CONSTITUENT ASSEMBLY OF INDIA - Volume VIII


Thursday, the 16th June 1949

The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Eight of the Clock, Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair.

TAKING THE PLEDGE AND SIGNING THE REGISTER

The following Members took the pledge and signed the Register:-

(1) Sheikh Mohd. Abdullah.

(2) Mirza Mohd. Afzal Beg.

(3) Maulana Mohd. Syeed Masoodi.

(4) Shri Moti Ram Bagda.

Mr. President: I am sure the House will join me in extending a cordial welcome to Sheikh Mohd. Abdullah and the three other Members, Who have joined the Assembly today and are going to take their seats for the first time. This brings to the Assembly now the full complement of representative from all State that have acceded to India.

Shri H. V. Kamath (C. P. & Berar: General) : Bhopal and Hyderabad?

Mr. President: There presence, I am sure is going to be of great help in framing the Constitution which is intended to cover the whole country and which, I am sure, will receive full support from all its constituent members. They have been somewhat late in coming, but it is not their fault, nor do I think it is our fault. Circumstances have been such that they have been delayed, but I am sure they have come in time to make very useful contributions to our Constitution.

DRAFT CONSTITUTION-contd.

*

Article 289

Mr. President: We shall now proceed with the discussion of article 289. Mr. Pataskar.

Shri H. V. Pataskar (Bombay: General) : Sir, I am now going to look at this question from a constitutional point of view. So far as I am aware there is no other Constitution where such elaborate provision with respect to the elections and its details are made. Even the Canadian Election Act on the basis of which the president amendment and the subsequent amendment which are to follow are drafted, is an Act of the Canadian Legislature, and that too, as I said yesterday, as far as I can find out from the records available to me, applicable only to the Dominion Parliament in Canada. In spite of all efforts, I could not get a copy of it either in the Legislative Library or this library. All the same, from the documents available, I am convinced. My point is whether really it is necessary or desirable that all these elaborate details about the method of election, about the Election Commission, etc., are necessary to be included in the Constitution. While, as we could find, there is some justification probably from what must have come to the notice of the Drafting Committee and in view of the work which is now proceeding for the preparation for the elections, that they want some provision of this kind to be made, the best remedy would be not to including them in the Constitution here, but to get an Act passed by the legislative section of the Constituent Assembly. I am told it is likely to meet in September next and it would not have mattered it an Act on the lines of the Canadian Election Act was passed by the Central Legislature. It is not desirable that it should be provided for in the Constitution which is for all time to come. We do not know what conditions may prevail after ten or twenty years. From what is happening should be burdened with all these details. I would therefore still appeal-probably it may be without much effect-that all these thing and the subsequent provisions which are to follow could have more appropriately found a place in the Act to be passed by the Central Legislature. We have our own legislature even now and that could have been used.

Sir, I do not think it is desirable in matters of such consequence we should try to depart from time to time from what we decided earlier, unless there were some very cogent reasons as to why that decision should be reversed after a few months time. As I said, so far as I can see, article 289 (2) is quite enough for the purpose. Even under article 289 (2) we can appoint not merely some official of the Government as Election Commissioners, but people of the position

of High Court Judges; we can make them permanent; we can make them as independent as we are trying to make them permanent; we can make them as independent as we are trying to make them in the case of the Central Commission. Even under the Government of India Act, 1935, which certainly did not contemplate so much of a Federal Government as a type of Government which was to some extent more unitary than otherwise, provision for election was contained in section 291. It says: "In so far as provision with respect to the matters hereinafter mentioned is not made by this act, His Majesty in Council may from time to time make provision with respect to those matters or any of them.........the conduct of elections under this act and the methods of voting thereat etc. " Even then, practically it was left to the provincial Governments. I do not see any reason why we should make provision for all these thing in the constitution itself and as far as I have been able to ascertain, no other constitution contains a provision of this nature.

I have therefore to make one or two concrete suggestions. We may keep article 289 as it is. We may supplement it by an Act of the Central Legislation for making provision with respect to all other matters which are now tried to put in this Constitution, as to what should be the status of these Regional and other Commissioners when they are appointed, whether they should be independent men of the position of High Court Judges, how they should be removed and all these things. I agree that they should be free from influence of the executive. All that we can easily entrust at least to the present Central Legislature.

Finally, I have to make an appeal that it is not yet too late in the day when we should really seriously consider whether article 289 (2) is not enough. As I have already stated, the amendment takes away to my mind not only the last vestige of provincial autonomy, but actually displays a distrust of our people in provinces, down from the Governor nominated by the President to the smallest local authority. I do not think there is any justification for an attitude of this type. Therefore, I suggest that we should not try to incorporate all these things in the Constitution itself.

Shri R. K. Sidhva (C. P. & Berar General) : Mr. President, Sir, I consider this article in the Constitution as one of the important articles as far as elections are concerned. I do not think that there are two opinions either in this House or outside the House that elections should be fair, pure, honest and impartial. If that is the view, I am sure it could be achieved only by an impartial agency as has been contemplated in this article. We want the elections to above-board. Any machinery that is to be set up should be quite independent, free from any influence from any agency, executive or anybody. Therefore, Sir, I whole-heartedly welcome the article that has been proposed by my honourable Fiend Dr. Ambedkar.

Sir, I do feel that even this article does not go as far as is necessary in the matter of perfection of elections is concerned. I will show you presently that there is some defect in this article also. With all that, I feel that every effort has been made in this article to achieve the object which we all are anxious to achieve.

It has been stated, why do you encroach upon the rights of the provinces by entrusting this work to a Special Commission? Now, Sir, I fail to understand how the question of encroaching upon the right of the provinces arises at all. This Commission will not run the elections for the provincial legislatures only, but it will run the elections for the elections for the provincial legislatures only, but it will run the elections for the Central Legislature also. If, it encroaches on the rights of the provinces, it encroaches upon the rights of the provinces.

Under this article, a machinery has been set up for the election purposes. While it has been made independent of the executive for purposes of administration, clause (5) says that the staff required for election

work may be borrowed from provinces. Herein lies the defect, which I said makes the scheme imperfect. If you want to make the scheme perfect, you should not borrow any staff from the provinces. Though during the period of election, the staff would be under control of the Commission, It will be only for a temporary period. They will be permanent people responsible to the executive and if the executive wants to play mischief, it can issue secret instructions to that staff to act according to their behests. The staff may feel that their permanent duty lay with the executive, that the work with the Commission was for a short period and they would thus carry out the fiat or behest of the permanent officials. Therefore, Sir, I would have preferred all the staff to be also recruited from outside but I considered myself as to what will be the effect of it. It will require an army of men. Those persons who have seen the elections being run and those who are interested in it know that do run the elections of the whole country they will have to recruit a number of men, a large army of men. It will be very expensive; therefore, although to that extent it is imperfect, I accept it for the reason that it is nearer to perfection. If we have to recruit a new staff it will be prohibitive as far as expenditure is concerned and it will be a new untrained staff and probably it will not be administratively as effective as we would expect it to be. Another provision is as regards the permanency of the Commission. It has been suggested why you incur so much expenditure in providing for a permanent Commissions. I have some experience of elections of the Karachi Municipal corporation both as the Mayor and Chairman of the Standing Committee. There is a provision in Karachi Municipal Act that there shall be a permanent staff and in accordance with that since ten years we have introduced this permanently and the elections have been fair and perfect although compared with Karachi the number of voters there being negligible but the impersonation and the false votes have been completely removed by that method which we have introduced. I am positive that with the permanent Commission that we are going to establish, we are going to remove all these defects and it is incorrect to state that this Commission will not have any work after the general election is over. We shall have now about 4,000 members in all the provinces and there will be bye-elections. Surely every month there will be two or three elections-some will die, some will be promoted to high offices-some will go here and there. In this Constituent Assembly during the short period we have had a number of bye-elections although we had nothing to do with them, but in the places from which they have come there have been a number of elections. There for, apart from the necessity and fairness, this Commission will have ample work. Apart from that if the Commission is permanent, what will it do? Periodically it will examine the electoral rolls and from the statistics of those provinces those who are dead they will remove those names and will bring the electoral rolls up to date as far as possible. An electoral rolls are prepared, 50 per cent. of them are defective. Some are dead and their names are intentionally put in by a particular party who wants to run the elections and wants to put in names of their own choice; I have heard people living in the cities trying to influence by mixing up with the executive. I can tell you that from my own personal experience and I feel that if we were to have a perfect electoral roll- and electoral roll is the principal thing in an election-I am sire we must have an independent Commission and if we establish a Permanent Commission we shall certainly have a permanent roll and a very good electoral roll. I have no doubt in my mind about that and therefore though you say that it will be an expensive thing and it is not a necessary under, I strongly say from my experience that this Commission is very necessary under the circumstances that I have mentioned.

Now

coming to the tribunal, it will be necessary for the election petitions or those who have to make any application for the election, to have a Tribunal. I have also certain experience of tribunals. Tribunals have been appointed by the Governors in the past and they have appointed tribunals, at the instance of the Executive, of the favourites and they have never acted impartially. I therefore suggest that the tribunal should consist of judges of superior courts to whom the election petitions of the election should go. I am opposed to such cases being entrusted to any kind of tribunals. It will mar the very purpose and the very object for which we are striving-to have our elections pure and fair-it will frustrate that very object, if in the tribunal that will be appointed, some kind of mischief is made. In England also-I might state- the Constitutional law of the British Commonwealth provides for entrusting this work to superior courts. I therefore suggest that although nothing could be provided in this Constitution, I do not desire that the Constitution should be burdened with all this-but in the Act that will be made-the Election Act-wherein many things are required to be put, e.g., the secret ballot boxes etc.-I suggest to Dr. Ambedkar to bear that in mind that when the Parliament Act is made it must be made cleat that the tribunal's appointment should not be left to the President or anybody-I do not want hereafter any kind of trickery that was played in the past should be played hereafter. With all that, I feel that the permanent superior judiciary alone can fairly and impartially adjudicate in such disputes and they will command the confidence of the public. Those who will be appointed from the public men or some lawyers may be best lawyers but they will be temporary men and would be liable to influence. If the tribunal does not consist of responsible permanent men I am sure these tribunal will be of no effect. My Friend Mr. Pataskar desired tat why burden the Constitution with scheme, the rules may be made; but I can surely and safely tell him that if we have not such an article in our Constitution our very purpose of making our elections pure will be frustrated; it is, therefore, necessary that it should be provided here. I do not want this to go into the Election Act. I really wish even some of the other provisions e.g. the secret ballot-box should also be provided in the Constitution which is very essential for an election. The whole thing depends upon the election for the future constituencies and if we do not make this provision in the Constitution and leave it to Parliament to be made, it will be running a great risk. Under these circumstances I whole-heartedly welcome this article and strongly support it.

Shri Kuladhar Chaliha (Assam: General) : Mr. President, I have heard with great attention the arguments advanced by Dr. Ambedkar who is the Constitutional maneuver and whose industry and diligence is a wonder to all of us. Yet, his arguments have not brought that conviction which ordinarily they bring. His main objection is-he first argued that he wanted it to be inserted in the Fundamental Rights but as it was said that he wanted separate provision for this, so this article has been added in order to safeguard the interest of the electorate-he thought that a body outside the Executive should be there to conduct the elections; but what is that body outside the Executive? It is the President who will select the Chief Election Commissioner and he is a party-man whatever it may be and will have the same prejudices and same bias towards his own party-man as anyone else and therefore that argument does not hold very good. Secondly, he says and he admits that it is a radical change I do not see any reason why this radical change is brought forward. Has he been able to give us examples of corruption and nepotism in case of election tribunals in the provinces? No instance has been given of abuse of power by the election tribunals appointed by the Governors in the provinces. In spite of that he wants a radical

change. Of course radical illness requires a radical remedy, but Dr. Ambedkar has not been able to give one single instance of corruption or abuse or powers by these election tribunals. On the contrary we know that, as a result of the findings of an election tribunal in Sing, Pir Ilahi Bux was removed by his own party men, which shows that our people have the capacity to be impartial. I see no reason why this radical change should be necessary.

Then it said that there are minorities in the provinces who require protection. But should we keep them in haughty isolation and not pave the way for harmonious relations with the general population? By doing this you will be creating big problems for these provinces. It is said that they are racially and linguistically different. But will you prepetuate these differences or should you try to remove them? I submit that no justification has been offered for this radical change. Dr. Ambedkar has brought this forward on the analogy of the Canadian Act of 1920. But there they have a small population as against our 340 millions, and one Election Commission would hardly do for this country. In spite of there being Regional Commissioners this Election Commission would not be able to realise the feelings of the people of different parts of the country. They would not know what a man in Madras would do and what a man in Assam would do. I submit that this thing should not be taken out of the provinces. If you suspect the provinces and take greater power for the centre it will only lead to undesirable results. If you cannot trust men like Messrs. Pant, Kher and Shukla and the men working under them you will hardly make a success of democracy. You are doing something which will have a disintegrating effect and will accentuate differences instead of solving them. If you take too much power for the Centre the provinces will try to break away from you. How can a man in Madras understand the feelings the sentiments of a man in Assam or Bengal? You seem to think that all the best qualities are possessed by people here in the Centre. But the provinces charge you with taking too much power and reducing them to a municipal body without any initiative left in them. Youthink you posses better qualities than the men in the provinces, but I know there are people there who are much better than you are. If you cannot trust the honesty of your own individuals you can never make a success of democracy. You are always suspicious and think that the provinces will be unjust to the minorities. But if they are kept aloof and always under the protection of the President or the central executive, they will never be able to develop their own virtues, and you will only be encouraging disturbance and rebellions. It has been suggested that the Scheduled class people are suspicious about the impartiality of the provinces. But they are our own people and they can be just as fair and impartial as men in the Centre. Why should you think that you have developed the virtue of impartiality which no one else possesses? Sir, I fail to see why this provision should be sought to be embodied in the Constitution.

Sir, the Governor is appointed by the Centre and he will form election tribunals, as has been done in the past. In spite of Mr. Sidhva's assertion I must say that no case of partiality has been proved against any of these tribunals. In a case in which I was interested I know that even when the Congress was in the bad books of Government, the tribunal decided in favour of the Congress, although the candidate was opposed by Rai Bahadurs and other big men. That shows that they can be impartial. Why should you condemn you own men as partial, unjust and incapable of being honest? If we cannot trust our own people we are not worthy of our independence, Sir, an injustice is sought to be done to the provinces and they are needlessly suspected, and I therefore oppose this proposal.

Pandit Hirday Nath Kunzru (United Provinces: General) : Sir, my honourable Friend Dr. Ambedkar moved a new article yesterday in place of article

289 as contained in the Draft Constitution. The article deals with a very important matter and departs radically from the corresponding article in the important matter and departs radically from the corresponding article in the Draft Constitution. Nevertheless he contented himself with moving his amendment without explaining in the smallest measures the reasons why the new Draft had been proposed. When I pointed out it was not fair to the House that an article dealing with a very important matter should be placed before the House without a full explanation of its provisions he felt the need for defending himself. But finding that he was in a very difficult position he became reckless and said I had asked for an explanation only because I had not read the amendment. It was obvious that this irresponsible statement of his did not satisfy the House and he was therefore compelled to explain the differences between the new Draft and the old Draft.

Sir, several points arise in connection with this question. The most important question is one of principle. Is it right that in a matter of this kind the provincial Governments which are being given full responsible government should be deprived of all power? I shall not dilate on this subject because it has been dealt with very ably and fully by our honourable Friend Mr. Pataskar. Dr. Ambedkar defended the new procedure which makes the Central Government responsible for superintendence, control and guidance in all matters relating to the preparation of the electoral rolls and the conduct of the elections on the ground that complaints had been received from some provinces that members belonging to racial, linguistic, or cultural minorities were being excluded, under ministerial instructions from the lists of voters. I do not know to what extent the complaints received by him or by the Government of India have been investigated and found to be correct. Supposing that they have been found to be correct, one has to ask oneself why this elaborate Constitution is being framed. If we cannot expect common honesty from persons occupying the highest positions in the discharge if their duties, the foundation for responsible government is wanting, and the outlook for the future is indeed gloomy. I do not know of any federal Constitution in which the Centre is charged with the duty of getting the electoral rolls prepared and the elections held fairly and without prejudice to any minority-there may be some constitution in which such a provision exists, but I am not aware of it. In all the Provinces will be excluded from all share in the preparation of the electoral rolls and other ancillary matters except in the preparation of the electoral rolls and other ancillary matters except in so far as their help is needed by the Election Commissioners appointed by the President.

Even granting however, Sir, that there is need for taking the control of elections out of the hands of the provincial Governments we have to see whether the new Draft contains the necessary safeguards. It may be right to curtail the political power of the Provinces; but is there no danger, if the article is left as it is, that the political prejudice of the Central Government may prevail where otherwise the political prejudices of the provincial Government might have prevailed? Everything in the new Draft is left to the President; the appointment of the Election Commission will be made by the President; he will appoint the Chief Election Commissioner and decide how many Election Commissioners should be appointed; he will decide the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners that might have to be appointed. Again, while it is provided that the Chief Election Commissioner should not be removed except in the same manner as a Judge of the Supreme Court, the removal of the other Election Commissioners is left in the hands of the President. He can remove any Commissioner he likes in consultation with the Chief Election Commissioner. Clause (4) of the article which

deals with this matter is so important that I think it is desirable that I should read it out to the House. It says.

"The conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine :

Provided that the Chief Election Commissioner shall not be removed from office except in like manner and on the like grounds as a judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment;

Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner. "

I find, Sir, that I made a mistake when I said that the other Election Commissioners and the Regional Commissioners could be removed in consultation with the Chief Election Commissioner. They can be removed only on the recommendation of the Chief Election Commissioner. Here two things are noticeable: the first is that it is only the Chief Election Commissioner that can feel that he can discharge his duties without the slightest fear of incurring the displeasure of the executive, and the second is that the removal of the other Election Commissioners will depend on the recommendations of one man only, namely the Chief Election Commissioner. However responsible he may be, it seems to me very undesirable that the removal of his colleagues who will occupy positions as responsible as those of judges of the Supreme Court should depend on the opinion of the man. We are anxious, Sir, that the preparation of the electoral rolls and the conduct of elections should be entrusted to people who are free from political bias and whose impartially can be relied upon in all circumstances. But, by leaving a great deal of power in the hands of the President we have given room for the exercise of political influence in the appointment of the Chief Election Commissioner and the other Election Commissioners and officers by the Central Government. The Chief Election Commissioners will have to be appointed on the advice of the Prime Minister, and, if the Prime Minister suggests the appointment of a party-man the President will have no option but to accept the Prime Minister's nominee, however unsuitable he may be on public grounds. (Interruption) . Somebody asked me suitable why it should be so. As full responsible Government will prevail at the Centre, the President cannot be expected to act in any matter at his discretion. He can only act on the advice of the Ministry and, when, in matters of patronage, he receives the recommendations of the Prime Minister, he cannot, if he wants to act as a constitutional Head of the Republic, refuse to accept them. I think, Sir, therefore, that the Draft placed before us by Dr. Ambedkar has to be modified in several respects, so that the Election Commissioners may be able to discharge their responsible duties fearlessly.

My remedy for the defects that I have pointed out is that Parliament should be authorised to make provision for these matters by law. Again, Sir, this article does not lay down the qualifications of persons who are chosen as Chief Election Commissioners or as Election Commissioners. And, as I have already pointed out, in the matter of removal, the Election Commissioners are not on the same footing as the Chief Election Commissioner. I feel, Sir, that the opinion that I have places before the House, was at one time or other the opinion of Dr. Ambedkar too. We have in the List of Amendments, amendment No. 103 which has not been moved by Dr. Ambedkar, but has been given notice of by him. Honourable Members who have read this amendment will have noticed that clause (2) provides that a `member of the Commission shall only be removed from office in like manner and on the like grounds as a judge of the Supreme Court, and the conditions of service of a member of the Commission shall not be varied to his disadvantage after his appointment'. It will be

clear therefore that the suggestion that I have made is in accord with the better judgment of Dr. Ambedkar which, unfortunately, has not been allowed to prevail.

I know, Sir, that Dr. Ambedkar told us yesterday that it might be unnecessary to have permanent Election Commissioners and that all that might be required might be to appoint Election Commissions when there is work enough for them to do. In such case obviously the procedure relating to the removal of judges of the Supreme Court cannot be applied in the case of Election Commissioners. This is true, but then there is no reason why the whole matter should be left in the hands of the President, and why the conditions and tenure of service of the Election Commissioners should be determined by rule by him. These, too, should be determined by law made by Parliament.

Again, Sir, we have to consider the position of Regional Commissioners who may have to be appointed in the provinces in order to help the Election Commission in carrying out its duties honestly and efficiently. It is obvious that so long as these officers are holding their offices they will be carrying out highly responsible duties. It will depend on them primarily whether the preparation of the electoral rolls and all matters connected with the conduct of the elections gives satisfaction to the public or not. Now, in the Draft which was not placed by him before the House Dr. Ambedkar provided with regard to the Regional Commissioners and the Returning Officers, etc., that no such authority or officer would be removed except by order of the President. As I have already pointed out a change has been made now and their removal has been made to depend on the recommendation of the Chief Election Commissioner. This has been done presumably because the Election Commissioners would be permanent officers and if there is only one permanent officer, the law cannot obviously require that the removal of the Regional Commissioners and the Returning Officers should be depend on the decision of the Commissioners, as a whole. But for this very reason, Sir, the matter ought not to be left to the sweet will of the President, in reality the Prime Minister of the day, but should be determined by law.

My honourable Friend, Professor Shibban Lal Saksena, moved a number of amendment yesterday, Sir, with regard to the new Draft placed before the House by Dr. Ambedkar. It may not be practicable to accept some of them, but I think that he has done a public service by drawing the attention of the House to the glaring defects in the Draft that we are considering. I think it is the duty of my honourable friend, Dr. Ambedkar, to consider the matter carefully and to provide such safeguards as will give general satisfaction by ensuring that our electoral machinery will be free not merely from provincial political influences but also from Central political influences. We are going in for democracy based on adult franchise. It is necessary therefore that every possible step should be taken to ensure the fair working of the electoral machinery. If the electoral machinery is defective or is not efficient or is worked by people whose integrity cannot be depended upon, democracy will be poisoned at the source; nay, people, instead of learning from elections how they should exercise their, vote how by a judicious use of their vote they can bring about changes in the Constitution and reforms in the administration, will learn only how parties based on intrigues can be formed and what unfair methods they can adopt to secure what they want.

Mr. President: I think that Members understand that we will have to finish the agenda today. Otherwise we may have to sit tomorrow.

Mr. Naziruddin Ahmad (West Bengal: Muslim) : Mr. President, Sir, I have come here to support this article. At the beginning when a came to this Assembly for the first time, I thought that the Provinces should be made strong and the Centre to that extent must yield. But after a considerable amount of experience and on prolonged consideration of what is happening in

the Provinces and in the State, I am now of the opinion that for many years to come the Centre must take charge of all important matters affecting the general wellbeing of the country and encroach on the Provincial field. Election is a most important item in a democratic set up and it is very necessary that it should be controlled and supervised by a very competent, independent and impartial body. The way in which some of the Provinces are proceeding shows that the Provinces are rent by party factions and it will always be the desire of the party, or the faction in power for the time being, to appoint election tribunals and officers of their own choice with a view to control or manipulate the elections. The result will be that election tribunals and officers will not be free from corruption and partiality. It is for this reason that I welcome the move by the Centre to control elections, so that thereby the impartiality and efficiency of the election machine could be ensured. We have had the experience of West Bengal and other Provinces. West Bengal is rent by party faction. Even in the Congress ranks in Calcutta and in the districts there are several groups and factions accusing one another of habitual corruption and the like. They are fighting against one another in a most unseemly fashion to the detriment of the general well-being of the country. This is also happening in some of the State. We have the unseemly quarrel in the Greater Rajasthan State and also in some other States. If we do not want the Provinces and the States to descend into chaos and disorder, the first thing that we should do is to control the election, not to interfere with the policies and activities of the different parties, but just to ensure impartiality and efficiency in the conduct of elections. The most important duty of the Commission would be to appoint Election officers upon whose efficiency, integrity and independence much will depend, and I believe that the Central control of the these elections will be welcome in serious quarters. The secrecy of the ballot box, as has been pointed out by one of the speakers and is well known, is a very important matter in an election as fostering freedom of the vote, and this secrecy must be thoroughly and effectively guarded. We hear allegations and counter allegations that in the recent South-Calcutta election, the secrecy of the ballot box and the integrity of the ballot papers were violated. I do not know what truth there may be in these allegations, but they have a had odour in themselves. I believe that if these matters are controlled by the Centre, these tendencies to make allegations and counter-allegations of this type would be removed. The officers who are to be appointed to conduct these elections should be above all suspicion and should be selected just to avoid provincial cliques and parties. Sir, I do not wish to take up further time of the House. I accord my humble and whole-hearted support to this article.

Shri K. M. Munshi (Bombay: General) : Mr. President, Sir, I rise to support the amendment No. 99 moved by my honourable Friend, Dr. Ambedkar. This amendment has been subjected to two fires, one by my honourable Friend, Pandit Kunzru, on the ground that the amendment does not go far enough, that it does not make the Election Commission sufficiently independent, that the Central Government could influence it in a manner prejudicial to fair elections. That is one ground. The other ground, of which the exponents have been my honourable Friend Mr. Pataskar and Kuladhar Chaliha from Assam, put forward, is that this is a trespass on trespass on provincial autonomy, to put it shortly. I will deal with these two points separately.

Sir, the amendment which has finally emerged from the Drafting Committee makers it clear that neither the Central Government nor the provincial Governments will have anything to do with the election. The Chief Election Commissioner, as the House will find, is practically independent. No doubt he is appointed by the President, that is, the Central Government.

There can be no other authority, no higher authority in India than the President for appointing this Tribunal. you cannot omit this important thing.

The next argument against the amendment is that this amendment departs from the old amendment No. 103 which was to be moved on behalf of the Drafting Committee, under which the Commissioners other than the Chief Election commissioners were not removable except in the manner in which a High Court Judge can be removed. Perfectly right. But the change has been made for a very good reason. Between two election, normally there would be a period of five years. We cannot have an Election Commission sitting all the time during those five years doing nothing. The Chief Election Commissioner will continue to be a whole-time officer performing the duties of his office and looking after the work from day to day, but when major elections take place in the country, either Provincial or Central, the Commission must be enlarged to cope with the work. More members therefore have to be added to the Commission. They are no doubt to be appointed by the President, but as the House will find, they are to be appointed from time to time. Once they are appointed for a particular period they are not removable at the will of the President. Therefore, to that extent their independence is ensured. So there is no reason to believe that these temporary Election Commissioners will not have the necessary measure of independence. Any way the Chief Election Commissioner an independent officer, will be the Chairman and being a permanent officer will have naturally directing and supervising power over the whole Commission. Therefore, it is not correct to say that independence of the Commission is taken away to any extent.

We must remember one thing, that after all an election department is not like a judiciary, a quasi-independent organ of Government. It is the duty and the function of the Government of the day to hold the elections. The huge elections which we are putting up now, the voting list which will run into several crores--all these must necessarily require a large army of election officers, of clerks, of persons to control the booths and all the rest of them. Now all this army cannot be set up as a machinery independent of Government. It can only be provided by the Central Government, by the Provincial Government or by the local authorities as now. It is not possible nor advisable to have a kingdom within a kingdom, so that the election matters could be left to an entirely independent organ of the Government. A machinery, so independent, cannot be allowed to sit as a kind of Super-Government to decide which Government shall come into power. There will be great political danger if the Election Tribunal becomes such a political power in the country. Not only it should preserve its independence, but it must retain impartiality. Therefore, the Election Commission must remain to a large extent an ally of the Government; not only that, but it must, to a considerable extent, be subsidiary to Government except in regard to the discharge of the functions allotted to it by law.

Some reference has been made that the powers of the Parliament have not been preserved. I may point out that amendment no. 123 which is also going to be moved by Dr. Ambedkar gives to the Parliament power to make provisions with respect to elections to legislatures, subject, of course to the Provisions of this Constitution. Similarly Sir, you find amendment No. 128 which gives to a State Legislature the power to make provisions with respect to elections to such Legislatures. Therefore, the Parliament as well as the State Legislatures are free to make all provisions with regard to election, subject, of course, to this particular amendment, namely, the superintendence, direction and control of the Election Tribunal. Today, for instance, the elections are controlled by officers appointed either by the Center or the Provinces as the case may be. What is now intended is that they should not be subjected to the day-to-day

influence of the Government nor should they be completely independent of Government, and therefore a sort of compromise has been made between the two positions; but I agree with my honourable Friend, Pandit Kunzru that for the sake of clarity, at any rate, to allay any doubts clause (2) requires a little amendment. At the beginning of clause (2) the following words may be added; " subject to the provisions of law made in this behalf by Parliament. " Similarly in clause (4) also where the conditions of service and tenure of office of the Election Commissioners and Regional Commissioners are prescribed, it will be proper to have words to this effect; " subject to the provisions made by Parliament in that behalf. " That, of course, would follow from amendment No. 123, but we do not want any doubt to be on this point, and therefore, it would be better if these words are added to give Parliamentary control over the terms of service and the tenure.

Shri H. V. Kamath: How will you insert those words in the amendment?

Shri K. M. Munshi: I have no doubt in my mind that Dr. Ambedkar will accept my suggestion and move these amendments.

The question was raised with regard to the qualification of the Regional Commissioners. The same could easily be provided by parliamentary legislation either under article 123 or under the new phrase with I submit should be added to clauses (2) and (4) . So in this way the Parliament's power over these details would be secured. This amendment, therefore, maintains impartiality and independence of the Election Commission so far as it is necessary in the circumstances and also supremacy of the Parliament over the details.

Now I come to the other part of criticism. And, that is the argument that this provision whittles down or takes away what is called provincial autonomy. This argument has the knack of appearing again and again in respect of almost every article, and I think it is high time that those honourable Members of the House who put it forward reconcile themselves to the position that the House has taken the line more suited to the country rather then the doctrinaire views of theoretical writers on federalism. Dr. Ambedkar in the opening speech has made it clear that the idea an Election Commission was accepted as far back as January or February 1947, when th question of the partition of the country had not become a settled fact. The Fundamental Rights Committee put forward this suggestion. It was unanimously accepted by the Advisory Committee and again it was accepted unanimously by the House. Therefore, it must be treated as the opinion of the House, and the country as a whole that matters of election must be taken out of the purview of the Centre and the provinces with a view to meet the realities of the situation. That being so, the only other question is as to how this should be done.

With regard to the precedent, reference has already been made to section 19 of the Dominion Elections Act of Canada. This Act lays down that for the whole of Canada, a Chief Election Officer, not a Commission as we have envisaged, will superintend, control and direct all election. His tenure of office is exactly the same as we have adopted here for the Chief Election Commissioner.

Another argument put forward in the course of this debate was that this is undemocratic. I fail to understand how democracy is affected by this provision. Let us analyse the position. This Constituent Assemble, if it lays down a Constitution for the country, is nothing else but an instrument of the sovereign people of India, not the different people of the provinces meeting together in a confederation for the purpose of evolving Constitution. Let us not forget this main fact. It is open to the House to look at the conditions in the country, to look at the realities of the situation and to give some power to the Centre, to give other power to the provinces, to transfer power from one to the other. That does not take away from either the representative character of the Constituent Assembly or the democratic power of he

sovereign Indian people. The House cannot be tied down by any theoretical considerations in this matter. In the debate on article 226 also, I found the same kind of argument advanced. But we must realise once for all that it is the Constituent Assembly as the instrument of the sovereign people of India which is one unit that is going to decide what are going to be the functions of the Centre and the provisions in view of the actual condition that exist in this country. Now, Sir, if that is so, the sovereign people, and the Constituent Assembly as their agent, is bound to maintain the purity of elections in a practical manner. That can only be done by the establishment of the machinery envisaged in this amendment. To say that it is undemocratic is entirely baseless. If there is going to be democracy, the sovereign people of India must be in a position to elect their own representatives in a manner which is above suspicion, above partiality. Corrupt practices do not necessarily apply to the candidates. Therefore, it is necessary that we should not consider this question from the point of view of any theoretical provincial autonomy, a point which is being trotted out again and again in this House.

My Honourable Friend Mr. Kuladhar Chaliha coming Assam said that this affects the power of the provincial Governments. He further put forward the point of view that in point of efficiency and integrity the Centre is no better then the provinces. He said if I heard aright that the provinces were better in this respect than the Centre. If that be so, I wish the sooner we wound up our democratic business the better. My friend coming from Assam ought to know that complaints after complaints have been received from Assam that ingenious devices are found to shut out people who have settled in Assam from the electoral rolls. The complaints may be wrong; I am not here judging them. But the complaints are there...........

Shri Kuladhar Chaliha: I question that.

Shri K. M. Munshi: The complaints are known to every department that is concerned with them. The fact that such complaints come is the reason why provincial Governments cannot be trusted, in the condition in which we are, to be as impartial in the elections as they should be.

Shri Kuladhar Chaliha; I seriously protest against this remark.

Mr. President: There is no need introduce heat in the discussion. We are only discussing a purely constitutional question.

Shri K. M. Munshi: I am not introducing heat. My honourable Friend said that the provinces are such superior to the Centre of this Constituent Assembly. I reminded him that coming as a leader from Assam, it was a surprising remark. It may come from some other province; that is a different matter.

As my honourable Friend Mr. Sidhva said, in the past several Election Tribunals were appointed by Governments of the provinces. They were not Congress Governments; they were appointed by other Governments. They were appointed to secure a particular object. As honourable Members know, one leading Member of this House, who was the head of the Congress organisation of his province, was victimised in the past regime and debarred from being a Member of the legislatures. It is very easy for a Premier to manipulate an Election Tribunal and thus remove a strong rival for five or seven years from the scene. It is therefore necessary that these matters should be placed beyond the read of temporary passion in the provinces.

Sir, one thing more. We must realise--and this is general answer that I propose to give to my honourable Friends Mr. Pataskar and Mr. Chaliha--we can only consider the problems before us from the conditions as they exist today. We cannot forget the fact that some ten or eleven of the Indian States which are not accustomed even to the little measure of democratic life which is enjoyed by the provinces are coming into the Union on equal terms. We cannot ignore the fact that there are corners in India where provincial autonomy requires to be placed on a better footing. In these conditions, it is but

natural, apart from world conditions, that the Centre should have a larger measure of control over the affairs which affect the national existence as a whole. Even in America in which it was not a question of the Centre decentralising itself, but thirteen, independent States coming together first in a sort of confederacy, and then in a federation, what do we find? After the depression of 1929, agriculture, education, industry, unemployment, insecurity,all passed gradually by various means under the control or influence of the Centre. There, the Constitution is water-tight and they had to go round and round in order to achieve this result. There cannot be smaller units than a nation today; even a nation is a small unit in the light of the international situation. This idea that provincial autonomy is the inherent right of the Provinces, is illusory. Charles Merriam one of the leading political thinkers in America in his book called "The Need for Constitutional Reform", with reference to the States of U.S.A., says, " Most State do not now correspond to economic and social unities and their position as units of organisation and representation may be and has been seriously challenged." In our country the situation is different. From the Councils Act of 1833 till the Government of India Act of 1935, there has been central control over the provinces and it has proved wholesome. The strength, the power and the unity of public life which India has developed during the last one hundred years is mainly due to centralised administration of the country. I would warn the Members how are still harping on the same subject to remember one supreme fact in Indian history that the glorious days of India were only the days, whether under the Mauryas or the Moghuls, when there was a strong central authority in the country, and the most tragic days were those when the central authority was dismembered by the provinces trying to resist it. We do not want to repeat that fatal mistake. We want that the provincial sphere should be kept intact, that they should enjoy a large measure of autonomy but only subject to national power. When national danger, cones, we must realise that the Centre alone can step in and safeguard against the chaos which would otherwise follow. I therefore submit that this argument about Provincial Autonomy has no a priori theoretical validity. We have to judge every subject or matter from the point of view of what the existing conditions are and how best we can adjust the controls, either Central or Provincial, to secure maximum national efficiency. From that point of view I submit the amendment moved by my Friend Dr. Ambedkar is a good one, a very good one and a very wholesome one for the whole country.

The Honourable Shri Satyanarayan Sinha (Bihar: General): Sir, the question be now put.

Mr. President: There is a closure motion. I would like to take the sense of the House.

The question is :

"That the question may now be put."

The motion was adopted.

The Honourable Dr. B. R. Ambedkar: (Bombay: General): Mr. President, Sir, this amendment of mine has been subjected to criticism from various points of view. But in my reply I do not propose to spread myself over all the points that have been raised in the course of the debate. I propose to confine myself to the points raised by my Friend Professor Shibban Lal Saksena and emphasized by my Friend Pandit Hirday Nath Kunzru. According to the amendment moved by my Friend Professor Saksena there are really two points which require our consideration. The one point is with regard to the appointment of the Commissioner to this Election Commission and the second relates to the removal of the Election Commissioner. So far as the question of removal is concerned, I personally do not think that any change is necessary in the amendment which I have proposed, a the House will see that so far as the removal of the members of the Election Commission is concerned the Chief Commissioner is placed on the same footings as the Judges of the Supreme Court. And I do not know that

there exist any measure of greater security in any other constitution which is better than the one we have provided for in the proviso at clause (4).

With regard to the other Commissioners the Provision is that, while the power is left the President to remove them, that power is subjected to a very important limitation, viz., than in the matter of removal of the other Commissioners, the President can only act on the recommendation of the Chief Election Commissioner. My contention therefore is, so far as the question of removal is concerned, the provision which are incorporated in my amendment are adequate and nothing more is necessary for that purpose.

Now with regard to the question of appointment I must confess that there is a great deal of force in what my Friend Professor Saksena said that there is no use making the tenure of the Election Commissioner a fixed and secure tenure if there is no provision in the Constitution to prevent either a fool or a knave or a person who is likely to be under the thumb of the Executive. My Provision--- I must admit--does not contain anything to provide against nomination of an unfit person to the post of the Chief Election Commissioner or the other Election Commissioner. I do want to confess that this is a very important question and it has going to give this House a great deal of headache. In the U.S.A. they have solved this question by the provision contained in article 2 Section (2) of their Constitution whereby certain appointments which are specified in Section (2) of article 2 cannot be made by the President without the concurrence of the Senate; so that so far as the power of appointment is concerned, although it is vested in the President it is subject to a check by the Senate so that the Senate may, at the time when any particular name is proposed, make enquiries and satisfy itself that the person proposed is a proper person. But it must also be realised that that is a very dilatory process,a very difficult process. Parliament may not be meeting at the time when the appointment is made and the appointment must be made at once without waiting. Secondly, the American practice is likely and in fact does introduce political considerations in the making of appointments. Consequently, while I think that the provisions contained in the American Constitution is a very salutary check upon the extravagance of the President in making his appointments, it is likely to create administrative difficulties and I am therefore hesitating whether I should at a later stage recommend the adoption of the American provisions in our Constitution. The Drafting Committee had paid considerable attention to this question because as I said it is going, to be one of our greatest headaches and as a via media it was thought that if this Assembly would give or enact what is called an Instrument of Instructions to the President and provide therein some machinery which it would be obligatory on the President to consult before making any appointment, I think the difficulties which are felt as resulting from the American Constitution may be obviated and the advantage which is contained therein may be secured. At this stage it is impossible for me to see or anticipate what attitude this House will take when the particular draft Instructions come before the House. If the House rejects the proposal of the Drafting Committee that there should be an Instrument of Instructions to the President which might include, among other things, a provision with regard to the making of appointments this problem would then be solved by that method. But, as I said, it is quite difficult for me to anticipate what may happen. Therefore in order to meet the criticism of my honourable Friend Professor Saksena, supported by the criticism of my honourable Friend Pandit Kunzru, I am prepared to make certain amendments in amendment No. 99. I am sorry I did not have time to circulate these amendments, but when I read them the House will know what I am proposing.

My first amendment is:

"That the words 'to be appointed by

the President' at the end of clause (1) be deleted."

"In clause (2) in line 4, for the word 'appoint' substitute the word 'fix' after which insert the following:--

"The appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the Provisions of any law made in this behalf by Parliament, be made by the President.'"

"The rest of the clause from the words 'when any other Election Commissioner is so appointed' etc., should be numbered clause (2a)."

Shri M. Ananthasayanam Ayyangar (Madras: General): Sir, on a point of order, new matter is being introduced which ought not to be allowed at this stage. Otherwise there will have to be another debate.

The Honourable Dr. B. R. Ambedkar: I hope the Chair will allow other Members to offer their views.

Mr. President: In that case I think the best course would be to postpone consideration of this article.

The Honourable Dr. B. R. Ambedkar: There amendments are quite inoffensive; they merely say that anything done should be subject to laws made by Parliament.

Shri T. T. Krishnamachari (Madras: General): I suggest that these amendments may be cyclostyled and circulated, and they may be taken up later on.

The Honourable Shri K. Santhanam (Madras: General): I suggest that these may be considered by the Drafting Committee. Even if they are merely technical we must have an opportunity of considering them.

The Honourable Dr. B. R. Ambedkar: These Election amendments have been brought after consultations with the Drafting Committee.

Shri T. T. Krishnamachari: The amendments merely say that the President's powers are subject to parliament legislation. They do not detract from the contents of the article and we need not be too finicky about the procedure at this stage.

Pandit Hirday Nath Kunzru: Even if there is to be further discussion, I think we should know Dr. Ambedkar proposes to meet the difficulties that have been pointed out. He should therefore be allowed to put forward his suggestions.

Mr. President: That is why I allowed him to move these amendments. After they are moved we shall decide whether to discuss them now or at a later date.

Shri K. M. Munshi: The amendments only say that acts, done should be subject to the laws of Parliament. That is already covered by amendment 123.

Mr. President: Let the amendments be moved.

The Honourable Dr. B. R. Ambedkar: My next amendment is:

"That in the beginning of clause (4) the following words should be inserted:-

'subject to the provisions of any law made in this behalf by Parliament'."

The Honourable Shri K. Santhanam : Sir, this is a material amendment because the President's discretion may be fettered by parliamentary law.

Mr. President: I do not think any further discussion is necessary; let these be moved:

The Honourable Dr. B. R. Ambedkar: You cannot deal with a constitution on technical points. To many technicalities will destroy constitution-making.

Shri H. V. Kamath: Sir, you ruled some days ago that substantial amendments would be postponed.

Mr. President: If these are considered to be substantial amendments they will be held over. As there seems to be a large body of opinion in the House in favour of postponement, the discussion will be held over.

*

New Article 289-A

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

"That with reference to amendment No. 110 of List I (Fifth Week), for the proposed new article 289-A, the following article be substituted:-

289-A. No person to be ineligible for inclusion in, or to claim to be excluded from the electoral roll on grounds of religion, race, caste or sex. There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House of the Legislature of a State and no person shall be ineligible for inclusion in, or claim to be excluded from, any such roll on grounds only of religion race, caste, sex or any of them."

Sir, the object of this is merely to give effect to the decision of the House that there

shall hereafter be no separate electorates at all. As a matter of fact this clause in unnecessary because by later amendments we shall be deleting the provisions contained in the Drafting Constitution which make provision for representations of Muslims, Sikhs, Anglo-Indians and so on. Consequently this is unnecessary. But it is the feeling that since we have taken a very important decision which practically nullifies the past it is better that the Constitution should in express terms state it. That is the reason why I have brought forward this amendment.

Mr. President: Do I take it that only for the purpose of discussion you have brought it up and that you do not want it to be passed?

The Honourable Dr. B. R. Ambedkar: No, Sir, not like that. I have moved the amendment. I was only giving the reasons why I have brought it up.

I shall move the other amendment also for inserting new article 289-B. I move:

"That for amendment No. 3087 of the List of Amendments, the following be substituted;-

"That after article 289-A, the following new article be inserted:-

289-B. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage. The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that it to say, every citizen, who is not less than twenty-one years of age on such date as may be fixed in this behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.'"

Shri Brajeshwar Prasad (Bihar: General): Mr. President, Sir, I rise to oppose article 289-B. I am opposed to adult franchise on grounds both theoretical and practical. I am opposed to adult franchise because it is a gross violation of the tenets of democracy. Adult franchise presupposes that the electorate is enlightened. Where the electorate is not enlightened there cannot be parliamentary democracy.

Mr. President: Is that open to objection now? We have already passed article 149 in which it is expressly stated that the election shall be on the basis of adult suffrage. It was passed in the winter session.

Shri Brajeshwar Prasad: Sir, I will submit to your ruling. I was not present when that article was passed.

Mr. President: Then you cannot oppose it at this stage.

Shri T. T. Krishnamachari: This new article is actually redundant. It may be that the Drafting Committee will subsequently have to take it away.

Mr. President: That is what he has also said. When the time comes for rearranging the section it may not be necessary to have this section in this form. But it has been moved.

Shri T. T. Krishnamachari: The principle is one which has been accepted by the House.

Mr. President: That is what I say. The principle has already been accepted.

The question is:

"That with reference to amendment No. 110 of List I (Fifth Week), for the proposed new article 289-A, the following article be substituted:-

289-A. No person to be ineligible for inclusion in, so to claim to be excluded form, the electoral roll on grounds of religion, race, caste or sex. There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in, or claim to be excluded from, any such roll on grounds only on religion, race, caste, sex or any of them'."

The amendment was adopted.

Mr. President: The question is:

That article 298-A, as amendment, stand of the Constitution."

The motion was adopted.

Article 289-A, as amended. was added to the Constitution.

Mr. President: The question is:

"That for amendment no. 3087 of the List of Amendments, the following be substituted:-

"That after article

289-A, the following new article be inserted:-

289-B.Elections to the House of the People and to the Legislative Assemblies of states to be on the basis of adult suffrage. The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every citizen, who is not less than twenty-one years of age on such date as may be fixed in this behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election."

The amendment was adopted.

Mr. President: The question is:

"That article 289-B stand part of the Constitution.

The motion was adopted.

Article 289-B, was added to the Constitution.

(New article 289-C was not moved.)

*

Article 290

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

"That for article 290, the following article be substituted:-

290. Power of Parliament to make provisions with respect to elections to Legislatures. Subject to the provisions of this Constitution, Parliament may from time to time by law make provisions with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including matters necessary for securing the due constitution of such House or House and the delimitation of constituencies."

Sir, with your permission I would also like to move the other amendment which amends this. I move:

"That with reference to amendment No. 123 of List I (Fifth Week) in the new article 290, after the word 'including' the words 'the preparation of electoral rolls and all other' be inserted."

Pandit Thakur Das Bhargava (East Punjab: General): Sir, I gave notice of amendment No. 100 and amendment 127 and 129 with the idea that the entire responsibility and jurisdiction for making laws in regard to elections should be left to the Central Legislature and that the Central Legislature alone should have been given this power to enact laws in regard to matters pertaining to elections. Even now when amendment No. 99 was being discussed I felt that it would not be necessary to have these new amendments if my amendments Nos. 100, 127 and 129 were accepted, because, according to me, it is not fair to give the power to the executive to appoint such highly placed officers in whom all the rights in whom all the rights and powers in regard to elections are concentrated. Parliament should have the ultimate power. Similarly with regard to my amendment No. 127 which I did not move when I found that the wording of amendment No. 123 was "Subject to the provisions of this Constitution, Parliament may from time to time by law make provisions with respect to all matters relating to, or in connection with, elections............" When Parliament has been given this power, I do not know what power is left to be exercised under this article by the provinces. If we want uniformity in the conduct of elections we should see that Parliament alone has this power.

Under article 289 many arguments were advanced for giving these powers to the Central Government instead of to the provinces. If those arguments are valid, it does not behave us to say that any power which is left may be exercised by the provincial legislatures. Amendment No. 123 is all embracing and therefore there is no need for amendment No. 128.

Shri M. Ananthasayanam Ayyangar: Sir, I support the retention of amendment No. 128 moved to article 291. I do not agree with my Friend Mr. Bhargava. We have taken away the elections from the provincial legislatures and the Governors. Practically we have centralised the appointment of the Election Commission. This is a deviation with respect to which there have been complaints that the provincial governments have been made ciphers, To avoid corrupt practices we

wanted the entire power to be vested in Parliament. Amendment 128 only says that for matters for which the Parliament does not make a provision the provision legislatures shall have power. My Friend Mr. Bhargava does not want even this. According to him, either Parliament makes the law or there should be no authority to make law. There may be certain matters where for the sake of uniformity Parliament may make law and the State legislature may make the rest of the laws. That is what is provided in amendment No. 128. I do not know why even to this limited extent power should not be give to the State legislatures. Why are we so suspicious of the State legislatures that we want to take away everything form them? I support amendment no. 128.

Mr. President: I find that there is notice of an amendment by Prof. Shibban Lal Saksena to article 290. He was not here at the time the amendments were moved. Anyhow it is not an amendment of substantial character.

If Dr. Ambedkar does not want to say anything in reply I shall put the amendment to vote.

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

Mr. President: The question is:

"That for article 290, the following article be substituted:-

290. Power of Parliament to make provisions with respect to elections to Legislatures. Subject to the provisions of this Constitution, Parliament may from time to time by law make provisions with respect to all matters relating to, or in connection with, elections to either House of Parliament, or to the House or either House of the Legislature of a State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses and the delimitation of constituencies."

The amendment was adopted.

Mr. President: The question is:

"That article 290, as amended, stand part of the Constitution."

The amendment was adopted.

Article 290, as amended, was added to the Constitution.

*

Article 291

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

"That for article 291, the following article be substituted:-

291. Power of Legislature of a state to make provisions with respect to election to such Legislature. Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provisions with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including matters necessary for securing the due constitution of such House or House."

Sir, with your permission I move also amendment No. 211 of List I VI. Fifth week.

The amendment runs thus:

"That with reference to amendment No. 128 of List I (Fifth Week), in the new article 291, after the word 'including' the words 'the preparation of electoral rolls and all other' be inserted."

Mr. President: There are also other amendments. Amendment No. 129 is a negative one and so cannot be moved. Amendments Nos. 130 and 131 are not moved.

Does any Member wish to say anything on the amendment or the article?

Shri H. V. Kamath: Mr. President, this article 291, following as it does article 290 already adopted, is a corollary to it. Article 291 follows very closely article 290 except with regard to the last matter contained in article 290 relating 5to the delimitation of constituencies. The question here arises as to the powers which will be vested in Parliament and in the State Legislature. In article 290 it is stated that Parliament may from time to time by law make provisions with respect to all matters-the phrase used is "with respect to all matters"-relating to or in connection with elections, etc. Here again the same words are used, that is to say, article 291 lays down that the State Legislature may from time to time by law make provisions with respect to all matters relating to or in connection with elections, etc. That is to say, all matters relating to elections to either House of the State Legislature

come within the purview of Parliament as well as the State Legislature. Are we going to define the limits of or demarcate the powers to be conferred on the Parliament and on the State Legislature? Are we going to have another Schedule? That is my question. Are we going to have a new Schedule to this Draft Constitution wherein we will define the powers of Parliament and the powers of the State Legislature to legislate with regard to matters relating to elections in the States? If we do not define, definitely allocate the functions, I am afraid it might lead to some sort of friction or tension between the Parliament and the State Legislature at some time or other. No doubt the saving clause is there in 291 "in so far as provision in that behalf is not made by Parliament". Sir, if the Parliament exhaust all matters relating to elections in the States-the power to do is there under 290; the Central Parliament to elections in the States-the power to do is there under 290; the Central Parliament has full power to make laws with respect to all matters relating to elections in the States including delimitation of constituencies which is taken away from the State-I do not quarrel with that-what will be left for the States? In regard to various other matters relating to elections, I do not think it wise to deprive the State Legislature of any jurisdiction in this regard. To my mind, it will be better and wiser to leave them some powers so as to promote greater harmony. We are here, I am afraid, aiming at over-centralisation of functions. Over-centralisation to my mind is not conducive to harmony between the Union and the Units. We certainly want strength, but strength along with harmony. Strength without harmony, without good-will between the Union and the Units, is no strength at all. It is mere rigidity. Therefore, Sir, I would personally prefer to be dealt with by the State Legislature itself and Parliament should not be given entire authority to make, laws with respect to all matters relating to elections to either House of the State Legislature. Some definite powers to my mind should be given to the Legislature of the State also.

The Honourable Dr. B. R. Ambedkar: I think Mr. Kamath has not properly read or has not properly understood the two articles 290 and 291. While 290 gives power to Parliament, 291 says that if there is any matter which is not provided for by Parliament, then it shall be open to the State Legislature to provide for it. This is a sort of residue which Parliament may leave to the State Legislature. This is a residuary article. Beyond that, there is nothing.

Shri A. Thanu Pillai (Travancore State): When steps have to be taken according to the time schedule, is the local Legislature to wait and see what the Central Parliament does?

The Honourable Dr. B. R. Ambedkar: Primarily it shall be duty of the Parliament to make provision under 290. The obligation is squarely placed upon Parliament. It shall be the duty and the obligation of the Parliament to make provision by law for matters that are included in 290. In making provisions for matters which are specified in 290, if any matter has not been specifically and expressly provided for by Parliament, then 291 says that the State Legislature shall no be excluded from making any provision which Parliament has failed to make with regard to any matter included in 290.

Shri A. Thanu Pillai: May I know from Dr. Ambedkar whether it would not be better for either the Central Legislature or the Local Legislature to be charged with full responsibility in the matter so that elections may go on according to the time schedule?

The Honourable Dr. B. R. Ambedkar: I do not agree. There are matters which are essential and which Parliament might think should be provided for by itself. There are other matters which Parliament may think are of such local character and liable to variations from province to province that it would be better for Parliament to leave them to the Local Legislature. That is the reason for the distinction between 290 and 291.

Mr.

President: The question is:

"That with reference to amendment No. 128 of List I, (Fifth Week), in the new article 291, after the word 'including the words 'the preparation of electoral rolls and all other' be inserted."

The amendment was adopted.

Mr. President: The question is:

"That for article 291, the following article be substituted:-

291. Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provisions with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses."

The motion was adopted.

Mr. President: The question is:

"That article 291, as amended, stand part of the Constitution."

The motion was adopted.

Article 291, as amended, was added to the Constitution."

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

"That after article 291, the following new article be inserted:-

291-A. Bar to jurisdiction of courts in electoral matters. Notwithstanding anything contained in the Constitution-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 290 or article 291 of this Constitution shall not be called in question in any court;

(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature;

(c) provision may be made by or under any law made by the appropriate Legislature for the finality of proceeding relating to or in connection with any such election at any stage of such election."

Sir, I also move:

"That with reference to amendment No. 132 of List I (Fifth Week) in the new article 291-A, clause (c) be omitted."

The amendment was adopted.

Mr. President: The question is:

"That after article 291, the following new article be inserted:-

291-A. Bar to jurisdiction of courts in electoral matters. Notwithstanding anything contained in the Constitution-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of state to such constituencies, made or purporting to be made under article 290 or article 291 of this Constitution shall not be called in question in any court;

(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election for by or under any law made by the appropriate Legislature;"

The amendment was adopted.

Mr. President: The question is:

"That article 291-A, as amended, stand part of the Constitution."

The motion was adopted.

Article 291-A, as amended, was added to the Constitution.

Mr. President: Then we go to the other article 296.

Shri T. T. Krishnamachari : As articles 292 to 295 form part of a whole scheme and article 296 also goes along with them, we might take up article 297 and leave 296 over for the present.

Mr. President: Is that the idea that we should postpone discussion of article 296 also? Then we shall take up article 297.

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Article 297

(Amendment No. 3169 was not moved.)

Shri H. V. Kamath : Mr. President, Sir, I move:

"That in clause (2) of article 297, for the words 'if such members are found qualified for appointment on merit as compared with the members of other communities', the words 'provided that such appointment is made on ground only of merit as compared with the members of other communities' be substituted."

I think, Sir, that this is an amendment more or less a drafting nature and I leave it to the cumulative wisdom of the Drafting Committee to consider it at the appropriate

stage.

The Honourable Dr. B. R. Ambedkar: I do not see that it is of a drafting nature. However, we shall consider it later on.

Mr. President: The question is:

"That article 297 stand part of the Constitution."

The motion was adopted.

Article 297 was added to the Constitution.

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Article 298

(Amendment No. 3172 was not moved.)

Mr. President: There is no amendment to this article No. 298 also.

Mr. Frank Anthony (C.P. & Berar: General) :Sir, I do not intend to make a speech. I had given notice of an amendment to article 298 seeking to make it applicable to the Mysore State, but after I had discussed my amendment with Dr. Ambedkar and Mr. Munshi, it was pointed out to me that even if they were prepared to accept my amendment, they were unable to do it at this stage because it has not yet been decided as to whether this Constituent Assembly is going to legislate for the Mysore State and because of that, Sir, I do not propose to ask for admission of this amendment at this stage. If and when the Assembly does legislate with regard to Mysore, then I feel that I may be given permission at that stage to reiterate this amendment. In this connection, I only wish to say a few words and to thank all those Members, who in spite of the fact that they have given notice of several amendments, have once more shown their generosity by withdrawing those amendments en masse.

Pandit Thakur Das Bhargava : Sir, when I gave notice of certain amendments to articles 297 and 298, I did not do so in any spirit of niggardliness or disregard for honouring the words of our leaders who had given some sort of assurance to the Anglo-Indian community, but I must state in fairness to myself that, as a matter of fact, it was a different standpoint from which I gave these notices of amendments. When these concessions were given to the Anglo-Indian community, it was in 1947 and ten years' time was regarded as sufficient. Ordinarily these ten years would have been finished by 1957. Now the Constitution will commence in 1950. So I thought that the concessions should have been given only for ten years. I do not grudge any sort of concessions to this community or that community but we must realise that the basis of concessions given to the suppressed classes and depressed classes is of a different nature. We want that these concessions may be implemented. Apart from reservation of seats which is only for ten years, other concessions like educational facilities etc., to be provided under article 301 may have to be given for more than ten years. But here in this case this community is not a suppressed community. This community has to a certain extent been given this concession because its standard of life was different from the rest of the Indian community and it was higher. So I gave amendments in the view that when Mr. Anthony said on the last occasion when he spoke on the question of minorities that the Committee had shown unique generosity I thought that his community would respond by showing unique fairness in saying that they would only want these concessions for ten years because I know that for every boy of the Anglo-Indian community to whom this concession is granted, we have to grant these very concessions to the upper classes also because in these schools to which these grants are made, 40 per cent or so are Anglo-Indian boys and the remaining 60 per cent. belong to the upper classes. So if we grant these concessions, we should grant them not only to the Anglo-Indians but also to the upper classes. After all our means are limited, and we cannot make one rupee into seventeen annas and if you grant these concessions for very long periods to people whose standard of life is better and who are more affluent, you would have to deny even ordinary rights to the rest of the people. So that, for educating these persons, you starve the boys of other communities. I think my honourable Friend Mr. Anthony will not misunderstand me for giving notice of this amendment. I gave notice of these amendments in the hope that in his patriotism, in

his recognition of the principle of fair treatment to all, he will agree that only ten years will be available of and not more.