CONSTITUENT ASSEMBLY OF INDIA - VOLUME VII


Wednesday, the 29th 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.

TAKING THE PLEDGE AND SIGNING THE REGISTER

The following members took the pledge and signed theRegister:--

1. Shrimati Annie Mascarene (Travancore).

2. Shri Sita Ram Jaju, [United State of Gwalior-Indore- Malwa (Madhya Bharat)].

Mr. Vice-President (Dr. H. C. Mookherjee): We shall now resume discussion on article 55. Mr. Bharathi.

Shri L. Krishnaswami Bharathi (Madras: General): Mr.Vice-President, Sir, article 55 is under general discussion.The House might remember that yesterday Mr. Naziruddin Ahmad moved an amendment standing in his name under No. 1220. Though we cannot straight away accept the amendment, I felt there was very great force in his contention. His amendment was to delete the words `proportional representation' in article 55. As I understood him, he had no objection to the transferability of vote, but he took objection to the phraseology of that system. In fact, he said that there is no question of proportional representation when the candidate to be elected is only one. There is no idea of proportional representation in such a case of single-member constituency. That word means in the resultant election there must be some proportion; in proportion to the strength of the electors, you get seats there. And therefore he took objection to the words `proportional representation'.

I happened to go through some literature on the subject and I found there is great force in what he said. The same difficulty was felt in England, and there was a Royal Commission to go into the question of all electoral systems.As a result, two bills were introduced in 1908 in the Houseof Commons by Mr. Robertson and they found that`proportional representation' was not the proper word. Thesystem is all right, i.e., the transferability of voting,when there is a multiplicity of candidates; when the election to be made is only for one candidate, it is obvious that in order to get an absolute majority, we must have what is known as transferability. That is admitted. But in thecase of single-member constituency they have hit upon the word--the proper word is what they call `alternative vote'.I only take leave, Sir, to read an authority on the subject--Humphreys--in this connection. This is what the author says:--

"In recent years the phrase "alternative vote" has been employed in England, and was adopted by the Royal Commissionon Electoral Systems as a means of distinguishing the use of the transferable vote in single member constituencies from its use in multi-member constituencies."

There is a difference made in multi-member constituencies,and the words proportional representation' have meaning and therefore though the transferability is maintained, in order to distinguish from the system of multi-member constituencies the single-member constituencies, they have used the word `alternative vote'. The memorandum of Mr.Robertson's Bill goes on to say-- "The principle of the alternative vote is extremely simple. Its purpose and mechanism is set forth in the memorandum of Mr. Robertson's Bill, which is as follows:--

"The object is to ensure that in a parlI amentary election effect shall be given as far as possible to the wishes of the majority of electors voting. Under the present system when there are more than two candidates for one seat it is possible that the member elected may be chosen by a minority of the voters.

"The Bill proposes to allow electors to indicate on their ballot papers to what candidate they would wish their votes to be transferred if the candidate of their first choice is third or lower on the poll and no candidate has an absolute majority. It thus seeks to accomplish by one operation the effect of a second ballot.

I therefore, think that this word which has been invogue not only in England but in the Australian States also ever since 1911 must be taken

advantage of and incorporated in our constitution so as to distinguish the present case from the case of plural-members constituencies and to avoid the absurdity of having the word `proportional representation'.

It may not be possible straight away to accept this suggestion, but I would request Dr. Ambedkar and the Constitutional Adviser, Sir B. N. Rau to give consideration to this idea. There is no particular reason why, when an exact and precise word is there, which has been in use in England, we should not have it. After all, we have to make some rules or lay down some process to indicate what exactly is meant by this system. There are a number of systems even in the single transferable vote system--the Hare system and others. We may have to bring in a bill or some rule to indicate the difference.

Objection may be raised that we are now familiar with the word--proportional representation. But, I submit that we are not familiar with it in the case of single member constituencies, and this is the first time that we are having a single member constituency. Therefore, it is but proper that we should think of the word-- "alternative vote", as it was accepted by the Royal Commission or Electoral System.

Thank you, Sir.

Mr. Vice-President: Dr. Ambedkar.

The Honourable. Dr. B. R. Ambedkar (Bombay: General):Mr. Vice-President, Sir, I regret that I cannot accept any of the amendments which have been moved, to this article. So far as the general debate is concerned, I think there are only two amendments which call for any reply. The first is the amendment moved by Mr. Tahir, No. 1215. Mr. Tahir's amendment proposes that the same system of election which has been prescribed for the President should be made applicable to the election of the Vice-President. Now, Sir,the difference which has been made in the Draft Constitution between the system of election to the Presidentship and the system of election for the Vice-Presidentship is based upon the functions which the two dignitaries are supposed to discharge. The President is the Head of the State and his powers extend both to the administration by the Centre as well as of the States. Consequently, it is necessary that in his election, not only Members of ParlI ament should play their part, but the Members of the State Legislatures should also have a voice. But when we come to the Vice-President,his normal functions are merely to preside over the Council of States. It is only on a rare occasion, and that too for a temporary period, that he may be called upon to assume the duties of a President. That being so, it does not seem necessary that the Members of the State Legislatures should also be invited to take part in the election of the Vice-President. That is the justification why the Draft Constitution has made a distinction in the modes of election of these two dignitaries.

The second amendment which calls for a reply is the amendment moved by Mr. Naziruddin Ahmad, No. 1219. He has suggested that the word "assembled" should be dropped. Now,the reason why the word "assembled" has been introduced in this article is to avoid election being conducted by posting of ballot papers. We all know that the postal system, when used for the purpose of electioneering is liable to result in failure. Either the ballot papers posted may not reach the destination and may be lost in transit; or it is perfectly possible for a candidate to send round his agents in order to collect the ballot papers so that he may obtain possession of them, sign them himself and send them on without giving any opportunity to the elector himself to exercise his freedom in the matter of election. It is for this reason that it was decided that the election should take place when the two Houses assemble, so as to prevent the misuse of posting. Now, I do not think that the calling together of a meeting of the Members of ParlI ament for this purpose is going to introduce in practice a difficulty, oris going to introduce any inconvenience. After all, Members of ParlI ament would be meeting together for the

purposes of legislation, and it would be perfectly possible to have the election during one of those sessions. I, therefore, submit that the original language is the more justificable one, in view of the circumstances I have mentioned.

Now, Sir, with regard to Prof. K. T. Shah's amendment that the disqualifications with regard to the Vice-President should be specified in the Constitution itself, that is a matter which I have already dealt with when replying to a similar amendment moved by him with regard to the President,and I said that this is a matter which could be provided forby law made by ParlI ament.

With regard to the suggestion which has been made both by Mr. Bharathi and Mr. Naziruddin Ahmad about the use of the words "alternative vote", all I can say is this. It it is merely a matter of change of language, it might be possible for the Drafting Committee at a later stage, to consider this matter. But if--and I am not prepared to commit myself one way or the other--the alternative votedoes involve some change of substance, then I am afraid it will not be possible for us to consider this matter at any stage at all.

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

The question is:

"That for clause (1) of article 55 the following be substituted:

`(1) The Vice-President shall be elected in the same manner as provided in article 43.'"

The amendment was negatived.

Mr. Vice-President: The question is:

"That in clause (1) of article 55, the words "assemble dat a joint meeting" be omitted, and the clause as so amended, be re-numbered as article 55."

The amendment was negatived.

Mr. Vice-President: Amendment No. 1220, standing in the name of Mr. Naziruddin Ahmad.

Mr. Naziruddin Ahmad (West Bengal: Muslim): Sir, in view of the assurance given that it will be considered by the Drafting Committee, I will not gested this amendment.

Mr. Vice-President: Is there the necessary permission of the House not to put it to the vote?

The amendment was, by leave of the Assembly, withdrawn.

Mr. Vice-President: The question is:

"That in clause (2) of article 55, for the words " either of ParlI ament or" the words "of either House of ParlI ament or of a House", for the words " member of ParlI ament or" the words "member of either House of ParlI ament or of a House", and for the words "in ParlI ament or such Legislature, as the case may be" the words "in that House" be substituted respectively."

The amendment was adopted.

Mr. Vice-President: The question is

"That in sub-clause (c) of clause (3) of article 55, after the words `Council of State', the following be added:- "and is not disqualified by reason of any conviction for reason, or any offence against the safety, security orintegrity of the State, or any violation of the Constitution, or has been elected and served more than onceas President or Vice-President of the Union."

The amendment was negatived.

Mr. Vice-President: The question is:

That in clause (4) of article 55, for the words "orposition of emolument" wherever they occur the words "of profit" be substituted.

The amendment was adopted.

Mr. Vice-President: The question is:

That for sub-clause (a) of the Explanation to clause(4) of article 55, the following be substituted:

"(a) he is the Governor of any State for the time being specified in Part I of the First Schedule or is a minister either for India or for any such State, or".

The amendment was adopted.

Mr. Vice-President: The question is:

That article 55, as amended, stand part of the Constitution.

The motion was adopted.

Article 55, as amended, was added to the Constitution.

Article 56.

Mr. Vice-President: We now proceed to article 56.

The motion is:

That article 55 form part of the Constitution.

The first amendment is 1258. The first alternative is disallowed as being verbal. The second alternative may bemoved.

(Second alternative of amendment No. 1258 was not moved.)

Prof. Shah--Amendment No. 1259.

Prof. K. T. Shah

(Bihar: General): Mr. Vice-President,Sir, I beg to move:

That article 56 be numbered as clause (1) of the article and the following new clauses be added after that:

(2) The Vice-President shall have an official residence and there shall be paid to the Vice-President such emoluments and allowances, not exceeding those granted to the President, as may be determined by ParlI ament by law, and until provision in that behalf is made by Act of ParlI ament, the Vice- President shall be paid a monthly salary of Rs. 4,500.

(3) The emoluments and allowances of the Vice-President shall not be diminished during his term of office.

(4) Every Vice-President, on completion of his term of office and retirement shall be given such pension or allowance during the rest of his life as ParlI ament may by law determine, provided that, during the life time of any such Vice-President in retirement and pensioned, such pension or allowance shall not be diminished.'"

In presenting this motion to the House, I have to put forward three grounds which I hope will commend themselves to the House. The provision of an official residence for the Vice-President is no less important than that for the President. I hold it, Sir, that high officers of Government should not be obliged to rent their premises, and be in anyway obliged to the landlord by hiring accommodation from them. Not only is the great evil of Pugree system that is going on at the present time under the Rent control system in itself a source of great temptation, and so must be condemned, and kept out of access to such exalted dignitaries. The relationship of landlord and tenant, where under quite possibly such important officials may fall into a position of undue influence being exercised upon them, and their conduct in their office be affected thereby, is byitself a source of evil.

It is therefore a simple proposition which I trust noone would take exception to, viz., that high Government officials, who have in their power executive or other influence to wield, should not be at the mercy or under the influence of any private individual who may seek his ownadvantage through that influence.

I am aware that the Vice-President is, under this Constitution, not given any position of executive power orpatronage; and, as such, it is quite arguable that in his case, at any rate, the main ground on which I urge this will not be applicable. But on the other hand, I would submit that after all the Vice-President would be the second personage in the country in point of social status and importance. Even if he has no executive authority or political patronage to give, he is a personage and dignitary who should be safe guarded against all temptation. It is butright that he should be saved from any chance even of a possible misuse of his position to the disadvantage of public service, and to the advantage of some private individual having his ear, so to say.

The second point is in regard to the Vice-President's salary and allowances. This, under my amendment, may be provided for by Act of ParlI ament. It is not that it is to be provided either by a motion in ParlI ament where the motion may be carried by simple force of party majority; or that it is an ad hoc decision to be varied from time to time. I want this also to be fixed by law; and I want the law to be quite clear that during the tenure of the office of the Vice-President, the salary, allowances and emoluments, shall not be varied to his prejudice or diminished.

The terms I have used are some what different from being"varied to his prejudice". I simply suggest that they shall not be diminished in figures. This, again, is a proposition which ought not to be taken exception to. The Vice-President will be the President of the Council of States; and he would have other active duties or possible functions, and a social position of high eminence to maintain. He would be, however,or namental, a whole-time officer. He should not be,therefore, allowed or permitted to engage in any privatetrade, business, industry, occupation or

profession, whereby he may be obliged to neglect any part of his duties. It is,therefore, necessary that a reasonable salary or emoluments should be provided for him.

I add the limiting clause also that such salary, etc.,should not exceed that of the President. It must, however,be sufficient to enable the Vice-President to maintain his place with the dignity and status that we associate with such high offices.

Finally, I have asked that a pension, or retirement allowance, be given to the Vice-President, as I had proposed it should be given to the President as well. I urged on a former occasion that, in this country, these high offices should not be the exclusive monopoly of the rich, who may not need any allowance or any provision for them in retirement. They are in such a position because by other means they are able to make sufficient provision for themselves not to care for the pittance that may be allowed by the State by way of pension.

I hope our Government, under this Constitution, will not be charged with the accusation, which has been hurled against it that it is intended to be a Government of the Rich, for the Rich, by the Rich. Let it be, at least in theory, a Government under a Constitution which has provided equal opportunities for all, and which will, therefore, make it possible,--even if it is theoretically possible only,--for the poorest in the land to a spire to such offices and to do so without any risk of being further impoverished or burdened with debt.

I accordingly desire that a proper provision be made for such officers on their retirement, so that they may be free from temptation, from want, and from penury; so that they may end their days, after a life-time in the country's service, in peace and comfort, if not in luxury.

I do not, of course, desire that any "luxury" should be available to these personages, which is not available to the rest of the country. But I do not want, also, to conceal the view that, even if the holder of such office has held it only once for the full period, he should be given a retirement pension.

An argument was urged on a previous occasion, when a similar proposition was put forward to the House by me, that I had not been particularly careful as regards what would happen if the same person should once again hold a similar office, or any other office, and was as such in receipt of the salary etc., attached there to, I trust commonsense will enable those who object in this manner to perceive that,such pension would not be paid or payable, if there is concurrently any other office held. It is distinctly and exclusively a pension or allowance payable only on retirement, and while in retirement. I was, therefore,amazed to hear the argument put forward the other day that I had not mentioned whether the President, for example, if heretired and was in possession of a national pension, whether he would be allowed any other salary; or, if he was reelected, whether any such salary would be continued side by side with pension. I can only characterise such oppositionas arising merely out of prejudice, and not out of any reasoned, rational perception of the point I have been urging. I am powerless to fight against such prejudice, and,therefore, trust to the good sense of the House, and commend my motion to the House as such.

Mr. Vice-President: There are two amendments standingin the name of Pandit Thakur Dass Bhargava. Is thehonourable Member going to move them?

Pandit Thakur Dass Bhargava (East Punjab: General): I am not moving these two amendments.

Mr. Vice-President: Amendments 1260, 1261 and 1262 areverbal amendments and as such they are disallowed.

Amendment 1263 stands in the name of Prof. K. T. Shah.This may be moved.

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

"That in paragraph (b) of the proviso to article 56,after the words "be removed from his office for" thefollowing be added:

`reason duly proved, or for any violation of the Constitution duly established, or for conviction for any offence constituting a disqualification for

election to the office of a President, Vice- President or member of ParlI ament, or for physical or mental incapacity duly certified, or for bribery and corruption, duly proved.'"

This amendment also embodies very simple propositions,which however, need to be stated. I hold the view, Sir, thatif you leave the Constitution.--and, at that, a writtenConstitution, unbacked by any conventions or precedents,without clear statements of such possibilities, then youopen the door wide to great abuses of the clauses, or of thepractices that may prevail in the actual working of the Constitution.

It is a different matter in a country, where, eventhough the Constitution is not a written document, there arewell-established conventions or precedents, which guide theconduct of public men in office. In this country, we are,for ourselves and by ourselves, making a Constitution for the first time. In this country we are taking theresponsibility of shaping public morality, and the canons ofgovernance for the first time in our hands. At this time,with a written Constitution. I for one do not think it rightthat we should leave such important matters merely to theso-called commonsense, the sense of propriety of the publicat large or public opinion to regulate. I, for one, think it is necessary that, categorically, the Constitution mustexpressly state these matters.

The result would be that the holders of big offices maybe removed from their offices for given reasons. All theitems on which I desire that such office holders may beremoved from their office, or may be declared unqualified,are those which occur not in one but in severalConstitutions of leading nations, and several more ofsubordinate bodies like Municipalities even in this country.

That being so, I think no exception should be taken tothis proposition namely, that anybody convicted of treason,or of an offence against the Constitution, or for violationof the Constitution or involving moral turpitude likebribery and corruption, should continue in his office,despite such a thing being urged and proved against him.

The question of bribery and corruption involving moralturpitude is a much more serious as well as a much moredifficult proposition to establish. It is difficult, notonly because those who take bribes take jolly good care that they are not easily caught. The evidence will not be quiteeasily obtainable, I would not of course, say that, merelyon suspicion of high officers taking bribes, they should becondemned. On the contrary, they must be properly placedbefore the duly constituted courts of justice. They must beduly tried. They must be fully heard in their defence; andevery facility should be given to them to exculpatethemselves from any such charge, if they have means of doingso. I am perfectly aware that those who enjoy high position,and who hold high offices, live in glass houses. Their everyact, every utterance, every movement, is liable not only topublic comment, but also to public misinterpretation.

I would accordingly not throw them to the wolves sosummarily or unreservedly to say that on a mere charge orsuspicion they should be condemned. But if, after propertrial under proper procedure, before a competent court oflaw, unsuspected of any partiality for, or any favour to,anybody, they are proved guilty of having taken bribes, orin any way of having been liable to undesirable influences,then it is but right and proper that they should be removedfrom their high office and prevented from furthermisgoverning the country.

The same argument applies to mental and physicalincapacity. Sir, if we are indifferent, if we do not insistupon this, also, it is not that the individual holding suchoffice may benefit; it is that those concerns, thosedepartments, those interests which are placed in his chargemay suffer. It is, therefore, purely in the interests ofpublic service, in the interests of public morality andefficiency of the administration that I am suggesting theinclusion in the Constitution in express and unambiguousterms that those proved unfit, those suffering

from mentalor physical disability should be removed from their offices.This, I trust Sir, will not be taken exception to, and wouldbe accepted, if not by the draftsman, at least by thegeneral good sense of the House.

Mr. Vice-President: Amendment No. 1264 standing in thename of Mr. Kamath, and 1266 standing in the names of Mr.Tahir and Saiyid Jafar Imam, and 1269 standing in the nameof Mr. Mahboob Ali Baig, are of similar import. Of theseamendment No. 1264 seems the most comprehensible and Mr.Kamath may move it. Is the honourable Member moving it?

Shri H. V. Kamath (C. P. & Berar: General): Yes, Sir.But it has been my misfortune again that four separateamendments which I sent in have been lumped together as oneamendment, and so I am labouring under a handicap. I wish tomove only the third part of this amendment. There are fouramendments lumped together in this one. I do not blame theoffice for that.............

Mr. Vice-President: Does the honourable Member proposeto move the other three also?

Shri H. V. Kamath: Only the third one.

Sir, I move:

"That in clause (b) of the proviso to article 56, for the words `agreed to by the House of the People', the words`agreed to by a similar resolution of the House of thePeople' be substituted."

I wonder why the Drafting Committee preferred to be sodelightfully vague as they have been in this part of theproviso. The draft on this article merely says that theresolution should be agreed to by the House of the People.It is admitted on all hands that brevity, clarity andprecision should be the hallmarks of a sound Constitution.Nobody will however say that our Constitution is noted forits brevity. We take pride in the fact that our Constitutionis the bulkiest in the world. Some are more proud of thisfact than others. Yet, in parts of the Constitution, I findthat the Drafting Committee have been seized by a strangeaffection for brevity, but unfortunately at the expense ofclarity and precision. Here for instance they have not laiddown what majority should be required for the resolution.Whether it should be unanimously agreed to, or whether itshould be two-thirds majority or three-fourths majority or asimple majority has not been laid down in the proviso. Ihope Dr. Ambedkar will pay some attention to this point andreply to it.

I would like to draw the attention of the House toarticle 50 regarding the impeachment and removal from officeof the President, which we passed yesterday. There we laiddown that the majority of the House in either case isrequired for the removal on impeachment of the President.Here is a similar article regarding the removal of the Vice-President of the Indian Republic. But strangely enough it isnot stated therein clearly whether the resolution passed bya majority of all the then members of the Council of Statesshould be agreed to by the entire House of the People orpassed by a bare majority. It this article and proviso areleft as they are, it will certainly be difficult later on;difficulties will be encountered. Suppose for instance theresolution is passed by a bare majority in the Council of States. Asregards the House of the People, the article is silent onthe point as to what majority is required for the passing of the resolution. It is essential in my judgment that thearticle must specify as to what majority is required for theresolution of the Council of States to be agreed to by the House of the People. Unless this is specified this mightland us in trouble later on.

May I point out another defect in this proviso?Yesterday we passed article 50 regarding the removal of thePresident from office upon impeachment. There we deemed itsufficient that a Resolution of the House investigating thecharge preferred by the other House should be adopted for the removal of the President from Office. But here, so faras the removal of the Vice-President is concerned, we laydown that the Resolution passed by the Council of Statesmust be agreed to by the House of the People. Yesterday Ipleaded in support of Prof. Shah's amendment to the effectthat the

President should be removed on a resolution or voteof both Houses of ParlI ament and not on the vote of a singleHouse of ParlI ament. As regards the removal of the vice-President, we lay down that the resolution for removalshould be adopted by both Houses of ParlI ament, but for thePresident we think it sufficient if only one House adopts aresolution for removing him from office. This is a strangeanomaly which signifies that we are attaching greaterimportance to the removal of the Vice-President than to theremoval of the President from office.

By your leave, Sir, I will just say a word about theamendment just now moved by Prof. Shah. I am afraid myfriend has not read article 79 which provides for theemoluments, the salary and allowances of the Chairman of theCouncil of States who is in our Constitution the Vice-President of India. Had he read that article he would nothave moved that part of his amendment No. 1259 which relatesto this question.

Mr. Vice-President: To the next amendment there is anamendment standing in the name of Pandit Thakur DasBhargava. He is not moving it I understand. The mainamendment is also not moved.

Does Mr. Mohd. Tahir want his amendment No. 1266 to beput to vote?

Mr. Mohd. Tahir (Bihar: Muslim): Sir, as Mr. Kamath hasmoved only a part of amendment No. 1264, I hope you willpermit me to move my amendment.

Mr. Vice-President: That cannot be done. We haveestablished a convention on those lines. I now want to knowwhether the honourable Member wants me to put it to vote ornot?

Shri H.V. Kamath: He is right, Sir. As I did not movemy entire amendment which consists of four parts hisamendment may be allowed to be moved. I moved only the thirdpart of my amendment. His amendment relates to anothermatter and therefore it is not blocked.

Mr. Mohd. Tahir: May I move all three amendments Nos.1266, 1267 and 1268 together?

Mr. Vice-President: You may move No. 1266 only. No.1267 will fall under another group as will be seen from thecopy of the notice regarding grouping of amendments sent tohonourable members.

Mr. Mohd. Tahir: I beg to move:

"That in clause (b) of the proviso to article 56, for the words `all the then members of the Council' the words`the members of the Council present and voting' besubstituted."

Now, Sir, if my amendment is accepted the clause willread thus:

"The Vice-President may be removed from his office forincapacity or want of confidence by a resolution of theCouncil of States passed by a majority of the Members of theCouncil present and xoting".

Now, Sir, in this connection I want to submit that theexisting provision says "by a resolution of the Council ofStates passed by a majority of all the then members of theCouncil". I want to make a distinction between all the thenmembers of the Council" and "the members of the Councilpresent and voting". Now, the provision "all the thenmembers of the Council" also includes those members who,although they are members of the Council, may be absent fromthe Council, but the intention evidently is that theresolution should be moved and passed by those members whoare present and voting Sir, Dr. Ambedkar is not attending tothis.

Mr. Vice-President: Dr. Ambedkar, Mr. Tahir wants yourattention.

Mr. Mohd. Tahir: I was saying that the provision "by amajority of all the then members of the Council" alsoincludes those members who, although they are members of theCouncil, may not be present in the Council, while theintention evidently is that the resolution should be passedby a majority of the members who are present and voting.Therefore I submit that the wording "members of the Councilpresent and voting" will be more suitable than the existingwords "all the then members of the Council". With thesewords, I move.

Mahboob Ali Baig Sahib Bahadur (Madras: Muslim): Mr.Vice-President, Sir, I move:

"that in clause (b) of the proviso of article 56, for the words "all the then members of the Council and agreed toby the House of the People", the following be substituted:

`not less than two-thirds of the total membership

of the Council and agreed to by the House of the People by a majority of not less than two-thirds of its total membership.'"

Sir, the Constitution provides for the election of aVice-President who discharges the functions of the Presidentin the absence of the President for any reason whatever, forinstance, if he is absent on account of illness or othercauses. He also discharges the functions of the Presidentwhen the office of the President falls vacant. Therefore theoffice is a sufficiently important one. That he is alsoasked to preside over the Council of States is only anincidental thing. He is the ex officio Chairman of theCouncil of States. Therefore, Sir, this office of Vice-President has been made sufficiently important. Now, themethod of election to this Office has been made simpler,even though I would have wished that it were also made aselaborate as the election of the President, but we haveaccepted his election to be made by the members of bothHouses. The occupant of such an important Office, whodischarges the very important functions of the President andis entitled to all the powers and immunities of thePresident as is stated in clause (3) of article 54,--shouldhe be dispensed with by a simple majority of the Council ofStates and to be agreed to by the House of the People in alight manner? That is the question to be considered. Isubmit that I am in agreement with those members who movedan amendment that his removal also should be done in asimilar manner and in the same way by which the President isremoved for incapacity, for treason and other things. Isupport those amendments which say that he should be treatedin the same footing as the President in the matter of hisremoval from office, out if for any reason the Chairman of the Drafting Committee is not prepared to go to that length,it is but fair that the Vice-President should be removedfrom office for incapacity or for want of confidence by adouble majority of two-thirds. It may be said that if the Council of States hasno confidence in the Vice-President, he should be removed bya simple majority because the words that are used are "forhis incapacity or for want of confidence", but we areforgetting one thing. He is not only the person who presidesover the Council of States but he is also the person whodischarges the very important functions of the President. Iagree that when the Council of States is not in favour ofhis continuance as its Chairman, no doubt there is somereason for saying that he should be removed, but we areforgetting, as I said, that he will be functioning as thePresident also during his absence for whatever reason andduring a vacancy. This is a very important function and therefore, Sir, if the Chairman of the Drafting Committee isnot agreeable to his removal on the same footing as thePresident is to be removed, at least he should be removedfrom office only by a double majority of two-thirds of boththe Houses. Sir, I move.

Mr. Vice-President: Amendment No. 1265 is disallowed asbeing verbal.

Amendment No. 1268 is disallowed for a similar reason.

Then we come to the four amendments which have beengrouped together in the papers circulated to honourablemembers--1267, 1270--1272. Of these 1270 is the mostcomprehensive and may be moved. It stands in the names ofShri Nand Kishore Das and Shri Biswanath Das.

(Amendment No. 1270 was not moved.)

Then amendment No. 1267 can be moved. Mr. Mohd. Tahir.

Mr. Mohd. Tahir: Mr. Vice-President, Sir, I beg tomove:

"That in clause (b) of the proviso to article 56, for the words `fourteen days notice' the words `fourteen daysnotice in writing signed by not less than thirty members of the Council of States' be substituted."

I will be very short in this matter as we have alreadyadopted in respect of the President that such resolutionsshould be submitted, signed by one-fourth of the totalmembers of the House. Now, as regards the Vice-President, Ido not understand why we should not adopt this provisionalso that a notice like this must be signed by at least 30members of the Council of States

and then only it can beadmitted. I hope Dr. Ambedkar will give due consideration tothis and will agree to adopt this amendment.

(Amendments Nos. 1271 and 1272 were not moved.)

Mr. Vice-President: Amendment No. 1273 stands in thename of Mr. Naziruddin Ahmad. This is verbal and istherefore disallowed.

Amendment No. 1274 can be moved.

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

"That in proviso (c) of article 56, after the word`term', the words, `or resignation or removal as the casemay be' be inserted."

Proviso (c) provides that the Vice-President mustcontinue in office notwithstanding the `expiration of histerm'. I want to make the passage read as follows: "theexpiration of his term or resignation or removal as the casemay be". The `expiration of his term' usually means theusual efflux of time for which he holds the office.`Resignation or removal' must also be included to make thepassage complete. It was only to clarify this that I havesuggested this amendment.

Mr. Vice-President: The article is now open for generaldiscussion. Mr. Sidhwa and after him Mr. Tajamul Husain willspeak. I give the two names together.

Shri R. K. Sidhva (C. P. & Berar: General): Mr. Vice-President, Sir, with regard to amendment No. 1259 moved bymy honourable Friend, Prof. K. T. Shah, he states that anofficial residence should be provided for the Vice-Presidentand that his emoluments and allowances should be fixed in the Constitution; and while suggesting that, he gave hisreasons that if we do not fix the emoluments and if we donot give him a reasonable salary and also provide him with ahouse, it is likely that he would be tempted to many kindsof vices; he gave certain illustrations. Now, Sir, I shalldeal with these matters.

As regards the Vice-President's post, as we all know,we have passed article 53, which states that the Vice-President shall be ex-officio Chairman of the Council ofStates, and as such his salary will certainly be fixed. TheChairman of the Council of States, who will be holding avery responsible post will certainly get a salary as isdefinitely stated in article 79. Article 79 states, Sir,that all the salaries of the President, Chairman of Councilof States, the Speaker, the Deputy Speaker will be fixed. Myhonourable Friend. Prof. K. T. Shah feels that it should belaid down in the Constitution. I do not think. Sir, that in the Constitution we should lay down a salary for the post ofVice-President. The President's and the Governors' salarieshave been fixed for certain reasons that we know very well,that their salaries should not be changed from time to timebut it is only fair--the Vice-President is after all asubordinate to the President--his salary should be subjectto the vote of the House.

Prof. K. T. Shah goes further and says that his salaryshould not exceed those granted to the President, as if hefeels that the Vice-President is superior to the post of thePresident, and therefore we must fix a bigger salary thanwhat the President is likely to get. From this point ofview, it will be seen that while we all admit that theChairman of the Council of States and the Vice-Presidentshould be given a salary--there is also provision to thiseffect--I do not agree with him and I hope the House willnot agree with him that the salary should be laid down in the statute.

Now, Sir, coming to the residence, my honourableFriend, Prof. Shah, stated that in this rent controlbusiness, if we do not allow him a residence, it is likelythat he might come in conflict and then he would be temptedto many kinds of vices. I do not accept such a propositionfor this reason. Today we have a Speaker of this ConstituentAssembly. He is not provided with any house and yet theGovernment have requisitioned a house for him. Similarly for the State Ministers, who do not get official residences and the Deputy Ministers. Still the Government haverequisitioned houses for them for that purpose. I do notknow what rent they are charged, but ordinarily, it is thecustom that the Government officials are charged 10 per centof

their salaries. And, therefore, Sir, it is anexaggeration to say that if we do not provide an officialresidence, an officer will have to go to the Rent Controller[sic] and say: "If you give me this house, I will pay you somuch." I do not think any Vice-President would evercondescend to do such a thing and it would be a sorry day ifwe have a Vice-President, who really would go to thatlength. From this point of view, Sir, I consider Prof. Shahsfears are uncalled for.

Prof. Shah laid great stress upon corruption. He saidhe wants to pay the Vice-President and all the officials andall our Ministers a reasonably high salary, so that they maynot be tempted to any kind of corruption or bribe. If weaccepted that argument and pay more salary to make a manhonest, well, I think, Sir, that proposition looks to me asmost absurd and ridicuious. An honest man is an honest man.An honest man, even if he draws a salary of Rs. 20, ishonest. A dishonest man, if he draws a salary of Rs. 20,000,is dishonest, Sir. I know that some of the ExecutiveCouncillors in the past drawing a salary of Rs. 5,000 havebeen found to be corrupt. I know some of the Governorsdrawing a salary of Rs. 10,000 and I know that some of the Viceroys drawing a salary of Rs. 20,000 have been known tobe corrupt and many of my friends in this House and in thiscountry know that there had been Viceroys drawing salariesof Rs. 20,000 who have been proved to be corrupt and havetaken bribes and some of the Governors too. Sir, I would notlike to mention their names; but I know the House will sharethe view with me. Therefore it is wrong to state,--it is afallacy and I will never accept it--that you must pay a manmore to make him honest. I know of men who draw Rs. 15 andRs. 20 being honest although they could not make both endsmeet in the maintenance of their families. If a man gets asmaller salary, he adjusts his household budget accordingly.If you merely want to pay a higher salary to make himhonest, I will never accept that proposition. Wherever ithas been tried, it has simply failed. Therefore, I am sorryI cannot accept the argument advanced by my honourableFriend Prof. K. T. Shah while moving his amendment, althoughin theory it looks laudable that you should give more salaryto make a man honest. I have seen in my public life what hashappened in the case of public servants drawing moresalaries, and I know how corrupt they have been. With thesewords, Sir, I oppose very strongly the amendment moved by myhonourable Friend Prof. K. T. Shah.

Mr. Tajamul Husain (Bihar: Muslim): Mr. Vice-President,Sir, I will take up first the amendment moved by myhonourable Friend Prof. K. T. Shah, that is, amendmentnumber 1259. His amendment says that there should be anofficial residence for the Vice-President of the IndianRepublic, that there should be fixed by parlI amentemoluments and allowances to the Vice-President, and tillthat is fixed, his pay should be Rs. 4,500 and that his payshould not be diminished during his term of office, and alsothat he should get a pension after retirement to maintain the dignity of the high office which he had held during theterm of his office of five years. I have come to supportthis amendment. The speaker just before me, my honourableFriend Mr. Sidhwa, said, what is the use of mentioning thesalary of the Deputy President when it is mentioned inarticle 79 of the Constitution? I at once looked up article79 and found that the salary of the Deputy President is notmentioned at all. The salary of the Chairman, the DeputyChairman, Speaker and Deputy Speaker of the Upper Chamberand the Lower Chamber, the Council of States and the Houseof the People has been mentioned. Sir, these are twodistinct things. He is the Vice-President as well as theChairman of the Council of States. He is elected as Vice-President and by virtue of his office, ex-officio he becomesthe Chairman of the Council of States. Now, Sir, what do wefind in England? We have got the Lord Chancellor who is theChairman of the House of Lords. At the same time, the LordChancellor holds office as the supreme

head of thejudiciary. He is supposed to be higher than the Lord ChiefJustice of England. He gets a salary as the Chairman of the House of Lords $4,000 and as the highest Judge in the land,he gets a salary of $6,000, total, $10,000. When he retiresfrom office, he gets a pension of $4,000. Now, Sir, in orderto maintain the dignity of such a high office, these thingsshould be allowed to him and what should be the salary of the Vice-President of the Indian Republic should bementioned in the Constitution. That is the reason why I havecome to support this amendment.

I take up next the amendment moved by my honourableFriend Prof. K. T. Shah. I again support this amendment.That amendment says as follows. I will just read from thearticle 56 with which we are dealing, only a few words: "(b)A Vice-President may be removed from his office forincapacity or want of confidence," and for no other reason.The amendment moved by my honourable Friend Prof. K. T. Shahmentions that apart from these two things, there must besomething else and this is how he has worded his amendment.The clause as amended would read this way. "A Vice-Presidentmay be removed from his office for reason duly proved or forreason duly proved or for any violation of the Constitutionduly established, or for conviction for any offenceconstituting a disqualification for election to the office of a President, Vice-President ormember of ParlI ament, or for physical or mental incapacityduly certified, or for bribery and corruption duly proved."I think, Sir, no argument is needed for this simple matter.All these things are very important and they should beinserted in this Constitution in article 56(b). Therefore, Isupport this amendment of Prof. K. T. Shah.

I next take up the amendment moved by my honourableFriend Mr. Kamath. I regret, Sir, I have to oppose it. Iwant your ruling, Sir, on this point. Here we find that myhonourable friend Mr. Kamath has sent in five distinct andseparate amendments in one amendment.

Shri H. V. Kamath: I am sorry that my honourable FriendMr. Tajamul Husain did not follow what I said before I movedthe amendment. I said that I had sent them as four separateamendments, but unfortunately they have appeared as one in the book of amendments, for no fault of mine. I moved onlyone of the four.

Mr. Vice-President: Mr. Kamath moved the third part ofhis amendment only. He did not move the other parts.

Mr. Tajamul Husain: Unfortunately, when Mr. Kamath wasmoving his amendment, I was not in the House. So I did notknow what he actually moved. I want to know whether he movedonly one amendment or all the amendments.

Mr. Vice-President: Only the third part.

Mr. Tajamul Husain: Only one amendment? Then, I havenothing to say against it. If he had moved all theamendments, I would have asked for your ruling. It may bethe mistake of the office. I have nothing to do with that.Each amendment must be moved distinctly and separately.

Now, coming to amendment No. 1269 moved by myhonourable Friend Mr. Mahboob Ali Baig, I oppose thisamendment. He says that in clause (b) of the proviso ofarticle 56 for the words "all the then members of theCouncil and agreed to by the House of the People", thefollowing be substituted: "not less than two-thirds of thetotal membership of the Council" etc. He wants that when acensure motion is being brought against the Vice-President,there must be a majority of two-thirds. Yesterday, Sir, asregards the censure motion against the President, I saidthat the President must not be a mere tool in the hands of the majority party and there must be a two-thirds majority.Today I am saying that a bare majority is quite sufficient.My reason is different from what I said yesterday. My reasonhere is that he is only acting as the Speaker of the House.He is the Chairman of the Council of States and everywherein the civilized world you will find and also in India youwill find in the ParlI ament here and in all the ProvincialLegislatures, the Speaker can be removed by a simple vote ofmajority. Therefore he must have the confidence of

themajority of the people. Therefore I oppose. Otherwise hewill become too autocratic. He must protect the whole Houseproved by a majority of a single vote. Therefore I oppose.

The next is No. 1274 by Mr. Naziruddin Ahmad who wantsto add the words "or resignation or removal as the case maybe in proviso (c) of article 56. The clause will then read--

"The Vice-President shall, notwithstanding theexpiration of his term or resignation or removal as the casemay be, continued to hold office until his successor entersupon his office."

I strongly oppose this. This clause (c) simply meansthat when his term has expired and another election is beingheld and his successor has not been found, he must continuein office till his successor is duly found and duly installed in his place but when the Deputy President or theChairman of the Council of States has been removed, removedfor certain reasons like bribery etc., we do not want him tocontinue even for one minute. I would not like to sit in aHouse where the Presiding Officer has been found guilty ofbribery. He must go at once. As regards resignation, heresigns as he becomes incapable or has been compelled to doso and we do not want him even then. I quite agree that whenhis term expires after five years, then he must remain tillhis successor is found but if he has been removed, he mustget out at once. I therefore oppose strongly the amendmentof Mr. Naziruddin Ahmad.

Pandit Thakur Dass Bhargava: Sir, the Vice-President assuch will have two capacities--No. 1, while he is acting asPresident and No. 2, while acting as the President of theCouncil of States. Now in regard to his capacity asPresident, it is clear that if he violates the Constitutionhe would come under the purview of article 50 and will beimpeachable and removable from his office as President. Sofar as the question of his removal is concerned in regard toarticle 56 as President of the Council of States, theprovisions are exactly the same as are applicable to theSpeaker of the House of People. Perusal of article 77 (c)would show that the language is almost the same for theSpeaker of the House of People as for the Vice-President whowill fill the office of President of the Council of Statesand I do not think that any change is necessary at all. Myapology for taking the time of the House only consists in myanxiety to emphasise one point which struck me and that wasthat the Vice-President should lose his office as such ipsofacto if he is successfully impeached under article 50. Inregard to this I have been assured that the position isclear and it will be done in some other manner except byproviding under article 56. I tabled an amendment which I have not moved because I have been assured that the ruleswill provide for it. When I speak on this point, it is onlyto bring it to the notice of the authorities that someprovision should be made so that by virtue of successfulimpeachment under article 50 the Vice-President may beremoved without any want of confidence being shown by aResolution as provided under Clause (b). The mere fact thathe has been successfully impeached is in my opinion, quitesufficient for his removal from the position of Vice-President and therefore this should be made clear. I onlywanted to bring out this point and, get an assurance that the rules will provide for it.

The Honourable Dr. B. R. Ambedkar: Mr. Vice-President,Sir, I regret my inability to accept any of the amendmentsthat have been moved to article 50. I should, however, liketo meet some of the points that have been made by those whohave moved the amendments. Sir, the first amendment was byProf. Shah which laid down that provision should be made forpay and pension for the Vice-President. This is a matterwhich Prof Shah has also raised in connection with theoffice of the President and I had stated my objection tomaking any such provision in the Constitution itself.

The Honourable Shri K. Santhanam (Madras: General): MayI point out that in Second Schedule express provision hasbeen made?

The Honourable Dr. B. R. Ambedkar: Having explained

myposition with regard to that point, I shall not repeat whatI have said then. Coming to sub-clause (b) of article 56,various points have been raised. First of all a point hasbeen raised that the words `bribery, corruption etc.' shouldbe added. Personally I do not think that any such particularphrase is necessary. Want of confidence is a very largephrase and is big enough to include any ground such ascorruption, bribery etc. Therefore that amendment, in myjudgment, is not necessary. The second point that has beenmade is that the removal of the Vice-President should begoverned by the same rules as the removal of the Presidentviz., that there should be a majority of two-thirds. Now,Sir, with regard to that point. I would like to draw theattention of the House that although the Constitution speaks of Vice-President, he really is a Chairman of theCouncil of States. In other words, so far as his functionsare concerned, he is merely an opposite number of theSpeaker of the House of People. Consequently in making acomparison or comment upon the provisions contained in sub-clause (b) of article 56 those provisions should be comparedwith the articles dealing with the removal of the Speakerand they are contained in article 77(c). If this article 56(b) is compared with the article 77 (c), members will findthat the position is exactly identical. The same rules whichare made applicable to the removal of the Speaker are alsomade applicable to the removal of the Vice-President who, asI have stated, is really another name for the Chairman of the Council of States. Consequently, the requirement of twothirds majority is unnecessary.

And then my friend Mr. Kamath has raised what I mightcall a somewhat ticklish question. He said that sub-clause(b) of this article speaks of a majority, while when thereference is made to the House of the People, no suchphraseology is used. Now, the matter is quite simple.Whenever we have said that a certain resolution has to bepassed, it is understood that it has to be passed by amajority of the House. It is only when a special majority ismentioned that a reference is made to a majority and noto therwise. Now, I quite agree that his argument is thatalthough we do not mention or specify any particularmajority with respect to the Council of States, we havestill used the phraseology--passed by a majority. Why is this distinction made? Why is this distinction between thephraseology used in regard to the Council of States and inregard to the House of the People? Now, the difference hasbeen made because of the word "then" occurring there. Thatword "then" is important. The word "then" means all memberswhose seats are not vacant. It does not mean members sittingor present and voting. It is because of this provision, thatall members who are members of ParlI ament and whose seatsare not vacant, that their votes also have to be counted,that we have said--passed by a majority of the then members.

Shri H. V. Kamath: Does it mean the total number ofmembers of the Council of States?

The Honourable Dr. B. R. Ambedkar: Yes. The word `then'is necessary.

Shri H. V. Kamath: On a point of clarification, Sir.Yesterday in article 50, we used the phraseology `passed bya majority' in place of the two-thirds majority. Should wenot do the same thing here, to make the meaning clearer?

The Honourable Dr. B. R. Ambedkar: I shall explain itpresently. The reason is due to the fact that we have to usethe word `then' which is intended to distinguish the case ofmembers present and voting, and members who are members of the House whose seats are not vacant, and voting.

Shri H. V. Kamath: Am I to understand that unlessotherwise specified, when you say a resolution is passed oradopted, it means that it is by a simple majority?

The Honourable Dr. B. R. Ambedkar: Yes.

Now, coming to the point raised by my friend Mr. Tahir,amendment No. 1266. If I understood him correctly, what hesays is that the resolution of no-confidence should requireto be passed by two-thirds. This may be good or it may bebad. I cannot say. All I can say is

that this provision isalso on a par with the provision regarding the want ofconfidence in the Speaker. There also we do not require that it should be passed by two-thirds majority or two-thirds of the members of the House.

Then, coming to the amendment of my friend Mr.Naziruddin Ahmad, who wants that in clause (c) after theword "term" words such as resignation etc. shoud be inserted. This amendment is absolutely unnecessary,because this article does not make any provision for fillingcasual vacancies. There is no necessity for making anyprovision for casual vacancies because under article 75,sub-clause (1) there is always the Deputy Chairman who isthere to step in whenever there is any casual vacancy.Consequently such an amendment is unnecessary.

Sir, I hope that with this explanation, the House willaccept the article as it stands.

Mr. Vice-President: I may now put the amendments, oneby one to vote. The question is:

"That article 56 be numbered as clause (1) of thearticle and the following new clauses be added after that:

`(2) The Vice-President shall have an official residence and there shall be paid to the Vice- President such emoluments and allowances, not exceeding those granted to the President, as may be determined by ParlI ament by law, and until provision in that behalf is made by Act of ParlI ament, the Vice-President shall be paid a monthly salary of Rs. 4,500.

(3) The emoluments and allowances of the Vice-President shall not be diminished during his term of office.

(4) Every Vice-President, on completion of his term of office and retirement shall be given such pension or allowance during the rest of his life as ParlI ament may by law determine, provided that, during the life time of any such Vice-President, in retirement and pensioned, such pension or allowance shall not be diminished.'"

The amendment was negatived.

Mr. Vice-President: The question is:

"That in paragraph (b) of proviso to article 56, afterthe words "be removed from his office for" the following beadded:

`reason duly proved, or for any violation of the Constitution duly established, or for conviction for anyoffence constituting a disqualification for election to theoffice of a President, Vice-President or member ofParlI ament, or for physical or mental incapacity dulycertified, or for bribery and corruption, duly proved."

The amendment was negatived.

Mr. Vice-President: The question is:

"That in clause (b) of the proviso to article 56, for the words "agreed to by the House of the People" the words"agreed to by a similar resolution of the House of thePeople" be substituted".

The amendment was negatived.

Mr. Vice-President: The question is:

"That in clause (b) of the proviso of article 56, for the words `all the then members of the Council and agreed toby the House of the People', the following be substituted:

`not less than two-thirds of the total membership of the Council and agreed to by the House of the People by amajority of not less than two-thirds of its totalmembership.'"

The amendment was negatived.

Mr. Vice-President: The question is:

"That in clause (b) of the proviso to article 56, for the words `fourteen days' notice' the words `fourteen days'notice in writing signed by not less than thirty members of the Council of States' be substituted."

The amendment was negatived.

Mr. Vice-President: The question is:

"That in proviso (c) of article 56, after the word`term', the words, `or resignation on removal as the casemay be' be inserted."

The amendment was negatived.

Mr. Vice-President: The question is:

"That article 56 stand part of the Constitution."

The motion was adopted.

Article 56 was added to the Constitution.

Article 57

Mr. Vice-President: Now we come to article 57.

The motion before the House is that article 57 formpart of the Constitution.

There are only two amendments tabled so far, Nos. 1275and 1276. No. 1275 standing in the name of Mr. NaziruddinAhmad is disallowed as it has the effect of a negative vote.

No. 1276 standing in the

name of Prof. K. T. Shah maybe moved.

Prof. K. T. Shah: Mr. Vice-President, Sir, I beg tomove that in article 57 after the words "the functions of the President" the words "or Vice-President" be added.

The article as amended would then read as follows:--

"ParlI ament may make such provision as it thinks fitfor the discharge of the functions of the President or Vice-President in any contingency not provided for in thisChapter."

Sir, I am at a loss to understand why while providingfor "any contingency" the words Vice-President should havebeen omitted, in laying down provision for the discharge of the functions entrusted to the President. Such a contingencymight quite possibly occur when the President, for onereason or other,--let us say, for having lost confidence of the House, or having been impeached successfully,--is unableto discharge his functions; and the Vice-President has goneinsance. That is a contingency which is not utterly out ofpossibility; and as such I do not really see why this simplecontingency has not been foreseen by the draftsmen. Thedraftsman has been quick enough in many cases, to proposeamendments of his own to his own Draft, and to see to itthat others support him also, when he finds that certainmatters have been omitted in the first Draft, theysubsequently occur to him in the amendments proposed byothers, and, taking the hint from them, he tables hisamendments, which, of course have the unanimous support of the House expect one. That here I find a case in which I donot think the draftsman will be well advised to say that this amendment is unnecessary.

I have just now mentioned a particular contingency andsaid that when both these high officers may not be able to,or may not be permitted, under the Constitution, to performor discharge their functions, in that contingency it is butnecessary that some such provision be made.

As this is an article of the Constitution, I take itthat the ordinary legislature would not be allowed to stepin, and rectify the omission by making provision, shouldthat contingency occur. You may say that there will be theParlI ament, and ParlI ament will make the necessary provisionfor such a contingency. But if a provision is made expresslyby the Constitution--and the Constitution has presumablydeliberately left out the addition of the word "Vice-President"--then I put it to the House that it is anomission which, at this stage, we ought to correct. I therefore, without further argument, suggest that this amendment at least ought to be accepted. It is utterlyunoffensive, it does not reflect anything on the skill,ingenuity or foresight of the Draftsman, and as such I trustthe Draftsman will agree to accept it.

Mr. Tajamul Husain: Mr. Vice-President, I wish tooppose the amendment just moved by my friend Prof. K. T.Shah. My reasons are two. No. 1 is this Article 57 says that"ParlI ament may make such provision as it thinks fit for thedischarge of the functions of the President in anycontingency not provided for in this Chapter". Now, myfriend Prof. Shah wants the addition of the words or Vice-President". Now, ParlI ament will have power, if hisamendment is accepted, to make provision either for thePresident or for the Vice-President; it cannot make forboth. Supposing it makes provision only for the Vice-President and not the President, then what happens? The word"or" is therefore absolutely wrong. ParlI ament may very wellsay, "we make provision for the Vice-President and noprovision for the President to discharge his functions atall."

The second objection is, supposing the word "or" isremoved and "and" had been there, or Prof. Shah had meant"and", then I beg to submit that the Vice-President has nofunctions to perform at all as Vice-President; so, whatprovision for the discharge of his functions can anybodymake or the ParlI ament make? He functions only as theChairman of the Council of States. We are not dealing withhim here as Chairman of the Council of States. So I opposethe amendment, because he has no functions or duty toperform.

The Honourable Dr.

B. R. Ambedkar: I am afraid Prof. K.T. Shah has not considered the matter as fully as he oughtto have before moving his amendment. The omission of theVice-President from article 57 is a very deliberate one,because as my friend Mr. Tajamul Husain has just now pointedout, his main functions, which are those of the Chairman of the Council of States, have been amply provided for byarticle 75 (1) where there is a Deputy Chairman who willfunction in his absence. It is therefore unnecessary tointroduce any such amendment in article 57.

My friend Prof. Shah said that I was really borrowingvery liberally from the amendments of other friends wheneverI found that the Draft was in some way defective. I thinkProf. K. T. Shah, if I may say so, has indirectly paid me acompliment because, as Emerson has said, "A genius is themost indebted man" and I am certainly most indebted to myfriends.

Mr. Vice-President: I am now putting the amendments tovote.

The question is:

"That in article 57, after the words `the functions of the President' the words `or Vice-President' be added."

The amendment was negatived.

Mr. Vice-President: There are no other amendments.

The question is:

"That in article 57, stand part of the Constitution."

The motion was adopted.

Article 57 was added to the Constitution.

Article 58

Mr. Vice-President: We now pass on to the next articleNo. 58.

The motion is:

"That article 58 form part of the Constitution."

We have a number of amendments, of which only No. 1281will be allowed. The other amendments are verbal and aretherefore disallowed.

(Amendment No. 1281 was not moved.)

Mr. Vice-President: I shall put this article to vote.

The question is:

"That article 58 stand part of the Constitution."

The motion was adopted.

Article 58 was added to the Constitution.

Article 59

Mr. Vice-President: The motion is:

"That article 59 stand part of the Constitution."

We have a number of amendments. No. 1282 is disallowedas it has the effect of a negative vote. 1282-A may bemoved.

(1282-A was not moved).

Amendments Nos. 1283 and 1284. There are a number ofamendments to them also, but they are disallowed as beingverbal. No. 1285 may be moved.

(Amendment No. 1285 was not moved.)

Amendment No. 1286.

Mr. Tajamul Husain: Mr. Vice-President, Sir, I beg tomove:

"That clause (3) of article 59 be deleted."

Sir, in my opinion, the President only should havepower to suspend, remit or commute a sentence of death. Heis the supreme Head of the State. It follows therefore thathe should have the supreme powers also. I am of opinion thatrulers of States or Provincial Governors should not bevested with this supreme power. The President of theFederation should be the supreme authority in respect ofoffences committed against Federal Subjects. I say that there must not be divided loyalty on this subject. When the States came into the Federation they accepted the operationof the Federal Laws in their States and they accepted tothat extent that the Federal Government was supreme and thePresident of the Federation as representing the FederalGovernment can alone be the authority who can grant pardons.In the U.S.A. the President grants pardon in all the States.These are matters of the most vital importance to theexistence of the Centre and therefore the power of pardoncould not be given to anybody except the Head of the FederalGovernment, that is the President or the Indian Union or theIndian Republic. If the ruler of a State exercised powers ofpardon in respect of offences relating to those subjectswhich they themselves had conceded to the Federation it would amount to taking away with one hand what they hadgiven with the other. In regard to the subjects conceded bythe State to the Union the State ceases to be sovereign tothat extent. The Federal Law is binding upon every citizenand there is a direct relation between the citizen and theFederal Government. When there is a breach of the federallaw the representative of the Federation must have theinherent power of pardon.

Therefore I think where thequestion of pardon is involved the more serious the offencethe higher should be the authority to grant the pardon. I have already pointed out about America. In England too thepardon is granted only by the King on the advice of his HomeMinister, but pardon is granted only by the representativeof the State. In those days when there was no talk of partition of this country they were thinking of aweak Centre with three or four subjects like Communications,Defence, Foreign Affairs, etc., and the provinces were toenjoy complete autonomy. Now that the country has beenpartitioned we people who are the citizens of this countryhave decided once for all that the Centre will not be weakbut a strong one, that we would have the strongest possibleCentre. If this is our aim the head of the CentralGovernment must have this power. With these words, Sir, I move my amendment and I hope it will have the support of thewhole House, including my honourable Friend Dr. Ambedkar andalso you, Sir.

Mr. Vice-President: Amendment No. 1287 is disallowed asbeing formal.

Amendment No. 1288 was not moved.)

Mr. R. K. Sidhwa: Sir, my honourable Friend Mr. TajamulHusain has proposed to delete clause (3) of article 59 andhis argument was that he wanted to keep the authority of thePresident supreme. Nobody denies that. If the honourableMember would see article 59 (1) it says:

"That President shall have the power to grant pardons,reprieves, respites or remissions of punishment or tosuspend, remit or commute the sentence.....

Similarly powers are vested in the Governors and theycan also suspend, remit or commute a sentence of death. Inmy opinion it is very healthy they should continue to vestthis power which existed under the old regime in theGovernors of the provinces, for this reason that theGovernor of a province is better informed of a particularcase of pardon which is referred to him. As far as thePresident is concerned when the question goes to him, he hasto refer the matter first to the Governor and if theGovernor has not exercised his right properly the Presidentgoes into the whole matter and exercises his right. In thematter of commuting a sentence of death it is only fair that the powers should also be with the Governor and the supremepower should remain with the President. The Governor is apopular governor and is responsible in a sense to the legislature, as he is the nominee of the Premier or thePrime Minister. If he acts wrongly, as my friend fears, thenthe legislature is there to keep a vigilant watch over him.Therefore I do feel that the present position which isretained in the Draft Constitution is very desirable and weshould retain those powers.

As far as rulers are concerned I am not very clear. ButI do feel that in the constitution that will be framed bythe various constituent assemblies of the States they willsee that the ruler is made responsible to the legislatureand he will also be like the head of provinces a merefigurehead of the State. From that point of view I wouldsupport even the power being vested in the ruler, although Imake a qualification to my statement that at present I donot know what the position of the ruler is. If the ruler isautocratic and not responsible to the legislature certainlyI would not like to give him that power. But assuming as Ido that the rulers of the States are going to be maderesponsible to the legislatures I support the article asmoved by Dr. Ambedkar. The commuting of a sentence of deathis a very important power and we do not want straightawaythat the matter should go to the President. Let theGovernor, who knows his province very well and can consulthis Premier, exercise the function. The President is for thewhole of India. Even if the matter goes to him he has toconsult first the Governor and the Governor has to consulthis Premier. From that point of view I oppose the amendmentof Mr. Tajamul Husain.

Mr. Vice-President: Does Dr. Ambedkar wish to sayanything on this amendment moved by Mr. Tajamul Husain?

The Honourable Dr. B. R. Ambedkar: Yes: Sir, It

mightbe desirable that I explain in a few words in its generaloutline the scheme embodied in article 59. It is this: thepower of commutation of sentence for offencesenacted by the Federal Law is vested in the President of theUnion. The power to commute sentences for offences enactedby the State Legislatures is vested in the Governors of theState. In the case of sentences of death, whether it isinflicted under any law passed by ParlI ament or by the lawof the States, the power is vested in both, the President aswell as the State concerned. This is the scheme.

With regard to the amendment of my friend Mr. TajamulHusain, his object is that the power to commute sentences ofdeath permitted to the Governor should be taken away. Now,sub-clause (3) embodies in it the present practice which isin operation under which the power of commuting the deathsentences is vested both in the Governor as well as in thePresident. The Drafting Committee has not seen any verystrong arguments for taking away the power from theGovernor. After all, the offence is committed in thatparticular locality. The Home Minister who would be advisingthe Governor on a mercy petition from an offender sentencedto death would be in a better position to advise theGovernor having regard to his intimate know ledge of the circumstances of the case and the situation prevailing inthat area. It was therefore felt desirable that no harm willbe done if the power which the Governor now enjoys is leftwith him. There is, however, a safeguard provided. Supposingin the case of a sentence of death the mercy petition isrejected, it is always open, under the provisions of thisarticle, for the offender to approach the President withanother mercy petition and try his luck there. I do notthink there is any great violation of any fundamentalprinciple involved or any inconvenience that is likely toarise if the provisions in the draft article are retained asthey are.

Mr. Vice-President: Now I will put the amendment of Mr.Tajamul Husain to vote. The question is:

"That clause (3) of article 59 be deleted."

The amendment was negatived.

Mr. Vice-President: I shall now put article 59 to vote.The question is:

"That article 59 stand part of the Constitution."

The motion was adopted.

Article 59 was added to the Constitution.

Article 60

Mr. Vice-President: The House will now take up forconsideration article 60 of the Draft Constitution. Mr.Ahmed Ibrahim may move amendment No. 1289.

K. T. M. Ahmad Ibrahim Sahib Bahadur (Madras: Muslim):I have given notice of an amendment to this amendment.

Mr. Vice-President: Yes, I received it just now. Thehonourable Member may move it.

K. T. M. Ahmad Ibrahim Sahib Bahadur: Sir, I move:

"That the proviso to clause (1) of article 60 bedeleted."

The object of my amendment is to preserve the executivepowers of the States or Provinces at least in so far as thesubjects which are included in the Concurrent List. It hasbeen pointed out during the general discussion that thescheme of the Draft Constitution is to whittle down thepowers of the States considerably and, though the plan issaid to be a federal one, in actual fact it is a unitaryform of Government that is sought to be imposed on the country by the Draft Constitution. Members from allparties, irrespective of party affiliations, have condemnedduring the general discussion this aspect of the DraftConstitution. They have repeatedly shown that this DraftConstitution is in spirit a unitary form of Government andnot a federal one.

Now, Sir, even in the Lists of Subjects drawn up andattached to the Constitution, a very large number ofsubjects which are usually in the Provincial List have beentransferred to the Concurrent List and the Union List, with the result that we find only a small number of subjectsincluded in the Provincial List. Article 60 (1) (a) seeks totake away from the States the executive power even withregard to those few subjects which are included in theConcurrent List. This, Sir, will be depriving the States ofa large portion of even the little executive

power that willotherwise be left to them under this Draft Constitution. Itmay be said that this has to be done for the sake of commoninterest, for uniformity, for defence and for emergencies.But I would point out that there is no necessity at all totake away even this limited power from the ......

The Honourable Shri K. Santhanam: May I point out to the honourable Member that the deletion of the proviso toclause (1) will vest the entire executive power andConcurrent subjects at the Centre.

K. T. M. Ahmad Ibrahim Sahib Bahadur: I am coming tothat.

The Honourable Shri K. Santhanam: The consequence of the deletion of this proviso will be as stated by me.

K. T. M. Ahmad Ibrahim Sahib Bahadur: I am coming tothat. I have given notice of another amendment to obviatethat difficulty. It is to the effect that the word`exclusive' be inserted in article 60 (1) (a) between thewords `ParlI ament has' and the word `power'. The result ofthis will be that the executive power of the Union will beconfined only to those subjects with respect to which it hasexclusive power to make laws. I think this would remove thedoubt expressed by my honourable Friend. The executive powerunder my amendment.......

The Honourable Shri K. Santhanam: Has the honourableMember the permission of the Chair to move this amendment?

K. T. M. Ahmad Ibrahim Sahib Bahadur: The Vice-President has been kind enough to permit me to move thisamendment and in pursuance of that permissic. I have movedthe amendment.

Shri L. Krishnaswami Bharathi: How does it read now?

K. T. M. Ahmad Ibrahim Sahib Bahadur: It reads asfollows:--

"Clause (1) (a) to the matters with respect to whichParlI ament has exclusive power to make laws."

Therefore the executive power of the Union shall notextend to matters with respect to which it has no exclusivepower to make laws, i.e., matters included in the ConcurrentList. Sir, under the present Government of India Act we donot have any such provision. In page 6 of the letter of theChairman of the Drafting Committee to the HonourablePresident of the Constituent Assembly, in paragraph 7, hepoints out--

"Under the present Constitution, executive authority inrespect of a Concurrent List subject vests in the provincesubject in certain matters to the power of the Centre togive directions."

He says then--

"In the Draft Constitution the Committee has departedslightly from this plan."

"I must point out, Sir, that it has not departedslightly from this plan but on the other hand the DraftingCommittee has opened the floodgates to the Central Government to enable it to make as many inroadsas possible into the powers of the provinces and states withrespect to the Concurrent subjects, as the proviso reads:

"Provided that the executive power referred to in sub-clause (a) of this clause shall not, save as expresslyprovided in this Constitution or in any law made byParlI ament....."

Therefore not only has the Union Government executivepower in respect of subjects included in the Concurrent Listto the extent it is specifically conferred by thisConstitution but ParlI ament may also from time to time makelegislation conferring on the Union Government executivepower in regard to subjects included in the Concurrent list,with the result that all the subjects may be removed fromthe Concurrent List and transferred to the Federal List incourse of time. It is not fair, Sir, that provincialautonomy should be whittled down to such an extent. Inactual practice it will come to that. I know, Sir, that toobviate this difficulty, my honourable Friend, PanditKunzru, has given notice of an amendment for the omission of the words "or in any law made by ParlI ament". It will in away remove the difficulty but not the entire difficulty.That is why I am persisting in moving my amendment. Sir,under the present Government of India Act, even though theCentral Government can give only directions to theprovincial governments in regard to these subjects, inactual practice the provincial governments are not able tocarry on their administration without

any hindrance orimpediment from the Central Government on account of thispower to give directions. We have heard very often repeatedby our Ministers that even though they do not see eye to eyewith certain directions issued by the Central Government,they are helpless and cannot do what they consider best.Even with regard to the food policy they say they are notable to do what they consider to be best in the interests of the province, as they have to obey the directions of theCentral Government in this matter. Very often after theirreturn to Madras from Delhi, our ministers point out thatthough they do not agree with the views of the CentralGovernment, they have to carry out their directions becausethese directions have been issued under the law, even thoughthey do not believe that the policy adumbrated by theCentral Government in regard to the matter will besuccessful.

I hope, Sir, that the House will recognise theimportance of this amendment. As I pointed out, already thepowers of the provincial governments have been considerablytaken away and if this clause also remains as it is,provincial autonomy will become almost a nullity. Even underthe present provisions, provinces will be only glorifieddistrict boards and municipalities, and this clauseempowering ParlI ament to legislate for conferring executivepower on the Union Government with regard to any subjectsincluded in the Concurrent list will be only another nail in the coffin of provincial autonomy.

Mr. Vice-President: Amendments Nos. 44 and 45 may bemoved together.

Pandit Hirday Nath Kunzru (United Provinces: General):Mr. Vice-President, I beg to move:

"That with reference to amendment No. 1289, in theproviso to clause (1) of article 60, the words `or in anylaw made by ParlI ament' be deleted."

and

"that with reference to amendment No. 1289, afterclause (1) of article 60 the following clause be inserted :

`(1a) Any power of ParlI ament to make laws for a State with respect to any matter specified in entries 25 to 37 of the Concurrent List shall include power to make laws as respects a State conferring powers and imposing duties, or authorising the conferring of powers and the inposition of duties upon the Government of India or officers and authorities of the Government of India as respects that matter, notwithstanding that it is one with respect to which the Legislature of the State also has power to make laws."

Sir, there are federations of all kinds. There arefederations for instance of the United States of America,Canada and Australia, but in none of these federalConstitutions does the Central Government enjoy the right toissue executive directions to the provincial or Stategovernments. In Canada, concurrent powers of legislationhave been given both to the Dominion Government and theprovincial governments in regard to two subjects,agriculture and immigration. In Australia, there are a largenumber of subjects in respect of which both the Commonwealthand the States can legislate. Yet in neither of thecountries is the Central Government in a position to directthe State or provincial government to exercise theirauthority in any particular way. Our Constitution, however,departs, from this principle. Under the Government of IndiaAct, 1935, the Central Government have the right to issueinstructions to provincial governments in respect of certainmatters. Those matters are connected either with subjectsthat are exclusively within the jurisdiction of the CentralLegislature or are contained in Part II of the ConcurrentList. If the language of the proviso to article 60 isaccepted, the Central Government will have the right toissue instructions to the Previncial Governments with regardto the manner in which they should exercise their executiveauthority in respect of all subjects in the Concurrent List.What we have to consider is whether circumstances havearisen that make it necessary or desirable that such a powershould be conferred on the Central Government.

The Honourable Shri K. Santhanam: May I point out to the honourable Member that it is only

when ParlI ament makesa law and gives that power that it will extend in any State?

Pandit Hirday Nath Kunzru: I perfectly understand it.That is obvious. If Mr. Santhanam will bear with me for awhile, he will find that I shall not omit to refer to this matter.

I do not see, Sir, that there is any reason why solarge a power should be conferred on the Central Government.We have to be clear in our minds with regard to thecharacter of the Constitution. While we may profit by theexperience of other federal countries and need not slavishlycopy their constitutions, it is necessary that the federalprinciple should be respected in it-essential features. Weshould not go so far in our desire to give comprehensivepowers to the Central Government to deal with emergencies asto make the Provincial Governments virtually subordinate to the Central Government. Whatever powers may be conferred onthe Central Government if the federal principle is to begiven effect to, the Provincial Governments should becoordinate with and not subordinate to the CentralGovernment in the provincial sphere. If this principle isaccepted by the House, I think that the proviso in thearticle under discussion would be found to be contrary to the relations that ought properly to subsist between theCentral and the Provincial Governments. The proviso, ashonourable Members know, runs as follows:

"Provided that the executive power referred to in sub-clause (a) of this clause shall not, save as expresslyprovided in this Constitution or in any law made byParlI ament, extend in any State to matters with respect towhich the Legislature of the State has also power to makelaws."

If this is accepted, it will be open to the CentralLegislature to pass a law empowering the Central Governmentto issue directions to the Provincial Governments withregard to the manner in which the law should be executed.Under the Government of India Act, 1935, such a power wasconferred on the Central Government, but it was morerestricted. Sub-section (2) of section 126 of the Governmentof India Act, 1935 lays down that the executive authority of the Dominion shall also extend to the giving of directionsto a Province as to the carrying into execution therein ofany Act of the Dominion Legislature which relates to amatter specified in Part II of the Concurrent LegislativeList and authorises the giving of such directions," and nobill or amendment dealing with this matter be introduced without theprevious sanction of the Governor-General. In the new order,it is quite obvious that the Governor-General, who will bethe Constitutional Head of the State, cannot be entrustedwith the power given to the Governor-General by this sub-section. But there seems to me to be no reason why the powerconferred by sub-section (2) of section 126 of theGovernment of India Act, 1935 should be widened in themanner proposed in the proviso to article 60 of the DraftConstitution. It is true that the Central Government willnot have the right to issue instructions to the ProvincialGovernments with regard to the execution of any law, unlessthe law itself provides that such instructions should beissued. But this is certainly no check on the power of theCentral Legislature. The Central Legislature itself will bethe judge of the propriety of conferring such a power on aGovernment that is responsible to it. What I am seeking todo by my amendment is to protect the Provincial Governmentsagainst any unnecessary encroachment on their powers by theCentral legislature and Central Government.

Now, Sir, it may be pointed out to me that if the words"or in any law-made by ParlI ament" are deleted from theproviso, the Central Government will not enjoy even thelimited power conferred on it by sub-section (2) of Section126 of the Government of India Act, 1935. I think, Sir, that this can be provided for under article 234. I haveaccordingly given notice of an amendment to article 234 thatwould enable the Central Government to issue instructions toprovincial Governments with regard to the execution of lawsrelating to items 25 to 37 of the

Concurrent List if thecentral legislature by law authorises the Central Governmentto do so.

There is, however, one other matter to which it isnecessary to draw the attention of the House. The secondpart of my amendment goes beyond anything contained in theGovernment of India Act, 1935. I may be asked how I amproposing an extension of the power of the centrallegislature and through if of the Central Government whenthe purpose of my amendment is to see that the executiveauthority of the provincial Governments is not unnecessarilyrestricted by orders issued to them by the CentralGovernment under laws passed by ParlI ament. HonourableMembers will remember that a few weeks ago, the Deputy PrimeMinister introduced a Bill in this House the object of whichwas to amend the Government of India Act, 1935. It wasstated in the Statement of Objects and Reasons attached tothat Bill that experience had shown that uniform principlesin the review of awards made by the Central and provincialindustrial tribunals should be adopted under the overallcontrol of the Central Government. It was therefore proposedin the Bill that the Central Government should, in additionto the right of issuing instructions to the provincialGovernments in regard to the manner in which their authorityshould be exercised, also have the power to confer power ontheir own officers regarding the execution of laws dealingwith any of the matters referred to in the Concurrent List.I should not like to go into the merits of that Bill; but we have to take into account the fact that in the presentcircumstances it is necessary so to widen the powers of theCentral Government as to enable them to impose duties ontheir own officers in respect of certain matters if any lawmade by ParlI ament permits them to do so. The matters withwhich the Bill introduced by the Honourable SardarVallabhbhai Patel is concerned are industrial matters and afew other matters. Broadly speaking, these matters arecovered by items 25 to 37 of the Concurrent List containedin the Draft Constitution. These matters are, but for twoitems, the same as those contained in Part II of theConcurrent List in the Government of India Act, 1935. Itappears to be reasonable in the present circumstances whenLabour is becoming conscious of its rights, when questionsrelating to it have to be settled on an all-India basis,that in all these questions that might involve the settlement of disputes between labour and theemployers, there ought to be a power vested somewhere, inorder that matters of importance may be dealt with in anuniform manner. I do not know when the Bill introduced bythe Honourable Sardar Patel will be considered by the House.But, I have little doubt that the power asked for by himwill be conferred on the Central Government by the House. Ifthat is done, it is obvious that the Draft Constitution willhave to be amended so that it may be broguht into line with the Government of India Act, 1935. I have anticipated thisnecessity and have therefore brought forward an amendmentauthorising the Dominion ParlI ament to confer powers orimpose duties on the Central Government or any of itsofficers in respect of entries 25 to 37 of the ConcurrentList. It seems to me, Sir, that the amendment proposed by memeets the needs of the case. There is no reason whatsoeverwhy the Central Government should be given the wide powerthat the passage of the proviso would confer on the CentralExecutive under laws passed by the Central ParlI ament.

I should like, Sir, to refer to one more matter beforeI resume my seat. Under the Government of India Act, 1935,the power of the Dominion legislature to pass lawsauthorising the Central Government to confer powers andimpose duties on their own officers with respect to mattersin regard to which provincial legislatures could make lawscould be exercised only when a declaration of emergency hadbeen issued declaring that the security of India wasthreatened by war. So far as I remember, Sir, in no othercontingency was the Central Legislature allowed to authorisethe Central Government, or to place

the Central Officers ina position to deal with the execution of laws on mattersincluded in the Concurrent List. In proposing therefore mysecond amendment, it will be seen that I have not copied theprovisions of the Government of India Act, 1935. I havedeparted considerably from the provisions of that Act but I have done so in so far only as circumstances have provedthat the departure is necessary. It is incumbent on myhonourable Friend Dr. Ambedkar to show that the wide powerthat he has asked for is essential in the presentcircumstances if law and order are to be maintained in Indiaor if its security is not to be threatened or if problemsarising in the new circumstances are of such a characterthat the country will be able to deal with them only whenthe Provincial Governments have been made practicallysubordinate to the Central Government. As I do not feel thatany such circumstances have arisen, I have proposed theamendments that I read out a little while ago. I hope, Sir,that they will receive the careful consideration of the House.

(Amendments Nos. 1290 and 1291 were not moved.)

Mr. Vice-President: Amendment No. 1292 is disallowed asa verbal amendment.

Mr. Naziruddin Ahmad: It is not merely verbal. It willchange the sense. In fact, my amendment will set up adifferent authority altogether.

Mr. Vice-President: I am afraid I do not agree withyou.

Amendment No. 1293 is disallowed as verbal.

The article is open for general discussion. Mr. MohamedIsmail Sahib.

Mr. Mohamed Ismail Sahib (Madras: Muslim): Sir, Isupport the amendments moved by Mr. K. T. M. Ahmad Ibrahim,of the intention to move which I have also given notice.Sir, in the footnote under article 60 the Drafting Committeesays--

"The Committee has inserted this proviso on the viewthat the executive power in respect of Concurrent Listsubjects should vest primarily in the State concerned exceptas otherwise provided in the Constitution or in any law madeby ParlI ament."

The impression which this note creates in the minds of thereaders is that some power or more power than is apparent in the article is being sought to be vested in the provincesbut any such impression is removed by what the Chairman of the Drafting Committee says in para. 7 of his letter to thePresident of the Constituent Assembly. He speaks of thesaving clause in the proviso and says--

"The effect of this saving clause is that it will beopen to the Union ParlI ament under the new Constitution toconfer executive power on Union authorities, or ifnecessary, to empower Union authorities to give directionsas to how executive power shall be exercised by Stateauthorities."

That is being made clearer by the next sentence in which hesays--

"In making this provision the Committee has kept inview the principle that executive authority should for themost part be co-extensive with legislative power."

Wherever the Centre has been endowed with legislative power,it is being sought to endow it with executive power as well.Our amendments seek to correct this position and say that the Centre might have legislative power on the subjectsincluded in the concurrent list but at least the executivepower ought to be left in the hands of the units--theprovinces. Sir, I have to make a few remarks in connectionwith the scheme of this Constitution. It is said that theAmerican Constitution has been based on a suspicion of theCentral authorities that the people in power in the Centrewould seek to encroach, whenever there is an opportunity, onthe powers of the States, i.e. the component parts or unitsand also of the individuals. It was contended not only atthat time when that Constitution was made but alsosubsequently and even at the present time that such aconception of a Constitution is well based on facts, becauseit is admitted that when people come to power, more oftenthan not the power corrupts them. Therefore to much of powershould not be invested or placed in the hands of theexecutive and the supreme authority. But so far as our draftConstitution goes, the contrary seems to be the method

whichhas been adopted. It has been based on the suspicion ofindividuals and the component units. The idea seems to bethat the individuals will always be scheming and conspiringto set the authority at nought and the units would always beon the look-out for doing something wrong. Therefore, Sir,though the scheme of things as adumbrated in the DraftConstitution is alleged to be on a federal basis, it isreally over-weighting the Centre with too much power. Thatis not salutary at least under the circumstances obtainingin our country. That is not good to the country as a whole.Ours is a country of vast distances and a huge population.Therefore it is not conducive to efficiency to over-concentrate power in the Centre. Units must be left withadequate powers in their hands. It must not be the basis ofthis Constitution that patriotism and anxiety for thewelfare of the people are the sole monopoly of the Centre.It must be admitted that the Provinces and individuals alsoare as patriotic as anybody else. Therefore, their rightsand powers must not be sought to be encroached upon. Thebasis of this Constitution seems to be suspicion, in thefirst place of the individuals and then in the second placeof the units. Sir, where the individuals are concerned, ithas not even been conceded that individuals have got anirreducible amount of right to personal freedom. Thepersonal freedom that has been conceded under article 15 isbeset with serious, and not only a serious, but fatalmodifications so much so these modifications have eaten upand swallowed up the right of personal freedom. It does notrecognise that an individual has got any irreducible rightwhich cannot be taken away by any law. And so far as theProvinces or Units are concerned, the same spirit seems toprevail. By various provisions, the powers of the Provincesare sought to be taken away; and in the interest ofefficient government and good government, I think thatspirit ought not to prevail; and the powers of the unitsmust not be encroached upon.

These amendments of ours, while providing for themaintenance of the legislative powers of the Centre wherethe appropriate subjects are concerned, want to restrict theexecutive field of the Centre. Therefore, I think, they arevery reasonable amendments which the House should support. Ialso know that if only Members are given the right to votean they please, and if they are given the freedom of vote on this particular question at least, I know Sir, many Memberswill vote for these amendments. I know personally, Sir,there are many Members who feel with me in the matter of these amendments.

Mr. Vice-President: May I suggest that these remarksare not called for here?

Mohamed Ismail Saheb Bahadur: Sir, I am speaking, withyour permission, of what I know to be the feeling of many ofmy colleagues here on this very important matter. In theseamendments is involved the efficiency of the government and therefore the welfare of the whole country and of thepeople. These amendments seek to eliminate any friction orany conflict that may arise in the future between the Centreand the Provinces. If time and again the Centre seeks toencroach upon the rights and powers of the units, then,there is sure to be conflict and friction and theseamendments only seek to remove any such conflict. And Iwanted to make it clear that I am not alone in this feelingof mine, that I am not alone in this opinion, but that thereare many others irrespective of party affiliations.Therefore, I would very much like that the colleagues ofmine in this House be given freedom of vote to vote as theyplease. In that case, the Chairman of the Drafting Committeewill know whether there is real support among the Members ofthis House for the ides contained in these amendments. Ifthe Chairman of the Drafting Committee does not find it inhis mind to accept these amendments, may I appeal to him, atleast to accept the amendment to our amendment moved byPandit Kunzru which seeks to remove the words "or in any lawmade by ParlI ament" That at least would mean something. Thatwould go to some extent to

alleviate the conditions which I have got in mind and which I have been trying to expresshere. It will to a certain extent restrict the encroachmentupon the powers of the Provinces. Therefore, I would appealto the House and to the Chairman of the Drafting Committeeto consider at least the much milder amendment which seeksto eliminate the words "or in any law made by ParlI ament".

Mr. Vice-President: I have just received informationabout the sudden death of Sir Akbar Hydari, Governor ofAssam. He was not a member of this House, but we all knowthe excellent work he has done for our country and we alsoknow that we are indebted not only to him but also to hisfather. The offices of the Government of India are alreadyclosed. It is true that His Excellency was not a member ofthis House, but still I think we ought to adjourn as atribute to him and as a mark of respect to his memory.

The House stands adjourned till 10 A. M. to-morrow.

The Constituent Assembly then adjourned till Ten of theclock on Thursday, the 30th December 1948.