Friday, the 3rd December 1948
The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock, Mr. Vice-President (Dr. H. C. Mookherjee) in the Chair.
STATEMENT RE. EIRE ACT
Mr. Vice-President (Dr. H. C. Mookherjee): When our Prime Minister laid before the House the conditions which govern the entry, or rather, the withdrawal of Ireland from the United Kingdom, there were a few Members ......(Interruption).
The Honourable Pandit Jawaharlal Nehru (UnitedProvinces: General): May I say something on this, Sir?
Mr. Vice-President: Yes.
The Honourable Pandit Jawaharlal Nehru: I merely wish to state that I have placed on the Table of the House a telegram that I have received from the Foreign Minister of Eire. In the course of some discussion, I remember--I forget who it was--when an honourable Member wanted to have a copyof the new Bill which is being considered by the Irish Parliament, I said I would enquire. I asked for it by telegram; we do not have it here. We have been informed that the actual Bill is coming by air mail, but by telegram they have sent us the text of the Bill which is a very short one,four or five Sections of a line each. That is laid on theTable of the House for such Members as wish to see it.
Shri S. V. Krishnamurthy Rao (Mysore State): Will you please have it cyclo-styled and circulated to all members?
The Honourable Pandit Jawaharlal Nehru: No, Sir, Iobject. The telegram is laid on the Table and members can see it.
Mr. Vice-President: Before we begin the business of the House, I would like to inform honourable Members that I have received a letter from or President informing me that he is making rapid improvement and that it is very likely that he will be able to resume his duties from the 27th. He has expressed his regret on account of his inability to preside over the deliberations of this House and I have informed him already that we are fully aware of the circumstances which are responsible for his absence. I understand from the papers that he reaches his 64th year today. May I, with the permission of the House, send him our congratulations and at the same time assure him how much we feel his absence? In this connection, I shall also tell him that though I amfully aware of my many lapses from the technicalities of parliamentary practice, I have been able to carry on so far with the goodwill of the House.
Honourable Members: Certainly.
Mr. Vice-President: We shall now resume discussion of article 14. Amendment 510 was moved. 509 will be put to vote. So we next come to 512.
Kazi Syed Karimuddin (C. P. & Berar: Muslim): Mr. Vice-President, Sir, I beg to move--
That in article 14, the following be added as clause(4):--
"(4) The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized."
This is a very important amendment. You will be pleased to find that this finds place as article 4 in the American Constitution and in the Irish Constitution there are clauses(2) and (5) which are similar and in the German Constitution there are articles 114 and 115 on the same lines. In the book of Dr. Ambedkar--Minor ities and States--on page 11,item No. 10, a similar provision has been made. Thus, this is an amendment, the correctness of which cannot be challenged. What is the situation in India today? In India,in parctically every province, there are Goonda Act and Public Safety Act which do not provide for any appeals or representations, and which give no opportunity to the persons concerned to defend themselves. Arrests are made without warrant and searches without justification. We are being governed by lawless laws and there is no remedy for the redress of grievances on account of unauthorised arrests and searches.
We have seen in
1947, and in the beginning of 1948,that hundreds of thousands of people were arrested and houses were searched merely on suspicion. The result is that the morale of the members of the Muslim minor ity community was undermined and they were treated just like criminals in the country. I will give the house one very important instance. Whenever we went to an aerodrome to go to Delhi,our belongings were searched without any reason, without any cause and without any warning. I will now give another instance. When there was police action in Hyderabad, every Muslim worth the name was arrested without any justificationin the adjoining provinces. If those Muslims were really traitors they ought to have been prosecuted, punished and hanged. But people who had nothing whatever to do withHyderabad were arrested under the pretence that they were taken only under protective custody. Well, if they were taken only under protective custody, why were their women and children who were outside not taken under this protective custody?
Therefore my submission is that unless this fundamental right that I have asked for in this amendment is guaranteed,there will be no end to these arrests without warrants and to these searches without justifications. I have moved this amendment in the earnest hope that it would be accepted.
Mr. Vice-President: The next amendment in the List is the one standing in the name of Mr. Kakkan.
Shri P. Kakkan (Madras: General): Sir, I do not want to move it. But, with your permission I wish to speak on it.
Mr. Vice-President: That I cannot permit. I can givethe honourable Member an opportunity to speak in the course of the general discussion on article 14. I think, as there are no other amendments to this article, the House can now take up the general discussion of this article. Mr. Kakkan may now make the speech he wanted to.
Shri P. Kakkan: Mr. Vice-President, I had given notice of an amendment to this article only with a view to speak on it.
Sir, what I have got to say concerns the jail administration. In the jails they make a distinction between prisoners and prisoners in allotting duties in the jails. If a prisoner belongs to the Harijan community he is compelled to do scavenging work, no matter what his class or rank or education is. Prisoners belonging to other communities are not similarly forced to do scavenging work. On this occasionI desire to express my opinion and my feeling that this distinction in the matter of the allotment of work to prisoners inside the jails should be removed forthwith. Sir,I know from experience that the members of the Harijan community are treated in jails very cruelly, as if they are God's creatures and that He created them for doing scavenging work. I earnestly hope that this distinction will be removed hereafter and that Harijans will get impartial treatment everywhere. It is with this object that I have stated in my amendment that no person convicted for any offence shall be compelled to work in jail (castewar) in respect of religion, caste, race or class. I thank you, Sir,for giving me this opportunity to speak.
Shri T. T. Krishnamachari (Madras: General): Mr. Vice-President, Sir, the point I have to place before the House happens to be a comparatively narrow one. In this article14, clause (2) reads thus: `No person shall be punished for the same offence more than once'. It has been pointed out to me by more Members of this House that this might probably affect cases where, as in the case of an official of Government who has been dealt with departmentally and punishment has been inflicted, he cannot again be prosecuted and punished if he had committed a criminal offence; or, per contra, if a Government official had been prosecuted and sentenced to imprisonment or fine by a court, it might preclude the Government from taking disciplinary action against him. Though the point is a narrow one and one which is capable of interpretation whether this provision in this particular clause in the Fundamental Rights will affect the discretion of Government acting under
the rules of conduct and discipline in regard to its own officers, I think, when we are putting a ban on a particular type of action, it is better to make the point more clear.
I recognise that I am rather late now to move an amendment. What I would like to do is to word the clause thus: `No person shall be prosecuted and punished for the same offence more than once." If my Honourable Friend Dr.Ambedkar will accept the addition of the words `prosecuted and' before the word `punished' and if you, Sir, and the House will give him permission to do so, it will not merely be a wise thing to do but it will save a lot of trouble for the Governments of the future. That is the suggestion I venture to place before the House. It is for the House to deal with it in whatever manner it deems fit.
Mr. Vice-President: Does the House give the permission asked for by Shri T.T.Krishnamachari?
Honourable Members: Yes.
Mr. Vice-President: Now I will call upon Dr. Ambedkar to move the amendment suggested by Shri T. T.Krishnamachari.
The Honourable Dr. B. R. Ambedkar: Mr. Vice-President,Sir, with regard to the amendments that have been moved to this article, I can say that I am prepared to accept the amendment moved by Mr. T.T. Krishnamachari. Really speaking, the amendment is not necessary but as certain doubts have been expressed that the word `punished' may be interpreted in a variety of ways, I think it may be desirable to add the words "prosecuted and punished".
With regard to amendments Nos. 506 and 509 moved by my friend, Mr. Naziruddin Ahmad...........,
Mr. Naziruddin Ahmad: It is No. 510.
The Honourable Dr. B. R. Ambedkar: Anyhow, I have examined the position the whole day yesterday and I am satisfied that no good will be served by accepting these amendments. I am however prepared to accept amendment No.512 moved by Mr. Karimuddin. I think it is a useful provision and may find a place in our Constitution. There is nothing novel in it because the whole of the clause as suggested by him is to be found an the Criminal Procedure Code so that it might be said in a sense that this is already the law of the land. It is perfectly possible that the legislatures they are so important so far as personal liberty is concerned that it is very desirable to place these provisions beyond the reach of the legislature and I am therefore prepared to accept his amendment.
With regard to amendment No. 513 moved by my friend,Mr. Kakkan......
An Honourable Member: It was not moved.
Mr. Vice-President: What about amendments Nos. 505 and506?
The Honourable Dr. B. R. Ambedkar: I have already said that I am not prepared to accept amendment Nos. 506 and 510.
Mr. Vice-President: Have you anything to say about amendment No. 505, the second part of it as modified by amendment No. 92 in List V? Perhaps you have overlooked it.It is in the name of Pandit Thakur Dass Bhargava.
The Honourable Dr. B. R. Ambedkar: I accept the amendment moved by him.
Mr. Vice-President: I am putting the amendments one by one to the vote.
Amendment No. 505 as modified by amendment No. 92 ofList V. I understand that Dr. Ambedkar accepts it. The question is:
"That in clause (1) of article 14, for the words `under the law at the time of the commission' the words `under the law in force at the time of the commission' be substituted."
The amendment was adopted.
Mr. Vice-President: Amendment No. 506. The question is:
"That in clause (1) of article 14, after the words"greater than" the words "or of a kind other than" be inserted."
The amendment was negatived.
Mr. Vice-President: Amendment No. 510. The question is:
"That at the end of clause (2) of article 14, the words`other wise than as permitted by the Code of Criminal Procedure, 1898' be added."
The amendment was negatived.
Mr. Vice-President: Amendment No. 512 moved by KaziSyed Karimuddin and accepted by Dr. Ambedkar. The questionis:
That in article 14, the following be added as clause(4):--
"(4) The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized."
I think the `Ayes' have it.
Shri T. T. Krishnamachari: The Noes have it.
Mr. Vice-President: I will again put it to the vote.
I think the `Ayes' have it.
Shri T. T. Krishnamachari: No, Sir, the Noes have it.
Mr. Vice-President: I shall first of all call for a show of hands.
(The Division Bell was rung.)
Shri Mahavir Tyagi (United Provinces: General): May I propose that this question might be postponed for the time being and a chance be given for the Members to confer between themselves and arrive at a decision. Even the Brit ish House of Commons, sometimes converts itself into a committee to give various parties a chance to confer and arrive at an agreed solution.
Mr. Vice-President: I am prepared to postpone the voting on this amendment provided the House gives me the requisite permission. I would request the House to be calm.This is not the way to come to decisions which must be reached through co-operative effort and through goodwill.Does the House give me the necessary power to postpone voting on this?
The Honourable Pandit Jawaharlal Nehru: Mr. Vice-President, Sir, as apparently a slight confusion has arisen in many members' minds on this point, I think, Sir, that the suggestion made is eminently desirable, that we might takeup this matter a little later, and we may proceed with other things. It will be the wish of the House that will prevailof course. I would suggest to you, Sir, and to the House that your suggestion be accepted.
Dr. B. V. Keskar (United Provinces: General): Can it be done after the division bell has rung?
Mr. Vice-President: I never go by technicalities. I shall continue to use common-sense as long as I am here. I have little knowledge of technicalities, but I have some knowledge of human nature. I know that in the long run it is good sense, it is common-sense, it is goodwill which alone will carry weight. I ask the permission of the House to postpone the voting.
Honourable Members: Yes.
Mr. Vice-President: Then we shall pass on to the next article. The next amendment is No. 514 but as Mr. Lari is absent, I shall pass on to the next article.
Shri T. T. Krishnamachari: May I suggest that discussion of this article be postponed, as it is being examined and the Members of the House would like to take some more time for the consideration of this particular article?
Mr. Vice-President: Very well: Then I pass on to article 15-A (New article). Amendment No. 534 seeks to rule out capital punishment. I think it is blocked in view of the fact that a similar amendment was put to vote and rejected.
(Amendments Nos. 535 and 536 were not moved.)
Mr. Vice-President: The motion before the House is that article 16 form part of the Constitution.
An Honourable Member: What about article 15?
Mr. Vice-President: Article 15 has been held over--Honourable Members must have been inattentive not to hearthe suggestion made by Mr. T. T. Krishnamachari and acceptedby the Chair. Amendment No. 537 I rule out of order as it isa negative amendment.
(Amendments Nos. 538, 539 and 540 were not moved.)
Amendment No. 542 is already covered by the provisionrelating to ban on cow-killing passed by the Housepreviously.
Shri C. Subramaniam (Madras: General): Mr. Vice-President, Sir, I find some difficulty in accepting thisarticle as an article coming under fundamental rights. Thearticle reads: "Subject to the provisions of article 244 ofthis Constitution and of any law made by Parliament, trade,commerce and intercourse throughout the territory of Indiashall be free." Before referring to the difficulty, which Ifeel, I will refer the House to the sections in the Draft Constitution which deals with trade and commerce.
There are three articles 243, 244 and 245 which
dealwith this subject `interstate trade and commerce' in thebody of the Draft. Then in the list of legislative powers in the Union list, we find in article 73 "inter-state trade andcommerce subject to the provisions of entry 33 of List No.II". Then item 32 in List II is "trade and commerce within the state; markets and fairs"; and item 33 refers to the"regulation of trade, commerce and intercourse on otherStates for the purposes of the provisions of article 244 ofthis Constitution." Therefore, you will find inter-statetrade and commerce, subject to article 244, is a Unionsubject. Parliament can deal with it. Trade and commercewithin the state and inter-state commerce as provided inarticle 244 are given to the State Legislatures. You willfind, Sir, that in article 244, even though it might beinter-state trade and commerce, the State Legislature isgiven certain powers to impose certain taxes and imposecertain restrictions. Having this in mind, if we come toarticle 16, we find the words "subject to the provisions ofarticle 244 of this Constitution", that is, even in respectof inter-state trade and commerce, the State Legislature hasbeen given certain powers and that is not touched by thisarticle. Therefore leaving that, the article would read"subject to the provisions of any law made by Parliament,trade and commerce and intercourse through the territory ofIndia shall be free". I really fail to understand how thiscan be a fundamental right and whether there is any right at all reserved. The very conception of a fundamental right isthat there is a certain right taken out of the province of the legislature either of the Union or the State. To put itin other words, the sovereignty vests in the public, butthat sovereignty is delegated to the legislatures or thesovereignty is expressed through the legislatures in respectof certain subjects.
But, in respect of certain fundamental rights we saythe Parliament or the Government shall have no power ofinterference. So much so, the sovereignty of the people is absolute in that respect. It isneither delegated, nor is anybody else authorised to dealwith that sovereignty. If we examine this article in thatview, what is the residue of right left which could not betouched either by the legislature of the Union or by the legislature of the State? You find stated here, "Subject to the provisions of any law made by Parliament, trade,commerce and intercourse throughout the territory of Indiashall be free". Here, the sovereignty of the Parliament isabsolute. There is no right which is taken out of theprovince of the legislatures. The right which is reservedhere as a Fundamental right should be one, which neither theUnion Legislature nor the State Legislature can touch. Thereis no such right left here. Mind you, here the wording inarticle 16 is, `Subject to any law made by Parliament'without any limitation whatsoever. So much so, it comes tothis: there shall be free trade throughout the territoriesof India, subject to the powers of Parliament. Irespectfully submit that that would not be a fundamental right.
I know there are certain friends of mine who think thatthe vesting of powers in the Parliament as against the Stateitself is a fundamental right. That was what was expressedby certain friends. If that logic is extended to itsconclusion, all the subjects dealt with in List I would befundamental rights That is not the case. The veryconception of a fundamental right is that neither theParliament, nor the State legislatures shall have power tointerfere. Here, you make the Parliament sovereign. Onlysubject to the powers of Parliament, there shall be freetrade, commerce and intercourse throughout the territoriesof India. I find it difficult to see what is the right whichhas been taken out of the province of the legislatures,either the Parliament or the State legislatures, and whichhas been reserved here as a fundamental right. It may be allright to say that in respect of free trade, only theParliament shall have power. That is allocation ofadministrative powers or legislative powers between theUnion
legislature and the State legislature. Certainly that is not a fundamental right. As one of my friends pithily putit, it is a fundamental right in favour of the Parliament;it is not a right in favour of any citizen or class ofcitizens. In these circumstances, I wish the honourableMover, though I find him preoccupied with other things,--I do not know whether he has followed my speech--to explainhow this comes under the Chapter on Fundamental Rights, andwhat is the right reserved.
Mr. Vice-President: May I suggest, Mr. Subramaniam,that you make a definite suggestion so that Dr. Ambedkar maybe in a position to reply?
Shri C. Subramaniam: The definite suggestion is this.For the sake of Dr. Ambedkar, I shall state my point again.My complaint in regard to article 16 is this. There is noright which has been taken out of the province of the legislature, either of the Union or of the States, to saythat a fundamental right has been reserved in article 16.Because, you will find it is stated here, "Subject (leavingalone reference to article 244) to the provisions of any lawmade by Parliament, trade and commerce and intercoursethroughout the territory of India shall be free". You seethe right is subject to any law made by Parliament withoutany restrictions whatsoever. You have secured thesovereignty of the Parliament in respect of this subject,and Parliament can do anything. To be a fundamental right,it should have been taken out of the province of the legislatures, either of the Union or of the States. I findthere is left no residue of any right which could not betouched either by Parliament or by the State legislature andas such, it would not properly come under the Chapter onFundamental Rights. It may be a matter of allocation ofpowers between the Parliament and the State legislatures insaying that the Parliament alone shall deal with subjectsrelating to free trade within the territories of India. We can as well put in entry 73 of List I. You canalso make some restriction in entries 32 and 33 of List II,that it shall be subject to matters relating to free tradein India. I would request the Honourable mover, to enlightenme whether, as a matter of fact, there is any right leftwhich has been taken out of the province of the legislaturesand the Government and whether it will be proper to havearticle 16 here, in this chapter dealing with fundamental rights.
The Honourable Shri K. Santhanam (Madras: General):Sir, the only way to test whether article 16 is necessary isto find out the consequences of deleting article 16. Supposearticle 16 is not there, what will happen? According to thelists in the schedule, the Centre will have the right tolegislate on all matters of trade between the variousprovinces, and according to article 243, no province canmake any discrimination against any province or State.According to article 244, there can be no discriminationtaxation. According to article 244 (b), every State (this includes every provincial legislature) will have the rightto impose by law such reasonable restrictions on the freedomof trade, commerce or intercourse with that State as may berequired in the public interests. Therefore, each provinciallegislature and each State legislature will have the rightto impose restrictions on the freedom of trade, commerce orintercourse. Supposing a variety of restrictions are imposedby all the legislatures and it is found desirable torationalise them, to bring them into some kind ofuniformity, there will be no power vested in any agency.Article 16 gives that power to the Parliament. It cannotinterfere with the provincial jurisdiction so far as tradeand commerce are concerned within that particular province.
Shri C. Subramaniam: That author ity is provided for inarticle 245.
The Honourable Shri K. Santhanam: Article 245 says:"Parliament may by law appoint such author ity as itconsiders appropriate for the carrying out of the provisionsof articles 243 and 244 of this Constitution and confer onthe author ity so appointed such powers and such duties as itthinks necessary". This is only for the
purpose ofregulation; it does not provide any legislative power forany co-ordination, correlation or standardisation of all therestrictions that may be imposed by the variouslegislatures, and therefore, that power is contained inarticle 16. Mr. Subramaniam asks, then it means that thewhole power is taken out of the hands of the province. Isay, it is not.
Shri C. Subramaniam: My point is this: A fundamentalright is not a question of conferring power on Parliament oron the State legislature; it is taking away both from theUnion Parliament and from the State legislature; that aloneis a fundamental right. Fundamental rights do not deal withallocation of powers at all.
The Honourable Shri K. Santhanam: I do not think Mr.Subramaniam is correct. A fundamental right may consist ofthis provision that the State legislature shall notinterfere in one matter and that that matter can beinterfered with only by Parliament; or a fundamental rightmay be that the Parliament shall not interfere with a matterand only the State legislature may do it. Distribution ofpowers and the consequent results on the citizens are asmuch matters of fundamental rights which accrue to theindividual. If all the clauses on fundamental rights arescrutinised you will find that in many cases, we have madeprovision that in this matter, the Parliament may interfere,but the State legislature may not interfere. Therefore, I think that in the interests of freedom of trade, article 16is absolutely essential and without article 16, the wholestructure may become so complicated that almost fancyrestrictions and fancy laws may be made by the provinciallegislatures, and the internal trade of India may become clogged and obstructed. Therefore, Isuggest that article 16 should continue.
Shri M. Ananthasayanam Ayyangar: (Madras: General):Sir, I do not find any inconsistency nor do I find article16 unnecessary. I agree with my friend. Mr. Subramaniam thatif there is nothing left and the whole sphere of inter-statecommerce can be regulated either by the States concerned orby the Parliament, there is no need for Fundamental rightbut I do not agree that there is nothing left as he expectsor as he is afraid. Some rights of freedom of speech etc.are given under article 13. Article 16 ensures freedom oftrade, commerce and intercourse throughout the territory ofIndia. That is the Fundamental Right. Exceptions are madeunder article 244 in favour of the States and of any lawmade by Parliament under the other article. So far as lawsmade by Parliament are concerned, Parliament can act only inso far as certain powers are conferred on it under list I.So far as the States are concerned they can come under listII. Entry No. 32 in the State List refers to trade andcommerce within the States. Now so far as trade and commerce within the State is concerned, it is the exclusivejurisdiction of the States. I am only giving an instance asto why this article is necessary in the Chapter on Fundamental Rights.
In my presidency there are two districts; one is in thenorth and the other is in the south, growing cotton, one is in the Andhra and the other is in the Tamil Nad. Today thedistrict in the south is a progressive district and it has anumber of cotton mills and is utilis ing all cotton and issending out yarn and cloth to other parts of the Presidency.There is a move in the northern district which grows cottonto establish certain spinning mills. We will assume that theMadras Government tries to impose certain restrictions andsays that the new spinning mill that is going to beestablished in Cuddappah shall not send any of its yarn to any of the districts which have been already served by theCoimbatore mills. There is absolutely no provision herewhich prevents this. Unless a proviso is given to thatextent, there is nothing preventing any State or any particular State making discrimination between one districtand another. Under article 243 we cannot make any distinction between one state and another. But within theState itself there is nothing preventing a State fromexercis ing its right by
way of discrimination. There is apossibility. Let us take Bombay Presidency. Ahmedabad hasgot textile mills. Bombay also has got some mills. Now it isopen to the legislature to prevent, as it is, the Southernportion of the Bombay Presidency from developing itsresources altogether by imposing a restriction that it shallnot send any of its produce or products to any other part of the Bombay Presidency.
Shri C. Subramaniam: May I point out it is covered by13(g)?
Shri M. Ananthasayanam Ayyangar: 13 (g) says:--
"to practice any profession or to carry on anyoccupation, trade or business."
You are allowed to carry on an occupation by manufacturingthis but it is not as if you can carry on a businessirrespective of any other consideration.
Pandit Lakshmi Kanta Maitra (West Bengal: General): Itdeals with commerce and intercourse.
Shri M. Ananthasayanam Ayyangar: It deals with commerceand trade and there is a third word `intercourse' also. I amcoming to it. So far as commerce and trade is concerned Ibeg to submit that it is not covered by article 13(g). Letus now refer to sub-clause (6) which says--
"(6) Nothing in sub-clause (g) of the said clause shallaffect the operation of any existing law, or prevent theState from making any law, imposing in the interests ofpublic order, morality or health, restrictions on theexercise of the right conferred by the said sub-clause andin particular prescribing or empowering any author ity toprescribe, the professional or technical qualificationsnecessary for practis ing any profession or carrying on any occupation, trade or business."
But it does not mean that you can impose any sort ofrestriction. It comes under clause (g). It comes underclause (6) of article 13 and therefore there is necessityfor an independent clause like article 16, which gives toevery man freedom of trade, commerce and intercoursethroughout the length and breadth of India.
As regards the word `intercourse' also, apart fromtrade and commerce, for various purposes intercourse fromone province to another is necessary. That is also notprovided for in the Fundamental rights either in article 13or elsewhere.
Shri C. Subramaniam: That is purely the province of theParliament.
Shri M. Ananthasayanam Ayyangar: With reference toStates, what happens?
Shri C. Subramaniam: You cannot discriminate.
Mr. Vice-President: I am afraid there is a lot ofinfringment of Parliamentary procedure and of irregularityamong people who have more experience than I have.
Shri M. Ananthasayanam Ayyangar: Article 243 says--
"No preference shall be given to one State over anothernor shall any discrimination be made between one State andanother by any law or regulation relating to trade orcommerce, whether carried by land, water or air."
This prevents discrimination between one State and anotherState. There is no article here which says that you oughtnot to discriminate between one part of a State and anotherpart of the State. This is also covered by article 16; I begto submit, Sir, that so far as discrimination between onearea of the State and another is concerned there is noprovision: and if not for any other reason, at least forthis, this article is necessary.
The Honourable Dr. B. R. Ambedkar: Mr. Vice-President,what I understood from Mr. Subramaniam, if I have understoodhim correctly is not that he objects to article 16, but hisobjection is directed to the place which this article finds.He says that although there may be utility and necessity sofar as this article is concerned, it ought not to find aplace in the fundamental rights. And his second point, if Ihave understood him correctly is that as this article ismade subject to article 244, article 16 may be completelynullified, and to use his own words, no residue of it mightbe left if the powers given under article 244 wereexercised. I think I am right in thus summaris ing what he said.
Now, I quite appreciate the argument that this article16 is out of place in the list of fundamental rights, and tosome extent, I agree with Mr. Subramaniam. But I
shallexplain to him why it was found necessary to include thismatter in the fundamental rights. My Friend, Mr. Subramaniamwill remember that when the Constituent Assembly began, webegan under certain limitations. One of the limitations wasthat the Indian States would join the Union only on threesubjects--foreign affairs, defence and communications. On noother matter they would agree to permit the Union Parliamentto extend its legislative and executive jurisdiction. So hewill realise that the Constituent Assembly, as well as theDrafting Committee, was placed under a very seriouslimitation. On the one hand it was realised that there wouldbe no use and no purpose served in forming an All-IndiaUnion if trade and commerce throughout India was not free.That was the general view. On the other hand, it was foundthat so far as the position of the States was concerned, towhich I have already made a reference, they were notprepared to allow trade and commerce throughout India to bemade subject to the legislative author ity of the Union
Parliament. Or to put it briefly and in a differentlanguage, they were not prepared to allow trade and commerceto be included as an entry in List No. I. If it was possiblefor us to include trade and commerce in list I, which meansthat parliament will have the executive author ity to makelaws with regard to trade and commerce throughout India, wewould not have found it necessary to bring trade andcommerce under article 16, in the fundamental rights. But asthat door was blocked, on account of the basicconsiderations which operated at the beginning of theConstituent Assembly, we had to find some place, for thepurpose of uniformity in the matter of trade and commercethroughout India, under some head. After exercis ing considerable amount of ingenuity, the only method we foundof giving effect to the desire of a large major ity of ourpeople that trade and commerce should be free throughoutIndia, was to bring it under fundamental rights. That is thereason why, awkward as it may seem, we thought that therewas not other way left to us, except to bring trade andcommerce under fundamental rights. I think that will satisfymy friend Mr. Subramaniam why we gave this place to tradeand commerce in the list of fundamental rights, althoughtheoretically, I agree, that the subject is not germane to the subject-matter of fundamental rights.
With regard to the other argument, that since trade andcommerce have been made subject to article 244, we havepractically destroyed the fundamental right, I think I mayfairly say that my friend Mr. Subramaniam has either notread article 244, or has misread that article. Article 244has a very limited scope. All that it does is to give powersto the provincial legislatures in dealing with inter-statecommerce and trade, to impose certain restrictions on theentry of goods manufactured or transported form anotherState, provided the legislation is such that it does notimpose any disparity, discrimination between the goodsmanufactured within the State and the goods imported fromoutside the State. Now, I am sure he will agree that that isa very limited law. It certainly does not take away theright of trade and commerce and intercourse throughout Indiawhich is required to be free.
Shri C. Subramaniam: The clause says that it shall belawful for any State to impose by law such reasonablerestrictions on the freedom of trade, commerce orintercourse....as may be required in the public interests.
The Honourable Dr. B. R. Ambedkar: Yes, but reasonablerestrictions do not mean that the restrictions can be suchas to altogether destroy the freedom and equality of trade.It does not mean that at all.
Sir, I therefore submit that the article as it standsis perfectly in order and I commend it to the House.
Mr. Vice-President: I shall now put the article to thevote.
The question before us is that:--
Article 16 stand part of the Constitution.
The motion was adopted.
Article 16 was added to the Constitution.
Mr. Vice-President: Now we come to article 17.
before the House is that article 17 formpart of the Constitution.
There are a number of amendments to this article, and they will be gone through now. The first in my list is No.543. It is a negative one and is therefore ruled out.
There is an amendment to this amendment, that is No. 93in List V, standing in the name of Shri Ram ChandraUpadhyaya.
(Interruption by Mr. Kamath.)
Yes, Mr. Kamath, you are observing that there are otheramendments?
Shri H. V. Kamath (C. P. and Berar: General): Yes, Sir.No. 544.
Mr. Vice-President: But I have not called out that. Iwas dealing with No. 543, and amendment No. 93 to amendmentNo. 543.
Shri H. V. Kamath: But Sir, that has not been moved.How can an amendment to that amendment be moved or evencalled?
Mr. Vice-President: Are you pointing out my mistake?Have I not already confessed that I am innocent of all theserules? Is it necessary to-rub it in every time, Mr. Kamath?
Now, we come to amendment No. 544, standing in the nameof Kazi Syed Karimuddin.
Shri H. V. Kamath: I do not in the least presume toadvise you, Sir.
Kazi Syed Karimuddin: Mr. Vice-President, Sir, I move:
That for article 17, the following be substituted:
"17. Neither slavery nor involuntary servitude such as begar except as a punishment for crime shall exist within the Union State."
Sir, there is not much of a change in the amendment Iam moving. But article 17(1) does not cover cases in whichprisoners are asked to work, a prisoner is asked to workagainst his own free will. If this article is allowed toremain as it is, then the jail author ities will not beallowed to take work from the prisoners. Therefore I havementioned the words "except as a punishment for crime". Imay point out that such an article finds a place in theAmerican Constitution also.
Mr. Vice-President: Amendment No. 545. Shri DamodarSwarup Seth.
Shri Damodar Swarup Seth (United Provinces: General):Sir, I move:
"That the following words be added at the beginning ofclause (1) of article 17:--
`Servitude and serfdom in all forms as well as'."
I do not think this is a point on which one is requiredto speak at length. I will therefore, only like to submit that in some States serfdom and servitude in some form oranother prevails. Moreover, in the South customs likedevadasis have taken root.
Pandit Lakshmi Kanta Maitra (West Bengal: General):What is serfdom as distinguished form servitude?.
Mr. Vice-President: The Honourable Member wants to knowfrom you what is the meaning of serfdom.
Shri Damodar Swarup Seth: It is a form of servitude orI may say, `slavery' that prevails in States.
Mr. Vice-President: Probably it is his idea withrespect to this distinction between serfdom and servitude.
The next three amendments are Nos. 546, 547 and 548, ofwhich the most comprehensive is No. 546, standing in thename of Prof. K. T. Shah.
Prof. K. T. Shah (Bihar. General): Sir, I move:
"That in clause (1) of article 17, for the words`Traffic in human beings and begar', the words `Traffic inhuman beings or their dedication in the name of religion to be Devadasis or be subject to other forms of enslavement anddegradation and begar' be substituted."
In commending this motion I should like to point outthat by "Traffic in human beings". I understand thepossibility of buying and selling as if these human beingswere chattels, and as such ought to be prohibited. The common understanding interprets these words to mean slaveryas it was practised in olden countries, and, until recenttimes, even in the so-called civilized countries of Europeor America. It is but right that such traffic should be abolished.
But the traffic in human beings is not confined only towhat was known as slavery in recent times. It happens,--andperhaps it happens on a much larger scale than innocentMembers of this House may be aware--in what is known asWhite Slave traffic, namely, the buying and selling of youngwomen for export or import, from one set of countries toanother; and their permanent enslavement or servitude to anowner or
proprietor of the establishments of commercialisedvice probably for life.
This is covered no doubt by ordinary forms of legalcontract, where the contracting parties are presumed to befree agents. How far such legal contracts are truly lawfulif interpreted in the spirit of the law, I cannot say. Butthat these contracts offend very much against the commonsense of all civilized humanity, I am prepared to assert.
Accordingly, I would like it very clearly to beunderstood by this amendment that "traffic in human beings"does not consist only of buying and selling of what wereformerly known as slaves: but also this new type of slaverywhich in effect is a very large scale commercialised vicethat the so-called civilized countries have popularised, or,may I say, have made an industry of.
This may not perhaps have been in the minds of the draftsman of this clause. But I think the House would dowell to bear it in mind, and to accept this amendment bywhich such a practice would be perfectly clearly andexpressly prohibited.
I have, no doubt, worded my amendment with reference toa particular form of slavery which prevails in this countryto a large extent, namely, dedication, in the name ofreligion, of young women to be Devadasis, and as suchdevoted to immoral traffic almost from an immature age. Thisalso I think ought to be stopped. The name or cloak ofreligion should not help all those who indulge in suchtraffic; and the Constitution should make no bones aboutprohibiting this, if I am right in reading the spirit ofthis article which would prohibit all kinds of traffic inhuman beings.
Forced labour is no doubt an evil; and the peculiarform of it, which is known by the word "begar", that is tosay of compulsory work without payment, and work at command,should also be stopped. But more than anything else. I wouldlike by this amendment to emphasize this highly immoral,and; I was going to say, inhuman traffic, which prevail on avery large scale, much larger than perhaps the Houserealizes, and as such I commend this amendment to the House.
Mr. Vice-President: Amendment No. 547.
Shri B. Das (Orissa: General): Sir, I do not move but Iwish to speak.
Mr. Vice-President: I cannot allow you to speak. Do youwant that it should be put to the vote?
Shri B. Das: No Sir, I do not move. Could you not allowme to say a word?
Mr. Vice-President: I cannot because that will create ageneral flutter in the House. You will have to take your chance.
Mr. Vice-President: Amendment No. 548.
Giani Gurmukh Singh Musafir (East Punjab: Sikh): Sir,my amendment reads:
"That in clause (1) of article 17, after the words,`human beings' the words `including prostitution' be inserted."
Mr. Vice-President: Do you want to move it?
Giani Gurmukh Singh Musafir: *[I merely want to saysomething.
Mr. Vice-President: I cannot say that every Member whohas sent in an amendment would find time to speak. I mustmake this clear, because we have to hurry.
(Amendments 549, 550 and 552 were not moved.)
Amendment No. 551: This is a verbal amendment and therefore it is disallowed.
(Amendment 553 was not moved.)
Amendment No. 554: This is a verbal amendment and therefore it is disallowed.
Amendments Nos. 555, 558 and 560 are to be consideredtogether, I can allow No. 555 to be moved.
Shri Jaspat Roy Kapoor (United Provinces: General): Iam not moving amendment No. 555.
Sardar Bhopinder Singh Man (East Punjab: General): Mr.Vice-President, Sir, I beg to move--
"That in clause (2) of article 17, after the words"caste or class" the words "and shall pay adequatecompensation for it" be inserted."
Sir, with the addition of my amendment clause (2) willread thus:
"Nothing in this article shall prevent the State fromimposing compulsory service for public purposes and shall pay adequate compensation for it."
Begar is a sort of forced work from labourers and wehave sought to abolish it and prohibit it in the country.The idea is that the worker should not be made to workagainst his will, but however an exception is made that
theState can impose compulsory service for public purposes.Now, supposing the State requires any property and deprivesany citizen of it, there is the accepted principle that itshall pay compensation, adequate price, for it. Similarly,when the State deprives a worker of his labour, (and Ibelieve his labour is his property for the labourer) then I want that the State should pay compensation for it.
Shri H. V. Kamath: Mr. Vice-President, Sir, I beg to move--
"That in clause (2) of article 17, for the word"public" the words "social or national be substituted."
At the outset, may I just say that the non-English word in this article--begar--has nowhere been defined and it will bebetter if we define it somewhere in the constitution, if notin this article itself. Now, coming to the amendment, to mymind the word "public" does not bring out the meaning orsignificance of the purport of clause (2) of this article asmuch as the word "social" or "national" will. We all knowthat the services of the State--Government services--arereferred to as "public services", but "national service" or"social service" has got a wider and a higher, a morecomprehensive connotation than the word "public service", Iremember very well that during the proceedings of theNational Planning Committee, which was brought into being byNetaji Subhas Chandre Bose and presided over by Pandit Jawaharlal Nehru and to which my friend Prof. K. T. Shahrendered yeoman service for a period of well over three or four years, in that report it was suggested that allcitizens should be conscripted for some social service; andPandit Nehru when speaking on this subject went to thelength of saying that no student should be awarded hisacademic
 Translation of Hindustani Speech.
degree unless and until he puts in six months or a year ofsome kind of social service. The word used there was "socialservice", not "public service". The word "national" has goteven a still higher connotation than the word "social". Myfriend Dr. Ambedkar yesterday referred to this type ofnational service. When there is a war; when there is anemergency; when the stability of the State is threatened;when there is an emergency; when the stability of the Stateis threatened; when there is an insurrection; then inparticular the question of national service will arise and then also will arise, as he referred to yesterday, the duty of the citizens to bear arms. In these cases, I say theremust be conscription, I do not mean for military serviceonly but for some kind of service in the national cause.Even conscientious objectors must be asked to do some kindof service, though not necessarily to bear arms and go to the front line.
Here, I would also suggest that not merely there shouldbe no discrimination of religion, race, caste or class, butthere should be no discrimination of sex either. In thisconnection, however I would like to sound a note of cautionand that is, against the unqualified enforcement of the dutyto bear arms. The duty to bear arms, to my mind, without thecorresponding right to bear arms, is one of thecharacteristics of a totalitarian State, a police raj or amilitary dictatorship, and not of a democratic State whichthe Preamble says our future India is going to be. Theenforcement of the duty to bear arms is only the outward expression of the idea or doctrine of "dying" for the State.We must die for the State. The expression of this doctrineis the duty to bear arms. But every citizen has a higherduty to perform, and that is to "live" for the State--livefor the State, and not merely die for the State--and thisdoctrine of "live for the State" is connected with the rightto bear arms.
In the end I suggest that clause (2) of this articlemay be re-worded, and for the word "public service" the words "social or national" should be substituted. I wouldhave had no objection if they had said just "publicservice", but "service for public purposes" is hardlyappropriate, and to my mind the significance and meaning ofthis clause would be better expressed if we say that"nothing in this article shall
prevent the State fromimposing compulsory service for social or nationalpurposes". Sir, I move.
(Amendment No. 557 was not moved.)
Prof. K. T. Shah: Mr. Vice-President, Sir, I beg to move--
"That in clause (2) of article 17, after the words"discrimination on the ground" the word "only" be added."
This, Sir, is a very small, but in my opinion, a veryimportant amendment. If it is accepted the clause wouldread:
".....in imposing such service the State shall not makediscrimination on the ground only of race, religion caste orclass."
The significance of this is so clear that, even thoughI have moved it, I trust the Draftsmen will accept it.
Mr. Vice-President: The clause is now open for generaldiscussion.
Giani Gurmukh Singh will now speak. I give him five minutes.
Giani Gurmukh Singh Musafir: *[Mr. Vice-President,article 17 is a useful provision in the Constitution, butthere are one or two short-comings which should be removed.In this connection I had given notice of an amendment but Icould not get an opportunity to speak on it. I would like tosay that prostitution is not in accord with the Indian civilization.
It was imported from the West and with the departure ofWestern rulers it must come to an end. In clause (1) ofarticle 17, after the words
 Translation of Hindustani speech.
"Traffic in human beings" the word "Prostitution" must beincluded, for then alone the dignity of this clause will beincreased, and defect removed. Another suggestion has beenmoved by Sardar Bhopendra Singh Man. It is a very goodsuggestion that, if the Government imposes compulsoryservice in the public interest, then the workers must getadequate compensation. It is good to specify in clause (2)of this article that in imposing compulsory service nodiscrimination on the ground of race, religion, caste orclass shall be made. The right of imposing compulsoryservice conceded to the Government by this clause, is moreor less absolutely vested in them. Even now, the governmentofficials through their influence impose compulsory service.If provision is made to pay compensation, then this defectwill disappear and the usefulness of this clause will beenhanced. Hitherto the practice of `Begar' was a source ofoppression to the poor. Now this clause would not fit in, ifit is passed without providing for payment of compensation.I do not propose to say more, as the Vice-President hasalready ruled; and therefore, without taking much of the,time of the House, I shall mention only two points, firstlythat the curse of prostitution should go from this countryand secondly, compensation must be paid for compulsory service.
Shrimati G. Durgabai (Madras: General): Mr. Vice-President, let me assure you that I will take up only one ortwo minutes of the valuable time of the Assembly. I want tosay a few words on this article. There is the amendment ofProfessor Shah intended to substitute in clause (1) `Trafficin human beings or their dedication in the name of religionto be Devadasis or be subject to other forms of enslavementand degradation as well as begar', for the words `Traffic inhuman beings and begar.'
Sir, if any province has suffered from this badpractice of dedication of devadasis in the name of religion,it is the province of Madras. The worst form of this customexisted in madras for a long time. I do not know whetherthis custom of dedication exists in any other province inany form. But we all know that in several ways this waspractised. But, I do not think, while appreciating theobject of Professor Shah in bringing forward this amendmentand while being thankful to him for having realised thenecessity for removing this evil, that this amendment isnecessary. madras has already prohibited this practice undera law passed a few years ago. It is no more in vogue there.Though some relics of that system still exist, these, I amsure, will disappear in course of time. I should mention in this connection my appreciation of the efforts put in byreformers like Mrs. Muthulakshmi Reddi. It is mainly
onaccount of her efforts that this evil is no more there. Ourdeep debt of gratitude is due to her for her efforts. As Isaid, Madras has passed a law prohibiting this custom. I donot therefore think it necessary to include this provisionin article 13, although I very much appreciate the spiritwhich has actuated Professor Shah to move this amendment.
Mr. Vice-President: I now call upon Shri B. Das tospeak. He is almost the father of the House and must set anexample of brevity.
Shri B. Das: Sir, on the previous occasion when we werediscussing the Fundamental Principles I pointed out the needfor including in the Draft Constitution the removal of thisgreat social evil, the traffic in women. This traffic meansuse of force to compel women to life of prostitution. Whenwe talk of traffic in women--which is a great social evilall over the world--I did dilate upon it last time and saidthat we should not be prudes and attempt to hide the factthat there existed this traffic in women in India. Sir, Ihow to the decision elsewhere that I should not move myamendment which sought to add the words `particularly inwomen' after the words `Traffic in human beings'.
Sir, let us confess and admit that there is thistraffic in women for which men everywhere are responsible.Women were often removed from Orissa. I pointed out that in the great Bengal disaster in 1943-44, lakhs of women werespirited away to the Punjab and North-West FrontierProvince. Sir, young women were taken away by the alienGovernment into the camps of soldiers and they were thuslost to humanity, lost to family, lost to us as goodcitizens. So, we mere men should not fight shy of this andfeel that by including an amendment of this kind we will beconfessing the existence of this traffic in women in thiscountry. That is why I gave notice of the amendment. If theHouse is willing to accept Shrimati Durgabai's amendment oreven the amendment of Professor Shah who has confined hisamendment to the Devadasi system and has not thought of theinfluence of dances before temples which preserve ournational art and music from time immemorial.
Shri H. V. Kamath: Has Shrimati Durgabai given noticeof any amendment to this article, Sir?
Mr. Vice-President: She has not.
Shri B. Das: She has sent in one to Dr. Ambedkar.
Mr. Vice-President: I have no knowledge of it.
Shri B. Das: I am sorry, I misunderstood. However, I think we will not be justifying our constitution onfundamental rights if we do not accept and admit our greatsins by including the words "traffic in women" and try tosave the situation now and hereafter.
Shri Raj Bahadur (United State of Matsya): Mr. vice-President, Sir, begar like slavery has a dark and dismalhistory behind it. As a man coming from an Indian State, I know what this begar, this extortion of forced labour, hasmeant to the down-trodden and dumb people of the IndianStates. If the whole story of this begar is written, it willbe replete, with human misery, human suffering, blood andtears. I know how some of the Princes have indulged in theirpomp and luxury, in their reckless life, at the expense of the ordinary man, how they have used the down-troddenlabourers and dumb ignorant people for the sake of theirpleasure. I know for instance how for duck shooting a verylarge number of people are roped in forcibly to stand allday long in mud and slush during cold chilly wintry days. I know how for the sake of their game and people have beenroped in large numbers for beating the lion so that thePrinces may shoot it. I have also seen how poor people areemployed for domestic and other kinds of labour, no matterwhether they are ailing or some members of their family areill. These people are paid nothing or paid very little for the labour extorted from them. This is not the whole story.As I said in the beginning, it would make really a terriblereading if the whole story is told. I know that very oftenthese tyrannies are perpetrated upon poor people by thepetty officials. Not only do these petty officialsperpetrate such tyrannies but they also extort bribes fromthe
labourers who want to escape the curse of this begar.While making my observations on this article, I would liketo say that I am opposed to the amendment which has beenmoved by Sardar Bhopindra Singh Man providing forcompensation in case of compulsory labour on works forpublic purposes, because I feel that there is a possibilitythat, if this amendment is accepted, it may be misused andpeople might be forced against their will.
Summing up, I may add that article 13 constitutes thecharter of freedom for the common man, and this article is asort of complement to that charter of freedom. This freesthe poor, down-trodden and dumb people of the Indian.
States--I cannot say anything of other provinces--from thiscurse of begar. This begar has been a blot on humanity andhas been a denial of all that has been good and noble inhuman civilisation. Through the centuries this curse hasremained as a dead weight on the shoulders of the common manlike the practice of slavery. The members of the Drafting Committee and this Constituent Assembly are entitled to thegrateful thanks of the dumb downtrodden millions who wouldbe freed by this article from this curse of begar.
Shrimati Renuka Ray (West Bengal: General): Mr. Vice-President, Sir, I shall try to be as brief as possible.
The awakened conscience of women in India and the worldis fully alive to the problem of the traffic in women andcannot tolerate its continuance. Sir, if we do not acceptthe amendment of Mr. B. Das, it is not because we do notappreciate his purpose. We realise that he wishes to placeparticular emphasis on the problem of the traffic in women,but I do think that the article as it stands does cover it.I am merely pointing this out because it may be thought thatthe women members of this House are not alive to thisproblem. It is one of the most urgent of all problems onwhich women's organisations in this country, have focussedtheir attention for some time past.
As for the amendment that my honourable Friend, Mr. K.T. Shah, moved, I agree with Shrimati Durgabai thatlegislation has covered this problem in regard to Madras,but I think that if Mr. Shah's amendment could be acceptedby this House so that the Devadasi system--the dedication ofwomen in temples--is abolished by a categorical provision in the Constitution, it would be better procedure as the customstill lingers in some areas. Otherwise it is to be hopedthat legislation abolishing the custom in other parts where it still exists will soon come in. I want to stress the factthat women are fully alive to the fact that it is the dualstandards of morality that have led to traffic in women. It is when society realises fully the need for doing away withdual standards of morality that this article that is beingadopted can really come into effect and become a reality andnot merely a paper provision in the Constitution.
Acts for the prevention of immoral traffic in women doexist already in this country but their operation is noteffective and even if legal flaws are amended, these canonly become really effective when men's minds change towardsthis problem, whereby a section of women are at the mercy ofexploiters whereby the very dignity of womenhood is lowered.
Mr. Vice-President: Mr. Nagappa, please show that youdeserve the confidence that the House has placed in you bylimiting yourself to five minutes.
Shri S. Nagappa (Madras: General): I will not take muchtime, Sir.
This practice of begar is prevalent in my own part of the country, especially among the Harijans. I am glad thatthe Drafting Committee has inserted this clause to abolishbegar. Sir, whenever cattle die; the owner of the cattlewants these poor Harijans to come and remove the deadcattle, remove the skins, tan them and make chappals andsupply them free of cost. For this, what do they get? Somefood during festival days. Often, Sir, this forced labour ispractised even by the government. For instance, if there isany murder, after the postmortem, the police force thesepeople to remove the dead body and look to the other funeralprocesses. I am
glad that hereafter this sort of forcedlabour will have no place. Then, Sir, this is practised inzamindaries also. For instance, if there is a marriage in the zamindar's family, he will ask these poor people,especially the Harijans, to come and white wash his wholehouse, for which they will be given nothing except food for the day. This sort of forced labour is still prevalent inmost ports of the presidency.
Another thing that I want to bring to the notice of thecourse is that whenever the big zamindar's lands are to beploughed, immediately he will send word for these poorpeople, the Harijans, the previous day, and say: "All yourservices are confiscated for the whole of tomorrow; you will have to work throughout the day and night. No one should goto any other work." In return, the zamindar will give onemorsel of food to these poor fellows. Sir, this sort offorced labour is in practice in the 20th century in our socalled civilised country. I am very thankful to thisDrafting Committee. I support this article.
Shri T. T. Krishnamachari (Madras: General): Mr. Vice-President, Sir, I am here primarily to oppose the amendmentmoved by my honourable Friend, Prof. K. T. Shah, in that itimports into the consideration of this article facts whichought not to be taken into account in a consideration of thefundamental rights that are to be incorporated in the Constitution.
Sir, if the House would permit me a moment to deal with the general principles which are the basis of thisparticular Part, it is that we want to ensure certain amountof rights to the individual, so that he will be ennobled. Wealso want to bar legislation from creeping in into thoserights, which it is absolutely necessary should bemaintained intact so that the individual's status might beprotected. There is no point in our trying to import intothis particular Part reform of all the abuses, which oursociety is now heir to. If those abuses are such wherevested interests are likely to seek perpetuation of thoseabuses, well, I think we have to provide against them, butif public opinion is sufficiently mobilised against thoseabuses, I do not think we ought to put a blot on the fairname of India, possibly, by enacting in our constitution aban on such abuses. Abuses which will disappear in course oftime cannot disappear all at once by our putting a ban onthem in the constitution. Looking as I do at such matters inthat light, I wish most a my honourable Friends in this House will not try to import into these fundamental rightsage-old peculiarities of ours that still persist, bad asthey are in particular parts of society which can be made todisappear by suitable legislation in due course, perhaps intwo, three or four years. My honourable Friend ShrimatiDurgabai pointed out that this system of Devadasis obtainingit India has been abolished by legislation in Madras. Thereis nothing to bar other provinces from following suit and I think public opinion is sufficiently mobilised for allprovinces undertaking legislation of that type. Why then putit into the fundamental rights, a thing which is vanishingtomorrow? I think the same principle might be adopted in therest of the article that would come before the House in thisparticular part, namely, what we could achieve in the matterof social reform by normal legislation, we need not seek toput into the fundamental rights, but if it is a matter wherethe vested interests for purposes of economic gain want toperpetuate a particular anti-social custom that obtainsamongst us, well, I think, it is perfectly right that weshould put it into the Fundamental Rights. I think some formof forced labour does exist in practically all parts ofIndia, call it `begar' or anything like that and in my part of the country, the tenant oftentimes is more or less ahelot attached to the land and he has certain rights andthose are contingent on his continuing to be a slave.
We are trying to root it out, and by putting it in thefundamental rights it will hasten legislation to wipe outevils of that kind as it will then become an obligation of the State.
I would only mention to the House that let us notseek to enlarge the scope of these articles by putting in evils which can be wiped out by legislation, on which public opinion is sufficiently mobilised,but only import into it such considerations against whichvested interests might conceivably take a firm stand. Sir, Isupport the article that is being considered by the House.
Shri Mahavir Tyagi: May I seek your permission, Mr.Vice-President. I want to clear some doubts which arise inmy mind in regard to this article.
Mr. Vice-President: I am sorry, it is too late.
Shri Mahavir Tyagi: I must be told as to how I cancatch your eye or draw your attention.
Honourable Members: Order, order.
Mr. Vice-President: The House has pronounced its decision.
Shri Mahavir Tyagi: Can anyone, by handing over slipsor by standing everytime, catch your eye, Sir?
Mr. Vice-President: The House has pronounced its decision.
Shri Mahavir Tyagi: What is the decision?
Mr. Vice-President: You ask the House.
Shri Mahavir Tyagi: I feel it is very unfair.
The Honourable Dr. B. R. Ambedkar: Mr. Vice-President,I should like to state at the outset what amendments I amprepared to accept and what, I am afraid, I cannot accept.Of the amendments that have been moved, the only amendmentwhich I am prepared to accept is the amendment by Prof. K.T. Shah, No. 559, which introduces the word "only" in clause(2) of article 17 after the words "discrimination on theground". The rest of the amendments, I am afraid, I cannotaccept. With regard to the amendments which, as I said, Icannot accept one is by Prof. K. T. Shah introducing theword `devadasis' Now I understand that his arguments forincluding `devadasis' have been replied to by other membersof the House who have taken part in this debate, and I donot think that any useful purpose will be served by myadding anything to the arguments that have already be enurged.
With regard to the amendment of my honourable Friend,Mr. H. V. Kamath, he wants the words `social and national'in place of the word `public'. I should have thought thatthe word `public' was wide enough to cover both `national'as well as `social' and it is, therefore, unnecessary to usetwo words when the purpose can be served by one, and I think, he will agree that is the correct attitude to take.
With regard to the amendment of my honourable FriendShri Damodar Swarup Seth, it seems to be unnecessary and I,therefore, do not accept it. With regard to the amendment ofSardar Bhopinder Singh Man, he wants that wherevercompulsory labour is imposed by the State under theprovisions of clause (2) of article 17 a proviso should beput in that such compulsory service shall always be paid forby the State. Now, I do not think that it is desirable toput any such limitation upon the author ity of the Staterequiring compulsory service. It may be perfectly possiblethat the compulsory service demanded by the State may berestricted to such hours that it may not debar the citizenwho is subjected to the operation of this clause to findsufficient time to earn his livelihood, and if, forinstance, such compulsory labour is restricted to what mightbe called `hours of leisure' or the hours, when, forinstance, he is not otherwise occupied in earning hisliving, it would be perfectly justifiable for the State tosay that it shall not pay any compensation.
In this clause, it may be seen that non-payment ofcompensation could not be a ground of attack; because thefundamental proposition enunciated in
sub-clause (2) is this: that whenever compulsory labour orcompulsory service is demanded, it shall be demanded fromall and if the State demands service from all and does notpay any, I do not think the State is committing any verygreat inequity. I feel, Sir, it is very desirable to leavethe situation as fluid as it has been left in the article asit stands.
Shri H. V. Kamath: On a point of information, Sir, isDr. Ambedkar's objection to my amendment merely on theground that it consists of two words in place of one? Inthat case, I shall be happy if the
wording is either`social' or `national' in place of `public'.
The Honourable Dr. B. R. Ambedkar: It is better to usea wider phraseology which includes both.
Shri Rohini Kumar Chaudhuri: (Assam: General): May I know, Sir, does the honourable Member accept amendment No.548, which deals with prostitution, and which was moved byGiani Gurmukh Singh Musafir?
The Honourable Dr. B. R. Ambedkar: I understand it wasnot moved.
Mr. Vice-President: It was not moved.
I shall now put the amendments to vote one by one.
Amendment No. 544 standing in the name of Kazi SyedKarimuddin.
The question is:
"That for article 17, the following be substituted:--
"17. Neither slavery nor involuntary servitude such asbegar except as a punishment for crime shall exist within the Union State."
The amendment was negatived.
Mr. Vice-President: Amendment No. 545 standing in thename of Shri Damodar Swarup Seth.
The question is:
"That the following words be added at the beginning ofclause (1) of article 17.
"Servitude and serfdom in all forms as well as."
The amendment was negatived.
Mr. Vice-President: Amendment No. 546 standing in thename of Professor K. T. Shah.
The question is:
"That in clause (1) of article 17, for the words"Traffic in human beings and begar", the words "Traffic inhuman beings or their dedication in the name of religion to be Devadasis or be subject to other forms of enslavement anddegradation as well as begar" be sustituted."
The amendment was adopted.
Mr. Vice-President: Amendment No. 560 standing in thename of Sardar Bhopinder Singh Man.
The question is:
"That in clause (2) of article 17, after the words"caste or class" the words "and shall pay adequatecompensation for it" be inserted."
Sardar Bhopinder Singh Man: Sir, I request thepermission of the House to withdraw it.
The amendment was, by leave of the Assembly, withdrawn.
Mr. Vice-President: Amendment No. 556 standing in thename of Mr. Kamath.
The question is:
"That in clause (2) of article 17, for the word"public" the words "social or national" be substituted."
The amendment was negatived.
Mr. Vice-President: Amendment No. 559 standing in thename of Professor K. T. Shah, accepted by Dr. Ambedkar.
The question is:
"That in clause (2) of article 17, after the words "discrimination on the ground" the word "only" be added."
The amendment was adopted.
Mr. Vice-President: I shall now put the article as awhole as modified by amendment No. 559 to vote.
The question is:
That article 17 as modified by amendment No. 559 formpart of the Constitution.
The motion was adopted.
Article 17, as amended, was added to the Constitution.
Mr. Vice-President: We now go to the next article.
The motion is that Article 18 form part of the Constitution.
The first amendment is No. 561. This is negative and therefore, it is out of order.
Amendments numbers 562 and 564: No. 562 standing in thename of Professor Shibban Lal Saksena and 564 standing in the name of Shri Damodar Swarup Seth and others are ofsimilar import and have therefore to be considered together.Amendment No. 562 is allowed to be moved.
Prof. Shibban Lal Saksena (United Provinces: General):Sir, I am not moving the amendment; but I would like to speak on the article.
Mr. Vice-President: Then, I will allow amendment No.564 to be moved.
Shri Damodar Swarup Seth: Sir, I beg to move:
"That the following be added at the end of article 18:
`Nor shall women be employed at night, in mines or inindustries detrimental to their health.'"
Sir, it is a matter of great satisfaction that inarticle 18 protection has been afforded to children of minorage. But, unfortunately, for reasons not known to me, noprotection has been provided for the fairer and softer sex,who had been in the past, employed in mines even at nighttime and in industries which are injurious to their health.I therefore think, Sir, that it is just and desirable thatthe addition suggested should be made in this article sothat women may
also be provided with due protection and maynot be employed in mines at night and in industries which are not suited to their delicate health and position insociety. I therefore hope that the House will accept this amendment of mine.
Mr. Vice-President: Then, comes amendment No. 563.
(Amendments 563 and 565 were not moved.)
The article is open for general discussion.
Prof. Shibban Lal Saksena: Sir, I am very glad thatthis article has been placed among fundamental rights. Infact, one of the complaints against this charter of libertyis that it does not provide for sufficient economic rights.If we examine the fundamental rights in the Constitutions ofother countries, we will find that many of them areconcerned with economic rights. In Russia particularly, theright to work is guaranteed; the right to rest and leisure,the right to maintenance in old age and sickness etc., areguaranteed. We have provided these things in our DirectivePrinciples, although I think, properly, they should be in this Chapter. Even then, this article 18 is an economicright, that no child below the age of fourteen shall beemployed in any factory. I feel, Sir, that the age should beraised to sixteen. In other countries also the age ishigher; we want that in our country also this age should beincreased; particularly on account of our climate, childrenare weak at this age and the age should be raised.
So also, I want that women should not be employed in the night or after dusk and before dawn in the factories. Infact all the progressive countries in the world haveforbidden female labour after dusk and before dawn. Thisquestion was debated at length during the discussion on theFactory Act in the Parliament. I think that this is aquestion of very fundamental importance and this should belaid down in the Fundamental Rights that the States shallnot employ women after dusk or before dawn. Sir, if thisimportant thing had been done, we would have been hailed byinnumerable women workers in the country--especially as it is a question of employing women in mines and factories. Youknow there was a great furore in the country during the warwhen women were allowed to work in mines, and I personallythink that this must be considered as something veryimportant and I hope Dr. Ambedkar will see his way to include it.
The Honourable Dr. B. R. Ambedkar: I do not accept the amendment moved by Mr. Damodar Swarup--No. 564.
Mr. Vice-President: I put the amendment No. 564 tovote.
The question is:
"That the following be added at the end of article 18:-
`Nor shall women be employed at night, in mines or inindustries detrimental to health.'"
The amendment was negatived.
Mr. Vice-President: Now I put the motion--
The question is:
"That article 18 stand part of the Constitution."
The motion was adopted.
Article 18 was added to the Constitution.
Mr. Vice-President: Now we come to a new article in theform of amendment No. 566.
Prof. K. T. Shah: Mr. Vice-President, I beg to move.
"That the following new article be inserted under theheading "Rights relating to Religion" occurring afterarticle 18:--
`18-A. The State in India being secular shall have no concern with any religion, creed or profession of faith; and shall observe an attitude of absolute neutrality in all matters relating to the religion of any class of its citizens or other persons in the Union.'"
This, Sir, ought not to be a controversial matter atall. We have proclaimed it time and again that the State inIndia is secular; and as such it should have no concern--I should think that would follow logically--with the affairs of any religion, with the profession of any particular faith, creed or belief.
By this I do not wish to suggest that the neutrality of the State in matters of religion should mean the utterignorance or neglect of institutions or services which may,in the name of religion or belief, be conducted by peopleprofessing a particular form of faith. All I wish to say isthat with the actual profession of faith or belief, theState should
have no concern. Nor should it, by any actionof it, give any indication that it is partial to one or theother. All classes of citizens should have the sametreatment in matters mundane from the State. And even thosewho may not be citizens of this State, by living within it,should receive the same treatment.
The citizens of this Union obviously belong to allprofessions, a wide variety of faiths or religious beliefs.To take one or the other, or even to suggest that one or theother is favoured or assisted or aided by the State in itsmundane affairs at any time--if I may put it so,--would notbe in the interest of the State. For it would give any othersection of the people professing another belief, theimpression that any particular section is preferred.
If the State can--and I believe it can very easily--promote all mundane services, all worldly activities andutilities which are for the benefit of the communitycollectively--no matter by what section they are carried on--then, according to my amendment, there ought to be noobjection. But if the State is associated in any way with the promotion of any particular form of profession or faith,then I think it would be highly objectionable for a secularorganization to do so.
Accordingly I am suggesting that "The State in Indiabeing secular shall have no concern with any religion, creedor profession of faith". I am again and again emphasis ingthis aspect of religion because that is by its very essence,a non-worldly activity, and as such the State which is--mayI say it without any disrespect--essentially an earthlyorganization, should have no concern.
One could dilate upon this matter for an indefiniteperiod. I do not regard occasions of this kind, or debatesof this nature to be opportunities for unconscious self-revelation or deliberate professions of one's own attitude.I therefore will not take the time of the House in goingfurther into this subject which I am sure would interesteverybody sufficiently, at any rate, to consider favourablymy amendment.
(Amendment No. 567 was not moved.)
Mr. Vice-President: No. 568.
Shri T. T. Krishnamachari: May I point out that this amendment relates to a matter more or less akin to 13-Awhich you were good enough to keep in abeyance for the timebeing?
Mr. Vice-President: Then it may stand over.
(Amendment No. 569 was not moved.)
Mr. Vice-President: I put amendment No. 566 to vote.
The question is:--
"That the following new article be inserted under theheading "Rights relating to Religion" occurring afterarticle 18:
`18-A. The State in India being secular shall have no concern with any religion, creed or profession of faith; and shall observe an attitude of absolute neutrality in all matters relating to the religion of any class of its citizens or other persons in the Union.'"
The amendment was negatived.
New articles 19 to 22.
Mr. Vice-President: Then we go to No. 570.
The first part is naturally disallowed.
Prof. Shibbanlal Saksena: First put the article to vote.
Mr. Vice-President: The article has been put to voteand passed. Now the second alternative is the same as No.591 and will be considered along with that. The thirdamendment or alternative is the same as 618 and will beconsidered along with the other one. The last amendment hasa negative effect.
Shri Lokanath Misra (Orissa: General): I do not think,Sir.
Mr. Vice-President: I am afraid you are challenging thecompetence of the Chair which you are not entitled to dounder the Rules.
Shri Lokanath Misra: The first part of my alternativeis not the same as 591, because in that I wanted to drop theword `propogate' while it is different in 591.
Mr. Vice-President: That was considered when thedecision was made.
The motion before the House is:
"That article 19 from part of the Constitution."
I shall go over the amendments one by one.
(Amendment No. 571 was not moved.)
No. 572, first alternative.
Mr. Tajamul Husain (Bihar: Muslim): Sir, I do not wishto move part one of my amendment. I have put my amendment
intwo parts, and with your permission, Sir, I would like to move the second part.
Mr. Vice-President: You can do that later.
Mr. Tajamul Husain: But then, Sir, later on comes the amendment No. 573 in the name of my Friend Mr. Himatsingka,and if that is not moved, then my amendment which is similarto it also goes out.
Mr. Vice-President: No, if he does not move it then youwill get your chance. And if No. 573 is moved, even then youcan have your say during the general discussion. Nos. 573,576, 577 and lastly 582 may be considered together. Of them,I take No. 573 standing in the name of Mr. Himatsingka. Ishe in the House?
(The Member was not present and Amendment No. 573 wasnot moved.)
The next would be No. 572, second part.
Mr. Tajamul Husain: Sir, I beg to move--
"That in clause (1) of article 19, for the words"practise and propagate religion" the words "and practisereligion privately" be substituted."
Sir, under article 19, clause (1) all persons areentitled to freedom of conscience and the right freely toprogress, practise, and propagate religion. (I agree, Sir,that people should have the right to freely profess andpractise religion, but I am afraid, it will be wrong toallow people to propagate religion in this country.) Sir, myspeech will be brief, because I have been seriously ill andI feel the strain while speaking.
I feel, Sir, that (religion is a private affair betweenoneself and his Creator. It has nothing to do with others.)My religion is my own belief, and your religion, Sir, isyour own belief. Why should you interfere with my religion,and why should I interfere with your religion? Religion isonly a means for the attainment of one's salvation. Supposing I honestlybelieve that I will attain salvation according to my way ofthinking, and according to my religion, and you Sir,honestly believe that you will attain salvation according toyour way, then why should I ask you to attain salvationaccording to my way, or way, should you ask me to attainsalvation according to your way? If you accept thisproposition, then, why propagate religion?) As I said,religion is between oneself and his God. Then, honestlyprofess religion and practise it at home. Do not demonstrateit for the sake of propagating. Do not show to the peoplethat this is your religion for the sake of showing. (If youstart propagating religion in this country, you will becomea nuisance to others.) So far it has become a nuisance.
I submit, Sir, that this is a secular State, and a secular state should not have anything to do with religion.So I would request you to leave me alone, to practise andprofess my own religion privately. That is all I wish tosay, Sir, because I am not keeping good health. I commend myamendment to the Honourable House and especially to theHonourable Dr Ambedkar, hoping that he will accept it. With these words, I sit down.
Mr. Vice-President: Amendment No. 570 in the name ofMr. Misra. Do you want it to be put to the vote?
Shri Lokanath Misra: Sir, I wanted to move it.
Mr. Vice-President: I know. But that has beendisallowed. I want to know if you want it to be put to thevote.
Shri Lokanath Misra: Yes, Sir.
(Amendment Nos. 576, 577, First Part of 582 and 575were not moved.)
Mr. Vice-President: Then the next amendment is No. 578in the name of Mr. Naziruddin Ahmad. This is disallowed asbeing a verbal amendment. Then I come to amendments No. 579and No. 580. They are almost identical, and therefore I amasking the mover to move No. 579. That also stands in thename of Mr. Naziruddin Ahmad.
Mr. Naziruddin Ahmad: Sir, I move:
"That in clause (1) of article 19, for the words `areequally entitled to freedom of conscience and the right',the words `shall have the right' be substituted."
It is almost a verbal amendment.
Mr. Vice-President: Do you want me to put amendment No.580 to the vote?
Mr. Naziruddin Ahmad: Yes, sir.
Mr. Vice-President: Amendments Nos. 574, 581, 582(second part), 587, 588 and 589 are of similar import andare to be considered together. Amendment No. 581 is allowedto
Mr. Naziruddin Ahmad: I am not moving it.
[Amendments Nos. 574, 582 (second part) and 587 werenot moved.].
Mr. Tajamul Husain: Sir, I beg to move:
"That Explanation to clause (1) of article 19 be deleted and the following be inserted in that place:--
`No person shall have any visible sign or mark or name, and no person shall wear any dress whereby his religion may be recognised.'"
Mr. Naziruddin Ahmad: On a point of order. Does theHonourable Member refer to invisible signs or marks ornames? By banning visible signs, does he prefer invisiblesigns and marks? How can there be invisible names?
Mr. Vice-President: Do you like to say anything?
Mr. Tajamul Husain: I have not been able to follow my honourable Friend, Mr. Naziruddin Ahmad. He seeksclarification on the point as to how there could beinvisible signs. My intention is that there should be novisible sign, or mark or name by which a person shall berecognised. You have a name "Pershad", by which you know aperson is a `Kayasth'. You have the name "Syed" by which youknow that a person is a Muhammadan. My amendment may bebadly worded but my friend Mr. Naziruddin only knows aboutcommas, semi-colons and full-stops.
Mr. Vice-President: You need not dilate on it.
Mr. Tajamul Husain: I wish to point out that religionis a private affair between man and his God. It has noconcern with anyone else in the worlds. What is the religionof others is also no concern of mine. Then why have visiblesigns by which one's religion may be recognised? You will find, Sir, that in all civilized countries--and civilizedcountries now-a-days are the countries in Europe andAmerica--there is no visible sign or mark by which a man canbe recognised as to what religion he professes. In thiscountry unfortunately, you can find out a man's religion heprofesses. In this country unfortunately, you can find out aman's religion by his visible sign or mark. I need notdilate on this. I will only give the points. In civilizedcountries people have family names, namely, Disraeli orBirkenhead. From these names you cannot say that Disraeliwas a Jew and Birkenhead was Christian. If you hear the nameof Lord Reading, you cannot say to what religion he belongs.There was a man in England whose name was Lovegrove. Youcannot say to what religion he belongs, though I know he wasa Muslim. There are many Christians in England who havebecome Muhammadans. so in those countries you cannot findout to what religion a man belongs simply by his name. In this country, of course, I have told you, Sir, from aperson's name you can find out his religion. You hear of thename of Pershad. In my province it means a kayasth. If youhear of Ojha or Jha you know that the persons is a Brahmin.In Bengal you know that a person of the name of Mookerjeemust be a Brahmin, and so forth. So I do not want these things. I know I am 100 years ahead of the present times.But still, I shall have my say.
In civilized countries in England there was a time whenthere was no uniformity of dress. In this country you findall sorts of dresses.
You find dhoties, you find pyjamas, you find kurtas,you find shirts,--and again, no shirts, no dhoties,nakedness, all sorts of things. That was the same thing inEngland at one time.
Maulana Hasrat Mohani: On a point of order,--whateverMr. Tajamul Husain is suggesting, he must adopt it himselffirst. He must change his own name, because seeing his nameone can say he is a Muslim.
Mr. Tajamul Husain: I am sorry for the interruption of the Maulana. My name I will change when the whole countryadopts my resolution. Then, he will not be able to find outwhat I am and who I am.
Now, Sir, I was talking about dress. There was a timein England when there was no uniformity, but the Honourablethe Law Minister will agree with me that an Act was actuallypassed in Parliament by which there was uniformity of dressand now in England and in the whole of Europe and in Americathere is uniformity of dress. We are one nation. Let us allhave one kind of dress; one kind of name; and no visiblesigns. In
conclusion, I say we are going to be a secularState. We should not, being a secular State, be recognisedby our dress. If you have a particular kind of dress, youknow at once that so and so is a Hindu or a Muslim. Thisthing should be done away with. With these words, I move my amendment.
(Amendment 589 and 583 were not moved.)
Prof. K. T. Shah: Mr. Vice-President, I beg to move-
"That the following proviso be added to clause (1) ofarticle 19:
"Provided that no propaganda in favour of any one religion, which is calculated to result in change of faith by the individuals affected, shall be allowed in any school or college or other educational institution, in any hospital or asylum, or in any other place or institution where persons of a tender age, or of unsound mind or body are liable to be exposed to undue influence from their teachers, nurses or physicians, keepers or guardians or any other person set in author ity above them, and which is maintained wholly or partially from public revenues, or is in any way aided or protected by the Government of the Union, or of any State or public author ity therein. Sir, the main article gives the right of freedom ofpropaganda. I have no quarrel with the right that anybodyprofessing any particular form of belief should be atliberty, in this Liberal State, to place the benefits orbeauties of his particular form of worship before others. Myonly condition--and the amendment tries to incorporate that--is that this freedom should not be abused, as it has beenin the past. In places or institutions, where people oftender age or those suffering from any bodily or mentalinfirmity, are exposed to undue influence, they are liableto be influenced more by the personality of those inauthor ity above them than by the inherent advantages andunquestionable reasoning in favour of a particular religion,and as such result in conversion. That is not a genuinechange of opinion, but is the result of undue influence thatought to be stopped.
(I have no quarrel at all with those who would changetheir opinion after full and mature consideration of suchmaterial as may be available to them regarding the beliefsthat they inherit from their parents.) Most of the religiousbeliefs in this world are not,--may I say without anyoffence--a matter of reasoned conviction; they are anacquired habit or an inherited prejudice which may not stand the strain of conviction on the opposite side, or reasoningon the controverting side. Accordingly, anybody who desiresthe mind of the public to be alert free from prejudic andopen to conviction, will not object to permitting suchfreedom of propaganda that may result in conversion.
I have no objection therefore to anybody speaking,writing, preaching, in any place of public resort, in anyopen space, in parks, gardens, theatres or any other publicplace, even to people of tender age or even to people ofunsound mind or body; because in those places they are notsuffering from any disability, nor are those who areteaching or preaching in those public places in a place ofauthor ity, in a place where they can exercise undueinfluence; and as such it can be presumed that it is ratherthe force of their argument, the strength of their reasoningthat has resulted in proselytis ing without any undueinfluence, or unfair author ity, upon those people. But when,as in a school or a college, in an hospital or asylum, thosewho are set in author ity as teacher or preacher, physician,guardian or nurse, take advantage of their peculiar positionto influence them, to place before them another way oflooking at life and its purpose than that they have had frombirth, then I think undue influence is exercised and as such objectionable.
Even that may be permitted so far as that particularInstitution does not benefit in any way from publicrevenues, or is not aided, protected, or encouraged by anypublic author ity in the Union or in any part of it.) I hopethe House realises the extreme moderation of my amendment,and the tightness of the restriction that I have put so faras this proviso is
concerned, namely, that it will operateonly on people in a place or institution where they aresuffering from some kind of disability, whether of age or ofunsound mind or body, and where, therefore, their change ofbelief if it is brought about would be open to suspicion.
That is one reason. Then again, the preaching orpropaganda which may be objected to is by or from people whoare set in author ity above the young, the helpless, disabled or of unsound mind, that is, asteacher or nurse or guardian. That is also a very substantial limitation.
Thirdly, the institutions or places carrying onpropaganda of this kind resulting in conversion from onereligion to another to which we object are places which aremaintained wholly or partly by public revenues. They may bereceiving financial grant; or they may be receivingrecognition, which is perhaps more valuable than a directmoney grant, and charging fees from the public, so that theymay benefit even though nominally they may not be taking anygrants from public revenues, or they may be aided orprotected by any public author ity.
With these three very substantial restrictions I amsure nobody would quarrel or object to my amendment,especially to the idea of propaganda of a kind which iscalculated to change the religion or form of belief orworship inherited with one's parentage, if that propagandais done by people in author ity above them; and they in themeantime are suffering from some kind of disability of thetype I have illustrated.
(I know, Sir, this is liable to excite strong feeling.There are religions which are professedly proselytis ing.There are religions which leave the matter of religion toevery person's own conscience, and do not indulge inproselytis ing. Whatever that be, without quarrelling with the freedom of preaching one's religion, I hold that it isthe most moderate form of request to the professors orpreachers of those religions, which want to proselytise,that they should at least observe this much self-restraint,viz., that any institutions maintained by any form of publicassistance or receiving any form of public encouragementshould not be utilised by them for propaganda orproselytisation, so that the minds not quite free from otherinfluences, minds suffering from some kind of handicap,shall not be unduly influenced.
Sir, I have tried to use no expression in the course of these few remarks which might give the slightest occasionfor anybody to feel alarmed at the restraint which I amsuggesting should be put upon their right to propagatereligion. I have not quoted a single instance which may befound in plenty, where undue advantage has been taken toeffect conversions in a manner which may be regarded as mostreprehensible. Those who are blinded by their faith arewelcome to their belief. But I would beg them to realisethat in suggesting that those who are suffering fromdisabilities shall be free from activities of this kind,they will not misunderstand me when I say that I have notthe slightest objection to their holding their beliefs andeven propagating them but that they should not indulge in this illicit form for carrying on their religious activity.
Professing no particular religion myself, I can give anassurance to the House that I am not actuated by any feelingof partiality for one or opposition to another. I only wishthat this may be left as a matter of purely personalconcern. When you meet at a social gathering orcongregational union this much decency should be observedthat you shall not carry on your influence in an unduemanner, but only rely upon the convincing character of yourarguments. Sir, I commend the motion to the House.
The Honourable Shri Ghanshyam Singh Gupta: (C. P. andBerar: General): Sir, I move:
That in the Explanation to clause (1) of article 19,for the word `profession', the word `practice' be substituted.
Article 19. Sir, is very comprehensive. It says: "Allpersons are equally entitled to freedom of conscience and the right freely to profess, practise and propagatereligion." Now, as to freedom of conscience: It means that aman
is free either to have a religion or no religion. If aman has a religion, then he is free to profess whatever religion he likes,either Islam, or Hinduism, or Buddhism or Sikhism and so on.Then, professing that religion, he is free to practise thedictates of that religion. For instance, if Islam requiresthat there should be a namaz, a Muslim is free to practiseit and also to propagate it. What I would humbly submit isthis: The wearing of kirpan may more appropriately be calledthe practice of religion than the profession of the Sikhreligion. This is all I have to say.
Mr. Vice-President: It seems that there is an amendmentto this amendment. As I understand that it is not going to be moved, the next one that can be moved is only 591standing in the name of Shri Lokanath Misra.
Shri Lokanath Misra: Mr. Vice-President, if you willpermit me to speak on the general discussion of the articleas a whole I would not move this amendment at all.
Mr. Vice-President: How can I guarantee that? I mustobserve a timetable. Whether you get a chance or not willdepend upon the shape the debate takes. You are at libertyto move this amendment.
Shri Lokanath Misra: I beg to move--
"That at the end of Explanation to clause (1) ofarticle 19, the words "and for the matter of that of anyother religion" be inserted."
I would have been very glad if I had a chance to speakgenerally on article 19 and not move this amendment. To mymind, if article 13 of this Draft Constitution is a Charterfor liberty, article 19 is a Charter for Hindu enslavement.I do really feel that this is the most disgraceful Article,the blackest part of the Draft Constitution. I beg to submit that I have considered and studied all the constitutionalprecedents and have not found anywhere any mention of theword `propaganda' as a Fundamental Right, relating to religion.
Sir, We have declared the State to be a Secular State.For obvious and for good reasons we have so declared. Doesit not mean that we have nothing to do with any religion?(You know that propagation of religion brought India intothis unfortunate state and India had to be divided intoPakistan and India.) If Islam had not come to impose itswill on this land, India would have been a perfectly secularState and a homogenous state. There would have been noquestion of Partition. Therefore, we have rightly tabooedreligion. (And now to say that as a fundamental righteverybody has a right to propagate his religion is notright.) Do we want to say that we want one religion otherthan Hindusim and that religion has not yet taken sufficientroot in the soil of India and do we taboo all religions? Whydo you make it a Secular State? The reason may be thatreligion is not necessary or it may be that religion isnecessary, but as India has many religions, HinduismChristianity, Islam and Sikhism, we cannot decide which oneto accept. Therefore let us have no religions. No. Thatcannot be. If you accept religion, you must accept Hinduismas it is practised by an overwhelming major ity of the peopleof India.
Mr. Vice-President: We shall resume the discussion onMonday. A request has come to me from my Muslim brethrenthat as today is Friday we should now adjourn. I think weought to show consideration to them an adjourn now to meetagain on Monday at Ten of the clock.
Mr. Misra may then deliver the rest of his speech.
The House then adjourned till Ten of the Clock onMonday, the 6th December 1948.