Thursday, the 4th November 1948
"That in the proposed rule 38-V for the words `when theBill is so authenticated' the words `When the Bill has beenso authenticated' be substituted."
This amendment, Sir, is entirely similar to the onewhich has been accepted by the House with regard to anothermotion moved by my honourable Friend. Mrs. Durgabai. I thinkit will be happier and more in consonance with the rules ofidiom and usage to substitute the words "has been" for theword "is" so that, if the amendment is accepted, theproposed rule will read:
"When a Bill referred to in rule 38-A is passed by theAssembly, the President shall authenticate the same byaffixing his signature thereto. When the Bill has been soauthenticated, it shall become an Act . . . ." etc.
I commend this amendment for the acceptance of theHouse.
Mr. President: The motion has been moved and also an amendment to that. If any Member wishes to speak on themotion, he may do so now.
Shrimati G. Durgabai: I accept the amendment.
Mr. President: It seems there is nobody who wishes tospeak on the motion. The mover has accepted the amendment. Ifirst put the amendment to vote.
The amendment was adopted.
Mr. President: The motion, as amended, is now put tovote.
The motion, as amended, was adopted.
PROGRAMME OF BUSINESS.
Mr. President: We will now go on to the next item onthe agenda but before doing so, I would like to explain tothe House the procedure which I propose to follow in dealingwith the Draft Constitution. Members are aware that theDraft Constitution was prepared by a Drafting Committeewhich was appointed by this House and the Draft was placedin the hands of Members nearly eight months or more ago.Members were asked to send in any suggestions or amendmentswhich they wished to make and a large number of suggestionsand amendments were received not only from Members but alsofrom the public and public bodies, provincial governmentsand so forth. The Drafting Committee has considered allthese suggestions and amendments and they have redraftedmany of the articles in the light of the suggestions made byeither Members or the public. So we have now got not onlythe Draft as it was originally prepared, but also the re-draft of a number of the Articles which the Drafting Committee had prepared in the light of suggestions received.These have been placed in the hands of Members. What Ipropose now to do is to take up each Article after we, ofcourse, have passed this motion for consideration and Ishall take all these amendments of which notice has beengiven already as having been given in time, so that Memberswho have already given notice of amendments need not repeatthe notice after the motion for consideration has beenadopted. I will also give to Members two days more forgiving notice of any further amendments which they wish topropose to the Articles. And then, I propose not to acceptany other amendments, unless they are of such a nature thatit becomes necessary to accept them. Of course, there willbe amendments which may be consequential and those will haveto be accepted. There may also be amendments which for otherreasons may be considered by the House to be of such anature that they should be considered; I will not burkediscussion of those amendments; I shall have them also. Butordinarily I would ask the Members to confine themselves tothe amendments of which we have already got notice and theyare, I believe, about a thousand in number. In this way wemight economies time without in any way affecting ourefficiency and without in any way putting any check on freediscussion of all the Articles of the proposed draft. Thisis what I propose to do, of course, subject to what theHouse lays down. I think this is quite reasonable in view of the fact that Members have had such a long time to consider;and that they have considered in detail the draft isapparent from the fact that we have already got notice of about a thousand amendments, and if by any chance anyamendment has been overlooked
and i fancy member feels itsconsideration to be necessary, we shall take it, butordinarily I will not take any further amendments afterthis. What I propose is that we discuss the motion, whichDr. Ambedkar will move, for two days, that is, today andtomorrow, when we sit both in the morning and in theafternoon and we give Saturday and Sunday for giving noticeof amendments to the members. All the amendments of which wehave already received notice and of which we shall havereceived notice by 5 o'clock on Sunday will be tabulated,printed and placed in the hands of Members by Monday, andthen we proceed with the discussion of the amendments fromTuesday. That is the programme which I have outlined in mymind.
There is another thing which I might tell Members.There is a motion of which notice has been given and thereis also an amendment of which notice has been given thatthis House should adjourn discussion of the Consti-tution altogether and a new House on adult franchise and onnon-communal lines should be elected and that House shoulddeal with the question of framing the Constitution. I do notknow if the House will be prepared to throw away all that wehave been doing during the last two years, particularlybecause there is in the Draft an article which gives asomewhat easy method of amending the Constitution during theearly years after it comes into force and if there is anylacuna or if there is anything which needs amendment, thatcould easily be done under the provision to which I havejust made reference, and it is, therefore, not necessarythat we should hold up the consideration of the entireConstitution until we have adult franchise. The difficultywill be in the first place to form the electorate underadult franchise; we have no such law existing at present.Adult franchise we have contemplated in this Draft Constitution and it will come into force when thisConstitution has been passed. So if you want to have adultfranchise and if you want to have another ConstituentAssembly for the purpose of drafting the amendments, weshall have to pass another law and I do not know which Housewill have the right to pass that law which will constitute aConstituent Assembly. So I think it would be best to proceedwith the draft which we have prepared after much labour andto which so much care and attention has been given by theDrafting Committee and by the Members of this House.
This is the programme which I propose to follow and ifthere is any other suggestion which any member wishes tomake, I shall be glad to consider it. There is only onething more which I might mention and that is this. I do notwish to curtail discussion. I want to give to members thefullest opportunity for considering every article and everyaspect of the Constitutional question, because, after all,it is going to be our Constitution, but at the same time, Ido not like that we should spend more time than isabsolutely necessary over it by repeating arguments whichhave already been once advanced by one Member or another orby going over the same ground. For that reason, we may notreconsider many of the decisions which have already beentaken. Members know that we had long discussions, and afterlong discussions we settled the principles of theConstitution and the Draft, the bulk of it, is based uponthose decisions which were taken after long discussion bythis House. I would not expect that the Members wouldlightly throw away those decisions and insist upon areconsideration of those decisions. There may be cases wherea reconsideration may be necessary. But ordinarily, we shallproceed upon the decisions which have already once beentaken and it is only where no decisions have yet been takenthat the House may have to take decisions for the firsttime. Now there are certain questions on which no decisionshave been taken. There were certain committees appointed bythe House. The reports of those Committees were notconsidered. But the Drafting Committee has taken care toplace in the draft alternative proposals, one set ofproposals representing their own views where they differfrom
those of those Committees and another set of proposalsembodying the recommendations and the decisions of thoseCommittees. So when we come to those particular provisions,the House may consider them on their merits, and afterconsidering them on their merits may accept either theopinion of the Drafting Committee or of the Committee. TheHouse will have the draft ready, so that it will not have towait for preparing a draft on these questions. When weconsider this whole matter from this point of view, I think,after all, the scope for discussion gets very much limited,because most of the amendments will be more or less of adrafting nature, because the decisions have already beentaken, and so far as the drafting is concerned, the Drafting Committee has already considered many of these suggestionsand amendments and it has accepted them. So, while there maybe discussion of principle in regardto some questions which have not been decided, there is notmuch to discuss so far as principles are concerned, becausewe have already discussed those principles and we havearrived at certain conclusions. Therefore, what I feel isthis, that if we proceeded in a business-like way, it shouldbe possible for us to complete discussion of the wholeConstitution by the second anniversary of the day on whichwe started the work of this Constituent Assembly, that is,by the 9th of December next.
If we succeed in doing that, after that we might have afew days adjournment, when all the amendments which havebeen accepted by the House will be considered by theDrafting Committee and put in their proper places, when allthe re-numbering and re-allocation of the Articles from oneChapter to another and so forth - all that becomes necessary--all that could be done within that interval of say ten orfifteen days. Then, we might meet a second time when wecould finally accept the Constitution as it will haveemerged. In this second discussion, under the Rules, weshall not go into the merits of any question; we shall haveonly to see that the amendments as they were accepted by theHouse have been incorporated in the final form in which thedraft is placed before the House.
This is the proposal which I place before the House andI think this ought to meet with the approval of the membersof this House.
Seth Govind Das (C.P. & Berar: General): *[Mr.President, I would like to know whether after adoption of the article relating to the national language, clauses whichmight have been passed by then in English would be placedbefore this House for adoption in Hindi.]
Mr. President: *[Yes, of course, all the clauses wouldbe reconsidered in that language which may have been adoptedas the national language. There would be no discussion atthat time on the clauses as such. The only point forconsideration would be whether the clause has been correctlytranslated or not. I, therefore, think that our discussionsshould be based on the English draft at present, for allthose who have given thought to the draft and those who haveprepared it, have done so in that language only. And whenclause relating to the national language is finally adoptedwe would put up the translation of the Constitution in thatlanguage before you for adoption.]
Pandit Balkrishna Sharma (United Provinces: General):Sir, I wish to draw your attention to this very importantquestion which my honourable friend Seth Govind Das hasraised before the House.
Shri Mahavir Tyagi (United Provinces: General): *[Mr.President, I would like to submit that before we proceed todiscuss fundamental questions, it appears desirable that youshould decide what the procedure would be for tablingamendments. Shall the old procedure be followed or the onewhich you have stated now? It is necessary so that we mayhave some idea of the order in which debate would proceed,and the time we would be allowed for sending in amendments.]
Mr. President: *[Both will be decided simultaneously.]
Pandit Balkrishna Sharma: Sir, I fail to see where thepoint of order lies. As a matter of fact, I only wanted todraw your attention to one
thing. Before you call upon theHonourable Dr. Ambedkar to move that the Draft Constitutionbe taken into consideration, I should like to draw yourattention to the question which has been raised by my friendSeth Govind Das. After the motion which the Honourable Dr.Ambedkar is to move has been carried, we shall certainlyconsider the Constitution clause by clause. As you know,Sir, I am one of those who had given notice that theNational language of India be Hindi and the script
*  Translation of Hindustani speech.
the Devnagari script. Naturally, the question will arisewhen we take into consideration one clause after the otherof our Constitution, as to which language will it be inwhich the Constitution shall be deemed to have been passed.My suggestion, therefore, before you will be that when weconsider the clauses of the Constitution, after finishingone Chapter of it, we must revert in Hindi and pass everyclause as has been amended by this House and as has beentranslated in that language by a Sub-Committee of thisHouse. I would therefore request you, Sir, that before youtake up the consideration of the Constitution clause byclause, you may be pleased to appoint a Sub-Committee ofthis House which will keep itself in touch with the clausesand the amendments that the House wishes to make therein andas they are passed, and that Committee should get theseclauses translated and these clauses, after finishing oneChapter, may again be brought before the House in Hindi andit could be deemed to have been passed in Hindi also. Sothat, after some time, when we have ultimately done awaywith the English language, the original must be consideredto have been passed in Hindi, and it should be the ultimateauthority, the authentic constitution. If we do not adoptany such course, I think we shall be greatly handicapped atthe time when I think article 99 of the Constitution comesbefore us and we declare our language as Hindi and thescript the Devnagari script. I think there is somedifficulty before my South Indian friends. They can easilysay that "this Constitution at present is in the Englishlanguage which we all understand, you call upon us to passevery clause in Hindi, and we do not know the language." Ithink those of my South Indian friends who do not know Hindito such an extent may rely on the better sense of theircolleagues. Here, in this House, there are friends who donot know English and yet they rely upon your good sense andthey do not raise the objection that they do not know theEnglish language and therefore this Constitution is notgood. Similarly, they may try to accommodate us in thismatter.
Mr. President: I think it will cut short discussion onthis point if I explain what I propose to do in regard tothis matter. There is a motion of which notice has beengiven that a Committee should be appointed for the purposeof preparing a translation and that translation should bepassed Article by Article by this House, and that should betreated as the original. There is something to that effectof which notice has been given. What I propose to do isthis. Members are aware that we have got translationsprepared: there is a translation in Hindi; there is atranslation in Urdu; there is a translation in Hindustani;all these three translations of the Draft Constitution areready and I believe members have received copies of thesetranslations. As soon as the question is decided as to whatwill be our language, we shall set up a Committee which willtake up that particular translation which is ready and seeto it that it conforms literally to the original in English.Whatever our sentiments may dictate, we have to recognisethe fact that most of those who have been concerned with thedrafting of the constitution can express themselves betterin English than they can in Hindi; it is not only a questionof expressing in English or Hindi, but the ideas have alsobeen taken from Constitutions of the West. So theexpressions which have been used have, many of them,histories of their own and we have taken them bodily fromthe
phraseology of Constitutions of the West in many places.Therefore it could not be helped because of the limitationof those who were charged with drafting that the draft hadto be prepared in English. I do not think we have lostanything by that but when once a particular article isfinally adopted in this House in the English language, weshall see to it that as correct and perfect a translation isproduced as possible and in the language which will beaccepted by the Constituent Assembly as the language for ournational purposes. So I would ask the Members not to anti-cipate the discussion which we shall have on the question oflanguage. That will come a little later but I promise thisthat as soon as that question is settled, we shall have thetranslation revised or prepared in that particular languagewhich is accepted and we shall put the translatedConstitution also before the House for acceptance.
Seth Govind Das: *[Mr. President, you had made aspecific commitment that when the constitution would beplaced before us, its original would be in our nationallanguage. I had also put a question to you at that time andin your reply also you did say that the original draft of the constitution to be placed before us by Dr. Ambedkar isin English. As the constitution now placed before us is inEnglish I would like to know when the constitutionoriginally drafted in our national language and about whichyou have given us an assurance will be brought before us].
The Honourable Shri Ghanshyam Singh Gupta (C.P. &Berar: General): *[Mr. President, I would like to inquirewhether after the adoption of the article relating to thenational language, each clause would be taken up in theNational Language for adoption just in the same manner asthe clauses in the English Draft are taken up for finaladoption after these have been duly amended.]
Mr. President: *[Every article will be taken up.]
Pandit Balkrishna Sharma: Sir, I only want to make thissuggestion that before taking up the Constitution clause byclause will it not be better if you very graciously permitus to take up the question of national language and have adecision about it. Because if we first take up the questionof the national language and decide it, then once for allthe hatchet is buried (Cheers). You can have the discussionsof 10 or 15 clauses in English. The Committee will begetting the translations ready the next day and the wholetranslation of that part will be before the House which willbe called upon to take it into consideration and then itshall be deemed to have been passed by the House. ThereforeI suggest you may be pleased to permit this House to take upthe question of the national language first before taking upthe Constitution clause by clause. The question of nationallanguage comes in somewhere in clause 99 of the Constitutionwhich may take long. This question bristles with manydifficulties and some of us feel it to be fundamentallyembedded with our future. There are other members who do notattach importance to it. Therefore I would request you totake up this question first and give us an opportunity todecide it and afterwards take the Constitution in Englishclause by clause and then give us opportunity to take themin Hindi as well.
Mr. President: May I state that the very reason whichhe has adduced for taking up the question of language in thebeginning has induced me to put it off to a later stage. Thereason which he has given is that there are differences ofopinion, some people holding very strongly one view andothers holding the other view equally strongly. I suggestthat it is much better to discuss at any rate thefundamentals of the Constitution in a calm atmosphere beforeour tempers have got frayed. I therefore suggest that weshould go on with the Constitution and discuss each item andwhen we have done that much, - it will not in any wayprejudice the question of language - the language questionwill be decided on its merits by the House and when thatdecision has been taken, every article will be passedultimately in that language also. Therefore nothing
is lost.Only, we do not lost temper to begin with.
*  Translation of Hindustani speech.
Shri R. V. Dhulekar (United Provinces: General): *[Mr.President, Sir, the proposal that I want to place before youis this. On the first occasion when I delivered my speech inHindi in this House, I had moved an amendment to the effectthat the constitution should be framed in our nationallanguage and that the English version should be treated asits translation. Therefore I want to submit that when thediscussion on the English version of the Constitution isover and it has been fully passed and when with yourpermission a decision has also been reached in regard to thenational language, I shall place the proposal before youthat the constitution in the national language should beconsidered as the original one. It will be insulting for usto adopt the translation of the English version. No nationhas so far done so.
I admit that the Members would speak in English in thisdebate. I shall also speak in English and in fact want to doso but later I shall speak in Hindi. I wish to inform youthat I want to place before you a motion when thisdiscussion is over. It will be to the effect that theEnglish version of the Constitution will be considered thetranslation of the constitution in the national language andthe latter will be taken to be the original one. The Englishversion will be styled as translation. I request that I maybe told as to when I may table that motion before you.]
Mr. President: *[This Assembly is entitled to saywhether the constitution will be passed in Hindi or Urdu andthat version will be taken to be the original one. The otherversions will be considered as its translations. You havethe power to do so.]
Shri Suresh Chandra Majumdar (West Bengal: General):Sir, your orders came regarding the translations. Completetranslations have been made in certain languages and I haveno quarrel with that but in the process of Constitutionmaking it is imperative that the people of our country - whatever may be their spoken language - they shouldunderstand it. So in your scheme of translation if you willkindly include, in addition to Hindi and Urdu, other majorlanguages of India, it would be very convenient for everyoneto understand and thereby, whatever may be the Rashtrabhashaafterwards, it will not be said that the proceedings werecarried on in a language or languages which were notintelligible to all parts of the country. This is mysuggestion. I have no disrespect for Hindi nor have I anyattachment to English but as the Constitution is a veryimportant thing I think it should be made intelligible toall the people of the country. So my prayer is you mightkindly include in your scheme of translation at least themajor languages of India and I don't think it will bedifficult for you to arrange that.
Pandit Hirday Nath Kunzru (United Provinces: General):Mr. President, you have made an announcement regarding theprocedure you propose to follow in connection with the Billbefore us, that will have a very important bearing on thediscussions that will take place shortly. You have drawn ourattention to two points.
The first point is that as the principles underlyingthis Bill were accepted by the Assembly a few months back,no amendment should be brought forward which would questionany of these principles or would seek to make any alterationin them. Sir, this is a matter......
Mr. President: I qualified that by "ordinarily".
Pandit Hirday Nath Kunzru: It all depends on how theChair will interpret this word. But I remember that when thediscussions on the principles embodied in the Bill weregoing on, it was said several times that we should have abetter opportunity for expressing our opinions later whenthe whole picture was before us. This is a matter that, Iventure to think, Sir, deserves your serious attention. Wemight, a few months back, have accepted certain
*  Translation of Hindustani speech.
conclusions, but if,
either after studying the Act as awhole, or after further reflection, any of us comes to theconclusion that any of these principles should be modifiedor completely altered, his right to express his opinionshould not be questioned.
Mr. President: I may say at once that I do not proposeto rule out any discussion. It will be for the House todecide whether it will go back on any of its decisions. AsChairman, I do not propose to rule out any discussion orreconsideration.
Pandit Hirday Nath Kunzru: The House will certainlyhave the right to decide whether it will go back on any ofits previous decisions. If it does not approve any change inthe principles accepted by it some time ago, it will be opento it to throw out any suggestion for a change made by anyMember. But what I have said, is due to the fact that I amunder the impression that it was your intention to rule outcertain amendments.
Mr. President: I am sorry if I left that impression.
Pandit Hirday Nath Kunzru: I am very glad to hear fromyou, Sir, that this is not your intention. It is thereforenot necessary for me to discuss this aspect of yourpronouncement any more.
I now come to the second point which you asked theHouse to bear in mind in giving notice of amendments infuture. You said that you would allow amendments to beproposed till 5 o'clock on Sunday next, but that thereafteryou would not admit any new amendment for discussion, unlessit seemed to you to relate to a matter of importance. Ithink, Sir, we all appreciate the substance of what you havesaid. As far as possible, our discussion should be canalizedin proper channels and should relate to such points only asought to be considered by the House again. Your advicetherefore in regard to the character of the amendments wouldnaturally carry great weight with every Member of thisHouse. But I submit, Sir, that no amendment, no matter whenreceived, ought to be automatically ruled out on the groundthat it was not received by 5 o'clock on Sunday afternoon.It is the duty of the Chair to regulate the discussion and Ihave no doubt that every Member of this House is anxious tohelp the Chair in its onerous task, particularly as theChair is occupied by a person of your eminence. But we haveunder the rules certain definite rights of which everyMember of the House ought to be jealous. We have under therules the right to give notice of amendments at any stage welike, and provided they are received within the timeallotted by the rules, our right to put forward newamendments cannot be questioned. It cannot be questionedeven by you, Sir.
I therefore suggest that when you consider anyamendment that is proposed, to be superfluous, or to relateto a very unimportant matter, you may well advise the Memberconcerned to save the time of the House by withdrawing it.But should he insist on expression his view, even on anunimportant matter, I hope that you, whose duty it is tomaintain our rights and privileges unimpaired, will not takeaway by executive discretion his right to propose hisamendment. Sir, this is a matter of great importance. Itrelates to a question of principle. I do not think that inpractice any conflict will arise between the Chair and anymember of this House but I am anxious that no right, noteven the least, that the rules enable us to enjoy should betaken away from us or whittled down either directly orindirectly. I hope that my observations will receive theattention of the Chair and that my remarks will be taken inthe spirit in which they have been made. We all mean to berespectful to you. We listen to whatever you say with greatattention and with a desire to act up to your advice but wedo earnestly request you not to make any attempt to trencheven on the smallest of our privileges. We ask you to standup for them should anybody attack them and I trust that thediscussion will be carried on in such a way as to enable usto feel that you are theguardian of our dignity and privileges and will maintainunimpaired every right that the House enjoys at presentunder the rules.
Mr. President: I hope I have not
given any cause so farin this Assembly to any Member to complain that I have actedin such a way as to take away any of his rights and I hopeto continue the tradition in the future also.
Maulana Hasrat Mohani (United Provinces: Muslim): Sir,I beg to draw your attention to the fact that I have alreadygiven notice of a motion to the effect:
"That the consideration of the Draft Constitution ofIndia be postponed till the election of a fresh andcompetent Constituent Assembly on the basis of JointElectorates and the formation of political rather thancommunal parties in India."
I also beg to draw your attention to your ruling when Iproposed an amendment to the same effect on the occasion of the presentation of the report on the principles of a Modelprovincial constitution, viz., that the consideration of theprovincial constitution be postponed unless and until wehave considered the Union Constitution.....
Mr. President: We shall take up your amendment in duecourse.
Maulana Hasrat Mohani: I want to place my motion first.
Mr Hussain Imam (Bihar: Muslim): The motion that theBill be considered has not been made and therefore theamendment cannot be moved at this stage.
Mr. President: That is what I am saying. We shall takeit up in due course.
The Assembly then adjourned for Lunch till Three of theClock.
The Assembly re-assembled after lunch at Three of theClock, Mr. President (The Honourable Dr. Rajendra Prasad) inthe Chair.
Shri Mahavir Tyagi: Mr. President, before we rose forlunch, the question put before you for your considerationwas whether the procedure which you had announced regardingthe discussions here held good or whether you will pleaseaccede to the request made by my friend Pandit Hirday NathKunzru. According to the rules we have the right to give twodays' notice of amendments if they are to be consideredvalid. I need not quote the relevant rule. It is known toeverybody. We followed it last time. When the draft of theConstitution was sent to us, I and many others here thoughtnaturally that the same old procedure with regard todiscussion will be followed. Now, many of my friends may nothave sent in their amendments in full in the hope that wewould discuss these matters here and then give notice of ouramendments after a discussion between ourselves. The oldarrangement of two days' notice enabled us to meet in groupsor parties and discuss and send in amendments. If thispractice is to be guillotined and we are not to be permittedto give notice of amendments as we proceed clause by clause,it will not be fair for those who have only just now joinedthe Assembly. There are many who have signed the Registertoday and got the papers of the Assembly a few hours ago.The draft Constitution is a huge volume which we want toread and consider. If you accede to the request of my friendMr. Kunzru and permit the new-comers to study the Draft Constitution as the discussion proceeds it will facilitatethem to send their amendments in time and have their say.Otherwise, the new arrivals will not be accommodated at all.
Mr. President, we are the Constituent Assembly and aremaking the Constitution. An ordinary law which is consideredby the Legislative Assembly and passed can be amended oncevery month or so. But the Constitution is not amended everynow and then. We are making a Constitution for centuries tocome and it cannot be amended easily, as easily as we canamend a legislative enactment. Therefore, full facilitiesshould be given to the Members of this House to have theirsay.
Therefore, I repeat the request that you may pleaseconsider that the two days time given in the rules is nottaken away and allow amendments subject to their relevancyto the motion under consideration. Amendments may not bemoved which have the effect of negativing the main motionexcept as permitted by the Chairman. Notice of amendments toa motion must be given one clear day before the motion ismoved in the Assembly. This rule being there, I submit,unless we change the rules..............
Mr. President: The relevant rule is
Shri Mahavir Tyagi: It says:
"If notice of a proposed amendment has not been giventwo clear days before the day no which the Constitution orthe Bill, as the case may be, is to be considered, anymember may object to the moving of the amendment, and suchobjection shall prevail, unless the President in hisdiscretion allows theamendment to be moved.
Do you mean to interpret this rule 38-0 in such a waythat the whole Constitution.........
Mr. President: I hope the Honourable Member will notdrive me to give a decision on that point today. You hadbetter leave it there. (Laughter).
Shri H. V. Kamath: Arising from the pronouncement madeby you this morning, may I seek clarification on two points?
Shri Algu Rai Shastri (United Provinces: General):*[Mr. President, I find that Honourable Members stand up tointervene in the debate. I request that I may also be givena chance to speak.]
Shri H. V. Kamath: May I seek a little clarification of the announcement you made this morning? You were pleased tosay that the Assembly would adjourn on 9th December for afew days. Do we adjourn on that day irrespective of whetherwe complete the consideration of the Constitution or not?
Mr. President: Nothing of the sort. I only suggestedsome sort of time table which I considered to be fair. It isfor the House to decide whether they would go on up to 9thof December next year. (Laughter).
Shri H. V. Kamath: Are we going to have a recess from9th December to a date to be specified later?
Mr. President: It all depends on the business on hand.I have suggested more that once that I do not want tocurtail discussion. As we are considering the Constitutionof the country, we shall not do anything in a hurry; but atthe same time I do not want waste time.
Shri H. V. Kamath: Are we going to adjourn on the 9thDecember, irrespective of whether we complete theconsideration of the Constitution or not?
Mr. President: That we shall see.
Shri H. V. Kamath: You were pleased to remark in themorning as regards the non-participation of Hyderabad andBhopal, that it is a matter entirely for the Government toconsider. Mr. President, according to our Rules you havepower to call upon the rules of Hyderabad and other Statesto send representatives to the Constituent Assembly. But,you were pleased to say that it is a matter in the hands ofGovernment. I do not know how the Government comes into thisaffair. You are fully authorised to call upon the rulers tosend their representatives to the Assembly.
Mr. President: Sitting in this Assembly, I have noright to compel anybody to do anything. Those who have comein are entitled to participate in the deliberations of thisAssembly and those who have not come, we cannot force themto come. It is for the Government to deal with them.
Shri Algu Rai Shastri: *[Mr. President, as far as Iremember you had announced in the last session that theConstitution to be presented here would be in Hindi and thatit might be translated into English. But the statement youhave made today has been a source of disappointment in asmuch as we learn that we have to discuss the very Draft thathas been prepared by the Drafting Committee in English. Wehave before us its Hindi version also. I do not understandwhy we should not take into consideration the Hindi versionof the Draft when it is before us. We may take up forconsideration the Hindi version of the Draft clause byclause and if any portion is found to be translated inrather difficult language. Dr. Ambedkar who himself is agreat scholar of the Sanskrit language, may explain suchportion from the English Draft to those who are unable tofollow the version in Hindi. It is necessary for everycounty to frame its constitution in its own language. Webelong to a country that has its own language. We shouldtherefore discuss it clause by clause in our own language.The Draft prepared in a foreign language should not bepresented to this House for discussion.
Sir, perhaps you remember that at the commencement of the first session of the Constituent Assembly I made
arequest that the discussion in this House should be carriedon in a language which is understood by the people of thiscountry. We should not proceed in this House as if it werethe British Parliament. The word `Dominion' is entirelyforeign in character. I remember a saying of the lateMoulana Mohammad Ali. He used to say that the word`Dominion' might be applicable to Africa, South Africa, NewZealand, Australia and Tasmania. These are the dominionswhere our alien rulers had founded
*  Translation of Hindustani speech.
colonies and established cantonments. But India cannot besaid to be a cantonment for the British. They went to thecountries I have already named and established there theircolonies and cantonments; they also carried their languagewith them and the people of those countries are Englishspeaking. But this cannot be said in our case. We have ourown language, our own civilization which has come down to usthrough hundreds of centuries; so also we have our ownliterature. Just as the English people can take pride intheir literature, in Shakespeare and Milton, we too can beproud of the works of our Kalidas, Tulsidas, Jayasi andSoordas. It will be matter of deep shame for a country whichhas developed a language of its own, to frame its first freeConstitution in a foreign language. Therefore, I would liketo entreat you, to pray to you that the Hindi version of theDraft Constitution should be placed before this House as theoriginal Draft of the Constitution. The clauses of the Hindiversion should be discussed here and the English Draftshould not be presented here for discussion. It should betreated only as a translation.
The English have quit India. Their cantonments are nolonger here. Following your example and the example of yourcolleagues and other respected leaders who have immortalizedtheir names in our history by eliminating the English rulefrom our land and whose names have become memorable, weshould remove the word `Dominion' from the Draft and I amsure it will be removed. It will, I think be agitated indetail in this House and many Members would expressthemselves on it. But this is a matter for futurediscussion. Just now the question before us is whether wehave any language of our own and a culture of our own;whether we have a language of our songs, of our poems andfor the expression of our thoughts and emotions. We shouldframe our Constitution in the same language in which wewould express our feelings. The Preamble of the Draft says:"We, the people of India . . . . . . . . . give to ourselvesthis Constitution." Here the term "We the people of India"means not the few men who are sitting in this House but thedumb millions of India and on whose behalf we arefunctioning here. Therefore the Constitution that is beingpresented here must be in the language we understand. It isa matter of regret that many of our veteran leaders havebegun to say that the problem of language has not yet beensolved; that our language has not been reformed and thatEnglish has to stay. Such things are said sometimes. I donot want here to mention the names of those leaders. Butsince they say that we have no language of our own, I wantto tell them that ours is a developed language, a richlanguage which is capable of expressing high thoughts andsentiments. It has a rich and a good vocabulary. We haveinherited our language from our ancient sages, we haveinherited it from Kautilya's Artha Shastra, from our ancientliterature which has such gems as the Mahabharat and theRamayana. We have developed our language taking words fromthese epics. Therefore it can not be said. . . .]
Mr. President: *[Excuse me, I do not understand whatyou are discussing. All the matters to which you arereferring are those on which there is already considerableagreement.]
Shri Algu Rai Shastri: *[I am only submitting that theoriginal draft of the Constitution which we are to discusshere should be in Hindi and not in English. Therefore weshould have liberty to table amendments on the clauses of the Hindi
version of the Draft treating it as the originalone. I beg to propose this with the idea that it wouldindicate that we have our own language. We do not deem ourland to be such a dominion within the British Empire as canexpress itself only in English.
I would like to say a few words more. Fortunately orunfortunately our brethren who live in those coastal regionswhere the English landed for the
*  Translation of Hindustani speech.
first time have acquired considerable proficiency inEnglish. It is they who feel the greatest embarrassment whenHindi is mentioned as the national language. It had been thegreat good fortune of the people of Madras that theirscholars gave to India a sublime message based on the Vedicliterature and culture. Similarly it was their lot that theEnglish.......]
Mr. President: *[I would like to point out to you thatyou are continuing to talk on a subject on which there is nodispute. All admit that we can and will frame ourconstitution in our language. There is no scope for anyfurther discussion on this matter. Previously also thequestion has been discussed many times and I am sure that atthe appropriate occasion it will be adopted.]
Shri Algu Rai Shastri: *[I am talking at present, oftabling amendments in Hindi.]
Mr. President: *[You can table amendments in Hindi ifyou so desire. But how can an amendment in Hindi fit in theclause that is in English. There will be difficulty for mebut, however, if you wish to table any amendment in Hindiyou can do so.]
Sardar Bhopinder Singh Man (East Punjab: Sikh): *[Mr.President, I want to invite your attention to the fact thatwhile discussing the Report of the Minorities Board thisHouse had decided on the last occasion that theconsideration of the problem of Sikh rights should be heldup as the conditions in the East Punjab were not normal.Today, we have got before us recommendations relating to allminorities but so far Sikhs are concerned, no decision hasbeen taken as yet.]
Mr. President: *[When this question is taken up youwill be free to say what you want to say about it.]
Sardar Bhopinder Singh Man: *[Sir, You have observedthat amendments may be sent within two days but nothing hasbeen decided regarding this question.]
Mr. President: *[You can send your amendments, after adecision has been taken in this matter.]
Mr. Hussain Imam: Mr. President, Sir, I do not wish toprolong the discussion on this subject. I simply wish todraw your attention to two important points. The rule asframed is all-comprehensive, the time of two days is givenfor giving amendments before the Constitution is taken up.Your discretion, Sir, is still left wide open, and I hope itwill be used generously. I am saying this not that I am notconvinced that it will be used generously but to assure myfriends that, if there is anything material, they can relyon you that it will be given favourable consideration.
There is a second point on which I require yourindulgence. Amendments to amendments can only come forwardwhen the amendments are before the House. Therefore in thatcategory you will have to relax your ruling and give us anopportunity to give amendments to amendments even after thattime.
Mr. President: Certainly.
Mr. Hussain Imam: Thirdly, I wish to stress that thiscontroversy about language may be happily solved if allthose friends of ours who are interested in the Hindiversion are formed into a Committee from the beginning to goforward with the work of translating or putting forward aHindi version also. Amendments also may be sent in Hindiprovided the office arranges to give us an Englishtranslation as well. So in this manner we will be able toachieve both the objectives. An amendment may be given inany language
*  Translation of Hindustani speech.
which is approved by the Constituent Assembly provided atranslation appears on the Order Paper simultaneously.
Fourthly, I should like to invite the attention of theHouse to the fact that the Constitution is being made for - Iwould
not say for generations - as long as it serves ourpurpose. The United States of America has made amendments toits constitution and about twenty amendments have alreadybeen made. There the process is so difficult. As you willremember, that not only has to be got through the twoHouses, but it must be approved by each unit of the U.S.A.Our position is not so bad. But there is one thing, Sir, onwhich I would require your indulgence, and that is thequestion of the boundaries of existing or new provinces.That matter, Sir, after the constitution will become sodifficult that I am sure it will become well nigh impossibleto do anything towards this end. If it is the will of theHouse that the present boundaries should be changed in anymanner, it would be meet and proper that before we finalisethe Constitution in the next session after the recess, weshould have a picture of the provinces as they will beconstituted in the immediate future and not leave it forfurther action in a remote future.
Mr. President: I think that the suggestion is somewhatpremature. We are awaiting the report of the Commissionwhich we have appointed and we shall consider it at thatstage.
Mr. Hussain Imam: Before finalising, we may be able tomove amendments to those recommendations as and when itcomes up. I simply invite the attention of the House to theurgency of the matter and to the matter being given fullconsideration and finalization.
Shri R. V. Dhulekar: *[Sir, I submit that the period oftwo hours that will be given to us tomorrow for generaldiscussion is too short. It is a different matter thathundreds of amendments will be received. When every membergets an opportunity of expressing his views, the amendmentsthat are tabled after a discussion of a few days, arealtered. The amendments are not referred to in thediscussion. Therefore I request that if we are given threeor four days' time for discussion and every Member is askedto observe the rule that he should not speak for more thanfifteen minutes, every Member then will have thesatisfaction that he has made his contribution in the Housein the framing of the constitution. I submit that one daymeans only five hours time. If Dr. Ambedkar takes it up atfour today and takes half the time tomorrow, there willhardly be left any time for us. Therefore I humbly requestthat we may be given an opportunity of speaking on thishighly important constitution. The opportunity of framingthe constitution does not come over and over again andeveryone desires to speak out whatever he has to say for hiscountry and nation. I want to submit also that whatever wespeak here is not meant for this House only or for thepresent time only. Whatever is spoken here will be read evenafter hundred or two hundred or four hundred years and thepeople will come to know of the views of their ancestors ona particular point. They will interpret it accordingly.Therefore, Sir, I think we the Members in this House will behighly obliged if at least four days are granted to us.Everyone of us wants only fifteen minutes and I want to tellyou on behalf of other Members also that if this opportunityis given to us, we shall sit together and come to a decisionregarding the hundreds of amendments that may be broughtforward and the Members of this House will help you infinalising the constitution as quickly as possible.]
Mr. President: *[We shall consider this later on. Thetime now being spent on the preliminary discussion reducesthe time available for detailed discussion. Therefore, Iwould ask that you allow the real work to start.]
*  Translation of Hindustani speech.
Pandit Thakur Dass Bhargava (East Punjab: General):*[Mr. President, at the very outset I would like to enquirewhether the Honourable Dr. Ambedkar has given any notice ofhis intention to introduce the Draft Constitution asrequired by the Rule 38-L or not. I am asking for thisinformation, because if no such notice has been given, I amafraid he can not move for consideration. According to therules five days' notice is necessary.]
President: *[Yes! It has been included there. Ithas been included in the Agenda. It being a re-draft all theamendments will be up again.]
Pandit Thakur Dass Bhargava: *[Another point which Iwanted to bring to your notice falls under Rules 38-M. Thecopy of the draft constitution, which is a re-draft, hasbeen given to us just today at the time when you wereadjourning the House for lunch, whereas it should havereached us much earlier. I think all the Members have notreceived a copy each so far. According to Rule 38-M. suchcopies should reach the Members at least three days before,more particularly for the reason that it contains variousreports on new matters. Unless it has been thoroughly readand studied, how can amendments be sent?]
Mr. President: *[Which copy are you referring to? TheDraft Constitution placed before you by Dr. Ambedkar of 21stFebruary, the copies of which were distributed, will bemoved by him and the amendments on it will be proposed asamendments and they will be moved on behalf of the Drafting Committee .]
Pandit Thakur Dass Bhargava: *[The third point forsubmission on which I respectfully want to lay more emphasisis regarding the interpretation of Rule 38-O. In my opinionthe view that the words "two clear days before the `day' onwhich the constitution is to be considered" in Rule 38-O isthat all the amendments should reach the office by Sundaybefore 5 P.M., is not correct for the reason that theconstitution shall not be taken up for consideration on the9th November only; rather, its consideration will continuefrom day to day when the clauses will be discussed. Therewill be other dates further on after which it would bestated that the Constitution will be considered on thoseparticular dates. That being the case, Members have theright to send in their amendments, two days before the datewhen the particular amendments shall be discussed.]
Mr. President: *[Let us not take a decision on thispoint at this stage.]
Pandit Thakur Dass Bhargava: *[I am aware that you wantto give full opportunity to the Members for discussion andthat their right of giving notice of amendments shouldremain intact. Every Member has confidence in the matter of the exercise of your discretion. But in my humble opinion,the question of discretion does not arise here, becauseaccording to my interpretation, every Member can send inamendments as a matter or right. This is also the intentionof Rules 38-P and 38-Q. Your order that Members should sendtheir amendments by 5 o'clock on Sunday goes in a way, primafacie, against the Members, which is not in order and shouldbe reviewed. You may not decide it now, if you do not wantto, though incidentally and in a way, the decision is there.In my humble opinion, if without reviewing the order, youextend the date, instead of 7th, to 10th and decide thequestion, when occasion arises, then nobody will have anygrievance.]
Shri T. Channiah (Mysore State): On a point of order,Mr. President, Sir, most of the honourable Members who spokepreviously know the English language very well. We are verysorry to bring it to your notice that most of the Members,especially Members coming from Madras, from Bengal, Bombay,Assam and many other places cannot understand Hindi orHindustani. We have
*  Translation of Hindustani speech.
to sit almost like dumb people. Mr. President, Sir, you arehere to protect the interests of all the Members. I would,therefore, request you to see that all those members whoknow English and who are able to speak in English are madeto speak in English.
MOTION re DRAFT CONSTITUTION
Mr. President: I think we shall now proceed with thediscussion. I call upon the Honourable Dr. Ambedkar to movehis motion.
The Honourable Dr. B. R. Ambedkar (Bombay: General):Mr. President, Sir, I introduce the Draft Constitution assettled by the Drafting Committee and move that it be takeninto consideration.
The Drafting Committee was appointed by a Resolutionpassed by the Constituent Assembly on August 29, 1947.
The Drafting Committee was
in effect charged with theduty of preparing a Constitution in accordance with thedecisions of the Constituent Assembly on the reports made bythe various Committees appointed by it such as the UnionPowers Committee, the Union Constitution Committee, theProvincial Constitution Committee and the Advisory Committeeon Fundamental Rights, Minorities, Tribal Areas, etc. TheConstituent Assembly had also directed that in certainmatters the provisions contained in the Government of IndiaAct, 1935, should be followed. Except on points which arereferred to in my letter of the 21st February 1948 in whichI have referred to the departures made and alternativessuggested by the Drafting Committee, I hope the Drafting Committee will be found to have faithfully carried out thedirections given to it.
The Draft Constitution as it has emerged from theDrafting Committee is a formidable document. It contains 315Articles and 8 Schedules. It must be admitted that theConstitution of no country could be found to be so bulky asthe Draft Constitution. It would be difficult for those whohave not been through it to realize its salient and specialfeatures.
The Draft Constitution has been before the public foreight months. During this long time friends, critics andadversaries have had more than sufficient time to expresstheir reactions to the provisions contained in it. I daresay some of them are based on misunderstanding andinadequate understanding of the Articles. But there thecriticisms are and they have to be answered.
For both these reasons it is necessary that on a motionfor consideration I should draw your attention to thespecial features of the Constitution and also meet thecriticism that has been levelled against it.
Before I proceed to do so I would like to place on thetable of the House Reports of three Committees appointed bythe Constituent Assembly *(1) Report of the Committee onChief Commissioners' Provinces (?)(2) Report of the ExpertCommittee on Financial Relations between the Union and theStates, and (??)(3) Report of the Advisory Committee onTribal Areas, which came too late to be considered by thatAssembly though copies of them have been circulated toMembers of the Assembly. As these reports and therecommendations made therein have been considered by theDrafting Committee it is only proper that the House shouldformally be placed in possession of them.
Turning to the main question. A student ofConstitutional Law if a copy of a Constitution is placed inhis hands is sure to ask two questions. Firstly what is theform of Government that is envisaged in the Constitution;and
* Appendix A. (?) Appendix B. (??) Appendix C (1 to 3).
secondly what is the form of the Constitution? For these arethe two crucial matters which every Constitution has to dealwith. I will begin with the first of the two questions.
In the Draft Constitution there is placed at the headof the Indian Union a functionary who is called thePresident of the Union. The title of this functionaryreminds one of the President of the United States. Butbeyond identity of names there is nothing in common betweenthe form of Government prevalent in America and the form ofGovernment proposed under the Draft Constitution. TheAmerican form of Government is called the Presidentialsystem of Government. What the Draft Constitution proposesis the Parliamentary system. The two are fundamentallydifferent.
Under the Presidential system of America, the Presidentis the Chief head of the Executive. The administration isvested in him. Under the Draft Constitution the Presidentoccupies the same position as the King under the EnglishConstitution. He is the head of the State but not of theExecutive. He represents the Nation but does not rule theNation. He is the symbol of the nation. His place in theadministration is that of a ceremonial device on a seal bywhich the nation's decisions are made known. Under theAmerican Constitution the President has under himSecretaries in charge of different Departments. In likemanner the President of the Indian
Union will have under himMinisters in charge of different Departments of administration. Here again there is a fundamental differencebetween the two. The President of the United States is notbound to accept any advice tendered to him by any of hisSecretaries. The President of the Indian Union will begenerally bound by the advice of his Ministers. He can donothing contrary to their advice nor can he do any thingwithout their advice. The President of the United States candismiss any Secretary at any time. The President of theIndian Union has no power to do so long as his Ministerscommand a majority in Parliament.
The Presidential system of America is based upon theseparation of the Executive and the Legislature. So that thePresident and his Secretaries cannot be members of theCongress. The Draft Constitution does not recognise thisdoctrine. The Ministers under the Indian Union are membersof Parliament. Only members of Parliament can becomeMinisters. Ministers have the same rights as other membersof Parliament, namely, that they can sit in Parliament, takepart in debates and vote in its proceedings. Both systems ofGovernment are of course democratic and the choice betweenthe two is not very easy. A democratic executive mustsatisfy two conditions - (1) It must be a stable executiveand (2) it must be a responsible executive. Unfortunately ithas not been possible so far to devise a system which canensure both in equal degree. You can have a system which cangive you more stability but less responsibility or you canhave a system which gives you more responsibility but lessstability. The American and the Swiss systems give morestability but less responsibility. The British system on theother hand gives you more responsibility but less stability.The reason for this is obvious. The American Executive is anon-Parliamentary Executive which means that it is notdependent for its existence upon a majority in the Congress,while the British system is a Parliamentary Executive whichmeans that it is not dependent for its existence upon amajority in the Congress, while the British system is aParliamentary Executive which means that it is dependentupon a majority in Parliament. Being a non-ParliamentaryExecutive, the Congress of the United States cannot dismissthe Executive. A Parliamentary Government must resign themoment it loses the confidence of a majority of the membersof Parliament. Looking at it from the point of view ofresponsibility, a non-Parliamentary Executive beingindependent of parliament tends to be less responsible tothe Legislature, while a Parliamentary Executive being moredependent upon a majority in Parliament become moreresponsible. TheParliamentary system differs from a non-Parliamentary systemin as much as the former is more responsible than the latterbut they also differ as to the time and agency forassessment of their responsibility. Under the non-Parliamentary system, such as the one that exists in theU.S.A., the assessment of the responsibility of theExecutive is periodic. It is done by the Electorate. InEngland, where the Parliamentary system prevails, theassessment of responsibility of the Executive is both dailyand periodic. The daily assessment is done by members ofParliament, through questions, Resolutions, No-confidencemotions, Adjournment motions and Debates on Addresses.Periodic assessment is done by the Electorate at the time of the election which may take place every five years orearlier. The Daily assessment of responsibility which is notavailable under the American system is it is felt far moreeffective than the periodic assessment and far morenecessary in a country like India. The Draft Constitution inrecommending the Parliamentary system of Executive haspreferred more responsibility to more stability.
So far I have explained the form of Government underthe Draft Constitution. I will now turn to the otherquestion, namely, the form of the Constitution.
Two principal forms of the Constitution are known tohistory - one is called Unitary and the other Federal. Thetwo essential characteristics of
a Unitary Constitution are:(1) the supremacy of the Central Polity and (2) the absenceof subsidiary Sovereign polities. Contrariwise, a FederalConstitution is marked: (1) by the existence of a Centralpolity and subsidiary polities side by side, and (2) by eachbeing sovereign in the field assigned to it. In other words.Federation means the establishment of a Dual Polity. TheDraft Constitution is, Federal Constitution inasmuch as itestablishes what may be called a Dual Polity. This DualPolity under the proposed Constitution will consist of theUnion at the Centre and the States at the periphery eachendowed with sovereign powers to be exercised in the fieldassigned to them respectively by the Constitution. This dualpolity resembles the American Constitution. The Americanpolity is also a dual polity, one of it is known as theFederal Government and the other States which correspondrespectively to the Union Government and the StatesGovernment of the Draft Constitution. Under the AmericanConstitution the Federal Government is not a mere league of the States nor are the States administrative units oragencies of the Federal Government. In the same way theIndian Constitution proposed in the Draft Constitution isnot a league of States nor are the States administrativeunits or agencies of the Union Government. Here, however,the similarities between the Indian and the AmericanConstitution come to an end. The differences thatdistinguish them are more fundamental and glaring than thesimilarities between the two.
The points of difference between the AmericanFederation and the Indian Federation are mainly two. In theU.S.A. this dual polity is followed by a dual citizenship.In the U.S.A. there is a citizenship of the U.S.A. But thereis also a citizenship of the State. No doubt the rigours ofthis double citizenship are much assuaged by the fourteenthamendment to the Constitution of the United States whichprohibits the States from taking away the rights, privilegesand immunities of the citizen of the United States. At thesame time, as pointed out by Mr. William Anderson, incertain political matters, including the right to vote andto hold public office, States may and do discriminate infavour of their own citizens. This favoritism goes evenfarther in many cases. Thus to obtain employment in theservice of a State or local Government one is in most placesrequired to the be a local resident or citizen. Similarly inthe licensing of persons for the practice of such publicprofessions as law and medicine, residence or citizenship inthe State is frequently required; and in business wherepublic regulation must necessarily bestrict, as in the sale of liquor, and of stocks and bonds,similar requirements have been upheld.
Each State has also certain rights in its own domainthat it holds for the special advantage of its own citizens.Thus wild game and fish in a sense belong to the State. It is customary for the States to charge higher hunting andfishing license fees to non-residents than to its owncitizens. The States also charge non-residents highertuition in State Colleges and Universities, and permit onlyresidents to be admitted to their hospitals and asylumsexcept in emergencies.
In short, there are a number of rights that a State cangrant to its own citizens or residents that it may and doeslegally deny to non-residents, or grant to non-residentsonly on more difficult terms than those imposed onresidents. These advantages, given to the citizen in his ownState, constitute the special rights of State citizenship.Taken all together, they amount to a considerable differencein rights between citizens and non-citizens of the State.The transient and the temporary sojourner is everywhereunder some special handicaps.
The proposed Indian Constitution is a dual polity witha single citizenship. There is only one citizenship for thewhole of India. It is Indian citizenship. There is no Statecitizenship. Every Indian has the same rights ofcitizenship, no matter in what State he resides.
The dual polity of the proposed Indian Constitutiondiffers
from the dual polity of the U.S.A. in anotherrespect. In the U.S.A. the Constitutions of the Federal andthe States Governments are loosely connected. In describingthe relationship between the Federal and State Government inthe U.S.A., Bryce has said:
"The Central or national Government and the StateGovernments may be compared to a large building and a set ofsmaller buildings standing on the same ground, yet distinctfrom each other."
Distinct they are, but how distinct are the StateGovernments in the U.S.A. from the Federal Government? Someidea of this distinctness may be obtained from the followingfacts:
1. Subject to the maintenance of the republican form ofGovernment, each State in America is free to make its ownConstitution.
2. The people of a State retain for ever in theirhands, altogether independent of the National Government,the power of altering their Constitution.
To put it again in the words of Bryce:
"A State (in America) exists as a commonwealth byvirtue of its own Constitution, and all State Authorities,legislative, executive and judicial are the creatures of,and subject to the Constitution."
This is not true of the proposed Indian Constitution. NoStates (at any rate those in Part I) have a right to frameits own Constitution. The Constitution of the Union and of the States is a single frame from which neither can get outand within which they must work.
So far I have drawn attention to the difference betweenthe American Federation and the proposed Indian Federation.But there are some other special features of the proposedIndian Federation which mark it off not only from theAmerican Federation but from all other Federations. Allfederal systems including the American are placed in a tightmould of federalism. No matter what the circumstances, itcannot change its form and shape. It can never be unitary.On the other hand the Draft Constitution can be both unitaryas well as federal according to the requirements of time andcircumstances. In normal times, it is framed to work as afederal system. But in times of warit is so designed as to make it work as though it was aunitary system. Once the President issues a Proclamationwhich he is authorised to do under the Provisions of Article275, the whole scene can become transformed and the Statebecomes a unitary state. The Union under the Proclamationcan claim if it wants (1) the power to legislate upon anysubject even though it may be in the State list, (2) thepower to give directions to the States as to how they shouldexercise their executive authority in matters which arewithin their charge, (3) the power to vest authority for anypurpose in any officer, and (4) the power to suspend thefinancial provisions of the Constitution. Such a power ofconverting itself into a unitary State no federationpossesses. This is one point of difference between theFederation proposed in the Draft Constitution, and all otherFederations we know of.
This is not the only difference between the proposedIndian Federation and other federations. Federalism isdescribed as a weak if not an effete form of Government.There are two weaknesses from which Federation is alleged tosuffer. One is rigidity and the other is legalism. Thatthese faults are inherent in Federalism, there can be nodispute. A Federal Constitution cannot but be a writtenConstitution and a written Constitution must necessarily bea rigid Constitution. A Federal Constitution means divisionof Sovereignty by no less a sanction than that of the law of the Constitution between the Federal Government and theStates, with two necessary consequences (1) that anyinvasion by the Federal Government in the field assigned tothe States and vice versa is a breach of the Constitutionand (2) such breach is a justiciable matter to be determinedby the Judiciary only. This being the nature of federalism,a federal Constitution have been found in a pronounced formin the Constitution of the United States of America.
Countries which have adopted Federalism at a later datehave attempted to reduce the disadvantages
following fromthe rigidity and legalism which are inherent therein. Theexample of Australia may well be referred to in this matter.The Australian Constitution has adopted the following meansto make its federation less rigid:
(1) By conferring upon the Parliament of the Commonwealth large powers of concurrent Legislation and few powers of exclusive Legislation.
(2) By making some of the Articles of the Constitution of a temporary duration to remain in force only "until Parliament otherwise provides."
It is obvious that under the Australian Constitution,the Australian Parliament can do many things, which are notwithin the competence of the American Congress and for doingwhich the American Government will have to resort to theSupreme Court and depend upon its ability, ingenuity andwillingness to invent a doctrine to justify it the exerciseof authority.
In assuaging the rigour of rigidity and legalism theDraft Constitution follows the Australian plan on a far moreextensive scale than has been done in Australia. Like theAustralian Constitution, it has a long list of subjects forconcurrent powers of legislation. Under the AustralianConstitution, concurrent subjects are 39. Under the Draft Constitution they are 37. Following the AustralianConstitution there are as many as six Articles in the Draft Constitution, where the provisions are of a temporaryduration and which could be replaced by Parliament at anytime by provisions suitable for the occasion. The biggestadvance made by the Draft Constitution over the AustralianConstitution is inthe matter of exclusive powers of legislation vested inParliament. While the exclusive authority of the AustralianParliament to legislate extends only to about 3 matters, theauthority of the Indian Parliament as proposed in the Draft Constitution will extend to 91 matters. In this way theDraft Constitution has secured the greatest possibleelasticity in its federalism which is supposed to be rigidby nature.
It is not enough to say that the Draft Constitutionfollows the Australian Constitution or follows it on a moreextensive scale. What is to be noted is that it has addednew ways of overcoming the rigidity and legalism inherent infederalism which are special to it and which are not to befound elsewhere.
First is the power given to Parliament to legislate onexclusively provincial subjects in normal times. I refer toArticles 226, 227 and 229. Under Article 226 Parliament canlegislate when a subject becomes a matter of nationalconcern as distinguished from purely Provincial concern,though the subject is in the State list, provided aresolution is passed by the Upper Chamber by 2/3rd majorityin favour of such exercise of the power by the Centre.Article 227 gives the similar power to Parliament in anational emergency. Under Article 229 Parliament canexercise the same power if Provinces consent to suchexercise. Though the last provision also exists in theAustralian Constitution the first two are a special featureof the Draft Constitution.
The second means adopted to avoid rigidity and legalismis the provision for facility with which the Constitutioncould be amended. The provisions of the Constitutionrelating to the amendment of the Constitution divide theArticles of the Constitution into two groups. In the onegroup are placed Articles relating to (a) the distributionof legislative powers between the Centre and the States, (b)the representation of the States in Parliament, and (c) thepowers of the Courts. All other Articles are placed inanother group. Articles placed in the second group cover avery large part of the Constitution and can be amended byParliament by a double majority, namely, a majority of notless than two thirds of the members of each House presentand voting and by a majority of the total membership of eachHouse. The amendment of these Articles does not requireratification by the States. It is only in those Articleswhich are placed in group one that an additional safeguardof ratification by the States is introduced.
One can therefore safely say that the Indian
Federationwill not suffer from the faults of rigidity or legalism. Itsdistinguishing feature is that it is a flexible federation.
There is another special feature of the proposed IndianFederation which distinguishes it from other federations. AFederation being a dual polity based on divided authoritywith separate legislative, executive and judicial powers foreach of the two polities is bound to produce diversity inlaws, in administration and in judicial protection. Upto acertain point this diversity does not matter. It may bewelcomed as being an attempt to accommodate the powers ofGovernment to local needs and local circumstances. But thisvery diversity when it goes beyond a certain point iscapable of producing chaos and has produced chaos in manyfederal States. One has only to imagine twenty differentlaws-if we have twenty States in the Union-of marriage, ofdivorce, of inheritance of property, family relations,contracts, torts, crimes, weights and measures, of bills andcheques, banking and commerce, of procedures for obtainingjustice and in the standards and methods of administration.Such a state of affairs not only weakens the State butbecomes intolerant to the citizen who moves from State toState only to find that what is lawful in one State is notlawful in another. The Draft Constitution has sought toforge means and methods whereby India will have Federationand at the same timewill have uniformity in all basic matters which areessential to maintain the unity of the country. The meansadopted by the Draft Constitution are three
(1) a single judiciary,
(2) uniformity-in fundamental laws, civil and criminal, and
(3) a common All-India Civil Service to man important posts.
A dual judiciary, a duality of legal codes and aduality of civil services, as I said, are the logicalconsequences of a dual polity which is inherent in afederation. In the U. S. A. the Federal Judiciary and theState Judiciary are separate and independent of each other.The Indian Federation though a Dual Polity has no DualJudiciary at all. The High Courts and the Supreme Court formone single integrated Judiciary having jurisdiction andproviding remedies in all cases arising under theconstitutional law, the civil law or the criminal law. Thisis done to eliminate all diversity in all remedialprocedure. Canada is the only country which furnishes aclose parallel. The Australian system is only anapproximation.
Care is taken to eliminate all diversity from lawswhich are at the basis of civic and corporate life. Thegreat Codes of Civil & Criminal Laws, such as the CivilProcedure Code, Penal Code, the Criminal Procedure Code, theEvidence Act, Transfer of Property Act, Laws of MarriageDivorce, and Inheritance, are either placed in theConcurrent List so that the necessary uniformity can alwaysbe preserved without impairing the federal system.
The dual polity which is inherent in a federal systemas I said is followed in all federations by a dual service.In all Federations there is a Federal Civil Service and aState Civil Service. The Indian Federation though a DualPolity will have a Dual Service but with one exception. It is recognized that in every country there are certain postsin its administrative set up which might be called strategicfrom the point of view of maintaining the standard of administration. It may not be easy to spot such posts in alarge and complicated machinery of administration. But therecan be no doubt that the standard of administration dependsupon the calibre of the Civil Servants who are appointed tothese strategic posts. Fortunately for us we have inheritedfrom the past system of administration which is common tothe whole of the country and we know what are thesestrategic posts. The Constitution provides that withoutdepriving the States of their right to form their own CivilServices there shall be an All India service recruited on anAll India basis with common qualifications, with uniformscale of pay and the members of which alone could beappointed to these strategic posts throughout the Union.
Such are the special
features of the proposedFederation. I will now turn to what the critics have had tosay about it.
It is said that there is nothing new in the Draft Constitution, that about half of it has been copied from theGovernment of India Act of 1935 and that the rest of it hasbeen borrowed from the Constitutions of other countries.Very little of it can claim originality.
One likes to ask whether there can be anything new in aConstitution framed at this hour in the history of theworld. More than hundred years have rolled over when thefirst written Constitution was drafted. It has been followedby many countries reducing their Constitutions to writing.What the scope of a Constitution should be has long beensettled. Similarly what are the fundamentals of aConstitution are recognized all over the world. Given thesefacts, all Constitutions in their main provisions must looksimilar. The only new things, if there can be any, in aConstitution framed so late in the day are the variationsmade to remove the faults and to accommodate it to the needsof the country. The charge of producing a blind copy of theConstitutions of other countries is based, I am sure, on aninadequate studyof the Constitution. I have shown what is new in the Draft Constitution and I am sure that those who have studied otherConstitutions and who are prepared to consider the matterdispassionately will agree that the Drafting Committee inperforming its duty has not been guilty of such blind andslavish imitation as it is represented to be.
As to the accusation that the Draft Constitution hasproduced a good part of the provisions of the Government ofIndia Act, 1935, I make no apologies. There is nothing to beashamed of in borrowing. It involves no plagiarism. Nobodyholds any patent rights in the fundamental ideas of aConstitution. What I am sorry about is that the provisionstaken from the Government of India Act, 1935, relate mostlyto the details of administration. I agree thatadministrative details should have no place in theConstitution. I wish very much that the Drafting Committeecould see its way to avoid their inclusion in theConstitution. But this is to be said on the necessity whichjustifies their inclusion. Grote, the historian of Greece,has said that:
"The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendency for themselves."
By constitutional morality Grote meant "a paramountreverence for the forms of the Constitution, enforcingobedience to authority acting under and within these formsyet combined with the habit of open speech, of actionsubject only to definite legal control, and unrestrainedcensure of those very authorities as to all their publicacts combined too with a perfect confidence in the bosom ofevery citizen amidst the bitterness of party contest thatthe forms of the Constitution will not be less sacred in theeyes of his opponents than in his own." (Hear, hear.)
While everybody recognizes the necessity of thediffusion of Constitutional morality for the peacefulworking of a democratic Constitution, there are two thingsinterconnected with it which are not, unfortunately,generally recognized. One is that the form of administrationhas a close connection with the form of the Constitution.The form of the administration must be appropriate to and inthe same sense as the form of the Constitution. The other isthat it is perfectly possible to pervert the Constitution,without changing its form by merely changing the form of theadministration and to make it inconsistent and opposed tothe spirit of the Constitution. It follows that it is onlywhere people are saturated with Constitutional morality suchas the one described by Grote the historian that one cantake the risk of omitting from the Constitution details of administration and leaving it for the Legislature
toprescribe them. The question is, can we presume such adiffusion of Constitutional morality? Constitutionalmorality is not a natural sentiment. It has to becultivated. We must realize that our people have yet tolearn it. Democracy in India is only a top-dressing on anIndian soil, which is essentially undemocratic.
In these circumstances it is wiser not to trust theLegislature to prescribe forms of administration. This isthe justification for incorporating them in theConstitution.
Another criticism against the Draft Constitution isthat no part of it represents the ancient polity of India.It is said that the new Constitution should have beendrafted on the ancient Hindu model of a State and thatinstead of incorporating Western theories the newConstitution should have been raised and built upon villagePanchayats and District Panchayats. There are otherswho have taken a more extreme view. They do not want anyCentral or Provincial Governments. They just want India tocontain so many village Governments. The love of theintellectual Indians for the village community is of courseinfinite if not pathetic (laughter). It is largely due tothe fulsome praise bestowed upon it by Metcalfe whodescribed them as little republics having nearly everythingthat they want within themselves, and almost independent of any foreign relations. The existence of these villagecommunities each one forming a separate little State initself has according to Metcalfe contributed more than anyother cause to the preservation of the people of India,through all the revolutions and changes which they havesuffered, and is in a high degree conducive to theirhappiness and to the enjoyment of a great portion of thefreedom and independence. No doubt the village communitieshave lasted where nothing else lasts. But those who takepride in the village communities do not care to considerwhat little part they have played in the affairs and thedestiny of the country; and why? Their part in the destinyof the country has been well described by Metcalfe himselfwho says:
"Dynasty after dynasty tumbles down. Revolutionsucceeds to revolution. Hindoo, Pathan, Mogul, Maharatha,Sikh, English are all masters in turn but the villagecommunities remain the same. In times of trouble they armand fortify themselves. A hostile army passes through thecountry. The village communities collect their little cattlewithin their walls, and let the enemy pass unprovoked."
Such is the part the village communities have played inthe history of their country. Knowing this, what pride canone feel in them? That they have survived through allvicissitudes may be a fact. But mere survival has no value.The question is on what plane they have survived. Surely ona low, on a selfish level. I hold that these villagerepublics have been the ruination of India. I am thereforesurprised that those who condemn Provincialism andcommunalism should come forward as champions of the village.What is the village but a sink of localism, a den ofignorance, narrow-mindedness and communalism? I am glad thatthe Draft Constitution has discarded the village and adoptedthe individual as its unit.
The Draft Constitution is also criticised because of the safeguards it provides for minorities. In this, theDrafting Committee has no responsibility. It follows thedecisions of the Constituent Assembly. Speaking for myself,I have no doubt that the Constituent Assembly has donewisely in providing such safeguards for minorities as it hasdone. In this country both the minorities and the majoritieshave followed a wrong path. It is wrong for the majority todeny the existence of minorities. It is equally wrong forthe minorities to perpetuate themselves. A solution must befound which will serve a double purpose. It must recognizethe existence of the minorities to start with. It must alsobe such that it will enable majorities and minorities tomerge someday into one. The solution proposed by theConstituent Assembly is to be welcomed because it is asolution which serves this twofold purpose. To diehards whohave developed a kind of
fanaticism against minorityprotection I would like to say two things. One is thatminorities are an explosive force which, if it erupts, canblow up the whole fabric of the State. The history of Europebears ample and appalling testimony to this fact. The otheris that the minorities in India have agreed to place theirexistence in the hands of the majority. In the history ofnegotiations for preventing the partition of Ireland,Redmond said to Carson "ask for any safeguard you like forthe Protestant minority but let us have a United Ireland."Carson's reply was "Damn your safeguards, we don't want to be ruled by you." No minority in India has taken this stand.They have loyally accepted the rule of the majority which isbasically a communal majority and not a political majority.It is for the majority to realize its duty not todiscriminate against minorities. Whether the minorities willcontinue or will vanish must depend upon this habit of themajority. The moment the majority loses the habit ofdiscriminating against the minority, the minorities can haveno ground to exist. They will vanish.
The most criticized part of the Draft Constitution isthat which relates to Fundamental Rights. It is said thatArticle 13 which defines fundamental rights is riddled withso many exceptions that the exceptions have eaten up therights altogether. It is condemned as a kind of deception.In the opinion of the critics fundamental rights are notfundamental rights unless they are also absolute rights. Thecritics rely on the Constitution of the United States and tothe Bill of Rights embodied in the first ten Amendments tothat Constitution in support of their contention. It is saidthat the fundamental rights in the American Bill of Rightsare real because they are not subjected to limitations orexceptions.
I am sorry to say that the whole of the criticism aboutfundamental rights is based upon a misconception. In thefirst place, the criticism in so far as it seeks todistinguish fundamental rights from non-fundamental rightsis not sound. It is incorrect to say that fundamental rightsare absolute while non-fundamental rights are not absolute.The real distinction between the two is that non-fundamentalrights are created by agreement between parties whilefundamental rights are the gift of the law. Becausefundamental rights are the gift of the State it does notfollow that the State cannot qualify them.
In the second place, it is wrong to say thatfundamental rights in America are absolute. The differencebetween the position under the American Constitution and theDraft Constitution is one of form and not of substance. Thatthe fundamental rights in America are not absolute rights isbeyond dispute. In support of every exception to thefundamental rights set out in the Draft Constitution one canrefer to at least one judgment of the United States SupremeCourt. It would be sufficient to quote one such judgment of the Supreme Court in justification of the limitation on theright of free speech contained in Article 13 of the Draft Constitution. In Gitlow Vs. New York in which the issue wasthe constitutionality of a New York "criminal anarchy" lawwhich purported to punish utterances calculated to bringabout violent change, the Supreme Court said:
"It is a fundamental principle, long established, thatthe freedom of speech and of the press, which is secured bythe Constitution, does not confer an absolute right to speakor publish, without responsibility, whatever one may choose,or an unrestricted and unbridled license that gives immunityfor every possible use of language and prevents thepunishment of those who abuse this freedom."
It is therefore wrong to say that the fundamentalrights in America are absolute, while those in the Draft Constitution are not.
It is argued that if any fundamental rights requirequalification, it is for the Constitution itself to qualifythem as is done in the Constitution of the United States andwhere it does not do so it should be left to be determinedby the Judiciary upon a consideration of all the relevantconsiderations. All
this, I am sorry to say, is a completemisrepresentation if not a misunderstanding of the AmericanConstitution. The American Constitution does nothing of thekind. Except in one matter, namely, the right of assembly,the American Constitution does not itself impose anylimitations upon the fundamental rights guaranteed to theAmerican citizens. Nor is it correct to say that theAmerican Constitution leaves it to the judiciary to imposelimitations on fundamental rights. The right to imposelimitations belongs to the Congress. The real position isdifferent from what is assumed by the critics. In America,the fundamental rights as enacted by the Constitution wereno doubt absolute. Congress, however, soon found that it wasabsolutely essential to qualify these fundamental rights bylimitations. When the question arose as to theconstitutionality of these limitations before the SupremeCourt, it was contended that the Constitution gave no powerto the United States Congress to impose such limitation, theSupreme Court invented the doctrine of police power andrefuted the advocates of absolutefundamental rights by the argument that every state hasinherent in it police power which is not required to beconferred on it expressly by the Constitution. To use thelanguage of the Supreme Court in the case I have alreadyreferred to, it said:
"That a State in exercise of its police power maypunish those who abuse this freedom by utterances inimicalto the public welfare, tending to corrupt public morals,incite to crime or disturb the public peace, is not open toquestion. . . . . "
(What the Draft Constitution has done is that insteadof formulating fundamental rights in absolute terms anddepending upon our Supreme Court to come to the rescue ofParliament by inventing the doctrine of police power, itpermits the State directly to impose limitations upon thefundamental rights. There is really no difference in theresult. What one does directly the other does indirectly. Inboth cases, the fundamental rights are not absolute.)
In the Draft Constitution the Fundamental Rights arefollowed by what are called "Directive Principles". It is anovel feature in a Constitution framed for ParliamentaryDemocracy. The only other constitution framed forParliamentary Democracy which embodies such principles isthat of the Irish Free State. These Directive Principleshave also come up for criticism. It is said that they areonly pious declarations. They have no binding force. Thiscriticism is of course superfluous. The Constitution itselfsays so in so many words.
If it is said that the Directive Principle have nolegal force behind them, I am prepared to admit it. But I amnot prepared to admit that they have no sort of bindingforce at all. Nor am I prepared to concede that they areuseless because they have no binding force in law.
The Directive Principles are like the Instrument ofInstructions which were issued to the Governor-General andto the Governors of the Colonies and to those of India bythe British Government under the 1935 Act. Under the Draft Constitution it is proposed to issue such instruments to thePresident and to the Governors. The texts of theseInstruments of Instructions will be found in Schedule IV of the Constitution. What are called Directive Principles ismerely another name for Instrument of Instructions. The onlydifference is that they are instructions to the Legislatureand the Executive. Such a thing is to my mind to bewelcomed. Wherever there is a grant of power in generalterms for peace, order and good government, it is necessarythat it should be accompanied by instructions regulating itsexercise.
The inclusion of such instructions in a Constitutionsuch as is proposed in the Draft becomes justifiable foranother reason. The Draft Constitution as framed onlyprovides a machinery for the government of the country. It is not a contrivance to install any particular party inpower as has been done in some countries. Who should be inpower is left to be determined by the people, as it must be,if the system is to satisfy the tests of
democracy. Butwhoever captures power will not be free to do what he likeswith it. In the exercise of it, he will have to respectthese instruments of instructions which are called DirectivePrinciples. He cannot ignore them. He may not have to answerfor their breach in a Court of Law. But he will certainlyhave to answer for them before the electorate at electiontime. What great value these directive principles possesswill be realized better when the forces of right contrive tocapture power.
That it has no binding force is no argument againsttheir inclusion in the Constitution. There may be adifference of opinion as to the exact place they should begiven in the Constitution. I agree that it is somewhat oddthat provisions which do not carry positive obligationsshould be placed in the midst of provisions which do carrypositive obligations. In my judgement their proper place isin Schedules III A & IV which contain Instrument ofInstructions tothe President and the Governors. For, as I have said, theyare really Instruments of Instructions to the Executive andthe Legislatures as to how they should exercise theirpowers. But that is only a matter of arrangement.
Some critics have said that the Centre is too strong.Others have said that it must be made stronger. The Draft Constitution has struck a balance. However much you may denypowers to the Centre, it is difficult to prevent the Centrefrom becoming strong. Conditions in modern world are suchthat centralization of powers is inevitable. One has onlyto consider the growth of the Federal Government in theU.S.A. which, notwithstanding the very limited powers givento it by the Constitution, has out-grown its former self andhas overshadowed and eclipsed the State Governments. This isdue to modern conditions. The same conditions are sure tooperate on the Government of India and nothing that one cando will help to prevent it from being strong. On the otherhand, we must resist the tendency to make it stronger. Itcannot chew more than it can digest. Its strength must becommensurate with its weight. It would be a folly to make itso strong that it may fall by its own weight.
The Draft Constitution is criticized for having onesort of constitutional relations between the Centre and theProvinces and another sort of constitutional relationsbetween the Centre and the Indian States. The Indian Statesare not bound to accept the whole list of subjects includedin the Union List but only those which come under Defence,Foreign Affairs and Communications. They are not bound toaccept subjects included in the Concurrent List. They arenot bound to accept the State List contained in the Draft Constitution. They are free to create their own ConstituentAssemblies and to frame their own constitutions. All this,of course, is very unfortunate and, I submit quiteindefensible. This disparity may even prove dangerous to theefficiency of the State. So long as the disparity exists,the Centre's authority over all-India matters may lose itsefficacy. For, power is no power if it cannot be exercisedin all cases and in all places. In a situation such as maybe created by war, such limitations on the exercise of vitalpowers in some areas may bring the whole life of the Statein complete jeopardy. What is worse is that the IndianStates under the Draft Constitution are permitted tomaintain their own armies. I regard this as a mostretrograde and harmful provision which may lead to thebreak-up of the unity of India and the overthrow of theCentral Government. The Drafting Committee, if I am notmisrepresenting its mind, was not at all happy over thismatter. They wished very much that there was uniformitybetween the Provinces and the Indian States in theirconstitutional relationship with the Centre. Unfortunately,they could do nothing to improve matters. They were bound bythe decisions of the Constituent Assembly, and theConstituent Assembly in its turn was bound by the agreementarrived at between the two negotiating Committees.
But we may take courage from what happened in Germany.The German Empire as founded by Bismark in
1870 was acomposite State, consisting of 25 units. Of these 25 units,22 were monarchical States and 3 were republican cityStates. This distinction, as we all know, disappeared in thecourse of time and Germany became one land with one peopleliving under one Constitution. The process of theamalgamation of the Indian States is going to be muchquicker than it has been in Germany. On the 15th August 1947we had 600 Indian States in existence. Today by theintegration of the Indian States with Indian Provinces ormerger among themselves or by the Centre having taken themas Centrally Administered Areas there have remained some20/30 States as viable States. This is a very rapid processand progress. I appeal to those States that remain to fallin line with the Indian Provinces and to become full unitsof the Indian Union on the same terms as the IndianProvinces. Theywill thereby give the Indian Union the strength it needs.They will save themselves the bother of starting their ownConstituent Assemblies and drafting their own separateConstitution and they will lose nothing that is of value tothem. I feel hopeful that my appeal will not go in vain andthat before the Constitution is passed, we will be able towipe off the differences between the Provinces and theIndian States.
Some critics have taken objection to the description ofIndia in Article 1 of the Draft Constitution as a Union ofStates. It is said that the correct phraseology should be aFederation of States. It is true that South Africa which isa unitary State is described as a Union. But Canada which isa Federation is also called a Union. Thus the description ofIndia as a Union, though its constitution is Federal, doesno violence to usage. But what is important is that the useof the word Union is deliberate. I do not know why the word'Union' was used in the Canadian Constitution. But I cantell you why the Drafting Committee has used it. TheDrafting Committee wanted to make it clear that though Indiawas to be a federation, the Federation was not the result of an agreement by the States to join in a Federation and thatthe Federation not being the result of an agreement no Statehas the right to secede from it. The Federation is a Unionbecause it is indestructible. Though the country and thepeople may be divided into different States for convenienceof administration the country is one integral whole, itspeople a single people living under a single imperiumderived from a single source. The Americans had to wage acivil war to establish that the States have no right ofsecession and that their Federation was indestructible. TheDrafting Committee thought that it was better to make itclear at the outset rather than to leave it to speculationor to dispute.
The provisions relating to amendment of theConstitution have come in for a virulent attack at the handsof the critics of the Draft Constitution. It is said thatthe provisions contained in the Draft make amendmentdifficult. It is proposed that the Constitution should beamendable by a simple majority at least for some years. Theargument is subtle and ingenious. It is said that thisConstituent Assembly is not elected on adult suffrage whilethe future Parliament will be elected on adult suffrage andyet the former has been given the right to pass theConstitution by a simple majority while the latter has beendenied the same right. It is paraded as one of theabsurdities of the Draft Constitution. I must repudiate thecharge because it is without foundation. (To know how simpleare the provisions of the Draft Constitution in respect of amending the Constitution one has only to study theprovisions for amendment contained in the American andAustralian Constitutions. Compared to them those containedin the Draft Constitution will be found to be the simplest.The Draft Constitution has eliminated the elaborate anddifficult procedures such as a decision by a convention or areferendum. The Powers of amendment are left with theLegislature Central and Provincial. It is only foramendments of specific matters - and they are only few - thatthe
ratification of the State legislatures is required. Allother Articles of the Constitution are left to be amended byParliament. The only limitation is that it shall be done bya majority of not less than two-thirds of the members ofeach House present and voting and a majority of the totalmembership of each House. It is difficult to conceive asimpler method of amending the Constitution.)
What is said to be the absurdity of the amendingprovisions is founded upon a misconception of the positionof the Constituent Assembly and of the future Parliamentelected under the Constitution. The Constituent Assembly inmaking a Constitution has no partisan motive. Beyondsecuring a good and workable constitution it has no axe togrind. In considering the Articles of the Constitution ithas no eye on getting through a particular measure. Thefuture Parliament if it met as a Constituent Assembly, itsmembers will be acting as partisans seeking to carryamendments to the Constitution to facilitate the passing ofparty measures which they have failed to get throughParliament by reason of someArticle of the Constitution which has acted as an obstaclein their way Parliament will have an axe to grind while theConstituent Assembly has none. That is the differencebetween the Constituent Assembly and the future Parliament.That explains why the Constituent Assembly though elected onlimited franchise can be trusted to pass the Constitution bysimple majority and why the Parliament though elected onadult suffrage cannot be trusted with the same power toamend it.
I believe I have dealt with all the adverse criticismsthat have been levelled against the Draft Constitution assettled by the Drafting Committee. I don't think that I haveleft out any important comment or criticism that has beenmade during the last eight months during which theConstitution has been before the public. It is for theConstituent Assembly to decide whether they will accept theconstitution as settled by the Drafting Committee or whetherthey shall alter it before passing it.
But this I would like to say. The Constitution has beendiscussed in some of the Provincial Assemblies of India. Itwas discussed in Bombay, C.P., West Bengal, Bihar, Madrasand East Punjab. It is true that in some ProvincialAssemblies serious objections were taken to the financialprovisions of the constitution and in Madras to Article 226.But excepting this, in no Provincial Assembly was anyserious objection taken to the Articles of the Constitution.No Constitution is perfect and the Drafting Committee itselfis suggesting certain amendments to improve the Draft Constitution. But the debates in the Provincial Assembliesgive me courage to say that the Constitution as settled bythe Drafting Committee is good enough to make in thiscountry a start with. I feel that it is workable, it isflexible and it is strong enough to hold the countrytogether both in peace time and in war time. Indeed, if Imay say so, if things go wrong under the new Constitution,the reason will not be that we had a bad Constitution. Whatwe will have to say is, that Man was vile. Sir, I move.
Mr. President: Maulana Hasrat Mohani has given noticeof an amendment. It was given at half-past Eleven thismorning. I will allow him to move it, particularly becauseit will have the effect, if it is lost, of blocking anothermotion of which I have got notice. Maulana Saheb, will youkindly move your amendment?
Maulana Hasrat Mohani: *[Sir, the amendment, of which Ihave given notice, is to the effect that the presentConstitution Assembly is not competent and there are threereasons why I do not regard it as competent. The first andthe most important reason is . . . . . . . . . .]
Shri B. Das (Orissa: General): Mr. President, Sir, willMaulana Sahib please read out the amendment first?
Mr. President: I will read out the amendment. Theamendment is this:
"That the Consideration of the Draft Constitution ofIndia be postponed till the election of a fresh andcompetent Constituent Assembly on the basis of jointelectorate and the formation of political rather
thancommunal parties in India."
That is the amendment.
Shri B. Das: May I rise on a point of order, Sir? Mypoint of order, is that Maulana Sahib cannot move hisnegative amendment after ...........
Mr. President: Won't you allow him to move it?
*  Translation of Hindustani speech.