CONSTITUENT ASSEMBLY OF INDIA - VOLUME VII


Tuesday, the 7th December, 1948

The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock, Mr. Vice-President (Dr. H. C. Mookherjee) in the Chair.

Mr. Vice-President (Dr. H. C. Mookherjee): We can now resume general discussion on article 15.

The Honourable Dr. B. R. Ambedkar (Bombay : General):Sir, May I request you to allow this matter to stand over for a little while?

Mr. Vice-President: Is that the wish of the House?

Honourable Members: Yes.

Article 20.

Mr. Vice-President: Then we can go to the next article,that is article 20.

The motion before the House is:

"That article 20 form part of the Constitution."

I have got a series of amendments which I shall read over. Amendment No. 613 is disallowed as it has the effect of a negative vote. Nos. 614 and 616 are almost identical;No. 614 may be moved.

The Honourable Dr. B. R. Ambedkar: Sir, I move:

"That in the beginning of article 20, the words`Subject to public order, morality and health,' be inserted."

Sir, it was just an omission. Honourable Members will see that these words also govern article 19; as a matter of fact they should also have governed article 20 because it is not the purpose to give absolute rights in these matters relating to religion. The State may reserve to itself the right to regulate all these institutions and their affairs whenever public order, morality or health require it.

Mr. Vice-President: I can put amendment No. 616 to the vote if it is to be pressed. Has any Member anything to say on the matter?

(Amendment No. 616 was not moved.)

Mr. Vice-President: There is, I understand, anamendment to amendment No. 614 in List No. VI. Is that amendment to amendment being moved?

Mr. Naziruddin Ahmad (West Bengal: Muslim): Yes, Sir, Imove:

"That for amendment No. 614 of the List of Amendments,the following be substituted namely:--

That article 20 be numbered as clause (1) of thatarticle and the following new clause be added at the end,namely:--

`(2) Nothing in clause (1) of this article shall affect the operation of any existing law or prevent the State from making any law for ensuring public order, public morality and public health.'"

Sir, the amendment moved by Dr. Ambedkar just now is also to the same effect. I should think that instead of the expression "subject to public order, morality and health"this expression would be better. The expression "ensuring public order etc.," is perhaps better than "subject to public order etc." This type of draftsmanship has been adopted in other places in the Constitution.

(C>(Amendments Nos. 15 and 16 in List I and Nos. 615and 617 were not moved.)

Shri Lokanath Misra (Orissa: General): Sir, I move:

"That in clause (a) of article 20, after the word`maintain' the words `manage and administer' be inserted."

One who has a right to establish and maintain an institution for religious and charitable purposes ought also to have the right, unless such institutions offend against public order and morality or any established law, to manage and administer the same. Otherwise, there will be difficulty.

Syed Abdur Rouf (Assam: Muslim): Sir, I beg to move:

"That in clause (a) of article 20, for the words`religious and charitable purposes', the words `religious,charitable and educational purposes' be substituted."

We are dealing here with a subject which empowers religious denominations to have the right to establish and maintain institutions for religious and charitable purposes only. Religious education is as important as religion itself. Without religious education the charitable purposes or religious purposes would lose all meaning. Therefore, I hope my amendment would be accepted by the House.

(Amendments Nos. 17 of list 1, 620 and 622 were not moved.)

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

"That in clause (c) of article 20, for the words `and immovable property' the words `immovable and incorporeal property' be substituted."

Clause (c) provides for

acquisition of movable and immovable property. It does not mention incorporeal property.Copyright is incorporeal property. It is neither movable nor immovable. The amendment would perhaps fill in a lacuna.

(Amendments Nos. 623 to 625 were not moved.)

Mr. Vice-President: Article 20 is for general discussion.

Shri Jaspat Roy Kapoor: (United Provinces: General):Mr. Vice-President, Sir, while I accord my support to article 20, I must confess that I do not feel happy over the phraseology of it or the scope of it. I very much wish that in clause (a) thereof, the words `and charitable', were deleted. The article then should have read:

"Every religious denomination or any section thereof shall have the right: (a) to establish and maintain institutions for religious purposes." Sir having conceded the right of free profession of religion and propagation of religion, surely, it is a necessary corollary that the right to establish and maintain religious institutions should be also conceded. But to concede it as a fundamental right that any religious denomination or section thereof can maintain a charitable institution exclusively for its own benefit and deny its benefit to any other section of society is certainly repugnant to the idea of haternity and common nationality.

Let us clearly understand what the implications, the mischievous implications I should say, of this article are.It means that I, as a member of the Hindu religious community or even as a member of a section of that community called Khatris, have the right, derive the right under this article 20, to establish say piao or place where water is served to all. Under this article. I will have it as a fundamental right to establish a piao and serve therein water only to the Khatris or to other caste Hindus and not to other sections of the Hindu community, much less to Muslims or Christians. This means that there can be aChristian, hospital where only Christians may be admitted and a non-Christian, however badly he might need medical service and even if he were lying at the door of the Christian hospital dying there, may be refused admission in the Christian hospital. It means that the upper class Hindus shall have it as a fundamental right to establish a piao,refusing at the same time water to members of the Scheduled castes. It means, Sir, that the Muslims in a Muslim `sabil' may impose restrictions for the service of water to non-Muslims. I have been always told that serving free water to all without distinction of caste or creed is a very religious act according to Islamic law. I wonder if my Muslim friends want that they should be conceded this as a fundamental right. I wonder if my depressed or Scheduled caste friends would like that the upper caste Hindus should have this as a fundamental right that they can establish a piao where members of the Scheduled castes shall be denied water. I am sure neither my Muslim friends nor my Scheduled caste friends want to concede this as a fundamental right.

One of my Christian friends, Sir, for whom I have very great respect, and I may also say, very great affection-he may not be knowing it--told me the other day that a particular section of the Christians would like to have a hospital of their own where at the time of their death or at their last moments they may get the service of Christian priests. Sir. it is not my intention that they should not have this privilege and facility. They can have this privilege and facility not only in their own hospitals but in every hospital in the country. The question is not whether they should have this facility in their own hospital or in other hospitals; but it is whether it should be open to a Christian hospital to say that no non-Christians shall be allowed entry therein. I am not a Christian; but I have very great respect for the Christian religion, and I make bold to say that such an act on the part of any Christian management would certainly be a non-Christian act. Why then,Sir, should such a right be conceded as a fundamental right?

Our society already stands

disunited today. There are so many castes and creeds and communities in it. We have been tolerating these communal institutions and we may have to tolerate them for sometime more. The deletion of the words `and charitable', let there be no mistake about it,will not take away the existing right or the existing concession. This is not a right. This is rather a concession to the weakness of the society. So, let this concession continue until society as a whole voluntarily realises that this is something which is against the interests of the country as a whole, something which is against the unity of the Nation and something which is against the idea of fraternity and brotherhood. Until Society voluntarily realises it. let the concession remain. But the question is,must this right or concession hereafter be recognised by a statutory law, and not only recognised as a right. but be granted also the sanctity, the glory and the dignity of fundamental right?

I would appeal to the honourable Members to realise the grave implications of the existence of the words `and charitable'. I will quote an instance from my own place which may perhaps bring home to honourable Members the gravity of the situation that might arise after we have passed the present article in its present form. In my place,a number of years ago, an upper class Hindu established apiao in a particular locality and service of water there into the Scheduled castes was prohibited. This led to great resentment amongst us, particularly amongst Congressmen.They approached the orthodox section of the Hindu community and entreated them to remove this restriction. The orthodox people refused to agree. Ultimately, as a result thereof,there was a communal riot. Thereafter, partly by our appeal and partly by pressure, we could make them withdraw those restrictions. But, Sir, if the Constituent Assembly includes in the list of Fundamental Rights this very restriction or right of exclusion as a fundamental right, these orthodox people will fling this sacred book of our Constitution at our face and say: "How foolishly you are talking after giving us the right to impose such restrictions in respect of our piao"

The highest body in the land, the sovereign constitution making body of the land having conceded it as a fundamental right, what business have you now to tell us that we are in the wrong and that we should throw open our piaos to all sections of the Hindu community? Therefore,Sir, I would respectfully appeal to this House to agree to delete these words.

I am told, Sir, that the retention of these words is in the interests of the minor ity communities. I fail to see how it is in the interests of any minor ity community. I fail to see how it is in the interests of even the major ity community. The minor ity communities, it will be readily conceded, are not so rich as the major ity community.Probably all the minor ities put together are not so rich as the major ity communities. So the major ity community, if it so wishes, can establish charitable institutions in much larger numbers than the minor ity communities and if such major ity charitable institutions restrict their use, their benefit, to the members of the major ity community, surely it is the minor ity communities who will suffer and not the major ity community, though the major ity may have this thingas a black spot on their face; but that is another thing. I would, therefore, appeal to the members of the minor ity communities here to agree to the deletion of these words. If they agree to the deletion of these words, I am sure the House will unanimously agree to delete these words and improve this article. If they do not agree to this, we must accept this article as it stands as we must not do anything which is not agreeable and acceptable to them. With these words, Sir, I support article 20, not of course with any great pleasure but with some regret and disappointment,making a last minute appeal to the House to agree to the deletion of these words. If need be, Sir, I would appeal to my honourable Friend, Dr.

Ambedkar, to postpone the final disposal of this clause and consult members of the minor ity communities whose champion he undoubtedly is whether they are agreeable to the deletion of these words and then amend the article accordingly.

One more point, Sir, one more reason for suggesting the deletion of these words, though this may not be of any great strength. Sir, at the last moment I am urging this poor argument because it does sometimes happen that when strong arguments fail, weak and poor arguments prevail. The headingof this sub-chapter is "Rights Relating to Religion" and surely, Sir, these words "and charitable" do not properly fit in this chapter at all. If for no other reason. at least on the grounds of technicality, I would appeal to my honourable Friend, Dr. Ambedkar, to agree to the deletion of these words. With these words. Sir, I support article 20.

Mr. Tajamul Husain (Bihar: Muslim): Mr. Vice-President,Sir, I had no intention of speaking on this article but Ifind that my honourable Friends who have just spoken have been appealing to the minor ities. I want to tell the House, Sir, that there is no minor ity in this country. I do not consider myself a minor ity. In a secular State, there is no such thing as minor ity. I have got the same rights, status and obligations as anybody else.I wish those who consider themselves as the major ity community would forget that there is any minor ity today in this country. (An honourable member: Hear, hear.) Now, Sir,with regard to article 20, as far as I understood, my honourable Friend the last speaker wants clause (a) to be deleted. I will just read clause (a) of article 20:--

`Every religious denomination or any section thereof shall have the right-

(a) to establish and maintain institutions forreligious and charitable purposes."

Now, Sir, this article gives the right to everybody-it does not matter to what religion he belongs or what religion he professes-to have his own private religious institutions If he so wants. If a person has got money and at the time of his death he wants to make a will and dedicate his property to some charitable purpose or religious purpose of a private nature, I do not think, Sir, that people should object to it. After all, as I have said already, religion is a private matter between the individual and his Creator, and if I,Sir, wish that my property should be utilised for a particular purpose after my death, I see no reason why the State should interfere with it. It is not a matter of public interest. After all it is a private individual who wishes that his religion should be observed in a particular manner.

Kazi Syed Karimuddin (C. P. and Berar: Muslim): What does the honourable Member have in his mind, a private or public institution?

Mr. Tajamul Husain:

"Every religious denomination or any section thereof shall have the right-

(a) to establish and maintain institutions for religious and charitable purposes;"

These are the exact words in the article. I want these words to remain where they are. I do not want these words to be deleted.

The Honourable Dr. B. R. Ambedkar: I have nothing to say.

Mr. Vice-President: I will now put the amendments, one by one, to vote.

The question is:

"That in the beginning of article 20, the words"Subject to public order, morality and health," be inserted."

The amendment was adopted.

Mr. Vice-President: The question is:

"That article 20 be numbered as clause (1) of that article and the following new clause be added at the end,namely:-

(2) Nothing in clause (1) of this article shall affect the operation of any existing law or prevent the State from making any law for ensuring public order, public morality and public health.'"

The amendment was negatived.

Mr. Vice-President: The question is:

"That in clause (a) of article 20, after the word"maintain" the words "manage and administer" be inserted."

The amendment was negatived.

Mr. Vice-President: The question is:

"That in clause (a) of article 20, for the words`religious and charitable

purposes' the words `religious,charitable and educational purposes' be substituted."

The amendment was negatived.

Mr. Vice-President: The question is:

"That in clause (c) of article 20, for the words "and immovable property" the words `immovable and incorporeal property' be substituted."

The amendment was negatived.

Mr. Vice-President: The question is:

That article 20, as amended, be adopted.

The motion was adopted.

Article 20, as amended, was added to the Constitution

New Article 20-A

Mr. Vice-President: Now we come to amendment No. 626 byMr. Mahboob Ali Baig. I disallow this because two similaramendments have been rejected by this House. These twoamendments are No. 612 and No. 440. We now pass on toarticle 21.

Article 21

Mr. Vice-President: We shall consider the amendmentsone by one.

Amendment No. 627 is out of order as it has the effectof a negative vote.

(Amendments Nos. 628, 629, 630, 634, and 631 were notmoved.)

Amendment No. 632. The first part of this amendmentstanding in the name of Syed Abdur Rouf is disallowed asbeing nothing but a verbal amendment. So far as the secondpart is concerned, I can allow it to be moved.

Syed Abdur Rouf: Sir, I beg to move:

"That in article 21, after the word `which' the words`wholly or partly' be inserted."

If my amendment is accepted, Sir, the article will readlike this: "No person may be compelled to pay any taxes,.the proceeds of which wholly or partly are specificallyappropriated in payment of expenses for the promotion ormaintenance of any particular religion or religiousdenomination." If my amendment is not accepted, a person maybe compelled to pay taxes, the proceeds of which will partlybe appropriated for religious purposes. This is certainlynot desirable, and I think that unless my amendment isaccepted, the very intention of this article will befrustrated. Therefore, Sir, I hope that my amendment will beaccepted by the House.

Mr. Naziruddin Ahmad: Mr. Vice-President, Sir, I beg to move:

"That in article 21, for the words `the proceeds ofwhich are' the words `on any income which is' be substituted."

Sir, the purpose of the previous amendment will beserved by my amendment and they must be considered together.The article says "No person may be compelled to pay anytaxes the proceeds of which etc." If my amendment isaccepted, it would read like this: "No person may becompelled to pay any taxes on any income etc." Sir, taxesare paid not on the proceeds, but on the income. Proceedsrather imply the gross receipts. Taxes do not apply toproceeds, but really to income. In fact, there is thefurther limitation of this `proceeds' which are specificallyappropriated for payment of the expenses for the promotion or maintenance of any particular religiousor charitable denomination. My point is that you do notappropriate the gross proceeds of any undertaking or anyproperty to any religious or charitable denomination. Thereason is that what you appropriate for religion orreligious denomination is the income, that is, the grossreceipts minus collection expenses and other things. Isubmit, Sir, that the word `income' is the more appropriateword, and if this is accepted, the difficulty pointed by Mr.Syed Abdur Rouf, while moving his amendment No. 632, willalso be met. In fact, he and I felt that there is somedifficulty in the context and the amendments are directed towards the same purpose.

(Amendments nos. 635 and 636 were not moved.)

Mr. Vice-President: The article is now open for generaldiscussion.

Shri Guptanath Singh (Bihar: General): *[Mr. Vice-President, I am surprised at the fact that today we aregoing to perpetuate by article 21 the innumerable atrocitiesthat have been perpetrated in India in the name of religion.It states that the property, which a person holds in thename of religious institutions, would be exempted from alltaxation. I hold that the property in India which stands in the name of some religion or some religious institutionssuch as temples, mosques and churches, is extremelydetrimental to the interests of

the country. That propertyis of no use to the Society. I would like that in ourSecular State such type of folly be ended once for all inour country. The State is above all gods. It is the God ofgods. I would say that a State being the representative of the people, is God himself. Therefore it should certainlyhave the right of taxing every type of property. Therefore,the property held in the name of religion and by religiousinstitutions should certainly be taxed. I fear that if this article is not deleted from the Constitution, the major ityof capitalists and Zamindars will try to donate theirproperty for the advancement of religion and posing as thechampions of religion would continue to perpetrate highhandedness in the name of religion. Our state willbecome bankrupt as a consequence of the drying up of thesource of taxation. I, therefore, pray that we should notmake this constitution in such a way as to benefit only theMullas, the Pandits and the Christian priests. I do notthink I have any thing more to add what I have already saidin this connection.]

Shri M. Ananathasayanam Ayyangar (Madras: General):Sir, I oppose both the amendments. The article says that notax shall be imposed the proceeds of which will bespecifically ear-marked for supporting any religiousdenomination. Syed Abdur Rouf's amendment desires that weshould use the words "wholly or partly". I believe the wholeincludes the part, and therefore, that amendment isunnecessary. The other amendment moved by Mr. NaziruddinAhmad (amendment No. 639) absolutely is inconsistent with the object of the article. The article says that unlike in the past where particular kings imposed a kind of tax togive importance to the religion which they professed, thearticle is intended to see that no such tax is imposed inany name or form, the proceeds of which will be ear-markedfor encouraging any particular denomination or sect.

Mr. Naziruddin Ahmad, on the other hand, wants by hisamendment to exempt the income of all temples and religiousendowments. This has no bearing at all to the matter onhand. What article 21 requires is that no tax shall beimposed by the State the proceeds of which are to beappropriated for the maintenance of any particular religiousdenomination. I request that the article may be allowed tostand as it is. In the past we have had various Kingsbelonging to various denominations levying taxes in variousshapes and forms. The Muhammadan Kings recovered aparticular kind of tax for sup-

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

* [] Translation of Hindustani speech.

proting Mosques. The Christians did not do so in thiscountry. The ancient Hindu Kings collected a cess called theTiruppani cess for supporting a particular temple or templesin my part of the country. In a secular State where theState is expected to view all denominations in the samelight, and not give encouragement to any one particulardenomination at the expense of others, this provision isabsolutely necessary. This is part and parcel of the Charterof liberty and religious freedom to see that no particulardenomination is given any advantage over anotherdenomination. This article is very important and itsafeguards the interests of all minor ities and religiouspursuits. I therefore, appeal to the members who have movedthese amendments not to press them and to accept the articleas it stands.

The Honourable Dr. B. R. Ambedkar: I do not acceptamendment No. 632 or amendment No. 633.

Shri H. J. Khandekar: (C. P. and Berar: General): Sir,I want to speak.

Mr. Vice-President: I am afraid it is too late. I shallnow put the amendments to the vote.

The question is:

"That in article 21, after the word "which" the words"wholly or partly" be inserted."

The amendment was negatived.

Mr. Vice-President: The question is:

"That in article 21, for the words "the proceeds ofwhich are" the words "on any income which is" be substituted."

The amendment was negatived.

Mr. Vice-President: The question is:

"That article 21 stand part of the Constitution."

The motion was

adopted.

Article 21 was added to the Constitution.

Article 22.

Mr. Vice-President: The motion before the House is:

"That article 22 form part of the Constitution."

The first amendment is No. 637. It is out of order asit has the effect of a negative vote. Amendment No. 638,first part, is disallowed as it has the effect of a negativevote. Amendment No. 638, second part may be moved.'

(Amendments Nos. 638 and 639 were not moved.)

Amendment No. 640. You can move only one alternative.

Mr. Mohamed Ismail Sahib (Madras: Muslim): I shall movethe first alternative, Sir.

Sir, I beg to move:

"That for article 22, the following be substituted:-

22, No person attending an educational institutionmaintained, aided or recognised by the State shall berequired to take part in any religious instruction in suchinstitution without the consent of such person if he or sheis a major or without the consent of the respective parentor guardian if he or she is a minor.'"

Sir, article 22 in the Draft Constitution as it standsputs a taboo on all religious instruction being given inState-aided schools or State educational institutions. It is not necessary for a secular State to ban religious education in State institutions. Sir, it will not be in contraventionof the neutrality or the secular nature of the State toimpart religious instruction. It will be going against thespirit of the Secular State if the State compels thestudents or pupils to study a religion to which they do notbelong. But, if the pupils or their parents want thatreligious instruction should be given in the institutions in their own religion, then, it is not going against thesecular nature of the State and the State will not beviolating the neutrality which it has avowedly taken in thematter of religion. My amendment purports to make a leewayin case religious instruction is required to be given in theschools; it puts the matter in a negative form. It does notsay that religious instruction must be imparted at all costsin education institutions; it only says, no compulsion shallbe put upon anybody to study in any school, a religion, towhich he or she does not belong. Therefore, my amendment isquite harmless and it does not go in any way against thespirit of the Constitution.

Sir, the necessity of imparting religious instructionhas been recognised in many countries which are non-religious in nature. They have made religious instructioneven compulsory, that is, compulsory with regard to thosepeople who want such instruction to be given to the childrenin the religion to which they belong. They have not thoughtit fit to ban religion altogether from their Secular State.Therefore, I hold that we shall not be doing anything inviolation of the secular nature of our State if we do notban religious instruction altogether. As my amendmentproposes, we shall leave the matter to the future, to theParliament. According to my amendment, we are not sayinganything now positively about religious instructions: we areonly saying, no body shall be compelled to have religiousinstructions in a religion to which he does not belong.Whether to give religious instructions or not may be left toParliament. According to my amendment, that is my proposal,Sir.

Prof. Shibban Lal Saksena (United Prowinces: General):Mr. Vice-President, Sir, the amendment which stands in myname is further sought to be amended by me in amendment No.19 of List I. I will therefore formally move the amendmentas it is. The amendment which I had originally given isthis--

"That for article 22, the following be substituted:--

`22. The State shall not compel anyone to havereligious instruction in a religion not his own in schoolsagainst his wishes, but the State shall endeavour to developreligious tolerance and morality among its citizens byproviding suitable courses in various religions inschools.'"

To this, Sir, I have given notice of an amendment No. 19 inList I which says--

"That clauses (1) and (3) of article 22 be deleted.

I find that deletion of clause (1) is not accepted by Dr.Ambedkar but

I would like to say what I really want to sayon this.

Mr. Vice-President: What about amendment No. 20?

Prof. Shibban lal Saksena: I am not moving it. Thisgives freedom to impart religious instructions in certaineducational institutions outside its working hours. Now,Sir, what is really intended is this, that no minor itycommunity shall be compelled to have religious instructionin a religion not his own. That is the real purpose. Butalthough I fully appreciate the purpose, I find that (thisclause is worded in too general terms and it will precludethe major ity community from even imparting any religiousinstruction to their children because of the minor ities.While minor ities should not be compelled to have religiousinstructions against their wishes, they should be providedfacilities for having their religious education if thenumber of their children is sufficient. It should not beforbidden to provide religious education by the State. Now, after partition of this country, about 30to 33 crores will be the major ity community and if thesepeople want that their children should have education in their religion, they will not be able to have it if thisarticle is passed. This is not fair. What I want is thatthey should be enabled to have instruction in their religionprovided the same facilities they are prepared to afford tochildren of other denominations, if the number issufficiently large.) This is the second alternative of Mr.Mohd. Ismail's amendment but he has moved the firstalternative. The second was a good one. (This clause as itstands will really preclude the major ity from givingreligious education to their children.) For example theDistrict Board in Gorakhpur will not be able to teach Gitato children in the schools. I think this should not be so.These big scriptures of the world are really meant todevelop the morality and tolerance and they should be taughtand I do not wish that anything in the Fundamental Rightsshould forbid this. I discussed this with Dr. Ambedkar and(I have said that clauses (1) and (3) should be deleted, sothat this would prevent anybody from forcing anyinstructions against their wishes, but it would not haveprecluded the State from imparting instruction in religionto the children of various denominations if the number wassufficient.) (Clause (3) is absolutely useless.) It onlysays--

"Nothing in this article shall prevent any community ordenomination from providing religious instruction for pupilsof that community or denomination in an educationalinstitution outside its working hours."

But I want that clause (1) also should be deleted because inthat case it will be possible for the State to impartinstruction in religion, in Gita, in Sermon on the Mountetc., to the children in the schools but not force this instruction on anybody against his wishes. (So I want thatonly clause (2) should remain and it should be permissibleto the State to give instruction in religion to childrenaccording to their desire and choice and if their guardianspermit. This is what I wish but if it is not acceptable. Iam not insisting on the deletion of the first part. Butclause (3) should be deleted.) But I would request Dr.Ambedkar to see that the clause does not forbid theinstitutions in the State from giving religious instruction.This clause is too wide and should be redrafted to includethis.

Mr. Vice-President: Amendment Nos. 642 and 647 are ofsimilar import and should be considered together. No. 642may be moved.

(Amendment No. 642 was not moved.)

Amendment No. 647--Prof. K. T. Shah.

Prof. K. T. Shah (Bihar: General): Sir, I beg to move--

"That in clause (1) of article 22, after the words "inany educational institution wholly" the words "or partly" beadded."

Sir, the clause as amended would be thus--

"No religious instruction shall be provided by theState in any educational institutions wholly or partlymaintained out of State funds;".

Sir, with all the goodwill in the world I cannotunderstand the reason for this particular wording that theauthors of the original clause have adopted.

Their stressingthe word `wholly' is, in my eyes, very intriguing. If theyhad not said `wholly' and simply stated `maintained out ofpublic funds' one could have understood. But if they saythat `religious instruction is to be provided in anyinstitution completely, or wholly maintained out of Statefunds', then I begin to question what could conceivably bethe intention of the Draftsmen in putting forward theseparticular words. Is it the intention of the Draftsmen, that if every single pie of expenditure in connection with agiven institution is met exclusively out of State funds,then, and then only, should religious instruction beprohibited there?

An Honourable Member: Yes.

Prof. K. T. Shah: (If that is your intention, assomebody I hear says, then I am afraid it is impossible toagree; and I venture to submit that the principle enunciatedby the opening words would be strangely belied by thatwording. If, for instance, there are in the educationalinstitution some scholarships which come from privateendowments, so that the total bill is met as to 99 per centout of State funds, and as to 1 per cent out of theseendowments, then it could be said that it is not whollymaintained by the State; and, on the strength of that 1 percent of endowments or grant or donation, you will have toopen the door to the provision of religious instruction.) Bysuch religious instruction is, of course, generally meantDenominational Instruction, in a public institution.

Surely that could not have been and that should not beallowed to be the meaning and interpretation of a Sectionlike this. All institutions, or most of them, subject to theexception that is added by way of proviso--to which I willcome later in another amendment--all institutions or most of them are maintained wholly or partly out of public revenues,whether they are in the form of the entire bill footed bythe State, or in the shape of some grants, or in the shapeof fees, etc. received from the public by regular charge:and, as such, no public institutions, as I understand it,would be free from an incursion of any particular ReligiousInstruction of a denomination--and even, may I say of acontroversial character.

If you permit one, you will make it impossible torefuse admission to another. (That means that in a publicinstitution, any number or any section of people who arebeing educated there, if only one donor can be found foreach to endow a particular scholarship, or to provide forsome particular item of expenditure,) let us say, librarygrant, or some item of laboratory equipment, or some smalldonation for general purposes, (and couple it with thecondition that Religious Instruction shall be providedtherein for that particular sect to which the donor belongs,then I am afraid, your educational institutions will beconverted into a menagerie of faiths. There will beunexpected conflicts and controversies; and the very evilwhich you are out to stop by the opening words, (which seemto me to enshrine a sound principle), would be all the moreencouraged and supported so to say, by public countenance.)

That is a state of things, which I, for one, thoughtmust have been farthest from the intention of the draftsmen.But it seems to me, from the voice I heard a minute ago,that it is not quite as far from the intentions of thedraftsmen, as in my innocence I had assumed, and it appearsthere is some sort of ulterior motive or arriere penseewhich has guided the draftsmen in introducing the presentwording.

Speaking for myself, if not for any considerablesection of the House, (I would like entirely to dissociatethe State in India from any such interpretation as this. Ifyou desire to exclude, as I think is but right, ReligiousInstruction from public institutions maintained from commonfunds, whether they be the entire expenditure of suchinstitution, or whether they be a part only by way of agrant or by way of fees, or scholarships, or endowments of any kind met by the State out of public revenues, then itwould be absurd,--I think it would be inconsistent with thebasic principle of this constitution.

to permit ReligiousInstruction on the excuse that part of the expenditure ismet by other than State funds.)

The term "state funds" itself is very suspicious in myeyes. What exactly is meant by State funds? The draft, as Ihave complained more than once, is peculiarly defective inthat there is a woeful lack of any definitions, so that words can be used in any sense that the occasion mayrequire, or the vagaries of the interpreter might suggest.In the absence of any definition, specially in thisconnection, one is entitled to put whatever interpretationseems to one to be reasonable, to have been probablyintended by the draftsmen. And in the light of thatassumption, I feel that this clause needs amendment by theaddition of the words "wholly or partly maintained frompublic revenues or State funds."

I would not object to the words "state funds" as suchso much as I would object to the omission of the word"partly", which I think, must be inserted if this basicprinciple, if our governing ideal, is to be fully carriedout, namely, that no Religious Instruction, which is inevitably of a Denominational character, should be impartedin any public educational institution maintained wholly orpartly out of public funds.

I think, Sir, that the intrinsic commonsense, theintrinsic honesty and clearness of this amendment, are sogreat that no objection would be raised to it, and I trust I would not be disappointed in that respect.

Mr. Vice-President: Amendment No. 643, standing in thename of Sardar Hukam Singh.

Sardar Hukam Singh (East Punjab: Sikh): Sir, I beg to move--

"That in clause (1) of article 22, after the words"shall be provided" the words "or permitted" be inserted."

Sir, I am conscious that the definition of the words"the State" as given in article 7 is very comprehensive andit include all author ities whether of the Centre or of theStates, and it does include local bodies as well. Even then,I feel that the object would not be fulfilled, if we do notadd these words "or permitted" as I have proposed. We aregoing to build a secular State. The Object of this article,so far as I have understood it, is to prohibit all religiousinstructions in those institutions which are maintained bythe State. If the article were to stand as it is, then itwould mean that the State would not provide or I might say,any author ity would not provide any religious instruction insuch institutions. I presume the object is not economic; weare not safeguarding against the State spending funds onimparting religious instructions, but we are providing,rather, against imparting religious education in theseinstitutions. And in that case, our object cannot be servedunless we definitely prohibit that in these institutions.Even if no provision is made for the imparting of suchreligious education, it should also not be permitted. I maysay that the staff might take it into its head though theState has not made any provision, the imparting of suchinstruction, and might start imparting such religiousinstructions; or a particular teacher, say, might begin inhis class the imparting of such instructions. Then, so faras the article stands, it would not be offended against bythe action of the teacher or the staff. That object can onlybe achieved if we definitely ban the imparting of suchinstructions, when we are making the State a secular one.Therefore, I move that after the words "shall be provided",the words "or permitted" should be added, so that therewould be no chance for such religious instruction beingimparted in any case, institutions that are to be controlledand subsidised by the State.

Mr. Vice-President: Amendment No. 644, standing in thename of Sardar Bhopinder Singh Man.

Sardar Bhopinder Singh Man (East Punjab: Sikh): Mr.Vice-President, Sir, I beg to move:

"That in clause (1) of article 22, the word"educational" be omitted;"

and allow the sub-clause to run as follows:--

"No religious instruction shall be provided by theState in any institution wholly maintained out of Statefunds:" and thus keep up the strict neutrality of the

State so faras religious matters are concerned, and to maintain thesecular character of the State. Sir, I, as a member of the minor ity community, wholeheartedly welcome it and I believethat the State should function along that principle laiddown in this article, and that in all spheres of Stateactivity, the members of the minor ity community shall beleft no cause of apprehension or fear and that it willhappen very soon. However, Sir, I wonder why this article ispermitted to remain so incomplete, because only educationalinstitutions are mentioned here. Probably educationalinstitutions were mentioned because in the popular opinion,they are the only places where religious instructions aregiven. But I may point out that there are other places orinstitutions which are completely and wholly maintained byState funds and which in modern times can be used as avehicle for religious or communal propaganda veryeffectively. To mention one such vehicle, there is theradio. We all know how effectively it can be used as aplatform for religious propaganda day. I want that thisarticle should conform to its own logical conclusion andthat it should be made complete, and that religious orcommunal propaganda should be prohibited in all state-ownedinstitutions. Otherwise, to me it looks useless that youshould prohibit communal or religious propaganda in oneinstitution but allow it to go full blast in other spheresof activity. For example, take the Army itself; religiousand communal propaganda can very easily be imparted there. I want that religious instruction should expressly beprohibited not only in educational institutions but in allinstitutions which are maintained by the State.

Mr. Vice-President: Amendment No. 645 standing in thename of Dr. Ambedkar.

The Honourable Dr. B. R. Ambedkar: Sir, I move:

"That in clause (1) of article 22, the words "by theState" be omitted."

The object of this amendment is to remove a possibilityof doubt that might arise. If the words "by the State"remain in the draft as it now stands, it might be construedthat this article permits institutions other than the Stateto give religious instruction. The underlying principle ofthis article is that no institution which is maintainedwholly out of State funds shall be used for the purpose ofreligious instruction irrespective of the question whetherthe religious instruction is given by the State or by anyother body.

Mr. Tajamul Husain: Mr. Vice-President, Sir, I move:

"That in clause (1) of article 22, the words "by theState" and the words "wholly maintained out of State funds"be deleted."

Clause (1) of this article reads thus:--

"No religious instruction shall be provided by theState in any educational institution wholly maintained outof State funds."

This means that religious instruction can be provided in anyeducational institution which is partly maintained out ofState funds or which are not maintained out of State fundsat all. The result would be that all private and aidedschools and colleges and pathshalas and maktabs will impartreligious instruction to boys and girls. I submit that thisshould not be allowed in a secular State. Much has been saI don this subject by the previous speaker and I do not wish togo into detail, but the only thing I would like to say is,what is the use of calling India a secular State if youallow religious instruction to be imparted to young boys andgirls? By this article you do not prevent if parents want togive religious instruction to it. In fact, every parentgives his child education well before he goes to school;generally what happens in this country is that all religious instruction isgiven to a boy before he attends the school; and that shouldbe done, it is the duty of the parents to educate theirchildren according to their own ways. But I object to apublic institution, whether maintained by Government orpartly maintained by Government, imparting religiousinstruction.

With these words, I commend my amendment to the House.

Mr. Vice-President: Amendment No. 648 is disallowed asbeing verbal.

(Amendments

Nos. 649, 650 and 652 were not moved.)

Amendment No. 651 is disallowed as being verbal.

There is amendment No. 653 standing in the name ofProf. K. T. Shah.

Prof. K. T. Shah: Mr. Vice-President, Sir, I beg to move:

"That at the end of the proviso to clause (1) ofarticle 22, the following be inserted:

`and the income from which trust or endowment issufficient to defray the entire expenditure of suchinstitution.'"

The proviso as amended would read:--

"Provided that nothing in this clause shall apply to aneducational institution which is administered by the Statebut has been established under an endowment or trust whichrequires that religious instruction shall be imparted insuch institution and the income from which trust orendowment is sufficient to defray the entire expenditure ofsuch institution."

I would refer in this connection also to some of thearguments that I advanced previously, namely, that it couldand should not be the intention or meaning of this proviso,that anybody who endows, say, a Chair, a Library, aLaboratory, or some department in a College or School,should be able to say that Religious Instruction should beprovided in his behalf or of his type, even though his Trustor Endowment is not enough to meet the entire expenditure of that institution.

(It would be a simple proposition, as I understand thisproviso to the clause as it stands, for anybody to make aTrust or Endowment, sufficient, let us say, to meet part of the cost, e.g., building and furniture; then divest himselfof the care and responsibility of managing that institution,hand it over to the State, earn cheap immortality and thetitle of being a munificient donor, and then ask the Stateto carry on the institution and also to provide ReligiousInstruction therein, negativing the principle on which theclause to which this is a proviso was founded.)

The idea, as I have understood this clause, would bedefeated and the clause turned into a grotesqueness I think,if such should be the result. Perhaps, it was not intendedto be so twisted out of the intention; My amendment,therefore only seeks to make it clear and explicit.

Even so, I am, for my part, not entirely satisfied thatany excuse should be left to provide Religious Instructionof a particular character in any public institution managedby the State, and of which only a part, or even the whole of the expenditure is coming from the grant, Trust fund orEndowment that a donor has made.

This will be the negation, I repeat, of the basicprinciple on which this clause is based. The omission of the words "by the State", under an amendment just moved by theChairman of the Drafting Committee would, if adopted--and Isuppose it will be adopted--make the position still morecomplicated, unless it be that by a consequential amendmentthe author ities themselves would see that the words "by theState" here are also omitted.

I do not know that they would be omitted here. I am justsuggesting a possibility or conveying a hint which mayreconcile, to some extent, the main clause with the proviso.

Whether or not these words are deleted from the mainclause, and whether or not these words are retained in thisproviso, the objection I am urging will apply all the same.I hold that it should not be open to anybody to make a trustfor an educational institution in the first instance and then hand over its management to the State and demand that in that institution, simply on the ground that the founderhas been providing the capital or recurring cost of that institution, there shall be religious instruction of thetype favoured by him or professed by him.

I still believe that it could not be really theintention of the authors of this clause: and this provisowhich would permit any such irregularity or exception shouldbe made explicit in the way I am trying by this amendment todo. I trust that common sense, if not legal sense, willassert itself; and the substance, if not the actual form, ofmy amendment will be accepted.

(Amendments Nos. 654, 655 and 657 were not moved.)

Mr.

Vice-President: Amendment No. 656 is disallowed asbeing verbal.

Shri H. V. Kamath (C.P. and Berar: General): Mr. Vice-President, I move--

"That in clause (2) of article 22, the words"recognised by the State or" be deleted."

I move this amendment with a view to obtaining someclarification on certain dark corners of these two articles--articles 22 and 23. I hope that my learned Friend Dr.Ambedkar will not, in his reply, merely toe the line ofleast resistance and say "I oppose this amendment", but willbe good enough to give some reasons why he opposes orrejects my amendment, and I hope he will try his best tothrow some light on the obscure corners of this article. Ifwe scan the various clauses of this article carefully andturn a sidelong glance at the next articles too, we willfind that there are some inconsistencies or at least aninconsistency. Clause (1) of article 22 imposes an absoluteban on religious instruction in institutions which arewholly maintained out of State funds. The proviso, however,excludes such institutions as are adminstered by the Statewhich have been established under an endowment or trust--that is, under the proviso those institutions which havebeen established under an endowment or trust and whichrequire, under the conditions of the trust, that religiousinstruction must be provided in those institutions, aboutthose, when the State administers then, there will not beany objection to religious instruction. Clause (2) lays downthat no person attending an institution recognised by theState or receiving aid out of State funds shall be requiredto take part in religious instruction. That means, it wouldnot be compulsory. I am afraid I will have to turn to clause23, sub-clause (3) (a) where it is said that all minor ities,whether based on religion, community or language, shall havethe right to establish and administer educationalinstitutions of their choice. Now, is it intended that theinstitutions referred to in the subsequent clause whichminor ities may establish and conduct and administeraccording to their own choice, is it intended that in theseinstitutions the minor ities would not be allowed to providereligious instruction? There may be institutions establishedby minor ities which insist on students' attendance atreligious classes in those institutions and which areotherwise unobjectionable. There is no point in my judgmentin withdrawing State recognition. I can understand the pointabout State aid, but I cannot certainly understand why theState should refuse recognition to those institutionsestablished by minor ities where they insist on compulsoryattendance at religious classes. Such interference by theState I feel is uniustified and unnecessary. Besides, thisconflicts with the next article to a certain extent. (Itminor ities have the right to establish and administer educational institutions of their own choice, is itcontended by the Honourable Dr. Ambedkar that the State willsay: `You can have institutions, but you should not havereligious instructions in them if you want our recognition.Really it beats me how you can reconcile these two points ofview in articles 22 and 23. The minor ity, as I have alreadysaid, may establish such a school for its own pupils andmake religious instruction compulsory in that school. If youdo not recognise that institution, then certainly thatschool will not prosper and it will fail to attract pupils.Moreover, we have guaranteed certain rights to theminor ities and, it may be in a Christian school, they mayteach the pupils the Bible and in a Muslim school the Koran.If the minor ities, Christians and Muslims, can administerthose institutions according to their choice and manner,does the House mean to suggest that the State shall notrecognize such institutions? Sir, to my mind, if you pursuesuch a course, the promises we have made to the minor itiesin our country, the promises we have made to the ear weshall have broken to the heart. Therefore I do not see anypoint why, in institutions that are maintained and conductedand administered by the minor ities for pupils of their

owncommunity the State should refuse to grant recognition, incase religious instruction is compulsory. When once you haveallowed them to establish schools according to their choice,it is inconsistent that you should refuse recognition to them on that ground. I hope something will be done torectify this inconsistency.

Shri Jaspat Roy Kapoor: Sir, I beg to move.

"That clause (3) of article 22 be omitted."

My reasons are four. Firstly, this clause is inconflict with clause (1) of article 22 which reads: "Noreligious instruction shall be provided in any educationalinstitution wholly maintained out of State funds:" I am ofcourse reading clause (1) as it will stand after the amendment moved by Dr. Ambedkar is incorporated. So that,while clause (1) lays down that no religious instructionshall be imparted in any institution which is maintainedwholly by the State, clause (3) lays down that suchreligious instruction can be imparted out of working hours.Obviously, therefore, these two are in conflict with eachother. If clause (1) is to remain, clause (3) must go.Clause (3) cannot stand in the fact of clause (1).

My second reason is that the retention of clause (3) islikely to lead to conflict between the different religiousdenominations, because different religious denominations mayclaim the right to impart religious instruction to theirpupils in any institution at the same time and in the samepremises. That will certainly lead to a good deal ofconflict. The convenient time for imparting religiousinstruction, after working hours, is very limited andseveral religious denominations may like to impart religiousinstruction to their pupils in the same premises and at thesame convenient hour. This will place the head of theeducational institution concerned in a very embarrassingposition. He may be in a dilemma as to whom he should grantpermission and to whom not. If a particular denomination isrefused permission it might make a very serious grievance ofit and, even may, in order to exercise the fundamental rightgranted to that community, seek forcible entry into that institution. This is likely to lead to communal andreligious riots. The retention of this clause being full ofmischievous potentialities, it must be deleted.

My third reason is that the management of adenominational institution may not like that religiousinstruction in a different religion from its own should beimparted there. A Muslim school which may perhaps be runwithin the precincts of a mosque would surely not likereligious instruction to Hindus being imparted there inVedic Dharma. So also, an educational institution run byArya Samajists would surely not like religious instruction in Koran being imparted in the premises of that institution. For thisreason also this clause must go.

My fourth reason is that it is absolutely unnecessaryin view of clause (2). Clause (2) already provides thatreligious instruction can be imparted by the management ofan educational institution provided of course the studentsagree to it or if they are minors their guardians agree toit. Such instruction can be provided not only during workinghours, but even outside working hours. So it is unnecessaryin view of clause (2). For these reasons I submit thatclause (3) should be deleted.

Mr. Mohamed Ismail Sahib: Mr. Vice-President, I beg to move:

"That in clause (3) of article 22, for the word`providing', the words `being permitted to provide' be substituted and, after the words "educational institution",the words "in, or" be inserted."

Clause (3) of article 22 refers mainly to institutionsenvisaged in clause (1) thereof. Therefore I think that instead of the word `providing', the words "being permittedto provide" will be more appropriate. I say this because,the institutions being State institutions, permission oughtto be sought for and given for making any provision forimparting religious instruction in the schools. A religiousdenomination or community cannot go straightaway and say:"We are providing religous instruction in such and suchschools". That is not possible.

Therefore to make it moreintelligible and reasonable, I want the substitution of theword "providing" by the words "being permitted to provide".

Then, Sir, I want the insertion of the words "in, or"after the words "educational institution" with these wordsthe clause will read as follows:--

"Nothing in this article shall prevent any community ordenomination from being permitted to provide religiousinstruction for pupils of that community or denomination inan educational institution in or outside its working hours."

I want that permission should be given to a communityfor providing religious instruction in as well as outsideworking hours. It is only with the permission of theauthor ities of the institution that such provision will bemade. Therefore, if the author ities find it practicable toinclude religious instruction inside the working hours,there is no harm. Such provision is really to be made in theinterests of the pupils as a whole. As I said, this clause(3) has a bearing on clause (1) which deals with Stateinstitutions. Now, Sir, what is the objection to Stateinstitutions banning religious instruction altogether andfor all time? The situation is this: Now, almost all theprimary schools will become State institutions shortly andif no religious instruction is to be given in State schools,the position will be that up to fourteen or fifteen years ofage boys and girls shall have no opportunity of gettingreligious instruction. To say that religious instructionshould be given in their own homes or outside school hoursis an impracticable proposition. Educational experts willreadily agree that giving religious instruction outsideschool hours will be a burden which should not be placed onpupils of tender age. Moreover, we know what sort ofinstruction can be given outside school hours. Therefore,Sir, this important matter of religious instruction oughtnot to be treated in this stepmotherly fashion. People talkof trouble aris ing on account of religion. As I have beensaying more than once, it is not really religion that is thesource of trouble. It is the misunderstanding of religionthat is the source of trouble. The point is that pupils mustbe made to understand what religion really is and for thatpurpose you must not leave them to learn their religion hereand there in the nooks and corners of a village or a city.If religious instruction is to be in the interests of thepupils as well as the State, it should be given in publiceducational institutions where the followers of everyreligion will do their best to present their religion in thebest light. This can be done, Sir, only if religious instruction is allowed to begiven in the public State-owned institutions, where peoplewill compete with each other to show the best of theirreligions to the world and thereby undesirable rivalries,competitions, bickerings and heartburings will really beeliminated. Sir, the second world war has turned people backto religion. Many European writers say that because peoplewent away from religion, discarded religion, because theydid not allow religion to be imparted to their children in their tender age, this calamity happened. Therefore, manypolitical writers themselves are now stressing the need forreligious instruction in State schools; moreover, we findthat several constitutions in European countries haveprovided for the compulsory imparting of religiousinstruction in their respective countries. Therefore, I say not only that it is not harmful but I say that it isnecessary, that it is very essential that every pupil mustbe taught his or her own religion in their proper age andthat can be done only when they are in the primary schools.Therefore, when all these primary schools are going to beState schools, the State should not ban religiousinstruction altogether. As I said in a previous amendment,this must be left to the Parliament. There may be practicaldifficulties with regard to certain communities but thesedifficulties must be left to the Parliament to be dealt withaccording to circumstances. Because there may bedifficulties for some people,

certain other communitiesshould not be deprived of their right of imparting religiousinstruction to their children. I once again want to stressthe fact that it is in the interest of the State to give agrounding to children in religion. What is wanted for thestability of society as well as the State is moralgrounding, moral background, and the only way to give thismoral background is through religion. The world has so farfailed in its experiences to find another substitute forreligion. Even the hardboiled politicians are now turningtheir faces towards religion. When the whole world isreturning to religion, we are here discarding religion, webelonging to people who think that religion is aninalienable part of our lives. If we want to avoid all thedistressing experiences that the West has experienced, weshould allow religious instruction to be imparted to pupilsin the primary schools. If this is done, everything will bewell and there will be happiness for all. That is why I saythat permission should be given at least to the religiouscommunities to arrange for religious instruction in oroutside school hours as the case may be according tocircumstances. That may be left to the future legislature.

(Amendment No. 663 was not moved.)