CONSTITUENT ASSEMBLY OF INDIA - VOLUME IX



Saturday, the 30th July 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 Member took the Pledge and signed the Register:-

Maulana Mohd. Hifzur Rahman (United Provinces: Muslim).

Seth Govind Das (C.P, & Berar: General) : *[Mr. President, before we proceed with our business, I would like to draw your attention to one matter. Since the day of our arrival here we have been hearing various rumours about our National Language. It is said that the question of National Language would now be left for Parliament to decide. Sir, you have said here repeatedly that not only would the question of our National Language be decided by us here, but that our Constitution too would be adopted in our National Language. Now we are holding the final session, and I have learnt that the Translation Committee appointed by you for preparing the Hindi translation of the Draft Constitution has already translated the articles so far adopted by this Assembly. I would like you, Sir, to contradict these rumours and make a definite announcement that the question of the National Language would not be left to the Parliament but that it would be decided by the Constituent Assembly. Unless it is so done, in my opinion, our Constitution would remain incomplete. I would also like you, Sir, to fix the dates when questions of National Language, National Anthem and the name of the country would be taken up here so that the people, may come to know of the dates when these questions would be decided.]

Dr. B. Pattabhi Sitaramyya (Madras:, General) : I thought it had been understood that whenever any Member wanted to raise a point which was not on the agenda, he should speak to the President in the Chamber. May I know whether such a procedure has been gone through in this case,

Mr. President: No.

Dr. B. Pattabhi Sitaramyya: To spring such a subject upon the, audience all of a sudden and to make a long speech is against all order and procedure.

The Honourable Shri Jawaharlal Nehru (United Provinces: General): Hear, hear.

Mr. President: The question as to whether the question of language should be left for the Parliament depends entirely upon the decision of this House. It is for this House to consider that question and come to any decision that it likes. I do not think any further question arises and when that article is reached and a decision is taken, we shall act accordingly.

Seth Govind Das *[Mr. President, my second point that a date should be fixed remains yet unanswered.]

Shri T. T. Krishnamachari (Madras : General) : Mr. President, may I draw your attention to an irregular act on the part of the Assembly Staff. I would like to know, Sir, whether you have given any member of the staff disciplinary jurisdiction over the Members of the Constituent Assembly so that they can punish them for what they think is non-compliance with their request. A member of the staff has written to me to say that I would not get petrol coupons for a particular week because of something that I have not done in the past. I do not know whether he is entitled to do so and if you have authorized him to do so, and I think the whole action is perfectly irregular.

Mr. President: It is evident I could not have given any authority like that to any member of the staff; however, I shall look into the matter.

We shall now take up article 79-A.

New Article 79-A

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

That in amendment No. 1 of List I (First Week) of Amendments to Amendments. for the provisions of any law made under the said clause."

Secretariat of Parliament "79-A. (1) Each House of Parliament shall have a separate Secretarial Staff:

Provided that nothing in this clause shall be construed as preventing the creation of posts common to both Houses of Parliament.

(2)Parliament may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of either House of Parliament.

(3)Until provision is made by Parliament under clause (2) of this article, the President may. after consultation with the Speaker of the House of the People or the Chairman of the Council of States, as the case may be, make rules regulating the recruitment and the conditions of service of persons appointed to the secretarial staff of the House of the People or the Council of-States, and any rules so made shall have effect subject to the provisions of any law made under the said clause."

The House will see that this is a new article which is sought to be introduced in the Constitution. The reason why the Drafting Committee felt the necessity of introducing an article like this lies in the recent Conference that was held by the Speakers of the various Provinces in which it was said that such pi provision ought to be made in the Constitution.

It was, as every one most probably in this House knows, a matter of contention between the Executive Government and the President ever since the late Mr. Vithalbhai Patel was called upon to occupy the President's Chair in the Assembly. A dispute was going on between the Executive Government and the President of the Assembly. The President had contended that the Secretariat of the, Assembly should be independent of the Executive Government. Ultimately Executive Government of the day, on the other hand, contended that the Executive had the right to nominate, irrespective of the wishes and the control of the President the personnel and the staff required to serve the purposes of the Legislative Assembly. Ultimately, the Executive Government in 1928 or 1929 gave in and accepted the contention of the then President and created an independent secretariat for the Assembly. So far. therefore, as the Central Assembly is concerned, there is really no change effected by this new article 79-A, because what is provided in clause (1) of article 79-A is already a fact in existence.

But, it was pointed out that this procedure which has been adopted in the Central Legislature as far back as 1928 or 1929 has not been followed by the various provincial legislatures. In some provinces, the practice still continues of some officer who is subject to the disciplinary jurisdiction of the Legislative Department being appointed to act as the Secretary of the Legislative Assembly with the result that that officer is under a sort of a dual control, control exercised by the department of which he is an officer and the control by the President under whom for the time being he is serving. it is contended that this is derogatory to the dignity of the Speaker and the independence of the Legislative Assembly.

The Conference of the Speakers passed various resolutions insisting that besides making this provision-in the Constitution, several other provisions should also be, made in the Constitution so as to regulate the strength, appointment, conditions of service, and so on and so on. The Drafting Committee was not prepared to accept the other contentions raised by the Speakers' Conference. They thought that it would be quite enough if the Constitution contained a simple clause stating that Parliament should have a separate secretarial staff and the rest of the matter is left to be regulated by Parliament. Clause (3) provides that, until any provision is made by Parliament, the President may, in consultation with the Speaker of the House of the People or the Chairman of the Council of States, make rules for the recruitment and the conditions of service. When Parliament enacts a law, that law will override the rules made pro-tempore by the President in consultation with the Speaker of the House, of the People. I think that the provision that we have made is sufficient to meet the main difficulty which was pointed out by the Speakers' Conference. I hope the House will find no difficulty in accepting this new article.

[Amendments 43 and 44 of List II (First Week) were not moved.]

Shri L. V. Kamath (C.P. & Berar: General): Sir, May I move all the amendments standing in my name or am I to take my chance after Prof. Shibban Lal Saksena ?

Mr. President: All at once.

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

"That in amendment No. 42 of List II (First Week) of Amendments to Amendments, in the proviso to clause (1) of the proposed new article 79-A, for the words 'shall be, construed as preventing the words 'shall prevent' be substituted.

That in amendment No. 42 of List II (First Week) of Amendments to Amendments, in clause (2) of the proposed new article 79-A, for the words 'recruitment, and the conditions of service of persons appointed, to' the words 'recruitment to, the salaries and allowances and the conditions of service of' be substituted.

That in amendment No. 42 of List II (First Week) of Amendments to Amendments, in clause (3) of the proposed new article 79-A. for the word 'or' occurring in line 4. the word and' be substituted

That in amendment No. 42 of List II (First Week) of Amendments to Amendments, in clause (3) of the proposed new article 79-A, the words 'as the case may be' be deleted.

That in amendment No. 42 of List II (First Week) of Amendments to Amendments, in clause (3) of the proposed new article 79-A. for the words 'recruitment and the conditions of service of persons appointed to' the words 'recruitment to, the salaries and allowances, and the conditions of service of' be substituted.

That in amendment No. 42 of List II (First Week) of Amendments to Amendments, in clause (3) of the proposed new article 79-A, for the words 'the House of the People or the Council of States' the words 'each House of Parliament' he substituted.

That in amendment No. 42 of List II (First Week) of Amendments to Amendments, in clause (3) of the proposed new article 79-A, all the words after the words 'Council of States' where they occur for the second time, be deleted."

Mr. President: Are not all these amendments more or less of a verbal nature ?

Shri H. V. Kamath : No, Sir. I shall however speak on the more substantial ones. If you deem fit you may kindly say which are verbal and I shall abide by your ruling, Sir.

Mr. President: No. 72 is verbal.

Shri H. V. Kamath: Nos. 72 and 73 go together. Coming to amendment No. 69, the object of this amendment is to eliminate unnecessary verbiage. We in this proviso to clause (1) I do not find any parallel in any other proviso which provisos have been moved and adopted. I have closely examined various provisos of articles that this House has adopted in the past, and for the words occurring in this proviso to clause (1) I do not find any parallel in any other proviso which we have adopted earlier. I shall refer to two or three articles that we have already passed. I shall invite your attention to article 22. The proviso to clause (1) says:

"Provided that nothing in this clause shall apply to an educational institution etc."

It does not say

"Provided that nothing in this clause shall be construed as applying etc."

This is unnecessarily cumbering the Constitution with needless, redundant, superfluous verbiage.

I therefore feel that the meaning of this proviso could be adequately conveyed by merely stating that nothing in this clause shall prevent the creation of posts common to both Houses of Parliament. If the House is desirous of referring to other articles of similar nature, I shall invite its attention to article 42 clause (3) sub-clause (b). There again it says :

"Nothing in this article shall prevent Parliament from conferring by law functions on authorities other than the President."

The proposed article, article 79-A, has a wry clumsy construction, in my judgment, and no useful purpose would be served by the addition of the words " shall be construed as preventing"

I therefore submit that our object will be adequately served by merely stating that:

"Nothing in this clause shall prevent the creation of posts common to both Houses of Parliament."'

Then I come to amendment No. 71 which relates to recruitment and conditions of service of persons appointed to these posts-the secretarial staff or others of either Parliament.

Mr. President: Would you not leave the wording to the Drafting Committee ? I am sure the Drafting Committee will consider these.

Shri H. V. Kamath: It is in my judgment more or less substantial and I would crave your indulgence to let me speak.

Mr. President: If it is put to the House it may be lost.

Shri H. V. Kamath : That will be after my speech. I leave it entirely to the judgment of the House which I do not wish to fetter. I only wish to place my views before the House and it is open to the House to either accept or reject them. I submit that should not affect the moving of my amendments at this stage.

Amendment No. 71. This clause (2) if this new article refers to recruitment and conditions of service. Now for any staff, secretarial or otherwise or anybody of public servants, various questions arise. Recruitment is the first, without which there is no body of public servants. Then conditions of service arise. But to my mind the conditions of service do not include the salaries, emoluments and other allowances that will be paid to those servants. I remember covenants that used to be signed by members of the all-India services. Various conditions of service were laid down in those covenants that used to be executed between officers of all-India services and the Secretary of State. Notably, I remember personally the Indian Civil Service. There various conditions of service were laid down, but there was no reference at all to salaries and emoluments of the servants of that category. I am sure in every other Department, in every other field of service, Government or otherwise, a similar rule will hold, and that is salaries and emoluments are matters apart from conditions of service. I have no doubt on that point and I do not know whether the House will hold the same view, but from my experience in this line salaries and emoluments are something quite apart from the conditions of service; but I am sure so far as this new article is concerned this House will desire that Parliament should regulate not merely questions of recruitment and conditions of service but also the other question of emoluments, that would be paid to the Secretarial staff of our future Parliament.

Therefore, in my judgment, it is very necessary that this article should make it clear that Parliament shall regulate not merely the recruitment, 'the cadre or strength of the staff and conditions of service, but also the other cognate matter of salaries and allowances that may be paid to the members of the staff. Already we have passed several articles, notably the articles pertaining to the Speaker, Deputy Speaker and similar other articles where we have definitely and explicitly, referred to the salaries and allowances that will be paid to these various dignitaries of Parliament. Therefore, it is necessary, in my judgment, that these words should also be included in this article so as to make it quite clear that salaries and allowances also should be regulated by Parliament.

Coming to my next amendments Nos. 72 and 73, I have to say only one word about them. We have already had it stated in the article moved by Dr. Ambedkar where the proviso states "nothing in this clause shall be construed. as preventing the creating of posts common to both Houses of Parliament." Therefore, it is conceivable and also likely that there will be certain posts common to the House of the People and the Council of States. If that be so, then the possibility, nay, the desirability of creating certain posts common to both Houses of Parliament will certainly arise. The contingency will be inevitable that the President-will have to coma not merely one or the other, the Speaker or the Chairman, but he must consult both of them. He will have to consult the Chairman of the Council of States as well as the Speaker of the House of the People, before creating posts common to both, and obtain the views of the Chair-man and the speaker as to whether it is necessary to make the posts common to both Houses or leave them otherwise. If we adopt the proviso, then the contingency which I have referred to will arise of the President having to consult both the Speaker and the Chairman.

        Once the House accepts this amendment of mine, then the subsequent few words-"as the case may be" drop out automatically, because when you say "Chairman and the Speaker" then there is no valid reason for retaining the words "as the case may be." Therefore, amendments Nos. 72 and 73 go together.

        Amendment No. 74 is identical with No. 71 and I have already stated the provisions for moving amendment No. 71 and so I do not propose to speak on amendment No. 74.

        Coming to amendment No. 75, it refers to clause (3), i.e. with a view to bringing this into conformity with or in line with clause (1) of the proposed new article. Clause (1) refers to each House of Parliament. I desire that the article should end on a note similar to its beginning, that it should conclude in the same manner as it has begun. It begins with a reference to "Each House of Parliament" and there is no reason why, without detracting from the meaning of the article or this particular clause, we should not merely say "each House of Parliament" at the end also, instead of repeating the words "House of the People or the Council of States." I have already said in amendments 72 and 73 that the President will consult both Houses of Parliament and not merely the Chairman or the Speaker. Therefore it follows ipso facto and quite logically enough, that it will suffice if we merely state "each House of Parliament" and not repeat the words "House of the People or the Council of States."

        Then there remains the last amendment, i.e. No. 76. Here it is slightly more than verbal, and the point of substance in it is this. It touches on the authority and power of Parliament, vis-à-vis the rule-making power of the President. The article lays down that "any rules so made shall have effect subject to the provisions of any law made under the said clause." Now if this clause is studied carefully, it will be realised that this power is given to the President only until Parliament meets to deliberate thereon, and only so long as provisions in this regard are not made by Parliament. That is to say, they do not overlap. There is to be no overlapping of the authorities of the Parliament and the President, at any point. Until the new Parliament meets and deliberates on these matters, it is obvious that no rules, no provisions in this regard can be made by Parliament. So, for that interim period, for the interregnum, power is given to the President to make rules in this respect. Once Parliament sits and deliberates and makes provisions in this regard on these various matters, the President's authority vanishes. The rules made by him have no power or force afterwards, once Parliament has made provisions in this regard. Therefore, in my judgment, to say that any rules made shall have effect, subject to provisions made under the said clause is wholly futile and fatuous, and I do not know how such a clause, such a provisions could have a all found a place in this article. I wonder why this slip has been committed by Members and otherwise round them. To my mind this article makes it clear that Parliament shall make provisions, and until it does so, the President shall make rules. Then, what is the point in saying that these rules will be subject to any law made under the clause. Once Parliament has made provision in this regard, then the other rules have no authority; they die thereafter, and these rules will not govern in any manner the secretarial staff's recruitment, conditions of service and other matters connected with the staff of Parliament. But between now and the session of Parliament, for that period, the President will be empowered to make certain rules, but once Parliament meets and makes provisions, then the President, according to me, has no locus standi at all in this mater. Therefore it is absolutely pointless and purposeless and even derogatory to Parliament's dignity and authority to say that even after Parliament has met, the provisions in this regard made by the President will have effect subject to, etc. etc.

        Clause (2), if it is read with and studied closely with clause (3), will make it quite clear to honourable Member that the last portion of clause (3)"and any rules so made shall have effect subject to the provisions of any law made under the said clause" must be deleted.

        Shri Mahavir Tyagi (United Provinces : General): We are now more than convinced by the honourable Member's arguments that these words are not necessary.

        Shri H.V. Kamath : If my friend Mr. Tyagi is convinced, I am very happy. I am not so sure that my other colleagues are equally convinced, but I am certainly very glad to know from Mr. Tyagi that he has been convinced by my arguments, and I am glad that at least one Member of the House is with me, if not any others.

        I therefore move these various amendments and commend them for consideration of the House.

        Prof. Sibban Lal Saksena (United Provinces : Genera) : Sir, I move.

        "That in amendment No. 42 of List II (First Week) of Amendments to Amendments, in the clauses (2) and (3) of the proposed new article 79-A, before the word 'recruitment' the word 'strength' be inserted."

        I have added the word "strength" because the present article does not specify this. If you add this word, it will remove a lacuna. As far as the article itself is concerned, I believe that at one time our revered leader, the late Mr. Vithalbhai Patel, had to fight the battle of independence for the secretariat of the then Central Legislative Assembly with the then bureaucracy and it is a happy day today that we are incorporating this principle to ensure the independence of the secretariat staffs of our Parliament in the Constitution.

        I support this amendment of Dr. Ambedkar and I hope by including the word "strength" you will remove the lacuna, which I think is present there.

        Mr. President : All the amendments have now been moved. Does any Member wish to speak?

        Shri R.K. Sidhva (C.P. & Berar : General) : Sir, I welcome this article. The Speaker's secretariat ought to be quite separate from the executive. It is a recognised fact everywhere. But I have noticed, Sir, that when men, with the best of intentions, come into power, they do not want to part with the power which is not due to them. Therefore, many persons had to fight for this right in the past. I can give you illustrations, Sir, that in the Municipal Corporations also the secretariat branch is mixed even now with the executive. When I was the Mayor of Karachi I had to fight very hard with the secretariat department and the secretariat executive department did not like to budge and inch and part with any power. Ultimately, they had to yield and today, in pursuance of the resolutions passed by the All-India, Burma and Ceylon Mayors Conference, at Bombay, Calcutta and Madras there are separate secretariats for the Mayors. Therefore, it is in the fitness of things that the Speakers of all the provinces who met the other day under the chairmanship of the Speaker of the Parliament, decided that they must have a separate secretariat. I can cite you an illustration, Sir, that when the Speaker's secretariat. wanted pencils for the Members the executive refused to give them. I know of a province where at the instance of the House, Members complained that stenographers did not take down the proceedings properly, and therefore it was necessary that an additional stenographer should be added, but the executive refused to grant the additional stenographer even with the consent of the House. These conditions prevail even today and I am so glad that this article has been brought and has been put into the Constitution. If our executives, I mean the Ministers, had been reasonable, this article would not have been put into the Constitution and Parliament would surely have taken not of it. But when it is seen that even popular Ministers are not prepared to part with that power, there is no other alternative but to put such an article into the Constitution.

        Coming tot he service staff, the language is quite different from the original article in the List at page 11, as proposed at that time by the Honourable Dr. Ambedkar. He has made a certain improvement which I like. But I wish to make it clear that the staff of the secretariat should be quite different from the staff of the executive. The staff of the Speaker, I mean the Legislature, should be chosen from persons who are amiable, social, kind, useful and helpful o the Members, and not that kind of staff which exists who are helpful, kind and always ready to help the Members in matters like the preparation of Bills, resolutions and questions. This is the kind of attitude that prevails also in the House of Commons. But if you go to the Central Secretariat, you will find quite a different type of staff. The practice in the House of Commons is that no staff shall be allowed to be recruited unless the Clerk of the House-whose post is equivalent to the Secretary of our Parliament-certifies that he is fit to be sent to the Public Service Commission. Then he will be allowed to sit for an examination by the Public Services Commission. That Clerk of the House keeps that man who aspires for a post in the secretariat, gives him a trial for a couple of months and sees whether he fulfills all the qualifications which I have mentioned. I can tell you from first-hand knowledge that the Clerk of the House of Commons is very careful to see that though an Additional Secretary, or an Assistant Secretary or an assistant clerk may be very good in the English language or in other matters, if he is not helpful, and kind and of an amiable nature, he is ruled out. Therefore he has no direct approach to the Public Services Commission either through the Ministries or the various departments until the clerk of the house certifies that this man should proceed for the examination of the Public Services Commission. I would have preferred the original article which was moved by Dr. Ambedkar in that connection. In modification I had moved an amendment. I shall be pleased to have this clause put into the Constitution before the next Parliament comes in as I do not want the staff to be tampered with by anyone.

        In the House of Commons the entire staff of its secretariat is appointed by the Clerk of the house and not even by the Speaker. Only as a matter of courtesy the Clerk of the house of Commons informs the Speaker that he is appointing so and so and the Speaker says it is all right. That is the practice. In May's Parliamentary Practice you will see that it distinctly lays down that the Clerk makes the appointment of the entire staff of the House of Commons. I therefore hope that a similar provision will be made by Parliament to that effect. I want to make it clear that, while we do not want the executive to interfere with the appointment of the staff of the Legislatures, it should not be understood that that power should go to the Parliament. It would be negativing the very object of this amendment if Parliament takes upon itself to make appointments. Once a fit Secretary is appointed in the interest of discipline we must see that he makes all other appointments subject of course to the approval of the Speaker. The Speaker should have a voice because we are in the initial stage and I therefore desire, unlike in the House of Commons, that the Speaker should have voice in the initial stage in the appointment of the staff. I do maintain as I have already stated that unless we have the proper type of staff of the kind I have mentioned we shall not be doing justice to Parliament and it will not serve the purpose of the article that we are providing in the Constitution. With these words I heartily support the amendment moved.

        Shri Brajeshwar Prasad (Bihar : General) : Sir, I rise to support the new article 79-A moved by the Chairman of the Drafting Committee. I recognise the necessity of a separate staff for the Parliament, but there is one thing which is proposed to be done which I do not like. Questions relating to appointment, promotions and other conditions of service have been left to be determined by Parliament. The amendment which I wanted to move, but did not, suggested that it should be clearly laid down in the Constitution that all questions relating to appointment, in fact all appointments, must be made by the Federal Public Service Commission and not by the Speaker or the Chairman of the upper House. Having due regard to the facts of our political life, when there is hardly a ministry in the provinces which is not being condemned for patronage, for undue favour, for provincialism, it is not safe to vest this power or leave it in a nebulous state or to ask the Parliament to regulate these things. The Parliament's power must be circumscribed in this sphere; and if we want that the position of the Speaker should be above suspicion it is necessary that no patronage should be vested in his hands. We want a separate staff not just for the sake of dignity; simply because other Ministers have got their separate secretariat, therefore the Speaker must also have a secretariat so that his position and dignity may be in line with that of the other Ministers. We want this because it is necessity; but there is no reason why the power of appointment, promotion and disciplinary matters relating to the series should be let in the hands of the Parliament, which will vest these powers in the hands of the Speaker. Sir, I have nothing more to say.

         The Honourable Dr. B.R. Ambedkar : Sir, nothing that has been said, in my judgment, calls for a reply.

        Mr. President : The question is :

        "That in amendment No. 42 of List II (First Week) of Amendments to Amendments, in the proviso to clause (1) of the proposed new article 79-A, for the words `shall be construed as preventing' the words `shall prevent' be substituted."
 


The amendment was negatived.


 


        Mr. President : The question is :

        "That in clause (2) of the proposed new article 79-A, for the words `recruitment, and the conditions of service of persons appointed, to' the words `recruitment to, the salaries and allowances and the conditions of service of ' be substituted."
 


The amendment was negatived.


 


        Mr. President : The question is :

        "That in clause (3) of the proposed new article 79-A, for the word `or' occurring in line 4, the word `and' be substituted."
 
 

The amendment was negatived.


 


        Mr. President : The question is :

        "That in clause (3) of the proposed new article 79-A, for the words `as the case may be' be deleted."
 
 

The amendment was negatived.


 


        Mr. President : The question is :

        "That in clause (3) of the proposed new article 79-A, for the words recruitment and the conditions of service of persons appointed to, the words recruitment and the conditions of service of persons appointed to, the words recruitment to, the salaries and allowances, the conditions of service of' be substituted."
 


The amendment was negatived.


 


        Mr. President : The question is :

        "That in clause (3) of the proposed new article 79-A, for the words `The House of the people or the Council of States' the words `each House of Parliament` be substituted."
 


The amendment was negatived.


 


        Mr. President : The question is :

         "That in clause (3) of the proposed new article 79-A, all the words after the words Council of States' where they occur for the second time, be deleted."
 

The amendment was negatived.


        Mr. President : The question is :

        "That in amendment No. 1 of List 1 (First Week) of Amendments to Amendments for the proposed new article 79-A, the following be substituted :-

        Secretariat of Parliament. "79-A. (1) Each House of Parliament shall have a separate secretarial staff :

        Provided that nothing in this clause shall be construed as preventing the creation of posts common to both Houses of Parliament.

        (2) Parliament may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of either House of Parliament.

        (3) Until provision is made by Parliament under clause (2) of this article, the President may, after consultation with the Speaker of the House of the People or the Chairman of the Council of States, as the case may be, make rules regulating the recruitment and the conditions of service of persons appointed to the secretarial staff of the house of the People or the Council of States, and any rules so made shall have effect subject to the provisions of any law made under the said clause."
 
 

The motion was adopted.

New article 79-A was added to the Constitution.
____________

Article 104


 


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

        That for article 104, the following article is substituted :-

        Salaries etc. of Judges "104 (1) There shall be paid to the judges of the Supreme Court such salaries as are specified in the Second Schedule.

        (2) Every judge shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pensions as may from time to time be determined by or under law made by Parliament, and until so determined, to such privileges, allowances and rights as are specified in the Second Schedule:

        Provided that that neither the privileges nor the allowances of a judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment."

        Sir, all that I need say is that the present article is the same as the original article except that the word "privileges" has been introduced which did not occur in the original text. What those privileges are I would not stop to discuss now. We will discuss them when we come to the second schedule where some of them might be specifically mentioned.

        Shri Brajeshwar Prasad : Sir, I do not want to move any of the three amendments standing in my name.

        Mr. President : As regards Mr. Sidhva's amendment No. 79 this was with reference to No. 2 but since Dr. Ambedkar has moved amendment No. 77 from which the words which Mr. Sidhva wanted to omit have been omitted, his amendment does not arise now.

        [Amendment No. 80 of List III (First Week) was not moved.]

        Pandit Hirday Nath Kunzru (United Provinces : General) : Sir, I beg to move :

        "That in amendment No. 2 of List I (First Week ) of Amendments to Amendments, after clause (2) of the proposed article 104, the following new proviso be added :

        "Provided that no law made under this article by Parliament shall provide that the pension allowable to a judge o the Supreme Court under that law shall be less than that which would have been admissible to him if he had been governed by the provisions which immediately before the commencement of this Constitution were applicable to the judges of the Federal Court."

        Sir, the amendment moved by Dr. Ambedkar provides that the rights of a judge in respect of pension shall not be varied to his disadvantage after his appointment. I should therefore like to explain why I have thought it necessary to move my amendment. It is true that so far as existing incumbents are concerned, no change will be made in their pensions if article 104 is passed in the form proposed by Dr. Ambedkar. But we have to provide for the future too. Dr. Ambedkar proposes that the question of leave of absence and allowances and pensions should be dealt with by Parliament by law after the passing of this Constitution by the Assembly. There are so many matters to be dealt with in this connection that it is not possible to provide for all of them in the Constitution; they can be provided for either in the appropriate Schedule or in a parliamentary statute. Now Dr. Ambedkar himself has proposed that the salaries of the judges should not be left to be determined by Parliament and that they should be fixed by the Constitution. The salary provided for them in one of the Schedules will be lower than it is at present, and this has been done because judges of the Supreme Court have been given under article 308 the option of resigning should the salary and conditions of service suggested in the Schedule not be acceptable to them. I shall discuss this matter when the Schedule is placed before the House. I may, however, say that I personally think that the salaries provided for the judges of the Supreme Court are lower than they should be. Our effort should be to attract the best legal talent in our highest courts of justice and the conditions of service therefore should be such as to induce men with the best qualifications and with the highest reputation at the bar to accept judgeships of the Supreme Court. That, however, is not a mater that I can go into in any detail at present; but my amendment proposes that whatever changes may be made in future they should not affect the pensions that the judges are now entitled to get. The last proviso in Dr. Ambedkar's amendment protects only the judges now holding office. but, so far as the future is concerned, Parliament will have the power to reduce the pension. Considering the present economic situation and also the fact that judges of the Supreme Court will not be allowed to plead or act in any court in the country. I think that the least that we can do is to provide that they should not be given a smaller pension than what they are entitled to now. It may be desirable in theory to leave everything in this respect to Parliament, but I think the question of pension is as important as that of salary. If you are not going to allow a judge of the Supreme Court after retirement to practise in any court in India. I think it is only fair that the present pension should not be reduced. It is not very high even at present; it is not very attractive to persons at the bar who enjoy a good practice. But if it is lowered further there is a danger of making the judgeships unattractive to the best legal talent in the country.

        This, Sir, is the justification for the amendment that I have moved. If it is accepted the effect will be to protect the pensions not merely of the existing but also the future judges of the Supreme Court in the same manner as their salaries will be protected.

(At this stage Mr. President vacated the chair, which was then occupied by Mr. Vice-President, Shri V.T. Krishnamachari.)

        Shri R.K. Sidhva : Mr. Vice-President, my attention was drawn by the Honourable the President that my amendment has been accepted by my honourable Friend, Dr. Ambedkar as per his amendment No. 77 which he moved against his original amendment in List I No. 2. So far it is all right; but I find from clause (2) that the question of every judge's allowance, privileges, and rights are referred to the Parliament. Now I want this matter to be made very clear whether Parliament will have the right to give a furnished house to the Chief Justice if this House is not in favour as is indicated from the acceptance of my amendment by the honourable the Mover. May I know whether in contravention of this House's decision when we refer the other matters of allowances to Parliament, would they be in order to pass any kind of law whereby the Chief Justice of the Supreme Court is allowed a furnished house? Again if you refer to Part IV of Schedule 2, clause (11) relating to provisions as to the Judges of the Supreme Court and of the High Courts, it states :

        "The Chief Justice or any other judge of the Supreme Court or a Chief Justice or any other judges of a High Court within the territory of India except the States for the time being specified in Part III of the First Schedule shall receive such reasonable allowances to reimburse him for expenses incurred in travelling on duty etc. etc."

        Unless you amend the language of this Schedule in view o the amended resolution, I think, Sir, this article will be rather in a confused state. I want to know what are the implications after the amendment of this article moved by Dr. Ambedkar. I find that he has not made any reference to the Schedule and I do not know whether he is going to make any reference to the Schedule hereafter, because that complicates the issue, and the purpose will be defeated if the matter is left to Parliament, who can against the wishes of the House pass orders that the Chief Justice can be given a furnished house.

        The Honourable Dr. B.R. Ambedkar : Mr. Vice-President, Sir, I am sorry I cannot accept the amendment moved by my honourable Friend, Pandit Kunzru, and I think there are two valid objections which could be presented to the House for rejecting his amendment. In the first place, as regards the principle for which he is fighting, namely, that the rights of a judge to his salary and pension once he is appointed have accrued to him and shall not be liable to be changed by Parliament by any law that Parliament may like to make with regard to that particular matter. I think, so far as my new article is concerned. I have placed that matter outside the jurisdiction of Parliament. Parliament, no doubt, has been given the power from time to time to make laws for changing allowances, pensions etc., but it has been provided in the article that shall apply only to new judges and shall not affect the old judges if that is adverse to the rights that have already accrued. Therefore, so far as the principle is concerned for which he is fighting, that principle has already been embodied in this article.

        From another point of view his amendment seems to be quite objectionable and the reason for this is as follows. As everybody knows pensions have a definite relation to salary and the number of years that a judge has served. To say, as my honourable Friend, Pandit Kunzru suggests, that the Supreme Court judges should get a pension not less than the pension to which each one of them would be entitled in pursuance of the rules that were applicable to judges of the Federal Court, seems to presume that the Federal Court Judge if he is appointed a judge of the Supreme Court shall continue to get the same salary that he is getting. Otherwise that would be a breach of the principle that pensions are regulated by the salary and the number of years that a man has put in. We have not yet come to any conclusion as to whether the Federal Court Judges should continue to get the same salary that they are getting when they are appointed to the Supreme Court. That matter, as I said, has not been decided and I doubt very much (I may say in anticipation) whether it will be possible for the Drafting Committee to advocate any such distinction as to salary between existing judges and new judges. The amendment, therefore, is premature. If the House accepts the proposition for which my honourable Friend Pandit Kunzru is contending that the Federal Court Judges should continue to get the same salary, then probably there might be some reason in suggesting this sort of amendment that he has moved. At the present moment, I submit it is quite unnecessary and it is impossible to accept it because it seeks to establish a pension on the basis that the existing salary will be continued, which is a proposition not yet accepted by the House.

        Shri R.K. Sidhva : The Honourable Dr. Ambedkar has not answered my point as to how the Parliament is competent to give a furnished house to the Chief Justice.

        The Honourable Dr. B.R. Ambedkar :We are no rejecting it, Nothing is said about the furnished house. We shall discuss that.

        Mr. Vice-President (Shri V.T. Krishnamachari) : The question is :

        "That in amendment No. 2 of List I (First Week( of Amendments to Amendments, after clause (2) of the proposed article 104, the following new proviso be added :

        "Provided that no law made under this article by Parliament shall provide that the pension allowable to a judge of Supreme Court under that law shall be less than that which would have been admissible to him if he had been governed by the provisions which immediately before the commencement of this Constitution were applicable to the Judges of the Federal Court."
 


The amendment was negatived.

        Mr. Vice-President : The question is.

        That for article 104, the following article be substituted :-

        Salaries etc. "(1) There shall be paid to the judges of the Supreme Court such
        of Judges            salaries  as are specified in the Second Schedule.

        (2) Every judge shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pension as may from time to tome be determined by or under law made by Parliament, and until so determined to such privileges, allowances and rights as are specified in the Second Schedule :

        Provided that neither the privileges nor the allowances of a judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment."
 
 

The motion was adopted.

Article 104, as amended, was added to the Constitution
___________

New Article 148-A

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

        That after article 148, the following new article be inserted :-

        "148A.(1) Notwithstanding anything contained in article 148 of this Constitution.
Abolition or creation             Parliament may by law provide for the abolition of the Legislative Council of a State having
of Legislative Councils      such a Council or for the creation of such a Council in a State having no such  Council, if the
in States.                     Legislative Assembly of the State  passes a  resolution to that effect by a majority  of the total membership
of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting.
 
        (2) Any law referred to in clause (1) of this article shall contain such provisions for the amendment of this Constitution as may be necessary to give effect to the provisions of the law and may also contain such incidental and consequential provisions as Parliament may deem necessary.

        (3) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purpose of article 304 thereof."

        As honourable Members will see, this new article 148-A provides for two contingencies : (I) for the abolition o the Second Chamber in those provinces which will have a Second Chamber at the commencement of the Constitution; and (ii) for the creation of a Legislative Council in a province which at the commencement of the Constitution has decided not to have a Legislative Council, but may subsequently decide to have one.

        The provisions of this article follow very closely the provisions contained in the Government of India Act, section 60, for the cretin of the Legislative Council and section 308 which provides for the abolition. The procedure adopted here for the creation and abolition is that the matter is really left with the Lower Chamber, which by a resolution may recommend either of the two courses that it may decide upon. In order to facilitate any change made either in the abolition of the Second Chamber or in the creation of a Second Chamber, provision is made that such a law shall not be deemed to be an amendment of the Constitution, in order to obviate the difficult procedure which has been provided in the Draft Constitution for the amendment of the Constitution.

        I commend this article to the House.

        Prof. Shibban Lal Saksena : Sir, I beg to move :

        "That in amendment No. 4 of List I (First Week) of Amendments to Amendments in clause (1) of the proposed new article 148-A------

        (i) the words "Notwithstanding anything contained in article 148 of this Constitution" be deleted;

         (ii) to clause (1), the following proviso be added :-

          "Provided that no such resolution shall be considered by the Legislative Assembly in any State nor corresponding Bill shall be discussed in Parliament unless at least 14 days notice of the same has been given."

        Sir, I was one of those who was opposed to the formation of Upper Chambers altogether. But, the principle has been accepted by this House when it passed article 148 and we have provided for Second Chambers in some provinces - Madras, West Bengal, etc. Therefore, I welcome this provision which enables the Assemblies to abolish those Chambers. In my amendment, I have only provided that once a resolution under this article is brought before the Assemblies, due notice of it must be given. I have therefore said that no such resolution shall be considered by the Legislative Assembly in any State, nor any corresponding Bill shall be discussed in Parliament unless at least fourteen days' notice of the same has been given. It is quite possible that a resolution may be passed without adequate notice. It may be within the knowledge of Members that some times in Parliament, the order papers are received only a day in advance and it is quite possible that unless a fortnight's notice of such a vital amendment is given, some Members may be absent during its consideration for want of notice. I therefore think that it would be better if this principle is accepted; no harm would be done thereby. In fact, I would have wished that we had not made any provision at all for Second Chambers and left it entirely to the Assemblies to decided whether they wanted to have one. What we have done is, we have provided for Second Chambers and also for their abolition.

        I commend my amendment for acceptance by the House.

        Shri H.V. Kamath : Mr. Vice-President, I beg to move :

        "That in amendment No. 4 of List I (First Week) of Amendments to Amendments in clause (1) of the proposed new article 148-A the words or for the creation of such a Council in a State having no such Council' be deleted."

        Sir, the new article which by way of an amendment has been just not brought before the House by Dr. Ambedkar, deals with the vexed question of second chambers. It provides that the future Parliaments may by law provide for the abolition of the Council in a State which has such a Council or provide for the creation of the Second Chamber where there is none.

        The House will recollect, that we have adopted article 148, I believe some time during last year in the November or January session of the Assembly, and after the adoption of this article by the House, the representative of a province which happily, voted against a Second Chamber.
 


 (At this stage, Mr. President resumed the chair)

I believe that of all the provinces in our country, only three, namely, Central Provinces and Berar, Assam and Orissa have voted against the creation of a second chamber in their provinces. The other provinces, I think, have asked for a second chamber. Now, this article which has been brought before us by Dr. Ambedkar seeks to provide for the creation of a second chamber where there is none, of course, if the Assembly of that State decided upon a course. I personally, feel that to this extent this is a reactionary, a retrograde proposal. To provide for the creation of a second chamber where there is none already seems to me to be by no means a progressive measure. We are proud of asserting that ours is a democratic progressive State. We are now living in the twentieth century when powers of second chambers have been drastically curtailed, where they have not been completely abolished. Even in Great Britain, from whose Constitution we have borrowed so much, the wings of the house of Lords have been clipped to a considerable degree, and the House of Lords today is not what it was twenty or thirty years ago. He, Dr. Ambedkar wants this House to pass this article which provides that the future Parliament may provide for the creation of a second chamber where there is none. I agree with him in so far as Parliament is empowered to abolish the second chamber where there is already one; but I cannot subscribe to this proposal of his that where there is no second chamber, you might as well create one.

        What after all are the arguments for the creation of second chambers? There are three or four main reasons adduced by the protoganists of second chambers. Firstly, there is the force of tradition in some countries. Happily for our country we have no such tradition. The British, for their own convenience perhaps, introduced this system of second chambers and I hope with the quittal of the British this system also will leave our shores. There is no tradition so far as our country is concerned. There is another reason given i.e. for the adequate representation of interests no sufficiently represented in the Lower House. In this Constitution we have already dispensed with any special representation in the Lower House which obtained in the Government of India Act and earlier enactments. We have provided for a uniform mode of representation and from this new standpoint there is no reason whatever for the creation of second chambers. Another reason given is that it is a check on hasty legislation. Do we really want checks now-a-days at all ? After all we are well aware that Legislation in the modern world is a very cumbrous and elaborate affair-in a democratic world I mean-and a very dilatory process at times. Every Bill has got to pass through various stages, the introductory stage, select committee stage, second reading, third reading, etc. and so many months lapse. We have already experience in this House sitting as Parliament that some Bills have taken as much as more than a year for their enactment and during this period which is prolonged to one year or so, the public at large-not only the House-have got adequate time at their disposal to reflect on the Bill. So there is no necessity for any check on hasty legislation because in a democracy legislation is always well thought out and deliberated upon, and has to pass through many stages before a Bill becomes law. Then there is also a fourth argument viz. it is a sort of protective armour for the vested interests. We certainly are no going to allow vested interests to influence our economy and to that extent I feel the creation of second chambers is a retrograde proposal. In short, I feel that the second chamber is either superfluous or pernicious as the French politician-philosopher Abbe Sieyes once observed : he said that "if the second chamber agrees with the first chamber it is superfluous and if it disagrees with the Lower House, then it is pernicious." In either case to my mind there is no case whatever for the creation of second chambers and therefore, I plead with this House that this part of the proposed article 148-A which provides for the creation of second chamber in a State where there is none may be deleted and the article without that portion be adopted. I move therefore Amendment No. 86 of List III (First Week) and I hope that the House will see its way to accepting the same.

        Shri R.K. Sidhva : Mr. President, the amendment in my name reds thus :

        "That in amendment No. 4 of List I (First Week) of Amendments to Amendments, in clause (1) of the proposed new article 148-A, the words `of the total membership of the Assembly and by a majority of not less than two-thirds' be deleted."

        The object of this amendment is to delete the words in the original article as proposed by Dr. Ambedkar to the effect "of the total membership of the Assembly and by a majority of not less than two-thirds". My amendment seeks to say that if a bare majority states that there shall not be a second chamber it shall be accepted. When we passed this article 148 the decision was taken in a rather peculiar manner. It was left to the group or each province; but whatever that may be the decision has been taken and I am glad therefore that the new article has been added with the object that if the Parliament decides that a second chamber is not wanted, they need not operate upon article 148 which we have passed.

        In the country it is the opinion that in the provinces there should not be second chamber and I am very glad that the Drafting Committee has taken note of it, but I am also sorry that they have not got courage to scrap article 148. If they had done so, it would have met the wishes of every one. The second chamber is again a great addition to our finances and it is not in the interests of the country at the present stage to add to our finances which are in a peculiar__I do not use any other word-condition today. Therefore while welcoming this amendment I do not want to fetter the Parliament by two-thirds of the members of the Assembly present and voting or by majority of the total membership. If the members present in the House even by a majority are against the second chamber it will be nullified by the total number of members of the House. I therefore contend that if it is the desire-and it is very clear from this additional article that has been brought by the Drafting Committee that then own views are changed because they are also flabbergasted as to what should be the composition of the second chamber and they could not come to any decision and so they felt. Throw it to Parliament and let it decide that it likes. All right, that is the lesser of the two evils. I am prepared to accept it because the House has accepted 148 and we do not want to change the article already passed by the House. It will be a bad precedent. But I do not want them to fetter the Parliament. If the House takes interest, six hundred members will e [present; let them decide. Why insist upon two-thirds majority of the total members? It is very clear that you are not now as strong as you were before for the second chamber. I can understand second chamber for the Centre. It is very useful and needed. I am in favour of it because all-India Bills will be passed and a second chamber is needed; but in the provinces it is an old anachronism and I feel that it should not exist and therefore my amendment seeks that by a bare majority of the House desires that the second chamber should be there, it should not be there, and it should not be two-thirds majority of the total number of members. With these words I move the amendment.

        Sardar Hukam Singh (East Punjab : Sikh) : Mr. President, Sir I beg to move :

        "That in amendment No. 4 of List I (First Week) of Amendments to Amendments, for clause (3) of the proposed new article 148-A, be deleted."

        Sir, I could not understand why this clause was being added. The explanation that has been given now, that it is to facilitate the procedure that might be required for abolishing or creating Second Chambers, has not convinced me of the utility of this clause. Already provision was made in clause (2) of article 304 that :

        "Notwithstanding anything in the last preceding clause, an amendment of the Constitution seeking to make any change in the provisions of this Constitution relating to the method of choosing a Governor or the number of Houses of the Legislature in any State for the time being specified in Para I of the First Schedule may be initiated by the introduction and so on."

        In the first instance, I do not see that there is much difference between this provision in clause (2) of article 304, a Bill was to be initiated by the Legislature of the State, and then a majority of total membership was required, and then ratification by Parliament by a majority of total membership was needed. What is desired now is that a resolution instead of a Bill has to be passed by the State Legislature and it should have the majority of total membership, and then again, "law of Parliament" by a bare majority instead of "ratification by a majority of total membership". That is the difference which is now sought to be introduced.

        Now, with this clause, we are, I must say, opening out large discretion for the Parliament or for the party is power to use this procedure capriciously, and at any time that it likes. Why should this be left to the whims and caprices of the party that whenever it sees that the Legislative Assembly is suitable to it, it might eliminate or abolish the Second Chamber, and whenever it sees that it is not desired, or when it sees that the Legislative Assembly is not prepared to co-operate with it, then it might create a second chamber so easily as is sought to be done now by a bare majority? Even if the procedure now laid down in the fresh article 148-A be taken up, that the Bill should be passed by a bare majority, even, then could be a substitute for clause (2) of article 304, and there is no need for putting this clause(3) that it shall not be considered as an amendment of the Constitution. In my opinion, we should not allow these changes to be made so easily. Once a second chamber is created, it should not be easily abolished. Therefore, my amendment before the House is that clause (3) of this article be omitted, that it should not be left to the discretion or caprice of Parliament to create or abolish it at any time that it likes, this part of the Constitution.

        Dr. P.S Deshmukh (C.P. & Berar : General) : Mr. President, Sir, I support the point of view that has been urged by several Members before me, that the provision for second chambers in the States is completely out of date and an anachronism. However, we have to take notice of the fact that certain States have already been given second chambers. Now the question is whether we should legislate and have an article in the Constitution for either the abolition or the creation or introduction of second chambers in the remaining States also. As has been pointed out by Sardar Hukam Singh just now there was already contemplated a provision in the Draft-article 304 clause (2) by which it was possible to consider this question at a later stage, both by the Legislative Assemblies of the States and then after it was considered by them a recommendation was to come before Parliament. Now, in addition to the various reasons that have already been advanced by my Friend Mr. Kamath, Mr. Sidhva and Sardar Hukam Singh, I would only like to say that there are a few additional reasons why this article should not be incorporated in the present Constitution, and one of the principle reasons which I want to advance is that after all, the provision of second chambers was intended for the safeguarding of vested interests. But while this Constitution is being fashioned here, we are not sitting still. We are as a Government pursuing policies and giving effect to our intentions in various ways. The rulers of Indian States have been removed, zamindaries and jagirdaries are on their way to dissolution, and other vested interests are also rapidly being put into the melting pot. The second chambers were intended for some such so-called stable elements in society-some vested interests-which it was considered would work as a salutary check against radical changes in the Government or the policies of the State which would be more harmful and less beneficial to the State as a whole. But my contention is that there is no such person now who will adequately represent this orthodox or so-called stable elements in the society, these vested interests, which would contribute to the stability of the State. That being so, it is not surprising that when we discussed who should compose the second chamber, who should sit as representatives in these second chambers, we were really at our wits end, and all that we could think of were representatives elected by the various local bodies and Assemblies to be given seats in the second chambers. The municipalities, Local Boards, Gram Panchayats, etc., it was proposed should elect on their own behalf, certain representatives and they it was thought, will be proper members to sit in the second chambers,. As a matter of fact, we have not, we will progressively have, none of those special interests to sit in the second chambers, as could be deemed proper and desirable. That being so, I think the proposed provisions in this respect in the present Constitution and the policy that we are pursuing should be considered a little more carefully, and I feel that that consideration will lead the House to the conclusion that there is no room anywhere for second chambers. If this is is no acceptable, then I would make a second suggestion and that is that let the evil, be allowed to rest where it is, and it should not be allowed to spread and enlarge, and from that point of view, I support the amendment moved by Mr. Kamath, that there should be no provision for the creation of a second chamber where it does not at present exist. Let there be a provision for the abolition of second chambers, but there should not be any provision for their creation. I hope this point of view would be acceptable because otherwise we would probably be accused of taking away by one hand the powers that we are anxious to give to the masses by the other. It may be argued that the second chambers have not proved detrimental to the cause of the progress of the people so far and since we have had some experience of the second chamber existing in the last twelve years nobody has very seriously complained against them. But I do not think that would be the situation when we work the new Constitution. I am sure every time they will be used for various purposes that will impede the progress of the nation. The one fact which will make this difference is that we are introducing adult franchise. The composition of our lower House hereafter is going to be totally and radically different from what we have at the present day and the policy that would be pursued by these representatives sitting in the Legislative Assembly will be considered harmful by a certain set of people. If this set of people happen to be in the second chambers there will be a lot of impediment, lot of harm to the interests of the masses as a whole. I hope therefore that in any case the evil will not be permitted to enlarge itself and that the provision should be confined only to the abolition of those second chambers which have already been provided for.
 Shri Jaspat Roy Kapoor (United Provinces : General) : Mr. President, Sir, I would like to accord my support to the adoption of article 148-A. I thought the adoption of this article would have gone a long way to satisfy those of us who were opposed to the introduction of Upper Houses in the provincial Legislatures. But I am surprised to find today that such friends of ours are now opposed to the adoption of this article. We have already adopted article 148 laying down that in the provinces which are mentioned therein there shall be a second chamber. Article 148-A gives even to such provinces the liberty at any subsequent date to abolish those chambers I they consider it necessary and desirable in the light of the experience which they may gain in course of time. This article should, therefore, have been welcome to those friends of ours who were opposed to the introduction of Upper Houses in those provinces which have been mentioned in article 148 as providing them another opportunity to move for their abolition in the Legislative Assembly concerned. This article is good and useful even for those provinces who have not so far decided to have an upper chamber. If subsequently, in the light of the experience gained, they consider it necessary and advisable to have for their provinces Upper Houses this article will enable them to have an upper chamber too and come in line with the other provinces which have decided to have an upper chamber. Therefore, from every point of view the incorporation of this article is a useful one. But I do wish that it were possible for the Honourable Dr. Ambedkar to accept at least one part of the amendment which has been moved by my Friend Prof. Shibban Lal Saksena. In part 2 of his amendment (No. 85) he desires that a proviso be added to this article which runs thus :

        "Provided that no such resolution shall be considered by the Legislative Assembly in any State nor a corresponding Bill shall be discussed in Parliament unless at least 14 days' notice of the same has been given."

        What Mr. Shibban Lal Saksena sugests is nothing very novel. We have already, while dealing with several previous articles, accepted the procedures suggested in this part of his amendment. The resolution relating to the abolition or creation of an Upper House in a particular State is obviously in the nature of an extraordinary resolution and as such it is necessary that such a resolution before being made in the Legislature must be given due notice of. In this connection I would like to draw the attention of my honourable Friend Dr. Ambedkar to article 50 which we have adopted and which deals with the impeachment of the President. With regard to that, we have laid it down that a resolution whereby the President is to be impeached must be given notice of at least fourteen days before the date on which such a resolution can be discussed in Parliament. Article 50(2) says :

        "No such charge shall be preferred unless the proposal to prefer such charge is contained in a resolution which has been moved after at least 14 days' notice in writing etc."

        Similarly, in article 74 we have laid down a similar condition with regard to the moving of a resolution relating to the removal of the Deputy Chairman of the Council of States. Yet again, under article 77 which deals with the removal of the Speaker or the Deputy Speaker of the House of the People it has been laid down that at a resolution demanding the removal of the Speaker or the Deputy Speaker must be given notice of at least fourteen days in advance of the day on which the resolution would be discussed. There are other similar provisions in the Constitution which we have already adopted wherein we have adopted the procedure contained in part (2) of Mr. Shibban Lal Saksena's amendment (No. 85). It may be said that it is not necessary to provide such a safeguard in this article because even if a resolution to this effect is passed by the Legislature of a State it will have absolutely no effect unless and until legislation to that effect is enacted by Parliament. True, it is so. But then why should we leave a loophole like this? If by giving only two or three days' notice as an ordinary resolution under the ordinary procedure governing the business of the Assembly of any State such a resolution dealing with this subject on which opinion is considerably divided is brought up and passed by a snatch vote at a time when the House is thinly attended, will it not lead to great squabbles between members of that Legislature? The only remedy open to the losing party will be to approach the Parliament and represent that the recommendation of the Assembly should not be accepted and that no Bill to that effect should be proceeded with in Parliament. Well, Sir, we should not leave such a loophole. We should not fail to make a provision like the one which has been suggested by Shri Shibban Lal Saksena lest we throw open a ground for squabbles and quarrels between the members of any particular Legislative Assembly.

        There is no point of principle involved herein, to which my honourable Friend Dr. Ambedkar, should object. I consider that it is necessary and desirable that the suggestion contained in part 2 of Shri Shibban Lal Saksena's amendment should be accepted.

        Sri Brajeshwar Prasad : Mr. President, Sir, I rise to support the new article 148-A as moved by Dr. Ambedkar. But I am not in favour of the provision that Parliament may by law provide or the abolition of the Legislative Council where it has such a Council. It is all right to vest it with the power to create a Council in a State where there is no such Council. I do not think that the establishment of a second chamber is necessarily a retrograde step. It all depends on what kind of power you are going to vest in this body. It also all depends on what kind of members you are going to bring into the Legislative Council. Personally, I feel, Sir, that having due regard to the political facts of our life, realising fully well that for the first time in our political history we are going to have an adult franchise which is a leap in the dark, and which I consider to be a complete subversion of all that is good and noble in Indian life, and which I consider to be dangerous to the stability of the State. I consider the establishment of a second chamber as desirable and useful for all purposes.

        Sir, it is utter simplification of politics to say that if the second chamber agrees with the Lower House, it is superfluous : if it disagrees then it is pernicious. These two words `superfluous' and "pernicious" do not exhaust the entire universe of discourse in politics. There are other shades which must be kept in view.

        Sir, I shall speak more when I come to article 150.

        The Honourable Dr. B.R. Ambedkar : I do not think any reply is called for.

        Mr. President : I shall now put the amendments to the vote. I shall take up Prof. Saksena's amendment first and I shall put I in two parts.

        The question is :

        "That in amendment No. 4 of List I (First Week) of Amendments to Amendments in clause (1) of the proposed new article 148-A---

         (i) the words `Notwithstanding anything contained in article 148 of this Constitution be deleted."
 
 

The amendment was negatived.


 


        Mr. President : The question is :

        "To clause (1). the following proviso be added :-

         "Provided that no such resolution shall be considered by the Legislative Assembly in any State nor a corresponding Bill shall be discussed in Parliament unless at least 14 days' notice of the same has been given."
 


The amendment was negatived.


 



        Mr. President : The question is :

        "That in amendment No. 4 of List I (First Week) of Amendments to Amendments, in clause (1) of the proposed new article 148-A the words `or for the creation of such a Council in a State having no such Council' be deleted."
 


The amendment was negatived.


 


        Shri R.K. Sidhva : Sir, I beg leave to withdraw my amendment :
 


 (The amendment was, by leave of the Assembly, withdrawn)


 


       Mr. President :The question is :

        "That in amendment No. 4 of List I (First Week) of Amendments to Amendments clause (3) of the proposed new article 148-A be deleted."
 


The amendment was negatived.


 


        Mr. President : The question is :

        "That new article 148-A be adopted."
 
 

The motion was adopted.

New Article 148-A was added to the Constitution

 ___________

Article 150


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

        That for article 150, the following be substituted :-

        "150 (1) The total number of members in the Legislative Council

 "Composition of the        of a State having such a Council shall not exceed
 Legislative Councils"        twenty-five per cent of the  total number of  members in the Assembly of that State: Provided that the total number of members in the Legislative Council of a State shall in no case be less than forty.

        (2) The allocation of seas in the Legislative Council of a State, the manner of choosing persons to fill those seats, the qualifications to be possessed for being so chosen and the qualifications entitling persons to vote in the choice of any such persons shall be such as Parliament may by law prescribe."

        The original article was modeled in part on article 60 of the first Draft of the Drafting Committee. Now, the House will remember that that article 60 of the original Draft related to the composition the of the Upper Chamber at the Centre. For reasons, into which I need not go at the present stage, the House did not accept the principle embodied in the old article 60. That being so, the Drafting Committee felt that it would not be consistent to retain a principle which has already been abandoned in the composition of the upper chamber for the Provinces. That having been the resulting position, the Drafting Committee was presented with a problem to suggest an alternative. Now, I must confess, that the Drafting Committee could not come to any definite conclusion as to the composition of the upper chamber. Consequently they decided -you might say that they merely decided to postpone the difficulty-to leave the matter to Parliament. At the present moment I do not think that the Drafting Committee could suggest any definite proposal for the adoption of the House, and therefore they have adopted what might be called the line of least resistance in proposing sub-clause (2) of article 150. That, as I said, also creates an anomaly, namely, that the Constitution prescribes that certain provinces shall have a second chamber, as is done in article 148-A, but leaves the matter of determining the composition of the second chamber to Parliament.

        These are, of course, anomalies. For the moment there is no method of resolving those anomalies, and I therefore request the House to accept, for the present, the proposals of the Drafting Committee as embodied in article 150 which I have moved.

        [Amendment No. 90 of List III (First Week) was not moved]

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

        "That in amendment No. 5 of List I (First Week) of Amendments to Amendments in clause (2) of the proposed article 150, for the words the qualifications to be possessed for being chosen' the words qualifications for membership of the Council' be substituted."

        The House will see that on a previous occasion with regard to the election of members to the legislature of a State they adopted various articles in the relevant parts. I would invite the attention of the house to article 167, for instance, which lays down the disqualifications for membership of the State Assembly in addition to the qualifications which have gone before. In providing for representation in the upper chamber and election of members to this Council I do not see why this House should not with equal validity, equal reason and equal force lay down not merely the qualifications of members to be chosen to the upper chamber but also what the disqualifications should be. Article 167 lays down how under various circumstances a member is to be disqualfied for being chosen as or being a member of the Assembly or the Council of a State. Therefore, I do not see any reason why the same thing should not be explicitly stated in article 150 moved by Dr. Ambedkar



*[]Translation of Hindustani Speech