Title: Article 148-A
Volume: Volume IX (30th July to 18th September 1949)
Date: 30/07/1949
Participants: Dr. B. R. Ambedkar, Shri Shibban Lall
Saksena, Mr. H. V. Kamath, Mr. R. K. Sidhwa, Sardar Hukum Singh, Dr. P. S. Deshmukh, Shri Jaspat Roy Kapoor, Mr.
Brajeshwar Prasad, Dr. B. R. Ambedkar, The Chairman (Dr. Rajendra Prasad)
Constituent
Assembly OF INDIA Debates (Proceedings) - VOLUME IX
Saturday, the 30th July 1949
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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.
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TAKING THE PLEDGE AND SIGNING THE
REGISTER
The following Member took the Pledge and signed the Register:-
Maulana Mohd. Hifzur Rahman (United Provinces: Muslim).
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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.
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DRAFT CONSTITUTION-(Contd.)
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 a
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. The 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’ 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, 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 very 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 creation 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 consult 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 Chairman 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 reasons
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-a-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 provision could have at
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 : General) : 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 an 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 to the 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 in the Secretariat. I
know that in our Parliament today we have got a staff 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 Amendment No. 42 of List II, in clauses (2) and (3) of the proposed new article 79-A, before the word ‘recruitment’ the word ‘strength’ be inserted.”
The amendment was negatived.
Mr. President : The question is :
“That in Amendment No. 42 of List II, in clauses (2) and (3) of the proposed new article 79-A, before the word ‘recruitment’ the word ‘strength’ be inserted.”
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, 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
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 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 of 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 practice 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 T. 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 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 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 not rejecting it. Nothing is
said about the furnished house. We shall discuss that.
Mr. Vice-President (Shri T . 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. of Judges
|
”(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 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 :-
|
Abolition
or creation of Legislative councils in states.
|
“148A.(1)
Notwithstanding anything contained in article 148 of this Constitution,
Parliament may by law provide for the abolition of the Legislative Council of
a State having such a Council or for the creation of such a Council in a
State having no such Council, if the 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 of 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 creation 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 a 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 decide 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 representatives of various
provinces were called upon to meet separately and decide for themselves whether
their province will have a second chamber or not. I now stand before the House
as a 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 such 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. Here, 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
reads 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 to decide.The House
as a whole did not decidefor 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 what 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 be
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 if 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 Part I of the First Schedule may be
initiated by the introduction of a Bill for the purpose.”
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 and the one the one proposed, except that in 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 wist 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 not 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 suggests 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.
Shri 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 for 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, realizing 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 :-
|
“Composition
of the Legislative Councils”
|
”150.
(1) The total number of members in the Legislative Council of a State having
such a Council shall not exceed twenty-five percent 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 seats 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 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 and
disqualifications 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 disqualified 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.
There
is one other point about the article and that is this. The new amendment lays
down that the strength of the Council shall not exceed one-fourth or 25 per
cent of the total number of members in the Lower House. It also lays down
further in a proviso “Provided that the total number of members in a
Legislative Council of a State shall in no case be less than forty.” How these
two can be reconciled in particular cases passes my understanding. For instance
we have adopted article 148..........
The Honourable Dr. B. R. Ambedkar: I would ask the honourable Member to
read article 167, again.
Shri H. V. Kamath : I am talking of the next point.
The Honourable Dr. B. R. Ambedkar : What about the first point. Do you
favour it?
Shri H. V. Kamath: I do not favour it. Dr. Ambedkar says that article 167
lays down the disqualifications........
The Honourable Dr. B. R. Ambedkar: Both for the Asselmbly and the Council
of States.
Shri H. V. Kamath : In this particular article which Dr. Ambedkar has
brought forward today he has thought fit to refer to the qualifications only.
Why repeat this and not the other ? I am not convinced of the logic of the
argument at all. If Dr. Ambedkar agrees that this article lays down only the
qualifications why not then refer to the disqualifications as well ? That
disposes of the point which I raised earlier.
On the second point I would only say that this provision regarding one-fourth
of the members and not less than 40, might create difficulties in particular
cases. We have passed today article 148 which provides that in certain
provinces and States which have no second chamber they can have a second
chamber if the Assembly of that State is desirous of having a council for the
State. Assam and Orissa are provinces which have a population of less than ten
millions and therefore the lower chamber will consist of less than a hundred
members. According to this article which has been brought forward by Dr.
Ambedkar the total number of members in the upper house should not be more than
one-fourth and not less than 40. I wonder how these two will be reconciled by
the wise men of the Drafting Committee. Article 150 as it stood in the original
Draft was much better. It merely said that it shall not exceed one-fourth or 25
per cent of the total number of members in the Assembly of that State without
stating what the minimum should be. For as I have already said there are provinces
like Assam and Orissa and States like Mysore and others which hive acceded to
the Union and become a part of India with a total population of less than ten
million. The Assembly of those States would contain less than a hundred
members. If you want to have a second chamber of not more than 25 per cent. of
the lower House and not less than 40 I cannot understand this arithmetic. It is
not the arithmetic which I learnt in school or college; we are devising a new
kind of arithmetic-lower or higher mathematics. I hope this difficulty when it
arises will be met squarely by the Drafting Committee and a suitable way would
be devised for getting out of the difficulty. If it means-I do not know what it
means-that irrespective of the strength of the lower House it will not be less
than 40, whether it be more or less than one-fourth of the total strength of
the lower House, then it will make sense. In that case, I would like to plead
that in Orissa, Assam or Mysore which has a Lower House of less than one
hundred (perhaps eighty or ninety) I do not think that an upper House is called
for. The lower House itself is seventy or eighty and I do not think we should
have an upper House of 40 members. Therefore in my judgment this article is not
necessary and particle 150 as it stood in the original Draft was a much wiser
provision and I move that the original article 150 be considered and the new
article rejected by the House.
Mr. President: We had a number of amendments to the original article 150. Does
any Member wish to move those amendments which are printed in this additional
list ?
Prof. Shibban Lal Saksena :
Mr. President, I was surprised to hear the speech of Dr. Ambedkar when he
confessed that there was an anomaly in his having to move this amendment. We
have provided for second Chambers in the States and yet we are leaving the
composition of those Chambers to be divided by the Parliament. I first of all
object to the very principle that Parliament should make any part of the
Constitution. In fact when we are making the Constitution, we must complete
every portion of it. We have laid down that only by two-thirds majority can it
be changed. If the Parliament makes some law it will be changeable always by
the majority and there will be no finality to it. I therefore think that
leaving anything about the Constitution to Parliament is a very wrong
procedure. Then there is no reason why we cannot come to some agreement on this
question of the Upper Chamber. Once we leave accepted this retrograde step. Let
us provide in the Constitution provisions for making these chambers really
revising chambers where they can review the working of the lower chambers and
where they may be able to point out what mistakes the Lower House has made: I
think that the original article 150 should be amended in part (2) only. I agree
with my honourable Friend, Mr. Kamath, that the number of members in the Upper
House must not exceed 25 per cent. of the strength of the lower House. To have
40 members in an Upper House where the number of members in the Lower House is
only 60 or 80, is, I think, a very wrong principle. Clause (1) of article 150
says
“The total number of members in the Legislative Council of a State having such
a Council shall not exceed twenty-five per cent. of the total number of members
in the Legislative Assembly of that State.”
I think this should remain and the fixation of the minimum limit at 40 or 50
will be a further retrograde step. For clause (2) of article 150, I want my
amendment No. 133 to be substituted, which runs as follows :-
That with reference to amendments Nos. 2268, 2270, 2271. 2272 and 2273 of the
List of Amendments, for clauses (2), (3), (4) and (5) of article 150. the
following be substituted :-
“(2) of the total number of members in the Legislative Council of a State-
(a)
15 per cent. shall be elected by an electoral college comprising all the
members of the District Boards in the State;
(b)
15 per cent. shall be elected by an electoral college consisting of all the
members of the learned professions and specialists in any branch of earning;
(c)
10 per cent. shall be elected by an electoral college consisting of all the
persons holding the Bachelor’s degree of any university in the State or holding
a degree recognised by the Government of the State to be equivalent thereto;
(d)
5 per cent shall be elected by an electoral college consisting if all the
members of the Senates or the Courts of the various universities in the State;
(e)
5 per cent. shall be elected by an electoral college consisting of all the
member of the Municipal Boards in the State;
(f)
5 per cent. shall be elected by an electoral college consisting of all the
members of the trade Unions in the State registered with the Government;
(g)
5 per cent. shall be elected by an electoral college consisting of all the
members of the various Chambers of Commerce recognised by the Government of the
State;
(h)
30 per cent. shall be elected by the members of the Legislative Assembly of the
State; and
(i)
the remainder 10 per cent. shall be nominated by the Governor.
(3)
All elections in clause (2) of this article shall be in accordance with the
system of proportional representation by means of the single transferable
vote..
(4)
the qualifications of voters and other details necessary for the formation of
the electoral colleges for the elections mentioned in clause (2) of this
article shall be defined by an Act of Parliament.”
I want to submit to this House that now that we have accepted the principle of
second chambers, the only proper function of the Chambers can be to revise what
the Lower Chambers have done and to give them expert advice on problems on
which they legislate. Therefore, I think Sir, that the Upper Chamber must he
composed of the intelligentsia of the provinces. Of course, the representatives
of the intelligentsia must also be popularly elected. Therefore, I have
provided in my amendment for the election of 15 per cent. of the members by an
electoral College comprising of members of the District Boards in the State.
Every district Sir, has got a District Board which will now be elected by adult
suffrage and in these District Board we shall have the, intelligentsia in the
rural parts of our districts, and if they allowed to elect 15 per cent. of’ the
members, they will take more interest in their work and they will also also
properly represented in the Legislatures. In fact local bodies have to play a
big part in the future Swaraj Government and I therefore think that all these
local bodies should be allowed to have a say in the legislation which will
govern the provinces. I therefore think that representation for the District
Boards is very important and should be provided. Then Sir, come the learned
professions and the specialists in any branches of learning, and for these
there is 15 per cent. representation in my amendment, this means the
professors, doctors, engineers, lawyers, and other professions containing
learned men who can think how a particular measure will affect the interests of
the State will be adequately represented in the upper House. These learned men
will be able to contribute their expert and learned advice which will be of
help in revising the legislation passed by the Lower House. Then,. Sir, the
graduates of universities are given 10 per cent. I think we all realize that
today many of the intellectuals in the country are dissatisfied in that the
representatives in the legislatures do not generally come from that class and
it is important that we should not lose their co-operation.. Therefore, Sir, I
think that at least in the Upper Chambers, they should be provided for, so,
that they can help us with their learning in revising the Acts passed by the
Lower House. Then, Sir, the senates and courts are also given 5 per cent. We do
want that universities should make a contribution to our future, legislation
and therefore they have been provided for. Then, Sir, the municipal Boards in
the States have been given 5 per cent. The Municipalities of the provinces wilt
thus have a voice in the State Legislatures and they can put forth their
demands and their needs. Then, Sir, 5 per cent. is given to Trade Unions. Here,
Sir, I will point out that in our Constitution we have not given any special
representation to labour. We know in India they cannot have popular
representation in this manner because the numbers of Trade Unions are not
concentrated in any particular areas in any of the States. We are therefore not
giving any representation to the members of Trade Unions in the Lower House.
Probably, except in Bombay, Calcutta, and some such big centres, labour will
not have any big influence in the elections. I therefore think that labour
should have some representation in the Upper Chamber. I have given the same representation-to
the Chambers of Commerce also, so that nobody may complain that we have been
partial and they have not been represented. The Assemblies of the States have
been given 30 per cent. representation under my Amendment and the remaining
ten, per cent, of the members of the Council will be nominated by the Governor
so that people who are, specially fitted to help the Council in revising the
legislation passed in a hurry in the lower House and revision may Sometimes,
legislation is passed, in a hurry in, the Lower House and revision may be
necessary. If the people in the Upper House are drawn from all the sections of
the State who form the intelligentsia, they will be in a position to discharge
their duties satisfactorily, Therefore I suggest that instead of leaving this
lacuna of not providing the Constitution of the upper chambers in the
Constitution the existence of, which Dr. Ambedkar himself has, admitted, these
provisions, may be made in the Constitution regarding the composition of the,
Upper Houses. I hope this amendment will be acceptable to the House.
Mr. President: Do you wish to move any other amendment standing in your
name ?
Prof. Shibban, Lal Saksena : No, Sir.
Mr. President : I take it that no other amendment is being moved. The
amendments and the article are now open to discussion.
Shri Mahavir Tyagi : Sir, I have to make
a very small comment on article 150. I have been noticing a tendency which is
slightly unfortunate. He have been seen whenever opinions have sharply varied
between Members, the tendency of the House is to leave things to the
responsibility of the Parliament. My feeling is that the Constituent Assembly,
by passing this clause as it is now proposed by Dr. Ambedkar, will really shove
the responsibility which was really our own.
Now, a Constitution without defining the shape of the Upper House of the States
will be extremely incomplete. If we cannot finally decide the issue as to how
the Upper Houses in the States will be composed, and from what elements, from
what groups, and from which classes of people members would be drawn and by
what method. I am afraid, we shall be failing in the task allotted to us. There
are so many other important things which we have postponed. The tendency has
been to postpone decision on all such points which require wisdom or
consideration. Whatever is controversial has finally to be decided by this
August House; otherwise, the Constituent Assembly would have no meaning. A
Constituency Assembly means that on matters controversial it takes final
decisions for good, and that ends all controversy. The more controversial a
matter is, the more we are warranted to come to a decision. Constituent
Assembly cannot sit every year. I am afraid that by shoving this responsibility
on Parliament we are shirking our responsibility and also neglecting our duty.
As it is, the article says : “The allocation of seats 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.” Parliament could prescribe for everything.
Every controversial point could be safely entrusted by the nation to its
Parliament. After all, Parliament will also be a quite responsible elected
body. But still they have left it to the Constituent Assembly to do the job. We
have gone into very minor and frivolous details, about pay and allowances, houses
and many other sundry details, which no other Constitution provides for- indeed
ours is a unique Constitution which has all the details as if we were enacting
some penal code or a civil code. On this basic point of the Constitution,
however, namely, the manner in which the Upper House in the States shall be
constituted, we are shrinking a decision. This would I am afraid, give an
impression that the Constituent Assembly had a vacant mind. After all, having
prescribed for the existence of the Upper House, is it not for us to explain
the genesis of it ? We should have given to the nation an idea, an argument, as
to why we sanctioned the constitution of an Upper House in the States. We
should have stated that the members of the Upper House will come from such and
such classes and we should have thereby given an idea that the Constituent
Assembly was of the view when they passed the Act that such and such classes
and we should have thereby given an idea that the Constitution Assembly was of
the view when they passed the Act that such and such classes of people should
be represented in these Houses so that full benefit could be had from
their representation in the Upper House. In the absence of these details
I do not know why an Upper House has been suggested at all. I could understand
the original Draft; it was on the lines of the Irish Constitution. It had some
meaning. Some, classes were given there from the panels of which the Upper
House would be elected. We could say that we created the Upper House in various
States just to bring in such persons as would otherwise not enter the arena of
political fight. For, sometimes political parties and factions degenerate
themselves to such a pass that gentlemen mostly learned, those who are men of
opinion, do not like to enter into the dirty pool of politics. If we had chosen
to prescribe details about the composition of the Upper Houses, we could say
that they were meant to rope in such elements of the Society as the real
intelligentsia men of opinion, who would otherwise not contest the elections.
We should have a way of bringing them in and taking advantage of their
learning, their experience and their opinion. I can understand the creation of
an Upper House to bring in such elements, and have the benefit of their advice,
while the future States made their legislation. But, we have failed to give any
hint to the future generation, as to what our motive is in creating the Upper
House in the various States. I would therefore request Dr. Ambedkar to kindly
throw some light as to why he has left it ambiguous and why he has shirked
this. Dr. Ambedkar is the bravest among us; he faces, all controversies; he is
a man of controversy, and a successful man too. Why should he shirk this small
matter ? I want him to come out with what he has really at the back of his mind
in shirking this responsibility, and why the whole composition of the Upper
House has been left to the various States.
Mr. Naziruddin Ahmad (West Bengal : Muslim) : Sir, I desire
to oppose the proviso, to clause (1) of the proposed article 150. This is a
most anomalous proviso and almost contradicts the body of clause (1). It is a
strange survival of a most anomalous situation arising out of the history of
development of this article. This article as it stood in the original Draft
Constitution was good, but the Drafting Committee wanted to make it better and
then for six months they kept on the agenda an amendment which was to say the
least the height of mathematical absurdity. Even up to yesterday the amendment
as it stood was highly absurd. It was only sometime during yesterday that the
Drafting Committee or some vigilant draftsman was suddenly awakened from a deep
slumber of six months and then found there was a serious anomaly and then there
was a last minute attempt to repair the mistake and the present article is the
result which is, even now, shorn of its mathematical absurdity, highly
anomalous. In the draft amendment as it stood yesterday clause (1) was like
this :
“The total number of members in the Legislative Council of a State having such
Council shall in no case be more than 25 per cent. of the total number of the
members of the Assembly of that State or less than 40.”
This clause looked very simple and inoffensive and the effect was that the
number of members of the Legislative Council shall not be more than 25 per
cent.
The Honorable Dr. B. R. Ambedkar : Sir, I rise on a point of Order. My
Friend is criticising a draft which is not before the House.
Mr. Naziruddin Ahmad :
I was trying to show how this unsatisfactory state, of affairs in today’s
amendment arose.
The Honorable Dr. B. R. Ambedkar : It is not before the Members.
Mr. Naziruddin Ahmad :
The draft provided that the number of members of the Legislative Council shall
never be more than 25 per cent and never less than 40. The anomaly was this
that in article 149 which we have already passed, in proviso to clause (3) we
have provided that the number of members in the Legislative Assembly of a State
shall never be more than 500 and never less than 60. Take the minimum 60. If
the minimum number in a State is 60, the 25 per cent rule would mean that not
more than 15 members shall be the number of members of the Council but then the
later portion of clause (1) of the amendment in question was that it should be
never more than 25 per cent, i.e., it would never be more than 45 and
never less than 40. The maximum was 15 but the minimum was to be 40. In fact up
to yesterday the clause stood like this that the minimum far exceeded the
maximum.
Mr. President :
Is it any use considering a clause which existed yesterday and which does not
exist today ?
Mr. Naziruddin Ahamad : Sir, I am coming to my point at once. There has been a
last minute attempt to repair the blunder and I ask the House to kindly
consider how the matter stands. In clause (1) as it stands today, normally, the
number of members of the Council shall not be more than 25 per cent. Confining
our attention to an Assembly of 60, according to present clause the number
should not exceed 25 per cent. viz., 15. Then the proviso says that it
shall never be less than 40. The minimum in the proviso is about three times
the maximum in the body of the clause. I ask the House to consider the anomaly.
Though the mathematical absurdity has been attempted to be repaired, still the
practical absurdity remains. What happens is that in a State where the
Legislative Assembly consists of 60 members, by virtue of this proviso the
number of members of the council shall be at least 40. The strength of the
lower House is 60 but that of the Upper House would be 40. So there would be an
utter disproportion between the number of members of the Legislative Assembly
and that of the Council. In fact the great purpose of clause (1) of the present
article 150 is to reduce the number of the members of the Council. The great
point in reducing the number was that an Upper House must be a small House to
be an effectiveing revising House but in comparing, the case of a State having
a membership of 60 in the Assembly, the minimum number of members in the
Council would be too large. It will be 60 in the Assembly and 40 in the
Council. I ask the House to consider the effect of this disproportion in a
joint sitting. If there is a joint sitting of the two Houses the Upper House
could easily turn down the opinion of the Assembly. I therefore submit that
either the minimum number in the proviso should be reduced or it should bear
some kind of proportion to the number of members of the Legislative Assembly.
As at present it is a survival of an illogical past. 40 is rather too much in
many cases and only when the Lower House consists of 160 members the 25 per
cent. and the minimum 40 will agree, but if it is less than 160 then the minimum
stated in the proviso would be too large. That is why I was trying to trace the
history of this anomaly. I submit either the minimum number should be reduced
or abolished altogether.
Shri V. I. Muniswamy Pillay (Madras : General) : Mr. President,
while I generally agree with the amendment that has been brought before this
sovereign body by the Expert Committee, I would like to draw the attention of
the makers of this amendment in regard to certain representation of the
minorities. The original draft that was presented to us contained abundant
provision for such of the communities that may not find a place through the
general election and moreover the Governor himself has been given the power of
nomination. With the adult franchise and the reservation that have been
accepted by this House, a certain proportion of the Scheduled Castes will
naturally came to the Assembly and, providing the system of proportional
representation by means of the single transferable vote; it was possible for
the Scheduled Castes to get a certain percentage of representation in the
Council of States. But in this amendment, I may point out, the power of choice
and also the fixation of qualifications entirely go to the Parliament the
composition of which of course we know and as far as the Scheduled Caste
representation in the Council is concerned it is nebulous. So I would like to
know from the members of the Expert Committee or rather I would wish to have an
assurance from that body that the interests of the Scheduled Castes will not
suffer by the acceptance of this amendment, because my only fear is that the
reservation that has been fundamentally approved by this House as far as
Scheduled Castes are concerned must be given a chance, that these classes
should be given a chance to serve in the Councils of the States. I am sure that
Honorable Dr. Ambedkar will make this point clear and also assure me that the
representation of the Scheduled Caste in the future Councils of the States will
be well protected.
Pandit Lakshmi Kanta Maitra (West Bengal : General ) : Mr.
President, Sir, 29 I find it difficult to congratulate the Drafting Committee
or its Chairman on its latest performance with regard to the provision of second
chambers. The House is aware that on this specific subject, different provinces
were called upon to take a decision as to whether they were going to have
second chambers in their respective provinces. Each province met separately.
The Members of the Constituent Assembly hailing from each province met
separately and came to certain decisions. I think six out of nine provinces
came to the decision that there should be a second House, -Bengal, Bihar,
United Provinces, Madras, Bombay and East Punjab. That was then decided. But
the whole trouble arose over the composition of of the second chambers which
were proposed to be installed in these Provinces. Sir, it is a very sorry tale
that on this matter no decision had been reached in spite of attempts being made
more than once, here and elsewhere. On slight points of difference the whole
thing was jettisoned. And today what do we find ? The Drafting Committee with
all its ingenuity has found a way out of this impasse, and that is, they are
asking or rather they are authorising the Parliament of the country to settle
the composition of these Chambers. Am I correct, Dr. Ambedkar ?
(The Honorable Dr. Ambedkar indicated assent.) Sir, I fail to understand this
position. The Drafting Committee say they have chosen the line of least
resistance. Yes, they have. But do not forget that you are providing the
Constitution of the country, and I have, yet to know a constitution in which
the composition of the Council or a Chamber of the Legislature does not find a
place. Our Draft Constitution is becoming a bulky volume and containing all
manner of provisions, provisions regarding the Secretarial, the
Auditor-General, the salaries of High Court Judges and things which should not
normally find a place in the Constitution, in my humble opinion. All manner of
extraneous matters have been put into this Constitution, but in the matter of
composition of legislature which is the back-bone of any constitution-in fact
the Government of the country has got to function through the legislature-even
when certain provinces have decided that they are going to have second
chambers, cannot find it possible to provide a solution. That is really
amazing. If we cannot make any provision for it now, what is your prospect of
doing it within the next three months in the parliament ? For, before the
Constitution comes into effect, you have to decide one way or the other,
whether you are going to give any composition to these Councils or not. If the
House was minded not to have second chambers, it should have boldly and fairly
faced that situation, and said, “No Second Chambers”. One could at least
understand that position. When the majority of the provinces of India had
decided on second chambers why should you find it so difficult to decide on the
composition, and in desperation abandon the idea of making a provision for its
composition, in the Constitution? This I cannot understand. I do not at all
feel happy over this article. You are only going to postpone the evil day. That
is all the advantage you are going to have for the present. But mind you,
before the Constitution comes into effect, you have got to take a decision on
this; but certainly this Constituent Assembly would have been the best
authority to decide on the composition of the Legislature and not parliament. I
therefore, say that this has not been a happy performance. The Drafting
Committee should have found a way out as it is not only a question of anomaly,
but it has created a lacuna; in any case, it is an unjustifiable and undignified
performance.
Prof. N. G. Ranga (Madras : General) : Mr. President, Sir,
I am sorry to say that I cannot agree with the stand taken by my Friend Mr. L.
K. Maitra. I think on the whole, the Drafting Committee has made a wise
suggestion, that we should not here and now go into all these details, as to
who should be represented within this quota of 25 per cent. in the Upper
Chamber and to what extent and so on. Sir, I may say that I am not in favour of
second chambers at all. But now that the House has decided to have second
chambers, and also, in favour of giving special representation to certain
classes of people or groups of people or categories of people in our society in
these second chambers, it is much better to leave these details, and the detailed
settlement of this question, to parliament where we have quite a leisurely
procedure, so that it would be possible for the Members to make their
suggestions and get due considerations of their suggestions by parliament.
Secondly, Sir, it is very easy for people to say that such and such groups of
intellectuals or urban classes should be represented in the Upper Chamber and
it is also equally easy for them to quote a number of precedents from various
other country. But it is very necessary to see that no one class of people
comes to be given too much weightage in the second chamber. Already it is a
notorious fact that all over the world second chambers have acted more as a
reactionary influence and have prevented the passage of progressive legislation
in due time. Therefore, we cannot be too careful to see that the second
chambers are not loaded, specially with those people who are interested in the status
quo or who are interested in preventing any kind of progressive legislation
of progressive administration being developed and established. Therefore, we
were in favour of the Statement on page 4 of List III where certain categories
of our society have been enumerated.
I think in another place and on another occasion we had a more or less detailed
discussion of this particular matter and a number of us had agreed on this
proposition that (a) literature, arts, science, medicine, (b) agriculture,
fisheries, cooperative cottage industries and allied subjects, (c) engineering,
architecture and building (d) social services and journalism, all these should
be given this kind of special representation in the upper chamber. But on
second thoughts we came to the conclusion that it is better to leave it to be
decided by Parliament at a later stage. My honorable Friend, Pandit Maitra, is
rather apprehensive that if we leave it to Parliament it might delay the coming
into existence of these second chambers. I do not think there need be any such
delay at all. Between now and the general elections that are to come next, and
also even after the formation of the lower chambers in all the provinces there
is plenty of time within which it may be possible for parliament, to take up
this matter seriously and settle all these details, although they are, not such
details, as could be disposed of in this House in such a summary fashion as can
be done at this sitting. That is why I appeal to my honorable Friend, Pandit
Maitra, not to be very particular about his own objections and to be generous
enough to agree with us in accepting Dr. Ambedkar’s amendment.
Shri T. T. Krishnamachari : Sir, I am afraid the debate over. This particular article
on the amendment moved by Dr. Ambedkar has taken the form of a criticism
against the Drafting Committee for not having provided a ready-made solution
for this problem of representation in the upper House of the provinces but
leaving it to Parliament to decide this issue. I feel here that there is no
need for the Drafting Committee to apologist for not having placed a complete
solution other than the one that is contained in the amended article that is
placed before the House. In fact it may be that in a case like this second
thoughts are the best, and the Drafting Committee, after having taken into
account the opinion of the Members of this House as indicated by the
innumerable amendments that have been tabled to the original article 150,
thought that they should review the position that they had taken up in the
original draft. In fact one of the basic plans in the scheme envisaged in the
original draft was the question of selection of candidates for the Upper House
by means of panels, a system which was borrowed from the Irish example. But we
were led to understand subsequently both from the first-hand experience our
Constitutional Adviser who visited Ireland and also from the literature that
was made available to us that the Irish system of electing panels and selected
members there from; to represent the country in the upper house has not as
successful as it was originally thought it would. Sir, I would ask members of
this House to go through the various amendments to article 150 that are given
in the various lists of amendments. Is there any indication therein of any
unanimity of opinion in the manner in which the members of this House want
candidates to be chosen or they want the electorate to be created ? I think the
very baffling nature of the very suggestions made and the fact that no
particular suggestion made by any one member has any particular merit as
against any other suggestion made by any other member of this House has made us
think whether without further and deep investigation it would be worth while
asking this House to accept a proposition which has been cursorily decided on
and which might in effect defeat the purpose of the creation of an upper House
for the various States enumerated in the previous article.
Pandit Lakshmi Kanta Maitra : But how can you solve the question of
the Council of States?
Shri T. T. Krishnamachari : I have the greatest respect for the judgment of my
honorable Friend Pandit Maitra with whom I have had the pleasure and privilege
of working in the legislature for a number of years. But I must say that in
this instance he has allowed his temper to outrun his usual discretion. Let me
here explain that the Upper House of parliament has to be elected on the basis
of representation of States, the Lower House has to be elected on the basis of
adult suffrage. The Lower Houses of the provincial legislatures are to be
elected on the basis of adult suffrage. This decision does not want any
investigation and any great thought; except a decision on the principle all
that it want further is how to delimit the constituencies.
Pandit Lakshmi Maitra : You could have done that if you had applied your kind; you
did not do that.
Shri T. T. Krishnamachari : We had, applied our mind to the end that we only wanted to
provide representation for the States; it is the type of representation which
is provided for the Upper House in all federal constitutions.
Pandit Lakhmi Kanta Maitra : Your practice has been that whenever there has been any
difficulty you pass it on to the future Parliament; you offer no solution.
Shri T. T. Krishnamachari : I do not plead guilty to that charge because I think the
honorable Member has not taken into account the difficulties of the Drafting
Committee, particularly when the inquiry into the data available was
insufficient or that data before us was inadequate to make up our minds. Let me
take my honorable Friend who objects to this method of deciding this issue to
what happened before the 1935 Act was passed. There was a Franchise Committee,
I believe it was the Lothian Committee and subsequently there was the Hammond
Committee, both of which, visited the whole country. They went to every
province and in the latter case co-opted members, there; it made detailed
inquiries only because even for the lower House the franchise had to be decided
on and for the upper House also it had to be decided likewise. In the particular
instance before us owing to various circumstances for which neither the leaders
who guided us non the Drafting Committee were responsible, we had to depend on
our own limited resources to frame proposals for an electorate for the Upper
House of the States. And this is a very important matter. I think the generally
accepted idea is to have an Upper House which will act only as a revising body,
help the Lower House to make up its mind in difficult matters, which will
provide that limited amount of delay which is necessary for people to make up
their minds or to revise any mater where they have made up their minds already.
If the intention is to have a proper type of Legislative Council it could only
be created after proper inquiry into facts; and I can say without any sense of
guilty or an attempt at an apology that the Drafting Committee or those
concerned in the framing of this constitution have not had before them the full
data that is necessary for providing a suitable electorate for an Upper House
and to meet the different circumstances existing in the various provinces. It
may be that in the United Provinces some representation for the local bodies,
the universities and perhaps the Chambers of Commerce would be thought
necessary, whereas similar conditions perhaps do not exist in a province like
Madras where the position of the local bodies is undergoing a change and we do
not know in what shape or form they will ultimately remain. It may also be that
if we provide particular constituencies for electing members to the Upper House
the strength of those constituencies will not be the same a few years hence. So
it is very necessary that we should not bind down the mechanism for ever by
making a provision in the Constitution but must provide for the changes that
might be necessary from time to time in the matter of either the electorate for
the Upper House or in the matter of qualifications of candidates to be made
without the elaborate process of an amendment of the Constitution but rather
leave it to Parliament to vary the terms, if and when it is found necessary, by
a Parliamentary Act. It has been asked, if that be done, how can the elections
for these Upper Houses be held? I think it is a perfectly easy thing to
visualise that there will be a time-lag between the promulgation of this
Constitution and the elections taking place. The time-lag may be a few months
or a year. Within that period the Parliament, which will be this House or its
successor will certainly be seized of the fact of providing a proper type of
constituency for the Upper Houses, the qualifications of the electors and those
to be elected and all that is envisaged in the amendment of Dr. Ambedkar. And
an Act of Parliament will certainly satisfy my honorable Friend Pandit Maitra
far more than any gerrymandered device that we might place before him at the
present moment. That is why we are not placing entire scheme before him today.
I think there is therefore no need for apology. Parliament will in due course
ask provincial Governments to submit their own proposals. Prior to the Draft
Bill coming up before Parliament the Government of the day will perhaps appoint
a committee to scrutinise the suggestion of the Provinces. I think the
draftsman who has to draft the Bill will have the resources and the initiative
to vary if necessary the terms and conditions of representation provided for
each of the provinces that want an Upper House. All this can be done at leisure
and after an exhaustive enquiry with more care and attention that we can give
to it now. The proposal put up by Dr. Ambedkar is the only proper, reasonable
and just proposal that can be placed before the House now without making this
House commit itself to do something which will not be proper or which has been
decided in haste in a haphazard manner.
And what is the amendment of Mr. Shibban Lal Saksena about the claims of which
he urged the House to consider ? Five per cent for this group of persons, five
per cent for something else and so on. It looks as though he is trying to make
up the total of one hundred per cent by bits here bits there and bits somewhere
else. Even granting that the scheme suggested by him is adequate so far as
United Provinces is concerned, it seems to me that it is completely inadequate
and out of place with regard to provinces about which I have some knowledge.
Therefore, without any apology I ask this House to accept the amendment moved
by Dr. Ambedkar, which I think is the only proper course to adopt in the
circumstances.
The question of having an Upper House or not does not come into the picture at
this stage. We are already committed to that proposition. We have provided
solutions against difficulties arising from the acceptance of this proposition,
namely that the various Legislatures of provinces can do away with the Upper
House if they choose, and the resolution of conflicts between the two Houses
and so on. Having provided parliament with the power of accepting a resolution
of the Lower House in a State to create an Upper House where it did not exist I
think it is only fair that we should give Parliament entire power in regard to
varying the composition, and determining the composition of the House in the
initial stage. Sir, I support the amendment.
Shrimati Purnima Banerji (United Provinces : General) : Mr. President, Sir, I do
confess that dealing with these articles regarding the Upper House, not knowing
as to what is going to be the composition of the Upper House does put us in
some difficulty. We passed article 148 as many of the provinces did agree to
the creation of an Upper House mainly depending on the kind and nature of the
House and we did it on the assumption that it would be something of the kind
based upon the Irish model, a model which was supplied to us by the secretariat
of the Constituent Assembly. We were always of the opinion that an Upper House
could perform the very good and useful function of being a revising body, and
that, while its views may count but not its votes, it should not be a House of
vested interests. It was felt that those who could not enter into the rough and
tumble of active politics could by their good offices advise the Lower House.
Such people could get an opportunity to revise or amend legislations of the
Lower House and would thus be performing a useful function. But, now by these
articles, when we leave the entire composition to the future Parliament and yet
vote for an Upper House we are actually groping in the dark. I do not agree
with my Friend Mr. Brajeshwar Prasad that it is because we are afraid of adult
franchise which we consider a leap in the dark that we want to provide for
Upper Houses. It was our experience in the Legislative Assemblies that it was
useful to have associated in our governmental activities and in our legislative
activities such useful people as were doing useful work for the country, people
doing social service, service among Harijans or backward classes, some
representatives of labour who were not organised or were not to be found in
such large numbers as to form a constituency by themselves or members of a
co-operative association, men of letters or some such people whose advice would
count, who would not be actuated by any motive to with hold any legislation
which is good for the nation but whose voice may have a good effect upon us-it
was for such an Upper House we voted and not for an Upper House whose nature
and composition we do not know. For the moment we know that the present Upper
Houses in the various Legislatures are Houses of vested interest as it is people
having a certain amount of property qualification and people with large bank
balances who are elected to the Upper Houses. Now, when we have left the entire
qualifications to the future parliament, we do find some difficulty when this
Constitution-making body is yet required to vote these articles. I do not know
if Dr. Ambedkar can give an assurance, -for what his assurance will count-that
it will not be a House of vested interests or of people with large properties
who would stay any legislation which is necessary in the interests of the
country. With these words, I hope that our views expressed in this House will
be taken into account in the future Parliament and that an Upper House which
will be only of a revising nature, which would be neither pernicious nor
useless would be brought into being and that the possession of large properties
by persons will not be considered a qualification entitling them to membership
of the Upper Houses.
Shri Brajeshwar Prasad : Mr. President, Sir, I am thoroughly opposed
to the article moved by Dr. Ambedkar. Professor Ranga characterised this
proposal of Dr. Ambedkar as a very wise one. It would have been far better to
entrust the entire task of making the future Constitution of India to the
future Parliament of India. That would have been the wisest thing on earth. I
hope everybody will realise that this is the proper place as it has been
convened to frame, a Constitution for India. To ask a Legislature to frame the
constitution of an important organ of the State is a mistake.
I am coming to the proposal embodied in amendment No. 89. It says :
“The total number of members of the Legislative Council of a State having such
a Council shall not exceed twenty-five per cent of the total number of members
in the Assembly of that State.”
I do not see any reason why the number of members of the Legislative Council
should be reduced. I feel that the total number of members should be equal to
that of the number in the Lower House. If the future Parliament is going to be
entrusted with the task of allocation of seats, the manner of choosing persons
and, the qualifications to be possessed, why not also entrust it to Parliament
to determine the total number of members as well ? Why fetter the discretion of
Parliament in this matter? Personally I am of opinion that the membership
should be equal to that of the Lower House, that the Legislative Council should
be a nominated body, nominated by the President or the Governor in his
discretion. I do not want this matter to be left in the hands of provincial
Ministers. I agree with my sister, Shrimati Purnima Banerji, when she says that
it should not be a House consisting of vested interests. I do not want that the
members should come from the capitalist classes or the landlords or the
satellites of the Ministers. I feel that it should be a body consisting of the
wise men of the province. The dominant theme of Indian history has been that we
have been ruled by wise men. Our law-givers were not legislators,
Parliamentarians or democrats. They were wise men. Under the present
circumstances it is difficult to find men of the type that have been envisaged
in Plato’s Republic. But we can approximate to that idea. We can lay it down
clearly in the Constitution that only those persons who are graduates can
become members of this Council and the number of members shall be determined by
the President or the Governor in his discretion. They shall be nominated for
life. It shall not be a body which would undergo radical changes in composition
after every three or five years. I feel, Sir, that having due regard to the
political facts of our life, knowing fully well the dangers that confront the
State and the elements of instability that are growing up in this country, we
have done well in chalking out a line of defence in the measure that we have
adopted, namely, that the Governor shall be a nominated person by the
President. I feel, Sir, that the Legislative Council should be also a nominated
body. This should be a second line of defence. I feel, Sir, that the
consideration of this article should be postponed for some time, and before we
adjourn, a proper constitution for the Upper Chamber should be determined and
decided in this House.
Dr. P.S. Deshmukh : A number of Honorable Members of this
House have already advanced the plea that it is not proper that such an
important item, as the constitution of the second chambers in the States,
should be left to Parliament. I also rise to support this point of view. Since
our Constitution is a written Constitution, it should be complete in itself and
it should not be necessary to have recourse to partial legislation from time to
time which will be a sort of supplement to the Constitution that we are
passing. I am also apprehensive of the facts that more and more recourse is
being had to this device. Wherever we find there is no unanimity or where
certain complications arise, we try to throw the burden on Parliament, and this
Parliament has then to pass legislation on the particular item which we do not
want to tackle here. I feel, Sir, that it would be neither in the interests of
the dignity nor respect which this Constitution should have and evoke in the
minds of the people, to leave such important matters for future legislation.
So far as this item is concerned, it is bound, after all, to come before this
very set of honorable Members sitting as legislators, because unless the
constitution of the second chambers is complete I do not think the Constitution
can come into force or be really put into practice. That being so, we are
merely playing for time in order to consider and finally approve of an
arrangement by which these second chambers would be constituted. There is only
going to be a difference of a few months if we make a provision of this kind
for Parliament to decide about membership, composition, the qualifications of
the various Members etc. I think, Sir, this should not be permitted. I feel I
must express my dissatisfaction with the way in which we are trying to really
undermine the dignity and the position of the Constitution we have been sitting
here to frame. As a matter of fact, Mr. T. T. Krishnamachari gave away his
whole case when he said that he was not sure as to how the second chambers
should be composed : and if that is the state of mind of the members of the
Drafting Committee, the more honest method would have been to scrap the second
chambers altogether. If the members of the Drafting Committee themselves do not
know which interests should be represented in these Houses, and if in spite of
two and a half years of deliberation they have not yet made up their minds as
to which are the interests which require protection, which are the
representatives which are likely to stabilize our Governments in the future
Constitution, then it is time that the whole idea of second chambers was given
up.
I therefore submit that this is not a very satisfactory state of affairs-that
we should talk of having second chambers and yet not know what they should be composed
of. On the other hand, we hope somewhat vaguely that after a lapse of two
months we shall come across some brain-waves by which we should know what
should be done with regard to qualifications for members sitting in second
chambers. I do not think this is in keeping with the dignity of the House nor
of the Constitution that we are framing.
The Honorable Dr. B. R. Ambedkar : Sir, there are only two points of
comment, which I think call for a reply. The one point of comment, that was
made both by Mr. Kamath as well as by my Friend, Mr. Naziruddin Ahmad, was that
according to the proposal now placed before the House, there is a certain
amount of disproportion between the membership of the Upper House and the
membership of the Lower House in certain provinces. He cited the instance. I
believe if I heard him correctly, that in the province of Orissa, the members
of the Lower House, on the principles which we have laid down in article 149 of
the Constitution, would be near about 60. Consequently, if the minimum for an
Upper House was 40, in Orissa the Upper House would be disproportionate to the
Lower House in strength. Now, I think my Friend, Mr. Naziruddin Ahmad, has not
taken into consideration the circumstances which have intervened during the interval.
He has for instance completely forgotten that Orissa is now a much bigger
province on account of the merger of the several States, which were at one time
independent of Orissa, and I understand that taking the area of the States and
the population which will be included in the boundaries of Orissa, the Lower
House is likely to be 150. Consequently, the possibility of any such disparity,
as he pointed out, no longer exists. I may also at this stage say that if the
House passes what is proposed as article 172 which regulates the question of
difference of opinion between the Upper House and the Lower House, this
question of disparity of principles between the Lower House and the Upper House
loses all its importance, because under article 172 we no longer propose to
adopt the same procedure that was adopted with regard to the two Chambers at
the Centre, namely a joint session. What we propose to do is to permit the view
of the Lower House to prevail over the view of the Upper House in certain
circumstances. Consequently, the Upper House by reason of this different
political complexion has no possibility of overturning the decision of a
majority or a large majority, of the Lower House. That I think, completely
disposes of the first point of comment raised by my honorable Friend, Mr.
Naziruddin Ahmad.
I come to the second question which was very strongly raised by my honorable
Friend, Pandit Lakshmi Kanta Maitra. His argument was : Why should you leave it
to Parliament ? How can it be left to Parliament? I think the answer that I can
give to him, at any rate, so far as I am concerned, is quite satisfactory. I
should like to point to him in the first instance that it is not to be presumed
that the Drafting Committee did not at any stage make a constructive proposal
for the composition of the Upper House in the Constitution itself. If my
honorable Friend will remember there stood in the name of myself and my Friend,
Mr. T. T. Krishnamachari an amendment which is No. 139 in this consolidated
list of amendments to amendments which has been circulated and there he will
find that we have made a constructive suggestion for the composition of the
Upper House. Unfortunately that was not accepted in another place and
consequently, we did not think it advisable to continue to press that
particular amendment. He will therefore see that the Drafting Committee must be
exonerated from all blame that might be attached to it by reason of not having
made any effort to solve this difficulty; they did try, but they did not succeed.
My honorable Friend will also realize that the Drafting Committee was presented
with altogether 28 amendments on this subject. They range here in this list
from 123 to 148. If he were to read the amendments carefully in all their
details, he will notice the bewildering multiplicity of the suggestions, the
conflicting points of view and the unwillingness of the movers of the various
amendments to resile from their position to come to some kind of a common
conclusion. It was because of this difficult situation the Drafting Committee
thought that rather than put forth a suggestion which was not likely to be
accepted by the majority of the House, it would leave it to Parliament.
Shri H. V. Kamath :
Is Dr. Ambedkar sure that parliament will be presented with less multiplicity.
The Honorable Dr. B. R. Ambedkar : If my honorable Friend will give me
time, I will reply to that part also.
My honorable Friend Pandit Maitra, said : How is it conceivable that a part of
the Constitution of so important an institution as the Upper Chambers could be
left to be decided by Parliament and not be provided in the Constitution? I
think my honorable Friend, Pandit Maitra, will realize and I should like to point
out to him quite definitely what we are doing with regard to the Lower House
both in the Provinces or the States as well as at the Centres. If he will refer
to article 149, which we have already passed, what we have done is we have
merely stated that there shall be certain principles to govern the delimitation
of constituencies, that a constituency is not to have less than so many and
more than so many, but the actual work of delimiting the constituencies is left
to Parliament itself and unless Parliament passes a law delimiting the various
constituencies for the Lower House at the Centre, it will not be possible to
constitute the Lower House.
Pandit Lakshmi Kanta Maitra : That is inevitable.
The Honorable Dr. B. R. Ambedkar : Again take another illustration,
namely, the allocation of seats. The actual allocation will have to be done by
law by Parliament. Therefore, if such important matters of detail could be left
to Parliament to determine by law, I do not see what grave objection could there
be for a matter regarding the composition of the Upper Chamber being also left
to Parliament. I cannot see any objection at all. Secondly, I feel personally
that having regard to the conflicting view-points that have been presented in
the 28 amendments that are before the House, I thought it would be much better
for Parliament to take up the responsibility because Parliament will certainly
have more time at its disposal than the Drafting Committee had and Parliament
would have more information to weigh this proposal, because Parliament then
would be in a position to correspond with the various provincial Governments,
to find out their difficulties, to find out their points of view and their
proposals and to arrive at some common via, media which might be put
into law. Therefore, in putting forth this proposal I think we are not making
any very serious departure from the principles we have already adopted and as
my honorable Friend, Mr. T. T. Krishnamachri said, taking all these into
consideration, there is nothing for the Drafting Committee to apologize but to
recommend the proposal to the House.
Mr. President : I confess to a sense of disappointment at the Drafting
Committee not being able to find a solution for this question. (Some honorable
Members : Hear, hear). It is an important matter in the Constitution that the
composition of the Chambers of the legislature should be laid down definitely
and I should have thought that it would be possible to come to some conclusions
which would be acceptable to the House as a whole, but unfortunately that has
not happened. I do not blame the Drafting Committee for it. As Dr. Ambedkar has
pointed out, there has been such a jumble of amendments suggested so many
view-points put forward, that they find it impossible to reconcile all these
and they take the line of least resistance of putting it off till the
Legislative Assembly meets and decided the question. If it is at all possible,
I would at this late stage suggest that the question might be referred back to
the Drafting Committee. (Many honorable Members : Hear, hear). The Drafting
Committee could make another attempt to solve this question and bring before
this House a resolution of this problem; but it is, of course for the House to
decide. I leave it to the House to decide.
Pandit Govind Malaviya (United Provinces : General) : I move, Sir, that the
consideration of this article be held over.
Shri Brajeshwar Prasad : I beg to second this proposal.
The Honorable Dr. B.R. Ambedkar : I have no objection. We can have
another go at it.
Mr. President :
Then I take it that Members are agreed that this article should be held over.
Honorable Members
: Yes.
----------
New Article 163-A
The Honorable Dr. B. R. Ambedkar :
Sir, I beg to move :
“That in amendment No. 12 of List I (First Week) of Amendments to Amendments
for the proposed new article 163-A, the following be substituted :-
‘163-A. (1) The House or each House of the Legislature of a State shall have a
secretarial staff of State Legislatures separate secretarial staff :
Provided that nothing in this clause shall, in the case of the Legislature of a
State having a Legislative Council, be construed as preventing the creation of
posts common to both House of such Legislature.
(2) The Legislature of a State may by law regulate the recruitment and the
conditions of service of persons appointed to the secretarial staff of the
House or House of the Legislature of the State.
(3) Until provision is made by the Legislature of the State under clause (2) of
this article, the Governor may after consultation with the Speaker of the
Legislative Assembly or the Chairman of the Legislative Council, as the case
may be, make rules. regulating the recruitment and the conditions of service of
persons appointed to the secretarial staff of the Assembly or the Council, and
any rules so made shall have effect subject to the provisions of any law made
under the said clause’.”
This article is merely a counterpart of article 79-A which we considered this
morning.
Shri Brajeshwar Prasad : I am not in a position to move any of the amendments
standing in my name.
Shri H. V. Kamath Mr. President, Sir, I do not propose to
speak on the amendments which I am formally moving before this House. I would
only like to remark in passing that I have noticed today an unfortunate
tendency on the part of Dr. Ambedkar not to reply to points of substance raised
in the course of the debate. Of course, he is free to act as he likes. I would
only request him, in fairness to Members who raise points of substance, that he
might at least attempt to answer them. Whether he would answer them
satisfactorily or convincingly is another matter; but the House is entitled to
this much from him. Honorable Members who raise points of substance must at
least know the point of view of the Drafting Committee. In articles 79-A and
148-A, points of substance were made out by various amendments by my honorable
Friend, Prof. Shibban Lal Saksena and myself. But when his turn came, Dr.
Ambedkar was good enough, wise enough just to say that he did not wish to say
anything.
The Honorable Dr. B. R. Ambedkar : I said no reply was called for.
Shri. H. V. Kamath :
That is left to his judgment. But, when certain substantial points are raised,
they call for some sort of reply. Of course, he is buttressed, fortified by the
fore- knowledge of the fact that when he says, ‘yes’, he will carry the House
with him. It is of course up to him to decide what he will reply to and what he
will not. But, the House is entitled to hear his view. If he is too tired, too
fatigued, he may ask one of his wise colleagues.........
The Honorable Dr. B. R. Ambedkar : Who is to determine whether the
points are points of substance? If the President gave a ruling that the point
is one of substance, I should certainly reply, I cannot leave the matter to be
determined by Mr. Kamath himself.
Shri H. V. Kamath :
You, Sir, are following the wise ruling laid down by you that the amendments
which did not raise points of substance would not be allowed by you.
Mr. President :
Are you moving the amendments? What are you discussing now ?
Shri H. V. Kamath :
I am moving them. Before doing so, I would like to say that when an amendment
is allowed to be moved by you, it means under the rules we have made recently,
that it has a point of substance. Any way, I move amendments numbers
92,94,96,98,99 and 100 of List III (First Week). I do not think I should take
the time of the House in reading the amendments. If you want, I shall read
them.
Mr. President :
Not necessary.
Shri H. V. Kamath :
They are more or less on a par with the amendments that I moved earlier today.
I formally move these amendments and commend them for the careful consideration
for the House.
I move.
“That in amendment No. 48 of List II (First Week) of Amendments to Amendments
in the proviso to clause (1) of the proposed new article 163 A, for the words ‘be
construed as preventing’ the word ‘prevent’ be substituted.
That in amendment No. 48 of List II (First Week) of Amendments to Amendments,
in clause (2) of the proposed new article 163-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. 48 of List II (First Week) of Amendments to Amendments,
in clause (3) of the proposed new article 163-A for the word ‘or’ occurring in
the line, 4 thereof, the words ‘and, where necessary,’ be substituted.
That in amendment No. 48 of List II (First Week) of Amendments to
Amendments, in clause (3) of the proposed new article 163-A, the words ‘as the
case may be’ be deleted.
That in amendment No. 48 of List II (First Week) of Amendments to Amendments,
in clause (3) of the proposed new article 163-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. 48 of List II (First Week) of Amendments to Amendments,
in clause (3) of the proposed new article 163-A, for the words ‘the Assembly or
the Council’ the words ‘the House or each House of the Legislature of the State’
be substituted.
That in amendment No. 48 of List II (First Week) of Amendments to Amendments,
in clause (3) of the proposed new article 163-A, all the words occurring after
the words ‘or the Council’ be deleted.”
Shir Lakshminarayan sahu :
(Orissa : General ) : *[Mr. President , Sir I move :]*
“That in amendment No. 149 of the Printed Consolidated List of Amendments to
Amendments dated 10- 7-1949, the following proviso be added to clause (2) of
the proposed new article 163- A :-
‘Provided that the governor may , in consultation with the Speaker or the
Chairman, as the case as may be, by rule require that in such cases as may be
specified in the rule no person not already attached to the House of the
Legislature shall be or to either House appointed to any office connected with
the House or any of the Houses of Legislature, save after consultation with the
State Public Service Commission.’ “
Mr. President : How does this amendment fit in with the article as it
has been now moved?
Shri Lakshminarayan Sahu : I want the following proviso to be added to clause (2) of
the proposed article 163-A. Clause (2) says : “The legislature of a State may
by law regulate the recruitment and the conditions of service of persons
appointed to the Secretarial staff of the House or Houses of the Legislature of
the State.”
*[I wish the following proviso to be added :-
“Provided that the Governor may, in consultation with the, Speaker or the
Chairman as the case may be, by rule require that in such cases as may be
specified in the rule, no person not already attached to the House or to either
House of the Legislature shall be appointed to any office connected with the
House or any of the House of Legislature save after consultation with the State
Public Service Commission.”
In this connection I want to say that we have made a provision for the Public
Service Commission in order that fairness may be observed in regard to the
services. We should ask for advice of the Public Service Commission in the
matters relating to all the services. It would not be proper to entrust other
people with this work. The Public Service Commission has not yet gained in our
country the same status as it has in other countries, where there are
democratic institutions. In the Dominion Parliament we do not accept
suggestions of the Public Service Commission as much as we ought to. It only
recommends whether we can employ a candidate or not. But in countries like
Canada and South Africa, where the democratic form of government is prevalent,
the Public Service Commission has great powers. Therefore I want that whatever
action is taken in this respect, it should be on the recommendation of the
Public Service Commission. Appointments should be made after consulting them.
So long as we do not do this in a clean way, there will always be the doubt
that there has been something wrong with the appointments. It is heard from all
quarters that the recommendations of the Public Service Commission are turned
down and different appointments are made. Therefore I think that this healthy
proviso will help to improve matters. I have nothing more to add in this
connection but I would like to point out that I seek to insert this proviso in
this place while it is given as No. 149 in the printed List of Amendments.]*
Mr. President.
Does any Member wish to say anything ?
(No Member rose to speak.)
Would Dr. Ambedkar like to say anything ?
The Honorable Dr. B. R. Ambedkar : No.
Mr. President : I will then put the amendments to vote. The question is :
“That in amendment No. 48 of List II (First Week) of Amendments to Amendments
in the proviso to clause (1) of the proposed new article 163-A, for the words ‘be
construed as preventing’ the words ‘prevent’ be substituted.”
The amendment was negatived.
Mr. President : The question is :
“That in amendment No. 48 of List II (First Week) of Amendments to Amendments, in clause (2) of the proposed new article 163-A, for the words ‘recruitment and 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. 48 of List II (First Week) of Amendments to Amendments, in clause (2) of the proposed new article 163-A, for the words ‘recruitment and 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 amendment No. 149 of the Printed Consolidated List of Amendments to
Amendments dated 10.7.1947, the following proviso be added to clause (2) of the
proposed new article 163-A :-
‘Provided that the Governor may, in consultation with the speaker or the
Chairman, as the case may be, by rule that in such cases as may be specified in
the rule, no person not already attached to the House or to either House of the
Legislature shall be appointed to any office connected with the House or any of
the House of Legislature, save after consultation with the State Public Service
Commission.”
The amendment was negatived.
Mr. president
: The question is :
“That in amendment No. 48 of List II (First Week) of Amendments to Amendments,
in clause (3) of the proposed new article 163-A, for the word ‘or’ occurring in
line 4 thereof, the words ‘and where necessary,’ be substituted.”
The amendment was negatived.
Mr. President
: The question is :
“That in amendment No. 48 of List II (First Week) of Amendments to Amendments,
in clause (3) of the proposed new article 163-A, the words ‘as the case, may be’
be deleted.”
The amendment was negatived.
Mr. President : The question is :
“That in amendment No. 48 of List II (First Week) of Amendments to Amendments,
in clause (3) of the proposed new article 163-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 amendment No. 48 of List II (First Week) of Amendments to Amendments,
in clause (3) of the proposed new article 163-A, for the words ‘the Assembly or
the Council’ the words ‘the House or each House of the Legislature of the State’
be substituted.”
The amendment was negatived.
Mr. President
: The question is :
“That in amendment No. 48 of List II (First Week) of Amendments to Amendments,
in clause (3) of the proposed new article 163-A, all the words occurring after
the words ‘or the Council’ be deleted.”
The Amendment was negatived.
Mr. President : I put the article 163-A as moved by Dr. Ambedkar to vote.
The question is :
“That New Article 163-A, do form part of the Constitution.”
The motion was adopted.
New Article 163-A was added to the Constitution.
_______
Article 175
Mr. President : Shall we take up 172 now ?
The Honorable Dr. B. R. Amebedkar : We shall keep it back for the moment.
Mr. President :
Shall we take up No. 175 ?
The Honorable Dr. B. R. Ambedkar : Yes.
Shri H. V. Kamath :
What about 127-A ?
Mr. President :
That will come up along with 210.
Let us take up now 175. There are some amendments to it.
(Amendments Nos. 16 and 17 were not moved.)
The Honorable Dr. B. R. Ambedkar : Mr. President, Sir,
I beg to move : that :
“That for the proviso to article 175 the following proviso be substituted :-
‘Provided that the Governor may, as soon as possible after the presentation to
him of the Bill for assent, return the Bill if it is not a money Bill together
with a message requesting that the House or Houses will reconsider the Bill or
any specified provisions thereof and, in particular, will consider the
desirability of introducing any such amendments as he may recommend in his
message, and when a Bill is so returned, the House or Houses shall reconsider
the Bill accordingly and if the Bill is passed again by the House or Houses
with or without amendment and presented to the Governor for assent, the
Governor shall not withhold assent therefrom’.”
Sir, this is in substitution of the old proviso. The old proviso contained
three important provisions. The first was that it conferred power on the
Governor to return a Bill before assent to the Legislature and recommend
certain specific points for consideration. The proviso as it stood left the
matter of returning the Bill to the discretion of himself. Secondly, the right
to return the Bill with the recommendation was applicable to all Bills
including money Bills. Thirdly, the right was given to the Governor to return
the Bill only in those cases where the Legislature of a province was
unicameral. It was felt then that in a responsible government there can be no
room for the Governor acting on discretion. Therefore the new proviso deletes
the word ‘In his discretion.’ Similarly it is felt that this right to return
the Bill should not be extended to a money Bill and consequently the words ‘if
it is not a money Bill’ are introduced. It is also felt that this right of a
Governor to return the Bill to the Legislature need not necessarily be confined
to cases where the Legislature of the province is unicameral. It is a salutary
provision and may be made use of in all case even where the Legislature of a
province is bicameral.
It is to make provision for these three changes that the new proviso is sought
to be substituted for the old one and I hope the House will accept it.
Mr. President
: I have notice of some amendments which are printed in the Supplementary List.
Does any Member with to move any of the amendments ? They are in the names of
Shri Satish Chandra, Shri B. M. Gupta and Prof. Shibban Lal Saksena.
(The amendments were not moved.)
Does any Member wish to speak on this ?
Honorable Members :
Yes.
Shri Satish Chandra (United Provinces : General) : Sir, whether I move my
amendment to this article or not, depends on the shape in which article 172
emerges from the House. But article 172 has been for the present held over.
There is no amendment to first paragraph of this article, and only one to the
proviso has been moved by Dr. Ambedkar. So I may have to move my amendment to
bring the language of this article in line with article 172, or the Drafting
Committee may consider this point.
Mr. president.
We shall consider that matter on Monday next. The House now stands adjourned
till 9 O’clock on Monday. From Monday we propose to sit from 9 a.m. to 1 p.m.
instead of from 8 a.m. to 12 noon.
The Assembly then adjourned till Nine of the clock on Monday the 1st August,
1949.
---------------------------------------------------------------
*[Translation of Hindustani speech.]*
*[Translation of Hindustani speech.]*
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