CONSTITUENT ASSEMBLY OF INDIA - VOLUME IX


Friday, the 9th September 1949

"Nothing in clause (1) of this article shall prevent the Union from imposing or authorising the imposition of any tax to such extent, if any, as Parliament may by law provide in respect of a trade or business of any kind carried on by, or on behalf of, the Government of a State or any operations or connected therewith, or any property used or occupied for the purposes thereof, or any income accruing or arising therefrom."

The Parliament will take note of the progressive tendency of the particular times and may at once declare accordingly. it might not have been the ordinary function of Government before. Now it may become an ordinary function. There will be sufficient elasticity in clause (3) to enable the Government to exempt from taxation particular trades or industries which are started as public utility services or declare them as regular State industries. Nobody can question a law made, by Parliament because the Parliament has stated that a particular industry is an ordinary functions of the State whereas according to the nations of an individual economist A or B it is not so ordinary function of a Government Parliament will lay down the law of the land and it will be the sole arbiter of the question as to whether it is an ordinary function of Government or not.

Therefore having regard :

(a) to the plenary power of Parliament to exempt any particular industries, and particular business from the operation of the tax provision.

(b) having regard to the fact that it is not obligatory on Parliament to levy any tax.

(c) that the very conception of State industry may change with the further evolution of the State and changing times, and

(d) to the inter-connection between one State and another.

it will be very difficult to differentiate between particular States, between States which have been working certain industries and other States. But as a matter of administrative policy and as a matter of Parliamentary legislation it may exempt States like Mysore and Travancore which have been carrying on trade and business for a very long time and such industries to-day are as solid and stable footing so as to warrant an exemption, but on the other hand to lay down a general principle of law that even at the present day before the provinces aria on their feet every trade or business is exempt from taxation will lead to wild-goose schemes being started by various provinces. They may not take into account the general interests of the trade and industry in the whole country. They may not have regard to the difference between one kind of industry and another. Under those circumstances the particular provision which has been inserted by Dr. Ambedkar is a very salutary one and is consistent with the most advanced principles of democratic and federal policy in all the countries, With these words I support Dr. Ambedkar's amendment.

The Honourable Dr. John Matthai (United Provinces: General): Sir, I do not propose to go into the details of the various suggestions that have been made in the course of the debate this morning on this subject. But there are certain general observations that I would like to make and which I hope would allay the fears that have been expressed by honourable Members who have taken part in the discussion.

CONSTITUENT ASSEMBELY OF INDIA - VOLUME IX

Saturday, the 10th September 1949

Another consideration in that regard is article 13, sub-clause (f) of clause (1) which confers the right to acquire, hold and dispose of property. There is, of course, a proviso to that, proviso No. (5); "Nothing in sub-clauses (d),(e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public, etc., etc.". Bearing these two articles in mind, I have suggested this amendment to clause (2) of the

proposed draft article 24. That is to say, I want to provide specifically that even in the case of industrial property including any interest in or in any company owning any commercial or industrial undertaking, the principles and the manner of payment of compensation shall not be justiciable. That would approximate to the principle of non-discrimination as between industrial property, and landed property with regard to which certain provinces have already taken action. I have provided for only the amount of compensation being made justiciable, because the Prime Minister stated in his speech today that the few have also to be protected, and therefore I feet that the only safeguard that they can,have is as regards the amount of compensation. On no other ground can they go to the court and question the principles or the manner of payment of compensation.

Lastly, I would refer to the Government of India Act mentioned in clause (6) of the proposed draft article 24. Section 299 of the Government of India Act lays down in sub-section. (3) that Bills passed by the legislature of a State need not be submitted to the Governor-General for his assent. I fear that the power conferred on the President to give or withhold his assent might lead to serious complications in future and the only way to obviate any conflict between the States and the Union is to confer sovereign powers upon the legislature to acquire any property which is within the purview of the State.

Sir, I commend my various amendments to the House for its serious and mature consideration.

Mr. President: Mr. Brajeshwar Prasad, you have several amendments in your name; but it does not appear how they will fit in with the present discussion and the present amendments. Some of them are with reference to the present amendment which has been moved by the Prime Minister. Others referto the previous amendments which have not been moved. Those which refer to the previous amendments, I rule out. There is thus one amendment No. 387 where you want to substitute "President" for the word "law". You have already spoken upon this subject at length and I take it as moved.

"That in amendment No. 369 of List VII (Seventh Week), in clause (1) of the proposed article 24, for the word 'law', the words 'the President' be substituted."

Prof. K. T. Shah (Bihar: General) : Mr. President, I have also got several amendments. May I give you a list of the numbers ?

Mr.President : I have got a list.

Prof. K. T. Shah: These amendments are taking the place of those which I have submitted to the original article and therefore, those are not to be moved.

My first amendment is number 388

"That in amendment No. 369 of List VII (Seventh Week), at the end of clause (1) of the proposed article 24 the following proviso be added :

'Provided that no rights of absolute property shall be allowed to or recognised in any individual, partnership firm, or joint stock company in any form of natural wealth, such as land, forests, mines and minerals, waters of rivers, lakes, or seas surrounding the coasts ,of the, Union; and that ultimate ownership in these forms of natural wealth shall always be deemed to vest in and belong to the people of India collectively; and that they shall be owned, worked, managed or developed by collective enterprise only, eliminating altogether the profit motive from all such enterprise."'

The next one is amendment No. 394.

"That in amendment No. 369 of List VII (Seventh Week), in clause (2) of the proposed article 24,-

(i) for the words 'No property' the words 'Any property' be substituted; (ii) for the words 'shall be taken' the words 'may be taken' be substituted; (iii) for the words 'unless the law provides for compensation' the words 'subject to such compensation, if any' be substituted; (iv) for the words 'acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be be determined the words 'acquired as may be determined by the principles laid down in the law for

calculating the compensation' be substituted;"

If you will permit me, Sir, I may read the amended clause which would be clear instead of in this disjointed manner. The amended clause will read thus :-

"Any property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, may be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition subject to such compensation, if any, for the property taken possession of or acquired as may be determined by the principles laid down in the law for calculating the compensation."

Then, Sir,

"(v) the following be added at the end:

'Provided that no compensation whatsoever shall be payable in respect of

(a) any public utility, social service, or civic amenity which has been owned, work managed or controlled, by any individual partnership firm, or joint stock, company for more than 20 years continuously immediately before the- day this Constitution comes into force. "

I have added the word "immediately". I have an amendment No.490 in this respect. That means, not at any time, but immediately before.Then, Sir,

"(b) any agricultural land forming part of the proprietary of any land-owner, howsoever described, which has remained uncultivated or undeveloped continuously for ten years or more immediately before the day this Constitution comes into force;

" (c) any urban land, forming part of the proprietary of any individual partnership firm or joint stock company, which has remained unbuilt upon or undeveloped in any way for fifteen years or more continuously immediately before the day this Constitution comes into effect;

" (d) any agricultural land forming part of the proprietary of any landowner, howsoever described, which has remained in the ownership or possession of the same individual or his family for more than 25 years continuously immediately before the day when this Constitution comes into operation;.

" (e) any mine, forest or mining or forest concession which has remained in the ownership or possession of the same individual, partnership firm or joint stock company for at least twenty years immediately before the day this Constitution comes into operation;

"(f) any share, stock, bond, debenture or mortgage on any joint stock company, owning, working, managing or controlling any industrial or commercial undertaking which has been owned, worked, controlled or managed by the same joint stock company, or any combination or amalgamation of it with.any other company for more than thirty years continuously immediately before the day this Constitution comes into operation,

or

which has paid in the course of its operations and existence in the a the shape of dividend or interests, a sum equal to or exceeding twice up value of its shares, stock, bonds or debentures;

or

whose total assets (not including goodwill) at the time of the acquisition by the State of any such undertaking are less in value than its total liabilities."

The next is No. 410 which has already been moved by Mr. Kamath and I do not wish to take the time of the House over that. Next is No. 419. I move

"That in amendment No. 369 of List VII (Seventh Week), in clause (4) of the proposed article 24,-

(i) for the words 'If any' the word 'Any' be substituted,

(ii) for the words 'has, after it has been 'the words 'may be be substituted;

(iii) the word, 'received the assent of the President,' be deleted; and

(iv) for the words 'assented to' the word 'passed' be substituted."

Sir, I move :

'That in amendment No. 369 of List VIl (Seventh Week), in clause (6) of the article 24, for the words 'not more than one year' the words 'at any time' be substituted.'

I also move:

'That in amendment No. 369 of List VII (Seventh Week), in clause (6) of the proposed article 24, for the words beginning with 'may within three months and ending with 'Government of India Act, 1935', the following, be substituted :

'shall not be called in question in

any court on the ground that it contravenes any provision of this article.,,

Sir, I now speak to all the amendments, which, taken together, make a constructive proposition, and an alternative to the policy laid down in the amendment moved by the Honourable the Prime Minister. The Prime Minister 'has advanced the proposition that under this Constitution, there shall be, no expropriation without.,compensation. I am afraid I am unable to share this view, if'it is to apply to all property indiscriminately and without modification. For not all property is such that the present holder or owner of it can claim, in justice, in ethics, any right to be compensated since the origin of property is not aways unquestionable.

A great French thinker asked the question 'What is property' and he answered it by saying 'it is theft'. I am afraid 'theft' perhaps is very often too mild a Word because much of the property has been acquired-if you go into the origins of this-by force, fraud and violence which under any system of ethics can hardly be justified. If you are going to seek to compensate those who have acquired property, no matter how long since, by such means as force or fraud or violence .or theft, I am afraid you would not be acting up to the ethical standards which are supposed to animate this Constitution.

Mention has been made by one of the previous speakers in the course of this debate, of slavery the right to own human beings, prevailing in the Southern States of the United States which was abolished at the cost of a civil war. That form of property had to be abolished, and to the best of my recollection, without any compensation. True, compensation was given for the slave-holding owners in the British West Indies Colonies by the British Government when they decided without any violence to abolish slavery. But the ethical proposition does not become objectionable because in the case of the United States, and many other countries instances can be quoted-where nefarious forms of property have not been compensated for by those who expropriated the owners of such properties.

In this case I suggest that there is a certain divergence between the sense of economics and of ethics. Property is not an ethical institution, I venture to submit. It is an economic institution with close connection with ethics. I may say the economics has suffered because of this divergence from ethics, and holding property sacrosanct and demanding compensation even if the property is acquired by force or fraud or is used or abused or even unused.

At a later stage I shall come