Friday, the 10th 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.

B. Pocker Sahib Bahadur (Madras: Muslim): Mr. Vice-President, Sir, may I have your permission to move that the House adjourn at one o'clock as to-day Friday and the Muslim members have to attend their Jumma prayers?

Mr. Vice-President (Dr. H. C. Mookherjee): We shalladjourn at one o'clock. That much of consideration will beshown to our Muslim brethren and I am quite sure that the House agrees with me.

Honourable Members: Yes.

B. Pocker Sahib Bahadur: Thank you, Sir.

Article 27-A

Mr. Vice-President: We shall consider Amendment No. 824to article 27-A:

(The amendment was not moved.)

Mr. Vice-President: Amendment No. 825 also in the name of Dr. Raghuvira. He is not in the House.

(Amendment No. 825 was not moved.)

Mr. Vice-President: Now we come to Part V. On page 106of the printed list of amendments, we have amendment No.1032 on the new articles 41--44 in the name or Shri GopalNarain.

Prof. K. T. Shah (Bihar: General): Sir, may I remind you that an amendment of mine was held over--amendment No.1030--which involves a big principle. By agreement it was held over with article 40-A. That is on page 105.

Mr. Vice-President: Yes, amendment No. 1030, Prof. K.T. Shah.

New Article 40-A

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

`That after article 40, the following new article be inserted:

`40-A. There shall be complete separation of powers as between the principal organs' of the State, viz, the Legislative, the Executive, and the Judicial.'"

Sir, I regard this as the most important, the very basic requirement of what I would call a Liberal constitution. I am aware, Sir, that this Draft has been founded on the compromise between what are known as Presidential governments and ParlI amentary governments. The ParlI amentary government has a sort of link between the Executive, the Legislative and the Judiciary. The Presidential tries to keep no such link, and has complete separation of powers between the three principal organs o the State, each embodying the sovereignty of the people in the different aspects of a State's activities.

The ideal, however, and the reasons for that ideal,which have guided many modern States in basing their constitution upon a doctrine of complete separation have arisen from bitter past experience. In the constitutions like that of England centuries ago, the ultimate combination of all authority in the person of the King, had lead to many evils culminating in a Civil War, ending in the execution of one king, and a bloodless Revolution leading to the adbication or expulsion of another king. The arrangement which was evolved thereafter has been kept in conformity with the genius of the British people, not so much by a written Constitution, as by evolving constitutional conventions, supported by centuries of usage. And these have become even more sacred than the written word in a written constitution.

But I do not think this will be applicable to us in this country at this moment. I do not think that it would be easy to realise in new grounds, where new experiments of self-government are being tried on an imperial scale. As such I feel persuaded that when we start our own Constitution, when we make a beginning in this land, in theworking of democracy, I think it would be best if we havecomplete separation of powers between the three principal organs of the State.

For one thing, Sir, if you maintain the complete independence of all the three, you will secure a measure of independence between the Judiciary, for example, and the Executive, or between the Judiciary and the Legislature.This, in my view, is of the highest importance in maintaining the liberty of the subject, the Civil Liberties and the rule of law. If there was contract between the Judiciary and the Legislature, for instance, if it was possible to

interchange between the highest judicialofficers and the membership of the legislature, then, I am afraid, the interpretation of the law will be guided much more by Party influence than by the intrinsic merits of each case. The Legislature in a democratic assembly is bound to be influenced by Party reasons rather than by reasons of principle.

I am not decrying Parties. Please do not misunderstand me. All I am saying is that after all, Parties are mundane,dealing with mundane things, and as such they are bound to attach much more importance to considerations of the moment,to merely transitory ideas, to importance of personalities,by which a Judiciary would not be affected. It is of theut most importance that the Judiciary should be above suspicion, and, therefore, out of or above any contamination. I hope the word is not hard to anybody. It should be above containination by political prejudices that are rife in all political parties.

If contact or connection is maintained between the Judiciary and the Executive organs of the State, there is also the possibility of undue influence, of misleading, of misdirecting and mis-influencing those who are appointed to interpret the Constitution, those who are appointed to be guardians of Civil Liberties, those who have to administer justice.

In the environment in which we are living, in the traditions under which our judicial system has been evolved,I am afraid justice is a very costly luxury. It is really not the easy privilege of the poor man. Though you have provided a number of appeals, though you have provided a hierarchy of powers, you have also evolved, side by side, amost costly, a most wasteful, a most extravagant system of legal advice and legal assistance by professional lawyers,which only those who have undergone protracted litigationknow how costly it is, how confusing, and how almost prohibitive it is, to ordinary mortals.

But even so, even granting that justice must not be cheap and must be available to those who can pay for this luxury, let it not be tainted, I beg you, let it not be influenced by considerations other than the intrinsic merits of each case.

When the chapter dealing with the Judiciary comes up before the House I may have occasion to move other amendments to point out where and how our present system suffers. But we should have the ideal of absolute purity of justice; even though it should happen to be class justice,let us make it at least free from taint of ulterior motives.The administrators of justice are unconsciously or sub-consciously coloured by their own inherited or acquired class prejudice. That cannot be helped all at once. But leaving that aside, and leaving aside even such a matter as was discussed yesterday in the House--of having the right to move the Supreme Court--I would say that, so long as you have not merely the combination of the Judiciary and the Executive, but also the possibility of translation from a high judicial office to an equally high or sonorous executive office; so long would your Judiciary be open to suspicion, so long your administration of justice would suffer by personal privileges or personal ambitions, and so long, therefore, you will not be able to maintain your civilliberties to the degree and in the manner of purity that is highly desirable in a country like this.

I would, therefore, suggest, in the first place, that the Judiciary should in any case be completely separated,and should attach regard only to the written letter of the law, irrespective, let us say, of the debates in this House at the time the Constitution itself was passed, irrespective of Party or personal considerations, irrespective of anyother motives that might otherwise affect human and mundane things.

The same logic, in a different form, applies also to the case of the Legislature and the Executive. The less contact, there is between them, the better for both, Iventure to submit. The executive is in a position to corrupt the House; the executive is in a position to influence votes of the members, by the number of gifts or

favours they have in their power to confer in the shape of offices, in the shape of Ministerships, in the shape of Ambassadorships, in the shape of Consulships, and any number of offices which the Executive has it in its power to be stow. We have come to a stage in political evolution when the old system called the "spoils system" is no longer upheld in any civilised country. But yet, in fact, it does happen that fifty, sixty,seventy, a hundred people may be open to be influenced by those who have it in their power to distribute even the highest offices of the State. In England, for instance, out of 615 Members of ParlI ament, something like 70 members are Cabinet Ministers or ParlI amentary Secretaries, or other Ministers and so on. This on a minor scale--I hope the House will pardon me for saying so--we are trying to reproduce here, by creating Ministers and Ministers of State and Deputy Ministers, and I suppose ParlI amentary Secretaries to come. These may be--and I am sure they are--all honourable people influenced entirely by the desire of offering their services and their talents to the service of the country.But still the fact remains that the influence of the Party system, the idea of favouring one's own people, those who agree with them and become their camp-followers, is a much more influential and important consideration, than the absolute and exclusive eye to the merits or the fitness or the appropriateness of an individual for an office.

It is the exigency of ParlI amentary government, as it has been developed in the West and which we are copying,that the consideration most prominent in such appointments is how many votes can an individual bring if he is appointed to a given ministerial office rather than how much realservice he would be able to render to the country. As such for one unhesitatingly and unexceptionally condemn thesystem of ParlI amentary Government, the system of a link between the Legislature and the Executive on which this Constitution is based.

I know that my voice almost appears as a voice in the wilderness. But I think it my duty to place this on record that, after a close study of the working of Constitutionselse where, after a close study stretching over perhapsthirty-five years of the development of political institutions in this country, and their influence on our public life, on our public morality, on even our private relations, I venture to suggest that this is not a very healthy example we are copying; and that the sooner we get rid of the combination of executive, judiciaryand legislature in some supreme Cabinet, in some supreme authority, the better for us it would be.

Lastly, Sir, I come to the division between the Executive and the Legislature. It has worked for over a hundred and fifty years in America, quite satisfactorily,where the Legislature and the Executive are kept wholly apart. They had before them, much more than we have before us, the model of the English Constitution where the combination had already been achieved to a degree ofperfection, that was looked upon even by such students as Burke or Fox as the basis of their Civil Liberties, of the liberalism of the English Constitution.

Nevertheless, under the influence and aegis of scholarsand thinkers of the type of Jefferson, they did devise a constitution which kept completely apart the Legislature,the Executive and the Judiciary. For a hundred and sixty years that Constitution has worked without any seriousdifficulty. Even in the midst of wars, and even underinternal civil war, they have been able to maintain their freedom and their liberal constitution. That would not have been the case, if they had started on the same lines, and worked their Party system in the same manner that the Whigsused for perhaps a century.

I could go on saying a great deal on this subject without once repeating myself. But I am aware that the patience of the Chair is not unlimited; and I know the temper of the House is not very sympathetic; and so having said my say in this matter, I would commend my proposition such as it

is to the House.

Shri K. Hanumanthaiya (Mysore): Sir, I listened with great respect to Prof. Shah's argument about his amendment.I fear the new clause he has moved is completely out of tune with the constitutional structure which this House has proposed and the Drafting Committee has adumbrated. We in this House have given our approval to parlI amentary system of government, and what Prof Shah sponsors in his amendmentis, I might say, the Presidential executive. Of course, we can argue about the merits and demerits of both the systems,but we have come to accept the parlI amentary system to be suitable to this country and for very good reasons that system seems to be better adapted to conditions in India than Presidential executive. I think instead of having a conflicting trinity it is better to have a harmonious governmental structure. If we, as he says, completely separate the executive, judiciary and the legislature,conflicts are bound to arise between these three Departments of Government. In any country or in any Government,conflicts are suicidal to the peace and progress of the country. The first and foremost foundation on which a Government or society can work is peace to begin with and if there is separation--not separation but Prof. Shah wants complete separation--then conflicts are sure to arise between these three Departments of Government. Therefore, I say that in a Governmental structure it is necessary to have what is called "harmony" and not this three-fold conflict.

Then, it has become the fashion of the day with some people to decry the executive and make the judiciary look as if it is the paragon of all virtues. I would respectfully place this view before Prof. Shah and people of his way of thinking. Where as judges no doubt are impartial and they have no sides to take, we must remember also that the executive governments in India or any where else in the world, have to work under very difficult circumstances. To carry on a government and to please people is not an easy matter. Many a time they work under difficult circumstances with danger to their lives. They will naturally incurdispleasure. Some people are prone to take advantage of these conditions and displeasures to raise controversies andto decry the executive. To continually decry the executive and the legislature and to exalt the judiciary is not doing service either to the judiciary or to the governmental structure. If understand the term correctly, independence of the judiciary means that the executive or its officers should not interfere in the day to day administration of justice.That does not mean, as some people interpret it, that the judiciary must be the master of the executive or should be on a par with the executive government. Government in any country must govern. The powers of governing should vest with one set of people and it is unsafe for us to divide it into three equal parts and especially in the extreme degree that Prof. K. T. Shah contemplates. Even in America, though theoretically there is complete separation of powers between these three departments, we all know the party system of Government softens its rigours to a very great extent. In America there are two well organised parties and these parties determine what is to be done in their respective party meetings. At these meetings, conflicts which could have arisen between these three departments of Government,are softened, smoothened and ironed out so that the evils of this system are eliminated. Sometimes when one party has amajority in the Legislature and another in the executive,conflicts surely arise. In order to make the judiciary impartial it is unnecessary for us to exalt it to the position of the Government or the Legislature. It is wrong to argue that a few judges of the Supreme Court are betterthan four hundred Members of the Legislature, the duly chosen representatives of the people, or the accredited leaders of the nation. This is a topsy-turvy argument. The sooner we give up this psychology which is born of political controversies, the better.

Therefore, I oppose the new clause. My main reason is that this House is wedded to a parlI amentary system of democracy and this new clause is outof place in such a constitutional structure.

Prof. Shibban Lal Saksena (United Provinces: General):Sir, I agree with my friend, Mr. Hanumanthaiya that the clause as it stands here in the amendment will not be in its proper place in the Constitution. Yet I cannot help saying that I agree to a very great extent with the reasoning advanced by my learned friend, Prof. K. T. Shah. We haveexperimented with parlI amentary democracy for so many years.Now I personally feel that, though Dr. Ambedkar in hisoriginal address very clearly told us that we have to choose between the British system and the American system, and said that the American system gives more security and the British system more responsibility, yet we had decided here to choose more responsibility; if it were left to his choice he would have preferred the American system. I agree to a very great extent about the evils of the present parlI amentary system. We have seen parlI amentary parties in so many provinces like in Sind, in Bengal and in other places, where Ministers try to keep their parties by giving bribes to the people who have even four or five votes so that the majority party may remain in being. I feel that this system where in people have merely to keep the majority in power is being put to abuse. I know that in England they are working the system in a perfect manner. But they have a tradition of 700 years. They have developed their methods whereas we are just entering upon our democratic freedom and we cannot imitate it to perfection. It will have to wait until the whole national character changes and it is not possible that we can imitate England. Probably our slavery has led us to imitate the British system. If left to our selves we would have copied the American system. In that system there is complete separation of the judicature from the legislature and the legislature from the executive. The legislature there can pass any laws which it thinks best for the country and the President has to obey them. Here the Leader of the majority party must have the House with him. The House will only pass those laws which the party thinks are necessary.The legislature cannot be independent of, but it has to be submissive to, the executive. In most places where the leaders are outstanding, the parties will say "ditto" towhat they say and the real will of the majority will not bevoiced. Therefore I think this becomes more like a one-man Government than anything else.In America, people are free; they can pass laws even against the President. There have been cases where in spite of the laws passed by the legislature--the Congress--it has been set aside by the Supreme Court and the President has to see that any action of his is not against the fundamental laws of justice. The Supreme Court is far more powerful than anyone else. I, however, think that now we have gone too far to change the basis of our Constitution, because in the last two years we have passed everything in accordance with the British Constitution, and probably it is too late now in theday to change the whole system. But I do think that there is great force in what Prof. Shah has said and though this amendment is not in its proper place, still I do think that this House will remember that although we are all for a system which has been tried in England and is being worked out there in a satisfactory manner, still in our country wewill have to be careful to develop traits which make thatconstitutional working possible. In England, they couldthrow out even Churchill in the new elections although hewas the man who saved England and her freedom. Have we thatsort of characteristic in our country where we can throw outanyone if we think he is not good enough? What is necessaryfor our country we must do, even though it may be againstthe will of the biggest person. Until then, we cannot workparlI amentary democracy. I therefore think that thisamendment has given this

House an opportunity to express itsdoubt as to whether we have done wisely in accepting thepresent system. But I think it is now too late in the day tochange the whole system and also that this amendment has noplace at this time. It should have really come as a changeof the whole system. But still, I think that where theSupreme Court is concerned, I wish it were appointed by themajority in the legislature and not by one single person.Everywhere, its independence must be guaranteed and I havegiven amendments that the Supreme Court must be completelyindependent of the judicature and the legislature. It mustbe the one body which should decide what is guaranteed withrespect to our liberty, etc. I hope this amendment will atleast help us to see that the Supreme Court's independenceis not in any way minimized. In regard to this I heard oneof the most eminent authorities in the Assembly say "Todaythe High Courts are not independent; they are influenced bythe political consequences of their actions".

I hope in future our Supreme Court will be free fromthese influences and that they will do what is necessary andobserve the principles inherent in this Constitution.

Kazi Syed Karimuddin (C. P. and Berar: Muslim): Sir, I am entirely in agreement with the amendment of Prof. K. T.Shah. I know that the system approved by the ConstituentAssembly is a ParlI amentary system of government but eventhen I had urged the adoption of a non-parlI amentary systemof government in India. We have seen since 1920, that theworking of the Government of India Act and other Local Self-Government Acts based on the ParlI amentary system ofGovernment has demonstrated a miserable failure. In theparlI amentary system of government, it is as clear asdaylight that the political opponents are practicallycrushed, neglected and ignored; we have no conventions andwe have no discipline and it is very difficult for ourpeople who are not trained in parlI amentary system ofgovernment to put up with opposition in the country. What we have seen in India is this: that the Ministers are slaves of the legislature and they have to depend for their existenceand for their continuance in office on the popular views of the people in the country. They cannot use their independentjudgment; they cannot use their independent discretion; theresult is that those who keep them in power influence thejudgment and the discretion of the Ministers to the great detriment of those who are in opposition. In this countrythere are heterogeneous people, with different principlesand with different programmes. We have seen in the country, particularly in Noakhali, in Bihar and in the twoPunjabs, arson, murders and looting. It has all happenedbecause the Governments were based on parlI amentary systems.The Ministers in both the Punjabs, in Noakhali and in Bihardid not take up a strong attitude partly because they cannotgo against the popular frenzy of the people which wasprevailing in Bihar, Noakhali and in the Punjabs. Therefore,if you want perfect peace in the country, if you wanttranquillity in the country, if you want political partiesor political opposition to thrive in the country, it is verynecessary that there should be a non-parlI amentary system of government.

Now, it has been practically accepted on the floor of the House that the judiciary here, under the parlI amentarysystem of government, can never be independent and, if it isnot independent, the guaranteeing of the Fundamental Rightsabout personal liberty and property will be only farcical.Unless the judiciary is independent of the executive and the legislature, it is impossible to have protection under theFundamental Rights and to have decisions which will be basedon independent considerations.

My friend from Madras, while opposing this amendmentgave three reasons. He said that it is impossible to createa harmonious structure in which political parties can worktogether in a non-parlI amentary system of Government. Mysubmission is that under parlI amentary system, it is not aharmonious structure, but a structure in which

politicalopponents are crushed. A harmonious structure is one inwhich all parties are allowed to work in a harmonious way inwhich the opposition is accommodated. Therefore it cannot besaid that in a parlI amentary system of government, wherethere is no discipline or toleration, one can expect aharmonious structure.

Then, Sir, it was said that there would be a greatconflict between the legislature, the executive and thejudiciary, if there is a non-parlI amentary system ofgovernment. My submission is that it will all be to the goodif the judiciary is independent of the executive anddisagrees with the excesses committed by the legislature. It would be a healthy sign in a democratic State. Then, it wassaid that the Ministers and the executive have to please thepeople. Well, that is exactly the reason why we want a non-parlI amentary system of government. We want separationbetween the legislature, the executive and the judiciaryonly because in trying to please the people they commit suchexcesses that their opponents are killed, crushed, neglectedand ignored. Therefore I say, the reasons advanced by myhonourable Friend from Madras in favour of a parlI amentarysystem of government go against him. We want a system ofgovernment in which there is minimum pleasing of thesupporters. It is wrong to say that the system of Governmentwhich exists in England alone is based on democracy. Thereare other systems such as the American system based ondemocracy. It cannot be said that the American model is notbased on democracy. If you really want a stable and a stronggovernment, if you really want communalism to die out, youmust create an atmosphere in which popular frenzy will haveno room and in which political opposition will be tolerated.We do not want vacillating governments and ministers whohave to please their supporters for their continuance inoffice. Therefore I very strongly support the amendmentmoved by Prof. K. T. Shah.

The Honourable Shri K. Santhanam (Madras: General): Mr.Vice-President, there is no doubt that Prof. Shah has raiseda question of great constitutional importance.Unfortunately, however, he is a little too late. ThisAssembly has already discussed the question and taken adecision in favour of parlI amentary system of governmentand, on the basis of that decision, the entire Constitutionhas been drafted by the Drafting Committee. So, unless arevolutionary change of opinion has taken place among themajority of Members, Prof. Shah's proposition is hardly apracticable one at the present moment. Therefore I do notwant to go in detail into this question of the Presidential versus parlI amentary executive, I may remark, Sir, that thisso-called complete separation of legislative, executive andjudicial powers is, even in the American Constitution, amyth to a considerable extent. Though the Supreme Court of the United States is said to be completely separate from theexecutive, we have seen how President after President hastried to manipulate the Supreme Court by appointing judgesto suit his own views. Whenever there has been a conflictbetween the President and the Supreme Court, the Presidenthas had only to wait till some judge retired and then put inhis own nominee in his place and get judgments in his ownfavour. Therefore, so long as the President is the ultimateappointing authority, the authority of the judiciary has tosome extent to be dependent on the executive. But, so far asour Constitution is concerned, it lays down that our SupremeCourt will be as independent of the executive and the legislature as the Supreme Court of the United States. Tothat extent Prof. Shah's desires have been fulfilled in the Constitution.

Prof. Shibban Lal Saksena: There the judges areappointed by the Congress and the Senate.

The Honourable Shri K. Santhanam: Where?

Prof. Shibban Lal Saksena: In the United States ofAmerica.

The Honourable Shri K. Santhanam: But it is thePresident who has to nominate them.

Prof. Shibban Lal Saksena: But he has to get theconsent of the Senate.

The Honourable Shri K. Santhanam: Yes; whether with

theconsent of the Senate or not, the appointing authority isthe President. Therefore the President will give the choiceonly to his nominee and so, whether it is A, B, C, or D, hewill nominate only those people who conform to his views,especially on the most important questions. But barring theappointing authority, so far as the independence of thejudiciary, is concerned, we have provided for suchindependence in our Constitution as in any otherConstitution. Therefore the real issue is regarding themerits of the Presidential and parlI amentary types ofexecutive. Sir, two or three years ago I was myself stronglyinclined towards the presidential type of executive for theCentral Government of India, but after listening to thediscussions and after further consideration, I am nowconvinced that it is not perhaps as desirable for thecountry as I once thought it was because, Sir, the future ofthis country is that of an economic State. If we are to bemainly a police State, certainly the separation of theexecutive and the legislature will be of great importance.If strength and stability are the only considerations oreven the main considerations to be borne in mind in framingthe Constitution of India, then I do think that there is astrong case for the presidential executive but today what ismore important than stability or strength is quick economicprogress. Even our stability, even our strength will bedependent upon the tempo in which the economicreconstruction of India can be proceeded with. I believethat Prof. K. T. Shah is very anxious that the Indianeconomy should be reconstructed on socialist lines asquickly as possible, but if there is presidential executive,I think his desires in this respect will be greatlycheckmated. One of the defects of the presidential system isthat the executive and the legislature may be at loggerheadsvery frequently. This has been the case in the UnitedStates, and when they are at loggerheads for a period ofthree or four years till either the legislature is renewedor the President is re-elected, the whole thing will be adeadlock. Sir, I do not think in this country we couldafford to lose even a period of three or four years in suchconflicts. All the advantages of the presidential executivein the form of a free hand for the President and stabilityfor the executive will be lost even if a small period ofconflict arises. Sir, we have to-socialise many industries,establish new corporations, create new forms of credit, for all of which the daily co-operation of the executive and the legislature is of the greatest importance. Unless this co-operation is forthcoming at least in the formative periodof Indian freedom, then our progress which has already beendelayed by the foreign rule will be further delayed andpopular impatience at the delay of economic reconstructionwill break all bounds and ordered democracy may becomeimpossible. Therefore, Sir, as the Central Government isgoing to be vested with more powers than I had thought, aswe are to be a little more unitary than federal, it is allthe more essential that the executive and the parlI ament atthe Centre should form one integral whole and function asone unit. Unless they do so, the whole progress of thecountry will be delayed. If on the other hand we had trustedprovincial autonomy to a far greater extent and left allconstructive programmes and economic reconstruction to theunits, then I would have been for responsible government in the provinces and presidential executive at the Centre, for then the Centers business will be only to keep India safeand united and to allow the unite to function in theeconomic sphere freely; but it has been considereddesirable--and on very strong grounds--that the CentralGovernment of India should have an active, continuous andformative part in the economic reconstruction of the wholecountry and for this purpose only a responsible Cabinet orthe parlI amentary executive will suffice. Therefore I hopeProf. K. T. Shah will reconsider his views and withdraw hisamendment. In any case, I oppose the amendment.

Mr. Vice-President:

I am well aware that there are manymore Members who want to speak and who are fully competentto deal with this subject, but I think that it has beendiscussed sufficiently. Therefore I shall call upon Dr.Ambedkar. I am sorry to disoblige honourable Members, but I think they will recognise the fact that we have to make acertain amount of progress daily.

Shri Lokanath Misra (Orissa: General): But many pointshave been left untouched.

Mr. Vice-President: Dr. Ambedkar.

The Honourable Dr. B. R. Ambedkar (Bombay: General):Mr. Vice-President, Sir, this matter, as honourable Memberswill recall, was debated at great length when we discussedone of the articles in the Directive Principles which we have passed. It was at my instance that it was sought toincorporate in the Directive Principles an item relating to the separation of the executive and the judiciary.Originally the proposition contained a time limit of threeyears. Subsequently as a result of discussion and as aresult of pointing cut all the difficulties of giving effectto that principle, the House decided to delete the timelimit and to put a sort of positive imposition upon theprovincial governments to take steps to separate theexecutive from the judiciary. On that occasion, all this matter was gone into and I do not think that there is anynecessity for me to repeat what I said there. There is nodispute whatsoever that the executive should be separatedfrom the judiciary.

(With regard to the separation of the executive fromthe legislature, it is true that such a separation doesexist in the Constitution of the United States; but if myfriend, Prof. Shah, had read some of the recent criticismsof that particular provision of the Constitution of theUnited States, he would have noticed that many Americansthemselves were quite dissatisfied with the rigid separationembodied in the American Constitution between the executiveand the legislature. One of the proposals which has beenmade by many students of the American Constitution is toobviate and to do away with the separation between theexecutive and the legislature completely so as to bring theposition in America on the same level with the position asit exists, for instance, in the U. K. In the U. K. there isno differentiation or separation between the executive and the legislature. It is advocated that a provision ought tobe made in the Constitution of the United States whereby themembers of the Executive shall be entitled to sit in the House of Representatives or the Senate, if not for all the purpose of the legislaturesuch as taking part in the voting, at least to sit there andto answer questions and to take part in the legalproceedings of debate and discussion of any particularmeasure that may be before the House. In view of that, itwill be realised that the Americans themselves have begun tofeel a great deal of doubt with regard to the advantage of acomplete separation between the Executive and the legislature. There is not the slightest doubt in my mind andin the minds of many students of political science, that thework of ParlI ament is so complicated, so vast that unlessand until the Members of the Legislature receive directguidance and initiative from the members of the Executive,sitting in ParlI ament, it would be very difficult forMembers of ParlI ament to carry on the work of the legislature. The functioning of the members of the Executivealong with Members of ParlI ament in a debate on legislativemeasures has undoubtedly this advantage, that the Members of the Legislature can receive the necessary guidance oncomplicated matters and I personally therefore, do not thinkthat there is any very great loss that is likely to occur ifwe do not adopt the American method of separating theExecutive from the Legislature.)

With regard to the question of separating the Executivefrom the Judiciary, as I said, there is no difference ofopinion and that proposition, in my judgement, does notdepend at all on the question whether we have a presidentialform of government or a parlI amentary form of government,because even

under the parlI amentary form of Government theseparation of the judiciary from the Executive is anaccepted proposition, to which we ourselves are committed bythe article that we have passed, and which is now formingpart of the Directive Principles. I, therefore, think that it is not possible for me to accept this amendment.

Mr. Vice-President: I shall now put the amendment ofProf. K. T. Shah to vote.

Prof. K. T. Shah: Can I speak a few words in reply,Sir? This is a new article, and not an amendment.

Mr. Vice-President: Though it may be an article, it isan amendment to the Draft Constitution. This would create avery awkward situation. We have established a conventionafter a good deal of difficulty, and I am quite sure Prof.Shah would realize the difficulties of the Chair.

(Prof. Shah resumed his seat.)

Mr. Vice-President: Thank you. You are most reasonableand helpful.

The question is:--

"That after article 40, the following new article beinserted:

`40-A. There shall be complete separation of powers as between the principal organs of the State, viz., the Legislative, the `Executive, and the Judicial.'"

The motion was negatived.

Mr. Vice-President: So far as I remember, our workcommences with amendment No. 1033. This is disallowed as aformal amendment.

Amendment No. 1034 is I think blocked in view of thefact that a new article--39-A--has been already accepted bythe House.

Then we come to article 41.

Article 41

Mr. Vice-President: After going through the amendmentsone by one, I find that amendments Nos. 1037, 1038 and 1039are mainly concerned with the name our Motherland would bear. I think they ought to be held over for

the present. That pertains to article 1, the considerationof which we have postponed for the time being.

The Honourable Shri K. Santhanam: I want to knowwhether it is your ruling that these amendments are notrelevant to these articles. If you decide to keep them over,then we cannot pass that article.

Mr. Vice-President: You are a pundit in thesetechnicalities. Could we not transfer them to article 1 bysome device or other, so that we could pass this article?

The Honourable Shri K. Santhanam: If the name ischanged in article 1, the consequential changes will bemade. These amendments may be ruled out for the present andmay be taken up when you take up article 1.

Shri H. V. Kamath (C. P. & Berar: General): I did nothear a word of what the honourable Member said.

Mr. Vice-President: Mr. Santhanam, please come to themike and explain the position. Please do not get impatient,Mr. Kamath.

Shri H. V. Kamath: We are impatient to hear him, Sir.

The Honourable Shri K. Santhanam: When we take adecision regarding the names to be used, even if we take adecision either in the title or in article 1, theconsequential changes will be made throughout the Constitution. Therefore, I do not see any necessity that weshould take it up at every point. If you want to pass thisarticle, then all these things will have to be treated asnot relevant to this particular article. Otherwise, everysuch article will be held up and these amendments would bekept pending and so long as they are not disposed of, wecannot pass the article. Therefore, I suggest that all suchamendments should be taken as not pertaining to anyparticular article, but pertaining to the generalConstitution.

Mr. Vice-President: I think that for practical reasons,we should adopt the procedure suggested by Mr. Santhanam.

Then we come to amendment No. 1035. This deals not onlywith the future name of our motherland, but is alsoconcerned with the salary of the President. So it is ruledout.

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

"That for article 41, the following be substituted:--

`41. The Chief Executive and Head of the State in the Union of India shall be called the President of India.'"

I do not read the alternative, and I shall confinemyself only to the main proposition.

In the title of the President, instead of the clausegiving it barely as it stands, I should like that there besome

indication of the status and power of the President.There shall be a President of India whose position and titleshould be made a little more clear and definite than it isat present. I therefore, describe him as "the ChiefExecutive and Head of the State".

I take it that there is no dispute regarding the statusand position of the President as the Head of the State. Thatis, in a way different from the Head of the Government,which may be the Prime Minister or the President himself, asI had conceived it. But whether or not there is a separatehead of the Government, there must be, for formal,ceremonial and solemn occasions, a representative of thepeople collectively embodying the sovereignty of the wholepeople and of the State as a whole. As such, I think, itwold be better if my amendment is substituted for theoriginal article, and the President is also described as theChief Executive and Head of the State in the Union of India,called the President of India. I do not think I need takethe time of the House by dilating upon this, because all that I can say would be averbal expansion of the idea so briefly put forward in thisamendment. Therefore, without taking further time, I commendit to the House.

Mr. Vice-President: You do not move the second part?

Prof. K. T. Shah: I do not move the second part.

Mr. Vice-President: Amendment No. 1037 has been ruledout for reasons already known to the House. Amendment No.1038 has also been ruled out.

(Amendment No. 1039 was not moved.)

The article is now open for general discussion,although I do not think there is any need for it.

Shri Mahavir Tyagi: (United Provinces: General): Sir, Ido not want to take up much of the time of the House: butsince I have not taken any for the last week or more, I think I deserve taking a minute.

My only point is to emphasise the amendment tabled byProf. K. T. Shah which points out a direction which is veryimportant from the point of view of a discussion on thefloor of this House. There is a lack in the constitution. Hehas rightly pointed out--I do not know whether this is theproper place to mention this idea--that we must define as towho is the representative of the people so far assovereignty is concerned. He says: "the Head of the State inIndia represents the sovereignty of the people." We have notyet decided the question of the residence of sovereignty. Ihad moved an amendment on this point and it was promisedthat it would be taken up for consideration when we discussthe Preamble to the Constitution. I am waiting for thatopportunity. Sir. But, I feel that the Head of the Statemust also represent the sovereignty of the people. Afterall, how otherwise will the people express themselves? NoGovernment in democratic countries can ever claim to befully representative of the people as a whole. TheGovernment here, although they represent the ambitions andaspirations of the people, and even though they are the mostpopular people in the country, it cannot be said that theyare the representatives of the total population of India;they are not the representatives of the whole people becausethey have a party bias and a party man festo on which theyhave been elected. (The Government must as a rule representthe majority party in the country. A Government cannottherefore be the true spokesman of the whole people. Theremust be some unit, some authority, some person in whomparamountcy or sovereignty should be vested, in whom theprerogatives of the people should be vested. I thereforesubmit, Sir, that it would have been a good idea if we hadlaid down that the President was not only the Executive Headof the State but also a symbol of the sovereignty of thepeople.)

Sir, I want to make a distinction between people and the State. The State has always the bias of administration.In the problem of the governed and the governor, whether itbe democracy or any other cracy, the State governs and thepeople are governed. It is therefore necessary that in ademocratic State full chance of expression should be givento the minorities or opposition. Because, when

theminorities speak in a House of Legislature or in aParlI ament, they speak purely with the bias of the people.In this House, as it is, if it were sitting as LegislativeAssembly--we are now the Constituent Assembly--Dr. Ambedkarand his colleagues would always represent the bias of theadministration. They know the difficulties ofadministration; but the people want their own bias to beexpressed irrespective of what the administrativedifficulties are. Such expressions and demands always comethrough the mouthpiece of the opposition, which has to beprotected against the majority rule.

Mr. Vice-President: Will you kindly explain how thequestion of the President comes in here?

Shri Mahavir Tyagi: I want to emphasise that it is anessential requirement of the Constitution that thesovereignty of the people must also be vested in some personor somebody other than the Government. I only want to pressthe argument that the Government, howsoever popular it maybe, cannot claim to be sovereign. It would have been a goodidea if the President were made a symbol of the people'swill so that he could command respect and devotion from allalike. He could then stand between the people and theGovernment. In that case he would have the capacity not onlyof being the Executive Head, but also of being therepresentative of the sovereignty of the people so that inhim the minorities also could find their reflection andprotection. Sovereignty lies in the people; but how will itexpress itself? It cannot be expressed by the Government,because the Government is not the total people. Sometimes,it may be majority of only fifty one per cent and it mayalso be possible that a forty-nine per cent minority may gounrepresented altogether. If the House agrees to vest theparamountcy and all prerogative and sovereignty in thepeople, then there must be some authority wherefrom thesovereignty may flow and express itself.

The Honourable Shri K. Santhanam: On a point ofinformation, Sir in this Constitution, ParlI ament is therepository of the sovereignty of the people. That is thescheme of all constitutions where we have the parlI amentaryexecutive.

Shri Mahavir Tyagi: My friend has taken me aback; Icannot immediately reply to his argument. But, I feel thatsovereignty will not be represented by the ParlI amentbecause the ParlI ament also included the Council of States.I must submit that the Council of States is notrepresentative of the people because as envisaged here, theCouncil of States will be the representative only of themajority parties in the provinces. That House will not comethrough the single transferable vote system of proportionalrepresentation; it will be a House of the States and themembers thereof must represent the various States which inturn are again the representatives of the majority party. In these circumstances, the members of the Upper House will berepresentatives of their Governments and not of the people.There are to be 250 members of the Council of States. Theywill always be biassed by the difficulties of Governments in the various States. They will come here to represent theirGovernmental difficulties and to poise their demands fromthe point of view of their Governments. I submit.....

Shri T. T. Krishnamachari: (Madras: General): They willalso be elected by the majority party.

Mr. Vice-President: Instead of being floored.......

Shri Mahavir Tyagi: I cannot be floored.

Mr. Vice-President: Instead of being floored.....

Shri Mahavir Tyagi: I am in possession of the floormyself.

Mr. Vice-President: Instead of being floored, will itnot be better if you reserve these observations to theproper time?

Shri Mahavir Tyagi: I am aware of your anxiety tofinish the discussion early. Sir, my friend Mr. T. T.Krishnamachari says that as the members of the Council ofStates will also be elected by the elected representativesof the people, they will represent the people. I claim theywill not. For instance I have been elected by the people inmy province as an M.C.A. but if I am deputed to be on thePublic Service Commission, certainly in the

Commission Ishall act purely as a member of the Commission; I will notuse my capacity as a representative. Likewise, when youelect members to the Council of States, they cannot use their representativeship of thepeople, they will represent their respective States. Theyare deputed to represent the Governments. I therefore submitthat the ParlI ament will not be so ideal a representative ofpeople's sovereignty, as the ParlI ament will always be runby the majority party. If those who are governed cannotexpress themselves direct, then let their mouth-piece--thePresident--speak for them and let him guard the interest of the minorities and also of the people as a whole. I submit,Sir, it is a question which warrants deep consideration. Itherefore hope that the House will give due consideration to the suggestion made.

Shri H. V. Kamath: Mr. Vice-President, this article 41shares the honour with article 1 as being the shortestarticle in the Constitution. This is a seven-word articleand there need not be much discussion on this very shortarticle. I do not therefore propose to dilate upon thedoctrine of Sovereignty which has been adumbrated by myfriend Professor Shah and further adverted to by my friendMr. Tyagi. I want, Sir, by your leave, to draw the attentionof the House to the manner in which this article as it wasadopted by this Assembly last year in August 1947 has beensought to be modified in the Draft Constitution. I hope,Sir, Dr. Ambedkar is paying attention. I wish to draw hisattention to the modification that has been made in thearticle after it was adopted last year by this Assembly. Ido not know what reasons the wise men of the DraftingCommittee had to make such an alteration in this article. I have got the Reports of Committees--First Series and SecondSeries--both agree so far as the wording of this article isconcerned. The original draft presented by the Committeeover which Pandit Jawaharlal Nehru presided and of whichCommittee, I think, Dr. Ambedkar too was a member, of theUnion Constitution Committee,--that report was presented byPandit Jawaharlal Nehru on the 4th July 1947 and consideredby the Assembly and adopted partly by this Assembly sometimein August 1947. If Dr. Ambedkar turns to this Report asadopted by the Assembly, he will see that the articlecorresponding to article 41 reads as follows:--

"The Head of the Federation shall be the President(Rashtrapati)."

Now in the draft the article has been modified to readas follows:--

"There shall be a President of India." On the Committeewhich presented this report to the Assembly last year, notmerely Dr. Ambedkar but along with him some of the wise menof the Drafting Committee--the majority of the wisemen--wereon the Committee. I think only Mr. Madhava Rao and Mr.Khaitan were not on the Union Constitution Committee. Theothers were all present in the Committee and they have notappended a minute or a note of dissent to the Report of the Constitution Committee presented by the Committee to theAssembly. I want to know from Dr. Ambedkar why this word`Rashtrapati' has been deleted from the article whichappears in the Draft Constitution today. Is it because, Sir,that we have now developed--latterly developed, cultivated adislike--a new-fangled dislike of some Indian or Hindi wordsand try to avoid them as far as possible in the Englishdraft of the Constitution? I have not in mind the word`Pradesh'; but certainly we have adopted words like `beggar'and `panchayat'. I wonder how many Britishers, how manyAnglo-Americans know the words `beggar' and `panchayat'--except those Britishers who have served in India. Itherefore want to know the reason which actuated Dr.Ambedkar and the wise men of the Drafting Committee todelete this word `Rashtrapati' from this article as it hasbeen presented to the Assembly. Is the reason this, thattitle or that name or designation, that appellation shouldbe reserved exclusively for the Congress President.President of the Congress Organization which functionstoday, and perhaps will function even after this newConstitution has come into

force? The argument may beadvanced that the word `Rashtrapati' is not much in vogue, has not been in vogue in India for manyyears. I do not know whether Dr. Ambedkar has been veryfamiliar or acquainted with this title or word `Rashtrapati'during the last twenty-five years. During the last twogenerations, however, the word `Rashtrapati' has gainedcommon currency, has been in vogue to describe the personwho is the Head of the Congress Organization, meaning theHead of the Nation. Or is it because that the wise men of the Drafting Committee when they shook themselves free ofcertain shackles--because when they were members of the Constitution Committee, Pandit Nehru was there who had beenRashtrapati himself but when they shook themselves free fromthe shackles of other members like Nehru, they got togetheras seven members of the Drafting Committee, did they thinkthat this word `Rashtrapati' is not very pleasant or well-sounding or is it because in their heart of hearts they didnot have really much regard for this word apart from theperson who used to the Rashtrapati in former times?

Mr. Vice-President: You need not give the reasons forDr. Ambedkar's action.

Shri H. V. Kamath: I just wanted to put forward thereasons that might have actuated Dr. Ambedkar and putforward my own point of view. So I would like to know fromDr. Ambedkar, in view of the article as passed by theAssembly last year unanimously, why he and his colleagues of the Drafting Committee have sought to delete this word`Rashtrapati' from the article as it appears in the DraftConstitution.

The Honourable Dr. B. R. Ambedkar: Mr. Vice-President,Sir, before I take up the points raised by Prof. K. T. Shahin moving his amendment, I would like to dispose of what Imight say, a minor criticism which was made by Mr. Kamath.Mr. Kamath took the Drafting Committee to task for having without any warrant altered the language of the report madeby the committee dealing with the Union Constitution. If Iunderstood him correctly, he accused the Drafting Committeefor having dropped the word "Rashtrapati" which is includedin the brackets after the word President, in paragraph 1 ofthat committee's report. Now, Sir, this action of theDrafting Committee has nothing to do with any kind ofprejudice against the word "Rashtrapati" or against usingany Hindi term in the Constitution. The reason why weomitted it is this. We were told that simultaneously with the Drafting Committee, the President of the ConstituentAssembly had appointed another committee, or rather twocommittees, to draft the constitution in Hindi as well as inHindustani. We, therefore, felt that since there was to be aDraft of the Constitution in Hindi and another inHindustani, it might be as well that we should leave thisword "Rashtrapati" to be adopted by the members of thosecommittees, as the word "Rashtrapati" was not an Englishterm and we were drafting the Constitution in English. Nowmy friend asked me whether I was not aware of the fact that this term "Rashtrapati" has been in current use for a numberof years in the Congress parlance. I know it is quite trueand I have read it in many places that this word"Rashtrapati" is used, there is no doubt about it. Butwhether it has become a technical term, I am not quite sure.Therefore before rising to reply, I just thought ofconsulting the two Draft Constitutions, one prepared inHindi and the other prepared in Hindustani. Now, I shouldlike to draw the attention of my friend Mr. Kamath to thelanguage that has been used by these two committees. I amreading from the draft in Hindustani, and it says:--


The word "Rashtrapati" is not used there.

Then, taking the draft prepared by the Hindi Committee,in article 41 there, the word used is PRADHAN. There is no"Rashtrapati" there either.

Shri H. V. Kamath: But, Sir, the point I raised wasthat the article as adopted by this House had word"Rashtrapati" incorporated in it. The reports of the Hindior Hindustani Committee are not before the House, and allthat I wanted was that this word should find

a place in theDraft Constitution now being considered here.

The Honourable Dr. B. R. Ambedkar: And I am just nowinformed that in the Urdu Draft, the word used is "Sardar".(Laughter).

Now, Sir, I come to the question which has been raisedsubstantially by the amendment of Prof. K. T. Shah. Hisamendment, if I understood him correctly, is fundamentallydifferent from the whole scheme as has been adopted in thisDraft Constitution. Prof. K. T. Shah uses the word "ChiefExecutive and the Head of the State". (I have no doubt aboutit that what he means by the introduction of these words isto introduce the American presidential form of executive andnot the parlI amentary form of executive which is containedin this Draft Constitution. If my friend Prof. Shah were toturn to the report of the Union Constitution Committee, hewill see that the Drafting Committee has followed theproposals set out in the report of that Committee. Thereport of that Committee says that while the President is tobe the head of the executive, he is to be guided by aCouncil of Ministers whose advice shall be binding upon himin all actions that he is supposed to take under the powergiven to him by the Constitution. He is not to be theabsolute supreme head, uncontrolled by the advice ofanybody, and that is the parlI amentary form of government.In the United States.) Undoubtedly, there are variousSecretaries of State in charge of the various departments of the administration of the United States, and they carry onthe administration, and I have no doubt about it, that theycan also and do as a matter of fact, tender advice to thePresident with regard to matters arising under theiradministration. All the same, in theory, (the President isnot bound to accept the advice of the Secretaries of State.That is why the United States President is described as theChief Head of the Executive. We have not adopted thatsystem. We have adopted the parlI amentary system, and therefore my submission at this stage is that this matterwhich has been raised by Prof. K. T. Shah cannot really bedisposed of unless we first dispose of article 61 of theDraft Constitution which makes it obligatory upon thePresident to act upon the advice of the Council ofMinisters. Do we want to say it or not, that the Presidentshall be bound by the advice of his Ministers? That is thewhole question. If we decide that the President shall not bebound by the advice of the Council of Ministers, then, ofcourse, it would be possible for this House to accept theamendment of Prof. K. T. Shah. But my submission is that atthis stage, the matter is absolutely premature.) If weaccept the deletion of article 61 then I agree that we wouldbe in a position to make such consequential changes as tobring it into line with the suggestion of Prof. Shah. But atthis moment, I am quite certain that it is premature andshould not be considered.

Mr. Vice-President: I am now going to put the amendmentto vote, amendment No. 1036, first part, standing in thename of Prof. K. T. Shah. The question is:

"That for article 41, the following be substituted:--

"The Chief Executive and Head of the State in the Union of India shall be called the President of India.'"

The motion was negatived.

Mr. Vice-President: The article will now be put.

The question is:

"That article 41 stand part of the Constitution".

The motion was adopted.

Article 41 was added to the Constitution.

Article 42

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

"That article 42 form part of the Constitution."

Shri H.V. Kamath: On a point of order, this article 42is out of place. The order should have been "The Presidentand his election"--the articles relating to this mattershould have come first, and "powers of the President" shouldhave come after the election of the President. My authorityfor this is the report of the Union Constitution Committeewhich the Assembly adopted last year. I should thereforethink that this article 42 must be considered after article43.

Mr. Vice-President: This matter can be mentioned whenwe come to the

third reading of the Constitution.

Shri H. V. Kamath: But this should be noted by theDrafting Committee.

Mr. Vice-President: I see Dr. Ambedkar's pencil movingrapidly.

Now, to take up the amendments: Nos. 1043 and 1049 aredisallowed as being verbal. Amendment No. 1040 by Prof. K.T. Shah.

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

"That for clause (1) of article 42, the following besubstituted:

`(1) The sovereign executive power and authority of the Union shall be vested in the President, and shall be exercised by him in accordance with the Constitution and in accordance with the laws made thereunder and in force for the time being."

or alternatively,

"(1) The executive authority, power and functions ofGovernment shall be vested in the President and shall beexercised by him in accordance with the Constitution and thelaw with the advice and help of such ministers, officers orservants of the State as may be deemed necessary by him."

Before explaining the difference that there is betweentwo alternative forms of the same idea, I should like topoint out, if I may, that the argument which has been urgedby the Chairman of the Drafting Committee about theappropriate place of any amendment or alteration suggestedin this House is a little out of place itself. The reason isthat after all this is an order settled by the DraftingCommittee, and we can only give amendments on the order asit is.

An argument was also urged that if--and I agree withit--we go on holding over amendments and articles, theirmutual correlation may be forgotten or overlooked; and therefore, it would be safest perhaps, and in the bestinterests of a full discussion, that a definite order isestablished. We submit most cheerfully to the suggestion yougave, at the very outset of the debate on an article thatsome stated amendments would be taken up and in the statedorder.

That is a perfectly reasonable and proper thing to do.but when an amendment or article is placed before the House,and then suddenly a surprise is sprung upon Members that this is out of place or out of time, I think it is somewhatunfair. Let those who are responsible for drafting make uptheir mind in what order they will take Chapter by Chapter,and we can understand that and shall co-operate. The ideathat we will, in the middle of discussions, switch overfrom one article to another or one section to another, makesit, I submit in all humility, a little difficult for thosewho are responsible for a number of amendments to keeptrack, and to marshal their own arguments. One comesprepared for a particular set of articles; and one issuddenly told that they are not to be taken up or that it isnot their place and so on. However much one may carry one'sown argument in one's head, one feels a little upset to beasked all of a sudden to make up one's mind whether thisthing is to be moved or not to be moved.

Secondly, having moved, the argument or suggestion that this is not the proper place etc. and that a given amendmentbe taken after another article has been dealt with is, againI submit, a little difficult for members, because it might,so to say, pre-judge the main issue. If you hold it over andget to the later article....

Mr. Vice-President: Are you not moving my amendment,Prof. Shah?

Prof. K. T. Shah: I am placing my difficulty, becausethe same argument may be used here again that this is out ofplace. That is why I am replying to it. I am very muchafraid having heard this line of reasoning--I do not saythat the reasoning is false--I am only saying that it makesit difficult for us to put forward, in the only way in whichwe can put forward, the amendments, namely, according to theorder prescribed or given in the book.

Having said this, I would like to point out quitefrankly that naturally all my amendments hang together, andthat they arise out of a certain view of the Constitution,out of a certain view of the distribution of powers, offinances etc. which may not be accepted; but whichnevertheless is a possible, a known alternative way of doingit.

I have,

therefore, brought forward this amendment. Itrust it will be examined or dealt with on its merits, andnot merely on the ground that it is out of place or itcannot now be discussed. I venture to submit that even ifthe basic principle is other than I thought would beacceptable to the House, even then, on a point like this,viz., the powers and place of the President may beconsidered quite irrespective of the governing or basicprinciple; and if adopted, can be fitted in even in thescheme of the Constitution which you have accepted.

I would, therefore, suggest that the powers andfunctions of the President should have the place as if theyare the powers and functions of the sovereign people beingexercised by the Chief Executive of the State. He will bethe Chief Executive, I take it, for the time that he is inoffice, just as the King of England is the Chief Executive,even though the powers are not so thoroughly separated in the British Constitution as they are in the AmericanConstitution.

I, therefore, put forward this point No. 1 that it would be no answer to, to my amendment to say that it is notin harmony with the basic principle of this Constitutionnamely, that of the ParlI amentary Government, and not of thePresidential kind and as such it need not be discussed. Isubmit that it can be very well fitted in even in theterminology I have used with the basic idea of the Constitution that you have accepted, even though I am freeto admit my own conception was slightly different.

To proceed, Sir, I would like the President's powers tobe very clearly defined, and be exercisable in accordancewith the Constitution. I take it there is no question onthat. No one will say that the President is supra-Constitution. The President is a creature of the Constitution, and must work under the Constitution. Nofurther words are, therefore, necessary to explain thatemphasis which should be--in fact, it is there--in the mainclause 2.

The next point is that it must be in accordance with the laws made thereunder. Now, in a variety of articles youhave given power to ParlI ament to make laws. If the laws aremade under the Constitution, which allow or explain orexpand the powers given to the several organs of Government,then it is quite in order to suggest that they should be inaccordance with the laws made thereunder.

Last comes advice--the advice of the Ministers,officers and servants of the Union. I think that also isimportant to include in the position of the President as itis. Later on I have tried to elaborate this point in asubsequent amendment which I shall deal with when I come toit.

In this case, however, because I want that mysuggestion should not be merely thrown overboard because it is inconsistent with the basic principle adopted in draftingthis Constitution, I have tried to harmonise the Ministerialresponsibility--I mean the doctrine of Ministerialresponsibility--with also the position of the President asthe head of the State and Chief Executive. I once more takethe analogy of the King of England, who has to act on theadvice of the Ministers. At least that is the constitutionalposition. Every Act begins: "let it be enacted by the King'sMost Excellent Majesty, with the advice of the LordsSpiritual and Temporal and the Commons". Every action is theaction of His Majesty in each particular matter as advisedby the particular Minister. The whole doctrine that "theKing can do no wrong" loses its import if the doctrine ofministerial advice and ministerial responsibility is notthere. I have, therefore, laid it down, by this amendment,that the President must act in accordance with the Constitution and in accordance with the laws made thereinand according to the advice of his ministers.

The addition of the "officers and servants of State" I have felt also necessary to be quite clearly expressed in the Constitution. The President should be entitled notmerely to listen to all that the Minister alone says to him;he must have power to consult any other expert, or any otherofficer, or servant of the State in India who may give himhis

views. It was, of course, the custom of the regimepreceding the present that the Secretaries, for example, ofDepartments had direct access to the head of the Government,along with or independent of the Member-in-charge of aGovernment Department. And though I am not keen on restoringthat principle, or that system of the Secretaries beingentitled to give independent and often conflicting oropposite advice to the head of the Government, as againsttheir Minister-in-charge, I certainly think that it would dono harm to the working of the constitutional machinery ifthe President is entitled, as a matter of right, to send forany expert officer, and ask his advice, say, for example,the Attorney-General, the Advocate-General, should thePresident have a legal doubt with regard to his ownposition, vis a vis his own Ministers.

He should be entitled, I submit, as head of the Stateand finally responsible person, to know what the expert in the department thinks. Under the parlI amentary party systemit will not be his veto, he would have no right to discardthe advice of his Minister. The Minister's advice willeventually prevail. But it will prevail only after thePresident has drawn attention, according to my conception,to the other aspects of the matter which the Minister hasover looked, or ignored.

It has been said by a great constitutional writer,analysing the Constitution of England a century ago, that the functions of the King,--the permanent Executive inBritain,--is to warn, to advise and eventually to surrender.The President, in the way that I am conceiving the matterhere, would have also the right to advise--not the advisefrom personal prejudice, but the advise from an informedexpert opinion having been previously obtained, as a matterof right, to elucidate any point coming before him: and thentelling his Minister concerned or the Ministry as a wholethat this is the proper view. If you do not think it isproper, very well then, you are the finally responsibleparty and you can do as you think proper. But in the Constitution a right must be provided for the President tobe able to obtain advice from the servants of the Crown.

I am not suggesting that he should be free to gooutside the country for such advice. I am not suggestingthat he should invite foreign experts to advise

him. He should be entitled to seek advice from his Ministersin the first place: then from the officers and from theservants of the State. This I think is in perfect harmonyeven if you conceive and take this Constitution to be on theprinciple of Ministerial responsibility, and so perfectlyproper to accept it. I, therefore, commend this motion to the House.

(Amendment No. 1041 was not moved.)

Mr. Mohd. Tahir (Bihar: Muslim): Sir, I move:

"That in clause (1) of article 42, after the words `andmay' the words `on behalf of the people of India' beinserted."

Now, Sir, if my amendment is accepted, the article willread as follows:

"The Executive power of the Union shall be vested in the President and may on behalf of the people of India beexercised by him in accordance with the Constitution and thelaw."

Artical 41 which we have adopted just now gives us tounderstand that the President will be the head of the State.Now, Sir, (a man can use his powers legally in two waysonly: either in his personal capacity or on behalf ofsomebody else. Therefore, we have to see how the Presidenthas to exercise these powers--whether on his own behalf oron behalf of somebody else. In this connection I will drawthe attention of the House to page 3 of the Government ofIndia Act, 1935, wherein we find that the Governor-Generalused to exercise the executive power on behalf of the thenKing Emperor of India: But now the ownership of this countryhas been transferred to none but the people of India alone.Therefore, it is necessary that all the powers that have tobe exercised in this country have to be exercised on behalfof the people of India.)

In this connection I will also point to article 49 ofthis Constitution wherein the oath has been prescribed for the

President and it says that--

"I, solemnly affirm that I willfaithfully execute the office of President of India and willto the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well being of the people of India."

Now, Sir, if my amendment is not accepted, article 42(1) coupled with the form of oath, will surely mean that thepersonality of the President is somewhat above the people ofIndia which it is absolutely not. I submit that because theownership of the country vests only with the people ofIndia, all the powers that have to be exercised by thePresident must be exercised on behalf of the people ofIndia alone and on behalf of none else. Therefore I hopethis amendment of mine will be accepted by the House.

(Amendment No. 1044 was not moved.)

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

"That for clause (2) of article 42, the following besubstituted:

`(2) Without prejudice to the generality of theforegoing provision and in accordance with this Constitutionand the laws made thereunder for the time being in force,the President shall--

(a) convene or dissolve the Legislature of the Union, and place before it any proposal for legislation or for sums of money needed for the good government and efficient administration of the country, or for its defence, or to provide for any sudden calamity in any part of the Union or any other emergency;

(b) have the power to assent to the laws duly passed by the Union Legislature;

(c) conduct and supervise any Referendum that may be decided upon to make to the Sovereign People in accordance with this Constitution;

(d) have the power to declare war, and make peace;

(e) be the supreme commander of all the armed forces of the Union;

(f) appoint all other executive and judicial officers, including the ministers, representatives of the Union in foreign countries as ambassadors, ministers, consuls, trade commissioners and the like; as well as the commanding officers in the armed forces of the Union;

(g) do all acts, exercise all powers and discharge all authority necessary or incidental to the power and authority vested in him by and under this Constitution;

(h) have power to refuse assent to any legislative proposal passed by both Houses of ParlI ament; or to recommend to ParlI ament that any legislative proposal passed by ParlI ament be reconsidered for reasons stated by the President, provided that any legislative proposal duly passed by ParlI ament, if refused assent by the President only once; and that the same proposal if passed in an identical form by ParlI ament in the next following sessions of that body, shall be deemed to have been duly passed and become an Act of the Legislature, notwithstanding that the President has refused or continues to refuse to assent thereto;

(i) in every case in which the President refuses to assent to any legislative proposal duly passed by ParlI ament, the President shall record his reasons for refusing to assent and shall forward the reasons thus recorded to ParlI ament;

(j) in any case where the President, having duly submitted to ParlI ament, or to the People's House thereof, a legislative proposal he deems necessary for the safety of the State, its integrity or defence or to safeguard the nation's interests in a national emergency, finds that ParlI ament is unwilling to consider or pass that proposal, may refer such a proposal to the people of the country; and if the proposal is approved, on such reference, on such reference, by a majority of not less than two-thirds of the citizens voting, it shall forthwith become a law of the land. If on such reference the proposal is not approved by the requisite majority, it shall be deemed to have been negatived, and shall be treated as void and have no effect."

Sir, this is, I admit, a somewhat lengthy amendmentintended to clear and make definite the powers of thePresident.

Before I come to the innovations or new ideas insertedin these powers as put forward by me, may I point

out oneitem, which perhaps the draftsmen might consider favourably,namely that (in the first clause of the article it has beenstated that the executive power of the Union shall be vestedin the President and "may be exercised" by him in accordancewith the Constitution and the law?) I am not a practisinglawyer, and, therefore, not be able to understand clearlythe meaning of this `may' in this connection. But, speakingonly as a commonsense man, (I feel that this `may' isproductive or likely to produce considerable mischief. If`may' in an option to the President, and there is noobligation by law of the Constitution upon him to exercisethe powers in accordance with the Constitution and the lawthereunder, or in accordance with the advice of hisMinisters, then I am afraid many powers--that is my reasonfor bringing in this amendment--may be exercised by him,which may not be against the written letter of the Constitution, but which in his judgment are necessary and,therefore, taking shelter under this expression `may', hemay do so.)

(For my part, however, I wish to leave no room fordoubt; and, therefore, in a previous amendment I said`shall' instead of `may'. And, now, lest there be anyfurther doubt or any margin or no-man's land, or any dubiousposition in which both may claim equal authority or equalpowers, instead of the rather mild description which isgiven in article 42 (1), I have tried to explain and makeclear all the 8 or 10 items, I have specifically enumeratedthem.)

A good many of them are, of course, beyond question,such as the right to convene or dissolve ParlI ament. Thesewill, of course, be done on the advice of the Ministers. Soalso the right to declare war or peace. This is merely atitular power, and it is also to be exercised on the adviceof the Ministers. Next we have the right to assent tolegislation passed by ParlI ament. I need not, I think, takethe time of the House in explaining those conventionallyadopted articles. The necessity for stating them, since youare stating them very briefly, or if I may say so,compendiously and clearly, is there, and it would be betterto define and put them in full.

I come next to the question of the right to refuseassent. It may seem as if it was an innovation of my own. Ido not think it is an innovation, because, technically atany rate, in the model on which this Constitution is basedor appears to be made, viz. that of the United Kingdom, theKing's veto is not abolished, as the veto of the House ofLords for instance is modified. There, there are a number ofconventions which have for centuries past guided theministers and the people in dealing with any exercise ofroyal authority whether by prerogative or otherwise whichdoes not infringe the spirit, if not the letter of the Constitution as well.

Here, however, we are making a new Constitution, and weare starting upon a new democratic career on a very largenational scale. After all, you must remember that the UnitedKingdom compared to India is perhaps not one-tenth or one-twelfth in size; and, in point of population, it is perhapsone-sixth or one-fifth in strength of numbers. Therefore,what may have suited that country and its ways may not suitus. At any rate, they have a long history of precedents andconventions behind them. We have to make those precedentsand conventions. I therefore submit it would be as well forus not to leave any room for doubt, and make precise andexplicit the powers that we are vesting in the President.

The right to give assent carries with it the right torefuse assent, unless you positively state that thePresident will not be able to refuse assent. In my amendmentI have, however, laid down the conditions under which theright to refuse assent may be safeguarded. The right torefuse assent is given only once. In spite of the refusal,if ParlI ament proceeds with the legislation in identicalform, whether or not the President agrees, it will becomelaw. The privileges of the President, according to myamendment, only lies in his stating the reason for refusinghis assent. Being popularly elected, as I

conceive it, he isbound, in his sense of true responsibility to the people, tolay before their representatives the reasons which haveactuated him in refusing assent. I do not think there isanything revolutionary in making such a suggestion.

The second innovation is in regard to reference to thepeople, or Referendum. Now, this Constitution does notprovide for reference to the people, notwithstanding thefact that we talk again and again of the people'ssovereignty, of the people being the ultimate sovereign ofthis country. Our regard for reference to the people, orconsultation with the people, is expressed if at all only ina quinquennial election, a general election to ParlI ament.In a general election, however, so many issues are mixed up;so many crosscurrents take place; so many moves and counter-moves happen that the consultation with the people, or theverdict of the people on such variety of issues is onlynominal, if I may say so without any disrespect.

If you seriously, if you sincerely, if you reallydesire that the people shall be sovereign, if you want that the people be consulted in any emergency when your twoorgans of power, viz., the Legislature and the Executive,are unable to agree, then the test will lie in yourreadiness to consult the people. It may be that theemergency may be so momentous that you cannot dissolveParlI ament. It may be that the state of emergency may besuch that the President cannot retire, and will not tenderhis resignation. Or it may be only a matter involving suchstrong difference of opinion that neither is prepared toyield. At that moment it is but right that the view of thepeople should be ascertained on the specific single issueworded so as to admit of a categorical answer, `Yes' or`No'.

Surely the test of this Constitution enshrining thesovereignty of the people is not merely the lip-loyalty thatseems to be very common in this

Draft. The argument could be urged, and was urged by thosewho were against people's sovereignty in fact and in name,that the people are not ready; or that they are not educatedenough to give any decisive opinion on such complicatedissues of foreign or local policy. I trust that in thisHouse, we shall not hear such an argument. Backward as wemay be--only ten or twelve percent of us may be literate--whatever may be our deficiency or handicaps, I take it thatwe are all sincere, true in our belief that ultimately thepeople are sovereign. Where there is collective wisdom,there is after all real salvation. Vox populi vox Dei--Thevoice of the people is the voice of God.

That, I take it, is not merely a figure of speech, isnot merely a maxim used to hypnotise children, but isintended for serious legislators to take into account andact up to it. I invite you, therefore, with all theearnestness I command to consider this matter seriously. Ifyou think that you will take counsel together, on thisamendment before giving a positive decision, here at least I am agreeable to hold over this amendment. But I beg of youwith all the earnestness at my command that, if you aresincere in your desire to make the people truly sovereign,if you want them to be trained in the art of workingdemocracy, if you desire that they shall be the finalarbiters on all issues, then for goodness' sake, do nottreat this with your Party label of opposition, right orwrong.

I have not conceived my role in this House as a cussedopposition, to oppose things on every ground and on anyground. I take myself to be a friendly critic, always readyto offer constructive views with such brains or such abilityas I have. It may be that they do not appeal to you for onereason or another. But here is a case in which I venture tosubmit that, if your really believe in the sovereignty of the people, if you honestly believe that the people are thetrue masters of our destiny, you cannot shirk thisamendment. Do not decline it on merely technical grounds ofits being not in proper time or place or out of place andsuch other camouflage. Let me also point out that I have notomitted to put in certain conditions and

safeguards, so thatif and when you consult the sovereign people you will notmerely have a chance decision, but the considered opinion ofa real majority of our voters. In that case, even if thedecision is wrong, we shall all be in the same boat. It isfar better to sink with our fellows than swim with ourmasters.

(Amendments Nos. 1046 and 1047 were not moved.)

Mr. Vice-President: Amendment No. 1048 standing in thename of Mr. Naziruddin Ahmad.

Mr. Naziruddin Ahmad (West Bengal: Muslim): I beg tomove:

"That for sub-clause (a) of clause (3) of article 42,the following be substituted:

`(a) be deemed to authorise or empower the President to exercise any power or perform any function which by any existing law is exercisable or performable by the Government of any State or by any other authority; or'"

Sir, I beg to submit that this amendment will have aneffect quite contrary to some of the amendments which havebeen moved by Prof. K. T. Shah. It purports to limit thepower of the President in this way that, if any power isspecifically exercisable by any State or any localauthority, the President will not be empowered to exercisethose powers. In fact, I want to make the President aperfectly constitutional President. It has been pointed outthat parlI amentary legislation in the United Kingdom is in the form that "Be it enacted by the King's Most ExcellentMajesty on the advice of the Lords Spiritual and Temporaland the Commons in this ParlI ament assembled" etc. Sir, Ibeg to submit that this does not give the King any power.The British are an extremely conservative people. They carryon with old forms. Although the King's power is practicallyentirely extinct, the old form is kept up. To introduce thisform here would be to give the President plenary powers to

override the Executive and to a large extent flout thedecisions of the Legislature. Therefore, I think that thepowers of the President should be limited to those of astrictly Constitutional President. The amendment seeks todebar the President from exercising any powers exercisableby the Provinces or the local or other authorities. Thepresent amendment should be considered from this point ofview. I do not wish to dilate on the merits and demerits of the proposition any further. This is a view point, which, Isubmit, should be considered by the House.

(Amendment No. 1050 was not moved.)

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

Shri R. K. Sidhwa (C. P. & Berar: General): Mr. Vice-President, Sir, I closely followed the amendment moved by myhonourable Friend, Prof. K. T. Shah, and also listened tohis speech with rapt attention. I give credit for histenacity for bringing in his view-point by various ways inthis House, and to see that they are implemented by changingthe very fundamentals of this Constitution from time totime. In this amendment that he has proposed, Sir, it willbe seen that many of the clauses refer to the fundamentalchanges, and some of them, of course, could be provided in the rules and regulations to be made after the Constitutioncomes into force. But that apart, Sir, I will presentlyshow to this House how some of the suggestions that he hasmade in this amendment may be commendable for acceptance ifa different type of Constitution were to be framed, but thefact is that we have taken a decision on a democraticparlI amentary system of Government and if his proposal isaccepted, it cannot fit in or suit the provisions we haveprovided in the Constitution.

For instance, in his amendment, Prof. Shah says: ThePresident shall place before the Legislature of the Union`any proposal for legislation or for sums of money neededfor the good government and efficient administration of thecountry. He wants that the President should be empoweredwith those powers. I want to know, Sir, how it would fit inwith an Executive responsible to the Legislature, if thepower of spending of money is vested in the President. It isthe very negation of the very fundamental principle that we have accepted after a long discussion of five days in

theopening session of this Constituent Assembly.

Then he says: "or for its defence, or to provide forany sudden calamity in any part of the Union or any otheremergency;". Our Constitution has provided power to thePresident for emergency purposes, but may I know, Sir, in aresponsible Legislature does Prof. Shah want the powers todeclare war or peace to be entrusted absolutely to thePresident? Even in a responsible parlI amentary Governmentthat will be certainly most objectionable. If a war has tobe declared, the President will certainly have the power; heis the supreme head of Defence under our Constitution, butthe House has to be taken into confidence. The Governmenthas to consider this point. Suppose this clause is passed,and some autocrat President comes into existence and says:"I want to declare a war in view of some exigencies arisinghere or around our country". Would this be called aresponsible Government? Absolutely not, Sir.

Then in clause (h) of his amendment he says that whenboth Houses of ParlI ament pass the bills, they go to thePresident. That is understandable. Again they come beforethe House and then with a certain majority he wants thosebills to be passed. There may not be a very seriousobjection to that, but I find Sir, if his clause (i) isaccepted, there would be a deadlock always between thePresident's action and the ParlI ament and if all theseclauses are

finalised, it will come to nothing else, but a chaos betweenthe Government and the President and who would like, Sir,the President being entrusted with the powers of theExecutive? Certainly we do not want them.

As regards the type of Government, Sir, some of theprovisions of the American type of Government may be good,but let me tell you, Sir, I have pondered over this matteras to what type of Government should be suitable to ourcountry and I have come to the conclusion that the BritishParlI amentary procedure, which is really democratic, barringSoviet system of Government, is really suited to ourcountry. Secondly, what is wrong, I ask, in the Constitutional democracy? Similarly as we are runningelections on a party system, it is run on a party system inEngland. Prof. Shibban Lal stated "Mr. Churchill was thrownout by the electorate although he was considered to be thebest man during war-time." Perfectly right. Mr. Churchillstood in the election through a party and he was consideredas the best man during war and he was not accepted by themajority for peace time. Similarly it may happen in ourcountry. We have the party system, elections, etc. Itherefore contend, Sir, that the amendments which myhonourable Friend Prof. Shah has given notice of may begood; he deserves credit for his trying to convert theMembers of this House to his point of view. I do not disputehis sincere belief, but I must say that the House hasconsidered that a particular type of Government is reallydesirable and I think, Sir, these amendments cannot fit inand would not fit in the Constitution. I do feel that someof them may be good, but the House has taken a decision onthe type of Government and I therefore oppose the amendmentproposed by Prof. K. T. Shah.

Shri Jagat Narain Lal (Bihar: General): Mr. Vice-President, Sir, I would have liked very much to vote for the amendment moved by Prof. K. T. Shah, but I feel that itruns counter to the view which we have held, so far asintroduction of democracy in our country is concerned. Itseems clear that Prof. Shah sticks to the view that thePresident of the Indian Union should wield the same powersand authority as the President of the American Republic. Ifthat is his intention, as I take it to be, I think we wouldall agree that we do not share that view. So far as ourConstitution goes, the powers which we propose to vest in the President are the powers more or less on the lines of the Irish Republic. There are several models with regard tothis. One is the latest, the power wielded by the Presidentof the Irish Republic. So far as Great Britain is concerned,we all know that the King is a constitutional head and thereis no such thing as

President and he has certain powers,privileges and other conventions. The power wielded by theFrench President are more or less nominal. He is more of atitular head. Under the Weimar Constitution, the Chairman-President used to wield great powers, but we see that eventhe Chairman-President of the Reich, even he, in declaringwar had to take the approval of the ministers and the Reichitself. Even in making treaties and alliances, he had totake their approval. But Prof. Shah makes a more drasticproposal. He says that even wars and treaties he can make.He does not say that in so many words, but he wants to leaveit to the Constitution rather than to convention. If hemakes wars or treaties, he may consult; he will, as a matterof course, consult. But he does not want to provide for thatin the Constitution. Therefore, Sir, I feel it is notpossible to agree with Prof. K. T. Shah. There is afundamental difference in the view that he takes of thepowers which are to be given to the President of the IndianUnion. I feel he wants it to be on the American model,whereas we feel that the powers which we want to vest in thePresident are not to be on that model, but, I take it, moreor less on the model of the powers vested in the Presidentof the Irish Republic.

Sir, I do not want to prolong the debate; I havefinished.

Shri K. M. Munshi (Bombay: General): Mr. Vice-President, Sir, the previous speakers have already drawnattention to the fact that the amendments moved by myhonourable Friend Prof. Shah not only to this article, butto the subsequent articles, create a fundamental change in the whole structure of the Constitution that this House hasenvisaged for the last year and a quarter. At the earlierstage of the Union Constitution Committee, It was decided,it was decided, I think possibly with one or two dissidentvoices, that our Central Government should be based on theEnglish model and that the American model or rather themodel of the United States of America was to be rejected fortwo valid reasons. The two issues that have been before the House and the several Committees were these: what would makefor the strongest executive consistently with a democraticconstitutional structure, and the second issue is which isthe form of executive which is suited to the conditions ofthis country. I fail to see how from any of these points ofview, the amendments of my honourable Friend can find favourwith this House.

Already reference has been made to an amendment movedby my honourable Friend and lost in this House about theseparation of powers. It must not be forgotten that theAmerican Constitution was made long ago, in the 18thCentury. The makers were then guided by Montaigne'sinterpretation of the British Constitution that there wasseparation of powers in England. They thought that they weretranslating Montaigne's analysis into a constitutionalstructure. The powers that were given to the President in the Constitution of America were based on what is now heldon all accounts to be a misreading of the BritishConstitution in the 18th Century.

As already pointed out by my honourable Friend Dr.Ambedkar, even in America, they have found it impossible tomaintain the principle of separation of powers. We know that the Constitution in America is not working as well as theBritish Constitution, for the simple reason that the ChiefExecutive in the country is separated from the legislature.The strongest Government and the most elastic Executive havebeen found to be in England and that is because theexecutive powers vest in the Cabinet supported by a majorityin the Lower House which has financial powers under the Constitution. As a result, it is the rule of the majority in the legislature; for it supports its leaders in the Cabinet,which advises the Head of the State, namely, the King or thePresident The King or the President is thus placed aboveparty. He is made really the symbol of the impartial dignityof the Constitution. The Government in England inconsequence is found strong and elastic under allcircumstances. The power of the Cabinet in England today

isno whit less than the powers enjoyed by the President of theUnited States of America. By reason of the fact that thePrime Minister and the whole Cabinet are members of the legislature, the conflict between the authority wielding theexecutive power and the legislature is reduced to minimum;really there is none at all; because, at every moment oftime, the Cabinet subsists only provided it carries with itthe support of the majority in the ParlI ament. It is thatcharacter of the British Constitution that has enabled theBritish Government to tide over the many difficulties whichit has had to face during the last 150 years. Therefore,between the two Executives, one on the American model and the other on the British model, there can be no question ofpreference. The British model has been approved by every oneincluding leading American constitutional experts as reallybetter fitted for modern conditions.

Apart from that, the second issue which the House hasto consider is, what is the best form suited to Indianconditions. We must not forget a very important fact thatduring the last 100 years, the Indian public life haslargely drawn upon the traditions of the BritishConstitutional law. Most of us, and during the last severalgenerations before us, public men in India, have looked upto the British model as the best. For the last thirty orforty years, some kind of responsibility has been introduced in the governanceof this country. Our Constitutional traditions have becomeparlI amentary and we have now all our provinces functioningmore or less on the British model. As a matter of fact,today, the Dominion Government of India is functioning as afull fledged ParlI amentary Government. After this experiencewhy should we go back upon the tradition that has been builtfor over 100 years, and try a novel experiment which was, asI said, framed 150 years ago and which has been foundwanting even in America? I, therefore, submit that from thispoint of view that the whole scheme put forward by thevarious amendments of Prof. Shah has not been accepted bythe House so far, has not yielded the best possible resultelsewhere and is against the tradition which has been builtup in India. Therefore, I submit, Sir, that the amendmentshould be rejected.

Shri Alladi Krishnaswami Ayyar (Madras: General): Mr.Vice-President, Sir, Prof. Shah's amendment, if it meetswith the acceptance of the House, would mean that the House,for the reasons which Prof. Shah has assigned, is going backupon the decision reached by various Committees of thisHouse as well as by the Constituent Assembly afterconsiderable deliberation on previous occasions.

Apart from this question that it will involve goingback upon the decision solemnly reached, there are weightyreasons why what may be called the Cabinet type ofGovernment should be preferred in this country to what isgenerally known as the Presidential type of Government. In the first place the idea is to take the various units andprovinces and the States into the Federation. There is atpresent no idea of effacing the Rulers from the variousStates. What are we going to do in the case of the States ifyou are going to have what is called the Presidential systemat the Centre? Does it mean that in the States the Rulerswill again be invested with real executive power and the legislatures be confined purely to their legislativefunctions? It will be against the marked tendency of thetimes. It will create insuperable difficulties in the IndianStates. That is one point which may be considered.

The second thing is that so far as the provinces inIndia are concerned, we have been accustomed to somethinglike the Cabinet form of Government for some years. We havegot into that frame-work. Before that, Dyarchy was in forcefor some time. And we have been working responsibleGovernment for some time in the different units in India. Indealing with the American Presidential system it must beremembered that the Presidential system is in vogue notmerely in the Centre but in the different States in America.There is complete separation between

the Legislature and theExecutive, not merely in the Centre but also in thedifferent States. It is also necessary to take into accountthe historic conditions under which the Presidential systemwas started and worked in America. The distrust of GeorgeIII, the conditions under which the rebellion was started,the perpetual feud between the ParlI ament and the Executiveand the earlier history of the Petition and the Bill ofRights, they all account to a very large extent for thePresidential system in America, apart from the theoriesinculcated by Montesco and other leaders of politicalthought as to the necessity of separation of functionsbetween the Legislature and the Executive. Then (there areobvious difficulties in the way of working the Presidentialsystem. Unless there is some kind of close union between the legislature and the Executive, it is sure to result in aspoil system. Who is to sanction the budget? Who is tosanction particular policies? The ParlI ament may take oneline of action and the Executive may take another line ofaction. An infant democracy cannot afford, under modernconditions, to take the risk of a perpetual cleavage, feudor conflict or threatened conflict between the Legislatureand the Executive. The object of the present constitutionalstructure is to prevent a conflict between the Legislatureand the Executive and to promote harmony between the different parts of the Governmental system.) That is the main objectof a Constitution. These then, are the reasons whichinfluenced this Assembly as well as the various Committeesin adopting the Cabinet system of Government in preferenceto the Presidential type. It is unnecessary to grow eloquentover the Cabinet system. In the terms in which Bagehot hasput it, it is a hyphen between the Legislature and theExecutive. In our country under modern conditions it isnecessary that there should be a close union between the legislature and the Executive in the early stages of thedemocratic working of the machinery. It is for these reasonsthat the Union Constitution Committee and this Assembly haveall adopted what may be called, the Cabinet System ofGovernment. The Presidential system has worked splendidly inAmerica due to historic reasons. The President no doubtcertainly commands very great respect but it is not merelydue to the Presidential system but also to the way in whichAmerica has built up her riches. These are the reasons forwhich I would support the Constitution as it is and opposethe amendment of Prof. Shah.

The Honourable Dr. B. R. Ambedkar: I am sorry I cannotaccept any of the amendments that have been moved. So far asthe general discussion of the clause is concerned, I do notthink I can usefully add anything to what my friends Mr.Munshi and Shri Alladi Krishnaswamy Ayyar have said.

Mr. Vice-President: I am putting the amendments one byone to vote. First part of No. 1040. The question is:

"That for clause (1) of article 42, the following besubstituted:

`(1) The sovereign executive power and authority of the Union shall be vested in the President, and shall be exercised by him in accordance with the Constitution and in accordance with the laws made thereunder and in force for the time being.'"

The motion was negatived.

Mr. Vice-President: I put the second part of No. 1040.

The question is:

"That for clause (1) of article 42, the following besubstituted:

`(1) The executive authority, power and functions of Government shall be vested in the President, and shall be exercised by him in accordance with the Constitution and the law with the advice and help of such ministers, officers or servants of the State as may be deemed necessary for him.'"

The motion was negatived.

Mr. Vice-President: I put amendment No. 1045.

The question is:

"That for clause (2) of article 42, the following besubstituted:

`(2) Without prejudice to the generality of theforegoing provision and in accordance with this Constitutionand the laws made thereunder for the time being in force,the President shall--

(a) convene or dissolve the Legislature of the

Union, and place before it any proposal for legislation or for sums of money needed for the good government and efficient administration of the country, or for its defence, or to provide for any sudden calamity in any part of the Union or any other emergency;

(b) have the power to assent to the laws duly passed by the Union Legislature;

(c) conduct and supervise any Referendum that may be decided upon to make to the Sovereign People in accordance with this Constitution;

(d) have the power to declare war, and make peace;

(e) be the supreme commander of all the armed forces of the Union;

(f) appoint all other executive and judicial officers, including the ministers, representatives of the Union in foreign countries as ambassadors, ministers, consuls, trade commissioners and the like; as well as the commanding officers in the armed forces of the Union;

(g) do all acts, exercise all powers and discharge all authority necessary or incidental to the power and authority vested in him by and under this Constitution;

(h) have power to refuse assent to any legislative proposal passed by both Houses of ParlI ament; or to recommend to ParlI ament that any legislative proposal passed by ParlI ament be reconsidered for reasons stated by the President, provided that any legislative proposal duly passed by ParlI ament, if refused assent by the President only once; and that the same proposal if passed in an identical form by ParlI ament in the next following sessions of that body, shall be deemed to have been duly passed and become an Act of the Legislature, notwithstanding that the President has refused or continues to refuse to assent thereto;

(i) in every case in which the President refuses to assent to any legislative proposal duly passed by ParlI ament, the President shall record his reasons for refusing to assent and shall forward the reasons thus recorded to ParlI ament;

(j) in any case where the President, having duly submitted to ParlI ament, or to the People's House thereof, a legislative proposal he deems necessary for the safety of the State, its integrity or defence or to safeguard the nation's interests in a national emergency, finds that ParlI ament is unwilling to consider or pass that proposal, may refer such a proposal to the people of the country; and if the proposal is approved, on such reference, by a majority of not less than two- thirds of the citizens voting, it shall forthwith become a law of the land. If on such reference the proposal is not approved by the requisite majority, it shall be deemed to have been negatived, and shall be treated as void and have no effect."

The motion was negatived.

Mr. Vice-President: I now put No. 1048 to vote.

The question is:

"That for sub-clause (a) of clause (3) of article 42,the following be substituted:

`(a) be deemed to authorise or empower the President to exercise any power or perform any function which by any existing law is exercisable or performable by the Government of any State or by any other authority; or'"

The motion was negatived.

Mr. Vice-President: Now the question is:

"That article 42 stand part of the Constitution."

the motion was adopted.

Article 42 was added to the Constitution.

Article 43

Mr. Vice-President: We have some 12 minutes more and Ipropose to go on to the next article.

The motion is:

"That article 43 form part of the Constitution."

Amendment No. 1051--Mr. Damodar Swarup.

Shri Damodar Swarup Seth (United Provinces: General):Sir, I beg to move:

"That for articles 43 and 44 the following besubstituted:

`The President shall be elected by means of the single transferable vote by an electoral college composed of the members of ParlI ament and an equal number of persons elected by the Legislatures of the States on population basis under the system of single transferable vote.'"

Sir, article 43 provides, for the election of thePresident of the Union of India, an electoral collegecomposed of the members of both Houses of ParlI ament andelected members of the Legislatures of

the States, whilearticle 44 lays down the details of the procedure to beadopted in the elections of the representatives of the States. Now, so far as the system of proportionalrepresentation by means of the single transferable vote isconcerned, I hope every honourable Member of the House willwelcome it. But so far as the inclusion of members of theCouncil of States and the members of the LegislativeCouncils of the States is concerned, I am opposed to theirinclusion in the election of the President. Not only that,Sir, I am opposed to the very existence of these Housesunder the new Constitution. Now, Sir, bicameral legislationis no more regarded as an essential feature of the Federalpolity or of a sound democratic Constitution. At best it isa conservative device to delay progress. Sir, Prof. laskihas very rightly remarked that the safeguards required for the protection of the unit of a federation do not need thearmour of a second chamber. All the requisite protection to the units of a federation is secured by the terms of theoriginal distribution of powers embodied in the Constitution, and the right to judicial review by thecourts. In all federal States, Sir, the party systemoperates alike in both the chambers of the legislatures, and the members of the second chamber are also elected on partysystem. Not only that, they work and vote also under theguidance of the party in much the same way as members of their respective parties in the Lower House. The relativestrength of the national parties in the two Houses is nodoubt different, but this difference in the number ofmembers of the two Houses only promotes confusion anddeadlock. Neither is it wise to entrust the protection ofregional and national interests to two different chambers offederal legislature; nor have second chambers justifiedtheir existence by protecting the regional and nationalinterests. The members of both the chambers have reacted tonational and regional interests in much the same way. Theprinciple of representation of constituent units aspolitical entities through nomination by the localexecutive, or election by the legislature of the units isalso not accepted by modern thinkers as valid. While most of the members of the Council of State are to be elected byindirect election, some are also to be nominated. The systemof nomination, Sir, is undemocratic, while that of indirectelection, in the words of Prof. Laski, "is the worst systemwhich maximises corruption. Now, Sir, (as for the details of the procedure of election given in article 44, and in thefoot-note to that article, I submit that it is not onlycomplex, but very complicated, and do not ensure uniformityin the scale of representation of the State. My amendment,on the other hand, Sir, suggests a system which is verysimple and can be operated without much difficulty, anddoes, at the same time, ensure uniformity, as desired, in the scale of representation of the State.) I therefore, hopethat the House would have no hesitation in accepting thisamendment of mine.

(Amendment No. 1052 was not moved.)

Mr. Vice-President: There are two or three amendmentsof the same type and I want to know which of them is goingto be pressed. They are amendments Nos. 1053, 1055, 1057,1059 and 1062.

(Amendments Nos. 1055, 1059 and 1062 were not moved.)

Mr. Vice-President: so we have two amendments of thesame type, Nos. 1053 and 1057. I can allow No. 1053 standingin the name of Prof. K. T. Shah to be moved.

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

"That for article 43 the following be substituted:

`43. The President shall be elected by the adult citizens of India, voting by secret ballot, in each constituent part of the Union.'"

Mr. Vice-President: You can continue your speech onMonday.

The House stands adjourned to 10 A. M. on Monday.

The Constituent Assembly then adjourned till Ten of theClock on Monday, the 13th December 1948.