CONSTITUENT ASSEMBLY OF INDIA - Volume VIII


Wednesday, the 18th May 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.

GOVERNMENT OF INDIA (AMENDMENT) BILL

Mr. President: The first item on the agenda is a Bill of which notice had been given by the Honourable Sardar Vallabhbhai Patel. On account of his ill-health, Sardar Vallabhbhai Patel had to leave this place and he has asked me to allow the Honourable Mr. Gadgil to take charge of that Bill. Mr. Gadgil.

The Honourable Shri N.V. Gadgil (Bombay: General): Sir, I beg to move for leave to introduce a Bill further to amend the Government of India Act, 1935.

Mr. President: The question is:

"That leave be granted to introduce the Bill further to amend the Government of India Act, 1935."

The motion was adopted.

The Honourable Shri N.V. Gadgil: Sir, I introduce the Bill.

Mr. President: The bill is introduced.

The Honourable Shri H.V. Gadgil: Sir, I beg to move:

"That the Bill further to amend the Government of India Act, 1935, be taken into consideration by the Assembly at once."

The object of the Bill is to amend the Government of India Act in regard to two provisions. The first provisions is Section 97 under which only a law of the Constituent Assembly can change the constitution, powers and functions of the Coorg Legislative Council and the arrangements with respect to revenues collected in Coorg and expenses in respect of Coorg. At the time European representation in the Provincial Legislatures was abolished, the point was overlooked that in Coorg that representation would still continue. At present there are two Europeans in the Coorg Legislative Council and it is considered in appropriate that this anomaly should be allowed to continue. At the same time, it is unnecessary to promote a Bill for this specified purpose in the Constituent Assembly. Even otherwise it would be convenient to have powers vested in the Governor-General to make changes in the present constitution of Coorg. Provision in the amending Bill would enable Government to do so by and order.

The second provision relates to certain changes in the Federal and Concurrent Legislative Lists. According to item 1 of List I, the Centre has power of preventive detention for reasons of state connected with defence, external affairs or relations with acceding States; but executive power to deal with actual detenus rests with the Provinces because `persons subjected to preventive detention under Dominion authority' is item 34 of the Concurrent List. On the other hand, item 1 of the Provincial Legislative List gives power to Provinces both for preventive detention for reason subjected to such detention. There is no reason why this differentiation between the powers of the Central Government and of the Provincial governments to deal with their respective detenus should be maintained. The Bill, therefore, provides for persons subjected to detention under Central authority being subjected also to the executive control of the Centre. This has been done by suitably amending paragraph 1 of the Federal Legislative List.

We have also been experiencing considerable difficulty in inter-Provincial transfer of detenus. The detenus being subject to absolute Provincial control have therefore to be continued within that particular province. Hitherto, wherever in extreme cases of necessity an occasion has arisen for such transfers, the provisions of the Bengal Regulation III of 1818 have been utilise. This is clearly an unsatisfactory procedure. The need for transfer arises from congestion in the particular province or from the desire on the part of the detenu himself to seek transfer to his own Province or, for administrative convenience for the Provincial Government, to transfer him elsewhere. In two recent cases, we had to use Regulation III of 1818. There was demand from some persons of Punjabi extraction in West Bengal to be transferred to East

Punjab. This request cannot be met because there is no power at present vesting in Provinces to transfer their detenus. The amendment to the Concurrent Legislative List, which has been proposed, would, therefore, solve this difficulty in that it would enable the Centre to legislate for such transfers, leaving it to the Provinces to take necessary executive action.

Sir, I move.

Mr. President: There is notice of an amendment to this motion in the name of Mr. Ananthasayanam Ayyangar.

Shri M. Ananthasayanam Ayyangar (Madras: General): Sir, I am not moving any of the amendments but I would like to say a few words.

Mr. President: Pandit Thakur Das Bhargava also has given notice of the same amendment.

Pandit Thakur Das Bhargava (East Punjab: General): I am not moving, Sir.

Shri M. Ananthasayanam Ayyangar: Sir, this Bill consists of two portions, one of the provisions relating to Coorg. Under Section 97 of the Government of India Act the existing regulations relating to the Legislative Council, collection of revenues and making of expenditure etc. in relation to Coorg will continue to be in force until laws and regulations are modified by similar rules made by the Constituent Assembly which has been vested with powers under Section 8 of the Independence Act. The amendment that is contemplated is that for `the Constituent Assembly' the words `Order of the Governor-General' have to be substituted. My own feeling is that however high a dignitary the Governor-General might be, he represents the Executive and it is not right to vest these powers in the Executive and take them away from the constituent Assembly. it is said that the Constituent Assembly always retains its power. It may be so but it will have to be done in a circuitous manner when once the powers relating to the Constituent Assembly under Section 97 are taken away from the Section by virtue of this amendment. That is my first objection. But we are passing the Constitution in a couple of months and for the interval of three months we need not object to vesting the Governor-General with this power. If it is a matter of expediency and if it is considered necessary to immediately rectify certain defects like removing the anomaly of having Europeans in the Coorg Legislative Council, an Order-in-council by the Governor-General may be more expeditious than the elaborate procedure of amendment of the Government of India Act. From that point of view no doubt this amendment may be accepted; but it is opposed to the general principle that the executive ought not to have control over or interfere with the Legislature and it must only be the supreme sovereign legislature that must be clothed with the power to interfere with the composition of the Legislature.

The other portion of the amendment relates to giving power to transfer items from the Concurrent List to the Federal List. Today under the Federal List, item No. 1, to detention for purposes of defence, external affairs, or matters relating to acceding States, is exclusively in Federal List. In the case of persons detained for security purposes, so far as the Provinces are concerned, the power to detain the person is vested exclusively in the Province. The purpose of this Bill is to bring the provisions relating to detention of persons for defence and external affairs purposes also into line with persons detained by Provincial Government for purposes of security. But I have my own doubts as to the propriety or the advisability of this amendment. I say this for the following reasons. There are no special jails maintained or run by the Centre. Whoever is detained under order of Provincial Government, in a provincial jail. In the case of an emergency, such as an outbreak of cholera or plague in a particular jail, it would not be easy for the Provincial Government to correspond with the Centre, ask for instructions and await orders as to whether a particular prisoner ought to be transferred from one jail in the same unit or province to another jail in that province. This difficulty may

arise. So it was considered proper in the Government of India Act, 1935, as also in the Government of India Act, as adapted and continuing in force, and in the Draft Constitution placed before the House which we are considering now, to have provisions for making persons who have been detained by the order of the Dominion Government not an exclusively Federal concern, but a concurrent subject. I do not see the wisdom of transferring the right or clothe the Federal Government exclusively with this jurisdiction. However, I am not pressing the point. We may consider the matter again when considering the Constitution and when we come to this entry. This Bill is only a temporary measure and I accept it as it has been laid before the House, though I doubt whether this amendment which is sought to be effected by this Bill is at all proper or necessary.

Pandit Thakur Das Bhargava: Mr. President, Sir, though this Bill appears to be harmless and innocuous, yet in my humble opinion, it is not a Bill which should be passed in this House. The first point that emerges for consideration is that as given in the statement of Objects and Reasons, the sole object of clause 2 is that the European representation in Coorg should be taken away. But is appears from clause 3, that this purpose is not achieved by a direct method. I would also rather like that this Bill had been directed to this purpose only. But I feel that this Bill contains more than what is needed for the hour, and the canon of legislation is that you must always bring a Bill to meet the particular situation and it should not be too wide. This Bill, Sir, is too wide.

The second objection that I have to this Bill is that it seeks to substitute the powers of the Governor-General for the powers of the Constituent Assembly. If the Legislature, in its wisdom, has given these powers to the Constituent Assembly, it does not stand to reason that the executive should be armed exclusively with these powers.

About clause 4 also I have my doubts. At present the words in List 1 are--

"preventive detention for reason of State connected with defence, external affairs, or relations with the acceding States."

In List II, the clause reads-

"preventive detention for reason connected with maintenance of public order; persons subjected to such detention."

In List III- Concurrent List, the words are--

"Removal of prisoners and accused persons from one unit to another unit."

But in clause 34, List III we find the words-

"Persons subjected to preventive detention under the authority of the Union."

If this Bill had been confined to the malady which is sought to be cured, as given in the Statement of Object and Reasons, no person could take any sort of objection to it. In that statement, we find that because there are difficulties in the transfer of detenus, therefore this Bill is sought to be brought before this House, whereas as a matter of fact the real purpose of this Bill is not expressed in the Statement of Objects and Reasons. The real purpose seems to be that the powers of the Provincial Governments may be taken away in regard to persons who are undergoing preventive detention for reasons of State, connected with defence, external affairs or relations with acceding States. When a Bill of this nature is brought in, it would have been better if the real purpose was expressed expressly. It is different from the one given in the Statement of objects and Reasons. There seems to be some distrust of Provincial Government. Their powers are sought to be taken away. I for one would rather like that the present powers which the Dominion Government enjoys and the powers of the Provincial Government were both enlarged. In my view of things, the Provincial Government also should have powers in regard to person who are undergoing preventive detention for reasons of State defence, external affairs, etc. and the Dominion Government should be given powers in regard to persons who are undergoing preventive detention in respect of the maintenance of public order, because

the Dominion government has got no jails of its own. All its detenus live in the jails belonging to provincial governments, and if there is distrust of provincial governments when prisoners are sent by the Dominion Government to their jails, they can certainly do whatever they like.

My objection to this is that there should not be any discrimination between detenus of the Central Government and the detenus of the Provincial Governments. I remember in 1942, when certain detenus were sent from Delhi to Lahore, the rules for their interviews and for other matters were quite different. The Delhi detenus were treated in a different manner from the detenus of the Punjab Government. I do not like this discrimination, and I want that the same rules should govern all the detenus, whatever the reasons for their detention may be. After all, the person detained is quite innocent in the eye of law, whatever the reason be, unless brought in for trial in a court of law. Therefore, the same treatment should be accorded to the detenus, whether they belong to the Provincial Governments or to the Dominion Government. If we do not have this provision there is likelihood of discrimination between the detenus of the Dominion Government and the detenus of the Provincial Government.

Moreover I do not understand the significance of paragraph (b)

It runs:

"Removal from one unit to another unit of prisoners, accused persons and persons subjected to preventive detention for reason connected with the maintenance of public order."

According to List No. 1, paragraph 1, there is no power in the Dominion Government with regard to people detained for reasons connected with the maintenance of law and order. So I fail to see how this power can be given to the Dominion government in regard to their removal when originally it has no right to keep them in custody. It is thus logically necessary that you must arm the Dominion Government with powers relating to the persons of such detenus. Moreover, in the centrally administered areas or in a given set of circumstances it may happen that the Central Government may require these powers. I know that it is only a temporary measure for two months and so I think we should not take any time of the House by moving amendments. At the same time I want that in making the constitution we should guard against these discrepancies coming in. If the principle of the Bill is going to be repeated in the new constitution I for one will be bound to oppose it. I beg the House to keep these principles in view in deciding the matter.

The Honourable Shri N.V. Gadgil: Sir, this is a very simple thing and really does not justify so much discussion. Two things are contemplated one is to remove certain anomalies in the administration of the Act, and for that procedure laid down in section 97 is rather complicated and a simpler procedure is therefore suggested. The other is the difficulty of removing persons from one province to another who are prisoners of the Central Government. This difficulty is sought to be removed by making suitable provisions. No big principle is involved, and if any principle is at all involved it is only for a very short period.

Mr. President: The question is:

"That the Bill further to amend the Government of India Act, 1935 be taken into consideration by the Assembly at once."

The motion was adopted.

Clause 1 to 4 were added to the Bill.

The Title and Preamble were aded to the Bill.

The Honourable Shri N.V. Gadgil: Sir, I move :

"That the Bill further to amend the Government of India, 1935 as settled by the Assembly be passed."

Mr. President: The question is:

"That the Bill further to amend the Government of India, 1935 as settled by the Assembly be passed."

The motion was adopted.

ADDITIONS TO CONSTITUENT ASSEMBLY RULES 38-A (3) AND 61-A

Shrimati G.Durgabai (Madras: General): Sir, I beg to move:

"(i) That the following amendment to the Constituent Assembly Rules be taken into consideration :-

After sub-rule (2) of rule 38-A, the

following sub-rule be added:

`(3) In this rule, the reference to the Government of India Act, 1935, includes references to any enactment amending or supplementing that Act, and, in particular, reference to the India (Central Government and Legislature) Act, 1946.'

(ii) that the provision mentioned in the Constituent Assembly Notification No. CA/76/com/RR/48, dated the 2nd August, 1948 he made part of the Constituent Assembly

Rules, as shown in the amendment below, with effect from 8-51948 :-

In chapter X of the said rules, after rule 61 of the following rule be added:-

'Execution of orders as to costs- 61-A. Any order made by the President under rule 61 as to costs may, except where such costs are wholly payable our of the sum deposited as security under rule 54, be produced before the principal Civil Court of original jurisdiction within the local limits of whose jurisdiction any person directed by such order to pay any sum of money has a place of residence or business, or, where such place is within the local limits of the ordinary original civil jurisdiction of a High Court, before the Court of Small Causes having jurisdiction there, and such Court shall execute such order or cause it to be executed in the same manner and by the same procedure as if it were a decree for the payment of money made by itself in a suit."

These motions, Sir, are non-controversial and no elaborate explanation is needed. But I feel it is my duty to offer a few words of explanation as to the need for these amendment. With regard to the first motion the object of the proposed amendment is that sub-rule (1) of rule 38-A of the Constituent Assembly rules, as it stands at present enables the Constituent Assembly to make amendments to the Indian Independence Act or any order, rule, regulation or other instruments made thereunder, or to the government of India Act, 1935, as adapted. There are, however, certain other parliamentary enactments supplementing or amending the Government of India Act e.g.. the India (Central Government and legislature) Act, 1946; and it is doubtful if the reference to those enactments. Our rules thus may be held as making no provision at all with regard to Bills which seek to make amendments to such enactments. The new sub-rule (3) to rule 38-A now proposed seeks to fill in this lacuna.

This is only a formal provision and therefore requires no further detailed explanation.

With regard to the second motion the necessity for the amendment arose in this way that the rules of the Constituent Assembly did not make any provision for a procedure for recovery of costs in cases of election where such costs are not payable out of the security deposit. Hitherto Section 12 of the Indian Election and Inquiries Act of 1920 which provided for the execution of order as to costs made by the Central or Provincial Government on the Report of Commissioners appointed to hold an inquiry in respect of an election to a chamber of any legislature has been applied to cases of this kind. But there was one difficulty that the said Act was extended only to provinces and not to any Indian State. So the procedure in Section 12 did not apply to cases where the respondent was a subject of an Indian State. Therefore the Honourable the President considered it necessary to make a provision of this kind and now this is sought to be incorporated in the Constituent Assembly Rules as already indicated in the notification issued.

The effects of this amendment are two: that the Constituent Assembly being a sovereign body, such a provision will apply throughout the territories of India. Also they will have the effect of a law passed by the legislature. It would also be binding on all courts situate whether in a province or in an Indian State in the same way. Sir, this is the only object and these are the effects of the amendments proposed by me in this motion. Sir, I move and I commend my motion for the acceptance of this House.

Mr. Naziruddin Ahmed (West Bengal: Muslim): Sir, I feel some difficulty about the insertion

of the proposed new rule 61-A. I do not object to the principle of the rule: I rather concede that some such provision is necessary. My difficulty is as to the place where this is to be inserted and as to the exact form it should take. This rule is practically on amendment to the Code of Civil Procedure. The President may order costs; and this rule proposes to enact a machinery by which the costs may be realised. It says that the election costs must be realised from the amount already deposited and inso far as the cost is not realised from the amount deposited, that amount may be realised by presenting the order before an appropriate Court as if it is a decree for money. I submit that this really is an attempt to amend the Code of Civil Procedure. It provides for execution of an order of the President which is not already for in that Code and this rule will practically have the effect of amending that Code. I have, however, my doubts as to the efficacy of a rule of this nature.

This question that I would ask the House to consider is whether an amendment of the Rules of Procedure of this House will have the effect of really vesting the Court with the jurisdiction of executing orders for costs passed by the President. The Code of Civil Procedure can only be amended by an amending Act. We have already decided in this House that this Constituent Assembly will sit in two different capacities one as a constitution making body which it is now, and the other as a legislative body in another chamber. We have decided also that amendments to the Government of India Act and the Indian independence Act can be made in the House, and we have just now passed a Bill to amend the Government of India Act, 1935, in this House. With regard to the proposed amendment of the Code of Civil Procedure the proper procedure would be a real downright amendment of the Code by means of a Bill, and if that course is considered advisable, the proper venue would be this House in its legislative capacity where a proper Bill is to be introduced. If it is considered so urgent that this provision should find a place on the Statue Book at once, the Governor-General may be approached for an Ordinance and in due course this Ordinance may be replaced by a permanent statutory enactment effecting a proper amendment of the Code of Civil Procedure. The difficulty as I submitted, would be whether an amendment of our Procedural Rule would really vest the Court with the necessary jurisdiction. I await a clarification of the situation by competent authorities.

There are again certain drafting errors of a very serious nature which would make the rule, even if it is binding, ineffective in certain cases. It is provided that where there is no High Court where a person against whom cost is granted resides, the highest Court of original jurisdiction for the area would execute the order for costs, that is the Court of the District Judge will execute the order for costs. With regard to those who live within the jurisdiction of High Courts, the Small Cause Courts having jurisdiction there will execute the order. There is a little confusion of thought here. There are two kinds of High Courts-- High Courts situated in the Presidency Towns and those situated in other places. This fundamental distinction has been lost sight of in drafting this new sub-rule. With regard to the Presidency Towns--Bombay, Madras and Calcutta--there are Presidency Small Cause Courts and there will be no difficulty with regard to persons residing within the original jurisdiction of those High Courts and the orders for costs would be executed by the Small Cause Courts situated there. But there are other High Courts which are not situated in presidency towns like Allahabad in the U.P., Nagpur in the Central Provinces, Patna in Bihar and Simla in East Punjab and Shillong in Assam where the Presidency Small Cause Act does not apply and there are no Presidency Small Cause Courts. There are the usual Civil courts of District Judges but no Small Cause Courts as there are within

the jurisdiction of the original side of the High Courts as there are within the jurisdiction of the original side of the High Court situated in the Presidency towns. In section 5 of the Presidency Small Cause Courts Act (Act XV of 1882) it is provided that there shall be, in each of the towns of Calcutta, Madras and Bombay, a Court which would be Small Cause Court. With regard to the other towns, where there are High Courts, there will be no Small cause Courts. As it is, with regard to the High Courts which are not situated in Presidency towns, there will be no Small Cause Courts which will execute these orders.

In these High Courts which are not situated in Presidency towns, there are no such Small Cause Courts. With regard to Presidency town, the Small Cause Courts have also some limit to their pecuniary jurisdiction. It may be that the order for costs may be a sum exceeding the pecuniary jurisdiction of these Courts in the Presidency towns. These are the difficulties which strike me and it is for these reasons that I have submitted a motion for deletion which has been properly rejected on the ground that it contravenes the rules. But I desire to point out these difficulties and ask for clarification, and if necessary abandonment of the rule for the time being and approaching. His Excellency the Governor-General to promulgate on Ordinance, and thereafter to pass an Act in the appropriate House. There are these procedural difficulties which have not apparently been thought of in drafting these rules. These are matters which require consideration at the hands of competent lawyers in the House and a suitable solution found. That is all I wish to submit.

Shrimati G. Durgabai: Sir, the difficulty pointed out by Mr. Naziruddin Ahmed is not any serious difficulty. I may explain that our legislature cannot make any provision which would be applicable to all Indian States. Since the object of my amendment is to see that the order is binding on all courts and also applicable to Indian States, this object could not be achieved if this amendment is not made. The legislature is not really competent to make any provision which could be applied to all Indian States. This is the only sovereign body that could make an amendment to that rule. Also, there is already a provision in the rules of the Constituent Assembly of India, rule 52, which says that no election could be called in question by any court. This has barred the jurisdiction of the courts. Therefore it is perfectly within the competence of this House to make this amendment. I do not think that the difficulty anticipated by Mr. Naziruddin Ahmed would in any way create any obstacle. I hope he will be satisfied with the explanation I have now given.

Mr. President: I shall now put two suggested amendments separately to vote.

The question is:

"(i) After sub-rule (2) of rule 38-A, the following sub-rule be added :-

`(3) In this rule, the reference to the Government of India Act, 1935, includes reference to any enactment amending or supplementing that Act, and, in particular, reference to the India (Central Government and Legislature) Act, 1946.'"

The motion was adopted.

Mr. President: The question is:

"(ii) The provision mentioned in the Constituent Assembly Notification No. CA/76/Com/RR/48, dated the 2nd August, 1948 be made part of the Constituent Assembly Rules, as shown in the amendment below, with effect from 8-5-1948 :-

In Chapter X of the said rules, after rule 61 of the following be added :-

`Execution of orders as to costs-61-A. Any order made by the President under rule 61 as to costs may, except where such costs are wholly payable out of the sum deposited as security under rule 54, be produced before the principal Civil Court of original jurisdiction within the local limits of whose jurisdiction any person directed by such order to pay any sum of money has a place of residence or business, or, where such place is within the local limits of the ordinary original civil jurisdiction of a High Court, before the Court of Small

Causes having jurisdiction there, and such Court shall execute such order or cause it to be executed in the same manner and by the same procedure as if it were a decree for the payment of money made by itself in a suit.'"

The motion was adopted.

The motion was adopted.

DRAFT CONSTITUTION--(contd.)

Mr. President: We shall now take up the consideration of the Draft Constitution of India.

Seth Govind Das (C.P.& Berar: General): *[Mr. President, before you proceed with the consideration of the articles of the Constitution, I wish to place before you a matter for you consideration. I do so because during the fast session of the Constituent Assembly, you had made the following announcement in this House on the 2nd May, 1947 :-

"I was wondering whether we could have a translation made of this Constitution as it is drafted as soon as it is possible, and ultimately adopt that as our original constitution. In case of any ambiguity or any difficulty arising as to interpretation, the English copy will also be available for reference, but I would personally like that the originals should be in our main language and not in English language, so that our future judges may have to depend upon our own language and not on foreign language."

Since then, I have recently toured all the non-Hindi speaking provinces I visited Bombay, Gujarat, Maharashtra, Assam, Bengal, Orissa, Kerala, Andhra, Tamil Nadu, Karnatak, Mysore, Travancore, and Hyderabad. Every where I found that the people were of the opinion that our original constitution should be in our national language. We already known the views of the Hindi speaking people. I am also aware that the Committee appointed by you in this connection recently has translated into Hindi all the articles adopted by us here.

I request you that in order to avoid any difficulty in future, it would be proper that along with draft articles in English, the articles in out national language should also be taken up so that the Constitution should also be ready in the national language, and that it may be-as stated by you-the original and main document. We should decide this question just now, otherwise there will be a lot of difficulty later on. I therefore request that some decision should be taken on this question.

Mr. President: It is true that at one stage of the proceedings, I made that statement to which reference has been made. In pursuance of that I appointed Committees to prepare translations of the Draft which was made originally in the English language. Three translations were prepared by certain gentlemen, one in Hindi, another in what is called Hindustani and the third in what is called Urdu. All these three translations were printed and I believe copies have been circulated to the Members. I understood, however, that none of these drafts was acceptable to a large body of Members, and the Steering Committee passed a resolution asking me to appoint a Committee of experts to prepare another translation which would be as accurate as possible but at the same time also intelligible to the public at large. I have appointed that Committee and that Committee is doing the work at the present moment. I am not sure if that Committee has been able to complete in final form the translation even of those article which have been already accepted and adopted by this House. The other day I attended one of the

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*[]Translation of Hindustani speech.

meeting of that Committee and I found that they were still struggling with one of the articles which come rather early. Some progress must have gone upto now. I still stick to my opinion--I do not know if that is shared by all the Members of this House-but I still stick to my opinion that it would be in keeping with our own language, (Cheers) but I do find that this difficulty has faced us all these months, and I can only hope that the Committee which has been appointed will be able to give us a satisfactory translation in time for being placed

before this House and accepted by it. I am not in a position to say that today, but as soon as I can get that translation, I shall place the matter before the House.

Shri M. Thirumala Rao (Madras: General): On a point of clarification, Sir, in the event of a satisfactory translation in Hindi being available, is it proposed to give up the adoption of this constitution in English?

Mr. President: I do not think so, because the original has been prepared in English language and it has to be adopted, but we can also adopt it in our own language if the translation is satisfactorily prepared.

The Honourable Shri K. Santhanam (Madras: General): I take it that even then it will be duly debated because many of us may have amendments to suggest to the Hindi translation.

Mr. President: Of course, it will be open to any member of the House to move any amendments to the translation, so far as the language is concerned, but not with regard to the substance because the substance will have been accepted in the English language.

We shall new proceed to the consideration of the Draft Constitution. The House dealt with articles upto 67. We shall now proceed further. The Steering Committee was of the opinion that we might adopt the articles dealing with election matters first. That is, I think, the wish of the House also. But I understand that it will not be possible to proceed with those articles today and we can take them up from tomorrow. Today we begin with article 68 and such articles only dealing with election matters as fall within today's discussion, and those that come later will be taken up tomorrow.

There is one article of which notice has been given by way of amendment. i.e.,67-A. It will be taken up first.

*

New Article 67-A

The Honourable Dr. B.R. Ambedkar (Bombay: General): Mr. President, Sir, I move:

"That after article 67, the following new article be inserted :-

`67-A. (1& The President may nominate persons not exceeding three in number to assist and advise the Houses of Parliament in connection with any particular Bill introduced or to be introduced in either House of Parliament.

(2) Every person so nominated in connection with any particular Bill shall, in relation to the said Bill, have the right to speak in, and otherwise to take part in the proceedings of either House and any joint sitting of the Houses of Parliament and any Committee of Parliament of which he may be named a member, but shall not, by virtue of such nomination, be entitled to vote nor shall he be entitled to speak in or otherwise to take part in the proceedings of either House or any joint sitting of the Houses or any Committee of Parliament in relation to any other matter."

Sir, the necessity for this article being inserted in the Constitution is this: The House will remember that the composition of the Upper Chamber was originally set out in paragraph 14 of the report of the Union Constitution Committee. In that paragraph it was stated that the Drafting Committee should adopt as its model the Irish system nominating fifteen members of the Upper Chamber out of a panel constituted by various interests such as science, literature, agriculture, engineering and so on. When the Drafting Committee took up this matter, Sir, B.N. Rau, who had in the meanwhile gone on tour, had a discussion with Mr. De Valera and the other members of the Irish Government as to how far this system which was in operation in Ireland had been a successful thing, and he was told that the panel system had completely failed with the result that the Drafting Committee decided to drop the provision suggested in paragraph 14 of the report of the Union Constitution Committee, and proposed a simple measure, viz. to the Upper Chamber representing special knowledge or practical experience in science, literature and social services. After the Drafting Committee had prepared this Draft, the matter was again reconsidered by the Union constitution committee and at this session of the Union Constitution Committee, the Committee

proposed that the total number of nominations which was originally restricted to fifteen should be divided into two classes, viz., that there should be a set of people nominated as full members of the House and they should have special knowledge and practical experience in art, science, literature and social services and that three other persons should be nominated as experts to assist and advise Parliament in the matter of any particular measure that the Parliament may be considering at the moment.

The first part of the recommendation of the second session, if I may say so, of the Union Constitution committee has already been incorporated in article 67 which has already been passed by the Assembly. It is to give effect to the second part of the recommendation of the Union Constitution Committee that this article is proposed to be introduced in the Constitution. Honourable nominated thereunder. The functions are to assist and advise the Houses in a particular measure that may be before the House; in other words, the members who would be nominated under article 67-A, their term and their duration will be co-terminous with the proceedings with regard to a particular Bill in relation to which they are nominated by the President to advise and assist the House.

From the second paragraph of article 67-A it will be noticed that they are only entitled to take part in the debate, whether the debate is taking place in the House as a whole or in a particular committee to which they are nominated by the House as a whole or in a particular committee to which they are nominated by the House as members thereof; but they are not entitled to vote at all, so that the addition of these three members will certainly not affect the voting strength of the House. I am sure that the House will accept this new provision contained in article 67-A. If I may point out to the House, the provision contained in article 67-A of nominating experts to the House is not at all a new suggestion. Those members of the House who are familiar with the provisions of the Government of India Act of 1919 know when it introduced a popular element in the House, it also contained a provision which empowered the Governors of the different provinces to appoint experts to deal in a particular manner when the House is considering such a measure. I think it is a useful provision and it would do a lot of good if such a provision was introduced in the Constitution.

Pandit Thakur Das Bhargava: Sir, with your permission, I wish to bring to your notice that so far as this new provision is concerned, no notice of it was given before and we did not know if such a provision was going to be brought before the House. In the printed book which has been circulated to us, this does not appear there. This is the first time that we are informed of its existence. I beg of you under these circumstances to kindly hold this section over, so that we may be able to table proper amendments to this article. So far as the provision of article 67-A go, they appear, on a cursory examination, to be extremely wide. We have just heard that the powers of these persons who will be nominated will be co-terminous with the proceedings of a particular Bill, but there is nothing in this section to indicate that. Similarly I understand that the words " In relation to the said Bill" are too wide. I can understand if the House agrees to the appointment of experts and then their powers should be limited to the time when the Bill is on the anvil of the Legislature and only in so far as the Bill is being considered. These words "in relation go to the said Bill" might mean that whenever a provision of this kind is taken up any of those matters in regard to.....

Pandit Hirday Nath Kunzru (United Provinces: General): The honourable Member is not audible.

Mr. President: Does the honourable Member want that the discussion of this article be held over?

Pandit Thakur Das Bhargava: Exactly.

Mr. President : Is that the wish of the House that it should be held over?

Shri T.T. Krishnamachari (Madras: General): We may go on with the discussion now and if the Drafting Committee want to reconsider it, we can do so later on.

Mr. President: The suggestion is that this thing was not circulated before and Members wish to have time.

The Honourable Dr. B.R. Ambedkar: I have no objection if the House wants that the consideration of this matter be postponed.

Mr. President: We shall postpone it today and we shall take it up later.

*

Article 68

Mr. President: The motion is:

"That article 68 from part of the Constitution."

We shall now take up the amendments to this article.

(Amendments Nos. 1453 and 1454 were not moved.)

Amendment No. 1455 stands in the name of Mr. Naziruddin Ahmed. I think that is a verbal amendment. Will you like to move it? With regard to these verbal amendments, I was going to make a suggestion to the Honourable Dr. Ambedkar. With regard to them, he might consider them in consultation with the Members who have given notice of such verbal amendments and such of them as would be accepted could be taken up at the time when the motion is placed before the House as having been accepted and we would save the time of the House in that way, but with regard to those which are not acceptable, of course, we shall have to consider what to do with them.

The Honourable Dr. B.R. Ambedkar: The Drafting Committee may be very glad to follow that procedure.

Mr. President : It will save a lot of time and I will leave out all these verbal amendments or amendment which are of a drafting nature, and which do not touch the substance of the article.

Amendment No. 1456 stands in the name of Mr. Naziruddin Ahmed. It is also of a drafting nature.

Mr. Naziruddin Ahmad : No, Sir. It is not of a drafting nature.

Mr. President : The amendment is for substituting the word "third" for the word "second".

Mr. Naziruddin Ahmed: Sir, I do not move it.

(Amendment Nos. 1457, 1458, 1460 and 1461 were not moved.)

Mr. President: Amendment No. 1459 is more or less of a drafting nature. Amendment No. 1462 is verbal. Amendment No. 1463 is of a drafting nature.

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

"That in the provision to clause (2) of article 68, for the words "by the President" the words `by Parliament by law' be substituted."

It is not necessary to offer any explanation for the amendment which I have moved. It will be seen that the clause as it stands vests the power of extending the life of Parliament in the President. It is felt that this is so much of an invasion of the ordinary constitutional provisions that such a matter should really be vested in Parliament and that Parliament should be required to make such a provision for extending the life of itself by law and not by any other measure such as a resolution or motion.

(The amendment to Amendment No. 1460 was not moved.)

Mr. President: Amendment No. 1465: that is covered by Dr. Ambedkar's amendment. It is not necessary to take it up.

Prof. K.T.Shah (Bihar: General): Mr. President, I move:

"That in the provision to clause (2) of article 68, the full-stop at the end of the sentence be substituted by a semi-colon and the following be added :-

`provided further that the People's House, elected the Proclamation has ceased to operate, shall hold office for the balance of the period of 4 years for which it would have been elected if the dissolution had taken place in the normal course under this section. The same provision shall apply to any Parliament elected after the dissolution of its predecessor if it had been dissolved before the completion of the normal term of 4 year.'

In suggesting this amendment, I want to emphasis two principles: one that any Parliament elected after or immediately after a great national emergency is likely to be influenced very much by the very fact of that emergency. If, therefore it is elected for the full period and not for the balance of the period that would then be remaining, it is likely that such a Parliament may be called upon to

deal with issues that may never have figured, or figured in a minor key at the general election which election that Parliament.I think, if Parliament is to represent and reflect the popular sentiments of the issue that come before it from time to time, its length should be not so long that it might cease to be in full harmony with popular sentiment that may be changing under changing circumstances from time to time. It is therefore, of the utmost importance that the life of the Parliament should not be too long.

By a previous amendment, I had tried to make the life four years. That however being merely a matter of relatively small importance, I did not choose to move that amendment. But, here, I should like to emphasise that the fact that Parliament has to be elected after the Proclamation has ceased, but the effect of the emergency has not passed away, is of importance, and that we should elect that Parliament only for the balance of the period for which its predecessor had been elected, and a balance still remains unexpired.

My reason, as I have already stated is that a Parliament elected under the stress of a grave emergency, influenced by the effect of that emergency sufficient to cause a Proclamation or even s suspension of the Constitution, would not be reflecting the normal sentiment of the people. It is, therefore, best that, in order to secure continued representation of the people properly and the popular opinion fully Parliament should be elected only for the balance of the period.

If that principle is accepted, then, I think the next clause follows as a mere corollary. That is to say, in every case, after a Proclamation of a state of emergency, and Parliament elected should be elected only for the balance of the period and not for the full period that would normally be prescribed under the Constitution.

It would also serve, I think, though I do not attach much magic to that, the purpose of maintaining a certain symmetry in our constitutional development, a period of five years being selected as the normal life of a popular legislature, and as such that quinquennial period should go on repeating from time to time in regular series, any interruption caused by the occurrence of an emergency such as has been provided for in this section being guarded against by permitting the new Parliament to be elected only for the balance of the period remaining unexpired at the time of the emergency.

I think is a very simple matter, and if accepted, it would make Parliament always more fully in accord with the popular sentiment than it would be if you allow it to be elected for a full period even though elected under the stress of a great national emergency which has passed, but whose effects are not over.

I commend the motion to the House.

Mr. President: There is one difficulty. You have not moved the other amendment which stood in your name fixing the period to four years.

Prof. K.T.Shah: I am quite willing to make that five.

Mr. President: Could you do that at this stage.

Prof. K.T.Shah: I am in your hands. I deliberately did not move it.

Mr. President: We shall consider that later. Mr. Mihir Lal Chattopadhyaya.

Mr. Mihir Lal Chattopadhyay (West Bengal: General): I am not moving my amendment.

Mr. President: Two amendments have been moved, one by Dr. Ambedkar and the other by Prof. K. T.Shah. Both of them and the article are open for discussion.

Mr. Tajamul Husain (Bihar: Muslim): Mr. President, I rise to oppose the amendment moved by the Honourable Dr. Ambedkar. My reason for opposing it is this. His amendment is that after the word `President' the words `with the consent of the Parliament' be inserted. Article 68 says:

"That the period may, while a Proclamation of Emergency is in operation, be extended by the President for a period not exceeding one year, etc."

Supposing the Parliament is not in session, then what are we to do in that case? After all the President represents the whole of India. He must have some very wide powers and this power should, in my

opinion, be left in the hands of the President specially when the Parliament may not be in session and it is a matter of emergency. Therefore I oppose the amendment and I want the provision to remain as it is in the Draft Constitution.

The next is the amendment of Professor Shah. I have two objections to it. It may be verbal objection. After, all, this is an amendment and if it is passed, it will go down in the Statute Book. So every word must be correct. Here he uses the words `People's House. There is no such thing as 'People's House' in the Draft Constitution. It is the House of the People. Another thing is as you yourself have pointed out to my Friend Mr. K.T.Shah that the period be mentions is 4 years while we have already accepted that the period should be five years. With these two objections to this amendment, I trust the House will agree with me and accept either of these two amendments and let the words as mentioned in the Draft Constitution remain.

Shri R.R.Sidhwa (C.P.& Berar: General): Mr. President, with regard to my Friend Professor Shah's amendment, he desires that in the event of an emergency when the House is dissolved, the term of the Parliament should be not five years but the remaining period from which the original House was dissolved. To me it seems peculiar. If the House is to be dissolved, it will be dissolved, it will be dissolved, under extraordinary conditions and the House is not going to be dissolved on a mere petty issue. When there is a deadlock in the House, when the Ministry is not stable or the House is not functioning alright, then somebody would step in to dissolve so that a new House could be formed, and for that purpose surely the electorate has to be told that the members who have been returned have not functioned well and therefore there had been a deadlock and the proceedings of the House could not be carried out and therefore the full period of five years should be given to that new House. Professor Shah has not quoted any instance whereby he could have told the House that in the event of dissolution there have been instances in of this nature that he desired that had been introduced. I know of an instance in India when an Assembly was dissolved after the election within one year when there was a deadlock and the electorates returned absolutely 50 percent new members, and the House functioned for the full period. It should be so because if in the past members had not behaved well, it was no reason why the new members should be deprived of the full period. I therefore contend that the full period should be allowed to the new House as is prevalent everywhere in the world and the right of the new members should not be deprived because of the mistake or misbehaviour of the previous members. I therefore oppose this amendment.

Prof. Shibban Lal Saksena (United Provinces: General): Sir, I am thankful to Dr. Ambedkar for the amendment which he has moved. But I personally felt that the provision itself should go. It will mean that under some emergencies the House which is elected for five years may last even up to ten years. Suppose a war intervenes and an emergency is declared, and there are no election. The war may be prolonged one-such a thing occurred in England only recently and the Parliament then continued for nine years. America even in the midst of war had her elections and after four years they had a new House of representatives as well as a New Senate at the very height of war. I feel that the people must have an opportunity of electing their representatives every five years and no emergency should be permitted to take away this right of people. If in certain circumstances the life of the Parliament has to be extended, some limit should be placed on the period upto which it life may be increased. This limit should not exceed one year.

Mr. President: The honourable Member has given no notice of any amendment for omitting the proviso.

Prof. Shibban Lal Saksena: I am speaking on the motion:

Mr. President: You are opposing the whole proviso. That is

your speech. Dr. Ambedkar could not move an amendment to that effect even at this stage. I do not think that question arises.

Prof. Shibban Lal Saksena: This is a lacuna in the Constitution and it will deprive the people of the right to elect their representatives after every five years.

Shri T.T. Krishnamachari: Mr. President, Sir, so far as the amendment No. 1464 is concerned, I think the House will pass it without demur, but in regard to Professor Shah's amendment I must say that I perfectly sympathise with him in that he has taken considerable pains to visualise a contingency that might occur ; but there are certain aspects of the matter which defeat the very purpose that he has in mind. Actually his amendment has not been very carefully worded to suit contingencies where the period of emergency might be say for four and a half years. If the period of emergency is for four and a half years, is the new House to be elected only is the new House to be elected? these are the absurdities that arise if the amendment is accepted, because when we meticulously loom for contingencies which will arise in the future we are apt to overlook certain other contingencies which will make our ideas perhaps infructuous as we are not able to provide for all possible things that might arise. So while I perfectly sympathise with Professor shah's idea that elections like a Khaki election should be avoided if possible and the House that has been elected on that basis should not be perpetuated, I think human ingenuity is powerless against such things happening. So I would appeal to him not to press his amendment because it contains in itself germs which defeat the purpose for which he has tabled his amendment. so I think, barring Dr. Ambedkar's amendment which I hope the House will accept, the article can go in as it is.

The Honourable Dr. B.R.Ambedkar: Mr. President, Sir I do not think that anything has been said in the course of the debate on my amendment, No. 1464, which calls for a reply. I think the amendment contains a very sound principle and I hope the House will accept it.

With regard to the amendment moved by my friend Prof. shah, I think some of the difficulties which arise from it have already been pointed out by my Friend Mr. T.T.Krishnamachari. Election after all, is not a simple matter. It involves tremendous amount of cost, and I it would be unfair to impose both upon the Government and upon the people this enormous cost of too frequent elections for short period. I, quite sympathise with the point of view expressed by Prof. Shah, that it has been the experience throughout that whenever an election takes place immediately after a war, people sometimes become so unbalanced that the election cannot be said to represent the true mind of the people. But at the same time, I think it must be realised that war is not the only cause or circumstance which leads to the unhinging, so to say, of the minds of the people from their normal moorings. There are many other circumstances, many incidents which are not actually wars, but which may cause similar unbalancing of the mind of the people. It is no use, therefore, providing for one contingency and leaving the other contingencies untouched, by the amendment which Prof. Shah has moved. Therefore, it seems to me that on the whole it is much better to leave the situation as it is set out in the Draft Constitution.

Mr. President: I will now put the amendment, No. 1464.

The question is:

"That in the proviso to clause (2) of article 68, for the words `by the President' the words `by Parliament by law' be substituted."

The amendment was adopt.

Mr. President: Then there is the further proviso suggested by Prof. Shah in his amendment No. 1466.

The question is:

"That in the proviso to clause (2) of article 68, the full-stop at the end of substituted by a semi-colon and the following is added :-

`Provided further that the People's House, elected after the Proclamation has ceased to operate, shall hold office only for the balance of the period of

4 years for which it would have been elected if the dissolution had taken place in the normal course under this section. The same provision shall apply to any Parliament elected after the dissolution of its predecessor if it had been dissolved before the completion of the normal term of 4 years.'"

The amendment was negatived.

Mr. President: Then I put the whole article as amendment by Dr. Ambedkar's amendment.

The question is:

"That article 68, as amended, stand part of the Constitution."

The motion was adopted.

Article 68 as amended, was added to the Constitution.

*

Article 68-A

Mr. President: Now I come to the new article sought to be put in article 68-A Dr. Ambedkar.

The honourable Dr. B.R.Ambedkar: Mr. President, Sir, I beg to move:

"That the following new article be inserted after article 68 :-

`68-A. A person shall not be qualified to be chosen to fill a seat in Parliament unless he--

(a) is a citizen of India;

(b) is, in the case of a seat in the Council of States, not less than thirty-five years of age and, in the case of a seat in the House of the People, not less than twenty-five years of age, and

(c) possesses such other qualifications as many be prescribed in this behalf by or under any law made by Parliament.'"

Sir, the object of the article is to prescribe qualifications for a person who wants to be a candidate at an election. Generally, the rule is that a person who is a voter, merely by reason of the fact that he is a voter, becomes entitled to stand as a candidate for election. In this article, it is proposed that while being a voter is an essential qualification for being a candidate, a voter who wishes to be a candidate must also satisfy some additional qualifications. These additional qualifications are laid down in this new article 68-A.

I think the House will agree that it is desirable that a candidate who actually wishes to serve in the Legislature should have some higher qualifications than merely being a voter. The functions that he is required to discharge in the House require experience, certain amount of knowledge and practical experience in the affair of the world, and I think if these additional qualifications are accepted, we shall be able to secure the proper sort of candidates who would be able to serve the House better than a mere ordinary voter might do.

Mr. President: There are certain amendments to this: No. 80 in the list of amendments to amendments, by Mr. Naziruddin Ahmad. This also seems to be a drafting amendment, and I would leave it to the Drafting Committee to settle it, in consultation with the mover.

Then No. 81 also looks like a drafting amendment. It seeks to add the words "and voter" at the end. I leave it also because it is more or less of a drafting nature.

(Amendments No. 82, NO. 83 and No. 84 were not moved.)

Then we come to the other list which has been circulated today. Amendment No. 4 of that list, by Sardar Hukam Singh and Mr. Lakshminarayan Sahu.

(The amendment was not moved.)

I have got notice today of another amendment by Shrimati Durgabai.

Shrimati G.Durgabai: Sir, I beg to move:

"That in the new article 68-A proposed for insertion after article 68, in clause (b) for the word `thirty-five' the word `thirty' be substituted.

The object of this is to lower the age to 30 from 35 for a seat in the Council of States. It was held for some time that greater age confers greater wisdom on men and women, but in the new conditions we find our boys and girls more precocious and more alive to their sense of responsibilities. Wisdom does not depend on age. It was also held that the upper House consisted of elders who should be of a higher age as it was revising chamber which would act as a check on hasty legislation. But that is an old story and the old order has been replaced by the new. As I said our boys and girls are now more precocious and the educational curriculum is now so broad-based that it will educate them very well in respect of their civic rights and duties. I

therefore think we should give a chance to these younger people to be trained in the affairs of State. I said wisdom does not depend on age. Our present Prime Minister became President of the Congress before he was 40 and Pitt was 24 when he became Prime Minister of England. Therefore we have no reason to fear that because a man is only 30 he will not be able to perform his functions in relation to the State. I hope the House will accept this amendment. Sir, I move.

Mr. President: The amendment and the original proposition are both open to discussion now.

Shri H.V. Kamath (C.P.& Berar: General): Sir, I was happy to hear my honourable friend Shrimati Durgabai say that wisdom does not depend on age; I hope she will agree that it is irrespective of sex as well. (Several honourable Members: "Question".) Those friends who question this will answer their own question by coming here and convincing this House. This constitution does not discriminate against sex and I hope that with our traditions of philosopher women like Gargi, Maitreyi and Ubhayabharati, wisdom will not discriminate against sex. Our greatest epic, the Mahabharata- has recognised this in a well-know shloka which runs as follow :-

SHALOKA IN SANSKRIT

It means

A person is not old or wise, merely because his hair has turned white

Na tena Vriddho bhavati Yenasya palitam shirah

Yo Vai yuvapyadhiyanstam devah sthaviram Vidhu.

I have therefore no hesitation in supporting Shrimati Durgabai's amendment lowering the age limit for membership of the Council of States. I would have gone further and made the ate limit the same for both Houses and reduced it to 21. It was said that Pitt became Prime Minister of England at an early age. I think he entered Parliament at 21 or a little over 21, and became Prime Minister at 24. These are of course exceptions and we cannot legislate on the basis of exceptions. But on the whole I think it is wise to lower it from 35 to 30. There may, however be one difficulty about this. I shall invite your attention to article 152, under which, in the case of the legislature of a State, the age is 35 for membership of the upper House. I hope that when we come to that article this amendment will be borne in mind, and what we have done for the upper House in the Centre will apply to the upper Houses of the provinces or States, and the age limit there also will be lowered to 30 years. When a person below 35 can fill a seat in the upper House in the Centre there is no reason why he cannot do it in the States. Another difficulty, which perhaps is not of much moment, is article 55(3) which we have passed already and cannot now amend, wherein it is laid down that in order to be Vice-President a person must have completed 35 years. Now the council of States will be presided over by a person who is a member of the Council. In Shrimati Durgabai's amendment the age limit is proposed to be lowered from 35 to 30. It means that we are reduced to this position, that every member of the Council of States will not be qualified to contest or stand for the election of the Vice-President of the Council of State, because if a person is between 30 to 35 he will not be eligible for election. Merely because he is below 35 he will not be able to fill the office of Vice-President. This is an anomaly which is rather distasteful to me. The person is elected to the Council of State, and the Council of State can elect a Vice-President from among themselves but this age bar comes in the way, which is to my mind unfortunate. If this article is adopted I see no way of getting over this difficulty unless the article already passed is amended suitably. A person who is a member of the House must be ioso facto eligible for any election that may be held by the House. But under the amendment of Shrimati Durgabai this is made an impossibility simply because a man happens to be between 30 to 35. If a man is fit to occupy a seat in the upper House. I see no reason why be should not be competent to fill the office of the Vice-President of the

Council of States, but should be debarred merely because of age. I hope the wise men of the Drafting Committee will look into this anomaly and try to rectify it as far as their wisdom permits them to do so.