauses (2) to (6) of article 13 be deleted and the following proviso be added to clause (1):--

"Provided, however, that no citizens in the exercise of the said right, shall endanger the security of the State,promote ill-will between the communities or do anything todisturb peace and tranquaillity in the country."

The amendment was negatived.

Mr. Vice-President: Amendment No. 453 as modified byamendmeant No. 86 of List IV. I understand it has beenaccepted by Dr. Ambedkar.

The question is:

"That for clause (2) of article 13, the following be substituted:--

"(2) Nothing in sub-clause (a) of clause (1) of thisarticle shall affect the operation of any existing law in sofar as it relates to, or prevent the State from making anylaw relating or libel, slander, defamation or any matterwhich offends against decency or morality or whichundermines the security of, or tends to overthrow, theState."

The motion was adopted.

Mr. Vice-President: Amendment No. 449.

The question is:

"That after clause (1) of article 13, the following newclause be inserted:--

"(1-A) Nothing in sub-clause (a) shall affect theoperation of any existing law or prevent any State frommaking any law relating to sedition or conspiracy.

The amendment was negatived.

Mr. Vice-President: Amendment No. 450.

The question is:

"That clauses (2), (3), (4), (5) and (6) of article 13be deleted."

The amendment was negatived.

Mr. Vice-President: The second alternative in amendmentNo. 451.

The question is:

"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."

The amendment was negatived.

Mr. Vice-President: Amendment No. 452.

The question is:

"That clauses (2), (3), (4), (5) and (6) of article 13be delted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 458.

The question is:

"That in clause (2) of article 13, after the word"sedition" the words "communal passion" be inserted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 465.

The question is:

"That clauses (3) and (4) of article 13 be deleted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 478.

The question is:

"That clauses (5) of article 13 be deleted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 454 as modified byamendment No. 49 of List I. I understand it has beenaccepted by Dr. Ambedkar.

The question is:

"That with reference to amendment No. 454 of the Listof amendments-

(i) in clauses (3), (4), (5) and (6) of article 13,after the words "any

existing law" the words " in so far itimposes" be inserted, and

(ii) in clause (6) of article 13, after the words "inparticular" the words "nothing in the said clause shallaffect the operation of any existing law in so far as itprescribes or empowers any author ity to prescribe, orprevent the State from making any law, be insrted."

The motion was adopted.

Mr. Vice-President:

The question is:

"That in clauses (3), (4), (5) and (6) of article 13,before the word "restrictions" the word "reasonable" be inserted."

The amendment was adopted.

Mr. Vice-President: Amendment No. 485.

The question is:

"That in clause (5) of article 13, the word "affect theoperation of any existing law, or" be deleted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 467.

The question is:

"(1) That in clause (3) of article 13, after the word"restrictions" the words "for a defined period" be added."

I think the `Ayes' have it.

But before I declare the result finally I must pointout that there is some kind of misunderstanding. Let me readthe amendment. It was moved by Mr. Syamanandan Sahaya:

"That in clause (3) of article 13, after the word"restrictions" the words "for a defined period" be added."

*"That in clauses (2), (3), (4), (5) and (6) of article13, the words "affect the operation of any existing law, or"be deleted."

I definitely remember that several people spoke against it.I am going to put the amendment once again. Amendment No.467.

The question is:

"(1) That in clause (3) of article 13, after the word"restrictions" the words "for a defined period" be added."

The amendment was negatived.

Mr. Vice-President: I trust that in future, honourableMembers will take more care before they give their verdict.

Mr. Vice-President: I put amendment No. 474 to vote.

The question is;

"That in clauses (4) of article 13 after the word"restrictions" the words "for a defined period" be added."

The amendment was negatived.

Mr. Vice-President: Amendment No. 476.

The question is:

"That in clause (4) of article 13, for the words " thegeneral public" the words "public order or morality" be substituted.'

The amendmeant was adopted.

Mr. Vice-President: Amendment No. 483.

The question is;

"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 amendment was negatived.

Mr. Vice-President: I put No. 485 (second part), tovote.

The question is:

"That in clause (5) of article 13, for the word "State"the word "Parliament" be substituted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 489.

The question is:

"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."

The amendment was negatived.

Mr. Vice-President: Amendment No. 491.

The question is:

"That in clause (5) of article 13, for the word"aboriginal" the word "Scheduled" be substituted."

The amendment was adopted.

Mr. Vice-President: Amendment No. 497.

The question is:

"That in clause (6) of article 13, for the words`morality or health" the words "the general public" be substituted."

The amendment was adopted.

Mr. Vice-President: I put amendment No. 500 to vote.

The question is:

"That after clause (6) of article 13, the following newclause be added:

`(7) The occupation of beggary in any form or shape forperson having sound physique and perfect health whethermajor or minor is totally banned and any such practice shallbe punishable in accordance with law.'"

The amendment was negatived.

Mr. Vice-President: The question is:

"That article 13 in the form in which it emerges afterthe different amendments which have been passed here standpart of the Constitution."

Article 13, as amended, was adopted.

Article 13, as amended, was added to the Constitution.

Article 14

Mr. Vice-President: We come to new article 14.

(Amendment No. 504

was not moved.)

Shri H. V. Kamath: What about 13-A? That is, amendments89, 90 and 92 of List V.

Mr. Vice-President: That has been held over. I wasreferring to No. 504.

Now the motion is:

"That article 14 form part of the Constitution."

Honourable Members have been supplied with a list whichindicates the manner in which I propose to conduct theproceedings of the House. No. 505 has been disallowed asbeing verbal. 506 may be moved.

Pandit Thakur Dass Bhargava: May I take the liberty ofpointing out that my amendment (No. 505) is not mercyverbal? It is an amendment of substance also.

Mr. Vice-President: Then I will give my rulling lateron. Mr. Naziruddin Ahmad will carry on his work.

Mr. Naziruddin Ahmad (West Bengal: Muslim): Mr. Vice-President, I beg to move:

"That in clause (1) of article 14, after the words"greater than", the words "or of a kind other than' be inserted."

Sir, clause (1) provides-I am reading only the materialpart--

"No person shall be subjected to a penalty greater thanthat which might have been in flicted under the law at thetime of the commission of the offence."

It guards against any punishment `greater than' is provideto be inflicted upon a person. I have attempted to insertafter the words `greater than' the words `or other than'that which might have been inflicted. There are many caseswhere a punishment of fine only is provided. Suppose a manis fined one lakh of rupees. An Appellate Court may turn itto an imprisonment during the sitting of the Court. Thatwill violate the provision that where fine alone is providedfor, an imprisonment may be substituted on the ground thatit is not greater than' that. My amendment seeks to limitthe powers of Courts to inflict punishment not only as to the extent but also to the kind. There are different kindsof punishments--fine, imprisonment, whipping, forfeiture andhanging and the like where only a particular kind ofpunishment is specifically provided, you should not awardany punishment other than that. That is in short the effectof this amendment. Where whipping alone is provided. Youcannot award a fine. Where fine alone is provided, youcannot award imprisonment or whipping or forfeiture. Whereforfeirture of moveables only a provided, you cannot forfeitimmovables. Where forfeiture of articles relating to which

crime has been committed is provided, you cannot forfeito ther kinds of things. So if we leave the powers of thecourts as in the clause it gives the Court the power to giveany punishment not sanctioned by law. If clause (1) is to beretained, the Court should also be limited to the class ofpunishment provided. To me it seems that there is here alacuna-rather oversight which should be corrected.

Mr. Vice-President: As regards amendment No. 505, I canallow the Member to move the second part of it. PanditThakur Dass Bhargava.

Pandit Thakur Das Bhargava: Sir, I beg to move.

"That in clause (1) of article 14, for the words `underthe law at the time of the commission' the words `under thelaw in force at the time of the commission' be substituted."

Sir, if you kindly examine the definition of the expression`law in force' as given in the explanation under article307, it would appear that the words `the law' and the words`the law in force' have different meanings. Moreover as the words in the previous part of the article also appear as`law in force', it is very necessary and proper in thisjuxtaposition that the amendment that I have suggestedshould be accepted. That is all I have to submit.

Mr. Vice-President: Amendment Nos. 507, 508 and 511 areof the same import. The most comprehensive one, i.e, No.507, may be moved.

(Amendments Nos. 507, 508 and 511 were not moved.)

Amendments Nos. 509 and 510 are of similar import andmay be moved together. They are in the name of Mr.Naziruddin Ahmad.

Mr. Naziruddin Ahmad: Sir, I beg to move:

"That at the end of clause (2) of article 14, the words`otherwise than as permitted by the Code of CriminalProcedure, 1898" be added."

Sir, I am moving these amendments with

considerbaleanxiety in my mind. The first anxiety is that I may perhapsoverstep my time limit; they second anxiety is that thereare a large number of observant and powerful eyes directedagainst me and I am afraid that a point of order may betaken at any time; and the third anxiety is the huge `No'against me will be echoed by honourable Members and thiswill reverberate as thunder clap under which my feeble `Aye'will be lost.

Then the other difficulty is that I have to crave theindulgent attention of the Honourable the Chairman of theDrafting Committee to the point I am rais ing. I shallrestrict my point strictly to the limits of relevancy.

Sir, the words which I seek to insert deals with animportant principle of criminal procedure. Clause (2) whichI seek to amend runs as follows:

"(2) No person shall be punished for the same offencemore than once."

A very sacred sentiment has prompted the introductionof this clause; but considered from the point of view ofcriminal law, it has its loop-holes.

Clause (2) seems to be rather sweeping. There are caseswhere a man may be legally punishment twice for the sameoffence, and I shall submit the circumstances, with therelevant laws. Sir, the principal which deals with thissubject finds a place in section 403, sub-section (1) of theCode of Criminal Procedure. The point of this. The law ofpunishment twice has been enacted.

Shri T. T. Krishnamachari: Sir, on a point of order.Can any Member of this House move an amendment referring toan enactment made by a legislature subordinate to this House? I am afraid the amendment itself is out of order.

Mr. Naziruddin Ahmad: Anything else may be out oforder, but not the amendment. We have already referred toand saved `existing laws'--enactments of subordinatelegislatures in article 9 and in other places. I was onlyreferring for handy consideration to the Criminal ProcedureCode. I cannot pretend to submit that Section 403, or anyprinciple embodied in it, or any sound principle even isbinding upon this House, not even the soundest ofpropositions, because this is a sovereign House.

I was submitting for consideration certain principlesof the Criminal Procedure, not that I suggested at all thatthey will be binding on this House, but only that theyworthy of consideration.

Sir, it often happens--I shall submit examples fromgeneral principles because I think they would be moreacceptable to Mr. Krishnamachari--it often happens that aman is punished by a Court which has no jurisdiction; It isa very ordinary experience in criminal Courts that the Judgeon appeal or the High Court or the Privy Council--and nowthe Federal Court and later on the future Supreme Court--mayand does find that the conviction is without jurisdiction.Meantime, the man has been convicted. If you say that hecannot be convicted twice, then orders of re-trial byappellate and revisional Courts would be absolutely out of the question. If a man is tried by a Magistrate or a Courthaving no jursdiction, and if he is punished, that is thefirst punishment.

And then if it is found that the Court had nojurisdication to try the case, what is often done is thatthere is a re-trial. But if you enact the principle ofclause (2) that a man shall not be punished for the sameoffence more than once, the effect would be that if a man ispunished by a Court of competent jurisdiction but there is alacuna in the trial, or by a Court of competent jurisdictionthe result will be to shut out any further trial at all. Are-trial after a conviction is an ordinary incident of dailyexperience in criminal Courts.

Sometimes, Sir,............

(After a pause)

Sir, I desire to monopolise the attention of theHonourable Member the Chairman of the Drafting Committee;otherwise it will be useless to argue. If he says "No", thewhole House will echo him.

Mr. Vice-President: Dr. Ambedkar, Mr. Naziruddindemands your wholehearted attention. He says that if you say"No", the House will say "No". (Laughter).

Mr. Naziruddin Ahmad: The point which I was submittingis a point of general importance. The

point is that if a manis convicted by a court of law--that is the firstconviction--it may be that there is some lacuna in the trial. The accused appeals to the Court of Sessions. TheCourt finds that there was a lacuna in the trial or that theCourt had no jurisdiction. But it may order a re-trial.Clause (2) which would effectively prevent further trialbecause it may involve a second conviction. There may be afirst conviction of an offender in the hands of a Court, and this clause will effectively prevent a re-trial order by asuperior court. This is one of the simplest examples. Theprinciple should be not merely convicted, but the principleshould be that a man cannot be tried again, tried twice, ifhe is acquitted or convicted by a Court of competent jurisdiction, while the conviction or acquittal standseffective. In fact, it is not the first conviction that isimportant; it is the ultimate legality and finality of theconviction that has to be respeted; the finality shouldattach not only to conviction but also to acquittal. Whatare you going to do with regard to a person who is finallyacquitted after a fair trial, and when the acquittal is not set aside and istherefore final and binding? You say nothing about that. Yousimply say that a man should not be convicted twice for thesame offence. A man acquitted shall also not be liable to betried again. You say nothing about that but confine youattention to the bogey of double punishment. I submit thatthe so-called theory of double punishment is not all anddoes not give a complete picture. Take for example, a manfined Rs. 50 for an offence by a Magistrate having nojursdiction; then he appeals to an appellate Court. Theappllate Court will, by virtue of clause (2) be precludedfrom sending it for re-trial on any technical ground, evenon the ground that the Court had no jursdiction.

The relevant section which caused some amount ofsuspicion in the mind of a distinguished Member of theHouse, Mr. T. T. Krishnamachari, I shall with his permissionand with your permission, Sir, and with the permission of the House, read. Not that it is binding, but it is acrystallised wisdom which has been handed down to us fromgeneration to generation. Sub-section (1) of section 403says:

"A person who has been once tried by a Court ofcompetent jurisdiction for an offence and convicted oracquitted of such offence, shall, while such conviction oracquittal remains in force, not be liable to be tried againfor the same offence".

I think, Sir, this is the proper form. It may be arguedthat the Criminal Procedure Code is a sufficient safeguardagainst injustice, but if you introduce it here it is ajusticiable right, and we have already provided that anyviolation of any fundamental right is justiciable and wouldnullify all existing laws contrary, and therefore it will have the effect of abolishing or rather nullifying thewholesome law as laid down in sub-section (1) of section403. I submit that the clause has got to be very carefullyconsidered and, if necessary, should be re-drafted.

I submit that double punishment for the same offence insuch cases does not in fact work injustice. What happens insuch cases is that the punishment already suffered orinflicted is taken into account or adjusted in giving thefinal punishment in a re-trial. That is the effect of this amendment.

Mr. Vice-President: Do you intend to move amendment No.509?

Mr. Naziruddin Ahmad: No, Sir. It deals with the sameprinciple and I do not wish to move it.

Mr. Vice-President: I have found from the last twodays' experience that 9.30 A.M. is too early an hour formany Members of the House. They seem to think that otherswill come at the proper time and they need not come, with the result that there is difficulty in starting our work atthe proper time. I have therefore decided that from tomorrowwe shall start at 10 A.M. and break up at 1.30 P.M.

The Assembly then adjourned till Ten of the Clock onFriday the 3rd December, 1948.