Thursday, the 30th December 1948
The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock, Mr. Vice-President (Dr. H. C. Mookherjee) in the Chair.
Mr. Vice-President (Dr. H. C. Mookherjee): I have just received notice of an adjournment motion signed by Shri Mahavir Tyagi. It is ruled out of order under Rule 26 of the Rules of Procedure and Standing Orders of the Constituent Assembly of India. Does the House want to know the contentsof this adjournment motion?
Honourable Members: Yes, yes.
Mr. Naziruddin Ahmad (West Bengal: Muslim): Sir, on a point of order. Is an adjournment motion in this House permissible?
Mr. Vice-President: I shall read out the adjournment motion:
"I beg to move that the House do adjourn to discuss the attitude of the Government of India in respect of the recent attacks on Indonesia."
It is ruled out of order under Rule 26 of the Rules of Procedure and Standing Orders of the Constituent Assembly of India.
We can now resume discussion on article 60. Is Pocker Sahib Bahadur in the House?
B. Pocker Sahib Bahadur (Madras: Muslim): Mr. Vice-President, this clause as it stands is sure to convert the Federation into an entirely unitary form of Government. This is a matter of very grave importance. Sir, we have been going on under the idea, and it is professed, that the character of the Constitution which we are framing is a federal one. I submit, Sir, if this article, which gives even executive powers with reference to the subjects in the Concurrent List to the Central Government, is to be passed as it is, then there will be no justification at all in calling this constitution a federal one. It will be a misnomer to call it so. It will be simply a camouflage to call this Constitution a federal one with provisions like this. It is said that it is necessary to give legislative powers to the Centre with regard to certain subjects mentioned in the Concurrent List, but it is quite another thing, Sir, to give even the executive powers with reference to them to the Centre. These provisions will have the effect of practically leaving the provinces with absolutely nothing. Even in the Concurrent List there is a large number of subjects which ought not to have found place in it. We shall have to deal with them when the time comes. But this clause gives even executive powers to the Centre with reference to the subjects which are detailed in the Concurrent List. In this connection, since the question has been expounded with great lucidity and ability by the Honourable Pandit Kunzru, I do not want to take up the timeof the House in dealing with those aspects.
Now I would just like to point out one aspect of the matter and it is this. In such a big sub-continent as India,it will be very difficult for the authorities in the Centre to appreciate correctly the requirements of the people in the remotest parts of this country, and this disability is there even with regard to legislation. But even ifexecutive power, with reference to those laws dealing with subjects in the Concurrent List, is given to the Centre, the result will be that if any person is aggrieved by the way in which the law is executed in a very remote part of the country, he has to resort to the Centre which may be thousands of miles away, and it is not all people that can fly from one part of the country to the other in a few hours. I submit, Sir, that if we just look into the Concurrent List as it is, we shall find that there are very many subjects which ought not to have found a place in it. Anyhow, if those subjects are to be dealt with by an executive which is under the Centre, it will be a very great hardship, and I do submit that the machinery itself will be very inefficient and will be a blot on the administration.
If with reference to such subjects as are mentioned in the Concurrent List, the people suffer by the bad way in which the executive carries on the administration, then the result will be that the persons who have got a
grievance will have to go a very great distance to have matters redressed, and even then it will be very difficult for the authorities in the Centre to realize the difficulties. It has been pointed out that as matters stand now as regards the subjects in the Concurrent List, the executive authority is in the provinces, and to do away with that practice and to centralise even the executive powers in the Centre with regard to all these subjects in the Concurrent List is a very backward step. Even from 1919 onwards when the Britishers were ruling, Provincial Autonomy was considered to be one of the objects of the Reforms. Now after we have won freedom, to do away with Provincial Autonomy and to concentrate all the powers in the Centre really instant amount to total itarianism, which certainly ought to be condemned. It has become the order of the day to call a dog by a bad name and hang it. Well, if some group of persons agitate for protecting their rights as a group, it is called communalism and it is condemned. If Provinces want Provincial Autonomy to be secured to allow matters peculiar to them to be dealt with by themselves, well, that is called provincialism, and that is also condemned. If people pressfor separation of linguistic Provinces it is called separatism and it is condemned. But I only wish that these gentlemen who condemn these `isms' just take into consideration what the trend of events is. It is leading to totalitarianism; they ought to condemn that in stronger language. But I am afraid that the result of the condemnation of these various `isms', namely communalism,provincialism and separatism, is that it leads to totalitarianism or as even fascism. If there are separate organisations for particular groups of people who think in a particular way, well, that is condemned as communalism or as some other `ism'. If all kinds of opposition are to be gotrid of in this sort of way, well, the result is that there is totalitarianism of the worst type, and that is what we are coming to having regard to the provisions in this Draft Constitution as they stand.
Therefore, it is high time that we take note of this tendency and see that we avoid it and that we do not come to grief. I submit that at least as regards this provision, the amendment only seeks to make a very moderate demand, namely that with reference to matters in the Concurrent List, even though the Centre may have legislative power, the executive power with reference to those subjects should be left to the Provinces. This is a very moderate demand, and as has already been pointed out, honourable Members from various Provinces do feel that these executive powers should be left to the Provinces. But as we all know, they are not able to give effect to their views for obvious reasons. and I do notwant to raise questions which may create a controversy. But I would submit that those honourable Members who do really feel that this amendment is one which is for the good of the people and that according to their conscience it ought to be carried,ought not to hesitate from giving effect to their views according to their conscience. I would remind honourable Members that the duty we have to perform here is a very sacred one and that we answerable to God for every act we are doing here, and if the defence is that we did not act according to our conscience on account of the whip that is issued, I submit, Sir, the honourable Members will realise that it is no defence at all.
Shri L. Krishnaswami Bharathi (Madras: General): Sir,is it necessary to make all these references?
B. Pocker Sahib Bahadur: I am making all these references on account of facts which cannot be denied.
Mr. Vice-President: I am afraid Mr. Pocker Sahib is raising a controversy.
B. Pocker Sahib Bahadur: Mr. Vice-President, Sir, I have already stated that I do not want to enter into this controversy, but I have got every right to appeal to each and every honourable Member.
Mr. Vice-President: Nobody is preventing the honourable Member from doing it.
B. Pocker Sahib Bahadur: I have got a
right of appeal to every individual Member to exercise his right of vote according to his conscience. That is why I am making these submissions. I have to make this appeal on account of obvious reasons on which I do not want to dwell. The honourable Members know, I know, and the Honourable the Vice-President knows it. Therefore, I do not want to dwell on those aspects of the case.
Mr. Vice-President: The Honourable the Vice-President, has absolutely no knowledge of this.
B. Pocker Sahib Bahadur: Well, Sir, I hope the Honourable the Vice-President, will not compel me to dilate more on this topic. Anyhow, I take in that the Honourable the Vice-President knows that Party Whips are issued and Members are being guided by these Whips, to put it in a nutshell. That is a fact well-known and cannot be denied, and therefore, it is, that I make this special appeal to the honourable Members that if they are satisfied in their conscience that this is a matter in which they should support the amendment, they ought not to hesitate from doing so, and if they so require they ought to seek the permission of the Party to which they are affiliated.
Shri T. T. Krishnamachari (Madras: General): Mr. Vice-President, Sir, I feel it my duty to oppose the two amendments that are before the House, to article 60. Sir, the two amendments fall into two distinct categories. The amendment that was proposed by my honourable Friend Mr. K.T. M. Ahmed Ibrahim merely sought to cut out the proviso to sub-clause (1) of article 60. That was the original state of the amendment. If the amendments were carried in that particular form, it would mean that the Federal executive power will be co-extensive with the legislative power that the Union has, namely, not only will it extend to List I butit will also extend to List III.
Subsequently apparently my honourable Friend found out his mistake and has sought to amend the body of sub-clause(1) of article 60, which limits the power of the Federationin regard to executive matters and completely prevents it from exercising it in the field of Concurrent legislation.Well, that, Sir, the House is aware, will mean going back on the present provisions of the Government of India Act. The position was remedied by my honourable Friend Pandit HirdayNath Kunzru. With his characteristic precision he framed anamendment which will exactly fit in with the position that was envisaged in the Government of India Act of 1935. It does not concede any more executive power to the Centre than what it has under the Government of India Act, 1935. Sir, there is also a considerable amount of difference in the approach of the Movers of the two amendments. The three speakers who supported the amendment of Mr. Ibrahim, including the mover, objected to the proviso to article 60(1) on political grounds. My honourable Friend Pandit Hirday Nath Kunzru objected to it on theoretical grounds. Let me first deal with my honourable Friend PanditKunzru's objections. He said that Federation or Federalism in the Draft Constitution before the House will become afarce if the position that is taken up by the Government of India Act in regard to the sphere of executive action that could be exercised by the Central Government in the concurrent field is changed, if the i's are dotted or thet's are crossed. Pandit Kunzru is a person who is well known for his wide reading. His experience is profound and I shall not seek to controvent his right to lay down the law. But, nevertheless, he made a fundamental mistake in saying that there is a particular type of federalism or constitution which alone can be called federal and that the word `Federal' or `Federalism' had a complete connotation of its own, excluding every possible inroad into it. I must also point out that Pandit Kunzru made a big blunder in characterising our draft Constitution as being something which would not be federal if the proviso of the article is retained.
Sir, in regard to what is a Federal Constitution, there are various interpretations. It varies widely. For instance,the Canadian
Constitution which is one of the four prominent Federal Constitutions in the world is characterised by some as not being wholly federal. On the other hand it does happen that in the actual working of the Constitution, it is more federal than the Australian Constitution which, from the strictly constitutional point of view, is undoubtedly fully federal. It is said often times that a Constitution becomes Federal because of the fact that the component units are first formed and then the Centre is created. That is theopinion expressed by Lord Haldane in 1913 as an obiter in a matter that was referred to him arising out of an Australian litigation where in he mentioned that the Canadian Constitution was not Federal in so far as, while the British North American Act was passed by ParlI ament, the Centre and the Provinces were created at the same time.
Similarly there are other views in regard to what makes a Federation. Another view is that the residuary power must lie with the units and not with the Centre. Where and how this fact exactly detracts from the concept of Federal is mnobody knows. This particular aspect is emphasised by reference to the United States Federation. If that is so,undoubtedly the Draft Constitution before the House is notfederal, for one reason that the residuary power is not vested in the units; for another reason that it (the Draft Constitution) creates both the Centre and the Provinces at the same time.
Sir, If we are to accept this view, we would be merely theorising in regard to Federation. I hold the view that we have no reason to take a theoretical view of the Draft Constitution at this stage. The concept of this Constitutionis undoubtedly Federal. But, how far Federalism is going to prove to be of benefit to this country in practice will onlybe determined by the passage of time and it would depend on how far the various forces inter-act conceding thereby to the provinces greater or lesser autonomy than what we no wenvisage. But I will repeat once more the fact that inactual practice it has happened that in Canada the provinces have greater amount of liberty of action under a Constitution which is not avowedly fully Federal, than in Australia where the interference by the Centre into the affairs of the units has been considerable.
Pandit Hirday Nath Kunzru (United Provinces: General):May I interrupt my honourable Friend to ask whether he is aware that in Canada the power of the provinces is greater than it is supposed to be because of the decisions of the Privy Council?
Shri T. T. Krishnamachari: It only supports my statement of fact that the Indian Constitution, when it Is passed, will either become fully federal or partially federal in actual practice over a period of time. It may be that if we are going to leave the field of authority for the Centre and the units completely undefined, the courts may interpret it one way or the other. It is conceivable that if we say nothing about the exercise of the executive powers in the Concurrent List, the courts may interpret it one way or the other and the Constitution may become more federal or less federal as circumstances arise and the views of thejudges in this regard and the decisions they arrive at. So,I think the interruption of my honourable Friend is without any force and I see no reason why I should answer it at greater length.
Sir, in regard to this question of executive action in regard to concurrent powers on which actually the objectionis being taken, the position is that the Government of India Act has been framed with a certain amount of attention for precision. Professor K. C. Wheare, in a short but exhaustive work on Federal Government, has pointed out this particular fact--though he does not concede that the Government of India Act establishes a full federation--that that Act isone of the most notable examples of Federation where the powers of the Centre and the units are clearly defined and the three Lists are more or less exhaustive.
Sir, in regard to the provisions of this Concurrent List, the Draft Constitution or the
1935 Act are by no meansunique. The fact is that the Australian Constitution practically leaves the entire field of legislative action in the Concurrent List save for a few that are enumerated in Section 52 of the Australian Constitution. Section 61 which is the corresponding section in the Australian Constitution to article 60 of our Draft Constitution says that the executive power extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. And an attempt by a State to interfere with the free exercise of the executive power by the Commonwealth was declared invalid in 1903 in a case D'Emden vs. Pedden. The position in regard to the distribution of powers in the Australian Constitution is however nebulous and assuredly the framers of the Government of India Act were conscious of that fact and that is why they have framed the three lists which are far more precise.
Sir, if you look back to what happened in Canada where passage of time has more or less delimited the precise scope of Federal and Provincial executive power, we find that there has been room for friction in various important matters. And in the Rowell-Sirois Report on Dominion-Provincial Relations, certain changes have been recommended.They have recommended that in the field of labourlegislation particularly, and in the field of social services like Unemployment Insurance, etc., the power should be given to the Federation not only for the purpose of legislation which it possesses to some extent, but also in the field of executive action. With this background let me,Sir, now examine the position in the Government of India Act in regard to the allocation of powers under the Concurrent List in view of our experience of the last twelve years.
Sir, the Joint Select Committee in dealing with this particular aspect of the separation of powers and also in investing the Central and Provincial Governments with executive powers in respect thereof have been rather careful.
Sir, they say--
"We think the solution is to be found in drawing a distinction between subjects in the Concurrent List which on the one hand relate, broadly speaking, to matters of social and economic legislation, and those which on the other hand relate mainly to matters of law and order, and personal rights and status. The latter from the larger class, and the enforcement of legislation on these subjects would, for the most part, be in the hands of the Courts of the Provincial authorities responsible for public prosecutions. There can clearly be no question of Federal directions being issued to the Courts, nor could such directions properly be issued to prosecuting authorities in the provinces. In these matters, therefore, we think that the Federal Government should have in law, as they could have in practice, no powers of administrative control. The other class of concurrent subject consists mainly of the regulation of mines,factories, employer's liability and workmen's compensation, trade unions, welfare of labour, industrial disputes, infectious diseases, electricity...... In respect of this class, we think that the Federal Government should, where necessary, have the power to issue directions for the enforcement of the law, but only to the extent provided by the Federal Act in question."
Sir, that was the plan envisaged in the Government of India Act. That was the reason why a sub-clause was added to Section 126, i.e., sub-clause (2), which gives power to the Centre to give executive directions in so far as the subjects covered by Part II of the Concurrent List is concerned. Sir, I want to tell my honourable Friends in this House that in actual practice we found that so far as PartII is concerned executive directions were not adequate to achieve the objects of the legislation undertaken by theCentre. Sir, it raised a very important problem. Who is tobe ultimately responsible for carrying out the objects of such legislation in a responsible government? The provincial governments are responsible to the provincial legislatures and it has happened so
far that the provincial executive has often said, "Oh, the Centre has given its directions, we have no funds, we have no administrative machinery, we donot know what to do and it is unfair that it should be our business to do the actual work in these matters when somebody else lays down the law." The present scheme in the Government of India Act is defective by reason of the fact that the field of executive responsibility blurs. We do not know where it begins and where it ends, and one of the reasons why this proviso has been put in which has been carefuly worded, is that, where the Government of India want to lay the executive responsibility squarely on the shoulders of the provinces or the units, it can do so by not mentioning in their legislation that they are possessed of any executive power in regard to any particular legislation.This is a variation of the provision contemplated in Section 126 (2) and it is a wise variation in so far as the lines of demarcation are clearly laid down. The Government of India where it is possible or necessary, perhaps in the field of social legislation, in social insurance, unemployment and perhaps labour, will take over the executive responsibility by laying down in the related Acts that the executive authority shall be that of the Government of India, Where there is no specific provincial the executive responsibility will be that of the provinces and the provincial ministries cannot shirk their responsibility for carrying out the objects of the legislation. Sir, I wish that my honourable Friend, Mr. Jagjivan Ram, who has been in charge of some pieces of welfare legislation, would speak on this subject, because times without number we have found that we have had to sail very close to colourable legislation in such matters. That, Sir. I think is a very valid reason, a reason which is dictated by experience, for us to put a provision of the nature of the proviso in clause (1) of this article which I can assure you, does not detract an iota from the federal character of this Draft Constitution. After all,what is a federal constitution? It is one that lays down precisely the field where the units are supreme and another field where the Centre is supreme. Where it is not possible to demarcate this clearly it has got to be done in someother manner where the responsibility will be precisely indicated, and this proviso to article 60 makes the constitution more federal than it would otherwise be.Therefore I think the objection of my honourable Friend, Pandit Hirday Nath Kunzru, is without any point; it is without any reference to the experience of the 1935 Act which has been gained during these twelve years; it is without reference to the theory and practice of federalism; it is without reference to the experience of Australia and Canada,and therefore has got to be rejected.
Sir, I shall turn my attention to the other amendment,the originally imperfect amendment, which seeks to give greater powers to the provinces in regard to concurrent subject, and practically limits the powers of the Centre in the executive field to nothing, which was moved by my honourable Friend, Mr. K. T. M. Ahmad Ibrahim and ably supported by Mr. Muhammad Ismail and Mr. Pocker. Sir, the House will be aware that these honourable Members are fairly important people, particularly Mr. Muhammad Ismail who happens to be the President of the Muslim League in India and the virtual successor to Mr. Jinnah. When he makes a political statement, it cannot be dismissed as being something which is of no value. One of the reasons why the Government of India Act is so elaborate, one of the reasons why such great emphasis on provincial autonomy was laid in the past, one of the reasons why we in this country agreed to the Cabinet Statement of May 16, 1946, was the fact that the Muslim League wanted complete freedom of action in the provinces which it controlled. Sir, that circumstance no longer exists owing to the dissection of the country into two. That circumstance has now faded into obscurity, and therefore it seems to me that my
honourable Friend is simply starting the trouble from the beginning viz., the agitation that provinces should have greater powers when actually there is no attempt to fetter the powers of the provinces.If there is any opposition to this Draft Constitution, it isa political opposition to any particular feature of this Draft Constitution. My honourable Friends have warned us that we have a conscience, that we have to act according to that conscience. I may tell the honourable Members of this House that their conscience will not be affected in any way if they approve of article 60, as it stands, that they may rest assured that there will be no inroads into the freedom of action of the provinces and that really no reallimitation of the executive power of the provinces is contemplate. Provincial opinion will be adequately represented in the ParlI ament to be: the pros and cons of each particular piece of legislation contemplated in this article will be adequately canvassed before the Centre is granted executive power in regard to any subject which falls in the Concurrent List. I might again draw the attention of the House to what was mentioned in the Joint Select Committee's report in respect of the 1935 Act that they didnot contemplate that even in the matter of giving executive directions under Section 126 (2), it would be done rightover the wishes of the provinces, because after all the Centre was not something apart from the provinces. Even in the future the Central Legislature will only consist of representatives of the units. In one House it will be representative of the unit legislatures. In the other Houseit will be representative of the people of the units. The Centre can have no existence in the future apart from the provinces or units and why therefore suspect the bona fides of that legislature and say that legislature will grant powers to the Centre in such a manner as would fetter the freedom of action of the units?
Sir, on the other hand, as I said once before, thisproviso precisely delimits the functions of the Centre and the units. There will be no more ambiguity, no more blurringof responsibility. I feel that intrinsically the article issound and the House will not, I have no doubt, be guided bythe threats uttered by these appeals to conscience, thethreat of the totalitarian state of things to come which myhonourable Friends from Madras of the Muslim League think is going to come to pass. Sir, this article......
B. Pocker Sahib Bahadur: Is it not a fact that whipsare being issued over such questions?
Shri T. T. Krishnamachari: I have no desire to answermy honourable Friend. Whips may be issued. We know what isbeing done. It is a matter of convenience. If some of us donot congregate together and get through the work that is tocome before the House by mutual agreement, I am afraid thisHouse will have to sit for three or four years. By actingtogether some of us, not exactly the members of one Partybut a number of people who act together are only expeditingthe framing of this Constitution for our country. Well, Ican conceive that my honourable Friend does not want aconstitution for this country. If that is his idea, well, hemight object to the method by which we are carrying on thework. Sir, I think these allegations are without any point.The basis of the opposition is political. It has its originin the fact that the Muslim League never wanted India to bea strong country, with a strong government. Therefore, Sir,I hope the House will dismiss all these vague threats andall these allegations and support the article before it.
The Honourable Dr. B. R. Ambedkar (Bombay: General):Mr. Vice-President, Sir, I am sorry that I cannot accepteither of the two amendments which have been moved to thisproviso, but I shall state to the House every briefly thereasons why I am not in a position to accept theseamendments. Before I do so, I think it is desirable that the House should know what exactly is the difference between theposition as stated in the proviso and the two amendmentswhich are moved to that proviso.
Taking the proviso as itstands, it lays down two propositions. The first propositionis that generally the authority to execute laws which relateto what is called the Concurrent field, whether the law ispassed by the Central Legislature or whether it is passed bythe Provincial or State Legislature, shall ordinarily applyto the Province or the State. That is the first propositionwhich this proviso lays down. The second proposition whichthe proviso lays down is that if in any particular caseParlI ament thinks that in passing a law which relates to theConcurrent filed the execution ought to be retained by theCentral Government, ParlI ament shall have the power to doso. Therefore, the position is this; that in all cases,ordinarily, the executive authority so far as the ConcurrentList concerned will rest with the units, the Provinces aswell as the States. It is only in exceptional cases that theCentre may prescribe that the execution of a Concurrent lawshall be with the Centre. The amendments which have beenmoved are different in their connotation. The firstamendment is that the Centre should have nothing to do withregard to the administration of a law which relates tomatters placed in the Concurrent field. The second amendmentwhich has been moved by my honourable Friend, Pandit Kunzru,although it does not permit the Centre to take upon itselfthe execution of a law passed in the Concurrent field, isprepared to permit the Centre to issue directions, withregard to matters falling within Items 25 and 37, to theProvincial Governments. That is the difference between thetwo amendments.
The first amendment really goes much beyond the presentposition as set out in the Government of India Act, 1935. Ashonourable Members know, even under the present Governmentof India Act, 1935, it is permissible for the CentralGovernment at least to issue directions to the Provinces,setting out the method and manner in which a particular lawmay be carried out. The first amendment I say even takesaway that power which the present Government of India Act,1935, gives to the Centre. The amendment of my honourableFriend, Pandit Kunzru wishes to restore the position back towhat is now found in the Government of India Act, 1935.
Pandit Hirday Nath Kunzru: I go a little beyond that.The second part of my amendment goes beyond any power whichthe Government of India now enjoy under the Government ofIndia Act, 1935.
The Honourable Dr. B.R. Ambedkar: Well, that may be so.That I said is the position as I understand it. Now, Sir, Iwill deal with the major amendment which wants to go back toa position where the Centre will not even have the power toissue directions, and for that purpose, it is necessary forme to go into the history of this particular matter. It musthave been noticed--and I say it merely, as a matter of factand without any kind of insinuation in it at all,--that alarge number of members who have spoken in favour of thefirst amendment are mostly Muslims. One of them, my FriendMr. Pocker, thought that it was a sacred duty of everyMember of this House to oppose the proviso. I have noidea...........
B. Pocker Sahib Bahadur: I have not said that, Sir. Ionly said that it is the duty of every Member of actaccording to his conscience.
The Honourable Dr. B. R. Ambedkar: By which I mean, Isuppose that every Member who has a conscience must opposethe proviso. It cannot mean anything else. (Laughter.)
B. Pocker Sahib Bahadur: Certainly not.
The Honourable Dr. B. R. Ambedkar: Now, Sir, thispeculiar phenomeno of Muslim members being concerned in thisparticular proviso, as I said, has a history behind it, andI am sorry to say that my honourable Friend, Pandit Kunzruforgot altogether that history; I have no doubt about itthat he is familiar with that history as I am myself.
This matter goes back to the Round Table Conferencewhich was held in 1930. Everyone who is familiar with whathappened in the Round Table Conference, which was held in1930 will remember that the two major parties who wererepresented in that Conference, namely the Muslim League
and the Indian National Congress, found themselves atloggerheads on many points of constitutional importance.
One of the points on which they found themselves atloggerheads was the question of provincial autonomy. Ofcourse, it was realised that there could not be completeprovincial autonomy in a Constitution which intended topreserve the unity of India, both in the matter oflegislation and administration. But the Muslim League tookup such an adamant attitude on this point that the Secretaryof State had to make certain concessions in order toreconcile the Muslim League to the acceptance of some sortof responsible Government at the Centre. One of the thingswhich the then Secretary of State did was to introduce thisclause which is contained in Section 126 of the Governmentof India Act which stated that the authority of the CentralGovernment so far as legislation in the concurrent field wasconcerned was to be strictly limited to the issue ofdirections and it should not extend to the actualadministration of the matter itself. The argument was that there would have been no objection on the part of the MuslimLeague to have the Centre administer a particular law in theconcurrent field if the Central Government was not likely tobe dominated by the Hindus. That was so expressly stated, Iremember, during the debates in the Round Table Conference.It is because the Muslim League Governments which came intoexistence in the provinces where the Muslims formed amajority such as for instance in the North-West FrontierProvince, the Punjab, Bengal and to some extent Assam, didnot want it in the field which they thought exclusivelybelonged to them by reason of their majority, that theSecretary of State had to make this concession. I have nodoubt about it that this was a concession. It was not anacceptance of the principle that the Centre should have noauthority to administer a law passed in the concurrentfiled. My submission therefore is that the position statedin Section 126 of the Government of India Act, 1935, is notto be justified on principle; it is justified because it wasa concession made to the Muslims.
Therefore, it is not proper to rely upon Section 126 indrawing any support for the arguments which have been urgedin favour of this amendment.
Sir, that the position stated in Section 126 of theGovernment of India Act was fundamentally wrong was admittedby the Secretary of State in a subsequent legislation whichthe ParlI ament enacted just before the war was declared. Ashonourable Members will remember, Section 126 wassupplemented by Section 126-A by a law made by ParlI amentjust before the war was declared. Why was it that theParlI ament found it necessary to enact Section 126-A? Asyou will remember Section 126-A is one of the most drasticeclauses in the Government of India Act so far as concurrentlegislation is concerned. It permits the Central Governmentto legislate not only on provincial subjects, but it permitsthe Central Government to take over the administration bothof provincial as well as concurrent subjects. That was donebecause the Secretary of State felt that at least in the warperiod, Section 126 might prove itself absolutely fatal to the administration of the country. My submission thereforeis that Section 126-A which was enacted for emergencypurposes is applicable not only for an emergency, but forordinary purposes and ordinary times as well. My firstsubmission to the House therefore is this: that no argumentthat can be based on the principle of Section 126 can bevalid in these days for the circumstances which I havementioned.
Coming to the proviso,.......
B. Pocker Sahib Bahadur: With your permission, Sir, mayI just correct my learned Friend? This Constitution is beingframed for the present Indian Union in which there is not asingle province in which the Muslims are in a majority and therefore is absolutely no point in saying that it is theMuslim members that are moving this amendment in theinterests of the Muslim League. It is a very misleadingargument based on a misconception of fact and the
HonourableMinister for Law forgets the fact that we in the presentIndian Union, Muslims as such, are not in the least to beparticularly benefited by this amendment.
The Honourable Dr. B. R. Ambedkar: I was just going tosay that although that is a statement of fact which Iabsolutely accept, my complaint is that the Muslim membershave not yet given up the philosophy of the Muslim Leaguewhich they ought to. They are repeating arguments which werevalid when the Muslim League was there and the MuslimProvinces were there. They have no validity now. I cannotunderstand why the Muslims are repeating them(Interruption.)
Mr. Vice-President: Order, order.
The Honourable Dr. B. R. Ambedkar: I was saying that there is no substance in the argument that we are departingfrom the provision contained in Section 126 of theGovernment of India Act. As I said, that section was notbased upon any principle at all.
In support of the proviso, I would like to say twothings. First, there is ample precedent for the propositionenshrined so to say in this proviso. My honourable Friend M.T. T. Krishnamachari has dealt at some length with theposition as it is found in various countries which have afederal Constitution. I shall not therefore labour thatpoint again. But I would just like to make one reference to the Australian Constitution. In the Australian Constitutionwe have also what is called a concurrent field oflegislation. Under the Australian Constitution it is open to the Commonwealth ParlI ament in making any law in theconcurrent field to take upon itself the authority toadminister. I shall just quote one short paragraph from awell known book called " Legislative and Executive Power in Australia" by agreat lawyer Mr. Wynes. This is what he says:
"Lastly, there are Commonwealth Statutes. Lefroy statesthat executive power is derived from legislative powerunless there be some restraining enactment. This propositionis true, it seems, in Canada, where the double enumerationcommits to each Government exclusive legislative powers, butis not applicable in Australia. Where the legislative powerof the Commonwealth is exclusive--e.g., in the case ofdefence--the executive power in relation to the subject of the grant inheres in the Commonwealth, but in respect ofconcurrent powers, the executive function remains with the States until the Commonwealth legislative power isexercised."
Which means that in the concurrent field, the executiveauthority remains with the State so long as the Commonwealthhas not exercised the power of making laws which it had. Themoment it does the execution of that law is automaticallytransferred to the Commonwealth. Therefore, comparing theposition as set out in the proviso with the position as it is found in Australia, I submit that we are not making anyviolent departure from any federal principle that one maylike to quote. Nor, Sir, my second submission is that thereis ample justification for a proviso of this sort, whichpermits the Centre in any particular case to take upon oneor two illustrations. The Constituent Assembly has passedarticle 11, which abolishes untouchability. It also permitsParlI ament to pass appropriate legislation to make theabolition of untouchability a reality. Supposing the Centremakes a law prescribing a certain penalty, certainprosecution for obstruction caused to the untouchables in the exercising of their civic rights. Supposing a law likethat was made, and supposing that in any particular provincethe sentiment in favour of the abolition of untouchabilityis not as genuine and as intense nor is the Governmentinterested in seeing that the untouchables have all thecivic rights which the Constitution guarantees, is itlogical, is it fair that the Centre on which so muchresponsibility has been cast by the Constitution in thematter of untouchability, should merely pass a law and sitwith folded hands, waiting and watching as to what theProvincial Government are doing in the matter of executingall those particular laws? As everyone will remember, theexecution of such a law might require the establishing
ofadditional police, special machinery for taking down, if theoffence was made cognizable, for prosecution and for allcosts of administrative matters without which the law couldnot be made good. Should not the Centre which enacts a lawof this character have the authority to execute it? I wouldlike to know if there is anybody who can say that on amatter of such vital importance, the Centre should donothing more than enact a law.
Let me give you another illustration. We have got inthis country the practice of child marriage against whichthere has been so much sentiment and so much outcry. Lawshave been passed by the Centre. They are left to be executedby the provinces. We all know what the effect has been as aresult of this dichotomy between legislative authorityresting in one Government and executive authority resting in the other. I understand (and I think my friend PanditBharagava who has been such a staunch supporter of this matter has been stating always in this House) thatnotwithstanding the legislation, child marriages are asrampant as they were. Is it not desirable that the Centrewhich is so much interested in putting down these evilsshould have some authority for executing laws of thischaracter? Should it merely allow the provinces the libertyto do what they liked with the legislation made byParlI ament with such intensity of feeling and such keendesire of putting it into effect? Take, for instance,another case--Factory Legislation. I can remember very wellwhen I was the Labour Member of the Government of Indiacases after cases in which it was reported that noProvincial Government or at least a good many of them not prepared to establish FactoryInspectors and to appoint them in order to see that theFactory Laws were properly executed. Is it desirable that the labour legislations of the Central Government should bemere paper legislations with no effect given to them? Howcan effect be given to them unless the Centre has got someauthority to make good the administration of laws which itmakes? I therefore submit that having regard to the caseswhich I have cited--and I have no doubt honourable Memberswill remember many more cases after their own experience--that a large part of legislation which the Centre makes in the concurrent filed remains merely a paper legislation, for the simple reason that the Centre cannot execute its ownlaws. I think it is a crying situation which ought to berectified which the proviso seeks to do.
There is one other point which I would like to mentionand it is this. Really speaking, the Provincial Governmentsought to welcome this proviso because, there is a certainsort of financial anomaly in the existing position. For theCentre to make laws leave to provinces the administrationmeans imposing certain financial burdens on the provinceswhich is involved in the employment of the machinery for thecarrying out of those laws. When the Centre takes uponitself the responsibility of the executing of those laws, tothat extent the provinces are relieved of any financialburden and I should have thought from that point of viewthis proviso should be a welcome additional relief which theprovinces seek so badly. I therefore submit, Sir, that for the reasons I have given, the proviso contains a principlewhich this House would do well to endorse. (Cheers).
Mr. Vice-President: I shall now put the amendments tovote.
The question is:
"That with reference to amendment No. 1289 of the Listof Amendments, in sub-clause (a) of clause (1) of article60, between the words 'ParlI ament has' and the word `power',the word `exclusive' be inserted."
The amendment was negatived.
Mr. Vise-President: The question is:
"That with reference to amendment No. 1289 in provisoto clause (1) of article 60, the words 'or in any law madeby ParlI ament' be deleted."
The amendment was negatived.
Mr. Vice-President: The question is:
"That with reference to amendment No. 1289 after clause(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 imposition 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."
The amendment was negatived.
Mr. Vice-President: The question is:
"That the proviso to clause (1) of article 60 bedeleted."
The amendment was negatived._
Mr. Vice-President: The question is:
"That article 60 stand part of the Constitution."
The motion was adopted.
Article 60 was added to the Constitution.
Mr. Vice President: The motion before the House is:
"That article 61 form part of the Constitution."
The first amendment, No. 1294, by Mr. Baig may bemoved.
Mahboob Ali Baig Sahib Bahadur (Madras: Muslim): Mr.Vice-President, I beg to move:
"That for the existing Clause (1) of article 61, thefollowing be substituted:
`1(a) There shall be a Council of Ministers to aid and advise the President in the exercise of his functions,
(b) The Council shall consist of fifteen ministers elected by the elected members of both the Houses of ParlI ament from among themselves in accordance with the system of proportional representation by means of a single transferable vote, and one of the ministers shall be elected as Prime Minister, in like manner."
Sir, the purpose of moving this amendment is firstly, tosecure in the executive i.e., the Cabinet, properrepresentatives and secondly, to secure representatives fromall sections of the people. The method by which ministersare appointed to the cabinet as envisaged in the DraftConstitution and as has been the practice in the past underthe Government of India Act, 1935, and previous theretoalso, is that the leader of the party which has beenreturned in majority is called upon by the Governor or theGovernor-General, as the case may be, and he is asked toform a government; and he chooses his colleagues in theCabinet. That is the practice in the past and that is whatis envisaged in this Draft, and that is in accordance with the form of government in what is called parlI amentarydemocracy. My conception of democracy is not the conceptionof democracy as can be considered, or as can be gauged fromthe system of government called parlI amentary democracy.According to me, parlI amentary democracy is not democracy atall. Democracy, according to me, is not a rule by meremajority; but it is rule by deliberation, by methods ofdeliberation on any particular matter, by taking intoconsideration all sections, who make up the people ingeneral. Now, let us see what actually happens, at the timeof the formation of a cabinet. Take for instance, the caseof a parlI ament consisting of 200 members. If 105 memberswere returned by a particular party, one of the members whois elected as the leader out of the 105--and he may havebeen elected by a majority of only 60, he is called by thePresident and is asked to form the Government. That is, outof two hundred members, the man who gets 60 votes is calledby the President to form the government and he becomes thePrime Minister and this Prime Minister chooses his own menwithout reference to the will and to the opinion of his ownparty, or of the members of the ParlI ament. He may choosehis own men. He is really in great difficulty sometimes. Ifhe chooses a certain member as his Minister, there areothers who are up against him; but he has been given thechoice. So the net result is............
Shri H. V. Kamath (C.P. and Berar: General): Sir, on apoint of order. The second part of the amendment moved byMr. Baig relates to the appointment of Ministers which formsthe subject matter of article 62. So it cannot be moved asan amendment to article 61.
Mr. Vice-President: There is an amendment, Iunderstand, which will cover your objection.
Mahboob Ali Baig Sahib Bahadur:
Therefore, Sir,according to the Draft Constitution, the person who issupported by 60 persons out of a membership of 200 personsbelonging to the House..........
Mr. Vice-President: Mr. Kamath will please turn toamendment No. 1302 standing in the name of Mr. Baig, and hewill get the requisite information to answer his objection.
Mahboob Ali Baig Sahib Bahadur: He is called upon toform the Cabinet. He might choose any person as hisMinister, who, in the opinion of his own party, may not besuitable for a ministership, not even taking intoconsideration the opinion of the entire House. Therefore, mysubmission is that this kind of appointment of the Executiveto rule over the country is anything but democratic. In thefirst place, as I said, they are not chosen by the entireHouse consisting of 200 persons, and even the Leader who iscalled the Prime Minister and who forms the Cabinet is notelected by a majority of the House, and in the case of othermembers of the Cabinet, they are not chosen at all by thepeople.
It may, however, be said that the party has beenreturned in a majority and therefore the Leader has got theright to choose his men. But I submit, Sir, that it is by alegal fiction that these members of the Cabinet are chosen.It may so happen that if election takes place in the case ofindividual ministers, they may not be elected at all. Shallwe then call these Ministers--the Ministers of the people?Can we say that they have been elected in a democratic way,and appointed in a democratic way? Surely not. It is only bya legal fiction that they are there. Therefore, mysubmission is that it is not the democratic way.
Still, it is said that parlI amentary democracy has beena success in England and other places and so on and soforth. My submission is that I do not agree with thestatement that is parlI amentary democracy at all. Sir, I amrather amused, though I am very much concerned also whenpeople say that parlI amentary democracy based upon partypolitics is the best method. I must say that this kind ofdemocracy obtaining in what is called parlI amentarydemocracy is far from being democratic, and all the ills andall the evils of the internal revolutions and internalchanges in governments in Europe, specially, are due to these political parties, one political party coming intopower and the other political party trying to pull it down.That is what is happening there. Can we not have democracywithout parties and without any political parties? Myconception of the future politics is non-partypolitics..........
An Honourable Member: Communal parties.
Mahboob Ali Baig Sahib Bahadur: Certainly not, Sir. Youare wrong. Do not be obsessed with that idea; the sooner youget rid of it the better.
Mr. Vice-President: Mr. Baig, please address the Chair.
Mahboob Ali Baig Sahib Bahadur: I am addressing you,Sir. It is the tendency amongst some of our Friends thatwhenever a man, belonging to a different religion than them,speaks he has to be heckled. That is unfortunate. But I ampropounding the idea whether we cannot have non-partypolitics.
Shri Algu Rai Shastri (United Provinces: General): it is a narrow-minded party politics view that you arepropounding.
Mahboob Ali Baig Sahib Bahadur: If my friend wants aninstance, I can quote him the instance of Switzerland. Inthat country you have not got what are called politicalparties being returned there. There, after members are elected to the ParlI ament, they elect their ownMinisters to the Cabinet. That is what has been happeningthere and for the last several centuries you have not hadany revolutions in that country. There has been no suchthing like one party coming into power and suppressing oroppressing another party and all that sort of thing.
What was the conception of democracy in the past? Inthose days it was not political parties that formedgovernments. Non-party politics prevailed and the best menwere chosen from all sections of the people. They were sentto ParlI ament and these Members of ParlI ament themselveschose their rulers and executives.
Now, Sir, the
reason why persons belonging to onepolitical party are nervous about the party in power is thateach political party is trying to retain power and when it is in power it exercises that power to oppress and suppressall other parties. Such things should not be. The onlypolitical party we should have is the party that works for the welfare of the country. If our representatives that aresent to the legislatures and to ParlI ament sit together anddeliberate about which is the best method of democracy andpromulgate laws which are beneficial to the people, be itfor nationalization or for any other purpose, where is thenecessity, I ask, then for political parties?
Pandit Thakur Dass Bhargava (East Punjab: General): Howwill you ensure collective responsibility?
Shri Algu Rai Shastri: How will you ensure collectiveresponsibility? That is the question.
Mahboob Ali Baig Sahib Bahadur: When there are nopolitical parties, the Cabinet that will be chosen will benon-political and the only aim before their mind will be thewelfare of the country and they will co-operate with oneanother for that purpose. That is my conception. Therefore,as I submitted, the present method by which the PrimeMinister and the members of the Cabinet are chosen issomething which cannot be called democratic, because all themembers do not have a hand in choosing the Premier. Theirown party men have the right to choose and even in theparty, if the leader gets one vote more than his opponent,he becomes the leader and it is he who chooses the othermembers of the Cabinet. Therefore, the appointment of theseMinisters to the Cabinet is something which is undemocraticand cannot be called democratic at all. That is the firstpoint I would like to urge.
In the second place I am visualizing to myself how toget rid of all the nervousness and troubles that countrieshave in this world on account of such political parties,such as, the Communist Party, the Socialist Party and theDemocratic Socialist Party, all of which come intoexistence, each with its own programme, and when in power,in order to retain that power, suppress and oppress others.There is no necessity for all this. Every party or groupwill proclaim that its programme is the best for thecountry. But when the aim is the good and welfare of thecountry, is there any necessity for any division amongst thepersons calling themselves as members of the SocialistParty, the Democratic Socialist Party, the Communist Party,and so on? So, from that point of view, I am visualizing astate of things in which the members who are sent by thepeople should choose their own men and elect them to the legislatures. That is the democratic method.
Therefore I move that due consideration may be paid tomy point of view and I hope that Members will not be souncharitable as to stigmatise this because I am a Mussalmanand think I have something else in my mind. There is nothingulterior in my mind at all. We are entitled to talk ongeneral topics without being accused of ill motives.
Shri R. V. Dhulekar (United Provinces: General): May Iknow from you whether Switzerland is a country or acosmopolitan hotel?
Mr. Vice-President: You need not answer that question.The next amendment is in the name of Prof. K. T. Shah--amendment No. 1295.
The Honourable Shri K. Santhanam (Madras: General):There is a similar amendment in his name, amendment No.1300, and that may be moved also.
Mr. Vice-President: I wish to inform the honourableMember that there are certain amendments to this amendment.
So will the honourable Member move the amendments as Icall them out Prof. Shah--amendment No. 1295.
Prof. K. T. Shah (Bihar: General): Sir, I move:
"That in clause (1) of article 61, the words `with thePrime Minister at the head' be deleted."
The article as amended would read:
"There shall be a Council of Ministers to aid andadvise the President in the exercise of his functions."
In suggesting that the designation of the PrimeMinister should be kept out of the Constitution, I am notspecifically opposed to the institution of the
PrimeMinister. The Prime Minister as an institution has beenwell-known to the Constitution of England ever since SirRobert Walpole was in charge of that office. And yet to theBritish Constitution even today he is not known. All thesocial status, official prestige, and other precedence hehas got is by way of Orders in Council, than by a specificprovision in the Constitution.
Mr. Tajamul Husain (Bihar: Muslim): May I know fromProf. Shah that, though he says that the Constitution ofEngland does not know whether the Prime Minister exists, isit not a fact that the whole world knows that there is aPrime Minister of England?
Prof. K. T. Shah: I have not said that the PrimeMinister as an institution should be abolished. But I amonly suggesting that he should be kept out of the Constitution. That does not mean that he should not be knownas Prime Minister, or he should not exist in fact. Nothingof the kind. It only means that, as far as the Constitutiongoes, the Ministers should be described as Ministers bythemselves; and any separate importance or status ordescription should be kept out of the Constitution to permita degree of flexibility, which may otherwise be lacking.
A Minister of Finance we do not describe here as aMinister of Finance likewise in the case of a Minister ofDefence, though there may be Minister of Defence, we do notprovide for one specifically in the Constitution. Similarly,there will be the Prime Minister, without the Constitutionproviding for that office in so many words or describing himas such, and making him at integral part of the Constitution. In fact, of course, we should always have aPrime Minister.
As I started by saying, Sir, the institution of thePrime Minister is a very useful one, and may serve as amachinery for holding together a party: a means to expeditebusiness, regulate and distribute work and, in many otherways, be a useful help in working the Constitution.
But on the theoretical side of the Constitution, Isubmit it is not absolutely necessary--and I rather think it is not even desirable--that we should insist upon theretention of the Prime Minister qua Prime Minister, as thehead of the Council of Ministers.
The second reason I have for suggesting this amendmentis that I regard the Ministers to be not only equal amongstthemselves, but because, if for any reason, the PrimeMinister may be unwelcome or any of his colleagues becomesunwelcome, we should not be obliged to have a completechange of the entire Ministry. The power which thisConstitution as a Constitution seeks to confer upon the Prime Minister makes it inevitablethat a degree of power will concentrate in his hands, whichmay very likely militate against the working of a real,responsible and democratic Government.
It may be,--it has often happened,--that only aparticular Minister is unwelcome on a particular occasion;or that a particular policy of Government is unwelcome. Now,if only a particular Minister is unwelcome, I personallythink it is undesirable to sacrifice the whole Cabinet underthe doctrine of collective responsibility, which comes onlater in this article. We should rather provide for thepossibility of dropping one or another Minister, without thenecessity of changing the entire Cabinet. It may be thatwith the authority that the Prime Minister will possess, hewill still be able to drop out one Minister, and yet carryon the Government as a collective Cabinet substituting theentire Ministry by another.
I consider, however, that the danger becomes greaterwhen the Prime Minister himself may be the object of suchwant of confidence or unpopularity. At such a moment thePrime Minister should have the right, against perhaps themajority of his own colleagues, to dissolve ParlI ament, orrather the House of the People; and at least have a chanceof one more delay to vindicate himself if he so desires.
I hold the view, Sir, that this would not only be in the interests of real, responsible and democratic Governmentfunctioning; but also in the interests of the Ministryconcerned, or its policy. Accordingly, I have put
forwardthis amendment, which, however, I repeat, does not byconvention make it impossible for the Prime-Ministershipcontinuing, nor exclude the powers and functions which wenow associate with the Prime Minister being vested in onesuch Minister. I commend the amendment to the House.
Mr. Vice-President: Amendment No. 1296 standing in thename of Shri Ram Narayan Singh. The Member is absent.
(The amendment was not moved.)
Then, amendments Nos. 1297 and 1298 standing in thenames of Mr. Mohd. Tahir and Saiyid Jafar Imam. They may bemoved together.
Mr. Mohd. Tahir (Bihar: Muslim): Mr. Vice-President,Sir, I beg to move:
"That at the end of clause (1) of article 61 thefollowing be inserted:
`Except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.'"
If this amendment is accepted, then the article willread thus:
"There shall be a Council of Ministers with the PrimeMinister at the head to aid and advise the President in theexercise of his functions except in so far as he is by orunder this Constitution required to exercise his functionsor any of them in his discretion."
Now, my second amendment is as follows:--
"That the following new clause be inserted after clause(1) of article 61 and the existing clause (2) be renumberedas clause (3):
`(2) If any question arises whether any matter is or is not a matter as respects which the President is by or under this Constitution required to act in his discretion, the decision of the President in his discretion, shall be final and the validity of any thing done by the President shall not be called in question on the ground that he ought or ought not to have acted in his discretion.'"
In moving these amendments, I want that the Presidentof India, although he is a `nominal President' in the wordsof my honourable Friend Mr. Kamath, still I want that thePresident should not be tied down all round. At least thisHouse should be generous enough to give him the freedom ofusing his discretionary powers. In introducing thisexception, I would submit that it is not a novel exception;if you will be pleased to look at article 143 of the Draft Constitution you will find that the same exception hasbeen allowed in respect of the Governors and the Ministersof the State. When the Governors of the States have beengiven power to exercise certain powers in their discretion,I do not see any reason why this innocent power should notbe granted to the President of India.
I need not make any long speech in this connection. Iclose my speech with the hope that my honourable Friend Dr.Ambedkar will consider this question seriously and decide infavour of my amendments. With these few words, Sir, I move.
Mr. Vice-President: Then there are amendments Nos. 1299and 1300 by Prof. K. T. Shah.
Prof. K. T. Shah: May I move both of them together?There is a further amendment to one of them.
Mr. Vice-President: Yes.
Prof. K. T. Shah: Sir, I beg to move:
"That at the end of clause (2) of article 61, the words`except by the High Court of ParlI ament when trying aPresident under section 50' be inserted."
As advised by you, I will also move my amendment No.1300 now.
I beg to move:
"That after clause (2) of article 61, the following newclauses be inserted:--
(2A) On every change in the Council of Ministers, and particularly on every change of the holder of Prime-Ministership, the Prime Minister (alternatively, the President) shall present the new minister as the case may be to the People's House of ParlI ament, and shall ask for a vote of confidence from that body in the particular minister newly appointed. In the event of an adverse vote in the case of a particular minister, the minister concerned shall forthwith cease to hold office and a new minister appointed. If a vote of confidence in the Council of Ministers collectively is refused, the Council as a whole shall resign and a new Ministry formed in its place.
(2B) Every minister shall, at the time of his appointment, be either an elected member of one or
the other House of ParlI ament, or shall seek election and be elected member of one or the other House within not more than six months from the date of his appointment, provided that no one elected at the time of a General Election, and appointed minister within less than six months of the date of the General Election, shall be liable to seek election.
(2C) No one who is not an elected member of either House of ParlI ament shall be appointed minister unless he gets elected to one or the other House of ParlI ament within six months of the date of his appointment.
(2D) Not less than two-thirds of the members of the Council of Ministers shall at any time be members of the People's House of ParlI ament; and not more than one-third of the members of the Council of Ministers shall at any time be members of the Council of States. Members of the Council of Ministers may have such assistance in the shape of Deputy Ministers or ParlI amentary Secretaries as ParlI ament may by law from time to time determine, provided that no one shall be appointed Deputy Minister or ParlI amentary Secretary who at the time of his appointment was not elected within six months of the date of his appointment to a seat in one or the other House of ParlI ament.
(2E) No one shall be appointed Minister or Deputy Minister or ParlI amentary Secretary, who has been convicted of treason, or of any offence against the sovereignty, security, or integrity of the State, or of any offence involving moral turpitude and of bribery and corruption and liable to a maximum punishment of two years' rigorous punishment."--
Mr. Vice-President: The honourable Member may moveamendment No. 37 in List IV of the Fifth Week.
Prof. K. T. Shah: I beg to move:
"That in amendment No. 1300, just moved by me, at theend of clause (2E), the following be added:-
`Every Minister shall, before entering upon the functions of his office, declare all his right, interest or title in or to any property, business, industry, trade or profession, and shall divest himself of the same either by selling all or any such right, interest, or title in or to any property, business, industry, trade or profession in open market or to Government at the market price; and further, shall take an oath ever to consider exclusively the interests of the country and not seek to promote his own interest or aggrandizement of his family in any act he may do or appointment he may have to make.'"
Sir, with regard to amendment No. 1299, I would like itto be realised that, ordinarily, the advice that anyMinister may have tendered to the President should beregarded as strictly confidential, and, therefore, not opento enquiry in any ordinary manner. But if and when it shouldhappen that either the President or any Minister is ontrial, particularly the President, and ParlI ament hasordered an enquiry either by itself in the process ofimpeachment, or caused any such enquiry to be made, it isnecessary in the interests of justice, where particularlythe very advice tendered is in question, whether or not the Constitution has been followed or violated, then it is butright and proper that the High Court or ParlI ament should beentitled to enquire into the question as to what advice wastendered.
The question would turn, in such an event, upon aquestion both of fact and of opinion; and the fact in thatcase would be the advice given to the President, who can,under the scheme of this Constitution, always plead that heacted in accordance with the advice of his Minister. If theadvice is not to be enquired into by anybody, then I thinkit would go hard with the President, when and if he shouldbe impeached, that he is not able to produce his bestdefence in the shape of the advice which his Minister gavehim. On that ground, I think the amendment I have suggestedwould meet such a contingency, and as such ought to beaccepted.
As regards the next amendment, I would like to pointout that it deals with three or four important matters,which I do not find equally clearly provided in thisConstitution and in this place.
The Ministers beingcollectively responsible to the legislature, it is obviousthat they must be members of that body. Later on in thisConstitution, there are clauses dealing with the legislatures in which some provisions of that kind occur. Tothose clauses I have the honour of giving notice of someamendments. But here, I think, is the proper place where weshould insert a definite provision, that the Ministers whoare responsible to ParlI ament should have a seat at the timeof the formation of the Ministry in the ParlI ament, ineither House of ParlI ament; or that, if they have no suchseat, then within six months of their appointment asMinisters, they should find seats. This is a very simpleproposition, conformable to the practice prevailing inwidely popular Constitutions, like that of England; and assuch ought to find no opposition.