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The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock on Monday, the 14th July 1947, Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair.
PRESENTATION OF CREDENTIALS AND SIGNING OF THE REGISTER

4.22.1
President
Members who have not yet presented their credentials and signed the Register will do so now.

(The Secretary then called out the name of Haji Abdul Sathar Ham Ishaq Sait.)

4.22.2
Mr. Deshbandhu Gupta
Mr. President, may I rise to a point of order?


4.22.3
Mr. Deshbandhu Gupta
Before the Honourable Member is called upon to sign the Register, I would like to know whether it would not be fair to this House to ask whether he still subscribes to the Two-Nation theory or not? I take it that, as a sovereign body, and in view of the Partition that has been decided upon, we should review the whole question and lay down that a Member who does not subscribe to the Objectives Resolution that has been passed cannot sign the Register.


4.22.4
Mr. Deshbandhu Gupta
I want your ruling, Sir.


4.22.5
President
An interesting point has been raised. But I do not consider it is a point of order at all. It is a question of the right of Members who have been elected to the Constituent Assembly under the procedure laid clown. Any one who has been elected is entitled to sit in this House as long as he does not resign. Therefore I do not think I can prevent any Member who has been elected duly from signing the Register.



4.22.6
President
Is there any other member who has not signed the Register yet? I take it that there is no one here who has not signed the Register yet.


4.22.7
Balkrishna Sharma
Mr. President Before you proceed to take up the business of the day I beg to put forward, with your permission, some questions for consideration. Sir, have I your permission?


4.22.8
President
The practice so far has been that, when any question is brought forward, it is considered whether permission to debate any matter relating to it is to be given or not. No question has been raised so far. I do not know what you intend saying. I think that permission will be given if what you intend saying is found to be proper and in order.


4.22.9
Balkrishna Sharma
Though no question has so far been raised yet my prayer is that I may be permitted to explain my purpose, and a discussion may follow on it thereafter.


4.22.10
President
I do not know what you intend saying. If you had seen me and explained your purpose before, I may have given you permission. As no question has been so far raised, I do not see how I can give you the permission to speak at this moment.


4.22.11
Biswanath Das
Mr. President, before you go on to the other items of the agenda I beg to invite your attention to the communique issued under the authority of Government on the decision regarding allotment of Armed Forces as per recommendations of the Sub-Committee. Sir, the decision is said to be final. It is said that it is a rough and ready division on communal basis based on the unanimous recommendation of the Armed Forces Reconstitution Sub-Committee, and it is said that this relates to allotment of ships etc., and that the requirements of each Dominion have been kept in view.


4.22.12
President
Mr. Das, I do not think the Constituent Assembly as such is concerned with any statement in any newspaper, at any rate, at this stage. Therefore the question does not arise.


4.22.13
Biswanath Das
I am only submitting to you the contents to judge the relevancy of it. This concerns important questions of division of assets of India and has made us all anxious. This is practically the Legislature and Sovereign body. This matter is agitating the minds of all people.


4.22.14
President
I think you are suffering under a misapprehension. We are not yet the Legislative Assembly. We are still only the Constituent Assembly as it has been functioning so far. If this were the Legislative Assembly you might perhaps bring that in. Now I do not think that question arises.


4.22.15
Mr. H. R. Guruv Reddy
On behalf of the Mysore chosen representatives, I would like to bring to the notice of the President that we have not yet been supplied with any literature, particularly the Rules of Procedure. We have made the request to the Office but we have not so far been supplied. We do like to take part in the proceedings but we are unable to take part on account of this. We request you kindly to give necessary instructions to the Office.


4.22.16
President
The Secretary will take note of that and do the needful.


4.22.17
H. J. Khandekar
On a point of information, I would like to know how many Scheduled Caste members have signed from the Indian States out of those who have presented their Credentials.


4.22.18
President
I am afraid this office is not in a position to answer this question. Perhaps at a later time you may get full information from the Secretary.


4.22.19
Tajamul Hussain
May I know from you, Sir, if any member from Sylhet is present here to-day?


4.22.20
Sardar K. M. Panikkar
On a point of order. Is there a question time for this Constituent Assembly?


4.22.21
President
There is no time fixed. I have given that latitude to the members. I hope it will not be abused.

ADDRESS BY PRESIDENT

4.22.22
President
Hon'ble Members, we are meeting today after an interval of two and a half months. During this period many important events have occurred to which I believe I should refer. The most important of these was the statement of His Majesty's Government made on June, the 3rd. This statement has profoundly affected Indian politics. One of its results has been the division of India, and it has also been decided to partition two provinces. Further, as a consequence of this, discussions are taking place, so far as I know, in the Government of India and the Provinces, concerned regarding the details of the Partition, and actual work relating to Partition is also proceeding. Besides this, changes in the membership of this Constituent Assembly have occurred. In Place of the members who formerly represented Bengal and Punjab some new and some former members have been returned in the new elections held in these two (which have now become four) provinces. Many States which had so far kept aloof from this Assembly have now sent in their representatives. The members belonging to the Muslim League who had so far remained absent are also attending the Assembly now.


4.22.23
President
The Constituent Assembly had appointed a number of Sub-Committees. Reports of these Sub-Committees have appeared in the Press and also been sent to the members. These reports, as they are now ready, will be placed before the House from time to time and you will be called upon to give your considered decisions on them. One of these Sub-Committee had been appointed to draft a model Constitution for the Provinces. Another was appointed to determine and recommend to us the principle on which the Union Constitution was to be based, and to prepare a rough draft of the Union Constitution as well. A third Committee was appointed to consider and determine the powers of the Union and submit its report relating to them. The reports of all the three Committees are now ready. One of these reports has been presented to the House for consideration and the reports of the other committees will be presented in due course, and I hope that the House will take its decision on them after due consideration during this session. It is my suggestion. and I believe you will approve of it, that after the House has accepted the reports some persons may be appointed to prepare the detailed draft of the Constitution, and that a Committee be appointed to go through this draft carefully and to submit its opinion on it to this House when it meets again. The draft will then be introduced in this House for detailed consideration and acceptance. Thus the Constitution would be finalised.


4.22.24
President
Another committee known as the Advisory Committee had been appointed, but it has not completed its work. It has set up the following Sub-Committees--Minority Sub-Committee, Fundamental Rights Sub-Committee, Tribal and Excluded Areas Sub-Committee. These Sub-Committees are parts of the former. One of these Sub-Committees has submitted its report, but the reports of the other two are not ready as yet. I hope that very soon the reports of these Sub-Committees will also, be submitted, so that when the Constitution is drafted these may be incorporated therein and the Constitution when finally accepted may be complete in all respects.


4.22.25
President
It is my hope that, if all this is done property, we shall be able to pass the Constitution finally after due consideration in the October meeting of the Assembly, I want that the work of the Constituent Assembly should be speeded up, because, as you are aware, according to the proposed Indian Independence Bill the Constituent Assembly would also function as the Legislative Assembly, and already there are many matters pending before the Legislative Assembly which must be taken into consideration. After some time the Budget Session would also be due. Consequently, the earlier we finish the work of the Constituent Assembly the sooner we shall have the opportunity to take in hand the work of the Legislative Assembly. But I do not want that the work of the Constituent Assembly should be done in such a hurry as to spoil any part of it. Every matter will have to be decided after full consideration. In placing this proceed hurriedly to finish the work early, irrespective of whether its consequences are good or bad. On the other hand, you must devote so much time to each matter as you consider desirable. But if you keep in view that we have to do, sitting as the Legislative Assembly, other work also, we must finish our present work as early as possible.


4.22.26
President
I welcome all the new members, and they are many, who are present today. I hope that all of us together will finish, as early as possible, the work of the Constituent Assembly and will give a Constitution that shall be agreeable and acceptable to all


4.22.27
H. V. Kamath
Mr. President, could you kindly inform the House as to how many of the States representatives are elected and how many nominated?


4.22.28
President
I am unable to do so now. The information asked for will be supplied later on.

ELECTION CHANGES FROM BENGAL AND PUNJAB

4.22.29
Sri Prakasa
Mr. President, so far as I know it was said at the time the elections to this Constituent Assembly were held that no outside authority had any control over it. I would like to be informed whether you were consulted about the changes that have taken place in Bengal and Punjab. Have these changes taken place according to the rules made by this Assembly? So far as I am aware members of this Assembly lose their membership when they submit their resignation. I would like to know if the members for Bengal and Punjab, who are no more members, lost their membership by submitting their resignation or as a result of the Viceroy's statement which led to new elections being held. If this is what has happened, and this appears to be the actual case, I would like to know your opinion and this matter and whether you consider all this proper and regular or not. We were told that once the Constituent Assembly was elected, neither any changes would be made in its constitution nor could any outsider have any authority or control over it. It appears to me that all these changes have taken place according to the statement of the Viceroy--a proceeding which is improper, unjust, illegal and contrary to the rules.


4.22.30
President
Your statement that these changes are the result of the Viceroy's statement and the consequential action taken by him on it is correct. But I believe that everyone has consented to these changes being made and so also have we done. The question of invalidity, therefore, does not arise. Moreover, now no one from among the members who had been formerly elected and have now lost their membership has submitted any petition against the termination of his membership. The newly elected members are members of this Assembly and shall continue to take part in its proceedings.


4.22.31
Balkrishna Sharma
Mr. President I want to draw the attention of the House to a point arising out of your statement. It is this. You have in your opening statement welcomed the new members and have expressed the hope that they will make their contribution to the proceedings of this Assembly and will help in the framing of such a constitution for our India............


4.22.32
President
Are you making a speech or asking a question?


4.22.33
Balkrishna Sharma
Sir, I am asking a question.


4.22.34
President
Please ask the question now.


4.22.35
Balkrishna Sharma
My question is that when you expressed this hope it must not have escaped you that the election of some members, and their number is appreciable, has been through a special procedure and that they are participating in the Assembly while putting faith in the two nation theory............


4.22.36
President
You have started making a speech; or are you asking a question?


4.22.37
Balkrishna Sharma
Have you been given the assurance that those who have been elected on the basis of the two-nation theory, will associate in your work after renouncing the two-nation theory and cooperate in furthering the common task?


4.22.38
President
A similar point was raised by Shri Deshbandhu Gupta. I then said in reply that I had no authority to forbid the members who had been duly elected from attending. I have therefore asked for no assurance and no assurance has been given to me. I have accepted all those who have been duly elected as members and on this we are acting. What all of you do here will show the intensions of each and all.


4.22.39
Unnamed Member
We could not follow your reply, Sir, in Hindi.


4.22.40
President
The question has been put in Hindi and I have to answer it in Hindi. If any one puts a question in English I will answer it in English.


4.22.41
Govind Malaviya
Sir, I would like to ask a question in order to clarify a point. My Honourable friend Mr. Sri Prakasa has raised a question, viz., that this Constituent Assembly being a sovereign body and in view of the fact that members who had been previously elected had not resigned, how have other's taken their places. You, Sir, were good enough to say that everybody seemed to have acquiesced in this position and therefore it was right. I want to ask you, Sir, whether the position is not this that if any parts of the country decide to go out of the country, or secede from it, as, happily or unhappily, parts of two provinces have by their own vote decided to, the members from those parts of the country no longer have the right to continue as members of this Assembly? I want to get this point clarified, for, in future, it will be very important. I submit that the moment any part of the country decides not to remain part of India, automatically it loses all rights with regard to this Assembly.


4.22.42
President
I take it that any member elected from a part of a Province which has succeeded is not entitled to sit here: and I do not think any member like that is here.


4.22.43
H. J. Khandekar
What about Mr. Sidhwa?


4.22.44
President
Mr. Sidhwa was your representative. (Laughter), and elected by you from the C.P. and Berar.

MESSAGE FROM THE CHAIRMAN OF THE BURMA CONSTITUENT ASSEMBLY

4.22.45
President
We shall now go to the next item of business.


4.22.46
President
I am sure the Assembly will be glad to hear the message we have received from the Chairman of the Burma Constituent Assembly, in reply to the message that we had sent them.

"On behalf of myself and the Constituent Assembly of Burma, I desire to thank you most warmly for your very kind message of goodwill and good wishes which has been most deeply appreciated by the Constituent Assembly and the country. Such cordial greetings and sincere good wishes from you and the Members of the Constituent Assembly of India, at the outset of our deliberations, would be a source of inspiration and encouragement to us in the task of framing a Constitution for a free and united Burma. I can assure you that a free Burma will regard it as its special duty and privilege to maintain most cordial and friendly relations with your country and to make all possible contributions to the peace and happiness of the world.

May I avail myself of this opportunity to thank you and Sir. B. N. Rau for all the kind help and assistance accorded to our Constitutional Adviser during his short stay at New Delhi and for the free gift of your publications which are found to be most valuable in our work?

May I also take this opportunity on behalf of the Constituent Assembly 'of Burma and the people of this country to send you and through you to the Members of your Constituent Assembly and the people of India our sincere good wishes, for the successful conclusion of your labours and speedy realisation of your cherished aim of establishing a free and united India?" (Cheers).

REPORT OF THE ORDER OF BUSINESS COMMITTEE

4.22.47
President
The next item on the Agenda is the motion to be moved by Mr. Munshi.


4.22.48
Mr. K. M. Mushi
Sir, I beg to move the following resolution:

"Resolved that the Constituent Assembly do proceed to take into consideration the further Report* of the Order of Business Committee appointed by the Resolution of the Assembly of the 25th January, 1947."


4.22.49
Mr. K. M. Mushi
I have great pleasure, Sir, in moving this Report of the Order of Business Committee. As the House will see, this Report is quite different from the one submitted to the last sittings of the Assembly. Many and momentous have been the changes that have occurred in this country since, the last sittings, and this Report has become necessary as a result of these changes. Some parts of the country have seceded from India and from the jurisdiction of this Constituent Assembly. By the end of this week, the British Parliament would have adopted legislation which would set India free by the 15th of August, 1947--an event for which we have been waiting for centuries; and lastly, the fetters that were imposed upon this Constituent Assembly by the plan of May 16 have fallen. These changes, therefore require that the programme of this Constituent Assembly should be reorientated in the new atmosphere to meet the new situation which has arisen.


4.22.50
Mr. K. M. Mushi
Sir, I may take the liberty of pointing out that the May 16 Plan has now gone for all practical purposes and that we as a sovereign body are moving towards reconstruction the constitution of the future in an atmosphere of complete freedom. I will take the liberty of mentioning in greater detail the change which has been referred to in a paragraph of the Report. The plan of May 16 had one motive--to maintain the unity of the country at all costs. A strong Central Government was sacrified by the May 16 plan at the altar of preserving the unity which many of us, after close examination of the Plan found to be an attenuated unity which would not have lasted longer than the making of it. There were two stages envisaged in the Plan of May 16. The stages were the preliminary stage and the Union Constituent Assembly stage. A number of committees, which the House was pleased to set up, struggled to get some kind of a strong Government of India, a Government worth the name, out of these difficulties, but, the struggle, I am, free to. confess, was not very successful. As a matter of fact, very often if I may express my own sentiment, while examining the plan of May 16 over and over again the plan looked to me more like the parricide's bag which was invented by ancient Roman law. As you know, under the ancient criminal law of Rome, when a man committed a very heinous crime he was tied up in a bag with a monkey, a snake and a cock, and the bag was thrown into the Tiber till it sank.


4.22.51
Mr. K. M. Mushi
The more we saw the plan the more we found the minority struggling to get loose, the sections gnawing at the vitals and we had the double majority clause poisoning the very existence. Whatever other Members may feel. I feel-thank God--that we have got out of this bag at last. We have no sections and groups to go into, no elaborate procedure as was envisaged by it, no double majority clause, nor more provinces with residuary powers, no opting out, no revision after ten years and no longer only four categories of powers for the centre. We therefore feel free to form a federation of our choice, a federation with a Centre as strong as we can make it, subject of course to this that the Indian States have to be associated in this great task on a footing of the four categories powers and such further powers as they choose by agreement to cede to the centre. Therefore, Sir I personally am not at all sorry that this change has taken place. We have now a homogeneous country, though our frontiers have shrunk--let us hope only for the moment--and we can now look forward to going on unhesitatingly towards our cherished goal of strength and independence. And therefore the report that was submitted to the House had to be revised.


4.22.52
Mr. K. M. Mushi
Members will be pleased to see that the bulk of the work is already done. The Provincial Constitution Committee's Report on the main structure of the constitution has been circulated to the Members of the House and it will be taken up in a day or two in due course. Then the Union Constitution Committee has already prepared a White? Paper--if I may say so--on the structure of the Union Constitution and that will also be placed before the House at this sitting.


4.22.53
Mr. K. M. Mushi
I may remind the House that the report of the Union Powers Committee was placed before the House last session. It contained the details of the powers which were implied in the four categories which we're mentioned in the May 16 plan. In view of the change, these powers had to be re-examined, and a supplementary report of the Union Powers Committee will also be placed before the House for consideration. In the report it is suggested that when these principles have been accepted by the House they will be forwarded to a drafting committee appointed for the purpose which will perform the task of framing the necessary Bills for a Constitution of the Union of India.


4.22.54
Mr. K. M. Mushi
With regard to paragraph 3 of the Report, as the House knows, several proposals for new fundamental rights have been referred back to the Advisory Committee. The Minorities Committee has still to examine several points, particularly the principles to be adopted in relation to minorities. Further, the Tribal Special Committees are at work; some of them have not completed their work and I do not know whether the work of some of them will be carried on at all. All these matters have yet to be decided by the Advisory Committee. They will go before the Advisory Committee and the report will come.


4.22.55
Mr. K. M. Mushi
In the last sentence of paragraph 3 it is suggested that the Advisory Committee should complete its task in August and the recommendations may go straight to the Drafting Committee which will draw up the necessary provisions of the Act and then they will come before this House at a later session in the form of certain provisions of the Bill. But Mr. Santhanam has moved an amendment to this Resolution of mine which I find is favoured by a considerable section of the House. The view, which I understand, is taken by fairly large numbers in this House, is that so far as the principles to be adopted in the constitution in relation to minorities are concerned, they should not be sent to the Drafting Committee straightway but that they must be placed before this House at this session; and after the principles are settled they should go before the Drafting Committee for being shaped into appropriate provisions. If that is the view of the House the Resolution of Mr. Santhanam will be accepted qualifying the last sentence in paragraph 3.


4.22.56
Mr. K. M. Mushi
Paragraph 4 of the Report suggests that the Assembly should complete its work by the end of October of this year. It is highly necessary, Sir, as you were pleased to point out that the work of Constitution making should be completed at the earliest possible moment and that if possible by November we should complete our Constitution-making work. At one time the rules were framed on the footing that we may take longer. They dealt with the question of sections and groups and various other things. At the time the rule was framed--old Rule 63--it was intended that after the general lines of the Constitution were approved by this House they should be circulated to the members of the legislature. It is not necessary to indulge in that elaborate procedure, first because the office of the Constituent Assembly has circularised a set of questionnaries to which replies have been given by members of the several Legislatures in this country and the opinions are therefore before the Committees. Secondly, things are moving so fast that we cannot go on at the pace at which we intended to go before. By the, 15th August India will be a free and independent Dominion. We want to attain that stage as early as possible and to secure a constitution of our own which will give us the necessary strength. We must not forget the fact that in the Dominion Constitution which comes into existence on the 15th August the States' representatives have no place. We want that the Constitution of the Union therefore must come into existence at the earliest possible time. If that is so we shall have to eliminate this unnecessary procedure of circulating the decision to the members of this, House. This House is sufficiently representative of all interests and there is no reason why we should unnecessary lengthen out the proceedings. Further, we know that this House is working under high pressure and within a limited time. For that purpose Members will find that in the Report of the Union Constitution Committee a provision has been made to this effect that within the first period of three years the constitution could be amended easily. In framing a Constitution as we are doing under great pressure, there are likely to be left several defects; and it is not necessary that we should have a very elaborate and rigid scheme for amending these provisions, in the first three years. Therefore, the point that is placed before the House by the Report is that on the one side the Advisory committee will continue to complete its task, on the other hand the Drafting Committee will take up the Constitution Bill and by the middle or the end of October next will be ready with the Bill for being placed before the House. It is of great importance that this Constitution should be framed as early as we possibly can do it.


4.22.57
Mr. K. M. Mushi
One other point. We have today with us the representatives of the Muslim League. I have no doubt that they an here as loyal and law abiding citizens of India and that they will co-operate with us wholly in framing as speedily as we can a Constitution for the Union in which hope I they will get and honoured place as a minority. Secondly, I may refer to the representatives, of the States who have come here and I will make only one appeal to them. The time is very short. The report envisages the formation of the Union by the end of October or at least by the end of November. The House naturally expects the co-operation of Members and the representatives from the States as partners in this urgent work of framing a Constitution.


4.22.58
Mr. K. M. Mushi
As regards the manner of the States coming into the Union, I am sure, whatever doubts they felt in the beginning, must have been dispelled by the way the Assembly has been working and by the statement issued a few days ago by the Honourable Sardar Vallabhbhai Patel which gives the fullest assurance to the States.


4.22.59
Mr. K. M. Mushi
As far as the Members of the Constituent Assembly are concerned, they want the States to come in. On the basis of the May 16 Plan, I am sure the representatives from the States will be equally glad to come to an early decision.


4.22.60
Mr. K. M. Mushi
I only want to say one thing. Time is of the essence of our activities here. We have to face the world with the determined purpose of framing a Constitution for a strong India which will be great and powerful. The world, I am afraid, is moving towards another crisis, and when that crisis comes--may it never come--it should not find us unprepared.


4.22.61
Mr. K. M. Mushi
With these few words, I place this Report before the House for its consideration.


4.22.62
Mr. K. M. Mushi
I have no Objection whatever to accept the amendment which Mr. K Santhanam is proposing to move.


4.22.63
K. Santhanam
Sir, I beg to move:

"Add the following at the end of the motion:

'Resolved further that with the exception of para. 3, the Report be adopted and the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas be called upon to formulate at an early date and if possible before the end of this session the general principles to be adopted in the Constitution in relation to minorities for Consideration and decision of the Assembly prior to their incorporation in the draft of the Constitution and when the principles are so approved, the procedure proposed in para. 3 may be followed'."


4.22.64
K. Santhanam
I need not say much about the need for this amendment. We all know how our minds are greatly exercised about the principles to be followed regarding the safeguarding of the rights of minorities. If they are incorporated in the Draft Constitution, we shall find ourselves greatly handicapped in changing them. There will be a great deal of heart-burning if any important changes are sought to be made After the Draft is published, circulated and even commented upon in the press and on the platform. Therefore, it is essential that, like the other principles of the Constitution, the principles regarding electorates franchise and similar matters should first be approved and then only they should be put in the Draft.


4.22.65
President
Does any Member wish to speak on the motion before the house?


4.22.66
Naziruddin Ahmad
Mr. President. Sir, I am a new-comer to this House. I find from the motion moved by K. M. Munshi that what is proposed to be taken into consideration is the 'further Report' of the Order of Business Committee. It means that there was an earlier report. We have no copy of it. This puts us under a handicap.. It is very necessary for us to know what has been done already.


4.22.67
Naziruddin Ahmad
Secondly, we should have official copies of the May 16 Statement and also of the June 3 Statement. Although everybody has read them, we should like to have official copies of the same. Only then will it be possible for us to proceed in a systematic manner.


4.22.68
Naziruddin Ahmad
The Mover of the Resolution has appealed to the Members of the Muslim League to be loyal and law-abiding citizens of India. I should have thought that there was no need for any doubt whatever regarding the fact that we have come here as loyal and law-abiding citizens of India. (Applause). I submit with due humility that we have come here to take part in the deliberations of this House in framing a Constitution as quickly and as reasonably as we can. But we, the new-comers, require a little time to study the previous report, the debates and other relevant papers, before we can take a useful part in the House.


4.22.69
R. V. Dhulekar
I agree with the Report submitted by Mr. Munshi and with what has said regarding the work that this Constituent Assembly should have done so far. I want to speak about some matters which will come before the House. The first is that recently some changes have occurred, with the result that some have ceased to be members of the Constituent Assembly and new ones have been elected, in their place. The new members, who have come here, will take some time to understand all that we have done. Thus we have to review the work that this Constituent Assembly has done during the past six months, and so long as we do not take into consideration what has been already accomplished we cannot proceed further. We have to think over it. We find that India has now been divided into two and we have to see whether the Constituent Assembly should stick to the views it adopted at the time of its inception or whether it should change them. We have to consider that also, because there are many things which are proper at a particular time which cease to be so when the times have changed. The first thing that we have to note in the proceedings of the past few months is that we promised in the Objectives Resolution, which was moved in the House, that the people residing in India would be protected in every way and their culture, language and civilization would be fully safeguarded. We have to consider now whether the significance of these safeguards should continue to be what it was when they were accepted or it has to be altered. In my opinion it is necessary now to change our point of view and I think it necessary to amend the resolution that we have passed and also change the views expressed in discussing that resolution. At that time I raised the point that this Constituent Assembly should adopt Hindustani as its language. Now I submit that we have to reconsider the question of our language and script. The second thing that has been recorded in the Report relates to the month of October or November. It is said that this Constituent Assembly will now be converted into Central Assembly and we have to consider as to what will be the position of those who are members of the Provincial Legislature and have been returned to the Constituent Assembly. Some people say that the members of Provincial Assemblies, who have come here, will be requested to go back..........


4.22.70
President
Mr. Dhulekar, I think you have strayed far from the matter under consideration.


4.22.71
R. V. Dhulekar
No, Sir; I am not far from the point.


4.22.72
President
I have been under the impression that I was doing my job and I feel that you have strayed far from the point. The question before us is whether we accept the programme or the time-table submitted to us in this Report. You are raising too many questions and this is not the time for you to raise constitutional issues.


4.22.73
R. V. Dhulekar
Sir, I am sorry but I beg to point out that the programme submitted by Mr. Munshi makes the Business Committee, which is in existence, feel that no matters, such as new elections, should be brought up as might cause delay. Therefore, I suggest that the present members of the Constituent Assembly should continue till the Constitution has been framed.


4.22.74
President
The question as to who should continue to be its members and who should not, does not arise, The simple and straight question is whether or not you accept the time-table now submitted by the Committee. Nor is the question of language before us. Your remarks in this connection are, irrelevant. What have you to say about the time-table and the other questions before the House?


4.22.75
R. V. Dhulekar
I am sorry, but I beg to submit that it would suit the convenience of the Constituent Assembly that the existing members who have devoted all the their time to it should continue till October by which time the Constitution would be ready.


4.22.76
President
Again the same question I have already told you and the whole House that up to the time the members do not resign they continue. If anybody intends to remain as a member this question will arise.


4.22.77
R. V. Dhulekar
Sir, I am satisfied, I wish to say one word more that some opportunity should be given to the House in its present meeting to have an idea of the work already done and to be done in future. I have to say only this much.


4.22.78
Haji Abdul Sathar Haji Ishaq Sait
I just want to call the attention of the House to the fact that this important amendment was not circulated to members of the House. I am not objecting to the amendment. It is an important amendment and I am in favour of it but it is very difficult to understand it without having a copy. May I therefore request your help to see that such important amendments, as far as possible, are circulated to members, in good time?


4.22.79
President
I entirely agree with you that all important amendments should be given notice of in due time so that members may have an opportunity of studying them.


4.22.80
Hirday Nath Kunzru
May I request you, Mr. President, to talk a little louder?


4.22.81
Hirday Nath Kunzru
We Could not hear you even when you were speaking through the microphone.


4.22.82
President
I am very sorry, but nobody complained before.


4.22.83
Hirday Nath Kunzru
We can hear you now.


4.22.84
President
But I don't think I have raised my voice now.


4.22.85
Jawaharlal Nehru
It is a matter of the distance between you and the mike.


4.22.86
M. Ananthasayanam Ayyangar
I want to say a word or two about what Mr. Munshi said in moving his resolution. I do not feel very happy over what has happened, though I and others of my view have reconciled ourselves to this solution as the best, in the circumstances. I am glad, Sir, that the members of the Muslim League have come here in so far as they are residents of the Union of India. I am glad too that many States have come in. I would have been gladder still if entire India had been represented here. I am really surprised that my friend, Mr. Munshi, who stood for Akhand Hindustan, is now equally supporting this solution. I personally think that the May 16 solution was the best. I am sorry that solution has been given up. But let us not float over what has happened. Even though what has happened is the best in the circumstances, we should all hope for the day when we will come again together. If the May 16 solution which was unanimously approved had bean adhered to, the partition of Bengal, the partition of the Punjab, the secession of the North-West Frontier Province, the giving away of Sylhet, all these would have been avoided.


4.22.87
President
I entirely agree with you, but it is no use taking Mr. Munshi to task for that.


4.22.88
S.H. Prater
Sir, I rise to support the amendment. We are considering the principles of a new Provincial Constitution which deeply affect the position of the minorities and decisions may be taken at this session accepting these principles. I therefore propose that the Minorities Committee be given early opportunity to consider them and their views may receive due consideration by this Assembly before decisions are finally adopted. I therefore support the amendment.


4.22.89
Jaipal Singh Munda
Mr. President, I have great pleasure in supporting the amendment moved by Mr. Santhanam. While we all fully appreciate the urgency of expedition in the carrying on of our business here. I feel that it is quite impossible for the Report of the Excluded Areas Sub-Committee to be presented during this session. It has been suggested that big principles right be decided during this session. But, as it is, the Sub-Committee on Excluded Areas has yet to visit the Excluded and Partially Excluded areas of the provinces of Bihar and the United Provinces. While these two Provinces cannot possibly be visited during the rainy season, I do not see how the Adibasi problem and the big things that are going to affect them can possibly be decided during this session, as Mr. Munshi suggests. I think as Mr. Pratar has pointed out, it is very necessary that no 'section'--I regret I have to use the word 'section'--no portion of people of this Union should be left out when matters which vitally affect them are being considered. I wish only to point out that the Report of the Tribal Sub-Committee cannot possibly be ready till the end of August.


4.22.90
A.A. Khan
Honourable President, I oppose the Resolution which has been moved by Mr. Munshi and support the amendment. Sir, agree with you, that as in the process of this glorious task we have to solve scores of important problems, it does not behove us that we should conclude the proceedings in haste without considering them thoroughly. Sir, you have said that we should remember that the time at our disposal is short and work is long, but at the same time, we should keep in mind that we have to frame the constitution of India with due care. Contrary to this, I find in this Resolution that the Mover is of opinion that the Reports of the three Committees, which are extremely important, need not be submitted to this Assembly even after their completion. Accordingly, they are inserting the sections in the Constitution of India. The Resolution runs thus:

"We propose accordingly that the Assembly authorise the President to summon a session sometime in October, preferably in the early part of this month, for the purpose of considering the Draft Constitution."


4.22.91
A.A. Khan
Sir, so far as Fundamental Rights are concerned, we ought to get an opportunity to express, our opinion after careful consideration and then to hand over suggestions to the framers of the Constitution.


4.22.92
President
So far as Fundamental Rights are concerned, the Constituent Assembly has considered them very carefully. Now, only the Reports of Minority Committee and Tribal Areas Committee remain to be considered.


4.22.93
A.A. Khan
If this is so, I think the wording of the resolution is wrong, because in the original resolution the Committee on Fundamental Rights has been clearly mentioned. So far as the Committee on Tribal Areas is concerned I think, in the present circumstances perhaps that would almost useless. Why will it be useless? You know the reason better. But before the Minorities Committee Report is inserted in the Constitution, it is desirable that it should be placed before the Constituent Assembly and we should get the fullest opportunity to discuss it and after we have given our best thought to it, it should be drafted in accordance with the procedure laid down in this connection. Therefore, as the Honourable President in his inaugural address has pointed out, in these matters we should not be in such a hurry ad to make a mess of the whole thing. Taking my stand on this. I oppose this resolution and support the amendment.


4.22.94
Mr. Mohan Sinha Mehta
Sir, I understood from Mr. Munshi's speech-- I may be wrong--that he had anticipated and accepted Mr. Santhanam's amendment.


4.22.95
President
Mr. Munshi had said that he had already accepted the suggestion of Mr. Santhanam, Although he had not formally moved the amendment Mr. Munshi has already accepted the amendment.


4.22.96
Jawaharlal Nehru
Mr. President, I have listened attentively to all the speeches that have been made hitherto, but I fail to understand why so many speeches have been made on this subject. Unfortunately, I could not follow even Mr. Munshi's speech. In any case, it is a simple matter that we must determine our future programme and the principles involved therein. We are not concerned with whether the work is finished in this session or the next. But we must have a concrete plan before us. Mr. Munshi has now put a plan before us, and we have to take a decision on it. After all what is the debate about? We will try to finish as much work as we can during this session and take up the remainder in October or November.


4.22.97
Mr. Mahomed Sheriff
Mr. President, I endorse what has been said by Maulvi Aziz Ahmad. He has stated in his speech that no resolution, no law, and no plan can be of much use without granting adequate and satisfactory safeguards to the minorities. The principle to which the Maulvi Saheb has drawn your attention is very important. You know that if the resolution is accepted, an atmosphere of opposition and mistrust will be created among the minorities. So it is better to decide it (the minority question) at our earliest. So long as we do not find its solution, I think it would be premature to support the resolution. I, therefore, oppose this resolution and fully support the position taken up by Aziz Ahmed Saheb.


4.22.98
Sri Prakasa
Mr. President, will you please, read out the Amendment again?


4.22.99
President
The amendment moved by Mr. Santhanam This is to be added at the end of the motion.

"Resolved further that with the exception of para 3 the Report be adopted and the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas be called upon to formulate at an early date and if possible before the end of this session the general principles to be adopted in the constitution in relation to minorities for consideration and decision of the Assembly prior to their incorporation in the draft of the Constitution and when the principles are so approved, the procedure proposed in para. 3 may be followed."


4.22.100
B. Pocker Sahib Bahadur
Mr. President, first of all, I must confess the disability under which I am suffering namely that I have not been able to follow most of the proceedings which have taken place, to the extent to which they are in languages other than English. Therefore, I would appeal to the President to make provision for rendering into English the proceedings that take place here. Otherwise, it would be very difficult for us to follow and participate in the proceedings. No doubt, I do agree that it is necessary to have a common language, a lingua franca, a national language. I agree with all that. But we have to take facts as they are. As the Constituent Assembly is now constituted, it consists of members who are acquainted with various languages. All of us know that all the members of this Assembly are not familiar either with Hindi or with Urdu. There may be some members who are not familiar with English. But I take it that most of the members are familiar with English and therefore it would be a very useful procedure if the President finds his way to make the proceedings known to us all.


4.22.101
B. Pocker Sahib Bahadur
Now, Sir, as regards the proposition before the House, before dealing with that subject itself, I would like to say just one word as to the circumstances under which we the Muslim League Members have come here and have decided to participate in these proceedings. Now, Sir, you will agree that we have met here after an unprecedented event in the history of the world, namely the securing of independence for both India and for Pakistan without shedding a drop of blood.


4.22.102
Unnamed Members
No, No.


4.22.103
B. Pocker Sahib Bahadur
I know quite well that there are several members..............


4.22.104
Debi Prasad Khaitan
I rise to a point of order, I submit the speech of the Honourable Member is absolutely irrelevant to the proposition before the House. I would submit, Sir, that he should be asked to restrict himself to the motion before the House.


4.22.105
President
I would ask Honourable Members to leave that part of the task to me.


4.22.106
B. Pocker Sahib Bahadur
I know the feeling, Sir, perhaps a very painful feeling in many quarters, that what was known as India before has been reduced in extent and another kingdom namely Pakistan has been..


4.22.107
President
Will you please confine yourself to the motion before the House?


4.22.108
B. Pocker Sahib Bahadur
Sir, why I referred to that fact is only this. We have met here now after an event which has no precedent in the history of the world.


4.22.109
B. Pocker Sahib Bahadur
We are all very glad that we have met here and I congratulate Mr. Munshi for the excellent speech and for the excellent spirit in which he made it,--a speech which will be conducive to the united work of all the people concerned. I am very sorry to note that another Honourable Member has made a note of discord in his speech and I do believe that it was not quite wise on his part to have done so. We have to take the facts as they are and I may say that, so far as division is concerned, it is a matter of agreement between the two important bodies, the two great organisations in this country, namely, the Congress and the league. Both the organisations having agreed to the division, there is nothing to cry over.


4.22.110
President
May I remind the Honourable Member to confine himself to the motion before the House? I am afraid he has gone much beyond that.


4.22.111
B. Pocker Sahib Bahadur
I am only dealing with the point that has been dealt with by Mr. Munshi and referring to the reply given by another Honourable Member. If I am out of order in these circumstances, certainly I bow to your ruling and I do not want to say anything further. I have only made a reference to that. Mr. Munshi made an appeal to the members of the Muslim League to be loyal citizens of India and to cooperate. Certainly this assurance has been there and the Muslim League members will be loyally co-operating with this Constituent Assembly and they also expect a responsive co-operation from the other side.


4.22.112
B. Pocker Sahib Bahadur
Now, Sir, so far as the resolution before the House is concerned, certainly the resolution has to be carried. As regards the amendment of Mr. Santhanam, I wholeheartedly support it.


4.22.113
Unnamed Members
The question be now put.


4.22.114
Govind Ballabh Pant
I was going to move that the question be now put.


4.22.115
President
I accept that motion. I think the House does not want any further discussion.


4.22.116
President
I put Mr. Santhanam's amendment to the House.

The amendment was adopted.

4.22.117
President
The motion, as amended, is put to the House.

The motion, as amended, was adopted.
AMENDMENT OF RULES

4.22.118
President
to move.


4.22.119
Mr. President, Sir, the amendments which I have the honour to move on behalf of the Steering Committee really follow the lines which have been adopted in the Report. With your permission, Sir, I will take Rule by Rule. Sir, I move:

"That the following amendments to the Constituent Assembly Rules be taken into consideration:

'Rule 2:--In clause (b), delete the words 'Sections or' Delete clause (f) 5.55.


4.22.120
President
Does anyone wish to say anything? I put this motion which has been moved by Mr. Munshi.

(At this stage some members stated that they had not been supplied with copies of the Rules of Procedure).

4.22.121
President
I am told that copies have been sent to the addresses of the members but still such copies as are available in the office will be supplied to the new members.


4.22.122
Mr. Sarangdhar Das
We might take up the discussion tomorrow.


4.22.123
Diwan Bahadur Sir A. Ramaswami Mudaliar
Sir, I would like to support the suggestion that the Rules may be taken up tomorrow for consideration.


4.22.124
President
The amendments are of a formal character. But if members want it tomorrow, I am afraid I shall have to adjourn the House We can take up the Resolutions. As there is some objection on the part of some members that they have not got copies of the Rules of the Assembly and they would like to have them before the amendments are moved, I am afraid there is no option but to adjourn discussion of the Rules till tomorrow. There are certain other motions that we can take up.

ELECTION OF MEMBERS TO COMMITTEES

4.22.125
President
The next is regarding the election of Vice-Presidents. It cannot be taken up today because it is consequent upon a change in the Rule. So that also will have to be put off till we pass the amendments to the Rules.


4.22.126
President
Mr. Satyanarayan Sinha will move the next Motion.


4.22.127
B. Pattabhi Sitaramayya
To say that two Vice-Presidents will be elected is not opposed to the Rule. We may proceed to do that.


4.22.128
President
He can take that up later.


4.22.129
Satyanarayan Sinha
The motion which stands in my name, Mr. President, is of a formal character:

"Resolved that this Assembly do proceed to elect, in the manner required under Rule 41(1) of the Constituent Assembly Rules, two member to be members of the Staff and Finance Committee."


4.22.130
Satyanarayan Sinha
You know, Sir, last time we had elected the Staff and Finance Committee by this House. Since then some of the members who were originally elected cease to be members of this House and under the Rules, when they cease to be members of the House, they cease to be members of the Committee. Therefore, there are vacancies on this Committee and the manner in which the vacancies are to be filled up is to be determined by the President. I therefore commend to this motion for your acceptance.


4.22.131
President
This Resolution has been moved by Mr. Satyanarayan Sinha.

"Resolved that this Assembly do proceed to elect, in the manner required, under Rule 42(1) of the Constituent Assembly Rules, two members to be members of the Staff and Finance Committee."

The motion was adopted.

4.22.132
Satyanarayan Sinha
Sir, I move:

"Resolved that this Assembly do Proceed to elect, in the manner required under Rule 44(3) of the Constituent Assembly Rules, three members to be members of the Credentials Committee."


4.22.133
Satyanarayan Sinha
I have to say the same thing which I said in regard to the first motion. The members originally elected for this Committee have ceased to be members of this House. Therefore, the House has got to elect three members from amongst its present members in the manner to be determined by the President.


4.22.134
Unnamed Member
We have not got the Rules.


4.22.135
President
The motion is only that certain members have to be elected according to rules to certain Committees. If we adopt the motion, then we will elect them according to the rules and before we elect them you will get the rules, I supposes! (Laughter.)


4.22.136
President
I do not think any discussion on this either is necessary. I shall put the motion to vote.

The motion was adopted.

4.22.137
Satyanarayan Sinha
Sir, I move:

"Resolved that this Assembly do proceed to elect, in the manner required under rule 45 (2) of the Constituent Assembly Rules, three members to be members of the House Committee."


4.22.138
Satyanarayan Sinha
I have to say the same thing as I said in regard to the previous motion, because the original members elected to this Committee have ceased to be members of the House since.


4.22.139
President
I put this also to vote now.

The motion was adopted.

4.22.140
Satyanarayan Sinha
Sir, I move:

"Resolved that this Assembly do proceed to elect. in the manner required under rule 40(2) and (5) of the Constituent Assembly Rules, nine members to, be members of the Steering Committee."


4.22.141
Satyanarayan Sinha
In this connection, I would like to invite your attention, Sir, to Rule 40 which says:

"A Steering Committee shall be set up for the duration of the Assembly and shall consist initially of eleven members (other than the President) to be elected by the Assembly in accordance with the principle of proportional representation by means of the single transferable vote."


4.22.142
Satyanarayan Sinha
Last time we had elected 11 members. Out of the original members elected by the House, three have ceased to be members of this House. Therefore, there are three casual vacancies. You will find under the same rule, sub-rule (2) the following:

"The Assembly may from time to time elect, in such manner as it may deem appropriate, eight additional members, of whom four shall be reserved for election from among the representatives of the Indian States."


4.22.143
Satyanarayan Sinha
Out of these additional eight members, four seats were reserved for the States. Out of those four, last time we had elected two from amongst the members of the States, so that there are two vacancies to be filled up out of the seats allotted to the States. The other four seats we have got to fill up by election of members from the General Constituency. Now these six vacancies have to be filled by the method of proportional representation and the three casual vacancies in the manner to be determined by the President. What I am suggesting is that just as we elected two Members from among the States representatives by the method of proportional representation, so I would commend to this House that they will accept that the other six vacancies may also be filled by proportional representation and out of these six, two will be reserved for the States representatives. The other three vacancies will be filled up like other committees by election in a manner to be determined by the President, as he deems fit.


4.22.144
President
Is it necessary to have any discussion on this? I put the motion to vote.

The motion was adopted.
ELECTION OF VICE-PRESIDENTS

4.22.145
President
Now, there is one Resolution which we have to consider and that is with regard to election of two Vice-Presidents, Under the Rule as it stands at present, there are two Vice-Presidents to be elected by the House and there were to be three Vice-Presidents ex-officio who would have been the Chairmen of the three Sections. Now the amendment that is proposed is that since Sections are not going to meet, all references to Sections should be omitted from the Rules and therefore those three Vice-Presidents will not now be Vice-Presidents at all because there will be no Sections whose Presidents would have been ex-officio Vice-Presidents of the Constituent Assembly. Dr. H. C. Mookerjee was the Vice-President who was elected last time, but after the new set-up he ceased to be a member of the Constituent Assembly because all members of the Constituent Assembly from Bengal have ceased to be members. He has been re-elected. but since he ceased to be a member so he ceased to be the Vice-President also. Now, someone has to be elected in his place. I do not know whether members may like to re-elect him, but that is a different matter. What I am suggesting is that there is no real difficulty because the is no intricate question. The motion is merely that two Vice-Presidents have to be elected. Of course, the election may take place tomorrow or day after, but at present all you have to say is that these two places of Vice-Presidents should be filled up. If the members have no objection, then I might ask the mover to move the Resolution, but if there is any objection on the part of any member I would rather put it off.


4.22.146
Unnamed Members
There is no objection.


4.22.147
President
Then, Mr. Satyanarayan Sinha, you may please move this.


4.22.148
Satyanarayan Sinha
Sir, I move:

"Resolved that this Assembly do proceed to elect two Vice-Presidents in accordance with the provisions contained in the Constituent Assembly Rules."


4.22.149
Satyanarayan Sinha
Sir, you have already explained that we have got to elect only two Vice-Presidents. Last time we elected only one Vice-President and left the other seat to be filled up later. Dr. Mookerjee was unanimously elected Vice-President of this House. He ceased to be a member of this House on account of the Bengal Partition. I am glad that he has been re-elected to this House, but under the Rules the position has not changed. He is after all a newly elected member and we have also to elect another Vice-President. The manner in which the election will be held will be determined by the President.


4.22.150
Dr. N. B. Khare
Sir, while I support the Resolution, I would suggest that out of the two Vice-Presidents.......


4.22.151
Unnamed Members
Mike, please.


4.22.152
Dr. N. B. Khare
I am speaking very loud (laughter)--one seat--should be from the States Group.


4.22.153
President
I am sorry, Dr. Khare, I have not heard what you said. (Renewed laughter.)


4.22.154
Dr. N. B. Khare
While supporting this Resolution I would respectfully suggest that out of the two Vice-President one should be from the States representatives.This does not mean that I want this on the basis of proportional representation for the States.


4.22.155
President
I put the motion to vote.

The motion was adopted.

4.22.156
President
I would now make some announcements. Now that we have decided that all these elections should take place I have to fix a time for putting in nominations and also for voting if it becomes necessary. I am fixing the times as follows:


4.22.157
President
Nominations will be received by the Secretary up to 1 P.M. on the 16th. I have given 48 hours from now for the nominations. The elections, if necessary, will be held in accordance with the principle of proportional representation by means of single transferable vote between 3 and 4 P.M. on the 17th in the Under Secretary's room, No. 25 ground-floor. This relates to the various Sub-Committees with regard to which we have just passed Resolutions.


4.22.158
President
With regard to the Vice-Presidents, there is no question of proportional representation there, but we have certain rules, according to which that election will take place. I have fixed 5 P.M. tomorrow for receiving nominations and the elections will take place on the following day, if necessary, at 4 P.M. in the same room, mentioned above.


4.22.159
President
There is one thing more which I would like to mention to the House before we adjourn today and that is with regard to the timing of our sessions from to-morrow onwards. The Secretary, according to our usual procedure has notified that tomorrow we will begin at 10 o'clock. I was suggesting that it would be better if we sit in the afternoons every day i.e.from 3 to 6 P.M. That would give members plenty of time to consider the various proposals that will be coming up; they will have the whole of the morning at their disposal for this purpose. Therefore, I would suggest that we have our sessions from 3 to 6 P.M. from tomorrow onwards.


4.22.160
Tajamul Hussain
Sir, I would like to point out that to have the sittings from 3 to 6 P.M. would be rather inconvenient to the members because that will be a very hot time. We have to come from long distances and in order to be here by 3 we have to leave our houses by say 12 or 1 P.M. The best time would be the mornings as we have had today. We may, if necessary, have the sittings from 11 A.M. to 1 or 1-30 P.M.


4.22.161
President
I may point out that Delhi is quite hot even at 1 o'clock--the time of going back. It will not make any difference if you go at 1 o'clock at about 2 P.M.


4.22.162
May I point out that the month of Ramzan will be starting in a few days' time and it would be very inconvenient for Muslim members to sit from 3 to 6 P.M. because the time for breaking the fast will be soon after that? So I would suggest that the morning time would be the best for all.


4.22.163
President
I do not know when Ramzan commences. We can consider the question again when Ramzan begins. We shall in any case be finishing of at 6 P.M. which is at least one hour before sun-set. Here the sun sets after 7 P.M. I take it that the House accepts my suggestion.

The House stands adjourned till 3 P.M. tomorrow.
The Assembly their adjourned till 3 P.M. on Tuesday, the 15th July, 1947.

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


AMENDMENTS OF THE RULES

4.23.1
President
I shall now take up the amendments of the Rules.

RULE 2

4.23.2
Sir, I propose to move my amendments rule by rule. Perhaps that would be more convenient to the House. Sir, I move:

“That in clause (b) of Rule 2 the words 'Sections or' be deleted and also that clause (f) be deleted.”


4.23.3
As the House will see both these clauses refer to Sections. Rule 2, clause (b) says:

"‘Chairman’ means the person who for the time being presides over the Assembly or any of its Sections or Committees.”


4.23.4
There are to be no sections and therefore the word “Sections or” have to be deleted. Also, clause (f) which refers to Sections should be deleted from the Rules.


4.23.5
President
The question is:

"That. in clause (b) of Rule 2 the words 'Sections or' be deleted and also that clause (f) be deleted."

The motion was adopted.
RULE 3

4.23.6
Sir, I move:

"That in Rule 3 the words 'or any Section thereof' be deleted."


4.23.7
President
The question is:

"That in Rule 3 the words 'or any Section thereof' be deleted."

The motion was adopted.
RULE 4

4.23.8
K. Santhanam
Sir, I have an amendment to Rule No. 4. I move:

"That the Proviso to Rule 4 be deleted."


4.23.9
K. Santhanam
This is consequential to the abolition of the Indian Legislative Assembly and the proviso ceases to have any meaning. Therefore, I move for its deletion.


4.23.10
Sir, I accept the amendment moved by Mr. K. Santhanam.


4.23.11
Sri Prakasa
What happens to the Members who represent these constituencies (Delhi or Ajmer-Mewara) at the present moment in the Constituent Assembly?


4.23.12
The present members will continue but, in case there is a vacancy a provision being made, in the amendment that is going to be moved by Mr. K. Santhanam to Rule No. 5 Special provision has been made for it.


4.23.13
President
The question is:

"That the Proviso to Rule 4 be deleted."

The motion was adopted.
RULE 5

4.23.14
Sir, I move:

"'That in sub-rule (2) of Rule 5, delete the words 'or the appropriate authority in British Baluchistan'."

"That for sub-rule (6) the following be substituted:

'(6) As soon as may be after the receipt of the request mentioned in sub-rule (2) the Speaker of the Provincial Legislative Assembly concerned--

(a) shall appoint by suitable notification a person to be the Returning Officer for the election and may also in like manner appoint any person who may, subject to the control of the Returning Officer, perform all or any of the functions of the Returning officer at any such election, and

(b) shall also appoint by suitable notification--

(i) a date, not later than fifteen days after the date of notification, for the nomination of candidates;

(ii) a further date, not later than the third day after the first-mentioned date, for the scrutiny of nominations;

(iii) a further date, not later than two days after scrutiny, for withdrawal of his candidature by a candidate; and

(iv) a further date, not later than twenty one days from the date fixed for withdrawal, on which a poll shall if necessary, be taken.' "


4.23.15
The reason for these amendments is that no provision was made for the appointment of a Returning Officer and it has been found that such a provision is necessary.


4.23.16
President
The question is:

"'That in sub-rule (2) of Rule 3, delete the words 'or the appropriate authority in British Baluchistan'."

"That for sub-rule (6) the following be substituted:

(6) As soon as may be after the receipt of the request mentioned in sub-rule (2) the Speaker of the Provincial Legislative Assembly concerned--

(a) shall appoint by suitable notification a person to be the Returning Officer for the election and may also like manner appoint any person who may, subject to the control of the Returning Officer, perform all or any of the functions of the Returning Officer at any such election and

(b) shall also appoint by suitable notification--

(i) a date, not later than fifteen days after the date of notification, for the nomination of candidates;

(ii) a further date, not later than the third day after the first-mentioned date, for the scrutiny of nominations;

(iii) a further date, not later than two days after scrutiny, for withdrawal of his candidature by a candidate; and

(iv) a further date, not later than twenty-one days from the date fixed for withdrawal, on which a poll shall, if necessary, be taken."

The motion was adopted.

4.23.17
Shri Santhanam
Sir, I move:

"That in sub-rule (2) of Rule 5, after the words 'as the case may be' the words 'the Advisory Councils of Delhi and Ajmer-Merwara' be inserted."

"That in sub-rule (5) of Rule 5, after the words 'in any part of India', the words 'which is participating or entitled to participate in this Assembly' be inserted".

"That for sub-rule (11) of Rule 5, the following be substituted:

"The foregoing rules shall apply in relation to Delhi and Ajmer-Merwara subject to the following modifications, namely:

(a) that for the 'the Provincial Legislative Assembly' there shall be substituted 'the Delhi Advisory Council or the Ajmer-Merwara Advisory Council as the case may be; and for the 'the Speaker of the Provincial Legislative Assembly' there shall be substituted 'the Chairman of the Delhi or Ajmer-Mewara Advisory Council as the case may be'.

(b) that instead of a section of the Provincial Legislature taking part in the election, the non- official members of the Delhi or the Ajmer-Merwara, Advisory Council shall take part in it."


4.23.18
Shri Santhanam
These are all consequential to the changes that have been made and I do not think any further explanation is needed.


4.23.19
Sir, I accept the amendments moved by Mr. Santhanam. They carry out the idea that the representatives of Delhi and Ajmer-Merwara have to elected by the respective Advisory Councils.


4.23.20
President
The question is:

"That in sub-rule (2) of Rule 5, after the words 'as the case may be' the words 'the Advisory Councils of Delhi and Ajmer-Merwara' be inserted."

"That in sub-rule (5) of Rule 5, after the words 'in any part of India', the words 'which is participating or entitled to participate in this Assembly' be inserted".

"That for sub-rule (11) of Rule 5, the following be substituted:

"The foregoing rules shall apply in relation to Delhi and Ajmer-Merwara subject to the following modifications, namely:

(a) that for 'the Provincial Legislative Assembly' there shall be substituted 'the Delhi Advisory Council or the Ajmer-Merwara Advisory Council as the case may be'; and for 'the Speaker of the Provincial Legislative Assembly' there shall be substituted 'the Chairman of the Delhi or Ajmer- Merwara Advisory Council as the case may be'.

(b) that instead of a section of the Provincial Legislature taking part in the election, the non- official members of the Delhi or the Ajmer-Merwara Advisory Council shall take part in it."

The motion was adopted.

4.23.21
Sir, I move:

"'That after sub-rule (6) of Rule 5 the following new sub-rule be inserted:

'(6) A. The Speaker of the Provincial Legislative Assembly concerned shall, if a poll is taken, by suitable notification, fix the hour at which the poll shall commence and the hour at which it shall close on the date fixed under sub-clause (iv) of clause (b) of sub-rule (6) and the place at which the poll shall be taken.'"

"that the following be added at the end of sub-rule (9) of Rule 5:

'where any such rules or regulations exist, it shall be competent for the Speaker of the Provincial Legislative Assembly concerned to make, with the previous approval of the President, such modifications therein as may be necessary for the purposes of this sub-rule.' " '


4.23.22
This completes the mechanism for holding the election. In Rule 5 we have added a provision with regard to the Returning Officer. With a view to completing the whole mechanism of election it is necessary that the Speaker should be authorised to have a poll taken, if required. Also, there may be rules which may be required to be modified and it may not be possible to come to the Constituent Assembly. In order to complete the elections therefore, the Speaker may be authorized, with the previous approval of the President, to modify the rules.


4.23.23
Mr. K. Chengalaraya Reddy
Sir, when the previous amendment was moved, I stood up to raise a question as to what was the provision made for filling up a vacancy if it arose in an Indian State. I was told by an Honourable friend that the provision was incorporated in the Rules, and I then sat down. But now, an amendment has been moved laying down the procedure to fill up vacancy by by-election. On a cursory reading of the Rules, I do not find that any provision has been made for filling up a vacancy, if it arose, in an Indian State. I therefore suggest that a suitable provision may be made in the Rules of Procedure.


4.23.24
There is some misunderstanding. As regards elections with respect to Indian States, a Standing Order has been made by the President and they will be governed by the Standing Orders.

shall commence and the hour at which it shall close on the date under sub-clause (iv) of clause (b) of sub-rule (6) and the place at


4.23.25
These relate to the Chief Commissioners provinces.


4.23.26
President
The question is:

"That after sub-rule (6) of Rule 5 the following new sub-rule be inserted:

'(6) A. The Speaker of the Provincial Legislative Assembly concerned shall, if a poll is taken, by suitable notification fix the hour at which the poll which the poll shall be taken.' "

'That the following be added at the end of sub-rule (9) of Rule 5:

'where any such rules or regulations exist, it shall be competent for the Speaker of the Provincial Legislative Assembly concerned to make, with the previous approval of the President, such modifications therein as may be necessary for the purposes of this sub-rule."'

The motion was adopted.
RULE 10

4.23.27
I come to Rule No. 10. that is with regard to the convening of a meeting of the Sections. I move that the whole of the rule be deleted.


4.23.28
Sri Prakasa
I sent notice of an amendment this morning for the insertion of a new rule after Rule 5.


4.23.29
President
I understand that this notice was received this morning.


4.23.30
Sri Prakasa
I could not send it earlier. I sent it today at 10 o'clock.


4.23.31
President
Is it not too late?


4.23.32
Sri Prakasa
I think the amendment is an important one because it fills in a lacuna in the existing rules. If you will permit me I shall move it.


4.23.33
May I rise to a point of order? Our Rule 66 states that "No new rule shall be made nor shall any of these rules be amended or deleted except after a reference of the proposal so to make amend or delete the rule to the Steering Committee which shall report to the Assembly within two weeks of the of the receipt of the reference".


4.23.34
Sri Prakasa
I am in your hands. I am only trying to fill in a lacuna. New elections have taken place. Rules 4 and 5 have been violated by an outside authority. All the new elections that have taken place in Bengal and the Punjab will otherwise be ultra vires.


4.23.35
President
Will you please wait till we have finished the other Rules? In the meantime, I shall consider it.


4.23.36
President
The question is:

"The rule 10 be deleted."

The motion was adopted.
RULE 11

4.23.37
Sir, I move:

"That in Rule 11 for the words 'five Vice-Presidents' the words 'two Vice-Presidents' be substituted, and the following be inserted at the end of this rule:

'who shall be elected by the Assembly from amongst its members in such manner as the President may prescribe'."


4.23.38
Rule 11 provides for five Vice-Presidents, and this is interconnected with Rule 12 which says that the Chairman of each of the sections shall be an ex-officio Vice-President of the Assembly. As there are no sections now all this becomes unnecessary. As a result, there will be two Vice-Presidents both of whom will be elected by the Assembly as a whole. Sir, I move.

The motion was adopted.
RULE 12

4.23.39
Sir, I move that Rule 12 be deleted. That is consequential. Sir, I move.

The motion was adopted.
RULE 13

4.23.40
Sir, I move:

"That in Rule 13 for the words 'Rule 12(1)' the words 'Rule 11' be substituted."


4.23.41
In Rule 13, the election of two Vice-Presidents is referred to as being under Rule 12 (1). Now, Rule 12 having gone and the matter having been incorporated in Rule 11, Rule 13 should be amended accordingly. Sir, I move.

The motion was adopted.
Rule 14

4.23.42
Sir, I move:

"That in sub-rule (2) of Rule 14 for the words 'an elected' the word 'a' be substituted and that the words 'as a whole' be deleted."


4.23.43
Rule 14 says that a Vice-President shall cease to hold office as such if he ceases to be a member of the Assembly. "Any vacancy in the office of an elected Vice-President of the Assembly shall be filled by election by the Assembly as a whole." In view of the changes that have already been made there is no reason to have the words "an elected" because both the Vice-Presidents are elected. Also, there is no reason to keep the words "as a whole" because both the vice-presidents are going to be elected by the House as a whole. Sir, I move.

The motion was adopted.
Rule 17

4.23.44
Sir, I move:

"That in Rule 17 'sub-rule (6)' be deleted, and in sub-rule (8) the words 'or a Joint Secretary' be deleted."


4.23.45
Sub-rule (6) provides for the Secretary of the section and it lays down that the Secretary of the section shall be a Joint Secretary of the Assembly. As there are no Joint Secretaries the sub-rule should be deleted. Further the words "Joint Secretary appeal” in sub-rule (8) and these words should be deleted. Sir, I move.

The motion was adopted.
RULE 18

4.23.46
Sir, I move:

"That in Rule 18 the words 'sections and the' be deleted."

The motion was adopted.
RULE 19

4.23.47
Sir, I move:

"That in Rule 19, 'sub-rule 1(iii)' be deleted and in sub-rule 1(iv) the words 'or the sections' be deleted."

The motion was adopted.
RULE 23

4.23.48
Sir, I move:

"That after Rule 23 the following be inserted as Rule 23A--

23A. (1) The presence of at least one-third of the whole number of members shall be necessary to constitute a meeting of the Assembly or any of its committees.

(2) If the Chairman, on a count being demanded by a member at any time during a meeting, ascertains that one-third of the whole number of members are not present, he shall adjourn the Assembly or the committee, as the case may be, for fifteen minutes, and if on a fresh count being taken after that period it is founds that there is still no quorum he shall adjourn the Assembly or the committee as the case may be, till the next day on which it ordinary sits.'"


4.23.49
On the last occasion the question of quorum was not decided by the rules and it was left over to be incorporated in an additional rule. Sir, I Move.


4.23.50
K. Santhanam
Sir, I am not moving the amendment that stands in my name.


4.23.51
Sri Prakasa
Sir, may I know if these amendments of Mr. Munshi and the further amendments moved by Mr. Santhanam had been referred to the Steering Committee and if all this is in the nature of a note by the Steering Committee? Or are Mr. Munshi and Mr. Santhanam moving these off their own bat?


4.23.52
These rules are not my own; these are the report of the Steering Committee which I am placing before the House. They were initiated by the Steering Committee and I am moving them on behalf of the Committee.


4.23.53
Sri Prakasa
Then what about Mr. Santhanam's amendments?


4.23.54
These are amendments of the rules as proposed by the Steering Committee and so they are not covered by Rule 66; they are not new rules.


4.23.55
Sri Prakasa
Sir, I do not know if you are satisfied with what Mr. Munshi says. I am not. I feel that you may just as well permit my amendment to be moved which is before you and which I think is very important.


4.23.56
President
I have asked the Honourable Member to wait till the end; the question of moving it does not arise at this stage.


4.23.57
Sri Prakasa
An occasional reminder will be helpful. (Laughter.)


4.23.58
Jaspat Roy Kapoor
Sir, I do not propose to move my amendment.


4.23.59
R. K. Sidhva
I am also not moving my amendment.


4.23.60
President
Then the amendment of Mr. Munshi will be put to the vote.


4.23.61
President
The question is:

"That after Rule 23 the following be inserted as Rule 23A--

'23A. (1) The presence of at least one-third of the whole number of members shall be necessary to constitute a meeting of the Assembly or any of its committees.

(2) If the Chairman, on a count being demanded by a member at any time during a meeting, ascertains that one-third of the whole number of members are not present, he shall adjourn the Assembly or the committee, as the case may be, for fifteen minutes, and if on a fresh count being taken after that period it is found that there is still no quorum, he shall adjourn the Assembly or the committee, as the case may be, till the next day on which it ordinarily sits."

The motion was adopted.
RULE 31

4.23.62
I now come to Rule 31. I move:

"That sub-rule (3) of this Rule be deleted."


4.23.63
Rule 31 says:

"(1) A matter requiring the decision of the Assembly shall be brought forward by means of a question put by the Chairman.

(2) In all matters requiring to be decided by the Assembly, the Chairman shall exercise a vote only in the case of an equality of votes.

(3) Any question relating to a matter referred to in paragraph 19 (vii) of the Statement shall be decided as laid down therein."


4.23.64
Now, Sir, this sub-rule (3) has no efficacy. It has no meaning. I therefore move that it be deleted.


4.23.65
M. S. Aney
Will the Honourable Mover read out paragraph 19 (vii) of the Statement.


4.23.66

"In the Union Constituent Assembly resolution, varying the provisions of paragraph 15 above or raising any major communal issue, shall require a majority of the representatives present and voting of each of the two major communities. The Chairman of the Assembly shall decide which, if any, resolutions raise major communal issues and shall, if so requested by a majority of the representatives of either of the major communities, consult the Federal Court before giving his decision."


4.23.67
This is a double majority clause which, as I said, has lost its efficacy.


4.23.68
President
The question is:

"That sub-rule (3) of Rule 31 be deleted."

The motion was adopted.
RULE 35

4.23.69
Sir, I move:

"That the two provisos to Rule 35 be deleted."


4.23.70
The rule and the provisos run as follows:

"In all matters relating to procedure or the conduct of business of the Assembly, the decision of the Chairman shall be final:

Provided that when a motion raises an issue, which is claimed to be a major communal issue, the Chairman shall, if so requested by a majority of the representatives of either of the major communities, consult the Federal Court before giving his decision:

Provided further that no Section shall deal with matters which fall within the purview of the powers and functions of the Union Constituent Assembly or vary any decision of the Union Constituent Assembly taken upon the report of the Advisory Committee referred to in paragraph 20 of the Statement."


4.23.71
For the reasons which I gave yesterday, these provisos become entirely useless. I move therefore that these two provisos may be deleted.

The motion was adopted.
RULE 36

4.23.72
I now come to Rule 36. I move first that the word 'exclusive' in the first line be deleted. It says: 'It shall be the exclusive function of the Advisory Committee referred to in paragraphs 19 and 20 of the Statement to initiate and consider proposals...’ Now that that Statement is gone, this Statement becomes useless.


4.23.73
I move next that the words "Union Constituent" wherever they occur in this Rule and the words "shall be binding on the Sections and" be deleted.


4.23.74
President
You omit only the words "Union Constituent"?


4.23.75
Yes, Sir. The word "Assembly" remains.


4.23.76
President
The question is:

"That in Rule 36,

(i) the word 'exclusive';

(ii) the words 'Union Constituent', wherever they occur; and

(iii) the words 'shall be binding on the Sections and'

be deleted.

The motion was adopted.
RULE 41

4.23.77
Sir, Rule 41 deals with the functions of the Steering Committee. Sub-rule (1) (c) runs thus: "act as a general liaison body between the Assembly and the Sections, between the Section inter se, between Committees inter se, and between the President and any part of the Assembly". I propose that in sub-rule (1) (c), the words "between the Assembly and the Sections, between the Section inter see" be deleted. These words are no longer necessary.

The motion was adopted.
RULE 42

4.23.78
In sub-rule (1) (b) of this Rule, for the word 'five', substitute the word 'two'. As there are only two-Vice-Presidents now, this change has become necessary.


4.23.79
Hirday Nath Kunzru
May I know from Mr. Munshi how the amended Rule 41 (1) (c) reads?


4.23.80
The Committee shall act as a general liaison body between Committees inter se, and between the President and any part of the Assembly.


4.23.81
Hirday Nath Kunzru
Liaison between the Assembly and the Committees?


4.23.82
No. Between the committees.


4.23.83
Govind Malaviya
Will Mr. Munshi, Sir, explain what is meant by liaison between any part of the Assembly and the President? I can understand liaison between the committees.


4.23.84
I am not responsible for that.


4.23.85
President
I am afraid the question of interpretation has been raised too late. When it becomes necessary to interpret it, we shall do so.


4.23.86
Hussain Imam
If any absurdity becomes apparent it is within the competence of the House to make the necessary consequential change.


4.23.87
President
It does not arise out of the amendment now moved.


4.23.88
President
Mr. Munshi's amendment is to Rule 42.

‘In clause (b) of Sub-rule (1) substitute the word "two" or "five".’

The motion was adopted.
RULE 45

4.23.89
I now come to Rule 45. I move that in sub-rule (2), delete the words "one representing each Governor's Province". This is also consequential. Sub-rule (2) reads as follows:-- this is about the House Committee:

"The Committee shall consist of eleven members, who shall be elected by the Assembly, one representing each Governor's Province in the manner to be prescribed by the President."


4.23.90
Now there are not eleven Governor's provinces, and the amendment would mean that there may be eleven members but not each representing a Governor's province. I move the amendment.

The motion was adopted.
RULE 46

4.23.91
The next amendment is to Rule 46 which relates to other Committees. I move:

"That the words 'or a Section according as the business of the Committee relates to the Assembly or the Section' be deleted."

This is also consequential.

The motion was adopted.
RULE 47

4.23.92
I move that in Rule 47 the words beginning with "and the Secretary of any Section, etc." to the end of the rule be deleted.


4.23.93
President
This is also consequential.

The motion was adopted.
RULE 48

4.23.94
K. Santhanam
I move, Sir, that in Rule 48 for the word "shall" the word "may" be substituted. This is purely consequential to the amendment with regard to quorum which the House has adopted today. As the rule stands, it says:

"The motion by which a Committee is to be set up shall state the quorum necessary to constitute a meeting of the Committee."


4.23.95
K. Santhanam
Because we had no rule regarding quorum, it was obligatory to state the quorum. Now we have got a rule which lays down the quorum as one-third. Therefore, this obligation is no more necessary. My amendment is that the motion by which a committee is to be set up may state the quorum, as quorum has already been provided for.


4.23.96
Sri Prakasa
May I draw your attention, Sir, to Rule 66? Has this been referred to the Steering Committee?


4.23.97
President
I do not think that the Steering Committee has been consulted, but this amendment follows from the other amendment which you have accepted. It is only consequential.


4.23.98
Sri Prakasa
I hope the same ruling will apply in my case.


4.23.99
President
The question is:

"That in Rule 48 forth word 'shall' the word 'may' be substituted'.

The motion was adopted.
RULE 49

4.23.100

"That in Rule 49 the words 'or to the Section concerned, as the case may be' be omitted."

The motion was adopted.
Rule 63

4.23.101
I move that Rule 63 be deleted. This is with regard to the consideration of the draft constitutions by the Provincial Legislatures. I gave my reasons when I presented the report of the Order of Business Committee and I need not repeat them now.


4.23.102
President
Mr. Munshi's amendment is that Rule 63 be deleted. Does anyone wish to say anything about it?

The motion was adopted.

4.23.103
Sri Prakasa
Before Mr. Munshi moves his amendment to Rule 67, I move that Rule 66 be deleted, even if it has not gone to the Steering Committee, as it is purely a consequential amendment, I hope you will permit this amendment to be moved. I think, Sir, that this Rule should go, and the Constituent Assembly should be able to exercise its inherent powers to change the rules instead of members having to go to the Steering Committee every time. I have a precedent for this in this afternoon's proceedings themselves inasmuch as the amendments to the original rules moved by Mr. Santhanam were in no way amendments to Mr. Munshi's amendments. If you will see, Sir, the amendments moved by Mr. Santhanam to Rules 4 and 5, you will find, that they were absolutely new amendments and that they did not go to the Steering Committee. Since you permitted these amendments to be moved here, I hope you will permit me also to move this amendment.


4.23.104
President
Your amendment is out of order. The amendments to which reference has been made referred to amendments placed before the House and which had come here in due course after being passed by the Steering Committee. Therefore, those amendments were perfectly in order. This Rule has never gone before the Steering Committee and therefore your amendment is altogether out of order.

RULE 67

4.23.105
Coming to the last amendment with regard to Rule 67, I move:

"That the words 'the Sections and' in the first sentence and the whole of the sentence be deleted."


4.23.106
This is also a consequential amendment.


4.23.107
President
Does anyone wish to say anything on this?


4.23.108
Jaspat Roy Kapoor
Mr. President, I am raising a point of order. Rule 67 is the rule on which Mr. Munshi has been relying so far. Rule 67, Sir, lays down that every proposal must go before the Steering Committee and the Steering Committee must consider it and must submit its report to the Assembly. Now, Sir, all these proposals which have so far been placed before us by Mr. Munshi have I understand been considered by the Steering Committee but in addition to that the Steering Committee must submit its report to the Assembly. So far, no report of the Steering Committee has been placed before us. Now, Mr. Munshi is proposing an amendment to Rule 67. I would like to know what is the report of the Steering Committee. With regard to this proposal of Mr. Munshi, if there is no report of the Steering Committee before us, I think it is out of order for him to make any proposal to amend Rule 67.


4.23.109
President
, all these amendments which he has been proposing were on behalf of the Steering Committee, and though they are put in the form of amendments, it is really the report of the Steering Committee.


4.23.110
Hirday Nath Kunzru
Was the President informed that these were the amendments to the rules which had been proposed by the Steering Committee?


4.23.111
President
There was a meeting of the Steering Committee in which all these rules and amendments had been considered and they are coming from there.


4.23.112
Jaspat Roy Kapoor
My submission is that there must be a report of the Steering Committee before us. On the agenda paper, all that we have is that Mr. Munshi shall move the proposals as are contained in the Order Paper. There has been no report of the Steering Committee before us. The report of the Steering Committee must be presented in a proper form to the Honourable the President of the Assembly either by the President or by the Secretary of the Committee. Mr. Munshi is neither the President nor the-Secretary of the Steering Committee.


4.23.113
Vallabhbhai J. Patel
On a point of order I would like to ask how this could be raised after the rules have been passed. It should have been asked at the initial stage.


4.23.114
President
I agree. The question was raised at an earlier stage and it was answered that the amendments had been considered by the Steering Committee. Probably the mistake has arisen because it is not so stated in the agenda that this is a report from the Steering Committee. Otherwise, so far as the substantial compliance with the rules is concerned, that has been done.


4.23.115
Jaspat Roy Kapoor
Then, as a matter of fact, is there any report of the Steering Committee?


4.23.116
President
It is not stated as a report but it is a report submitted by the Steering Committee. Mr. Munshi has been authorised by the Steering Committee to put these amendments before the House on behalf of the Steering Committee.


4.23.117
Vallabhbhai J. Patel
The Chairman of the Steering Committee is the President of the Constituent Assembly and the reference may be oral.


4.23.118
The position is that the President of the Constituent Assembly is the ex-officio Chairman of the Steering Committee. Naturally he cannot place the report. The ex-officio Secretary is not a member of this House and the Steering Committee has asked one of its members as a Reporter to place its decisions before this House. These rules were the rules which emanated from the Steering committee and which the Steering Committee authorised me to place before the House.


4.23.119
President
I have already ruled that the amendment is in order. Now I put the amendment which has been moved by Mr. Munshi to vote.


4.23.120
President
The question is:

"That in Rule 67 the words 'the Sections and' in the first sentence and the Whole of the second sentence be deleted."

The amendment was adopted.

4.23.121
President
There was an amendment which Mr. Sri Prakasa wanted to move. That has not gone to the Steering Committee, but I understand that the amendment which he proposes to move rectifies a lacuna in our rules. I therefore ask the permission of the House to let him move the amendment. If the House agrees, I would permit him to move it.


4.23.122
Jawaharlal Nehru
May I suggest that he be asked to send it to the Steering Committee and it may be taken up later?


4.23.123
President
It is after all more or less a formal business. It rectifies a lacuna which exists in our rules which we have discovered. So, it may not be necessary to go through the formality and send it to the Steering Committee, if the House permits it.


4.23.124
Diwan Chaman Lall
Are we bound by the rules we have made?


4.23.125
President
We are certainly bound by the rules.


4.23.126
Diwan Chaman Lall
There is no rule under which the President can ask the permission of the House. I want to know what is the proper procedure to amend the rules passed by the Steering Committee.


4.23.127
President
After hearing the amendment if the House still thinks that it should be put to the Steering Committee, then I will do so. Mr. Sri Prakasa, will you kindly read out the amendment?


4.23.128
M. S. Aney
Rule 66 seems to be very imperative and leaves no discretion to anybody. Unless some power under the rules is given to President to suspend the operation of any rule on account of emergency, I think the President cannot call upon this House to accept any amendment in order to infringe these rules.


4.23.129
President
I thought the House had power to dispense with its own rules when it liked and therefore I must not take upon myself to permit this amendment to be moved. As far as I can see there is no provision for allowing the House or the President to suspend any of the rules, but I take it that it is inherent in the House to suspend any of the rules for the time being and to permit any member to move anything which does not strictly fall within these rules.


4.23.130
Jaspat Roy Kapoor
May I draw your attention to Rule 26 which says:

"Unless otherwise directed by the Chairman, notice of every motion accompanied by a copy of the motion shall be given at least three clear days before the day on which the motion M to be moved in the Assembly........"


4.23.131
President
That only lays down the time for giving notice of any motion. That is why I said that if the House does not wish to take this up, I am not going to allow it. But if the House permits. I shall have no objection. Therefore, I put it to the House.


4.23.132
President
Will Shri Sri Prakasa read his amendment?


4.23.133
Sri Prakasa
After Rule 5, insert the following new rule:

"Notwithstanding the provisions of Rules 4 and 5 above, the Governor-General of India may, in pursuance of the statement of His Britannic Majesty's Government of 3rd June 1947, order fresh elections to the Constituent Assembly from the areas mentioned in paras 4 to 14 of that statement and thereupon the members already elected from the said areas whether or not they have taken their seats in the Assembly in the manner prescribed in Rule 3, shall be deemed to have vacated their seats and the members newly elected shall be deemed to have been duly elected as members of the Assembly. This rule shall have retrospective effect from June 3, 1947."


4.23.134
Sri Prakasa
I think, Sir, that this rule is self-explanatory. The fact is that the Viceroy acted in a manner which was contradictory to the rules that the Constituent Assembly had framed for itself. Rules 4 and 5 definitely prescribe the manner in which seats will be vacated and filled. These rules were grossly violated during the last few months and new elections were held. Many members of this House were deemed to have vacated their seats without having resigned their membership. We have all acquiesced in that.


4.23.135
Sri Prakasa
Now, Sir, in order to vindicate our own honour, I think it is imperative that we should pass a rule so that all that has happened may be sanctioned formally. If we do not pass this rule, I submit, Sir, most respectfully that the presence of the new members from Bengal and the Punjab cannot be allowed. I therefore think that it is essential that this rule should be passed. I hope the House will agree.


4.23.136
President
I would like to know whether the House would permit this amendment to be taken up. We are not now going into the merits. The question is whether it should be allowed to be discussed.


4.23.137
Jawaharlal Nehru
I am not saying anything on merits. What I was going to say is this. Even if it is taken up, this is something which the Steering Committee must consider. This is a long drawn out Rule which, even if accepted on merits, has to be looked into by lawyers and others. The question is how it should be accepted. It cannot be taken up in this manner. Otherwise, instead of removing a difficulty we might be creating other difficulties. I submit the proper course is to send it to the Steering Committee.


4.23.138
President
I am putting it to the House.

The motion to permit the amendment being taken up was negatived.

4.23.139
Sri Prakasa
Am I to take it that this amendment is lost?


4.23.140
President
It is not lost. It is not taken up. You can send it to the Steering Committee and it may come up in due course.


4.23.141
Sri Prakasa
May I respectfully enquire what will be the position of the new members who have been elected and who have taken their seats? In the light of Rules 4 and 5, will their presence be allowed?


4.23.142
President
I allowed them to take their seats yesterday. They will continue.


4.23.143
Jawaharlal Nehru
May I point that the question that Shri Sri Prakasa has raised is an important question? The question is how to do it. The bringing up of an informal amendment to the Rules is an improper way. Possibly it will be open to the House to pass a resolution or if it is necessary to change the Rules we may change them. But it must be considered by the appropriate authority. My only submission is that it cannot be taken up in this casual way.


4.23.144
Sri Prakasa
We have admitted members in a casual way.


4.23.145
President
We may now pass on to the next item.


4.23.146
H. V. Kamath
I submit that in the light of the new rules that have been made and the old rules that have been amended or deleted all the rules be renumbered omitting all A's etc.


4.23.147
President
We shall do that. I think the House has no objection to the re-numbering of the Rules consequent on the amendments. I take it that this is agreed to.


4.23.148
Govind Malaviya
Sir I think the right course will be, that the rules should all be correctly re-numbered, and then in a formal manner put before the House en bloc and adopted without any further discussion. That will regularise things.


4.23.149
Unnamed Members
Why?


4.23.150
President
We shall now pass on to the next item.


4.23.151
Mr. Deshbandu Gupta
Before the next item is taken up, Sir, may I know what has happened to the amendment of which notice had been given by me?


4.23.152
President
That shares the same fate as that of Mr. Sri Prakasa.


4.23.153
Mr. Deshbandhu Gupta
In view of the important nature of the amendment, may I submit that it may be taken up now with the permission of the House.


4.23.154
President
I think there is no use of repeating that experiment You had better leave it.


4.23.155
President
We shall now go on to the next item in the agenda. Sardar Vallabhbhai Patel will move the motion standing in his name.


4.23.156
Tajamul Hussain
Before we proceed with the motion, I would like to know what happened to the resolution which I had sent about four days ago, in connection with the motion about to be moved now?


4.23.157
President
I take it that you are referring to the dissolving of the Committee which has already completed its function and submitted its report. Is that the resolution you are referring to?


4.23.158
Tajamul Hussain
That is the only resolution I have sent you.


4.23.159
President
I have ruled it out of order because the function of the Committee is already over and it has made its report.


4.23.160
Tajamul Hussain
May I know if it is the custom of the House not to inform an Honourable Member who sends a resolution that it has, been disallowed? I have had no information of this up till now.


4.23.161
President
I have ruled it is out of order.


4.23.162
Tajamul Hussain
I accept your ruling. I am asking why I was not informed of it. Is it the practice, when an Honourable Member sends a resolution and you disallow it, that you do not inform the member concerned?


4.23.163
President
I shall take care in the future to inform members if I disallow any resolution.

REPORT ON THE PRINCIPLES OF A MODEL PROVINCIAL CONSTITUTION

4.23.164
Vallabhbhai J. Patel
Sir, I move that this Constituent Assembly do proceed to take into consideration the Report* on the principles of a model Provincial Constitution submitted by the Committee appointed in pursuance of the resolution of the Assembly of the 30th April, 1947.


4.23.165
Vallabhbhai J. Patel
This Committee has submitted its report which has been circulated amongst all the members of this House since about a fortnight and the report is in the possession of all the members. What I wish to point out in moving this motion is that report is not the final draft of the provincial constitution. According to the instructions given to the Committee, it has settled certain principles of the provincial constitution, and therefore, this House need not go into the verbal details or into the exact legal form or constitutional form of these clauses that have been submitted in the memorandum. If the various clauses in the report are, after consideration, adopted, or improved upon, then, it will be the function of the draftsmen or the lawyers who will be entrusted with the work of drafting the constitution to put them the proper form. Therefore, the House need not waste its time on going into a consideration of the language of the various clauses.


4.23.166
Vallabhbhai J. Patel
It should also be remembered that this report contains roughly about 85 per cent of the draft or 85 per cent of the principles of the provincial constitution that has to be framed. Because, you will remember that this House has appointed an Advisory Committee which has to submit its report after that Reports of the Minorities Committee and the Tribal and Excluded and Partially Excluded Areas Committee are received. These Reports have not yet been received. When they are received, in due course, the Advisory Committee will meet and consider these Reports when the question of protection of minorities rights and interests will be taken into account. It has been agreed that this Advisory Committee should meet during the course of this month and submit its report before this House disperses or meets again. Therefore, that report will come at a later stage.


4.23.167
Vallabhbhai J. Patel
Now, in dealing with the memorandum that is before you, I shall I briefly touch upon the salient features of the draft. The first question we had naturally to consider was whether the provincial constitution shall be of a unitary type or shall be of a federal type, and as there was a little difference of opinion on this question, the Committee thought it proper to have a joint session of the Provincial Constitution Committee and the Union Constitution Committee. Both these Committees met and they came to the conclusion that it would suit the conditions of this country better to adopt the parliamentary system of constitution, the British type of constitution with which we are familiar. The two Committees have agreed and the Provincial Constitution Committee has accordingly suggested that this constitution shall be a parliamentary type of Cabinet.


4.23.168
Vallabhbhai J. Patel
Some misunderstanding may arise on some of the items mentioned in Clause 9. Clause 9 provides four items under the note. The first one says, the prevention of any grave menace to the peace and tranquillity of Province or any part thereof. It means that the Governor is probably given powers in the case of a grave menace to the peace and tranquillity in the province, which, I may say, is not exactly the intention of the Committee. The Committee, in setting this question, intended to convey that the Governor shall have only the authority to report to the Union President about the grave situation arising in the province which would involve a grave menace to the peace of the province. It was not their intention that this power or authority, has to be exercised by the Governor which may perhaps bring a conflict between the Ministry and the Governor. The Governor having no control over the services, the authority of administration entirely vests in the Ministry and therefore, although there was considerable difference of opinion on this question on account of the prevailing conditions in the country,--some thought that it would be advisable under the present peculiar unsettled conditions in the country to give some limited powers to the Governor--eventually the Committee came to be conclusion that sit would not be workable, that it would create deadlocks and therefore, the proper course would be to limit his powers to the extent of authorising him to report to the President of the Union. What steps, or, what authority the President of the Union exercise would be a matter for the Union Powers Committee to provide in the Union Constitution. But, so far as the provincial constitution is concerned, it was agreed that this limited power of reporting only should be given to the Governor.


4.23.169
Vallabhbhai J. Patel
Then, you will see the second item in Clause 9, the summoning and dissolving of the Provincial Legislature (Clause 20 of this Part). This is a normal power which is given in every constitution to a Governor and therefore there is nothing special about it.


4.23.170
Vallabhbhai J. Patel
The third item provides for the superintendence, direction and control of elections. In this matter, I think the Fundamental Rights Committee made a recommendation that in order to ensure fair elections, there should be appointed a Commission by the President of the Union Constitution so that it should be above party influences and fair elections in all provinces can be ensured. This, I think, was adopted by this House when the Fundamental Rights were adopted and therefore this clause will have to be brought into line with the former resolution adopted by this House.


4.23.171
Vallabhbhai J. Patel
There is then the fourth item the appointment of the Chairman and members of the Provincial Public Service Commission and of the Provincial Auditor General. In this matter, also, the appointment of the Chairman and the members of the Provincial Service Commission is generally made on the recommendation of the Cabinet or Ministry.


4.23.172
Vallabhbhai J. Patel
Therefore, when we analyse Clause 9, practically the only powers left to the Provincial Governor is the power to report to the Union President when a grave emergency arises threatening menace to the peace and tranquillity of the province and the summoning and dissolving of the Provincial Legislature.


4.23.173
Vallabhbhai J. Patel
When we have dealt with Clause 9, we then come to the recommendations of the Committee which deal with the constitution of the legislature- whether there should be two Houses or one House. The Committee generally agreed that there should be only one House of Legislature. But it was also agreed that if any of the Provinces wanted a bicameral legislature, it should be open to the province to setup such a legislature, but that the constitution of the Upper House would be, according to the opinion of the Committee, on the Irish model, where a certain percentage is to be elected on functional representation and a certain percentage to be nominated and provision has to be made for election. Now, the recommendation of the Committee regarding the Second House is a departure from the existing Act in so far as half of the members are to be elected by functional representation. There will be representation in the Lower House for special interests such as women, labour, commerce, industry, etc. This appears to be a reasonable provision and is in accordance with the Irish model.


4.23.174
Vallabhbhai J. Patel
The Committee have given special attention to the appointment of Judges of the High court. This is considered to be very important by the Committee and as the judiciary should be above suspicion and should be above party influences, it was agreed that the appointment of High Court Judges should be made by the President of the Union in consultation with the Chief Justice of the Supreme Court, the Chief Justice of the Provincial High Court and the Governor with the advice of the Ministry of the provinces concerned. So, there are many checks provided to ensure fair appointments to the High Court. These are the special features. The principle settled by the Committee is contained in the memorandum and for the rest of the Constitution it was agreed that drafting should be made on the adaptation of the present 1935 Act, by making suitable alterations. Therefore, I move that this report of the committee be taken into consideration and if the House agrees, the Report may be taken clause by clause.


4.23.175
Maulana Hasrat Mohani
Sir, my Honourable friend Sardar Patel has presented the Report before you and with due respect to him I raise an objection to it. It is that till the Report on Union Constitution is presented before the House, consideration of this Report seems quite inappropriate. The reason is not this, as Patel Sahib has himself said that it is not final and the mistakes, if any, could be rectified later on. If only verbal changes were intended I would never have raised this point. I want to tell you, and through you my nationalist and national-socialist friends who are present here, that my objection is a vital and far-reaching one. If you lightly pass over this objection, then I am sure you will have to repent this action of yours and regret it someday.


4.23.176
Maulana Hasrat Mohani
Looking around, I find that except Nationalist members no one else is present here. There was one Communist member from Bengal, but somehow, he has been ousted. From amongst the Forward Blockists, Sarat Chandra Bose has resigned from the membership. Mr. Tripathi of U.P. and one Forward Blockist of C.P., though they have not designed their seats, for some unknown reasons they are not present in the House. I feel it my duty to place the view-point of such of my friends before you.


4.23.177
Vallabhbhai J. Patel
On a point of order. The debate is going on a wrong track and I do not understand what has the question of whether the Constitution shall be a Republican Constitution or not, to do with the Provincial Constitution and whether, there should be a Dominion Constitution also has nothing to do with it because we are today setting the principles of a Provincial Constitution and when the question as to whether there should be a Dominion Constitution or Republican Constitution comes, Maulana Hasrat Mohani can move any amendment or say anything. Today we deal with only the Provincial Constitution draft which can fit in with an Independent India which has nothing to do with Dominion Status and which can fit in with the Republican Constitution according to the Resolution which has been passed by the Constituent Assembly. Therefore, he may not be allowed to cover a wide range which has nothing to do with our present motion.


4.23.178
Maulana Hasrat Mohani
Had there been some ulterior motives behind it, I would not have put it up in this way. For example, if I had done all this with communal feelings and dilatory tactics, I would have asked you to withhold this Report until the report on Minorities is put up before us. But in fact, the question is simply this- that you should proceed on some principles and do not put up the Provincial Constitution before the Union Constitution is put before the House.


4.23.179
Maulana Hasrat Mohani
No doubt, Pandit Nehru has moved the Objectives Resolution of the Republic, but it has not been made clear as yet whether the proposed Republic would be of unitary type or of Federal type. Again, it has not been as yet decided in case it is a Federal Republic, whether the Government would be centrifugal or centripetal.


4.23.180
Maulana Hasrat Mohani
If you do not accede to my request, my party will line up with the Leftist groups and with the aid of the Communists and Forward Blockists it will compel you to accede to our demand. Let me explain this also in this way, that, unless there is some change in the Union Constitution and the Constitution of the Union is not made satisfactorily, till then the condition of the Provinces will remain unchanged and, it will not go beyond provincial autonomy, and we will, as an Indian saying has it; "we would always remain shoe-makers that we were".


4.23.181
Maulana Hasrat Mohani
In the Report which Sardar Saheb has just now put up, he has very intelligently stated in it that they wanted to appoint Governors. You will see that with this word only, the whole constitution of the Union is defaced and distorted.


4.23.182
Maulana Hasrat Mohani
Even if we accept the suggestion of Sardar Patel, the clear meaning would be simply this that the Provinces would get Provincial autonomy only, and if this is so, I will say that all the years of your sacrifices, labours and the 'Quit India' Resolution, one and all will be rendered useless.


4.23.183
President
I think Maulana Hasrat Mohani's amendment is in order. It is open to the House to throw it out.


4.23.184
Maulana Hasrat Mohani
All the time you were telling us that we would establish an Independent Republic and parties shall be formed not on the basis of religion, but on socialistic principles.


4.23.185
President
This is not the question. For the present, the simple question is whether the Report should be considered or not.


4.23.186
Maulana Hasrat Mohani
What I mean is that this you want to pass the Provincial Constitution by the back door.


4.23.187
President
You have already stated the reasons. You forgot that this is not occasion to discuss your Republic and all sorts of questions.


4.23.188
President
So far, this amendment is concerned, you have already stated the grounds on which you want to move it; and I feel that other questions should not be discussed.


4.23.189
Maulana Hasrat Mohani
Sir, I will conclude my statement within a short time. All the Forward Block and Communist members are absent. Therefore, on their behalf, I will protect their rights, and if by your voting strength in this House, you pass anything as you like, then I will adopt other methods to protect their rights. Once again, I submit that all your actions should be based on principles and that you should protect the rights of all.


4.23.190
On a point of order, Sir. Is the Honourable Member in order in calling this a packed House? Is it parliamentary? He may be asked to withdraw the expression.


4.23.191
Maulana Hasrat Mohani
I did not use any unparliamentary expression. I only said that somehow or other people here are all nationalists and as such were deaf. I did not mean any discourtesy to the House.


4.23.192
Jawaharlal Nehru
Mr. President, if the Report of the Union Constitution Committee had been under consideration at this time, I would be standing here in a special capacity. But I rise now to remove the misunderstandings that have arisen in the minds of some of the members. It may be that I may not wholly succeed in my object. It is quite possible that I may fail to convince Maulana Hasrat Mohani who is rather a deep person and claims to be at once the representative and spokesman of both the Communists and Forward Blockists. It is quite obvious that if my fear comes true he would suffer from considerable perplexity. But what I intend saying is nothing very incomprehensible and technical. It is quite correct to say that we would be acting improperly if we took up the consideration of the Provincial Constitution without keeping in view the ideals we seek to realise and the goal we seek to reach. We have, it is true, taken up the consideration of the Provincial Constitution first.


4.23.193
Jawaharlal Nehru
Six months ago, this House passed a Resolution which placed before it the plan and the ideals. These were approved. When once the outline of anything has been drawn, the order in which the several problems involved therein are to be taken in hand had to be decided. In this case, it so happened that the question of the Provincial Constitution arose earlier and the Report of the Provincial Constitution Committee also was ready earlier. Consequently, members got sufficient time to study this Report. The other Report, however, has been sent to the members only six or seven days ago. Consequently, keeping in view the fact that the members would not have sufficient time to study it, it was considered proper for their convenience not to submit that Report to the House for the time being, but to present the Report of the Provincial Constitution Committee which had been already sufficiently studied. Honourable Members have all received the Report of the Union Constitution Committee. If the President permits, I am ready to present it to the House immediately. The only difficulty in doing so is that the members may complain that they had no time to study it sufficiently, and that even if time be given for studying it would mean the waste of two or three days in doing so now. It was in view of this that it was considered proper to present the report which was ready and had been thoroughly studied. The other report will also be presented to the House just as this one has been. All of you should know that there is no intention of concealing anything or acting in an underhand manner in following this procedure.


4.23.194
Jawaharlal Nehru
In the present report the term 'Governor' occurs. This has completely upset the Maulana. I admit that the term 'Governor' has come down to us from the previous regime and that our associations with it are not very happy. But at present we are not concerned with the question of terminology. We do not know whether our Constitution would be in the English or any other language. So far as the term itself is concerned, you are all aware of there being Governors in America as also of the powers and authority they wield. I, therefore, submit that this does not violate in the least the ideas and the principles we have in view. It is my submission that there is no question of principles involved in it. The only question is of the convenient working of this House. If you and Sardar Patel so desire, I am prepared to present the Report of the Union Constitution Committee to the House.


4.23.195
Jawaharlal Nehru
Mr. President, Sir, I rise to support the amendment moved by Maulana Hasrat Mohani firstly, on the basis of a logical formula, viz., what is true of the whole is true of the part. Sir, up till now we do not know as to what form of constitution this House will decide on regarding the Union of India. Certainly, the provinces are parts of India and unless we know the constitution of the Indian Union, it would not be fair to consider the principles of the provincial constitution. Just now, the Honourable Pandit Jawaharlal Nehru, Sir, has said that the constitution of the Indian Union is also ready and every member has got a copy of it. But, Sir, I would submit that having the copy of the constitution with the members is one thing and that taking of decisions by this House is another. Besides this, Sir, the Honourable Pandit Jawaharlal Nehru has just now said that he even prepared now to put the principles of the Indian Union Constitution before the House, and that it was by chance that the principles of the provincial constitution have been placed before the House beforehand. This clearly indicates that he also realises that the consideration of the constitution of the Indian Union should be taken up first.


4.23.196
Mohd. Tahir
My second point, Sir, would be that we do not know anything about the Report of the Minorities Committee, the Tribal Area Committee, etc., and the recommendations of those committees are to be incorporated in the constitution. Unless those reports are received it would not be fair to take up the consideration of the provincial constitution.


4.23.197
Mohd. Tahir
With these words, Sir, I support the amendment moved by Maulana Hasrat Mohani.


4.23.198
Balkrishna Sharma
Mr. President, Sir, I rise to oppose the amendment which has been moved by Maulana Hasrat Mohani. When a minute before he was trying to act as a 'Khudai Fausdar', I was reminded of his very famous saying that he is either a Communist or a Communalist. (Some Honourable Members: "Both"). Now, he has become both a communist and a communalist and thereby he has tried to bridge the gulf between Karl Marx and Jesus Christ. The Maulana is a very great man. We have all looked upon him with reverence and respect all our life for his integrity of purpose and honesty, but I have always felt that he is one of those men who have always refused to work in a team. He is a man who is a solitary figure ploughing his lonely furrow. Even in the Muslim League which he joined after a great deal of confabulation, the Maulana, even though he was included in the High Command, remained a solitary figure. Now the amendment which he has moved is a very funny amendment- funny for the very simple reason that it really makes very little difference whether we consider the Union Constitution first or the provincial constitution first because we have already got our objectives before us by a resolution of this House and anything that is not in consonance with that objective any member of the House is at perfect liberty to point out either in the model constitution for the provinces or in the Union Constitution, and therefore there is very little difference whether we consider the provincial constitution first or the Union Constitution first. The Maulana really raised a fundamental question as to whether we should have the provincial constitution in nature of merely giving provincial autonomy to provinces or a republican constitution. If the Maulana thinks that the House will fall in line with him, he can certainly bring forward amendments to the provincial constitution, deleting the words which he does not like making the Governor the President, if he so likes, and giving all sorts and manner of powers that he wants to give to the provincial legislature. If his amendments are not accepted by this House, naturally it will not help him to bring in the Union Constitution for consideration first. Where the difference is, I fail to see. Let it be clearly understood that we have made up our minds not to follow any of the constitutions in a slavish way, neither the American Constitution, nor the British model, nor any other model. We are going to evolve a constitution according to our needs and we shall see to it that we do not fall a victim either to this or to that pattern.


4.23.199
Balkrishna Sharma
The Maulana has talked glibly about the U.S.S.R. Perhaps the Maulana forgets the very great difference between the U.S.S.R. and this unfortunate land where the Maulana is trying to fly at my throat and I have been trying to fly at his throat. We have got to take into consideration the situation in which we are placed. I think that, if our country wants to evolve a constitution which is mid-way between federation and a unitary form of government, we must be at perfect liberty to do so. In a country like ours which is always inventing all sorts and manners of divisions--this fissiparous tendency is a historical tendency--I think we must be very careful that we do not give so much power to the provinces as would lead to further division of the country.


4.23.200
Balkrishna Sharma
It does not make the slightest difference whether we consider the provincial constitution first or the Union Constitution first. If the Maulana thinks that the House will agree with him in making the Provincial Constitution a model republican constitution, he is at perfect liberty to place his views before the House, but if he tries to monkey with it, he will succeed in doing so.


4.23.201
Balkrishna Sharma
Sir, I strongly oppose the amendment which has been placed before the House by the Maulana.


4.23.202
Naziruddin Ahmad
Mr. President, Sir, I beg to support the original motion, namely, that the Provincial Constitution be now taken into consideration. The amendment really is to the effect that the Provincial Constitution should not be taken up before the Report on the Union Constitution is considered. I submit, however, that the Provincial Constitution and the Union Constitution are two different things. It does not matter which constitution is taken first. If there are defects, if there are points of difference, if there are points on which any Member feels any objection, it will be open to him to raise the same and move the necessary amendments in the House. As has already been pointed out the Union Constitution Proposals are already circulated and so we know what the Union Constitution proposals are likely to be.


4.23.203
Naziruddin Ahmad
The House therefore has a complete picture of what the Union and the Provincial Constitution would be like. I submit that on a matter like this we should not take the time of the House any further and the question as to which constitution is taken up first is quite immaterial. With these few words, I support the original motion.


4.23.204
Govind Malaviya
Sir, I move closure of this debate.


4.23.205
President
Closure has been moved. The question is:

"That the question be now put."

The motion was adopted.

4.23.206
President
The Mover of the resolution will reply to the debate.


4.23.207
Vallabhbhai J. Patel
The amendment to the motion moved by Maulana Hasrat Mohani is that this motion should be taken up after the consideration of the Union Constitution Committee Report. The Maulana has perhaps seen the Union Constitution report as well as the Provincial Constitution report, because he has been closely following what is going on in this Assembly and he has seen the objectives resolution of this Constitution that has been passed in the initial stage. Now I ask the Maulana whether this draft motion which I have moved contravenes the fundamentals in any manner of that objective. If it does not contravene in any way the original resolution that has been passed by this House, I do not see how he could have any doubts whether this constitution shall be a Republican Constitution or a Shariat Constitution or a Democratic Constitution. The real point is whether it is better to stand on the legs or on the head and we prefer to stand on the legs. We start with the provinces and we will come to the top, but some people occasionally try acrobatic feats and it is open to them to do so. The Maulana says that the Mover has done some sort of a trick by cleverly moving this resolution. I do not understand what trick I have done nor do I understand where the trick lies. The simple question is whether the draft which has been moved by me should be considered or not. He does not show by any argument that this motion should not be taken today. He suspects that there must be something in the Union Constitution and if he finds anything in the Union Constitution Report, when the report is taken, he will have ample time and opportunity to make any suggestions or alteration or modifications. There is nothing in this motion which gives room for suspicion or doubt and a simple motion like this should not be used for the purpose of taking any more time of this House. As Mr. Naziruddin Ahmad made it quite plain it will lead to an unnecessary waste of time of the House. The two are separate. One does not encroach upon the province of the other and therefore, they can conveniently be taken according to the order in which the order of the business is settled and the motion therefore before the House should be adopted without any division.


4.23.208
President
The Motion is:

"That the Constituent Assembly do proceed to take into consideration the Report on the principles of a model Provincial Constitution submitted by the Committee appointed in pursuance of the resolution of the Assembly of the 30th April 1947. "


4.23.209
President
To this an amendment has been moved:

"That the Report on the principles of a model Provincial Constitution be not taken into consideration before the Report on the principles of the Union Constitution."


4.23.210
President
I put the amendment to vote.

The amendment was negatived.

4.23.211
President
The amendment is lost. I will put the original proposition to vote.


4.23.212
President
The question is:

"That the Constituent Assembly do proceed to take into consideration the Report on the principles of a model Provincial Constitution submitted by the Committee appointed in pursuance of the resolution of the Assembly of the 30th April 1947."

The motion was adopted.
Chapter I
CLAUSE—1

4.23.213
President
We shall proceed to take the report clause by clause.


4.23.214
Vallabhbhai J. Patel
Now with your permission, Sir, I move the first clause of the report--Chapter I--the Provincial Executive,

"Governor--1. For each Province there shall be a Governor to be elected directly by the people on the basis of adult suffrage.

(NOTE.-- The Committee were of the opinion that the election of the Governor should, as far as possible, synchronise with the general election to the Provincial Legislative Assembly. This may be difficult to provide by statute because the Legislative Assembly may be dissolved in the middle of its term.)"


4.23.215
Vallabhbhai J. Patel
Now in this clause two important points are involved. The first thing is that for each province there shall be a Governor. That principle is an important one. The other important principle is that he shall be elected by adult franchise. Now in the Provincial Constitution you may have seen that very limited powers are given to the Governor, and yet he has to be elected by a process which is very cumbersome and therefore the question may naturally arise that if the Governor has got limited powers, why do we go through the process of election which involves so much difficulty because an election in a province by the process of adult franchise is a very difficult job? Yet it is considered necessary because of the dignity of the office which a popular Governor will hold and naturally a Governor who has been elected by adult franchise of the whole province will exert considerable influence on the popular ministry as well as on the province as a whole. His dignity and status also demands that he should have the unanimous and general support of all the sections of the people in the country. Therefore, two principles are involved in this motion. One is the appointment of a Governor considered necessary in all the provinces according to the Model Provincial Constitution Report and the other is adult franchise and therefore, I move.


4.23.216
President
I have received notice of a number of amendments to this clause. Many of them are printed and have been circulated, but I am getting amendments even now. I do not propose to take the amendments which I am getting now.


4.23.217
Unnamed Member
With your permission, Sir may I ask a question? Sardar Vallabhbhai Patel referred in the course of his speech to the fact that a joint meeting of the Provincial Constitution Committee and the Union Constitution Committee was held and that as a result of the deliberations of that Committee certain changes are to be made. May I know whether this clause was also considered and is it a fact that that Committee was of opinion that the election of Governor should not be held directly by adult franchise but he should be elected by the Provincial Legislature in accordance with the principle of proportional representation by a single transferable vote?


4.23.218
President
That is a question which the Mover may answer if he wishes.


4.23.219
T. A. Ramalingam Chettiar
I want one point to be made clear. That is whether this model constitution which has been framed for the provinces is the one which the Provinces will have to adopt necessarily or whether the Provinces are free to adopt them with such changes as they would like. This is a matter on which I would like to have elucidation.


4.23.220
President
All these questions will be replied to by the Mover if he wishes to answer them.


4.23.221
P. S. Deshmukh
Sir, I would like to say a word about the amendments which have been received by you now. I would like to point out that although we were told to send the amendments early, the substantial motion has only just been made and it is only after a motion has been made that members are entitled to send any amendments. Therefore, I would request you, Sir, that these amendments which have been sent to you now and would be sent to you up to 6 o'clock today should be admitted and considered. It would be somewhat unfair not to admit them.


4.23.222
President
Do I understand, Dr. Deshmukh, that we should adjourn the House for allowing members to give notice of amendments which would be taken up later?


4.23.223
P. S. Deshmukh
No, Sir, I am suggesting that we should go on with the amendments already printed, but if there are any amendments which are sent in during the day they might also be considered. The very first clause has numerous amendments and it will take a long time to consider them; so, no time will be lost in admitting the fresh ones.


4.23.224
President
If there are any amendments which you have given notice of and which, although not printed, members have had occasion to consider, then I will not stand in the way, but I will not admit amendments put before the House without proper notice, and giving opportunity to members to consider them.


4.23.225
Mahavir Tyagi
On a point of order, Sir.


4.23.226
President
The point or order arises on what?


4.23.227
Mahavir Tyagi
I want to put a question to you with regard to the interpretation of the rules. Now, Sir, there is a rule that notice of amendments has to be sent one clear day in advance of the date on which the motion is made. I want to know if by the word "motion'' the whole report is meant or each clause is a motion in itself. As far as I know, in our provincial legislature motion means a question put to the House or discussed before the House. Each question is a motion in itself. So, Sir, if I choose to send an amendment to, say, Clause 21 of this Report which will I expect come up day after tomorrow and give notice of an amendment today, I think, Sir, that amendment will be in order because there will be one clear day's notice.


4.23.228
President
Rule 32 lays down:

"Except as permitted by the Chairman, notice of any amendment to a motion must be given at least one clear day before the motion is to be moved in the Assembly."


4.23.229
President
The motion which has been moved was circulated and given notice of, I think, several days ago, and members have had ample time to give 24 hours’ notice of amendments. Therefore, I say, I cannot take up, any amendment of which notice is given just now.


4.23.230
Mahavir Tyagi
Sir, I was asking whether the moving of Clause 21 three days afterwards will be a motion in itself or not. The House will be in possession of that motion and be discussing it after three days. That being so, I submit I am entitled to bring in an amendment now because it will be more than one clear day in advance.


4.23.231
President
As I have said, if I get notice of an amendment in time for circulation to the members so that they may have an opportunity to consider it before coming to the House, I may accept it; but I cannot accept an amendment which cannot be printed and circulated to the members beforehand. If, however, notice is given now of an amendment to a motion which will come three days later, I do not mind it.


4.23.232
Mahavir Tyagi
Thank you, Sir. My point is achieved.


4.23.233
President
We shall take up the amendments.


4.23.234
Naziruddin Ahmad
Sir, I submit that copies of the amendments were received by us only this morning. The matters dealt with are of an extremely difficult and abstruse nature and we have had no sufficient time to consider the amendments. I submit, therefore, that we may please be given at least twenty-four hours' time to go through the amendments and then get ready to say yes or no or offer observations. That is the only thing I ask for.


4.23.235
President
I understand these amendments were circulated last night?


4.23.236
Naziruddin Ahmad
But we have received them only this morning. Some of us, I understand, got them today on coming to the House.


4.23.237
President
I allowed members time up to yesterday evening to send in the amendments, and it has taken time to get them printed and circulated to the members. Some of them have received the copies, rather late. If members think they have not had enough time to consider the amendments, we may put off their consideration. But we have about 40 minutes more, and I suggest that we may take up their consideration now. We may not be able to take up more than one or two amendments, and if there is any difficulty we shall consider postponing them.


4.23.238
Muhammad Ismail Khan
These amendments were laid on the table only this afternoon and we have had no time to consider the bill in the light of these amendments and I think it is only right that the members should get an opportunity to study the bill in the light of the amendments and thereafter the amendments may be taken one by one.


4.23.239
President
I was under the impression that the amendments were circulated last night.


4.23.240
Muhammad Ismail Khan
We received this book only this afternoon.


4.23.241
But most members received it last night.


4.23.242
President
It seems there have been some delays in circulating the amendments because the addresses of some members were not known to the office. It seems some members have not had these amendments until late this afternoon. I am entirely in the hands of the House as to whether we should consider the amendments now.

(After a pause.)

4.23.243
President
I now call upon Maulana Hasrat Mohani to move his amendment.


4.23.244
B. Pocker Sahib Bahadur
I only want to remind you of the request I made yesterday, that arrangements should be made to render the speeches into English as a large number of members are not able to follow the speeches in languages other than English. Therefore, Sir, in view of the fact that Maulana is going to speak in Urdu, I would request that arrangements may be made to give us a rendering into English of the valuable speech which Mr. Maulana is going to make.


4.23.245
Maulana Hasrat Mohani
Sir, I move my amendment to this Clause No. 1. I think I will have some difficulty in expressing myself in a foreign tongue but to accommodate my friend from Madras, I shall try my best to express myself as best as I can. I move:

"That in Clause 1, for the words 'a Governor' the words 'a President' shall be substituted."


4.23.246
Maulana Hasrat Mohani
By this I intend to say that we have got an inherent right of all the members of all these constituent provinces to demand a Provincial Republic for every Province. What we have intended and what we thought and what we were expecting to get, we wanted and we thought that we will get a Union of Indian Republics. My friend Mr. Tripathi had moved an amendment in the last session of this Assembly that he wanted to introduce the word 'Socialist'. It did not have the support of the House. We will see to it afterwards. If we have got a Federal Republic, it does not matter whether you agree to make it a Socialist Republic or not. In the first instance, you may have a Nationalist Constitution and majority of Nationalist members but I am sure that the tendency of the world is to become, every one of us is becoming now, socialist minded and I think that the time is not far off when, as we expect, we will be able to form a solid group of leftists and I think that by the latest, in the next election I hope that we will be able to capture the whole of the organization. If you now agree to make every province a Republic, I do not care whether you agree to make it socialistic or not. We will make it a socialist republic. But one think I must say, you cannot shelve this question. You cannot say "We want only a Republic in the Centre. We will not allow any of these Provinces to become a Republic". And as I said, this is a trick when you say that in each Province there shall be a Governor. I say that it must be a President. If you accept the word 'President' then it means that you agree to make every Province a Republic. If you refuse to accept the word 'President', then it means that you are determined to retain those Provinces as mere autonomous Provinces. You grant only Provincial autonomy and nothing else. If that is your intention, I most strongly protest against this sort of treatment which if I am not using any strong words, I shall say, will be something like staging a farce on the people of all the Provinces, especially on my Province, the United Provinces. Here my friend Pandit Nehru says "you can introduce afterwards any amendment you like to the Union Constitution'. I say I introduce this amendment here and now, and ask you to make this word 'Governor' 'President', so that you may not be able to refuse to reopen the whole thing on the occasion of my moving an amendment to will anyhow come in and this difficulty will crop up. My friend Sardar Patel also said there is no difference whether we call Governor or President. There is a great difference. Once you disallow my amendment you will say 'No, we will have only Governor'. That means that you want to give us only Provincial autonomy. You do not want many of the Provinces to go even a single step further. I have read very carefully your Union Report. In this Union Report, page 12, Clause 9 says:

"The executive authority of the Ruler of a Federated State shall continue to be exercisable in that State with respect to Federal subjects until otherwise provided by the Federal authority."


4.23.247
Maulana Hasrat Mohani
To this Clause 9, a note is added which says:

"In this respect the position of the provincial units is rather different. These have no executive power in respect of Federal subjects save as given by Federal Law."


4.23.248
Maulana Hasrat Mohani
In respect of the Indian States you say something. But you say the position of the Provincial units is different. They have no residuary power in respect of special subjects. You fix only the provincial subjects. And you ask us to accept this clause. We will not. Of course, you have got a majority. You can pass anything you like. But I ask in the name of justice and fair play, "what right have you got to deprive the provinces of India from aspiring to become republics of the Union of Federal Republics, and not only Federal Republics but Socialist Federal Republics at that"? This was moved in a former meeting of the Assembly. You did not accept that. But the position was quite different then. You were suspecting the Pakistan people might make mischief. But they have been separated now, some Muslim Leaguers raised this objection: "Now that India and Pakistan have become two different things, what is the meaning of the All India Muslim League?" All-India Muslim League means the Muslim League of India, i.e. of the minority Provinces. So, they said, "If you want to have a Muslim League, you can start one for Pakistan, where we the Muslims of the Muslim minority provinces can have no influence, except through the Council of the All-India Muslim League which according to the decision of Mr. Jinnah still exists and to which new members have already been elected. I am one of them from U.P. (Interruption).


4.23.249
President
Order, order.


4.23.250
Unnamed Member
Does the speaker think that this is the All-India Muslim League Council?


4.23.251
Maulana Hasrat Mohani
No, no. I am pointing out that I have nothing to do with Pakistan except as a member of the All-India Muslim League Council. Where is the harm if we take the Union Constitution first? You have deliberately put the Provincial Constitution here first. What is the meaning of that? By taking this model provincial report first you are doing us a very grave injustice. Of course, you can have it passed. But you cannot prohibit the provinces from demanding independence and becoming republics. You have said "We want only a Unitary Republic". Then why have you introduced the word "Federation" in your report here? It is simply to deceive the public. You fight shy of the word "Unitary". Therefore, to have your way you have said "Federation". This is why you want to preclude the provinces from demanding republic government. But I tell you, you cannot compel them. You cannot impose your authority on them. We want a Union of Socialist Republics and if you persist in imposing nationalism and a nationalist constitution on your provinces you will soon be swept off the face of the earth.

(Messrs. M. Ananthasayanam Ayyangar, Khurshed Lal, V. Muniswami Pillai, Dr. P. Subbarayan, T. A. Ramalingam Chettiar, Ajit Prasad Jain and R. K. Sidhwa did not move their amendments.)

4.23.252
President
These are all the amendments of which I have received notice in regard to Clause 1. As there was a wish expressed by some members to bring in amendments and as I wanted to consider that wish, I have just allowed one amendment to be moved. The others have not been moved. That amendment will be considered tomorrow.


4.23.253
President
As regards the Union Constitution Report, I understand it has been already circulated to members and I would request members to send in notice of amendments to that Report by Thursday evening.


4.23.254
President
Now we adjourn till tomorrow at 3 P.M.

The Assembly then adjourned till Three of the Clock on Wednesday, the 16th July, 1947.

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



4.24.1
Shri Sri Prakasa
Sir, before you begin the proceedings of this afternoon I should like to bring to your notice what I regard as a serious breach of the privileges of the Members of this House. I found that tongas bringing in Members of this Assembly were not allowed to drive into the portico of this building. Till yesterday they were so allowed but today when our need for this convenience was greatest, as it was raining, a European officer was stopping the tongas outside the portico. When I asked him if members were expected to get drenched in the rain, he replied that those were his orders, that tongas were to be stopped outside and only cars were to be allowed inside the portico. I think, Sir, that this is a piece of snobbery which you, of all others cannot tolerate.


4.24.2
President
I will ask the Secretary to look into the matter.

ELECTION OF VICE-PRESIDENTS AND OF MEMBERS OF COMMITTEES

4.24.3
President
I have pleasure in announcing that Dr. H. C. Mukerjee and Sir V. T. Krishnamachari are the only candidates who have been duly proposed and seconded for the office of Vice-Presidents and I accordingly declare them as duly elected Vice-Presidents of this Assembly.


4.24.4
President
As the House is aware it was decided to elect members to certain other Committees and I have to announce the results in regard to those elections also.


4.24.5
B. Pocker Sahib Bahadur
The following members have been duly nominated to the various Committees in accordance with the resolutions of this House of the 14th July, 1947.



4.24.6
President
There being only as many candidates as there are vacancies in all cases, I have great pleasure in declaring these members to be duly elected to the respective Committees.


4.24.7
Mr. H. V. Kamath
Sir, on a point of order, Dr. H. C. Mukerjee and Bakshi Sir Tek Chand have not, I believe, signed the Register of this House and as such they are not eligible to be elected to the Committee until they have duly signed the Register.


4.24.8
President
They will begin to function only after signing the Register and as soon as they come here they will sign the Register.

REPORT ON THE PRINCIPLES OF A MODEL PROVINCIAL CONSTITUTION- contd.

4.24.9
President
We shall now go on with the discussion of yesterday's Resolution.


4.24.10
Kazi Syed Karimuddin
Sir, I desire to raise a point of constitutional importance. Maharaja Nagendra Singh, representative of the Eastern RajputanaStates is a member of the Indian Civil Service. His name is on this cadre. He has not retired and his services have not been terminated. Can a salaried servant of the Crown be a member of the independent sovereign Constituent Assembly of India? Is it not inconsistent on his part to owe allegiance to the British Crown and at the same time be a member of the sovereign Constitution Assembly of India? Under Section 25 of the Succession to the Crown Act, "If any person being chosen a member of the House of Commons shall accept any office of profit from the Crown during such time as he shall continue a member, his election shall be and is hereby declared to be void".


4.24.11
President
I understand that the particular gentleman is no longer working in the Defence Department of the Government of India and that he is on his way to take service in the Bundi State, perhaps as Dewan of the State. He has been returned.


4.24.12
Kazi Syed Karimuddin
He has not retired from service, nor have his services been terminated.


4.24.13
President
That is not a disqualification according to our rules.


4.24.14
President
Yesterday Clause 1 was moved, and there was an amendment by Maulana Hasrat Mohani. The resolution as well as the amendment are now open for discussion.

CLAUSE 1--contd.

4.24.15
Mr. H. V. Kamath
Mr. President, Sir, yesterday we listened to a speech which I believe was the first of its kind ever delivered in this House. It was a speech unique in more respects than one. It was in the first place a jumble of nationalism, national socialism, republicanism, communism and what not. It was unique for the vehemence with which it was delivered. In spite of all that, I listened to the speech with the respect and attention which any utterance from Maulana Hasrat Mohani ought to command. We have known him as a veteran, as a hero of a hundred battles in the country's cause for freedom. Whatever political complexion he might be wearing today, whatever Political "choga" he might be putting on today, we have known him in the past as a valiant fighter for the country's freedom. We have not forgotten the days when he was with us in the Congress, when he was a close co-worker and associate of Mahatma Gandhi and our other revered leaders. But the speech which he made yesterday, cannot escape our attention and our notice. The speech dealt so little with the amendment and so much with everything else besides, that I for one was hard put to it to sift the grain from the chaff. Maulana Hasrat Mohani Sahib thinks that by substituting the word 'President' for the word 'Governor' he would, as if by a wave of his magic wand, create a socialist republic in every province. I for one fail to see how by substituting the word 'President' for 'Governor'.Such a transformation could be brought about. We know very well how even the President of America is different from the President of France. We know how the Chancellor Germany--the Reichskanzler-der-Fuhrer--differed so much from the other Chancellors of Europe. Therefore, I do not see any point in this mere change of the word 'Governor' into 'President'.


4.24.16
Mr. H. V. Kamath
Another point which he sought to make was about socialism. Well, even Netaji Subhas Chandra Bose, whose Forward Bloc he did mention in the course of his speech, used to say times without number that in the immediate present our main task was the achievement of the independence of India--a united, free, strong and independent India--and that only after the achievement of this independence our labours and energies should be directed to the socialist reconstruction of a free, united, independent India. Of all people I least expected thatMaulana Hasrat Mohani as he is today would bring before this House the plea for socialism. I believe Maulana Hasrat Mohani is a pillar of the Muslim League today, and it is a historic fact that the Muslim League has demanded and achieved the partition of India on a communal basis a basis which to my mind is the very antithesis of socialism. If Maulana HasratMohani stands before us today and tries to preach socialism to us I would tell him "Physician, heal thyself". It is not for members of an oragnisation who are committed to a patently communalistic policy to come before us and advance the plea for a socialist society unless they shed their communalism. It does not lie in the mouth of members of such anorganisation to plead for socialism. We who have been guided by leaders like Mahatma Gandhi, Pandit Nehru, Sardar Patel and Netaji Subhas Chandra Bose, do not stand in need of instruction about socialism. If at all anybody stands in need of being taught about socialism, I should say it is the Muslim League which has been for the last so many years preaching avivulently communalist policy and today has achieved a certain measure of success. I for one would plead with Maulana Hasrat Mohani even today to reconsider his own attitude and his own approach to Indian politics. I would ask him "What about the masses in your own Pakistan? Will you call upon your own masses in Pakistan to Join hands with the masses in the Indian Union--in our Hind, in our Bharat Varsha--on a socialist basis, shed your communalist 'choga' and policy and let us go forward to build a united, strong, independent. Socialist India in a socialist Federation of one free world?" I do not wish to take any more time of the House. I only wish to reiterate that this amendment is a pointless amendment and that nothing would be gained by the substitution of the world 'President' for 'Governor'. After all we have reserved that term for the head of the Indian Union. There must be some way of discriminating between the head of the Indian Union and that of a province. On these grounds, I oppose the amendment of Maulana Hasrat Mohani.


4.24.17
President
If the Mover of the Resolution wishes to say anything in reply he may do so.


4.24.18
Maulana Hasrat Mohani
May I be permitted to say something?


4.24.19
President
The mover of an amendment has to right of reply.


4.24.20
Maulana Hasrat Mohani
The previous speaker was asking 'How has Maulana Hasrat Mohani become a socialist, he is a communist, etc. I want to say something by way of personal explanation.


4.24.21
President
I do not think the House is much interested in that personal explanation.


4.24.22
The Honourable Sardar Vallabhbhai Patel
Sir, I shall give my reply to the speech made by the Mover in support of his amendment. I note that he was anxious to say something a second time. He has moved an amendment to the effect that instead of Go'a vernor' there should be 'a President' for each Province. In the Union Centre we have a President and, if in the Provinces also, there are to be Presidents, there will be confusion. These Governors are to be elected by adult franchise. Therefore we must not have the wrong idea that anything appearing in the new Constitution connotes the old ideas, connected with the Constitution under which we are now functioning. This is a simple proposition in which there should be no misunderstanding or further discussion. I hope the amendment will be withdrawn.


4.24.23
President
The question is:

"That in Clause 1. for the words 'a Governor' the words 'a President' be substituted."

The motion was negatived.

4.24.24
The Honourable Pandit Hirday Nath Kunzru
Mr. President, will you allow me to say a few words before you put this Clause to the vote?


4.24.25
President
I gave an opportunity to Members to speak on this amendment, but nobody desired to speak at that stage.


4.24.26
The Honourable Pandit Hirday Nath Kunzru
The discussion so far has been on the amendments. There has been no discussion on the clause as a whole.


4.24.27
President
I said definitely that both the Clause and the amendment were open to discussion and invited Members to take part in the discussion. When nobody rose to speak I thought nobody had anything to say on the question.


4.24.28
The Honourable Pandit Hirday Nath Kunzru
If you hold that no further discussion is permissible under the procedure adopted by you, I do not want to speak. But if it is still open to a member to offer any general remarks, I should be glad to avail myself of the opportunity.


4.24.29
President
I think the time for these remarks is over. Those who are in favour of the original proposition will please say 'Aye' and those against will say 'No'.

The motion was adopted.
CLAUSE 2

4.24.30
The Honourable Sardar Vallabhbhai Patel
Sir, I move Clause 2 relating to Term of Office.

"2. (1) The Governor shall hold office for a term of four years, except in the event of death, resignation or removal.

(2) The Governor may be removed from office for stated misbehaviour by impeachment, the charge to be preferred by the Provincial Legislature, or where the Legislature is bicameral, by the Lower House of the Provincial Legislature, and to be tried by the Upper House of the Federal Parliament, the resolution in each case to be supported by not less than two-thirds of the total membership of the House concerned."


4.24.31
Dr. P. S. Deshmukh
Sir, I have an amendment to Clause 1. It has not been considered. It is in the Supplementary List of amendments.


4.24.32
Mr. President
I am afraid there has been a mistake. There are a certain number of other amendments to Clause 1 of which notice has been received last night. I have not given an opportunity to Members who have given notice of those fresh amendments to move their amendments. I think I had better call upon them to move their amendments one after another. I do not think they should suffer on account of my mistake.

(Shri R. V. Dhulekar did not move his amendment.)

4.24.33
Dr. P. S. Deshmukh
Mine, Sir.


4.24.34
President
That comes under sub-clause (3) which will now be moved.


4.24.35
The Honourable Sardar Vallabhbhai Patel
I do not propose to move sub-clause (2). Then I move sub-clause (4) which becomes sub-clause (3)which runs thus:

"(3) The Governor shall be eligible for re-election once, but only once."


4.24.36
The Honourable Sardar Vallabhbhai Patel
I move the three sub-clauses of this Clause for the acceptance of the House.


4.24.37
President
There are two amendments of Mr. Sidhwa.


4.24.38
Mr. R. K. Sidhwa
I do not move them.


4.24.39
President
Mr. Santhanam may now move his amendment.


4.24.40
Shri K. Santhanam
Sir, I move:

"That in sub-clause (2) of Clause 2, for the words 'to be tried by the Upper House of the Federal Parliament" the words 'to be confirmed by the Upper House of the Federal Parliament after investigation by a Special Commission of that House' be substituted."


4.24.41
Shri K. Santhanam
In the case of the Union Constitution, a similar procedure has been adopted for the impeachment of the President. There it is laid down that the Lower House shall make a charge and the Upper House shall appoint a Commission to investigate and after it is satisfied that the Charge is proved, then, by a Resolution, the Upper House will confirm the charge. I have adopted the same procedure. Otherwise it will mean that the Governor will be tried by the whole Upper House. It will be inconvenient and damaging to the prestige of the province as the Governor is to be elected by adult franchise. I hope the House will accept this amendment.


4.24.42
Shri L. Krishnaswami Bharathi
Sir, in the matter of omitting the sub-clauses, may I point out, Sir, that it would be better for the Mover, Sardar Vallabhbhai Patel, to formally move the subclauses as they appear on paper for adoption and then to get someone to move an amendment for their deletion where necessary. This is a report of the Committee and therefore the proper thing to do is for the Mover to move it as it is, and then allow an amendment for the deletion of the unwanted item.


4.24.43
President
The question has been raised that it is not open to the Mover to remove any particular clause which is contained in the report, that it can be deleted only by way of an amendment and that the Mover can then accept the amendment.


4.24.44
The Honourable Sardar Vallabhhhai Patel
The objection is more of a technical nature. I do not think it makes any substantial difference, but if the technicalities are to be satisfied, I have no objection. Then sub-clause (3) stands. In substance it makes no difference.


4.24.45
President
Pandit Pant will now move his amendment.


4.24.46
The Honourable Pandit Govind Ballabh Pant
Mr. President

"That sub-clause (3) of Clause 2 be deleted."


4.24.47
The Honourable Pandit Govind Ballabh Pant
The Mover is in agreement with me, so also a large body of opinion in this House. In fact, we had no desire to keep this clause ourselves. A similar clause found a place in the Draft Constitution of the Indian Union also, but when the matter was examined, it was found that it would not work, and so it was removed from the draft; you will not find it in the Report that has been circulated. Similarly, this clause also was scrutinised and it was found advisable to remove it. The clause says, "The Governor shall be deemed to have vacated his office by continue absence from duty or continued incapacity or failure to discharge his functions for a period exceeding four months". Who is to determine what amounts to incapacity or failure to discharge his functions? Considering all these things, we came to the conclusion that the sub-clause will not work in actual practice. Besides, it was decided to bring the constitution of the provinces so far as possible in a line with that of the Central Constitution. Keeping all these points in view, it has been decided to omit this clause. I move that this sub-clause be omitted.


4.24.48
President
There are certain other amendments.


4.24.49
Mr. H. V. Kamath
President, Sir, I am now advised by our elder statesman that a two-thirds majority is enough and so I withdraw the amendment.


4.24.50
Mr. H. V. Kamath
In view of the fact that sub-clause (3) is to be deleted, I do not want to move my amendment.

(Other Hon'ble Members who had given notice of amendments did not move them.)

4.24.51
President
Mr. Ayyangar, are you not moving any of your, amendments.


4.24.52
M. Ananthasayanam Ayyangar
No. Sir.

(Messrs. K. Santhanam, P. S. Deshmukh and H. V. Pataskar did not move their amendments.)

4.24.53
President
I think these are all the amendments of which I have received notice.


4.24.54
President
The clause and the amendment are now open for discussion. If any member wishes to make any remarks, he can do so.

That in sub-clause (2) of Clause 2, for the words the resolution in each case to be supported by not less than two-thirds of the total membership of the House concerned," the following be substituted:

"the resolution in the former case to be supported by not less than two thirds, and in latter not less than three--fourths, of the total membership of the House concerned."


4.24.55
Mr. Naziruddin Ahmad
Mr. President, Sir, in regard to Clause 2, I feel some difficulty in agreeing to sub-clause (3) being deleted. Sub-clause (3) has certain good features. The other features are inpracticable. So far as the good features are concerned, they are that the Governor shall be deemed to have vacated his office by continued absence from duty. This is a very desirable provision. If the Governor remains absent for a continued period of more than four months, the work of the province will come to a standstill. It is my humble suggestion that we should retain this part of the sub-clause.


4.24.56
Mr. Naziruddin Ahmad
With regard to another part of the sub-clause, viz., continued incapacity, this has not been defined. It will be very difficult to decide as to what is continued incapacity.


4.24.57
The Honourable Pandit Govind Ballabh Pant
May I just have a word, Sir, in order to avoid unnecessary discussion? I should like to invite your attention to another amendment which is on the Order Paper, where I wish to move that the Deputy Governor should be appointed. That comes under clause 3. It is No. 8 on the Order Paper which was circulated in the form of a supplementary list.


4.24.58
Mr. Naziruddin Ahmad
It is said that an amendment on the lines of what I have suggested is already on the supplementary list, but we have no notice of any supplementary list whatsoever. I believe many Honourable Members have not seen it. If there is any amendment it should be moved along with these, for attention should be called to them together. If there is any amendment to that effect it would be a good amendment. I was however pointing out that the good feature in this sub-clause should be retained. But the condition as to continued incapacity is vague that relating to "failure to discharge his functions" is equally vague and will lead to great difficulties.


4.24.59
Mr. Naziruddin Ahmad
With regard to the next sub-clause, I feel some difficulty. I do not desire to oppose this clause altogether, but I submit my difficulty for clarification or correction, if necessary. Sub-clause (4) says that the Governor shall be eligible for re-elect once, but only once. I do not see the point that a Governor cannot be re-elected twice. Suppose there is a very good Governor, a very competent man and ready to do good to the people he will be shut out for the second re-election by the last portion of this sub-clause. The Sting of this sub-clause lies at the tail. There is no point in limiting the people's choice in electing a Governor. It is just like the chimney sweeper who has to go up inside a chimney in order to clean it and in order to go into it, he must be small enough but as soon as he gets experienced he becomes too big to get into it. I think the chimney sweeper test should not be applied to a Governor. I make only a suggestion for the Honourable Sardar Vallabhbhai Patel to give his consideration to this. I simply draw the attention of the House to what seems to be an absurd and untenable position, though I think it is too early to go into great details. Enough opportunity would be given to the House to give its verdict on the final draft. I therefore make a suggestion in the hope that those in charge should keep it in their minds.


4.24.60
The Honourable Sardar Vallabhbhai Patel
Sir, there is not much controversy about the motion that I have moved. About the third clause I had already suggested that I would not move it as I anticipated that there was going to be a suitable amendment in a subsequent clause. We found that if we retained sub-clause (3) difficulty would arise as to who is to judge the 'incapacity or failure to discharge his functions'. In order to avoid all these complications, an amendment has been tabled to the subsequent clause, which avoids all difficulties. Now I accept Pandit Govind Ballabh Pant's amendment. About the fourth sub-clause a suggestion has been made that the re-election should not be restricted for any term. In all if he is allowed to stand for election twice, he gets a period of eight years. For the third re-election the sub-clause proposals to restrict candidature because according to the discussion that took place in the Committee it was suggested that the President, if he remains for two terms, may well establish his power to such an extent that perhaps somebody might suggest or some suggestions may be made that he has stabilized his position and it may be difficult to absolve him from the charge of having manoeuvred, from his position, support for the third election. It was considered better to avoid any such insinuation against the Governor as well, as it was also considered that the eight years' period is a, sufficiently long time. As the candidate for the Governorship will fairly be a man of substance, age, and experience, after the eight years, period he may better retire and give a change to a younger man. I think the Committee has come to the conclusion after mature consideration. I think it is a better suggestion. Therefore, the motion that I have moved as modified by the amendment of Panditji should be adopted, and the amended clause as it stands should be accepted by the House.


4.24.61
The Honourable Sardar Vallabhbhai Patel
I forget to say that I accept Mr. Santhanam's amendment.


4.24.62
President
I have to put to vote the two amendments moved, one relating to sub-clause (2) of Clause 2 and the other relating to sub-clause (3) of Clause 2. The mover has accepted both these amendments. So I put the clause as a whole to the House, but before doing that I had better take votes on the amendments also.


4.24.63
President
Mr. Santhanam's amendment is as follows:

"That in sub-clause (2) of Clause 2 for the words 'to be tried by the Upper House of the Federal Parliament' the words 'to be confirmed by the Upper House of the Federal Parliament after investigation by a special Commission of that House be substituted."

The amendment was adopted.

4.24.64
President
The other amendment is by Pandit Govind Ballabh Pant and it is as follows:

"That sub-clause (3) of Clause 2 be deleted."

The amendment was adopted.

4.24.65
President
Now, clause 2, as amended is put to vote.

Clause 2, as amended, was adopted.
CLAUSE 3

4.24.66
President
We will now go to Clause 3.


4.24.67
The Honourable Sardar Vallabhbhai Patel
Casual Vacancies. (1) Casual Vacancies in the office......


4.24.68
President
There is notice of an amendment that after Clause 2, another clause be inserted. I do not know whether it can be moved as an amendment. We shall put it in the right place. We shall go on with the clauses as they stand.


4.24.69
The Honourable Sardar Vallabhbhai Patel
I move:

"Casual Vacancies.--(I) Casual Vacancies in the office of Governor shall be filled by election by the Provincial Legislature on the system of proportional representation by means of the single transferable vote. The person so elected shall hold office for the remainder of this predecessor's term of office.

(2)In the event of the Governor's absence from duty or incapacity or failure to discharge his functions for a period not exceeding four months, the President of the Federation may appoint such person as he thinks fit to discharge the Governor's functions until the Governor's return to duty or until the Governor is elected as the case may be."


4.24.70
The Honourable Sardar Vallabhbhai Patel
In this, as was suggested in the course of the discussion of Clause 2, there is an amendment to be moved by Pandit Govind Ballabh Pant. Therefore, I move this portion and I do not propose to say anything more.

(Messrs. V. C. Kesava Rao, M. Ananthasayanam Ayyangar and Shibban Lal Saksena did not move their amendments.)

4.24.71
The Honourable Pandit Govind Ballabh Pant
I move, Sir, that for Clause 3, the following be substituted:

"There shall be a Deputy Governor for every province. He will be elected by the Provincial Legislature on the system of proportional representation by single transferable vote after every general election. The Deputy Governor will fill a casual vacancy in the office of the Governor and he will also act for the Governor in his absence."


4.24.72
The Honourable Pandit Govind Ballabh Pant
The first part of Clause 3, that is sub-clause (1), is incorporated in my amendment. In so far as it differs from Clause 3, it provides for a contingency which might arise in consequence of the adoption of the amendment which I moved a few minutes ago. The original clause provided that in case of casual vacancies occurring during the term of office of the Governor, the vacancy will be filled up by election. The legislature would be seized of the matter and the provincial legislature would elect a substitute Governor for the remainder of the term according to the system of proportional representation by means of the single transferable vote.


4.24.73
The Honourable Pandit Govind Ballabh Pant
In the case of short term vacancies, however, which might occur, it was provided by sub-clause (2) that the President of the Federation would nominate a Governor to officiate for the, permanent Governor. I think it would be unwise to impose this embarrassing duty on the President of the Federation. Besides, it would be somewhat repugnant to the principle of provincial autonomy. As Honourable Members are aware the provision in the constitution that has been devised for the Federation contemplates a Vice-President to be elected by the legislature after the general election. A Vice-President is elected so that in case any vacancy occurred or any occasion arose for another person stepping into the shoes of the President, a person might be readily available to discharge the functions of the President. By the amendment that I am proposing, I am suggesting a procedure that will be in accord with that already accepted for the Federation.


4.24.74
The Honourable Pandit Govind Ballabh Pant
As Honourable Members are aware, in some of the constitutions abroad, a Vice-President is elected by the general electorate along with the President. It is not necessary to go through an equally cumbersome process here as the Vice-President will not have very heavy responsibilities to discharge and a second election in the course of four years for the election of a substitute Governor for a short term would involve undue labour and worry and expense. So it is considered desirable that some simpler method should be prescribed. We have accordingly by this amendment suggested that the Deputy Governor should be elected by the legislature and he should be readily available to fill any vacancy that might occur during the term of office of the Governor whether the vacancy be temporary or permanent.


4.24.75
The Honourable Pandit Govind Ballabh Pant
It is likely that the Governor may have to go abroad for important public business, that he may be deputed for diplomatic service of an important character for a short term or he may be required to perform other duties for a limited period which may not allow him to discharge his normal functions. For such occasions we should have a Deputy Governor to take his place. The question was raised by one of the Honourable Members when I moved my first amendment. This amendment that I have now moved furnishes the remedy. The amendment is straight forward and simple and I hope it will be unanimously accepted and adopted by the House.


4.24.76
President
Mr. Santhanam, you have an amendment.


4.24.77
Shri K. Santhanam
I do not wish to move it.


4.24.78
Biswanath Das
Mr. B. Das.


4.24.79
Biswanath Das
I do not wish to move.


4.24.80
President
Dr. Deshmukh has given notice of an amendment to Clause No. 1. Do you wish to move it now?


4.24.81
Dr. P. S. Deshmukh
It is covered by Pandit Pant's amendment. I do not wish to move my amendment.


4.24.82
President
The Clause has been moved and so also the amendment of Pandit Pant. Those who wish to say anything with regard to the original proposition as also the amendment are now free to do so.


4.24.83
Mr. Naziruddin Ahmad
Mr. President, Sir, I regret having to come here for the second time in connection with these amendments. With regard to the amendment that has now been moved, it was not circulated to us. It was only when it was moved here that I discovered its existence. It is difficult for us to follow the implications of these amendments. The original clauses have been drafted very carefully by an expert Committee consisting of expert draftsmen, experts in Constitutional Law and our great statesmen together. When they have drafted the report after so much deliberation and care its amendment should be taken in a serious manner; I should think the task of following the clause and the amendment on the spur of the moment on obtruse constitutional questions, becomes for us, laymen, all the more difficult. I submit that an amendment of this serious character altering the basic character of the original clause should not be allowed without giving us some time to Consider its repercussions on the clause itself as well as upon the whole report because upon these clauses the final Bill will be drafted for our final consideration. In a matter of this importance, I think some caution should be used and some time should be allowed us for considering them. I find that to the original clause a large number of amendments have been moved. I doubt not that if the amendment just now moved was circulated to the Honourable Members, many amendments might have been suggested.


4.24.84
Mr. Naziruddin Ahmad
In the circumstances, I would suggest that this clause should not be rushed with. Some little time, however small, which the House or you, Sir, might consider sufficient, should be given to us. I must make it plain that it is by way of co-operation that I approach the House and approach you, Sir, for a little time. I plead with the Mover of the Clause as wall as theHonourable the Mover of the amendment, who are great figures of our country, for a little time. I would ask them to consider the position of laymen in constitutional law having to take decisions on important issues without having previously considered them adequately. That is a prayer which I wish to make so that it may be sympathetically considered and some time given to us to consider the situation.


4.24.85
President
Does anyone else wish to speak on the clause as well as the amendment?


4.24.86
B. Pocker Sahib Bahadur
Mr. President, Sir the question that the House has to consider is whether the original clause, or the clause sought to be substituted by the amendment, should be adopted by the House. I think the amendment should be accepted for various reasons which have already been mentioned by the Mover of the Amendment. It is very unwise to create a possible occasion for an election by this complicated procedure in the middle of four years. In order to avoid that, it is much better to have a Deputy Governor elected even along with the general election itself. Therefore, I have great pleasure in supporting the amendment that has been proposed. But I have one doubt as regard the system of proportional representation by means of the single transferable vote. I ask you, Sir, to consider the question whether that is an effective system when the object is only to elect one candidate. I can understand the efficacy of that system when you have to elect a larger number of candidates than one. But if the candidate to be elected is only one, I do not know how far this system would be efficacious in achieving the object at all. The object of having election by means of proportional representation by single transferable vote is to give representation to various groups or sections or views among the voters. If the candidate to be elected is ultimately only one, I doubt if it is wise to undergo this laborious process of proportional representation by means of single transferable vote. This is a matter to be considered by the House, particularly by the experts who have drafted this Report. They certainly must have thought about this point. I am afraid, in the first place, it has no effect at all so far as the object to be achieved is concerned, when the candidate to be elected is only one. But as I said, this is a matter to be considered by the House, I have not given any amendment, but I hope this matter will be taken up for consideration by the drafters of this Report.


4.24.87
M. Ananthasayanam Ayyangar
The last speaker seems to be under the impression that the Deputy Governor will have to be elected by votes of all the adults of the province. This, however, is not the case. The election will be done by the Provincial Legislature where the number will be only about 150 or 200. That being so it will not be a difficult matter at all. It is not a huge body; we have such elections by proportional representation by means of single transferable vote for various other bodies also. For example, in the case of the Council of State, the strength of the electorate is 3,000; in the case of a Provincial Legislature, I suppose the strength will not be more than say 300. Therefore, this need not stand in the way of our having proportional representation by means of the single transferable vote. I think the amendment may be accepted.


4.24.88
The Honourable Rev. J. J. M. Nichols-Roy
Mr. President, Sir, I am going to speak on the amendment. It deals with the filling up of a casual vacancy in the office of the Governor. It, however, does not solve the problem of a casual vacancy that may arise in the office of the Deputy Governor. The amendment says:

"There shall be a Deputy Governor for every province. He will be elected by the Provincial Legislature on the system of proportional representation by single transferable vote after every general election. The Deputy Governor will fill a casual vacancy in the office of the Governor for the remainder of the term of office of the Governor and he will also act for the Governor in his absence."


4.24.89
The Honourable Rev. J. J. M. Nichols-Roy
But what will happen if there are casual vacancies both of the office of the Governor and of the office of the Deputy Governor? In that case, there will be a dead-lock. There is no provision at all for such a case. For this reason, Sir, it seems to me that the clause as drafted originally is far better than the amendment. At every casual vacancy of the office of Governor, the Provincial Legislature may fill up that vacancy; but according to the amendment there will be a vacuum, there is no provision for filling up a vacancy if there are such vacancies both in the office of the Governor and in the office of the Deputy Governor. For this reason, Sir, the clause as originally drafted it seems to me, is preferable to the amendment.


4.24.90
B. Pocker Sahib Bahadur
Mr. President, Sir, with regard to the submission made to the House by Mr. Pocker, the explanation why the system of proportional representation by means of single transferable vote has been inserted in the clause is clear enough. If this method of election were not introduced here in Clause 3, the result would be that a person would be elected as Deputy Governor by less than one half of the members voting. If it is by proportional representation, then by transfer of second vote, whoever succeeds will get one half plus one votes more than the number of votes cast for the others. That is why this system has become necessary.


4.24.91
As regards the difficulty put forward by Rev. Nichols-Roy, about both the Governor and the Deputy Governor disappearing from the scene simultaneously, it is very difficult to conceive of such a contingency at this stage. Even if we had a third man, he too may disappear. Therefore, at this stage, we can only fix the general principle. If by some sudden stroke of calamity, the Governor, the Deputy Governor and all the rest disappear, then the whole machinery will collapse. But we need not think of such far-fetched events. We hope the Governor will continue, if not, the Deputy Governor at least will continue, till the end of the term.


4.24.92
Rohini Kumar Chaudhury
Mr. President, Sir, the Committee which produced this Report was presided over by no less a person than the distinguished and revered Sardar Vallabhbhai Patel and we think full opportunity was given for discussion of each matter so that when the Report was before the House there would be no need for any change. I should not be understood to be opposing Pandit Pant or to criticise him, because physically, morally and intellectually I would not be equal to that task. (Laughter). But I think it would be better and more helpful to us if we know what would be the normal functions of the Deputy Governor, when the Governor is not absent. Would his function consist simply in longing and praying for the absence of the Governor or for him to be incapacitated i.e., for a casual vacancy? (Laughter). That question, Sir, may please be borne in mind and duly considered.


4.24.93
Rohini Kumar Chaudhury
Then, Sir, it is obligatory according to his amendment that there shall be a Deputy Governor in every province. Will this Deputy Governor, be honorary or will he be paid? If he is a salaried man why do you compel a poor province like Assam or Orissa to maintain a Deputy Governor with all the costly paraphernalia which will be there?


4.24.94
Rohini Kumar Chaudhury
Then, Sir, I am speaking on behalf of those who may aspire to become Governor of a province--but if--God forbid--a Governor should die immediately after the election (laughter) will the Deputy Governor who is elected only indirectly by the votes of a few people enjoy the same position as the Governor who was elected to the office by all the adult votes? It may be said that the Vice-President of the U.S.A. enjoys all the powers of the President but there he is elected by the whole country. So why should you give such extensive power to your Deputy Governor who is not elected by the entire adult votes but only by a few people? These are points to-be considered and I hope a suitable reply will be given to these questions.


4.24.95
Mr. Debi Prosad Khaitan
Sir, in trying to understand the various clauses of the draft Bill that has been placed before us we should remember what the Mover,Sardar Patel, said in the beginning that these clauses are not complete and final drafts but only enunciation of principles which we can approve of. And the principles that we approve of will again be brought before another Drafting Committee which-will put them in proper shape and fill such lacuna as may remain after the draft passes this House at the present sitting. In the original draft as placed before us is was stated that "the Governor shall be deemed to have vacated his office by continued absence from duty or continued incapacity or failure to discharge his functions for a period exceeding four months".


4.24.96
Mr. Debi Prosad Khaitan
This was thought to be very uncertain and very vague, as to when and in what manner the Governor is to be deemed to be in continued incapacity to discharge his functions. Similarly what was means by the expression "failure to discharge his functions"? It became very difficult to decide what authority would declare that a Governor was in continued incapacity, expect in the case of illness. Similarly, "failure to discharge his functions" is again a very vague expression. One man may consider that the Governor was failing to discharge his functions while a large body of other persons and the Governor himself may think that he was not failing to discharge his functions. This has again to be read with sub-clauses (1) and (2) of Clause 3. There it was stated:

"Casual vacancies in the office of Governor shall be filled by election by the Provincial Legislature."


4.24.97
Mr. Debi Prosad Khaitan
That is to say, there will not be a ready-made person capable of filling the office of Governor when a casual vacancy would arise. The election by the provincial legislature would necessarily take some time to carry out, and in the meantime the office of Governor would remain vacant without anybody to perform the functions of that high office. In Sub-clause (2) again, which is to be read with Clause 2(3) :

"In the event of the Governor's absence from duty or incapacity or failure to discharge his functions for a period not exceeding four months, etc."


4.24.98
Mr. Debi Prosad Khaitan
Supposing a Governor becomes ill and wants to take a holiday to some place and thinks that he will recover within three months but does not, it becomes very uncertain as to when the period will exceed four months and when it would not exceed four months. All these questions had to be seriously considered and a remedy was to beyond, or at least it was thought that another remedy should be put before this House; and that is just what Pandit Pant has done, namely that after each general election when the provincial legislature meets it would elect a Deputy Governor according to a certain process. Even now some lacuna still remains, namely, it is said that the Deputy Governor will fill a casual vacancy in the office of the Governor for the remainder of the term of the office of the Governor. It has not been stated here as to what will be a casual vacancy, and who would determine whether there is a casual vacancy or not; whether it is the Governor himself that will determine it or some other authority will have to be duly considered by the expert draftsmen that are serving the Constituent Assembly.


4.24.99
An Honourable Member
Sir, is the Honourable Member in order in reading a written speech.


4.24.100
Mr. Debi Prosad Khaitan
I have no written speech; I am only looking at the clauses and the amendments and have to read them because I have not committed them to memory.


4.24.101
Mr. Debi Prosad Khaitan
As I said, the expert draftsmen will have to consider when a casual vacancy occurs, which authority will determine whether a casual vacancy has occurred or not and whether the Deputy Governor--if this amendment is accepted--will fill the office of the Governor for the remainder of the term of his office or will simply act for the Governor in his absence for a short period. All these are difficult matters to consider; and if the principle that has been put forward by Pandit Pant is accepted the remaining details will have to be filled in and again brought up before this House for consideration. In the circumstances, I think the amendment of Pandit Pant is a good substitute for Clause 2 (3) and sub-clauses (1) and (2) of Clause 3, and I hope the House will accept it.


4.24.102
Mr. H. V. Kamath
Sir, in order to meet the difficulty visualised by Mr. Rohini Kumar Chaudhury, we might, as we have proposed in the case of the Upper House, direct that members of the Constituent Assembly from each Province shall vote separately and decide whether a Deputy Governor should be appointed for their province or not.


4.24.103
President
The Mover may reply.


4.24.104
The Honourable Sardar Vallabhbhai Patel
Sir, there is not much to be said by me, because subsequent speakers have replied to the previous speakers. This is a simple clause relating to how usual vacancies in the office of Governor are to be filled and the proposal has been improved upon by the amendment that has been moved by Pandit Govind BallabhPant. Doubts have been raised as to what would happen in case both the Governor and the Deputy Governor disappear. In any constitution difficulties of this kind may arise but human ingenuity always finds a remedy when such abnormalities occur. The House may also be aware that this constitution will be adjusted or revised in the first three years whenever necessity arose. Therefore, if any such unexpected or unforeseen difficulty arises, the legislature at that time will take care of itself and make provision in time to meet such contingencies. Therefore, I see no difficulty in accepting the amendment moved by Pandit Govind Ballabh Pant and I do not think it is necessary to make any more suggestions.


4.24.105
President
An amendment to Clause 3 has been moved. The question is :

"That for Clause 3, the following be substituted:

"There shall be a Deputy Governor for every province. He will be elected by the Provincial Legislature on the system of proportional representation by single transferable vote after every general election. The Deputy Governor will fill a casual vacancy in the office of the Governor for the remainder of the term of office of the Governor and he will also act for the Governor in his absence."

The motion was adopted.

4.24.106
President
The question is:

"That Clause 3, as amended, be passed."

The motion was adopted.
CLAUSE 4

4.24.107
The Honourable Sardar Vallabhbhai Patel
Sir, I beg to move:

"Every citizen of the Federation of India who has reached his 35th year of age shall be eligible for election as Governor."


4.24.108
The Honourable Sardar Vallabhbhai Patel
This is a very simple clause.


4.24.109
President
There are several amendments to this Clause.


4.24.110
Mr. H. V. Kamath
Sir, I am told on the highest authority that a man, or for the matter of that, a woman also,--as she too is eligible for election as Governor,--may attain to maturity and mellow wisdom even before the 40th year I do not therefore wish to press my amendment.


4.24.111
Shri V. C. Kesava Rao
Sir, I do not wish to move my amendment.


4.24.112
M. Ananthasayanam Ayyangar
Sir, I beg to move:

"That the following be added as sub-clause (2) of Clause 4 and the existing Clauses be renumbered as Clause 4(1) :

'(2) No person holding any office or position of emolument in the regular services of the Provincial Government or the Union Government or any local authority subordinate to the same shall be eligible for election as Governor'."


4.24.113
M. Ananthasayanam Ayyangar
Sir, it is one of the generally accepted principles that a public servant shall not stand for any elected office and hence the need for incorporating this provision in the constitution. It is likely that for such an eminent office sometimes an over-zealous public servant may stand for election and some people may also allow him to stand. As a matter of fact, I wanted that even a person who retired from public service during the previous five years ought not to be allowed to stand for election as a Governor. That will be a proper safeguard. I do not think that a public servant, how-ever, great he might be as an administrator, is as competent as a public man devoted to public service will be and is expected to serve his province as a Governor. However, that amendment is not before the House and I am moving a lesser and more innocuous amendment that a public servant should not be allowed to stand for election as a Governor. Sir, I move.

(Messrs. Shibbanlal Saksena and Biswanath Das did not move their amendments.)

4.24.114
M. Ananthasayanam Ayyangar
Sir, I accept the amendment moved by Mr. Ananthasayanam Ayyangar.


4.24.115
Mr. Debi Prosad Khaitan
Sir, an age limit has been fixed for the Governor. May I know if there is any age limit for the Deputy governor also?

(No answer was given.)

4.24.116
President
The question is:

"That the following be added as sub-clause (2) of Clause 4 and the existing Clause 4 be renumbered as Clause4(1) :

"(2) No person holding any office, position of emolument in the regular services of the Provincial Government or the Union Government or any local authority subordinate to the same shall be eligible for election as Governor'."

The amendment was adopted.

4.24.117
President
The question is:

"That Clause 4, as amended, be passed."

The motion was adopted.
CLAUSE 5

4.24.118
The Honourable Sardar Vallabhbhai Patel
Sir, I beg to move:

"Disputes regarding the election of a Governor shall be inquired into and determined by the Supreme Court of the Federation."


4.24.119
The Honourable Sardar Vallabhbhai Patel
I do not think this is a controversial clause and there is no amendment to it.

The motion was adopted.

4.24.120
Mr. H. V. Kamath
Sir, would it be too much to request you for a little recess, say, half an hour to enable members to have tea?


4.24.121
The Honourable Sardar Vallabhbhai Patel
Is that an amendment? The House is only sitting for three hours and members could have had their tea and come.


4.24.122
Mr. H. V. Kamath
If we had a recess of half an hour for tea, we could sit till 6-30.


4.24.123
President
Members can go and take their tea as the proceedings of the House go on.

CLAUSE 6

4.24.124
The Honourable Sardar Vallabhbhai Patel
Sir, I move:

"6.(1) The Governor shall not be a member of the Provincial Legislature and if a member of the Provincial Legislature be elected Governor, he shall be deemed to have vacated his seat in that Legislature.

(2) The Governor shall not hold any other office or position of emolument.

(3) The Governor shall have an official residence and shall receive such emoluments and allowances as may be determined by Act of the Provincial Legislature and until then such as are prescribed in Schedule............

(4) The emoluments and allowances of the Governor shall not be diminished during his term of office."


4.24.125
The Honourable Sardar Vallabhbhai Patel
You will see that sub-clause (1) provides that in case a person who stands for election as Governor and is a member, is elected, he has no option but to vacate his seat in the legislature. He automatically comes out of the Legislature and becomes the Governor. I think it is a proper provision. There can be no dispute about it.


4.24.126
M. Ananthasayanam Ayyangar
Sub-clause (2) refers to the holding of other offices by the, Governor. It forbids it. This is also necessary. We have provided for the acceptance of Mr. Ananthasayanam Ayyangars' amendment to the previous clause prescribing the qualifications necessary. This sub-clause is therefore very necessary.


4.24.127
The Honourable Sardar Vallabhbhai Patel
Sub-clause (3) provides simply for residence and emoluments. It is not necessary to say anything about it. Provisional arrangement is made till it is fixed by the legislature.


4.24.128
Dr. P. S. Deshmukh
I do not wish to move my amendment.


4.24.129
Mr. M. S. Aney
May I make a few observations on this motion?


4.24.130
President
Yes, after the amendments have been moved.


4.24.131
Mr. R. K. Sidhwa
Sir, the amendment that stands in my name states that the salary of the Governor should form part of the Constitution. I am strongly of the view, particularly for maintaining the dignity, the prestige and honour of the Governors who will be Indians themselves hereafter, that fixation of the salary should not be left to the caprices and, whims of the provincial legislatures. Again, under the circumstances in which the Governors will be elected by adult franchise, it will be undignified to let the provincial legislatures, where party politics will prevail, sit upon the fixation of the salary of the Governors. I do feel, therefore, Sir, that the Constitution itself should provide as to what should be the salary and other emoluments of the Governors. I am quite prepared to grant that small provinces like Assam and Orissa need not pay their Governors the same salaries as the other provinces. This tool may be put down in the Schedule. I feel that this matter should be reconsidered by the Provincial Committee. In this connection, I would point out that the Schedule stated to be there is not in fact there. The Schedule, has to be considered by the Provincial Committee. I have mentioned in the amendment that the Schedule should state what salaries should be incorporated in the constitution. I have been told that my point will be considered by the Provincial Constitution Committee. Under the circumstances, I do not move this, but I desire toemphasise this point so that the Provincial Constitution Committee may bear it in mind when they consider the Schedule. I repeat, Sir, that in view of the fact that party politics will prevail in the provincial assemblies, we should see that the salaries of the Governors form part of the Constitution.


4.24.132
President
The Provincial Constitution Committee has already reported. I do not know if this point would be going back to it. I take it, it will be taken into consideration when this matter comes up again in the final form when the final Constitution is considered.


4.24.133
Mr. R, K. Sidhwa
Yes, Sir. I have been told also that it will be borne in mind.


4.24.134
President
As there are no amendments moved to this Clause, I call upon Mr. Aney to speak.


4.24.135
Mr. M. S. Aney
Sir, I have only a few observations to make in regard to this Clause. Sub-clause (1) says that the Governor shall not be a member of the Provincial Legislature and if a member of the Provincial Legislature be elected Governor, he shall be deemed to be vacated his seat in that Legislature. This applies not merely to the Governor who is elected but also to anybody, the Deputy Governor for instance who might happen to be in the position of the Governor, in view of the provision made therefore in an amendment given notice of by my friend Mr. Govind Ballabh Pant. The case of the Deputy Governor who acts as Governor will also be covered by this Clause. But it is not, so stated in the proposed amendment. It is not stated in the aforesaid amendment that the person who acts as Governor shall not be a member of the Legislature, although by virtue of his becoming a Governor he will be taken to have vacated his seat and a vacancy will arise and it will have to be filled. That is a consequence of this amendment. We should think over the matter and see if something can be done to make this position more clear. I have nothing more to add. This is one of the points that struck me.


4.24.136
President
Is there any other member who wishes to speak about this?


4.24.137
Mr. Naziruddin Ahmad
Mr. President, Sir I feel some difficulty about Clause 6 which is under consideration. The first sub-clause says that the Governor should not be a member of the legislature, and if so after, election, he should be deemed to have vacated his seat. Coming to sub-clause (2), it is provided that the Governor shall not hold any other office or position of emolument. We have already provided through an amendment moved on the floor of, the House, of which enough notice was not given, that a candidate for Governorship should not hold any position of emolument, anywhere, even under Government or even under a local authority. To that extent, sub-clause (2) seems unnecessary.


4.24.138
Mr. Naziruddin Ahmad
Then, Sir, I am speaking on behalf of those who may aspire to become immediately after the election (laughter) will the Deputy Governor who is elected only indirectly by the votes of a few people enjoy the same position as the Governor who was elected to the office by all the adult Votes?. It may be said that the Vice-President of the U.S.A. enjoys all the Powers of the President but there he is elected by the whole country. So why should you give such extensive power to your Deputy Governor who is not elected by the entire adult votes but only by a few people?


4.24.139
Mr. Naziruddin Ahmad
Then, Sir it is obligatory according to his amendment that there shall be a Deputy Governor in every province. Will this Deputy Governor be honorary or will he be paid? If he is a salaried man why do you compel a poor province like Assam or Orissa to maintain a Deputy, There are points to be considered and I hope a suitable reply will stand the various clauses of the draft Bill that has been placed before us we should remember what the Mover, Sardar Patel, said in the beginning that these clause are not complete and final drafts but only enunciation of principles which we can approve of. And the principles that we approve of will again be brought before another Drafting Committee which will put them in proper shape and fill such lacuna as may remain after the draft passes this House at the present sitting. In the original final draft would diminish the dignity and value attaching to that high office. With regard to the amendment moved to this clause, I think I should support that amendment that the legislature should have nothing to do with the fixation of the salary of the Governor.


4.24.140
It has been withdrawn.


4.24.141
Mr. Naziruddin Ahmad
That was a good amendment, but I need not say anything further on the subject. This is a point, however which the Drafting Committee may keep before their mind.


4.24.142
Mr. Naziruddin Ahmad
These are some of the points which require careful consideration. Although I feel that this is not proper time to go into great details. I make these suggestions for the consideration of the Drafting Committee.


4.24.143
M. Ananthasayanam Ayyangar
I want to say a few words about what Mr. Aney said about this clause. He thought that when the Deputy Governor becomes the Governor during the latter's temporary absence, he would lose his seat in the legislature. The Deputy Governor becomes the Governor only when the Governor vacates his office. Under the amendment moved by Pandit Govind Ballabh Pant, the Deputy Governor will fill a casual vacancy in the office of the Governor for the remainder of the term of office of the Governor and he will also act for the Governor his absence. Should the Governor die or resign, the Deputy Governor becomes the Governor in which case he has no right to continue to be a member of the legislature. If on account of illness or absence, the Governor does not discharge his duties, the Deputy Governor will act in the Governor's place as Deputy Governor and not as Governor and therefore his place in the legislature is not vacated.


4.24.144
M. Ananthasayanam Ayyangar
Then as regards the observations made by the previous speaker in regard to sub-clause (2) which says the Governor shall not hold any other office or position of emolument. He says that the amendment moved that no public servant can be eligible for candidature as Governor is comprehensive and therefore this sub-clause is not necessary. He has for-gotten the difference between the eligibility of a candidate for Governorship and, after becoming Governor, his holding any other office. He may not be a public servant at the time of his election but he may hold any other office thereafter. The idea is that the Governor should be a 'full-time servant and must not hold any other office. That is the reason for this sub-clause.


4.24.145
M. Ananthasayanam Ayyangar
Then as regards sub-clause (4). Very often a legislature which is opposed to the Governor will try to diminish and not increase his salary. Anyhow, I would prefer the word "change" substituted for the word "diminished" in this sub-clause.


4.24.146
M. Ananthasayanam Ayyangar
The clause, as it stands, may be accepted.


4.24.147
President
I put the clause to the vote. No amendment has been moved.

The motion was adopted.
CLAUSE 7

4.24.148
The Honourable Sardar Vallabhbhai Patel
I move:

"7. The executive authority of the Province shall be exercised by the Governor either directly or through officers subordinate to him, but this shall not prevent the Federal Parliament or the Provincial Legislature from conferring functions upon subordinate authorities, nor shall it be deemed to transfer to the Governor any functions conferred by any existing Indian law on any court, judge or officer or local or other authority."


4.24.149
The Honourable Sardar Vallabhbhai Patel
I move this proposition for the acceptance of the House.


4.24.150
President
Mr. Ananthasayanam Ayyangar, you have got an amendment?


4.24.151
M. Ananthasayanam Ayyangar
I have dropped it, I will reserve it for some other clause.


4.24.152
President
You are not moving so far as this clause is concerned. Very good.


4.24.153
Biswanath Das
Sir, I move:

"That to Clause 7, the following proviso be added:

'Provided that the Federal Legislature shall contribute for such functions discharged in its behalf'."


4.24.154
Biswanath Das
This is an ordinary amendment and was probably left out owing to oversight. Honourable Members are aware of the fact that the Provincial and Federal Constitutions clearly lay down the respective function and responsibilities. In the present clause the federation is authorised to call upon the Provincial Executive to discharge certain functions over and above their own work. In such cases it is but fair that the Federal Parliament should pay for the work done in their behalf by the Provincial Executive as the agents of the Federal Parliament. I claim-this on two accounts. It is just and fair that the principal should pay for the agent in discharge of its agency work. Secondly, its responsibility cannot be complete unless the Federal Legislature finds its agency to carry on its work with its expense. The work in contemplation may relate to directions by the Federal Parliament or to work imposed on the Provincial Executive by means of Federal statutes. In such cases it is but fair that the principal must pay for the agency work. True it is that the Government of India Act had a similar section for discharge of its work by the Provincial Executive without any payment, but we are substituting a Federal system of Government in place of a Unitary type. I therefore hold that it is fair and necessary that this agency work should be paid for.


4.24.155
President
Clause 7 has been moved and the amendment to it is also moved. The original proposition and the amendment are open for discussion. Members who wish to make any remarks may do so now.


4.24.156
Ajit Prasad Jain
The present clause says that the Executive authority of the province shall be exercised by the Governor either directly or through officers subordinate to him. There is a corresponding clause as recommended by the Union Constitution Committee which says "subject to the provisions of this constitution the executive authority of the Federation shall be vested in the President". The present clause, that is the one recommended by the Provincial Constitution Committee, follows more or less the lines of the Government of India Act, 1935, and there was a reason for this. Under the Government of India Act, 1935, there are some services which were under the control of the Secretary of State and they had to function under the authority of the Government but that distinction will cease to exist under the new constitution. I do not think that this phraseology is meant to perpetuate any distinction, but, at any rate, I believe that the recommendation made by the Union Constitution Committee is simple and much better worded and perhaps we shall be wise in adopting that phraseology.


4.24.157
Biswanath Das
There is only one amendment which Mr. Biswanath Das has moved, that the Federal Legislature shall contribute for such functions discharged in its behalf. I am afraid there is some misunderstanding about this. Otherwise, the amendment would not have been moved. He is under the impression that the functions refer to the Federation authority. What the clause contemplates is that the executive authority of the province shall be exercised by the Governor either directly or indirectly or through officers subordinate to him. It is only the executive authority of the province and not of the Federation. Therefore there is no question of the Federal authority being called upon to pay. It is only a misunderstanding or misreading of the clause which has actuated the amendment. Further this is practically a non-controversial clause. Therefore, I hope the House will accept it.


4.24.158
President
The amendment to clause 7 has been moved. The question is:

"That to clause 7, the following proviso be added:

'Provided that the Federal Legislature shall contribute for functions discharged in its behalf'."

The amendment was negatived.

4.24.159
President
I now put the clause as originally moved:

"The executive authority of the province shall be exercised by the Governor either directly or through officers subordinate to him, but this shall not prevent the Federal Parliament or the Provincial Legislature from conferring functions upon subordinate authorities, nor shall it be deemed to transfer to the Governor any functions conferred by an existing Indian law on any court, judge or officer or local or other authority."

The motion was adopted.
CLAUSE 8

4.24.160
The Honourable Sardar Vallabhbhai Patel
I move:

"8. Subject to the provisions of this Constitution and of any special agreement, the executive authority of each province shall extend to the matters with respect to which the provincial legislature has power to make laws.

(NOTE.--The reference to special agreements in this provision requires a word of explanation. It is possible that in the future there may be Indian States or groups of Indian States desiring to have a common administration with a neighbouring province in certain specified matters of common interest. In such cases, the Rulers concerned may by a special agreement cede the necessary jurisdiction to the Province. Needless to say this will not interfere with the accession of the State or states concerned to the Federation, because the accession to the Federation will be in respect of Federal subjects, whereas the cession of jurisdiction contemplated here is in respect of Provincial subjects.)"


4.24.161
The Honourable Sardar Vallabhbhai Patel
I move this for the acceptance of the House.


4.24.162
President
Mr. Santhanam, you have given notice of an amendment.


4.24.163
Alladi Krishnaswami Ayyar
Sir, I think that this clause requires fuller consideration. So far as the main clause is concerned, namely that the executive authority of each province shall extend to the matters with respect to which the Provincial Legislature has power to make laws, no exception can be taken.


4.24.164
Mr. President
Shall we not take this up after the amendments have been moved?


4.24.165
Alladi Krishnaswami Ayyar
What I was going to move was a postponement of the consideration of this clause for tomorrow morning, if that is possible.


4.24.166
President
That may be possible. But I think it would be better that the amendments are moved so that the members may have an opportunity of considering the main clause and the amendments.


4.24.167
Alladi Krishnaswami Ayyar
I shall then reserve any remarks.


4.24.168
Mr. President
Yes.


4.24.169
Shri K. Santhanam
I beg to move:

"That in Clause 8, for the words 'Subject to the provisions of this Constitution and of any special agreement' the following be substituted :

'Subject to such restrictions and extensions as may be provided in this Constitution'."


4.24.170
Shri K. Santhanam
Sir, as Sir Alladi has already remarked, ordinarily the executive authority of each province extends only to those matters with respect to which the provincial legislature has power to make laws. The point of my amendment is that an extension should not be done by the province on its own authority. It should be done only through a provision specially inserted in the federal part of the constitution, as to how far a province can enter into agreement, with a State or a neighbouring province and make an extension of its authority. Otherwise the whole Union will be reduced to chaos. The Central Ministry may not have power to prevent it and may be in great difficulty. Therefore, I want to restrict the power and scope of any such agreement to the limitations imposed by the constitution and therefore the agreement should be subject to such restrictions as may be provided within the Constitution. Beyond the constitution, there should be no power to any province to make any agreement with a state or even a neighbouring province. It is only to draw attention to this important point that I have tabled my amendment.


4.24.171
Shri K. Santhanam
Of course, if as Sir Alladi has suggested, this is postponed and a better draft provided, I have no objection. I only want that this clause should not be left as it is so that the provinces may think that they can deal with the neighbouring States just as they please and come to any agreement with them with or without the consent of the Federal Government. In such a case, the permission of the Federal Government should be necessary. Not only permission of the Federal Government, but even the permission of the Federal Legislature in certain matters should be necessary. In what cases agreements should be subject to the approval of the Federal Government and in what cases it should be subject to the authority of the Federal Legislature, all these things Should be provided in the Federal part of the constitution. It is only to draw attention to this important point that I have tabled my amendment.


4.24.172
Alladi Krishnaswami Ayyar
Sir. I have got a draft ready. Mr. Santhanam's amendment is an innocuous amendment. You may make any agreement or provision you like. It does not finally settle the question. There may not be any objection to that form because it commits us to no particular principle. But if really, the object is to tackle the question and to enable the, provincial executive to take up the administration of subjects under the sanction or in pursuance of any agreement with the States special provision may have to be made. If you will permit me, Sir I shall move an amendment, or at any rate, I will make my position clear with reference to the substance of what I have noted down even if it be not moved.


4.24.173
President
I will give you an opportunity. There is only one more amendment and after that amendment has been moved, I will give you an opportunity.


4.24.174
Shri Gokulbhai D. Bhatt
Mr. President, the amendment which I am. going to move is to Clause 8. The note connected with the said clause says at one place: "In such cases, the rulers concerned may by a special agreement cede the necessary Jurisdiction to the Provinces". I desire that wherever the word "Rulers" appears in the note the word "State" should be substituted. So far, the word "State" has been used everywhere in this note. Now when the States are going to have responsible government and in some States it is being established, I wish that the word "Rulers" should not be used, but the word "State" instead, for this word includes both the Rulers and the ruled. The contemplated agreement should be made with the consent of both the Rulers and the people. This is the purpose of my amendment. I think Sardar Patel will have no objection to this, for the word "State" is more dignified here than the word "Rulers".


4.24.175
Mr. Gopikrishna Vijayavargia
The amendment moved byMr. Gokulbhai Bhatt, seeking to substitute the word "Rulers" by "State" is necessary and ought to be accepted.


4.24.176
The Honourable Pandit Govind Ballabh Pant
Mr. President although this is a very trivial point, still as it is relevant, and I would like to be enlightened on that. Mr. Bhatt's amendment relates to a word which appears in a note annexed to Clause 8. Is the note a part of this memorandum? Is it open to the members to move amendments to the wording of the note or to anything appearing in the note? I have not considered the note as an integral part of the clause. It is nothing but explanatory I personally think that one need not worry too much about the language of the note. If the original clause is deleted, the note will fall. If the original clause is amplified, the note may not remain consistent with the amended clause. I would like to know whether you consider that amendments to notes are admissible and can be considered.


4.24.177
Sir, I support my friend Sir Alladi that this clause requires reconsideration. As it is, it reads:

"Subject to the provisions of this Constitution and of any special agreement, the executive authority of each Province shall extend to the matters with respect to which the Provincial Legislature has power to make laws."


4.24.178
But the insertion of the word 'of any special agreement' without any further qualification would go to show that it would be competent to the Provincial Legislature to acquire the power to make laws, not by virtue of this Constitution, but by any special agreement it may enter into. That might conceivably lead to great complications. Therefore. I submit that this requires consideration, and time should be given till tomorrow to put this into shape. It may possibly touch External Affairs too.


4.24.179
President
As here is a desire expressed by some members that further consideration of this clause be postponed till tomorrow, I would like to have the views of other members if they wish to say anything on that point. I would not like to rush with it if there is a wish on the part of any considerable number of members to postpone discussion.


4.24.180
Alladi Krishnaswami Ayyar
Sir, I support the motion of Mr. Munshi that the consideration of this matter be adjourned till tomorrow. But I would like to say a word in support of my proposition. It is this, Sir, that the Province as a unit, has certain defined rights and duties under the Constitution. You provide for the Province taking upon itself the administration of certain subjects at the instance of a State. It is an extra-Provincial sphere. If that is so, is it to extend to the Legislative, Executive or the Judicial sphere and to what extent is that agreement to be supported? In a case like this, it is matter for Federal intervention, which is necessary. These are matters which require very careful consideration and we cannot merely by adding a clause 'subject to some agreement' give a carte blanche for any agreement that might be entered into between Provinces and States in the Legislative, administrative or judicial sphere. Therefore, Sir, I support the motion of Mr. Munshi that the consideration of the whole matter may be adjourned until tomorrow morning. I have given notice of an amendment. I hope that will be treated as being in time because I gave it at 2 O'clock this afternoon. It reads as follows:

"1. In paragraph 8 of Chapter 1, delete the words 'and of any special agreement'.

2. After paragraph 8 of Chapter I, insert the following paragraph:--

"8-A. It shall be competent for a Province to undertake the legislative, executive or judicial functions vested in an Indian State under an arrangement made in that behalf with the State concerned, provided, however, that the arrangement relates to the class of subjects falling within the jurisdiction of the Province as a member of the Indian Union.

On such an arrangement being concluded, the Province may, subject to the terms of the agreement, exercise the legislative, executive and judicial functions through the appropriate authorities of the Province'."




4.24.181
Alladi Krishnaswami Ayyar
If you want to have a provision, it should be a full provision on these lines. If on the other hand, the idea is to postpone until the whole question of Union Constitution is considered, then it is another matter but I do not think it will be possible to provide for it by means of a phrase or addition of a sub-clause in the body of the section. That is my idea of the matter and I have already stated that the consideration of the whole matter may be adjourned till tomorrow morning.


4.24.182
The Honourable Sardar Vallabhbhai Patel
May I suggest that this involves some complicated points of law and requires further consideration as suggested by Sir Alladi? I suggest that a Committee of two or three lawyers might be appointed to consider this question and thrash out if an amendment to or modification of the present clause is necessary so that we may find it easy to tackle it tomorrow when it comes up.


4.24.183
Chaudhuri Khaliquzzaman
I support it.


4.24.184
President
Will you Suggest the names?


4.24.185
B.R. Ambedkar
Sir Alladi, Dr. Ambedkar, Jr. Munshi and Mr. Chundrigar.


4.24.186
An Honourable Member
May I request that as the subject relates to Indian States, States Representatives also might be included?


4.24.187
I propose the name of Sir B. L. Mitter.


4.24.188
Mr. Mohammad Sheriff
I propose that Sir Arcot Ramaswamy Mudaliar's name may be included in the proposed Committee. This matter requires very careful consideration as it involves the interest of the States and since we represent the States, we would like to have a considered say in the matter. I request the consideration of this matter be postponed for the present and the Committee which is to be constituted should thrash out all the points and for this purpose I suggest that the name of the Mysore Dewan be included in the Committee.


4.24.189
President
We have got six names altogether, four suggested originally and two other names have been added--Sir B. L. Mitter and Sir A. Ramaswamy Mudaliar. I take it that the House accepts the suggestion that this clause be referred to a Sub-Committee and the report of the Sub-Committee be put up day after tomorrow. We shall go on with the other clauses and take this up day after tomorrow. There was one question raised by a member with regard to the notes whether the note also forms part of a clause. I do not think the notes form part of a clause. That is for explanatory purposes and no amendment need be moved to any of the notes.


4.24.190
Mr. Debi Prosad Khaitan
I want to make one suggestion. With regard to your Ruling that the notes are not considered to be part of a Resolution, may I draw your attention to the note to Clause 9 and perhaps that may have to be considered as part of the Resolution. It reads--"For the most part, the Governor will act on advice, but he is required to act in his discretion. in the following matter"-- I would submit that the general statement need not be made and it may apply only with regard to this note.


4.24.191
The Honourable Pandit Govind Ballabh Pant
The note in Clause 9 refers to certain sections which are to follow thereafter. It is not part of the clause at all.


4.24.192
Mr. C. V. Krishnaswamy Rao
Sir, while this Committee considers this Clause 8 tomorrow, will it take into consideration the obverse possibility of certain Provinces entering into agreements with a State in respect of certain matters and cede certain powers to the State in administration of those matters? Will the Committee consider this aspect of the question also?


4.24.193
President
Whenever that question arises, we shall consider it. The consideration of this clause is adjourned today after tomorrow and we shall now pass on to the next clause.


4.24.194
Mr. N. V. Gadgil
It is already past 5-30, and it will be better if we adjourn now and meet tomorrow. We have done good work today.


4.24.195
President
Is it the wish of the House that we adjourn now? (Honourable Members 'Yes'.) The House seems to be in a holiday mood. We adjourn till 3 pm. tomorrow.


4.24.196
President
Before we disperse, I would like to make an announcement. It has been brought to my notice that the time I have given for sending in amendment to the Union constitution, i.e., till 5 P.M. tomorrow is two short, and some members want this time to be extended. So I extend the time till Friday evening at 5 o'clock.

The Assembly then adjourned till 3 P.M. on Thursday, the 17th July, 1947.

The Constituent Assembly of India met in the Constitution Hall, New Delhi at 3 P.M., Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair.
REPORT ON THE PRINCIPLES OF A MODEL PROVINCIAL CONSTITUTION-contd.

4.25.1
President
Yesterday we referred Clause 8 of the Report on the Principles of a Model Provincial Constitution to a small Committee. I understand the Committee has been able to arrive at some conclusion and it has made a report. The Report will be circulated today and the clause will be taken up tomorrow. We will now take up Clause 9.

CLAUSE 9

4.25.2
Vallabhbhai J. Patel
I move clause 9. It reads:

"There shall be a Council of Ministers to aid and advise the Governor in the exercise of his functions except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion."


4.25.3
Vallabhbhai J. Patel
This clause provides that there shall be a Council of Ministers who will aid and advise the Governor in the exercise of his functions, but there is an exception in which certain reservations are made-where, according to the constitution proposed, he is required to exercise the functions or any of them under his discretion. About those matters there will be reference in subsequent clauses and therefore the Note is merely explanatory. I shall therefore simply move Clause 9 without the Note or clauses under the Note because they are provided for in the other clauses. Sir, I move Clause 9.


4.25.4
President
I have received notice of a number of amendments to this clause. I would like to know how many are proposed to be moved.


4.25.5
V. I. Muniswamy Pillai
The Minority Committee's Report has not yet come and I am not therefore moving my amendment, just now.

(Messrs. R. K. Sidhwa, H. J. Khandekar and H. V. Kamath did not move their amendments, and other members who had given notice of amendments were absent.)

4.25.6
President
As regards the amendment given notice of by Mr. Pocker Saheb Bahadur, it is an amendment to an amendment which has not been moved. It cannot therefore be moved. As none of the amendments has been moved, the original clause which has been moved is open for discussion (After a pause). As no one desires to speak on it I will put the clause to vote.


4.25.7
President
The question is:

"That Clause 9 be adopted."

The motion was adopted.
CLAUSE 10

4.25.8
Vallabhbhai J. Patel
Sir, I move that Clause-10 be adopted. It runs as follows:

"If any question arises whether a matter is one for the Governor's discretion or not, the decision of the Governor in his discretion shall be final."


4.25.9
Vallabhbhai J. Patel
Some doubts have been raised about the language, but I think if the principle is accepted the question of language may be attended to at the time when the final draft is made. I think there will be no objection on the ground of any defect in the proposition as a principle. Sir, I move.

The motion was adopted.
CLAUSE 11

4.25.10
Vallabhbhai J. Patel
Sir, I move that Clause 11, be adopted. It runs as follows:

"The question whether any, and if so, what advice was tendered by the ministers to the Governor shall not be enquired into in any court."


4.25.11
Vallabhbhai J. Patel
Obviously the advice tendered by a Minister to the Governor cannot be a matter to be taken into the judicial court. So it is a simple clause which requires no explanation. Sir, I move.

The motion was adopted.
CLAUSE 12

4.25.12
Vallabhbhai J. Patel
Sir, I move that Clause 12 be adopted. It runs:

“The Governor's Ministers shall be chosen and summoned by him and shall hold office during his pleasure."


4.25.13
Vallabhbhai J. Patel
This also is a proposition which requires no elucidation and I think there will be no controversy on it. Sir, I move.


4.25.14
Mr. Aziz Ahmad Khan
Mr. President, the Resolution which is before you says that the Governor shall appoint his own Ministers and they shall continue as such at his pleasure. I move the amendment to the Resolution that the Governor's Ministers shall be elected by the Assembly by means of the single non-transferable Vote. The Resolution moved by the Honourable Sardar Patel does not follow the English Parliamentary system of appointing the Ministers. According to the English constitution, after the general elections are over, the number of parties in the House of Commons is ascertained and they try to find out which is the largest single party; or whether there is any such party which combining with other parties can become dominant. This is the party which is authorized to appoint the Prime Minister. He recommends the names of his colleagues, who on his recommendation form the Cabinet. This is the method which has been proposed for our constitution as well. But the method which I am advocating in my amendment, is not a novel method. There are many places in the word, where this method is prevalent. For instance, Sir, if you enquire, it would be found that today this system is prevalent even in America. The appointment of Ministers is not made by nomination. Here individual vote is taken and this is the way in which Ministers are elected. Similarly, Ministers are elected in Switzerland and Austria. Sir, if you think over it, you will find that in all countries where religious groups and sectional interests exist, this system has been adopted, in order that all the parties on whose behalf the Ministers would govern should have a hand in their appointment, to secure the confidence of every party in the Cabinet. After mature consideration, I am convinced that the English system of democracy does not suit India. We have witnessed the result of this system of democracy, which has caused disturbances and bloodshed in this country. Had the system of Government been the product of our own genius, most probably such mutual hatred and differences would not have been created or intensified. Therefore it is in the fitness of things that the Ministers should be elected by general votes. This system will have the advantage that the Ministers will have sympathies of their voters. This system will be consistent with the principles of democracy. But if this is not accepted and the English system is adopted then I am afraid it would not suit us.


4.25.15
Mr. Aziz Ahmad Khan
Sir, very few of the present parties are based on any political principles. Most of them depend on religious faith. These religious groups have existed for centuries and have continued as such from time immemorial. It is known to one and all that the untouchables are living here for scores of centuries. It is absurd to think that no sooner the constitution is framed, the religious groups will disappear and parties will be formed on political and economic principles. It would be a dangerous experiment to think of planting English system of democracy, where Party affiliations are based exclusively on political principles or of creating those conditions here. Countries like Austria and Switzerland, where they had their differences, have adopted this system of election for the Cabinet with success.


4.25.16
Mr. Aziz Ahmad Khan
Naturally, whenever a person votes for electing a particular candidate as Minister, he has at least some expectations from him for the future and he (the Minister) in return shall do at least some good to him. Therefore, it would be much better to adopt such a system for India. Due to English education, we could not develop any system of our own. The English people thought that the system with which they have achieved this end, should be applied to India also to attain its object. They acted accordingly and succeeded in their endeavour. We should discontinue the methods adopted by the English people and should try to adopt a better system. I am sure, that the election of the Ministers by general votes would be much better. Therefore, I hope that my amendment will be accepted by the House.


4.25.17
Mr. Aziz Ahmad Khan
One word more. When the Resolution was about to be moved we were not given opportunity to give much thought over it otherwise the amendment could be more Properly drafted. Therefore, you need not care for the words of my amendment. As a matter of fact you should not look to the details of my amendment. If you agree with the principles underlying my amendment, the confusion about the details will automatically disappear. Please look to the principles of the amendment. In the original Resolution, there is no mention of the nomination of the, Ministers, nor is there any mention of their election in the amendment Sir, if you would approve the principles underlying my amendment, then at the time of the final draft, the whole thing can be put in proper form.


4.25.18
K. T. M. Ahmed Ibrahim Sahib Bahadur
Mr. President, Sir, I beg to move:

"That at the end of the amendment to Clause 12 (just proposed by Mr. Aziz Ahmed Khan), the words 'and shall be responsible to the Provincial Legislature" be added."


4.25.19
K. T. M. Ahmed Ibrahim Sahib Bahadur
This is a very simple amendment based on the fundamental principles of all democracies. The Ministers, Sir, should be responsible to the Legislature. That is a very fundamental principle affecting the rights of the entire population.


4.25.20
K. T. M. Ahmed Ibrahim Sahib Bahadur
Now, the principles enunciated in the Report are such as to invest the Governor with all powers of the State. In short, all the powers of the State are concentrated in one single person and, I submit that such concentration of power in one single person is dangerous to the State, however eminent he may be and by whatever democratic methods he may be elected. It is true that it is stated in the Note to Clause 9 that the Governor, in the proposed constitution, is to be elected by the people, so that he is not likely to abuse his discretionary powers. But it must be admitted that it is dangerous to invest one single person with such powers, whatever may be the method by which he is to be elected.


4.25.21
K. T. M. Ahmed Ibrahim Sahib Bahadur
Further, it is also stated in Clause 13 that generally the Governor will be guided by the conventions of responsible government; but there is no compelling necessity on his part to follow any such convention. And, if there is any difference of opinion as to whether he has followed the conventions or not, the Governor's act cannot be called in question. It is obvious that the relationship of the Ministers with the Governor and their dealings with him should not be left to the entire discretion of the Governor. I would point out that such a procedure is entirely foreign to all principles of democracy. If this is allowed to stand, then the Ministers will be only advisers and the Legislature will be only an advisory body. Therefore it is that we want that the Ministers should be responsible to the, Provincial Legislature and that they should be elected by the Provincial Legislature concerned. There is otherwise every possibility of the Governor abusing his powers and encroaching upon the rights of the people in more ways than one. It is to ensure that proper democratic government may be carried on that we want that the Ministers should be responsible to the legislature and through the legislature to the electorate, and not to one single man. The principle is that the Ministers should be responsible ultimately to the electorate through the legislature and not to one single man by whatever method or majority he may be elected. I hope the House will accept this amendment as it is based on fundamental principles.


4.25.22
M. Ananthasayanam Ayyangar
I am not moving my amendment, but wish to speak.


4.25.23
President
The Honourable Member may speak later.


4.25.24
President
There is another amendment of Begum Aizaz Rasul to this amendment of Mr. Aziz Ahmad Khan. Will you please move it?


4.25.25
Begum A. Rasul
Sir, I wish to move that at the end of the amendment moved by Mr. Aziz Ahmad Khan to Clause 12 the following words be added:

"and shall hold office during the life of the Assembly."


4.25.26
Begum A. Rasul
Sir, my purpose in moving this amendment is that the Ministry should be a strong and stable Ministry and that it should not be subject to the whims and fancies of the party or legislature to which it is responsible. Sir, in England and France the Ministry is responsible to the legislature We see what happens in France every day. The Ministry is weak and the Cabinet has fallen several times. That always happens where there are more than two parties in the legislature, and therefore in India which is so young in democracy, where the sense of responsibility is neither ingrained nor so well developed, we should have a strong and stable Ministry which can initiate long-range policies and be uninfluenced daily by the repercussions in its party. We do not want a repetition of what is happening in France in our country. Sir, my experience of the last ten years after the introduction of the Government of India Act of 1935 has been that in the provinces where the Ministers are responsible to the legislature and are liable to fall on a vote of no-confidence by their party or the provincial legislature, they cannot put forward any long-range policies. As I said before, often they are influenced daily by party feelings and are therefore necessarily weak. I therefore feel that a Ministry that has been elected by the legislature should have a long life in which it can formulate its policies and not be influenced by party factions. We may have the American system under which the President nominates his executive, but our country may not be ready for that. But the Swiss system under which the Legislature elects the executive for a certain period during which it is irremovable is to my mind the best form of government for the provinces, because the Ministers who have once been elected by the legislature cannot be removed by a vote of no confidence in it by the legislature. I feel therefore that the Swiss system is the best via media that can be accepted by us in this country, keeping in view the political and other conditions that are prevailing here and will continue for a long time to come. The system of the single non-transferable vote is to my mind the best system that can be adopted for the appointment of the executive because in that all interests will be represented and no party in the legislature will have any occasion to feel that it is not represented, and therefore I strongly support the amendment that has been moved by, Mr. Aziz Ahmad Khan.


4.25.27
Begum A. Rasul
I also wish to point out that the best thing for a Ministry is to have its life synchronous with the life-time of the Assembly so that it can be an irremovable executive.


4.25.28
Begum A. Rasul
My other point is that in the constitution we are framing, we are giving such strong and wide powers to the Governor who will be an elected Governor, that there is no need for another head of the State, because the Governor is there and will be in a position to allot portfolios, to represent the State on ceremonial occasions and to preside at meetings and to co-ordinate the work of the Ministers. All these things will come under the duties of the Governor and the Ministers who will be responsible men elected by the legislature will be able to initiate their Policies and work out their long-range policies not at the whim of the party but from their own strong positions. My experience is that where the Ministers are the representatives of a party, it is impossible for them to carry on the day to day work and the administrative work of the province uninfluenced by their party members. This necessarily means that the Ministry is weak and the administration suffers on this account because it is natural that Ministers who have to keep their party men pleased, have to do many things which are not good from the administrative point of view. Therefore I hope that, this amendment of mine which is moved with a view to having a, strong and stable government in the provinces will be accepted.

(Mr. B. M. Gupta did not move his amendment.)

4.25.29
President
I think these are all the amendments. Now, the clause and the amendments are open to discussion.


4.25.30
Seth Govind Das
Mr. President, I oppose Mr. Aziz Ahmad's amendment and also the two amendments to his amendment. He has cited the example of America where Ministers are elected and has suggested to us to adopt, not the British, but the American democratic system. I would like to point out that the Ministers in America are not responsible to the legislature. If we look at the constitutions of those countries where a system of responsible government is prevalent we shall find that the Prime Minister is chosen there by the majority party of the legislature and he chooses his colleagues. The Governor approves the list of the personnel of the Cabinet submitted to him by the Prime Minister.


4.25.31
Seth Govind Das
The conditions in the countries, where the system of responsible government exists, clearly indicate that responsible government cannot function unless there is joint responsibility. And there cannot be joint responsibility until and unless the Premier chooses his colleagues. Mr. Aziz Ahmad has stated that it is the English system of government which is responsible for all the strife in this country. I venture to tell him that a system which has not yet been put in operation here cannot be held responsible for the conditions prevailing in our country. This system of government can be adopted only in independent countries and so long our country is not free it is wrong to say that the said system is at the root of these troubles. If anybody is responsible for what is happening in the country it is the Muslim League that advocates the two nation theory, that from time to time raises the cries of 'Islam in danger' and proclaims that there are two civilizations and two cultures in the country. It is wrong to say that, the system of responsible government which we intend to establish here is responsible for these serious disturbances in our-country. And then Mr. Aziz Ahmad should look to the system adopted so far by the Muslim League. The President of the Muslim League is elected-Qaid-i-Azam is elected. But the personnel of the League Working Committee is chosen by the President. The general body of the League does not elect the working Committee. The Congress too follows the same system: We elect our Rashtrapati (Congress President). The provincial congress committees elect their presidents. We authorise the Rashtrapati and the presidents of the provincial congress committees to choose the personnel of their working committees. Having all these in view, I beg to advise that we must not follow the American system of government, if we desire to establish responsible government here. The Ministers in America are not responsible to the legislature--the House of Representatives or the Senate. We want responsible government. We want our Ministers to be responsible to our legislature. If we desire to have this system, it is essential that Ministers should not be elected on the principle of proportional representation by single transferable vote.


4.25.32
Seth Govind Das
The other two amendments to this amendment are amazing. One of them says that the Ministers so elected by single transferable votes should be responsible to their legislature. I do understand how the Ministers will be individually responsible to the legislature.


4.25.33
Seth Govind Das
The other amendment put forward by one of our sisters is that the Ministers should hold office during the life time of the Assembly. I fail to understand how the Ministry can hold office during the life time of the Assembly when the majority of the members of the legislature have no confidence in them or the Premier. The amendment and the amendments to it are contradictory.


4.25.34
Seth Govind Das
Therefore, concluding my speech I would again say that the system of Government prevalent in Britain must be followed here if we have to establish responsible government on the eve of our getting independence.


4.25.35
President
A request has been made to me by a Madras Member that all the speeches which are delivered here in Hindustani should be translated into English for his benefit, because he is the mover of one of the amendments. I am afraid it is not possible to comply with that request because, in the first place, we have got no arrangement for an interpreter who would be able to translate all these speeches which are delivered in Hindustani, and I also know that there are certain members who do not know English and they would insist upon English speeches being rendered into their language, whatever that language may be. I think we had better to take the limitation of individual members as the limitation exists and proceed with the debate as it has been going on, in the language in which the speaker wishes to speak.


4.25.36
Jaipal Singh
Mr. President, I feel very much like a Madrassi. Much of what has been said by my predecessor on the other side and the immediate predecessor in this side has been lost on me. I fully agree with them that, as far as possible, the speakers should speak in the language understood best by the majority of the members of this Assembly, but, if it were left to me to speak in a language in which I could express myself best, I do not think there is any one at all here who would understand me. I would definitely prefer to speak in my own language i.e., in an Adibasi language. There is no member here at all who would understand me. Mr. President, you, coming from the same province as I do, would find it difficult to discover an interpreter. I do hope that in deference to the need very strongly felt and in the light of what has been said on the floor of the House, it will be appreciated that it is better to talk in a language which the majority of us could understand.


4.25.37
Jaipal Singh
I come here to oppose the amendment. But before I oppose the amendment I would like to say a word about a note, despite the advice given by the Honourable Sardar Vallabhbhai Patel that we are not to talk on any of the notes,--I know that you will permit me to say that it is most unfortunate that a paragraph such as this should ever appear on a serious document.


4.25.38
Jaipal Singh
I will read it: "It is to be noted that the Governor, under the proposed constitution, is to be elected by the people, so that he is not likely to abuse his discretionary powers."


4.25.39
Jaipal Singh
My elementary logic fails to understand the argument of this. That a man who is elected on a popular vote will not abuse his discretionary powers is beyond by comprehension. I shall now proceed to the arguments that have been advanced by the proposer and the seconder of the amendment. It is unfortunate that the serial arrangement of these, clauses are as they are. I think the proposer and his charming supporter would have thought otherwise had Clause 14 come in the place of Clause 2. In Clause 14 you will see that the Schedule which is to be equivalent, of the Instrument of Instructions is provided for. I think a great deal of the apprehension would be completely removed were we to know what the Schedule or the Instrument of Instructions would be.


4.25.40
Jaipal Singh
Hitherto we have been talking about responsible Government. What is responsible government but that the head of the executive of the province would be bound by the technique and methods of responsible government? There will be no question whatever of his being, arbitrary. Admittedly, as far as the language of the clauses that we have so far, considered goes, it looks, as though arbitrary powers were going to be vested in the Chief executive of the province. Surely, Mr. President, that is not to be the case if we consider that there is such a thing as the Instrument of Instructions, the Schedule as we prefer to call it now, by which he is bound. That being the case, the fears that have been expressed by my friends who have spoken from the other side would be remote.


4.25.41
Jaipal Singh
Sir, I myself have been wondering what our constitutional experts have been up to. I have been, as a layman, trying to understand whether they were drafting, even for this intermediate stage, a constitution which was to be democratic. Up to date, I have not been convinced, at least the language has been such that I have not felt that somehow or other the technique or this democracy was going to be democratic. But as far as this particular clause is concerned, I have no doubt whatever in my mind that the Governor must act in a responsible way.


4.25.42
Mr. Mahomed Sheriff
(Began to speak in Hindustani).


4.25.43
B. Pocker Sahib Bahadur
On a point of order, Mr. President, may I request you to ask the speaker who knows English to speak in English, Sir?


4.25.44
Mr. Mahomed Sheriff
You have already given the ruling Sir.


4.25.45
President
I am afraid I cannot force any speaker in a particular language. It is left to him to choose the language in which he wishes to speak.


4.25.46
B. Pocker Sahib Bahadur
In that case, may I appeal to the Honourable speaker to speak in English with which he is very familiar, I know?


4.25.47
Mr. Mahomed Sheriff
I would prefer to talk in Urdu. Mr. President, I fully support the amendments moved by Maulvi Aziz Ahmad Saheb, Ibrahim Saheb and Begum Aizaz Rasul Saheb. The purpose of these amendments is to limit the powers of the Governors and to give the Legislative Assembly a preference in the election of the Ministers. The main purpose of these amendments is to introduce democratic principles in administration. Almost every day we repeat our allegiance to the democratic principles by proclaiming that in all things we should always try to popularize them. In the light of this, it seems necessary to see that the Governor's powers are limited. You might be knowing what is the system prevalent in Switzerland and other progressive countries. I beg to submit that probably in the opinion of Sardar Patel Saheb there is no harm in giving full powers to the Governors who are elected by the people. I would submit that a Governor, however, powerful he may be, must be in a position to carry out the wishes of the people. The principles to which the movers of the amendments have referred, are really the best principles and in the name of these democratic principles, I appeal to you all to become ardent supporters of democracy and standard-bearers of its principles. I strongly support these amendments and appeal to you to support them.


4.25.48
N. V. Gadgil
Mr. President, I want to oppose this amendment. I have heard that this amendment is calculated to secure a better prospect for democracy. As I understand, democracy is not an end in itself. It is a method, a mechanism to secure certain desired and desirable results.


4.25.49
N. V. Gadgil
Now what are the objectives for which we are framing this constitution? These objectives have been defined in the resolution that has been passed. Apart from that, I take it that there will be several parties in the country and each party will be defining its own aims and objectives. These aims and objectives will constitute the programme of that party. Obviously, these aims and objectives are not embodied in the programme for the mere sake of telling the public that these are our aims and objects. The idea is to implement them when the party gets into power. If the party gets into power, that party cannot execute it, cannot implement it, unless that partly is charged with the full executive responsibility of the Government.


4.25.50
N. V. Gadgil
Apart from this, I submit to this House that so far as the political trends in this country are concerned, we have been brought up in an atmosphere which has been most conductive to the establishment of what we are generally accustomed to term as Parliamentary Responsible Government. That Government can only function in certain given conditions. One of the conditions is that there must be at least two big parties and the Leader of the House must have the confidence of that party which is in the majority in the House. In other words, the Leader is really the man who counts and if you do not give him any chance to choose his colleagues, if you do not throw on his shoulders the responsibility of implementing the programme on which the electorate has returned that party. I think it is destructive not only of democracy, but of the few chances of any progress. Any coalition is not calculated to help progress in the country; much more so the case if we accept the amendment. A coalition follows some understanding, some agreement, whereas under the amendment, strange and even mutually exclusive elements may be brought into the executive.


4.25.51
N. V. Gadgil
Apart from that, just consider what will be the effect if Ministers are chosen by the process of single transferable or non-transferable vote. What is there to guide the Governor for the purpose of allocation of portfolios? On the one hand, we are all anxious to see that he must be merely a constitutional head. On the other hand, if you accept this amendment, you will be giving him unlimited powers which he can use, not for the benefit to democracy but for the benefit of his own autocratic rule. Suppose out of nine people who constitute the executive, the majority party may get four, another party may get two, a third party may get one and two other groups may get one each. If the Governor is so powerful, he can certainly allocate the most important portfolios to those who belong to the minority groups. Is that position calculated to the better progress of this country? Is it calculated to further the programme on which the majority party has been returned? I think, if accept this amendment, you will be doing the greatest injustice to the electorate, to the party that has put its programme before the electorate and on which it has been returned. The electorate is justified in expecting that that programme will be implemented and if you make that implementation impossible by accepting such an amendment, I think you will not be doing justice to the electorate. In other words, I wish respectfully to submit that it is dangerous from every point of view. It is unfair to the electorate. It is unworkable. It is giving too much power to the Governor. There is nothing in this amendment to which I can bring myself to reconcile.


4.25.52
N. V. Gadgil
One of the supporters of the amendment said that it will secure a strong and stable government. So far as the strong government is concerned, I think it cannot be secured. That it will be a weak government there is no doubt. In the absence of collective responsibility there will neither be continuity nor consistency in administration. If you accept the amendment that they will hold the office till the life of the Assembly, it may be stable but it will not be progressive. The very idea of a democratic government and a responsible government is that if the elected members even during the statutory period do something, act in a manner which is calculated to forfeit the confidence of the country, there is some provision in the constitution whereby dissolution is possible but that also is considerably affected. I therefore submit that the House will be perfectly justified in throwing out this amendment.


4.25.53
Kazi Syed Karimuddin
Mr. President, I support the amendments moved by Mr. Aziz Ahmad and Begum Aizaz Rasul. For the last three days I am seeing that whenever a Leaguer makes a speech, in reply he is told that till the other day he was raising the slogan of religion in danger and so we (the Leaguers) can never support socialism and democracy. Mr. Kamath has even said that socialism need not be taught to Gandhiji and Pandit Jawaharlal Nehru. I say to Mr. Kamath that since long he has been trying to teach it to them but probably they understand it too well. Notwithstanding all this, Mr. Kamath needs to be told what an Urdu poet has said:

"Dead drunk, during the night and penitent in the morning; I continued to be a drunkard. Yet did not lose Heaven."


4.25.54
Kazi Syed Karimuddin
Mr. Kamath can play a hero but not by maligning the Muslim League. Besides this there is one other noteworthy fact, and it is this: whenever a proposal is put forth from the Congress side, you are always disposed to accept it but whenever any thing comes from the Muslim Leaguers, howsoever beneficial it might be, it is discarded on the pretext that nothing emanating from Pakistanwallahs can be accepted. This Constituent Assembly is no political platform; it is a constitutional body. Here, the Muslim League can put forth its point of view and every member has the right to do so'. The amendment before us is "that the Ministers may be elected by the House". The British are quitting India, but their shadow is not leaving us. You say that British rule and the British executive is based on democracy. This is quite wrong. You should-look to the Constitution of U.S.A. and Switzerland. Since 1921 and particularly after the Act of 1935. What I have seen is that the majority party always shows scant regard for the opposition. I maintain that the result of majority rule has been that the Ministry tends to be prejudiced against the opposition parties-be it communist party or any other. For keeping the Ministry in the saddle, the majority party needs cajoling. I say majority rule is accompanied by nepotism and favouritism. With these evils eradicated it is difficult to keep the party supporters intact. Hence to say that majority rule is based on, democracy is quite wrong.


4.25.55
Kazi Syed Karimuddin
Mr. Aziz Ahmad's amendment is to the effect that the Ministers should be elected. What we want in India is a constitution of the type by which she may be classed as one of the Progressive States of the world. India is passing through a very delicate phase when our mutual differences need to be settled. Mutual conflict should be stopped, and there is only one way of doing it. It is this: the representatives of every party in the House should be included in the Ministry.


4.25.56
Kazi Syed Karimuddin
The majority party will get greater representation, while the minorities will get less number of seats. Under these circumstances, as Begum Sahiba has observed, the House should last as long as the Ministry continues in office. There is nothing new in it. This has been made plain in the constitution of U.S.A. By doing this, executive judiciary and legislature would be divided into three parts Legislature would lay down the policy. The function of the judiciary would be to check the executive from exceeding its limits, and the duty of the executive is to carry out the policies laid down by the legislature.


4.25.57
Kazi Syed Karimuddin
What we find today is that there are different religions, various parties and numerous classes of people in the country. The best method is that, each and every party should be represented in the government. That would ensure the stability of the government and mutual conflict would also be eliminated. Therefore I support the amendment which has just now been moved and hope that the House will accept it.


4.25.58
Mahboob Ali Baig Sahib Bahadur
Mr. President, Sir, I have very great pleasure in supporting the amendments moved by my friend Mr. Aziz Ahmed Khan Saheb and the further amendment by Begum Aizaz Rasul. In doing so, it will not be out of place if I observe that the constitution, the draft of it, the report of it which is placed before us, except for a few questions such as the election of the Governor and the term of office of the Advocate General, looks as if it has been copied from the 1935 Constitution in regard to the Provincial Autonomy. Sir, if we want our constitution to be democratic, we should see that the legislature, the Cabinet and the Executive, reflect the several sections of the people.


4.25.59
Mahboob Ali Baig Sahib Bahadur
If we are relying upon what is called the parliamentary system of democracy, it is the considered opinion of the pandits of constitutions that that is not a democratic system of government. The model that ought to be before us is the model of the Swiss Government. A system of government can be called democratic only when all the sections of, the people are represented in the legislature. We are now suffering from a handicap, because we do not really know what would be the method of election, what would be the constituencies and so on and so forth, Anyhow, I take it the constituencies will be territorial constituencies, and that at the same time some reservations will be made in regard to communities or-interests which will enable them to return their men to the legislature. Now, Sir, if that is the method you are going to employ, and that is necessary in the peculiar circumstances of the provinces in India, then people from all sections of the province and persons of different interests will be elected, to the legislature. If you are accepting that method of representation of, people to the legislature, with reservations of seats by whatever method, by weightage or by some other way--it does not matter at all by which method it is done, it does not arise now--then it necessarily follows that in the Cabinet also the minorities or different sections should find a place. That is what is obtaining in the Swiss Government and that is the reason why it is said that the Swiss Constitution is the most democratic, because it represents all sections and all parts of the country in its Legislature, and not only in its Legislature, but also in its Cabinet. The method followed in Switzerland is this. The Legislature elects its Ministers by a certain method which ensure that all the minorities are represented. The method is called proportional representation by non-transferable vote. That is what we want here also in order that the constitution may be democratic, and provisions should be made for the return of certain interests and minorities. Then it necessarily must follow that these people must find a place in the Cabinet also.


4.25.60
Mahboob Ali Baig Sahib Bahadur
The amendment of Begum Sahiba is a consequential one to the resolution moved by Maulvi Sahib. We are not asking for any nomination to the Cabinet. We are only asking for election by a certain method which will enable minorities and interests to be returned to the Cabinet. This method of election by proportional representation is considered to be the best. When the Legislature consists of say 50 to 500 or 300 members this would not be a cumbersome method. By adopting this method you will be following up the principle that you have enunciated, that minorities and certain sections of the People must be represented and the constitution must be a democratic one. To say that, when a Minister has been elected, that he can be removed on a vote of no confidence goes against that very principle. There is some conflict which has not been observed, between the amendment of my friend Mr. Ibrahim and the amendment of Begum Sahiba. Mr. Ibrahim says that the Ministers must be made responsible. If the amendment of Maulvi Sahib is accepted, then it means the Minister can be removed. But it is very necessary, Sir, that those Ministers who are elected by the Legislature and who are elected in order that the Cabinet may reflect the various sections, Christians, Muslims, or whoever they are, different interests, the tribal areas and so forth, all these sections, then they must continue for the term of the Legislature. That is consequential.


4.25.61
Mahboob Ali Baig Sahib Bahadur
I expected, Sir, that there would be some innovations in the constitution that is going to govern us in the future. But I find that except for the provision that the Governor shall be elected, there is nothing new. I appeal to the House through you, Sir, that in order to lay the foundation of that confidence which you intend to create in the minds of all sections of the people, Muslims, Hindus, Tribals etc., this democratic method of framing the constitution should be given full consideration by this House.


4.25.62
S. Nagappa
Mr. President, Sir, I support the original clause moved by the Honourable President of the Committee that the Governor's Ministers shall be chosen and summoned by him and shall hold office during his pleasure. While doing so, I have very few remarks to make. Clause 14 lays down that in the appointment of his Ministers and his relations with them, the Governor shall be generally guided by the convention of responsible Government as set out in Schedule so and so. In the latter part of this Clause 14, it is said that the validity of anything done by the Governor shall not be called in question on the ground that it was done otherwise than in accordance with these conventions. Now, Sir, especially for minorities instead of keeping power in the hands of the Governor to choose his Ministers it would have been better if it had been kept in the hands of the Legislature. For instance the Governor or the Premier may select Ministers of his own choice, men who will implicitly obey the Premier, or the Governor. But such people will not command the confidence of the particular section of the people whom they are expected to represent. Therefore if it had been something like the Swiss model, leaving the Executive to be formed by the Legislature, then every group and every member of the Legislature will have a chance to select their own representatives. Such representatives will be true and effective representatives. But there comes the trouble. If the Cabinet is formed in this manner, then in the Cabinet there will, be divergent elements, one pulling on one side and another pulling on a different side and so there will not be homogeneity in the Cabinet. I do see the point. In order to avoid that situation the Cabinet must be made to select its Premier, because then the Ministers of the Cabinet cannot but follow the Premier.


4.25.63
S. Nagappa
Now, Sir, no doubt in the draft constitution it is said that the Governor will choose his ministers but it had not been said that the Governor must choose his Executive or the Ministers in consultation with the leader of the majority party. For instance, under the 1935 Act you are aware what the Governor of Sind did. He did not call the party which had a slight majority. There were two parties practically equal but the Governor took his own choice. He selected whom he thought fit. He did not call the really representative and majority party. Therefore such powers vested in the hands of the Governor are sometimes dangerous. No doubt these Governors are elected by adult suffrage and yet that is exactly the reason why a Governor should not be vested with this power. As he is elected by adult suffrage he might belong to a majority party. It is not human nature to be above party politics. He may be a Governor, but yet he is a human being. He knows that he has been elected by the people and he knows which party supported him in the elections and which aid not. Therefore there is ample scope for the Governor to abuse or misuse his powers. So by this means you will be not only taking out some of Ws powers in forming the Cabinet but at the same time you will be going a long way to placate the minorities. They will have their say and they will have their true and effective representation by means of the single transferable vote. Otherwise, if it is left to the choice of the Governor, if there are two equal parties or if there is a slight difference, instead of calling for the party which is slightly in the majority, the Governor may call, as the Governor of Sind did, the other party to form the Cabinet. If such Cabinets are formed where is the guarantee that they will be steady and strong governments? Day after day the Government will be interested only in safeguarding their position and will not be in a position to lay down policies nor be able to see that the people of the country are benefited by them. In my opinion, I think the powers vested in the Governor are so large that it gives cause to suspect. I do not say that the Governor who has been, elected under adult' s franchise will misuse his powers. People will not go to the extent of selecting such people but we should remember that after all a Governor is a human being and has also his own likes ant dislikes. So there is scope for him to err and that is what I want to point out.


4.25.64
S. Nagappa
The other point is, as I said in the beginning, it would have been better that instead of allowing the Cabinet to be formed by the Governor the Legislature forms the Cabinet. Then every member in the Legislature will have the right to elect his own representative. The question in that case will be whether such a constitution will work. All sorts of elements will be there in the Cabinet and the question is whether there will be individual or collective responsibility. No doubt in every cabinet or team work they are expected to have joint responsibility. If the members of the Cabinet selected their own Premier, to that extent at least they will be responsible and will be having joint responsibility.


4.25.65
S. Nagappa
Hitherto the Governor used to act in selecting members of the minority communities according to the Instrument of Instructions. Under Clause 14 there is a note which says that this schedule will take the place of the Instrument of Instructions now issued to Governors. I am glad that that provision is there and I hope that this clause under this schedule will give some scope but it would have been better if it had been otherwise.


4.25.66
B. Pattabhi Sitaramayya
Mr. President, a sudden impulse has overtaken me as, I have been following the debate with great interest and I am particularly glad that our reverted old friend from U.P., Mr. Aziz Ahmad Khan has inaugurated this discussion. He has given us an opportunity for a full-dress debate upon the question of responsible government versus fixed executive and the simple lacuna that he left in his amendment has been filled up by our extremely learned lady Begum Aizaz Rasul Saheba. I am therefore tempted to take part in this discussion, not upon the lower plane upon which it has been inaugurated but I want to take the whole discussion up, if I may mention it boastfully, to a higher plane.


4.25.67
B. Pattabhi Sitaramayya
We all judge on facts and conditions as they have existed during the List few years how that Provincial Autonomy which had been introduced by the Act of 1935 has been working. Unfortunately or fortunately the historical conditions of the present day are an inheritance of the past 30 or 40 years, We have inherited certain conditions and we have been the victims of those conditions. We have not been able to escape from the tyranny of those conditions we have not been able to write upon a tabula rasa or to begin afresh with a clean slate or with clean hearts. We have inherited these things which have been the creation of the British Government. You are fully aware how in 1906 during Lord Minto's time His Highness the Aga Khan had led a deputation and negotiated for separate electorates. The vicious seed grew big and bore fruit in 1916 in the form of the League-Congress concordat which was more or less incorporated in the Montagu Reforms. We were hoping that with the lapse of a decade these vicious separate electorates would come to an end, but we have not succeeded. Every time we had an opportunity of revising the political system the tree took its roots deeper and deeper and bore worse and worse fruit; at last we have reaped the final fruit, the final stage in which India functions as a corporate body and Pakistan is destined to function, let us hope only for the present, as a separate Sthan.


4.25.68
B. Pattabhi Sitaramayya
Under the circumstances it is for us to think afresh to bring a new outlook upon the whole problem and see whether these separate electorates should continue. What purpose do separate electorates serve now? The whole political question has to be taken together as a comprehensive problem for fresh consideration. How are they going to serve the purpose of the 7 per cent. of people in Madras, the 9 per cent. in Bombay, the 4 1/2 per cent. in C.P. and the 14 per cent. in the U.P.? They will only provide ground for perpetual complaint. We are therefore looking to joint electorates. Let us forget all the antagonisms created--and inevitably created, and created for no fault of ours--in the past. Let us forget the very words--the two names, Congress and League. Let us have a Congress League Organisation. Or let us drop both these names and have a democratic, republican or socialistic organisation any appellation that you can adopt-based entirely on political grounds. It win eschew all religious predilections.


4.25.69
B. Pattabhi Sitaramayya
Indeed the "minorities" have always addressed themselves abroad to the three questions of freedom of religious worship, faith and customs and preservation of language script and culture. It is in this unfortunate land through the intervention of the British Government that the minority question has been complicated by mixing it with political matters. But now that period is over. We are entering upon a new period in the development of our country. Therefore, when new joint electorates are formed and when you and I have the same political programme and the bone of contention is "agricultural income" vs. "limitation of land", that is to say economic questions hold the field, then we shall have common ground to tread upon. Then I can go to Janab Mahboom Ali Beg's house and address his mother and he may come to my house and address my wife, we can invite each other to dinner, we can exchange the best of cordialities in life and become brothers once again. Then there will be no question of the Congress people alone exclusively monopolising the seats in the Government. There will be Christians, Muslims and Parsees in our Government. Anybody worthy of being selected will be selected by virtue of his service to the country--not only by virtue of his jail going; this will be forgotten very soon; it is almost being forgotten. Indeed the old traditions had better be created. Let us not judge the future by the past. Let us draw a veil upon the past, and begin the future a new. Let us be able to form political organizations on a new basis so that it will not be said that the Muslims as a minority have been neglected and ignored. No such thing will happen in the future. The complaints that have been advanced from this rostrum have been absolutely unassailable. It is a pity that people should be compelled to speak in such tones. But that is a consequence of the inevitable past for which we were not wholly responsible though it must be admitted we were partly responsible. We have all come together again under one banner and on one platform. We shall pursue one programme and there will be no difficulty whatever hereafter.


4.25.70
Chaudhri Khaliquzzaman
On what point is the Honourable Member speaking, may I know? I do not think the amendment refers to any matter about which he is speaking.


4.25.71
B. Pattabhi Sitaramayya
I am much obliged to my friend for having pointed out this little matter. The relevancy of the question is that the whole amendment is based upon the complaint that the Muslims form a small minority--it refers to all other minorities and that therefore one section being in a vast majority by sweeping the polls, will on the principle of responsible government sweep the Ministries and that the minorities will suffer. I say that no such thing will be allowed to come into existence when the parties are formed on political principles and a new alignment has taken place.


4.25.72
Kazi Syed Karimuddin
But none of the speakers supporting the amendment has referred to the suffering of the minorities whereas my friend is referring to it.


4.25.73
Balkrishna Sharma
He has seen through your game.


4.25.74
B. Pattabhi Sitaramayya
We shall have new conditions to deal with and we shall not be influenced by our unfortunate experiences in the past. I would therefore suggest that this question should be looked at altogether from a new angle of vision. It will then be possible for us to see how we can form political parties on purely political principles without any communal bias and see how we shall be able to work oat a new formula which is really based upon responsible government. This proposal which has been made is based on the bad experience of the past. That experience is a forgotten dream and we shall inaugurate a new chapter in our political development which will visualize conditions of an altogether different character. I therefore urge, Sir, that this amendment may be thrown out.

[Shri D.Govinda Doss (Madras :General) then spoke in Telugu.]

4.25.75
B. Pocker Sahib Bahadur
Mr. President, in what language is the Honourable Member speaking?


4.25.76
Mr. Ram Narayan Singh
I rise to a point of order. I want to know whether the Honourable the President understands the language in which Mr. Govinda Doss is speaking and if not, how he controls the speaker.


4.25.77
President
I do not think it is necessary for me to control the speaker. I think he is speaking within bounds. (Laughter.)


4.25.78
Unnamed Member
I want to know from you, Sir, whether the Honourable Member is supporting or opposing the motion. I do not understand him and I do not think any Honourable Member knows or understands whether he is in favour or against the motion before the House.


4.25.79
President
The speaker suffers from one kind of limitation and other members suffer from some other kind of limitation. The speaker is ignorant of some languages and others are ignorant of his language. All Suffer. I will allow him to speak under the rules in the language in which he is speaking. I take it he is unable to express himself in English and so wishes to speak in his own language.

[Shri D. Govinda Dass, finished his speech in Telugu, thanking the President for upholding his right.]

4.25.80
Chaudhri Khaliquzzaman
Mr. President, Sir, the amendment which has been proposed by Mr. Aziz Ahmad Khan consists, to my mind, of two parts. One refers to the election of Ministers and the other, to the method of election of those Ministers. Unfortunately, it appears to me that some of my friends here have overlooked the principle altogether and have applied their minds only to the other portion of the amendment which refers to the method of election of Ministers. I can assure Members here that, so far as the question of minority rights are concerned, we know that there is a Minorities Committee and that we shall have the opportunity of discussing our rights there. Having seen and gone through the Report of the Provincial Constitution Committee, we came to the conclusion that every possible effort was made by the Minorities Committee submitted to see that nothing was said in the Report which may be repugnant or inconsistent with the recommendations of that Minority Committee. We are to that extent grateful to the Members of the Provincial Constitution Committee whose Report is under consideration. And I would beg of you all to discard from your mind the feeling that there Is any hidden motive behind this amendment. It may be that once the principle of election of the Ministers is agreed upon, whether it, should be by non-transferable or single transferable vote or otherwise it, will present no difficulty. But here is a question of principle. We feel that having given wide powers to the Governor, we must have an irremovable Ministry. I shall, for that proposition, not refer to the American Constitution or the Swiss or any other Constitution. To my mind the question must be looked at purely from the point of view of the genius of the people, from the point of view of what will suit the genius of the people better.


4.25.81
Chaudhri Khaliquzzaman
Now, we have not for long enough worked the Constitution of 1935 which really gave us some power in the provinces. When for the first time the Congress assumed power, it worked there only for two and a half years, and this time it has only just taken over power. We have some experience in other fields of activities. For instance in the local bodies, the method of election has been tried in a different form. What has been happening to the municipal and district boards? Every-day there is a vote of no-confidence against the chairman of district boards and municipalities. One does not know what to do with the powers given to them. The Governors of the provinces are themselves tired of it all. Therefore they want to go back on that system. First two-thirds majority has been introduced, and I do not know whether the legislatures within provinces may not have to introduce three-forths majority. Otherwise the spectacle of the chairmen of the municipalities and presidents of local boards going out everyday will be witnessed. Within these few days one Ministry in Madras has fallen. This experience of ours leads us to conclude that it would be in our interests to have an irremovable executive. Otherwise, with the change of slogans there may be change of Ministry. Our people are apt to be taken in by slogans. You say that the cry of Pakistan. Two nation theory and all that was caught by the masses. This shows that your people are apt to follow any lead and any slogan. For this reason I say you should make provision to protect your Ministers. You should protect them against these shifting parties and predilections of the groups in the legislatures. This is a pure and simple proposition which we have placed before you for your consideration. To think that it is merely a case of single transferable or non-transferable vote which stinks in the nostrils of some of my friends is not right. I can assure you that if you accept the principle, we shall accept any alternative method of election. Therefore do not make that method of election the test for the acceptance or non-acceptance of this amendment. It may be that you are dissatisfied with this amendment. You may reject it. But, to say that this amendment has been moved because we want to get over some particular mode of election or representation is to misjudge it. I can assure you that, personally, I believe that no Governor who has been chosen by, the vote of the people will ever have a Ministry without representatives of the people, whoever they may be, Muslims or non-Muslims. I believe it. Therefore it is not from that point of view that we have asked for the consideration of this amendment.


4.25.82
Chaudhri Khaliquzzaman
With these few words I support the amendment moved by Mr. Aziz Ahmad Khan.


4.25.83
Mr. K. M. Munshi
Mr. President, Sir, I have only a few words to say with regard to the views expressed by my friend, Mr. Khaliquzzaman. Mr. Aziz Ahmad Khan's amendment, as the House has seen, wants the ministry to be elected by proportional representation. The two amendments that have been moved are mutually contradictory. Mr. Ahmed Ibrahim Sahib says that the Ministers shall be responsible to the provincial legislature. That means that the ministry elected on the basis of Proportional representation would be responsible to the legislature, which in other words, means that after a vote of censure that Minister should resign. On the other hand, the amendment moved by Begum Aizaz Rasul wants that the Minister chosen by proportional representation should continue during the life of the Assembly. The intention of the second amendment is that the Minister should be elected by proportional representation and should continue till the end of the life of the Assembly. Now I want the House, Sir, to envisage the implications of this scheme. The system of proportional representation, as everyone knows, is this that instead of having the support of the majority in the House, you must get the first vote of a small group, and nothing fragments the political life of a country as proportional representation in the selection of ministries. I will give a concrete instance. If there is a House of 300 members, the majority party of, say, 151 must support all the ministers in order that they may retain office, but under P. R. if there are seven ministers and you have got a voting strength of 300 anyone who gets the first votes of 35 or 40 members will be entitled to become a minister. Therefore the House will not look at the ministry as a consolidated body of representatives elected on the general principles and policies which the ministry has to carry out, but it will be fragmented into sections, each trying to get as many first votes as possible. I am not saying this as a matter of theory After the Treaty of Versailles at the end of World War I, on account of President Wilson's partiality for proportional representation, several at the Central European countries introduced proportional re-presentation and lived to be sorry for it. Instead of putting the national good before them, the ministers were more busy securing the first votes of a small group by raising a very narrow isolated cry. Therefore, the net result of proportional representation will be that the ministry instead of being broadbased on general principles, all ministers standing together and having collective responsibility and interested in doing good to the province as a whole, it will consist of representatives of different groups having different ideologies and different policies. This will invariably result--the 35 votes will fluctuate--in a coalition with practically differing policies, and when a coalition comes, we know the result. Perhaps, members know what happened and what is happening in France during the last 25 years. In France, it has been more or less the fashion to have coalition ministries and the result has been that ministries have been falling like castles of cards. During the last eight or ten years there have been more than twenty--two ministries. Some ministries have lasted only for eight or none days. At the time when Hitler entered Austria, there was no ministry in France. When he entered the Rhineland, there was a care-taker ministry in France, and nobody would become the Prime Minister. This is the situation where you get coalition ministries. This is the greatest danger to which democracy is prone this danger of coalition ministries. There is only one way in which democracy can be practiced effectively and that is by having a majority party. If we have majority party, we must have one and that can only be done first by having the group of ministers selected by the majority party, secondly by collective responsibility and lastly by the Control the Prime Minister exercises over that homogenous ministry. As the. House knows, very well Sir, in England the power of the Prime Minister is absolute and that is what has made the British Government so very strong. It is the Prime Minister who decides as to who should be a minister and can dismiss a minister, and can control his party by saving: "I will get the House dissolved and go to the country unless the party supports me". The machanism of responsible government which we have therefore been following to a large extent in this country is the British model, and a departure of this Kind will weaken the ministry to a large extent and the provincial legislature will be nothing else but a fragmented house while cannot devote itself to the good of the province. Therefore, though the system of proportional representation looks so innocent that some people have got a fascination for it, it has led to the unmaking of democratic institutions in more than one country in the world. This amendment of Mr. Aziz Ahmad Khan is really speaking destructive of democracy. If you have a democratic systems then you must carry it out to this extent that if the House passes a vote of censure against the ministry, the ministry must be prepared to resign. If it continues, the ministry will be naturally unresponsive to the fluctuations of public opinion.


4.25.84
Mr. K. M. Munshi
There is only one argument which my friend, Mr. Khaliquzzaman placed before the House of which I would like to refer. He says, 'Large powers are going to be given to the Governor. If so, give the ministers much larger powers". There is no doubt that under Clause 9 which the House has adopted, certain discretionary powers have been given to the Governor. What the House has not yet before it, is the full extent and scope of these discretionary powers. It must be realised that in democracies which are young, which are yet to gain experience times of grave menace to public tranquility would require a steadying factor, a strong steadying factor, and the discretionary powers that are sought to be given to the Governor are only in times of grave menace to public tranquillity. If democratic institutions run their normal course if public tranquillity is not disturbed in a very serious manner, then there is no difficulty at all; the ministry will function. The Governor will step in only when there is a grave menace to public tranquillity. Then everything must be subordinated to the supreme need of public tranquillity in the province. At that stage the Governor who will have the added authority of being returned on the basis of adult franchise will step in and say "my first and last function is to restore peace and tranquillity". This country has suffered immensely by the failure of the supreme authority in certain provinces to exercise their power in moments when public tranquillity has not only been threatened, but has been destroyed. It is only for that contingency that the discretionary power is given. Till that event, which will be very rare--let us hope it will never occur at all--the ministry will function as a responsible ministry and there is no reason why these amendments should be accepted by the House.


4.25.85
Phool Singh
Mr. President, after the speech of Mr. Munshi, I have not much more to say against these amendments except that the elections should not be held by proportional representation. Such a ministry can never be dubbed as a Coalition Government, which is always based upon a compromise between different parties, but when the ministry is elected by its own men on the votes of its own party, it rests with the ministers whether they act jointly or not. The proposal of Maulvi Aziz Ahmad Sahib and the amendment of Begum Sahiba have filled in the gap, if any. That is, if ministers, so elected, take to quarrelling among themselves, and the actions of one are negatived by the other, then the legislature would not have even the power of removing such ministry. In other words, ministers may do good or evil but they would continue for the full term of the legislature. This is something beyond my comprehension. As I have said earlier, I do not wish to waste any more time of the House. Party government may be a progressive government. Coalition government may be suitable for any particular objective, but a government which is neither a party government not a coalition government cannot fulfil any object, rather it can succeed in defeating it. I do not hesitate to say that such a government can be of no use to any country. I dare say that the movers of these amendments have taken their ‘clue’s from the present Interim Government.


4.25.86
Phool Singh
If we do not want to entangle the provinces in the difficulties of which this Interim Government has been the victim, then it becomes the duty of each one of us to vehemently oppose these amendments. There is no time to be lost in such foolish experiments. We have had enough of sacrifices, and now it is only the party government which can be beneficial for this country. With these words I oppose both these amendments.


4.25.87
Shankar Dattatraya Deo
I move closure.


4.25.88
President
I have the names of half a dozen of more members who have expressed their desire to speak.


4.25.89
Unnamed Members
Closure, closure.


4.25.90
President
But if the House wishes to close the discussion, I shall have no objection. There is a motion for closure. I cannot make an exception in favour of one member. There is a closure already moved. I put the motion for closure.

The motion was adopted.

4.25.91
Vallabhbhai J. Patel
Sir, this innocent clause has covered a very wide and controversial field of debate and yet I think appetite of some of the speakers has not been satisfied. I thought that this would be passed without any debate. The principal amendment which has been suggested would cut at the root of the whole structure of the constitution. We have adopted the British parliamentary model-cabinet system--in this model provincial constitution. The Mover of the amendment contemplates a different model which would, if passed, probably, require us to reconsider the whole constitution. It has been suggested that during the last few years we have considerable experience of the present type of constitution. I do not know whether that is a correct statement of fact, because the constitution under which we were working was a complicated constitution in which the elective system, the services, the Governor's powers, the checks and counter-checks provided in the constitution were such that when the constitution was passed, it was suggested in the debate that it was humanly impossible to work that constitution and even the angles would fail. In spite of that they worked that constitution. The difficulties experienced in the working of that constitution and the bitter experience which some of us had to go through was not due to this particular system of selection of ministers or the prime minister being authorised to select his ministers but to various other causes which need not detain us. I have no intention of touching upon those questions. Somehow or other, some speakers have touched on that question, but I do not propose to enter into that controversy. Election by proportional representation of ministers is, a system which is contrary to the whole framework of this constitution. It cuts at the very root of democracy and therefore does not fit in here. The experience which we would gain in the working of such a constitution would be much worse than the experience that we have gained in the working of the present constitution. Therefore, I suggest that it is a very dangerous innovation to introduce in this constitution and we should not have it here.


4.25.92
Vallabhbhai J. Patel
Then, the question of the electorate, separate or joint, and other questions are to be considered by separate committee, as I have already explained in my introductory speech. Therefore, I do not propose to touch on those questions.


4.25.93
Vallabhbhai J. Patel
It has been suggested that the Governor has got very wide powers I do not think that in this constitution, the Governor has got such wide powers as under the present constitution the foreign Governors have got the present constitution was such that we had not only no elected Governor, by adult franchise representing the will of the people, but a foreign Governor with an Instrument of Instructions, designed to protect foreign interests. The experience derived from the working of that constitution cannot be compared with the constitution that we have proposed here. Whether in the working of this constitution that we propose we will have pleasant experience and smooth working or not, will depend much upon the manner in which we work the constitution. Constitutions are always broken by the people who have got a desire or a will to do so. We are not wanting in instances where if the constitution was worked in such a manner that a Prime Minister or a Minister was found irremovable by a vote of the House, he could be removed by the bullet. So, it is no use saying that an irremovable executive will be safe. If the irremovable executive functions in such a manner, then the want is real goodwill to work a good constitution and a spirit to work any constitution that you have got.


4.25.94
Vallabhbhai J. Patel
Here, we have contemplated collective responsibility, joint responsibility. Any election of Ministers by the method suggested by the Mover of the amendment would mean individual responsibilities and individual Ministers who would go their own way. Each Minister has only to work for five, seven or ten votes which he can probably obtain by means which may not be very desirable and the whole machinery would be liable to be corrupted. Therefore, I purpose that the motion that I have moved should be adopted.


4.25.95
Vallabhbhai J. Patel
I do not wish to deal with the other amendments because they are contrary to the main amendment, as has been already explained by some of the speakers and therefore, the amendments should be rejected and the proposition that I have moved should be accepted.


4.25.96
President
It has been moved:

"That the Governor's Ministers shall be chosen and summoned by him and shall hold office during his pleasure."


4.25.97
President
To this an amendment has been moved that for Clause 12 the following be substituted:

"The Governor's Ministers shall be elected by members of the Provincial Assembly by the system of proportional representation by single non-transferable vote."


4.25.98
President
There are two amendments to this amendment. The first amendment is that at the end of the amendment to Clause 12 by Mr. Aziz Ahmad Khan (Item 57), the following words be added.

"and shall be responsible to the Provincial Legislature."


4.25.99
President
The second amendment is that at the end of the amendment moved by Mr. Aziz Ahmad Khan to clause 12 (Item 57), the following be ended:

"and shall hold office during the life of the Assembly."


4.25.100
President
The procedure which I propose to follow is, in the first instance to take vote on the amendments to the amendment. If any of these two amendments is accepted, that becomes the principal amendment. Then I shall put to vote the amended amendment and if it is accepted, it becomes part of the clause. Then, I shall put the clause as amended before the House.


4.25.101
President
I now put to vote the amendment to the amendment, namely that the following words be added at the end of the amendment:

"and shall be responsible to the Provincial Legislature."

The amendment was negatived.

4.25.102
President
I now put to vote the second amendment to the amendment, namely, that the following words be added at the end of the amendment:

"and shall hold office during the life of the Assembly."

The amendment was negatived.

4.25.103
President
I now put the original amendment of Mr. Aziz Ahmad Khan to vote.

The motion was negatived.

4.25.104
President
I now put the original clause to vote.

The motion was adopted.

4.25.105
President
We will now go to Clause 13.

CLAUSE 13

4.25.106
Vallabhbhai J. Patel
I move Clause 13.

"13. (1) A Minister who for any period of six consecutive months is not a member of the provincial legislature shall at the expiration of that period cease to be a Minister.

(2) The salaries of ministers shall be such as the Provincial Legislature may from time to time by Act determine, and, until the provincial legislature so determine, shall be determined by the Governor:

Provided that the salary of a Minister shall not be varied during his term of office."


4.25.107
Vallabhbhai J. Patel
This is a proposition which is hardly controversial and I do not think there will be any debate on it. I move this proposition for the acceptance of the House.


4.25.108
President
There are several amendments of which I have received notice. I will call on the Movers to move their amendments.

(Messrs. R. K. Sidhwa, V. C. Kesava Rao and H. V. Pataskar did not move their Amendments Nos. 59, 60 and 61.)

4.25.109
R. K. Sidhva
My amendment No. 62 states that the salary of the Ministers shall not be more than the Governor's salary or even the same as the salary of the Governor. It is very appropriate that we passed yesterday that the Governor should be elected on adult franchise and also that he should he given some powers. Therefore, he will be the first citizen of the province and his dignity should certainly be considered to have increased. Therefore it is desirable that the Ministers' salary should be less than the salary of the Governor. I am told that this is a very healthy amendment, but it would not be proper to put it in the constitution. Therefore, Sir, I, do, not move it.

(Mr. Biswanath Das' amendment was not moved.)

4.25.110
President
These are all the amendments of which I have received notice. The original proposition is now open for discussion. Those who wish to say anything on it will do so now. (After a pause).


4.25.111
President
No one wishes to say anything. I now put it to vote.

Clause 13 was adopted.

4.25.112
President
We go to Clause 14.

CLAUSE 14

4.25.113
Vallabhbhai J. Patel
Sir, I move that:

"In the appointment of his ministers; and his relations with them, the Governor shall be generally guided by the conventions of responsible Government as set out in Schedule...; but the validity of anything done by the Governor shall not be called in question on the ground that it was done otherwise than in accordance with these conventions."


4.25.114
Vallabhbhai J. Patel
Now a Schedule according to the traditions of responsible Government will be framed and put in. This also is a non-controversial thing and I move the proposition for the acceptance of the House.


4.25.115
President
I have received no notice of amendment to this clause. I shall put it to vote, unless any member wants to speak.


4.25.116
B. Pocker Sahib Bahadur
On a point of order. Is it not necessary that the Schedule should be before the House before this clause is passed.


4.25.117
President
The idea is that the Drafting Committee will prepare the Schedule and it will come before the House. This is only to lay down the principle here.


4.25.118
B. Pocker Sahib Bahadur
The clause refers to a Schedule and in the absence of the Schedule, are we in order in passing the clause with reference to a Schedule which we have not seen?


4.25.119
M. Ananthasayanam Ayyangar
Sir, when we pass this clause, we only approve of the principle that a number of things may be regulated by convention. That is all that is now put before the Assembly. So far as the schedule is concerned, it is open to some members to object that there should be no convention whatever. But the object here is that the conventions may be changed from time to time according to the exigencies and in the light of experience; otherwise we can say later on that it is a cumbersome or a lengthy procedure and we can modify the constitution as a whole. It is intended that the schedule may be modified even without the modification of the constitution. So far as the convention are concerned, the schedule will certainly be placed before the Assembly and there will be opportunity for the members to strike out or add anything. At this stage the object is to ask the acceptance of the House for the principle that some conventions are to be put there in the form of a schedule which may be modified in the light of experience. The schedule will not be passed without the knowledge of the Assembly.


4.25.120
Haji Abdul Sathar Haji Ishaq Sait
I do not think the argument that my friend has raised can be accepted. If we pass this clause just as it is, it means that we pass the schedule also. The schedule is mentioned there. I say if somebody wants to write down a schedule and attach it, it certainly will mean that the schedule has been passed. It is alright when he says it will be brought here. There is nothing to prevent somebody to write down a schedule and attach. That is why I suggest, that the schedule should not be mentioned at all. The sentence runs like this:

"In the appointment of his ministers and his relations with them, the Governor shall be generally guided by the conventions of responsible Government."


4.25.121
Haji Abdul Sathar Haji Ishaq Sait
Stop there. Do not mention 'as set out in the schedule'. Then you go on to say:

"but the validity of anything done by the Governor shall not be called in question on the ground that it was done otherwise than in accordance with these conventions."


4.25.122
Haji Abdul Sathar Haji Ishaq Sait
Do not mention the schedule at all. When it is ready it can be placed before the House so this difficulty can be obviated and I suggest that this should be done.


4.25.123
M. S. Aney
Mr. President, Sir, I really find it somewhat difficult to support the proposition as it stands here. It is an accepted rule that any proposition that is put before the House for consideration should be self-sufficient and self-explanatory. It must explain what it means and it should not stand in need of something else to be found somewhere and not placed before the House. I know what is wanted is that there should be a recognition to the principle that certain conventions have to be observed but you cannot put the proposition before the House and say 'I want the consent of the House that certain conventions will have to be observed in connection with the relation between the Minister and the Governor and so on'. The word 'certain makes the whole thing ambiguous and an ambiguous proposition cannot be put before the House. That is the difficulty. Therefore, the best thing would be, and it would not be difficult to get the consent of the House when the schedule will be properly prepared, that the schedule may be attached to this and then the proposition can be brought at a later stage. Then it will be complete in itself and I do not think this House, after reading the schedule, will find it difficult to give its consent but to put the proposition as it is to ask them to sign what may be called a kind of black cheque. What that schedule will contain we do not know. It is stated here that the present Instrument of Instructions will take the place of this schedule. I do not know whether the Committee sitting there will consider all the conditions contained in the present Instrument of Instructions. That has yet to be considered. The Committee was appointed to draft this Report and I think the Committee must have considered even the Instrument of Instructions. If it was satisfied with that, it would have added it as a Schedule. The very fact that that is not done means that the Committee did not think it worthwhile to embody the whole thing as it is and if that is so, we do not know what part of that Instrument of Instructions is going to be added.


4.25.124
M. S. Aney
Under these circumstances, this proposition means nothing more than taking the consent of the House to the conventions which at present are supposed to be contained in the Instrument of Instructions. The draft to be prepared by the committee is, of course, not known to this House. It is therefore unfair to the House to be asked to give its consent to the proposition as it stands. I therefore submit that it is better if the Honourable mover will withdraw this proposition for the present and reserves his right to bring in the proposition for consideration when the schedule is completed.


4.25.125
Mahboob Ali Baig Sahib Bahadur
Sir, this Clause 14 does not provide for the Schedule to which it refers, to come before this Assembly. It simply states:

"in the appointment of his ministers and his relations with them, the Governor shall be generally guided by the conventions of responsible Government as set out in Schedule."


4.25.126
Mahboob Ali Baig Sahib Bahadur
Therefore, in the first place, there is no guarantee that this Schedule will at all come before us. Further, in the margin, it is noted that the conventions of responsible Government should be observed. We should at least, know what are the conventions and the conventions of which Government are to be observed. Are they to be conventions of the Swiss Government or the British Government or the conventions established by Indian Governments? Or are they to be conventions that may be established hereafter?


4.25.127
Mahboob Ali Baig Sahib Bahadur
Further, in the note it is stated,

"Schedule...will take the place of the Instrument of Instructions now issued to Governors."


4.25.128
Mahboob Ali Baig Sahib Bahadur
We find there is no definiteness about the whole thing. We are asked to vote upon or to consider a question, the most important and most relevant part of which--the Schedule--we are not aware of. And what is more, there is not even the guarantee that this Schedule will ever come before us. I submit, Sir, that it is not fair that we should be asked to consider such a question at this stage. I submit that this clause may betaken up after the Schedule has been prepared. As it is, we are not told that the Schedule will be the same or similar to the Instrument of Instructions; if we had been told that, then there would have been some guidance for us. We could at least have referred to the instrument of Instructions, and there might have been something definite to go by. Members who have the necessary patience, could have gone through the Instrument of Instructions and helped in the discussions. But as it is, the present proposition is bad because of its indefiniteness and it is vague, and also it is not self-contained and self-explanatory, as my predecessor has submitted.


4.25.129
P. S. Deshmukh
Sir, I think there is considerable substance in the objections that have been raised against the clause as it stands. It is impossible to pass it in the shape in which we find it. We cannot possibly agree to the clause-even as a matter of principle, without the Schedule being there. But this does not mean that the whole clause should be withdrawn or brought before this Assembly on some other occasion, as suggested by Mr. Aney. I suggest that the omission of a few words near about the word "Schedule" may meet the situation. We could say:

"...conventions of responsible Government as may hereafter be set out..."


4.25.130
P. S. Deshmukh
If this suggestion is accepted the consequent change in the wording is very little. This, I think, will meet the situation completely, and we will not then be forced to the position of having to agree to a Schedule which is not before us. This will also provide that hereafter, whatever we may like to have in the Instrument of Instructions shall come before us, and then there will be ample opportunity, to consider them. This slight amendment that I have suggested, will, I think, meet the objections that have been raised here. Without it, we are entitled to object to it. We should not I think, Sir permit anything so vague and uncertain as the present proposition to pass.


4.25.131
Rai Bahadur Syamanandan Sahaya
Sir, I do not see where is the indefiniteness about the proposition contained in Clause 14, which we are discussing now. While introducing this Report, the Honourable Mover made A quite clear that the purpose generally was to get the House to accept the main principles on which the Provincial Constitution will be framed. So far as this particular clause is concerned, it is clearly laid clown that the Governor shall be generally guided by the conventions of responsible government as set out in Schedule so and so. Then it goes on further to say that the Schedule so and so will take the place of the Instrument of Instructions now issued to Governors. Now, Sir, this Instrument of Instructions is already in existence and those of us who have gone through these instructions will agree that there are directions in it as to how Ministers are to be chosen. It is all in the Act of 1935. (An Honourable Member: "That Act is not before the House.") It is not a question of the Act being before the House or not. The purpose of this Report is only to lay down the general principles and is intended to ascertain the wish of the House with regard to them. We can later raise the point whether they are a departure from. We can later raise the point whether they are a departure from the existing ones. But as long as we accept the proposition that the majority party must be called upon to form the Ministry, I do not think there is any objection to our considering this Clause 14.


4.25.132
B. Pocker Sahib Bahadur
Sir, I wish that this House is taken more seriously than for its sanction, saying that the Schedule will come later and asking for its sanction, saying that the Schedule will come later on, I think, the matter is not given the seriousness that it deserves. I know there are matters in which this House is not taken seriously because we are here asked to sit down and listen to speeches which we do not understand and are asked to pass things which we do not understand. In the same manner this clause has been brought here and we are told that the schedule will be coming later on, but the clause may be passed. Even the Mover of the motion does not know what the Schedule is. I say this is absolutely irregular, and it is for you, Sir, to rule it as out of order.


4.25.133
B. Pocker Sahib Bahadur
I would just refer to two suggestions made by two members. One is by Mr. Haji Abdul Sattar, to remove the word Schedule, and retain the word conventions. But without knowing what the conventions are, and their nature, it will be absolutely improper and irresponsible for this House to pass this clause. The same remark applies to the modifications suggested to this clause by the previous speaker. I would therefore appeal to you, Sir, as President of this House, to protect the honour and self-respect of this House by acceding to the request of Mr. Aney to adjourn consideration of this clause.


4.25.134
Naziruddin Ahmad
Mr. President, Sir we are asked in short to agree to a Schedule that is not in existence. One of the speakers has pointed out that the Schedule will be on the lines of the Instrument of Instructions to follow. But the Note, to the clause if I may be permitted to refer to it merely says that the Schedule will take the place of the Instrument of Instructions. There is no indication that this Schedule will be on the lines of the Instrument of Instructions, or will be similar to it. I submit, Sir, that it will be asking the House to agree to something which is undefined and unknown. It will be just like asking a bridegroom to agree to go through a marriage ceremony without the bride being present or even being known, on the promise she will be found and selected later.


4.25.135
Shibban Lal Saxena
Sir, already the House has passed sub-clause (3) of Clause 6 which mentions a Schedule which is not reproduced there. Nobody raised any objection at this time. Besides, the Honourable, Mover said at the very beginning that these are Only Principles to be accepted and the details will follow later. So I do not think there is anything to object to in the clause. We should not waste the time of the House in raising such frivolous objections.


4.25.136
Mahavir Tyagi
Sir, I think Honourable Members on both sides have made out a good case. In the absence of the Schedule which will take the place of the Instrument of Instructions now issued to Governors I think the proposal is incomplete. We must consider a complete Proposal. I therefore submit that the Mover, Sardar Patel, may be pleased to tell us if any Instrument of Instructions have been "now issued to the Governors". The word "now" introduces, a new complication. I know the Instrument of Instructions issued to Governors before the popular ministries came into power in 1937. Is that what is referred to or has any new Instrument of Instructions been issued to Governors now with the change of Government? The word "how" seems to show that some new Instrument of Instructions may have been issued, though I have heard of none. I think the-old one is meant here, and the word "now" has either crept in by chance or perhaps I am reading a wrong meaning into it. Anyway in the absence of details as regards the Instrument of Instructions it will be not proper to pass this as it is. My proposal therefore is that we should pass the proposal but not the note below it, and in place of this note we may say that the Schedule will be considered later. Since we are passing only the principles of our provincial constitution we can say that the Governors will have such and Such Powers as are mentioned in the Schedule, and of course the Schedule part of it we can consider later. No Schedule will be a regularly recognised schedule unless it is passed by this House. And that we can consider afterwards. But we can give these powers to the Governor and we do not complete that here; we will say that the Schedule will follow. So I think we can pass this minus the note which may be taken out and another note may be substituted or the whole clause may be postponed I think my friends are right when they ask to give your ruling. It is no part of the Mover's duty to withdraw or to press the motion. It is a point of order which you have to decide, whether in the absence of the Schedule it will be fair for the majority in the House to press this to a vote, because the House will have to vote without knowing the exact words of the Instrument of Instructions. I therefore submit that you, Sir, will have to decide this point of order.


4.25.137
President
I have said on a previous occasion when a question was raised with regard to these notes that these notes were not formally put to the House and they were not accepted by the House. They were only intended to give an indication of the meaning of the clauses that were moved and we need not in any way be bound by what is contained in the notes. The clauses have therefore to be considered on their own merits without reference to the notes.


4.25.138
Unnamed Member
It is not the note; it is the clause itself.


4.25.139
Shri Raj Krushna Bose
Sir, since we have heard so many objections to the passing of this clause and since there is some force in many of these objections I suggest that the Schedule should not be passed without the contents being known to the House. I submit therefore that, as we did in the case of Clause 8, this clause also may be referred back, redrafted and brought up tomorrow before the House so that the objections raised by the dissentient members may be met.


4.25.140
Vallabhbhai J. Patel
Sir, I am afraid the preliminary observations, that I made while moving my motion for consideration of this memorandum have not been followed; otherwise, I do not see any point in the objection that has been raised. I said more than once that this memorandum contains only the principles and if these principles are adopted the drafting will take place afterwards. It has been suggested that there is no guarantee that the Schedule will come. There is as much guarantee about it as the guarantee that the House will meet tomorrow. The clause says that there will be a Schedule; and that will come afterwards when the whole thing is ready. The Schedule will accompany the draft that will be put before the House when there will be ample opportunity to scrutinise the Schedule, to add to it or modify it. I do not see how this principle can be called imperfect, you have to adopt a principle which is perfect in itself as the clause stands. Now you cannot have a guarantee for everything; this is a very simple thing and there can be no guarantee for it. One Honourable Member said that the House should be taken seriously. I think the debate should be taken more seriously. And if the debate had been followed more seriously I think all this debate on this clause would not have taken place. It is a simple proposition in which it is stated that the Governor will follow the conventions and for that a Schedule will be put hereafter. You know that the Governor is liable to impeachment and be must know that he acts under a specific responsibility and he will know his duties. Therefore, the Schedule must contain the specific duties that he has to perform. Therefore what the conventions are should be specified fully and in detail. When fixing these general principles we have not gone into the details of these conventions and therefore they will follow later, when you will have ample opportunity to discuss them. I see no reason why this clause should now be postponed at all. The note does not form part of that clause: it is only an explanation which you can ignore you need not take It into account at all.


4.25.141
Mahavir Tyagi
Now that the note stands cancelled there is no, point of order, as the misunderstanding was due to the note.


4.25.142
President
As a matter of fact, no note which is contained in these papers forms part of the resolution before the House.


4.25.143
President
The question is:

"That Clause 14 be passed."


4.25.144
B. Pocker Sahib Bahadur
Sir, I made a request to you on this matter. The question that I raised was as a point of order and it is your duty to give a ruling as to whether this motion is in order or not. I want a ruling from you on this point before you put the clause to vote.


4.25.145
President
I do not think any question of a point of order arises. The question has been put.

The motion was adopted.

4.25.146
Vallabhbhai J. Patel
Sir, I seek your permission that Clause 15 do stand over until such time as Clause 20 and 22 are considered, because it would be more appropriate to take it at that time. I therefore ask your permission that Clause 15 stand over.


4.25.147
President
Clause 15 shall stand over.


4.25.148
Vallabhbhai J. Patel
Sir I move Clause 16.

"(1) The Governor shall appoint a person, being one qualified to be a judge of a High Court, to be Advocate-General for the Province to give advice to the Provincial Government upon legal matters.

(2) The Advocate-General shall retire from office upon the resignation of the Prime Minister, but may continue to carry on his duties until a new Advocate General shall have been appointed.

(3) The Advocate-General shall receive such remuneration as the Governor nay determine"

(Messrs. P. Kakkan, M. Ananthasayanam Ayyangar, H. V. Pateskar K.Santhanam and Gupta Nath Singh did not move their amendments.)

4.25.149
President
The question is:

"That Clause 16 be passed."

The motion was adopted.
CLAUSE 17

4.25.150
Vallabhbhai J. Patel
Sir, I beg to move Clause 17:

"All executive action of the Government of a Province shall be expressed to be taken in the name of the Governor."


4.25.151
Vallabhbhai J. Patel
This is only a formal motion and I move it for the acceptance of the House.


4.25.152
M. Ananthasayanam Ayyangar
Sir, I do not propose to move my, amendment.


4.25.153
President
The question is:

"That Clause 17 be passed."

The motion was adopted.
CLAUSE 18

4.25.154
Vallabhbhai J. Patel
Sir, I beg to move Clause 18:

"The Governor, shall make rules for the more convenient transaction of the business of the Provincial Government and for the allocation of duties among Ministers."

(Messrs. Kala Venkata Rao, M. Ananthasayanam Ayyangar and R. K. Sidhwa did not move their amendments.)

4.25.155
President
The question is:

"That Clause 18 be passed."

The motion was adopted.
The Assembly then adjourned till 3 p.m. on Friday, the 18th July 1947.

The Constituent Assembly of India met in the Constitution Hall, New Delhi, at 3 p.m., Mr. President (The Hon'ble Dr. Rajendra Prasad) in the Chair.

REPORT ON THE PRINCIPLES OF A MODEL PROVINCIAL CONSTITUTION-Contd.

4.26.1
President
The House will now proceed with the consideration of Clause 8 which was passed over yesterday.


4.26.2
Mr. H. J. Khandekar
Mr. President, Guru Agam Das, one of the members of C.P., is a member of the Constituent Assembly. He has not received the notice of this session as yet. The reason is that the address which has been given in the list is wrong. He lives in Raipur District, but Bilaspur District has been mentioned in the list. He has not received the letter by now.


4.26.3
Mr. H. J. Khandekar
I would request the President to issue him the notice of this session by telegram.


4.26.4
Sir B. L. Mitter
Mr. President, you appointed a Committee to examine Clause 8 of the Provincial Constitution. The Committee have unanimously made a Report and they have re-drafted that clause in these terms :

"It shall be competent for a Province, with the previous sanction of the Federal Government, to undertake, by an agreement made in that behalf with any Indian State, any legislative, executive or Judicial functions vested in that State, provided that the agreement relates to a subject included in the Provincial or Concurrent Legislative List.

On such an agreement being concluded, the Province may, subject to the terms thereof, exercise the legislative, executive or judicial functions specified therein through the appropriate authorities of the Province."


4.26.5
Acharya Jugal Kishore
Sir, I will say a few words in explanation. It is well-known that the authority of a provincial government, whether executive, Judicial or legislative, cannot extend beyond the boundaries of the province; that is to say there is no extra-territorial authority vested in any province. This clause gives a province extra-territorial jurisdiction by agreement with a State. The reason for it is this: Suppose a very backward State adjoining a province has some executive or judicial functions but has no machinery to exercise those functions. Then it can come to an agreement with a neighbouring province so that the machinery of the neighbouring province may be available to that backward State for the benefit of both. But it may be that such an agreement, if made between two parties, may act prejudicially to a third State or a third Province, and in order to safeguard against that possible risk, the words "with the previous sanction of the Federal Government" have been inserted, so that the Federal Government will know that here is an agreement between a province and a State and that the agreement is beneficial to both and injurious to none, before the Federal Government gives its sanction to the agreement. By this draft the authority of a province is extended beyond its territorial jurisdiction. The redraft has been necessary by reason of some objections raised by Sir Alladi Krishnaswami Ayyar which were found to be valid objections. I hope this redraft avoids all ambiguities. Sir, I move.


4.26.6
President
Does anyone wish to say anything about this clause?


4.26.7
Alladi Krishnaswami Ayyar
I gave notice of an amendment.


4.26.8
President
There is an amendment by Mr. Gupte to be moved, I will give you an opportunity, Sir Alladi.


4.26.9
B. M. Gupta
I beg to move that the following new clause......


4.26.10
Alladi Krishnaswami Ayyar
Sir Alladi Krishnaswami Ayyar, you wanted to speak about the resolution. I thought Mr. Gupte's was an amendment but it is altogether a new proposition.


4.26.11
Alladi Krishnaswami Ayyar
Mr. President, Sir, in supporting this amendment, I just want to make a few observations. I gave notice of an amendment substantially in these terms. The Committee that was appointed by this House was pleased to substantially adopt that amendment with the modification that the consent of the Central Government should be obtained. Now, as this House is aware, there are quite a large number of minor or small States spread over India which may find it difficult to provide adequate or efficient machinery for the exercise of certain administrative or judicial functions. So, in the interests of both economy and efficiency, it is but fit and proper to provide that the neighbouring provinces should be in a position to undertake the exercise of certain administrative and judicial functions of these States under arrangements entered into with them and to give legal sanction to such arrangements. From the very nature of things, the provinces can-not undertake functions different from the normal functions vested in them as units of the Indian Union. Accordingly, the clause provides for the exercise only of functions vested in the provinces under the Provincial and Concurrent list. In view of the importance of the task undertaken and the relation of the provinces to the Indian Union, provision is made for obtaining the previous sanction of the Union Government. It is hoped that when the Constitution is finally settled, the Union Constitution may also provide for the government of the federation exercising plenary jurisdiction in territories ceded to, or coming Under the control of, the Union Government, similar to the jurisdiction exercised by the agencies of the British Crown under the British Foreign Jurisdiction Act. The provision now inserted is, of course, without prejudice to any such general provision being made.


4.26.12
Alladi Krishnaswami Ayyar
I might mention, Sir, that some suggestion has been made in certain quarters that provision may also be made for provinces ceding jurisdiction to the States. We are not dealing with States constitution, but when the States come into the Union, in regard to any outlying tracts I have no doubt that this Assembly will favourably consider any such suggestion and see if it is possible to concede any jurisdiction in regard to any outlying tracts in favour of States which are in a position to undertake that responsibility.


4.26.13
Alladi Krishnaswami Ayyar
With these words, I beg to support the resolution before the House moved by my Honourable friend, Sir B. L. Mitter.


4.26.14
A. P. Pattani
Mr. President, Sir, I was not able to hear quite clearly what the Honourable Member said but I understood him to say that outlying tracts of British Indian territory falling within the area of an Indian State should similarly come under the jurisdiction of that State with the permission of the Central Government. Such acquiring of jurisdiction should not be only one-sided. I believe there will be in time to come during the discussions, over the federal constitution something in the shape of a constitution for groups of States, but part from that what I wish to say now is that it should be possible for a State which is able to exercise functions on behalf of a province to obtain those powers under agreement with a provincial government and with the consent of the federal authority.


4.26.15
Sir B. L. Mitter
Mr. President; this question of reciprocal arrangement between a province and a state was considered by the committee appointed by you and the committee came to the conclusion that since they were dealing with the provincial constitution, jurisdiction of States would be inappropriate in that place. It was decided that we Should say nothing about the reciprocal arrangement at this stage. Then the question arises at what stage or in what place this reciprocal arrangement could be made. Well, there may be various answers. If any acceding States are intended to be given extra-territorial jurisdiction over any tract which is now British India, then by means of a similar clause, that is with the consent of the Union Government, an arrangement may be made between a State and a province giving the State extra-territorial jurisdiction over that tract. The State itself in its own legislature may make such law. This point has not been over-looked and I hope this House will agree to a reciprocal arrangement being made in favour of a state as it is now asked to make in favour of a Province.


4.26.16
President
The question is that Clause 8 be redrafted as follows:

"8. It shall be competent--for a province, with the previous sanction of the Federal Government, to undertake by an agreement made in that behalf with any Indian State, any legislative, executive or judicial functions vested that State, provided that the agreement relates to a subject included in the Provincial on Concurrent Legislative List.

On such an agreement being concluded, the Province may, subject to, the terms thereof exercise the legislative, executive, or judicial functions specified therein through the appropriate authorities of the Province."

The motion was adopted.

4.26.17
Mr. B. M. Gupte
Sir, I beg to move that the following new clause be added after Clause 8 as proposed by the ad hoc Committee appointed to redraft the clause.

"8-A. Subject to the provisions of the Constitution, and of any special agreement referred to in Clause 8, the executive authority of each Province, shall extend to the matters, with respect to which the Provincial Legislature has power to make laws."


4.26.18
Mr. B. M. Gupte
The ad hoc Committee that was appointed to redraft this clause has put forward its report and we have just adopted that clause as clause 8 as redrafted by the Committee. The original clause 8 referred to 'executive authority', but unfortunately through oversight the redraft failed to incorporate that portion of it as it stood originally. Therefore my amendment supplies that deficiency. The redraft as it is now passed refers only to the special agreement; while this new clause includes the executive authority of the province. I therefore command my amendment for acceptance; because it actually supplies only a deficiency acceptable to the Committee and, I am sure, the Mover.


4.26.19
The Honourable Sardar Vallabhbhai Patel
I accept the amendment moved by Sir B. L. Mitter and the addition moved by Mr. B. M. Gupte because in the original clause there was a reference to agreement which now has been specified by the amendment of Sir B. L. Mitter, But the original clause must remain. Therefore Mr. Gupte has moved that the additional clause may be added after Sir B. L Mitter's amendment. Therefore, I accept Sir B. L. Mitter's amendment as added to by Mr. Gupte.


4.26.20
Mr. President
Does anyone wish to speak about the amendment to this clause moved by Mr. Gupte?


4.26.21
Mr. Naziruddin Ahmad
Mr. President, Sir, I do not think this amendment is necessary. The matter should, if necessary, be inserted in the Provincial or Concurrent Legislative Lists. To the extent as may be provided in this Legislative List the authority of the province regarding legislative and executive action would be complete. If there is any lacuna here, it is a matter for amendment of the Legislative Lists. There is no need, in my humble judgment to adopt a clause like this. I only make this submission to the House so that the same may be considered, and if necessary, it may be passed, but if unnecessary, it should not be passed.


4.26.22
The Honourable Sir N. Gopalaswami Ayyangar
It seems to me, Sir, that a word of explanation is necessary, particularly with reference to the remarks made by the last speaker. He seemed to think that this amendment which has been numbered as Clause 8-A would be unnecessary. I should say, Sir, on the contrary it is very necessary for this reason. We no doubt distinguish between the powers of the federation and of the units in the constitution. Those powers refer only to legislative powers. Legislative powers are divided between the Centre and the units but we have got also to define the scope of the executive authority of the province. We shall define it in the case of the federation also. Unless we say that the executive authority of the province will, subject to the exception mentioned here, be co-extensive with the legislative authority of the province, we shall, not be indicating how far executive action can go at all. I therefore think, Sir, that it is a very necessary amendment.


4.26.23
Sir B. L. Mitter
Sir, I think there is a certain amount of confusion in the minds of some members. When I said that we had redrafted this clause, that re-draft refers to the extra-territorial part of the jurisdiction. But the main clause deals with the normal territorial extent of provincial jurisdiction. You must say somewhere in the constitution on what matters or within what territorial limits the provincial government has to function. Clause 8 says:-"Subject to the provisions of this constitution and of any special agreement, the executive authority of each province shall extend to the matters with respect to which the Provincial Legislature has power to make laws". Now, we know that under the 1935 Act, the provincial jurisdiction extends over the provincial list and the concurrent list and not on the federal list. Here also it is said, "with respect to which the Provincial Legislature has power to make laws". That is so far as the subject matter jurisdiction is concerned. There must be some territorial jurisdiction also. It is stated that the territorial jurisdiction of the executive power is coterminous with that of legislative power. We have to have territorial limits of provincial jurisdiction as well as subject jurisdiction. Therefore, this is necessary. What I moved in the first instance was with regard to the extra-territorial jurisdiction of a province. Therefore, I submit, Sir, that it is necessary to have Clause 8 as printed, in the constitution.


4.26.24
President
I do not know if there was any misunderstanding in the minds of the members when the clause was put to vote. I take it that what Sir B. L. Mitter means is that the clause as it stood in the original should remain there and what he has moved today must be added to it. All the three clause are to remain.


4.26.25
President
Gupte wants to replace the original Clause 8? I see.


4.26.26
President
I will put the clause just now moved by Mr. Gupte to vote.

Clause 8-A was adopted.

4.26.27
President
We will now pass on to Chapter II. We left over, Clause 15. Are we ready?


4.26.28
The Honourable Sardar Vallabhbhai Patel
No.


4.26.29
President
We will then go on with Chapter II--Rule 19.

CHAPTER II-RULE 19

4.26.30
The Honourable Sardar Vallabhbhai Patel
I move:

"19. (1) There shall for every province be a Provincial Legislature which will consist of the Governor and the Legislative Assembly; in the following provinces, there shall, in addition, be a Legislative Council."


4.26.31
The Honourable Sardar Vallabhbhai Patel
I would suggest, Sir, that so far as the Upper House is concerned, we shall have to consult the leaders of the Provinces to settle amongst themselves as to what provinces require a Second Chamber and request you, Sir, to appoint a Committee of the Provincial Premiers to meet and give us a list so that the list may be added hereto.

"(2) The representation of the different territorial constituencies in the Legislative Assembly shall be on the basis of population and shall be on a scale of not more than one representative for every lakh of the population, subject to a minimum of 50 for any province.

The election to the Legislative Assembly shall be on the basis of adult suffrage, an adult being a person of not less than 21 years of age.

(3) Every Legislative Assembly of every province, unless sooner dissolved shall continue for four years from the date appointed for its first meeting.

(4) In any Province where the Legislature has an Upper House, the composition of that house shall be as follows :

(a) The total numerical strength of the Upper House should not exceed 25 per cent. of that of the Lower House.

(b) There should be within certain limits functional representation in the Upper House on the lines of the Irish Constitution the distribution being as follows:

One-half to be elected by functional representation on the Irish model;

One-third to be elected by the Lower House by proportional representation;

One-sixth to be nominated by the Governor on the advice of his Ministers."


4.26.32
The Honourable Sardar Vallabhbhai Patel
I move this clause for the acceptance of the House. We have decided that there shall be a Legislative Assembly for every province and wherever there is to be a bicameral system, the provinces will give a list which will be attached here. At present, as you all know, there are about five or six provinces in which there is only one House such as Orissa, Punjab, Sind and the N. W. Frontier. In the other provinces there are two Houses. Now, the provinces of Bengal and the Punjab have been divided. It is a question whether in the small provinces or whether in Bengal when divided, we want an Upper House. We are concerned with West Bengal alone. It appears there is a big European representation which from August 15 will disappear.


4.26.33
The Honourable Sardar Vallabhbhai Patel
The representation of the different territorial constituencies will be on a scale of not more than one representative for every lakh of the population. This may perhaps in some provinces be increased; where the Provinces are smaller, this proportion will be less. Therefore, we have fixed a minimum. A suggestion may be made for fixing a maximum also. Now, elections are to be held on the basis of adult franchise. We have already settled about that and the age limit is also fixed as 21 years. The life of the Legislature will be four years.


4.26.34
The Honourable Sardar Vallabhbhai Patel
Wherever there is an Upper House, we have adopted the Irish model for the composition of the members; a proportion shall be by functional representation; one-half to be elected by such representation, one-third to be elected by the Lower House by proportional representation and one-sixth to be nominated by the Governor on the advice of his Ministers.


4.26.35
The Honourable Sardar Vallabhbhai Patel
I move this proposition for the acceptance of the House.


4.26.36
President
I have got notice of a number of amendments. I request the members to move then one by one.

(Messrs. K. Santhanam, P. Kakkan and H. J. Khandekar did not move their amendments.)

4.26.37
Saiyid Muhammad Saadulia
Mr. President, Sir, I beg to move:

"That in sub-clause (2) of Clause 19, for the word 'lakh' the words '2 lakhs' be Substituted;"

"That in sub-clause, (2) of Clause 19, after the words 'any province', the words 'and a maximum of 300' be inserted."


4.26.38
Saiyid Muhammad Saadulia
My first amendment is only a means to an end and the end is to fix a maximum. A minimum has been suggested in the report. For smaller provinces, the recommendation in the report may work very well, that is, under the new constitution, representation should be one member for every lakh. But if we apply this principle to the bigger provinces, in my opinion, the legislative bodies will be so unwieldy that work will suffer. Take for example the most populated of the Provinces, the United Provinces which have a population of more than five and half crores according to the census of 1941. If we are to give as recommended in this Draft Constitution one representative for each lakh, the House will have at least, 550 members. We know that in every census the population in India increases on an average by 15 per cent. So after 1951 we will have increased this big number by another 15 per cent. Or in other words, U. P. will have a Provincial Assembly of more than 600 persons. Well, the same will occur in the Madras Presidency which has now 49,300,000 population and so will have a House of 493. Even Bihar which has got a population of 36,300,000 will have at least 363 members in its Provincial Legislative Assembly. In my opinion, Sir, these are very substantial numbers. It has been the experience of almost everyone that the larger the number in a body the less the interest of parties concerned therein. In order to make these constitution of the provinces not unwieldy, I have proposed that a maximum should be fixed and the maximum should be 300. In the present constitution of 1935 we had adopted similar reduction and therefore there is nothing novel in my suggestion, e.g., Bengal which till lately had a House of 250 members counted over 6 crores of people in the last census, Madras which now counts 49,300,000 people has a House of 216, U.P. 268, and Bihar 152.


4.26.39
Saiyid Muhammad Saadulia
There is another aspect to the same question. In the report or rather the Draft Constitution which is going to be placed before this Assembly for the Union Parliament.

"The House of the People, [it says in Clause 14 (1) (c) I shall consist of representatives of the people of the territories of the Federation in the proportion of not less than I representative for every million of the population and not more than I representative for every 750,000 of the population."


4.26.40
Saiyid Muhammad Saadulia
Now, that the Indian Constitution will be functioning for a population of 30 crores, under this computation the House of the People will have a minimum number of 300 representatives and a maximum of 400. It is needless for me to emphasize that this National Assembly will be the centre of all political and executive authorities of the Federation of India. If we are satisfied with a representation ranging between 300 to 400, I think the Provincial Legislative Assembly which will be limited in its jurisdiction to the territories of the Unit only should not have a higher number of representation in their Assembly. It is for this purpose, Sir, that I recommend that as we have provided for a minimum of representation to 50 similarly we should provide a maximum also and according to my humble opinion, an assembly of 300 will give a wide scope for all provincial activities.

(Messrs. V. I. Muniswami Pillay, Gokulbhai D. Bhatt, R. K. Sidhwa, P. Khaitan, and H. J. Khandekar did not move their amendments.)

4.26.41
Mr. R. K. Sidhwa
Sir, in the note to this clause you will kindly find a sentence as follows:

"There is to be no special representation in the Legislative Assembly either for universities, or for labour, or for women."


4.26.42
Mr. R. K. Sidhwa
So far so good. But no mention has been made regarding trade, commerce and industry. I have moved an amendment:

"That there should be no special representation to Trade, Industries or Commerce." ##special representation, trade industries, commerce, reservation, legislative assembly, province##


4.26.43
Mr. R. K. Sidhwa
I do not know whether this is an omission. If there is to be no special representation to any special interest, then I do not wish to move my amendment. I therefore desire that none of the interests will be given preference.


4.26.44
President
That is only a note. It is not a part of the clause.


4.26.45
Mr. R. K. Sidhwa
The intention of the Committee is indicated in this note. I entirely agree with what the Committee has stated because now everybody has to come from the front door having franchise extended to all interests and no special preference to any interest. I do not know why trade, commerce and industry have been omitted. I request that the Honourable Mover will please make it clear in his reply that all special representation will go away.


4.26.46
President
I take it, Mr. Sidhwa, that you have not moved your amendment because there cannot be an amendment to a note. Mr. Desai.


4.26.47
Shri Khandubhai K. Desai
My amendment is almost on the same lines as that, of Mr. Sidhwa, and as I understand that hereafter we are going to have only territorial constituencies and there will not be any special constituencies, I do not wish to move my amendment.


4.26.48
President
Mr. Omeo Kumar Das.


4.26.49
Shriyut Omeo Kumar Das
Mr. President, Sir, I beg to move :

"That in sub-clause (2) of Clause 19, for the word 'lakh' the words 'seventy-five thousand' be substituted."


4.26.50
Shriyut Omeo Kumar Das
Though my Honourable friend Sir Saadulla has moved an amendment to raise the scale of population from one lakh to two lakhs, I am sorry I have, coming from the same province of Assam, to differ from him. It is the universal demand in Assam that the scale of population in relation to the delimitation of the constituencies should be lowered to the figure of seventy-five thousand. As you may know, Sir, there are many backward communities in Assam, and these communities will have no chance of being elected in bigger constituencies. Many of us Congress-men, though we have not met in the Assam Provincial Congress Committee, have come to a decision about it. The President of the Assam Provincial Congress Committee has already, Submitted a memorandum to the Honourable Sardar Patel on this very point for his consideration. I trust the Drafting Committee which will be formed hereafter will also take this point into consideration.


4.26.51
Shriyut Omeo Kumar Das
I want to press before this House another point. The Honourable Sardar Patel has just now told us that Assam has no Upper House. In fact, we do have an Upper House which we want to abolish. We are almost unanimous with regard to this demand. We are not going to have any Upper House in future, which we have been having so long. It is but just and proper that the backward communities of our province should be given the chance of being elected to this only House. I mean the Lower House. I want to press before this House in particular that when you fix the maximum number of members for the legislature there can be no difficulty in the case of major provinces like Madras or U.P. of having unwieldy House by lowering the scale. This difficulty can be met by fixing the maximum,--as Sir Saadulla has already suggested limiting the maximum number to 300,--and to my knowledge the Honourable Mover will accept this amendment. In view of this I think the House may have no difficulty in accepting my amendment.


4.26.52
Shriyut Omeo Kumar Das
With this I commend my motion for the acceptance of the House.


4.26.53
President
Rev. Nichols-Roy.


4.26.54
The Honourable Rev. J. J. M. Nichols-Roy
Mr. President, Sir, I beg to move my amendment which stands as follows:

"That the following proviso be added to sub-clause (2) of Clause 19:

'Provided that in giving representation to any territorial area or areas inhabited by hill tribes, the Provincial Government may determine a lower basis of population than one lakh and the total representation of the Province shall be increased accordingly'."


4.26.55
The Honourable Rev. J. J. M. Nichols-Roy
My reason for giving this amendment is this that the language of sub-clause (2) of Clause 19 seems to prevent any province from having a number of representatives in the Legislative Assembly that will be more than the proportional number of one man for every lakh of the population. If that is the meaning of the language of this clause, then it will be a real hardship on the people of the hills in Assam. In the hill areas of my Province we have large territories which are inhabited by a Proportionately small number of people. For example, in the Lushai Hills we have an area of over 8,000 sq. miles, but inhabited by a people called Lushais--(they call themselves Mizoos)--numbering only a little over a lakh and a half. In one of the plains district, however, there is an area of about 3,800 sq. miles with a population of 12,54,000. This being so, if the basis of population of one lakh per-member is applied to the hill areas also, it will clearly be a great and terrible hardship to the people of the hills.


4.26.56
The Honourable Rev. J. J. M. Nichols-Roy
Then, Sir, there is another area--the North Cachar hills--with an area of about 2,000 sq. miles which is inhabited by hill tribes, with a population of only about 37,000. This morning just before we came here we got a letter from the people of that area saying thus :

"Going through the papers, I find that the Model Provincial Constitution Committee has recommended that representation to the Provincial Legislatures shall be on the basis of population of not more than one man for one lakh, subject to the minimum of 50. This, if adopted without a proviso for special cases, will permanently deny representation to North Cachar hills which has a population of only 37,000. To deny representation to a whole sub-division on the ground of population would be an injustice and even absurd."


4.26.57
The Honourable Rev. J. J. M. Nichols-Roy
Sir, this is the feeling among the hill people of Assam, and it applies not only to this particular hill area, but it applies to all the hill areas in Assam.


4.26.58
The Honourable Rev. J. J. M. Nichols-Roy
Even now, Sir, there is representation to the Assembly of Assam from the hill areas with a much lower population basis than one lakh. There is an area represented by one representative, but having a population of only about 85,000; there is another with a population of about 70,000 sending one representative. Now, if this clause means that no representative can be sent from a territory which has a population of less than a lakh then it means that these constituencies will have to be abolished. When we are talking about the coming of freedom for India, these will mean slavery to the hill people which the hill people cannot accept as justice at all. Therefore, Sir, I request that the drafting of this clause should not prevent a lower basis of population in a province which needs such a lower basis of population for one member in the Legislature. I am told by someone that this clause probably allows all this.


4.26.59
The Honourable Rev. J. J. M. Nichols-Roy
It allows that a province should have representation between 50 and, if a maximum is put, 300 or 400. But it seems to me that the language may be interpreted in a different way altogether. If the interpretation is that a province is free to fix the number of representatives then it win be all right. But if it is fixed only on a basis of one representative for 1 lakh it will be a great hardship and its operation will work to the detriment of the people of the hills area. We must also consider the fact that there are some people in the hill areas of Assam now who want to be independent altogether and stand as a separate State, some who want to join Burma and some others who probably want to join Pakistan too. If this kind of representation be forced upon the hill people of Assam, it will help that propaganda and will cause a great deal of trouble to India. Therefore I would request that the Mover of the resolution may enlighten the House whether the province will be able to give representation on a lower basis to the peoples of the hill areas where in a large territory the population is small. And these territories are sources of potential wealth and are therefore very important to the province of Assam. If that is not considered it will be a great hardship indeed. Sir, I commend my motion for the acceptance of the House.

(Messrs. M. Ananthasayanam Ayyangar, Shibbanlal Saksena and Biswanath Das did not move their amendments.)

4.26.60
Mr. Lakshminarayan Sahu
Mr. President, Sir I want to add a sub-clause at the end of sub-clause (1) of Clause 19: "Orissa may have an Upper House when Orissa States will join the Province of Orissa". Half of Orissa is practically Orissa States and there is a great prospect now that the Orissa States will be joined to the present political Orissa. As such, in order to bring about some good feeling among the Rajahs of the Orissa States I think an Upper House will be a great need in Orissa. That Upper House will act as a good check upon the democratic outbursts. They generally have the fear that there will be too much of democracy and that they will be swept away. Therefore I think there should be a definite sub-clause like this in Clause 19.


4.26.61
Mr. Lakshminarayan Sahu
Besides, there is a prospect of revision of boundaries and in that case the boundary of Orissa will be extended in different directions. That is what we hope, and the population will also increase. The new population that will come into our fold will gradually be one with us only when they feel assured that there is an Upper House where all the legislation that will be passed in the Lower House will be revised and the legislative actions properly done. That is another reason why there should be a provision like this.


4.26.62
Mr. Lakshminarayan Sahu
The Mover of the resolution, Sardar Vallabhbhai Patel, has said that it is left to the province which may choose to have an Upper House it it so likes. It is very good. But at the same time I want to point out to the whole House here that there is really great need for an Upper House. I therefore move:

"That the following be added at the end of sub-clause (1) of Clause 19:

'Orissa may have an Upper House when Orissa States will join the province of Orissa'."


4.26.63
Mr. Lakshminarayan Sahu
I move my next amendment also, viz.

"That after item (b) in sub-clause (4) of Clause 19, the following new item be added:

'(c) There should be the power of recall for voters of every constituency in case in any situation they want to recall their elected member or members'."


4.26.64
Mr. Lakshminarayan Sahu
This is essentially necessary because we feel that at times situations arise when voters want to remove a member from the Legislative Assembly but cannot do so because there is no such provision in the Act. When we are going to have a new Act, I think we should provide for this new clause, namely, recall.


4.26.65
Mr. Lakshminarayan Sahu
As regards the difficulty of how to operate it, I think there will not be much difficulty because the constituency will be very small. Then we may provide that if two-thirds, or some such proportion, of the voters vote against a member whom they do not like, in that case the member goes out. As regards the full procedure I am not conversant with it and it may be found out. .


4.26.66
Mr. Lakshminarayan Sahu
Moreover I think a provision like recall is necessary when we are going in full force towards democracy, and without a provision for recall our legislation will not be complete because it is being gradually provided in other places, as for instance in Switzerland and in some American States. As early as in 1922 in the Bihar and Orissa Legislative Council, when Mr. Madhusudan Das of Orissa was the Minister for Local Self Government, he introduced this provision of recall in the local Legislative Act there. If there be a fear that the provision may be misused and it will be difficult for the people to work it, I do not think there is much in that fear, because though there is provision for this recall in the Bihar and Orissa Local Self-Government Act it has not been used although people have begun to talk about it. It is not very easy to take advantage of this. Therefore there should be no such fear that if there is a provision of recall people will rush into it and there will be various parties trying to oust one member and put in another. Even if that be so I would welcome it because that will be a sort of education for our people. Our people generally after giving their vote once do not think about it afterwards, but if there be such a thing they will begin to think and the people will be more active and agile. I therefore move that these two sub-clauses should be inserted in this clause.


4.26.67
Mr. Lakshminarayan Sahu
Then I will touch on another point as regards population. My friends Mr. Omeo Kumar Das and Mr. Nichols Roy have said that the constituencies should be small. I also feel like that, because in Orissa there are many aboriginal people and they are all different groups. The people can send in one of their own people if the constituency is small. For instance the Amanatvas are only 60,000 people; now they cannot send their own representative because their number is small. Then there are other hill tribes who generally number twenty or thirty thousand. Of course we cannot extend this legislative power to all of the groups but we should still have the desire that those people on the hills who have been neglected so long should be given powers in such a way that they may be politically educated as quickly as possible, so that we may be able to bring them up to our level. Sir, I move.


4.26.68
Mr. R.K.Sidhwa
Sir, I beg to move that in sub-clause (2) of Clause 19 for the figure "50" the figure "60" be substituted. In the new constitution we are going to have a wider franchise which means a larger number of representatives in the Legislature. It is very desirable that following the democratic spirit we should have in the coming constitution a larger number of members in the Legislature. I do not share the views of Mr. Saadulla that a bigger Assembly is cumbersome and unwieldy. These stock arguments are often advanced when people do not want a bigger Assembly. Here is the Constituent Assembly consisting of about 225 members. Is it cumbersome and unwiydel? The debates are attentively listened to and we are conducting the business smoothly and rapidly. Even in the Central Legislative Assembly or in the Provincial Assemblies with only about a hundred members I have sometimes seen a want of a quorum and the Speaker of President had to go on ringing the bell. But here we have such a large number of members but still they are attentive to their duties and we get the benefit of their knowledge and experience out of which will be framed a very useful constitution. So I support the Mover's proposition that in the Assembly there should be one member for every lakh of the population.


4.26.69
Mr. R.K.Sidhwa
Then, Sir, coming to the minimum, I have suggested 60 for 50, and the reason is this. The smallest province in the Indian Union today is Orissa with a population of 84 lakhs and they have a House of 60 with an electorate which is narrower than what it will be hereafter. With a larger electorate to come we cannot cut that down to 50. The two new provinces of East Punjab and West Bengal will each have a population of 2 crores and 50 lakhs. They are big provinces and we should see that they get full representation. Therefore I suggest that for provinces like Assam or Orissa, etc., the minimum should be 60 as at present.


4.26.70
President
I think Mr. Sidhwa has misunderstood the clause. That is only the minimum. If the population is 84 lakhs the number will be 84 according to this clause. The amendment does not touch those cases; it touches only those where the number is less than 50.


4.26.71
Mr. R. K. Sidhwa
But if there is to be a minimum I want it to be 60. That is my amendment and I hope the House will accept it. The more members there are I think the better it is because it would be well to have the benefit of their intelligence, knowledge and experience. Sir, I move.


4.26.72
President
The Resolution and the amendments are now open to discussion.


4.26.73
The Honourable Mr. Gopinath Bardoloi
Mr. President, I did not want to participate in this debate. But since my friend Mr. Nichols-Roy has placed certain issues before the House, I consider it necessary to make certain observations.


4.26.74
The Honourable Mr. Gopinath Bardoloi
Sir, I have the privilege of being the Chairman of the Eastern Tribal and Excluded and Partially Excluded Areas Sub-Committee. In that connection we had not merely an opportunity of touring the hill areas but also of studying the conditions of the people in the hills. From a broad point of view it can definitely be stated that the method of representation proposed to be introduced for the general population cannot be made to apply to the people in the hills.


4.26.75
The Honourable Mr. Gopinath Bardoloi
It will be seen that Assam today, with Sylhet gone, has a population of 71 lakhs and the extent of the province as it stands is only 62,000 square miles. Most of the people live in an area of about 30,000 sq. miles in the plains. With the hills, Assam comprises now 62,000 sq. miles. If you deduct 30,000 sq. miles, you will find that thirteen lakhs of hills people live in 32,000 sq. miles. What is more important for us to know is that they live as separate tribes and not as we do in the plains in a common pattern. Therefore, if any representation is proposed to be given to these people, it must be different from the manner in which representation is proposed to be given to the people in the plains. In view of this state of affairs. I think that the proposition that has been put before the House by Rev. Nichols-Roy should be supported by us generally. But I do not know whether it is necessary at all to accept the amendment as it stands. It is possible known to all of you that the Advisory Sub-Committee will be making some recommendations in respect of representation also. Now what can be done here is that we can agree to accept the general principle so far as all other areas than the plains are concerned. I am not discussing here what that representation ought to be and whether it should be one representation for a unit of 75,000 or 1,00,000 or even 2,00,000 of the population, although in my opinion this should vary according to the population and area of the different provinces. But the broad fact should be accepted that these areas should be represented under some special plan. Mr. Nichols-Roy's recommendation is that this matter should be left to the provincial governments concerned to determine. I think the better course would be to leave this matter in the hands of the Advisory Sub-Committee and await their recommendations. The House can then consider the matter. The House should also bear in mind that in the present constitution, these hill people enjoy considerable weightage in representation. With these observations that the spirit of Rev. Nichols-Roy's amendment should be accepted, I resume my seat.


4.26.76
Mr. H.V. Kamath
Mr. President, Sir, the second half of the first sub-clause of this clause reads thus: "in the following provinces, there shall, in addition, be a Legislative Council" and then in brackets it lays down "(here enumerate those Provinces, if any, which desire to have an Upper House)". I am glad that the words "if any" have found a place here. I hope to God that no province will elect to have an Upper House. But the possibility cannot be entirely ruled out of certain provinces choosing to have an Upper House. Therefore I stand before this House today to put in a plea for the abolition of the existing second chambers and against the creation of new ones.


4.26.77
Mr. H.V. Kamath
Sir, in modern political practice, the second chamber is fast becoming an anachronism. In a federal democracy the structure which we have envisaged for our Hind, our Bharatavarsha--we may visualise a second chamber for the Centre, but it would be pernicious and vicious to have a second chamber in the constituent units of our federal democracy.


4.26.78
Mr. H.V. Kamath
Various motives have actuated the creation of second chambers all over the world. In the last century, it was stated more or less as a political axiom that no democracy should be without a second chamber. But in the 20th century this practice is fast fading out and giving way to unicameral legislatures. Various motives have, as I said, led to the creation of second chambers. Firstly, there has been the desire to maintain the old tradition. I am glad that in India at least we do not have any such tradition. In the first decade of this century the British Government created second chambers mostly as a hang-over from the last century. But in the middle of this century this system stands discredited.


4.26.79
Mr. H.V. Kamath
The second motive which has actuated the creation of second chambers is the desire to safeguard the interests of the propertied classes and vested interests. If we have second chambers in every province of our Federation, then I am afraid, these very classes which propped up British rule in our country, which buttressed and bolstered up British rule in the days of its decline, will find a place in those bodies. I for one would not support such a development in our country.


4.26.80
Mr. H.V. Kamath
The third motive which has actuated the creation of second chambers is that they would act as a sort of check on the impulsive and hasty tendencies of the Lower House. Well, Sir, in modern democracies the practice is for legislation to pass through a very elaborate process, and as such there is no need for any multiplicity of legislative checks, specially considering the times through which we are pressing. When we are aspiring to build a strong Union, we cannot afford this luxury of a second chamber which I am afraid will hamstring the Government in the provinces and render the Government static or at any rate less dynamic. We want these Governments should be dynamic and I am certain that second chambers would act as a drag on them in every province. These are the considerations which impel me to oppose the creation of second chambers. I hope that the constituent units of the Federation will not elect to have second chambers in our Hind, our Bharatavarsha.


4.26.81
Mrs. Renuka Ray
Mr. President, Sir, I rise to support Clause 19 and in particular section (2) of this clause which provides for territorial representation without reservation of seats. We are particularly opposed to the reservation of seats for women. Ever since the start of the Womens' Movement in this country, women have been fundamentally opposed to special privileges and reservations (hear, hear). Through the centuries of our decadence, subjection and degradation, the position of women too has gone down until she has gradually lost all her rights both in law and in society. Nonetheless, with the first stirrings of consciousness amongst women, there never arose any narrow suffragist movement that has been so common in so many so-called enlightened nations. Women in his country have striven for their rights, for equality of status, for justice and fair play and most of all to be able to take their part in responsible work in the service of their country. The social backwardness of women has been sought to be exploited in the same manner as backwardness of so many sections in this country by those who wanted to deny the country its freedom.


4.26.82
Mrs. Renuka Ray
Before the 1935 Act came in, the representatives of India's women made it very clear that they were against the reservation of seats or any special privileges for women. They made this clear through the All India Women's Conference. Our representatives, the three women who gave evidence before the Joint Parliamentary Committee, made it clear in unequivocal terms--(I may say that Rajkumari Amrit Kaur was one of the three women)--that we did not want reservation, but in spite of our protests, and in direct contravention to our desires, reservation of seats was brought into the 1935 Act. This Act has been so great a factor in bringing dissensions in our fold and has at last divided the country. But where the heart is strong, where there is sound judgment, no machinations can divide and the women did not allow themselves to be caught in the tray. It would be wrong to say that all the credit for our attitude goes to women. From the very start of our national awakening in this country, enlightened men have encouraged women to come forward as equal partners in the struggle for freedom and to do service for national regeneration in the different walks of life. When Mahatma Gandhi gave his call so specifically to the women of this country to take part in the national movement, all the social barriers of centuries broke down. There are no words to convey the gratitude of the women of this country to this Great man--who has today brought the country to the very threshold of freedom (hear, hear). Sir, it is not only the inherent qualities of women but more particularly I should say the qualities of our men that is responsible for the fact that in our country, there has never been any strife between men and women.


4.26.83
Mrs. Renuka Ray
When the Hindu Law Reform Bills were put in the Central Assembly, women were naturally anxious that these bills which conceded certain rights to them should be adopted, but we found an opposition which was not so great in numerical strength but which was very formidable because of the fact that it was from a reactionary group who were the erstwhile supporters of the then Government and who were also betraying the country at every turn. The alien Government could not afford to displease them, and unless we too were willing to barter away our souls and our birthright, we could not fight that opposition.


4.26.84
Mrs. Renuka Ray
Sir, what we have upheld so long has come to pass today. We always held that when the men who have fought and struggled for their country's freedom came to power, the rights and liberties of women too would be guaranteed. We already see the evidence of this today. No reservation of seats was required to induce the men who are today in power to select a woman as Ambassador, the second in the history of any nation. Vijayalakshmi Pandit has not been selected because she is a woman nor was sex made a bar to the appointment. It is her proven worth that has been responsible for her appointment to the high office of ambassador to a land which is admittedly one of the greatest forces in the world today. This has vindicated our position and women are indeed proud of this. I am confident that it will not be only women of exceptional ability who in future will be called upon to occupy positions of responsibility, but all women who are equally capable, equally able as men will be considered irrespective of sex.


4.26.85
Mrs. Renuka Ray
In the Legislatures of India, we have some women, but there are few women who have come from general constituencies. I think that the psychological factor comes into play when there is reservation of seats for women. When there is reservation of seats for women, the question of their consideration for general seats, however competent they may be, does not usually arise. We feel that women will get more chances in the future to come forward and work in the free India, if the consideration is of ability alone.


4.26.86
Mrs. Renuka Ray
With these words, Sir, I should like to support this clause which has done away once and for all with reservation of seats for women, which we consider to be an impediment to our growth and an insult to our very intelligence and capacity.


4.26.87
Mr. Sarangdhar Das
Mr. President. Sir, I stand here to oppose the amendment of Mr. Lakshminarayan Sahu for creating an upper chamber in the Orissa Legislature in anticipation of the Rajas that is, the Rulers of Orissa, coming into the province at some future time. An upper chamber anywhere is an anachronism in these days of democracy. With adult franchise, when all the legislation necessary, and all the safeguarding of interests necessary, are done in one chamber the members of which are elected by the whole people, there is no necessity for an upper chamber and as such I would request the Mover of this clause to see that there is no loophole left for the creation of an upper chamber in future, and particularly in Orissa. I represent here a group of small States in Orissa. At the same time, I am a member of the Orissa Legislative Assembly, and I know the feeling of the people of Orissa Province.


4.26.88
Mr. Sarangdhar Das
There is never any talk anywhere of an upper chamber and it will be disastrous to create one simply to perpetuate the vested interests of the Rajahs. So long, there had been this vested interest created by the British Government in India. But now, by creating an upper chamber in the province we shall be perpetuating that vested interest in another shape. I therefore strongly oppose this amendment and I hope the House will not in any way support this kind of reactionary measure.


4.26.89
Saiyid Muhammad Saadulla
Mr. Speaker, Sir, I hope this Honourable House would give me the indulgence to make a special plea for the smaller units of the Indian Federation and especially Assam. Assam was the Cindrella of all Indian Provinces till the Simon Reforms came into operation. Then she stepped up a bit and came over in the list of provinces from the bottom to three or four steps upwards, for smaller states than Assam came into existence like Orissa, Sind and North-West Frontier Provinces. But with the present set up and with the result of the referendum in the district of Sylhet of the Province of Assam she has again been relegated to the Cindrella Province of the Indian Federation. Conditions in Assam are not known to most of the Honourable Members of this House. Assam is a land of wide distances and very sparse population. In extent it was very nearly equal to the Province of Bengal as it existed three months ago, but in population it has only one-sixth the population of Bengal. As has been stated earlier by two of my compatriots, we have very primitive and aboriginal people within our areas which were excluded from the Ministerial influence under the scheme of the Simon Reforms. But the then authorities took into consideration the undeveloped state of Assam and of our peoples, and gave us not merely the Provincial Legislative Assembly with a membership of 108 but also, in spite of the opposition of the peoples,an upper Chamber was imposed on them. I am not concerned here with the Upper Chamber for Honourable Members will be glad to know that all the Members from Assam present in the Constituent Assembly have sent a joint letter to the Honourable the President expressing the views of Assam, not merely of the Congress and the Muslim League but the entire population of Assam, that we do not want any Second Chamber in the future constitution. When I say that Assam has 108 members when its population was only 92 lakhs in the 1931 census, I am not disclosing the fact that one third of Assam was unrepresented in this Legislative Assembly. For Assam has three frontier areas, the biggest one is called the Sadiya Frontier, the next one is the Balipara Frontier and the third is the Tirap Frontier. All these were excluded from the Reforms of 1935. One may say that these being Frontier areas they were right to exclude it. But insular districts like the Naga Hills, the North Cachar Hills and the Lushai Hills also were excluded from participating in the Reforms of 1935. My plea before this August Assembly is that you will have to give your careful consideration if you want backward provinces, undeveloped provinces like Assam--I would not mention any others, because they may not think themselves backward--should be treated separately in the future constitution. I therefore have great pleasure in supporting the motion that has been placed before the House by my Honourable friends Sjt. Omeo Kumar Das and Rev. J.J. Nichols-Roy. Rev. Nichols-Roy has placed before the House the fact that a very large area called the North Cachar Hills with an area of 2,000 square miles but with a population of 37,000 wants to get representation in the future constitution of Assam. But he does not say what should be the limit of population which should entitle the area for representation in the Provincial Constitution. My Honourable friend Sjt. Omeo Kumar Das wants that the population basis should be reduced from one lakh to seventy-five thousand. Some speakers who spoke after I moved my own motion have misunderstood me. I do not want that the representation should be reduced. As a matter of fact I now openly make the plea that the smaller provinces should get a weightage as regards the number of people on the Provincial Legislature. What I wanted was just to place before the House my own humble opinion that there should be a maximum number fixed for such representation and I placed it at 300. One Honourable Member, I refer to my friend Mr. Sidhwa from Sind, fell foul of me and said that even in this House which consists of 228 members, we do not feel that this is unwieldy and that every one listens to the speeches with rapt attention. This is as it should be. For, this Constituent Assembly represents the intelligentia, the patriots, those who have sacrificed their all in the service of the country. No wonder, Sir, that we all listen so attentively and with rapt attention when we have men like Mr. Sidhwa who have to be given a place in this Constituent Assembly although under his physical domicile he was not entitled to sit in this House.


4.26.90
President
Mr. Kakkan wants to speak in Tamil. I do not know if many members will be able to understand Tamil.


4.26.91
Shri P. Kakkan
Mr. President, I want to speak in Tamil which is my mother tongue. If I speak in Tamil, I can express my ideas clearly. So, I want to speak in Tamil which is my mother tongue.

(The Honourable Member then spoke in Tamil)

4.26.92
Shri Raj Krushna Bose
Sir, I would not have taken the time of the House and spoken on this motion had not one of my colleagues in the Provincial Legislature moved an amendment to the effect that Orissa may have an Upper House if the Orissa States will join the Province of Orissa.


4.26.93
Shri Raj Krushna Bose
In opposing the amendment, I should like to point gut to the Mover that probably before giving notice of the amendment, he has not closely studied Clause 19 of the Provincial Constitution. Clause 19(4) says: "In any province where the Legislature has an Upper House, the composition of the House shall be as follows": Then the procedure with regard to the composition has been enumerated. Then, the note says: "It was agreed that the members of the Constituent Assembly from each Province should vote separately and decide whether an Upper House should be instituted for the Province." I should like to point out to my Honourable friend that if at all he desired to move the amendment, it would have been proper on his part to consult his colleagues here, who are members of the Orissa Legislature as to the effect the amendment would have on the province itself. I would not have opposed it if the effect would not be to commit the province to have an Upper House.


4.26.94
Shri Raj Krushna Bose
Evidently, Mr. Sahu's object in moving the amendment is to facilitate the Orissa States to join the Province of Orissa. If that is his object, let me tell him that they can do so even without an amendment like this, as this has been provided for in Clause 3 of the Draft Constitution of the Union whereby the States who want to merge themselves in the provinces can do so, and for this an Act of Parliament will be necessary. Clause 3 of the Draft Union Constitution says:

"The Parliament of the Federation may by Act, with the consent of the Legislature of every Province and the Legislature of every Indian State affected thereof.

(a) create a new unit;

(b) increase the area of any unit;

(c) diminish the area of any unit;

(d) alter the boundaries of any unit;

and may with the like consent make such incidental and consequential provisions as it may deem necessary or proper."


4.26.95
Shri Raj Krushna Bose
Sir, I do not know whether what Mr. Sahu contemplates is going to happen, or when or how it is going to happen, because I know attempts have been made by leading men of Orissa, not for a few months, but for the last few years, for the amalgamation of the States of Orissa numbering as many as 26, with the Orissa Province but till now they could not be persuaded to do so. Supposing these attempts bear fruit and some or all the States agree to merge in the Province of Orissa. Clause 3 of the Draft Union Constitution contains a provision for such an union by an Act of Parliament of the Federation. In that case, the Legislature of every Indian State which is affected thereby will have to give their consent to such a union. I do not see any reason. Sir, when there is such a provision, in the union Constitution, why Mr. Sahu chose to move this amendment. The amendment will, in effect, commit the province to create an Upper House where there no need for it. The amendment is therefore redundant. Another amendment which provides for the recall of members by the voters in case such a situation arises has been moved by Mr. Sahu. He said that in Switzerland such a provision exists. I am sure no such provision exists in Switzerland. If there are any, there are such provisions in some of the American States but in the present state of our country where democracy is but in its infancy, it would be improper to provide for such a thing and render the constituencies a battle ground between candidates unnecessarily and make them victims of rival political parties. I would therefore oppose both the amendments and would request him to withdraw both his amendments.


4.26.96
The Honourable Mr. Jaipal Singh
Mr. President, I have great pleasure in supporting Clause 19 as it is. At the same time I feel somewhat inclined favourably to the picture that has been depicted by members from Assam where the problem of the hilliness, inaccessibility, sparseness of population and all similar physical difficulties have been pointed out. I am quite definite the amendment that has been moved to the effect that, instead of one lakh, two lakhs of people should send a representative should not be accepted by this Assembly. If anything, we should go in the other direction and make representation as broad-based as possible and reduce the figure one lakh to something less. I do not say it should be 35,000, or 10,000 or 50,000. I think we have to look to the practicability in the present set up. If we are going to be democratic at all, we should be as representative, make representation as broad-based as possible and we shall not be doing that by increasing the figure higher than one lakh. We have been given a good picture of the difficult and mountainous character of the Province of Assam. That is true, that is a feature which is characteristic of most of the Adibasi tracts throughout India. I come from the Chota Nagpur Plateau, Jharkhand, which is equally mountainous, equally inaccessible as some of the territories that have been described by my friend Mr. Gopinath Bardoloi from Assam. Unless the delimitation of the constituencies is done on a much smaller population basis, it will simply mean that elections will have no strong appeal to the people. It would be difficult for the people whose votes we want and whose opinions we seek, to be interested. Sir Muhammad Saadullah, in his amendment, pointed out that he did not want that any House should be toounweildy. He gave us a figure which he wanted not to be exceeded. That is all very well but Mr. President, I have been reading, I have been hearing a great deal from the agents of the Indian National 'Congress, expressions about a re-distribution, a re-alignment of provinces on a cultural and linguistic basis. There is the famous Karachi Minority Resolution, 16 years old and, recently, we have had vociferous demands from various areas such as Andhra, Kerala, Karnataka, Maharashtra, Mahakoshal, Mithila and Jharkhand. I do not know whether I have left out any but there are these areas which have been demanding that there should be a re-alignment of the present unweildy and unnatural provinces. Well, I do hope that there will be a re-alignment, that, the Indian National Congress will honour its word, honour the Karachi Minority Resolution and set about it quickly to get this dream realized. In that case, I think, arithmetically, Sir Muhammad Saadulla's fears will disappear altogether. Then on the basis of one per lakh the representation will never exceed the figure he has mentioned.


4.26.97
The Honourable Mr. Jaipal Singh
Sir, I fell in rather an awkward position in regard to the point that Padre Nichols-Roy has raised. Being a tribal myself, realizing that Adibasis must get effective representation in the future democracy of this country, I find myself confronted with a problem of there being something like 177 listed tribes in the decennial census of 1941. Now if we were to accept that, every pocket of the tribe should be represented--this is roughly the picture Padre Nichols-Roy has given up; he has mentioned a figure, that figure is meant to include particular pockets of the Assam tribes now if we are to work on that basis, I am afraid even a figure as low as a thousand, if one thousand people were to send representatives, it would mean that somebody will be left out. I think we have to draw the line somewhere and for the present I do feel that the figure that the Honourable Mover has stated in his clause as it stands i.e., one per lakh of population, is good enough and I have great pleasure in supporting it.


4.26.98
Mr. Khandubhai K. Desai
Sir, I move that the question may now be put.


4.26.99
President
Closure has been moved. Now I ask the Mover of the Resolution to reply to the debate.


4.26.100
The Honourable Sardar Vallabhbhai Patel
Sir, several amendments have been moved and in the course of the discussion, some amendments have been opposed by some speakers. The sum total of the discussion results in an impression on me that there are two amendments which may be accepted. One is from Mr. Sidhwa which provides for the minimum number in Clause 2 to be raised from 50 to 60. Another amendment is from Sir Saadulla which provides for the maximum number to be fixed at 300. Except for these two amendments which I propose to accept, the rest, I would like to oppose.


4.26.101
The Honourable Sardar Vallabhbhai Patel
There is an amendment moved by a friend from Orissa suggesting that there should be an Upper House in that province. I do not think that any amendment is necessary for that, because, in the Resolution itself it has been provided that it is the option of the province to have an Upper House or not. He will, of course have his say in that Provincial Assembly. He wants an amendment here, probably because he is afraid of not succeeding in that Provincial Assembly. But we do not propose to impose an Upper House on a province against its own will. Of course, there is no Upper House in the Province of Orissa, to-day, and I see that this proposal to have one has been opposed by another friend from Orissa in this very House. Probably there is no chance of his succeeding in that attempt. I do not see why we should accept it.


4.26.102
The Honourable Sardar Vallabhbhai Patel
He has moved another amendment in which he suggests that power should be given in the constitution to the voters to recall a member who has lost the confidence of his constituency. I do not see why such a provision should be made. I think it should be left to the honour of the member elected. When he feels that he has lost the confidence of his constituency, he must resign of his own accord, instead of having to be called upon to do so, and having a provision to that effect made in the constitution. A wise member will always keep his finger on the pulse of his constituency and I think instead of putting in such a provision, we should try to develop, a healthy sense of responsibility and sense of honour in the members. If there are any stray instances or some black-sheep who having lost the confidence of their constituency still want to continue to represent that constituency in the House, for some such bad instances we should not disfigure our Constitution. We should leave it as it is, to the good sense of the members concerned.


4.26.103
The Honourable Sardar Vallabhbhai Patel
Then, it has been suggested by some friend from Assam who seems to have developed a sense of inferiority complex, that Assam must always have some special treatment. It is a matter for congratulation that women have come forward to say that they do not want any special treatment. But at the same time, it is a matter of regret that men have not yet come up to that standard. Let us hope that nothing will be provided in this constitution which would make exception in favour of men where women object.


4.26.104
The Honourable Sardar Vallabhbhai Patel
It has been said that for tribal areas or for some such areas some concession should be made in the matter of representation. In the first instance I would suggest that this is a matter which would primarily be considered by the special committee appointed for that purpose. We have not yet got the report of the Tribal and Excluded Areas Sub Committee and we would not like to hamper their work or their discretion. We will not encroach upon their rights to make a free and unfettered report. I therefore, suggest that we should not take this point into consideration now, but that the general principle as enunciated in this clause be accepted. If it is seen that after the report of this Sub-Committee is received, this clause requires some modification, that will be incorporated in the clause.


4.26.105
The Honourable Sardar Vallabhbhai Patel
I do not think there is much that I should say now. We have had a full discussion for more than two hours and many arguments that were advanced have been replied to by contrary arguments. Therefore I now move the clause for the acceptance of the House, with the two amendments I have referred to.


4.26.106
Saiyid Muhammad Saadulla
Sir, I beg leave to withdraw ray first amendment.

The amendment was, by leave of the Assembly, withdrawn.

4.26.107
Shriyut Omeo Kumar Das
Sir, I beg leave to withdraw my amendment also.

The amendment was, by leave of the Assembly, withdrawn.

4.26.108
President
Now we come to the second amendment moved by Sir Saadulla:


"That in sub-clause (2) of Clause 19, after the words 'any Province', the words 'and a maximum of 300' be inserted."


4.26.109
President
This, I understand, has been accepted by the Mover, but must be accepted by the House also.

The amendment was adopted.

4.26.110
President
Then there is the amendment moved by Mr. Sidhwa:

"That in sub-clause (2) of Cluase 19 the figure '60' be substituted for the figure '50' ".


4.26.111
President
This amendment also, I understand, has been accepted by the Mover, but it has to be accepted by the House also.

The amendment was adopted.

4.26.112
President
Then there is the amendment moved by Rev. Nichols-Roy:

"That the following proviso be added to sub-clause (2)of Clause 19:

'Provided that in giving representation to any territorial area or areas inhabited by hill tribes, the Provincial Government may determine a lower basis of population than one lakh, and the total representation of the Province shall be increased accordingly'."


4.26.113
Shri K. Santhanam
On a point of order, Sir, this is a matter which should be referred to the Advisory Committee.


4.26.114
President
I think it is too late now. The amendment has been moved here and discussed. I take it that if the Advisory Committee has to make any suggestions on this point, it will be taken into consideration by the House.


4.26.115
The Honourable Rev. J. J. M. Nichols-Roy
Sir, as the Honourable Mover Sardar Patel, says that this question will be considered by the Advisory Sub-Committee now dealing with the Excluded and Partially Excluded Areas, and that the recommendations of that Sub-Committee will be discussed by this House, and that this clause will be subject to the recommendations of that Sub-Committee, I do not see any necessity to press my amendment. I want to withdraw it.


4.26.116
President
I think this matter will be considered by the Advisory Committee and its recommendations will come up before this House. I take it that the House permits Mr. Nichols-Roy to withdraw his amendment.

The amendment was, by leave of the Assembly, withdrawn.

4.26.117
President
There are two amendments by Mr. Lakshminarayan Sahu. Does the Honourable Member desire to press them?


4.26.118
Mr. Lakshminarayan Sahu
Sir, I desire to withdraw both of them.

The amendments were, by leave of the Assembly, withdrawn.

4.26.119
President
I shall now put the clause as amended to vote. I suppose it is not necessary for me to read out the clause as amended.


4.26.120
Maulana Hasrat Mohani
Sir, I oppose the whole clause and in this connection I want to give expression to some of my views. Will you permit me to do that?


4.26.121
President
We have already had a long discussion on the clause and the amendments thereon.


4.26.122
Maulana Hasrat Mohani
Certain misunderstandings have been created about my political views by Sardar Patel and Pandit Nehru. I had no occasion to remove those misunderstandings. If you would allow me only a few minutes I shall express those views.


4.26.123
President
I am afraid it is too late to have any further discussion. If the Maulana had been listening to the speeches and not talking to other members he would have had his opportunity.


4.26.124
Maulana Hasrat Hohani
Sir, I oppose the whole resolution and this report altogether and; I want it to go on record that I oppose the whole thing at this stage when you put the amended proposition to the vote of the House.


4.26.125
President
I will now put the clause, as amended, to vote. The question is:

"That Clause 19, as amended, be passed."

The motion was adopted.

4.26.126
The Honourable Sardar Vallabhbhai Patel
Sir, I move Clause 20 :

"The provisions for the meeting, prorogation and dissolution of the Provincial Legislature, the relations between the two Houses (where there are two Houses), the mode of voting, the privileges of members, disqualification for membership, parliamentary procedure, including procedure in financial matters, etc., shall be on the lines of the corresponding provisions in the Act of 1935."


4.26.127
Alladi Krishnaswami Ayyar
I understand that Sir Alladi Krishnaswami Ayyar is going to move an amendment to the last line, viz..' "on the lines of the corresponding provisions in the Act of 1935." Instead of this he suggests a better form which is wider and is on the lines of the procedure in the British Parliament I will accept the amendment when he moves it. Otherwise this clause is a simple one and I move it for the acceptance of the House.

(Prof. Shibbanlal Saksena did not move his amendment.)

4.26.128
Alladi Krishnaswami Ayyar
Sir, I have an amendment to the clause as proposed. It contains two parts. With regard to the first part of it there was some difference of opinion in certain quarters as to whether it should be pressed at this stage and whether it could not be taken up at a later stage. On that ground for the present I am not insisting upon it, though I think there is a good deal to be said in regard to that of it. The first part of it is:

"That at the end Clause 20 the following be added (with the following changes in the provisions of Section 71 of the Government of India Act, 1935):

"After the words 'in respect of the publication by or under the authority of a Chamber of such a Legislature' in sub-section (1) of Section 71, add 'or any accurate reports of such proceedings'."


4.26.129
Alladi Krishnaswami Ayyar
I believe there is a necessity for some such provision but as it is felt in certain quarters that that part of it requires further examination I am not pressing it now. I propose to reiterate it at a later stage of the proceedings.


4.26.130
Alladi Krishnaswami Ayyar
The second part of my amendment is:

"For sub-sections (3) and (4) of Section 71 of the Government of India Act. 1935, substitute the following:

"The powers, privileges and immunities of the members of the Legislature of the Province shall be such as are declared by the Provincial Legislature and until so declared shall be those of the members of Commons of the House of Parliament of the United Kingdom and of its members and committees at the establishment of this Constitution'."


4.26.131
Alladi Krishnaswami Ayyar
If you will refer, Sir, to section 71 you will notice that the privileges are very restricted. The Legislature has no power to punish its own members and there are various other restrictions too. It was felt, as indicated herein that our Legislature should possess as plenary powers as those possessed by the House of Commons without prejudice to the Legislatures themselves later on making their own provisions. That is the object of this amendment. If there is any feeling that in an Independent India's Constitution there need not be any reference to the House of Commons, later on we might collect all the materials with reference to the privileges of the House of Commons and they might be-substituted. For the present I would press this, because the House of Commons is the Assembly, which has the widest privileges of all the Assemblies of the world.......


4.26.132
Mr. Naziruddin Ahmad
Sir, on a point of order, an Honourable Member is smoking in this House while the deliberations are going on. Is it in order to do so? If this is permitted, there will be many more Honourable Members who might claim the indulgence of smoking inside the Chamber.


4.26.133
President
It would not be in keeping with the dignity of this House or in keeping with our own past traditions that any Honourable Member should smoke in this House.


4.26.134
Alladi Krishnaswami Ayyar
Sir, I also move:

"That the following new clause be inserted after Clause 20 (That is a very material provision):

'20-A. (1) the validity of any proceedings in a Provincial Legislature shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or other member of a Provincial Legislature in whom powers are vested by or under this Act for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers'."


4.26.135
Alladi Krishnaswami Ayyar
That is a very salutary and necessary provision, because it ought not to be open to any individual to challenge the validity of any enactment on the ground that any particular rule or order has not been observed in the passage of a particular enactment. That is a provision which has found a place in every Government of India Act. It is a very salutary provision. I would therefore request the House to accept this amendment the reason for which I have explained.


4.26.136
President
There is no other amendment. So the original proposition and the amendments are open for discussion. Anybody who wishes to speak either on the resolution or the amendments is free to do so.

(No member rose to speak.)

4.26.137
President
I find that no one is anxious to speak. I shall therefore ask the Honourable the Mover to reply.


4.26.138
The Honourable Sardar Vallabhbhai Patel
Sir, I accept the amendments.


4.26.139
Alladi Krishnaswami Ayyar
I have to put the amendments, which have been accepted by the Mover, to vote first. I shall put the first amendment of Sir Alladi Krishnaswami Ayyar as it has been actually moved.


4.26.140
President
The question is:

"That at the end of Clause 20, the following be added (with the following changes in the provisions of Section 71 of the Government of India Act, 1935):

'For sub-sections (3) and (4) of Section 71 of the Government of India Act, 1935, substitute the following:

'The powers, privileges and immunities of the members of the Legislature of the Province shall be such as are declared by the Provincial Legislature and until so declared shall be those of the members of Commons of the House of Parliament of the United Kingdom and of its members and committees at the establishment of this Constitution".'"

The motion was adopted.

4.26.141
Alladi Krishnaswami Ayyar
I shall put Sir Alladi Krishnaswami Ayyar's next amendment.


4.26.142
President
The question is:

"That the following new clause be inserted after Clause 20:

'20-A. (1) the validity of any proceedings in a Provincial Legislature shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or other member of a Provincial Legislature in whom powers are vested by or under this Act for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers'."

The motion was adopted.

4.26.143
President
The question is:

"That the clause, as amended by these two amendments, be passed."

Clause 20, as amended, was adopted.

4.26.144
President
We now come to Clause 21.

CLAUSE 21

4.26.145
The Honourable Sardar Vallabhbhai Patel
I ask permission that Clause 21 may stand over for the present because there is a similar provision in Clause 16 of the Union Constitution and both may be considered together. There being two similar provisions in two constitutions, and this being a controversial matter, there is likely to be some confusion and I therefore suggest that this may be kept over and both considered together.


4.26.146
President
Clause 21 stands over for consideration at a later time. We come to Clause 22.

CLAUSE 22

4.26.147
The Honourable Sardar Vallabhbhai Patel
Sir, I move:

"The Provincial Legislature may from time to time make provisions with respect to all or any of the following matters, that is to say,--

(a) the delimitation of territorial constituencies;

(b) the qualifications for the franchise and the preparation of electoral rolls;

(c) the qualifications for being elected as a member of either House;

(d) the filling of casual vacancies in either House;

(e) the conduct of elections under this Constitution and the methods of voting thereat;

(f) the expenses of candidates at such elections:

(g) corrupt practices and other offences at or in connection with such elections;

(h) the decision of doubts and disputes arising out of or in connection with such elections;

(i) matters ancillary to any such matter as aforesaid:

Provided:

(1) that no member of the Lower House shall be less than 25 years of age and no member of the Upper House shall be less than 35 years of age;

(2) that the superintendence, direction, and control of elections, including the appointment of election tribunals shall be vested in the Governor acting in his discretion."


4.26.148
The Honourable Sardar Vallabhbhai Patel
Probably there will be a motion for deletion of Proviso(2) which I will accept because other provision has been made for it. Sir, I move this proposition for the acceptance of the House.


4.26.149
Sri K. Santhanam
Sir, I move:

"That in Clause 22 after the words 'from time to time' the following be inserted' 'in accordance with the procedure for amending the Provincial Constitution'."


4.26.150
Sri K. Santhanam
As the clause now stands, by a mere ordinary law such important matters as the delimitations of territorial constituencies and the qualifications for the franchise and the preparation of electoral rolls can be altered. It will mean that by a snatch vote a simple majority can upset the entire basis of the Provincial Constitution; it can gerrymander constituencies and make changes so that it can dissolve the House and come back to power, in a larger majority. Therefore some restrictions are needed. I suggest these changes should be made, only in accordance with the procedure for amending the Provincial Constitution. That procedure for amending the Provincial Constitution has not been laid down in the present Report, but I have tabled a clause for that purpose. The procedure may contain various provisions. Certain parts of the provincial Constitution may be changed by one procedure and certain other parts may require a more elaborate procedure. Whatever that may be, these matters should be changed only by the procedure specially prescribed in that behalf. They should not be changed by ordinary legislation. I hope therefore that this amendment will be accepted by the House.

(Dr. P. S. Deshmukh did not move his amendment)

4.26.151
Sri K. Santhanam
: Sir, I move:

"That in item (b) of Clause 22, for the words 'the qualifications for franchise' the following be substituted:

'Limitations to adult franchise on grounds of non-residence of personal disabilities not based on birth, race, religion, or community'."


4.26.152
Sri K. Santhanam
Sir, adult franchise is the basis of the whole scheme. My amendment simply makes it clear that the qualification for the franchise does not mean any power to bestow this on any one. Even for adults there may be some qualification necessary especially on grounds of residence and there may be personal disabilities like insanity or life in prison and all that. I want to provide that apart from these there should be no restriction on adult franchise.

(Messrs. Gokulbhai D. Bhatt and V. C. Kesava Rao did not move their amendments.)

4.26.153
President
I understand that the Mover of the Resolution is in favour of accepting the motion of Mr. Khurshed Lal to delete the second proviso to Clause 22. Would some one else move it in the absence of Mr. Khurshed Lal?


4.26.154
With your permission I shall move it, Sir. I move the amendment to delete the second proviso to Clause 22. The reason for its deletion is that in the Union Constitution Committee's Report there is going to be provision to set up an All-India Election Tribunal which will have the power of superintendence, direction and control of all elections not only Federal, but also Provincial. Therefore there is no need to give this power to the Governor to act in his discretion.

(Messrs. Kala Venkata Rao and K. Santhanam, did not move their amendments.)

4.26.155
Mr. H. V. Kamath
My amendment suggesting a new proviso to Clause 22 seeks to take this vital issue of separate electorate and weightage out of the purview and jurisdiction of Provincial Legislatures. But I am told that the Report of the Advisory Committee on Minorities is dealing with this and other cognate matters. Therefore until their report is taken into consideration there is no point in moving my amendment. I do not therefore press it. It runs as follows:

"That the following be inserted as proviso (3) to Clause 22.
'that no Provincial Legislature shall at any time make provision for separate electorates or for weightage to any particular class or community in the Provincial Legislature and other elective bodies of the province'."

(Shri T. A. Ramalingam Chettiyar and Shri Kala Venkata Rao did not move their amendments.)
(Prof. Shibbanlal Saksena did not move his amendment.)

4.26.156
Seth Govind Das
Sir, there are two amendments in my name. One is number 4 and the other No. 5 in the Supplementary List No.3. I am not moving No. 4. I want to move No. 5 which runs:

"That after proviso (2) in Clause 22 the following new proviso be added:
'(3) that all provisions under Clause 22(a) to (i) will be made on the principles of and in conformity with the instructions laid down in the Schedule annexed hereto so as to maintain uniformity in these matters throughout the Indian Union'."


4.26.157
Seth Govind Das
I feel there is no need to say much about it. I only wish that all the items from (a) to (i) given in this clause should be uniformly applied throughout India. When India as a whole is going to be one Union, the application of these clauses for one province in one way and for another in a different way, would not be proper. That is why I have submitted this amendment and I hope that Sardar Patel will accept it.


4.26.158
President
There are two amendments by Mr. Kala Venkata Rao. (There was no reply). All the amendments have been moved Those who wish to speak either on the resolution or on the amendments may do so now.


4.26.159
The Honourable Sir N. Gopalaswami Ayyangar
Mr. President, I wish to say a few words on the first amendment that was moved by Mr. Santhanam. I find some difficulty in fitting it in. His proposal is that in Clause 22 after the words "from time to time" the following words be inserted: "in accordance with the procedure for amending the Provincial Constitution." There is a good deal of substance in what he said on the merits of the amendment itself. Apparently, his scheme is that the first provisions which are to be enacted in connection with the matters mentioned in the clause should find a place in the Constitution itself, either in the body of the Constitution or in the schedules to the Constitution. If these schedules are framed, then you can give the provincial legislature power to amend these schedules. He apparently wants to safeguard against amendments being carried out in haste or perhaps in pursuance of ideas which may have had sway for the time being but perhaps would not be quite acceptable in the long run. So he wants to provide that amendments, to such schedules to the constitution should be made by the provincial legislature only according to the procedure prescribed for amending the provincial constitution. I can understand that. But what this clause says is that the first laws relating to these matters are to be made by the provincial legislature. "The provincial legislature may from time to time make provisions with respect to all or any of the following matters." If you allow the provincial legislature to make the first provisions in regard to these matters without placing, I take it, any particular restrictions on its powers, it does not stand to reason that you should provide that amendments to such provisions should be made only according to the procedure prescribed for amending the constitution. I think, Sir, that this clause will have to be redrafted in order to carry out his purpose. We can say that the first provisions with regard to these matters should find a place in the schedules to the constitution and then you can give powers to the provincial legislature to amend these schedules according to the procedure prescribed for amending the provincial constitution.


4.26.160
The Honourable Sir N. Gopalaswami Ayyangar
There is also another difficulty. I believe the draft Model Constitution does not provide for any procedure for amending the Provincial Constitution. That also we may have to provide for. I would suggest that so far as Mr. Santhanam's amendment is concerned, we hold it over so that we may produce a draft which will carry out the purpose Mr. Santhanam has in view. I feel that the amendment as moved by him should not for the present be accepted but that we should take it up later on.


4.26.161
Alladi Krishnaswami Ayyar
Sir, I support the suggestion of Sir Gopalaswami Ayyangar that the consideration of this clause might lie over. If the first delimitation of constituencies is by ordinary law, it stands to reason that the later changes also may be by ordinary law, but on the other hand if the delimitation of constituencies is provided in the constitution, later amendments will be constitutional amendments.' Therefore if in the schedule you indicate how exactly the constituencies are to be delimited, then of course provision will be necessary that later changes will be by constitutional amendments. Under the circumstances, I would request Mr.Santhanam not to press his amendment at this stage.


4.26.162
M. Ananthasayanam Ayyangar
I do not find any insurmountable difficulty for which my friends there are trying to find a solution. The existing legislature will continue to function even after the constitution comes into force under the transitional provisions contained in Part IV. Otherwise immediately on the constitution coming into force it will not be possible to allocate the territorial constituencies and allow elections to take place. In the meanwhile demarcation of territorial constituencies will have to be made through the legislature in existence. The present legislature will continue under Clause 2 of Part IV. "There should be similar provisions, mutatis mutandis, in respect of the Council of Ministers, the Legislative assembly and the Legislative Council (in Provinces which decide to have an Upper House)." The previous provision is: "Any person holding office as Governor in any province immediately before the commencement of this Constitution shall continue a such and shall be deemed to be the Governor of the province under this Constitution until a successor, duly elected under this constitution, assumes office." Therefore the legislature will continue and that legislature can be entrusted with the duty of delimiting constituencies. Mr. Santhanam'samendment may be accepted without any difficulty about the initial delimitation of constituencies. That can be safely entrusted to the legislature.


4.26.163
President
Does any other member wish to speak on the resolution or the amendment?


4.26.164
Mr. M.S. Aney
I would like to speak on the second amendment of Mr. Santhanam.


4.26.165
President
It is 6 o'clock and if there is any long discussion, we might adjourn. I would like to know whether there are any other members who want to speak.


4.26.166
Some Honourable Members
Yes.


4.26.167
President
Then, before we adjourn, I would like to make one or two announcements. This morning's newspapers published the news that the aeroplane in which one of our Honourable Members, Mr. Jagjivan Ram and his two secretaries were travelling crashed near Basra. I am glad to be able to inform Honourable Members that the, injury which Mr.Jagjivan Ram has sustained is not of a very serious character, although I understand there has been a fracture of one of the knee caps. I am told it will not take very long for him to recover. Let us hope that he will be able to come back soon and participate in our deliberations.


4.26.168
President
It was represented to me by some members that they would like to have a little more time for sending in amendments to the Union Constitution Committee's report and as we have not finished the consideration of the Provincial Constitution, I am prepared to give a little more time for them to send in their amendments, say, by tomorrow evening 2 o'clock so that the amendments could be printed and circulated before Monday 2 p.m.


4.26.169
President
There is one another announcement. From Monday next I propose that we sit at 10 o'clock and go up to 1 p.m. We shall now adjourn.


4.26.170
The Minorities Sub-Committee would meet on Monday. 10 o'clock was the time announced.


4.26.171
President
It has been represented to me by several members that while this House is sitting it will be most inconvenient for the members who are members also of the Minorities Sub-Committee to be sitting and they would not find time to devote to both the sessions which will have to be held from day to day. This meeting of the Minorities Sub-Committee has already been announced, but in view of this representation, I should like to postpone it for some days and would fix another date which will suit all the members. The exact date will be announced after consulting the convenience of all the members.


4.26.172
The Honourable Sardar Vallabhbhai Patel
If the Minorities Sub-Committee meeting is postponed, the Advisory Committee's report and everything else will have to be postponed. They should be allowed to adjust their time and have their meetings in the afternoon.


4.26.173
President
I understand that other members have got engagements in the afternoon. It will, be very difficult for the members to attend. In any case we cannot have it on Monday at Ten. We shall fix some other date. The Minorities Committee will have to sit in the afternoon.


4.26.174
Jawaharlal Nehru
May I know why 10 o'clock is fixed?


4.26.175
President
For various reasons to suit the convenience of members.


4.26.176
Jawaharlal Nehru
It is neither here nor there--either earlier or later.


4.26.177
President
I thought that most of the members considered it convenient.


4.26.178
President
We shall announce another time for the meeting of the Minorities Sub-Committee. Then we meet on Monday at 10 o'clock.

The Assembly then adjourned till Ten of the Clock, on Monday the 21st July, 1947.

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


CONDOLENCE OVER THE ASSASSINATION OF GEN. AUNG SAN AND HIS COLLEAGUES IN BURMA

4.27.2
President
Honourable Members received with the greatest grief the sad news of the tragic circumstances in which General Aung San and his colleagues lost their lives as a result of a dastardly outrage the day before yesterday. The news must have shocked Indians particularly because our relation with Burma have been of a very friendly character even after Burma was separated. General Aung San was one of those men who had brought Burma to the door of independence and that be should lose his life and that this colleagues should lose their lives at the hands of their own countrymen is tragic beyond words.


4.27.3
President
I do not know when the world will come to realise that violence, and violence particularly of this type can never solve any problem of the world. If this outrage is any indication of a deep-laid plot, Burma is in, I would fear, for very difficult times. But we have hopes that the Government there which has been brought into power with the overwhelming support of the people will be able to control the situation and that the people of Burma will be able to enjoy the fruits of that independence which those who have lost their lives have just won for her.


4.27.4
President
I hope the House will permit me to convey our sense of sorrow and our condolences to the people of Burma, to the members of the Government there as also to the members of the bereaved families I hope Honourable members will express their assent by standing in their places.

The Assembly assented, the members standing in their places.

4.27.5
Gokulbbai Daulatram Bhatt
Mr. President, with your permission, I would like to ask one or two questions. For how many days more will this Session of the Assembly continue? Are we going to meet again in August? I wish to know it in order to facilitate my programme.


4.27.6
President
I hope that the Assembly will conclude its session within this month, as we have before us one more report of another Committee to consider after we finish the report of the Committee When the Assembly finishes discussions over that report, the great task before us, requiring a major portion of our time would have finished, Besides that, one or two resolutions are also expected. I hope they will not take a long time. Hence I think that thee business of this sitting would be finished by the end of this month. It is possible that 'the members may have to come again on the 15th August.

REPORT ON THE PRINCIPLES OF A MODEL PROVINCIAL CONSTITUTION--contd.
CLAUSE 22

4.27.7
President
We shall now take up the discussion of the clause that we were discussing that day. The amendments have been moved and the motion as well as the amendments are open to discussion.


4.27.8
President
I would like to know if there is any other amendment of which notice has been given, which had not been moved. My own impression is that all amendments have been moved.


4.27.9
President
Mr Aney, you wanted to speak on this?


4.27.10
M.S. Aney
Mr. President, Sir, I only wanted to make one observation with regard to the second amendment moved by Mr. Santhanam to Clause 22 that it was, in my opinion a superfluous amendment. He wants to make sure that any rules that may be made will not infringe the primary principle which has been already provided for viz adult franchise, but I believe it is a well known principle that under the rule making powers those who have to frame the rule have to see that nothing is introduced into the rules which is inconsistent with the principles already embodied in the Statute itself. In view of that and in view of the fact that adult suffrage has already been provided for by a distinct provision in the Statute the second amendment which he has proposed appears to me to be unnecessary.


4.27.11
K. Santhanam
With regard to the objection raised by Sir N. Gopalaswamy Ayyangar, I have given notice of an amendment which may also be taken up with this. It is in the new supplementary list. I would like to state that no provision has been made for 'lie first election. Unless something is made, that clause is difficult to apply and so I have tabled an amendment as follows:


4.27.12
K. Santhanam
"That the following be inserted at the beginning of Clause 22:

'For the first election to the Provincial Legislature under this Constitution. the constituencies, qualifications of voters and other particulars shall be such as may be prescribed, in the Scheduled to this Constitution,'"


4.27.13
K. Santhanam
Then the clause will run as given and then my amendments will come. I move this amendment as I do not think there is any point to be cleared about it.


4.27.14
President
Does anyone wish to speak about the clause or any of the amendments that have been moved?


4.27.15
President
I will put the amendments to vote.


4.27.16
President
This is Mr. Santhanam's amendment.

"That the following be inserted at the beginning of Clause 22:

'For the first election to the Provincial Legislature under this Constitution, the constituencies, qualification of voters and other particulars shall be such as may be prescribed, in the Schedule to this Constitution'.”


4.27.17
Vallabhbhai J. Patel
I accept Mr. Santhanam's as well as Seth Govind Das's amendment.


4.27.18
President
I put Mr. Santhanam's amendment to vote.

The amendment was adopted.

4.27.19
President
Mr. Santhanam's second amendment is as follows:

"That in Clause 22 after the words 'from time to time' the following be inserted:

'in accordance, with the procedure for amendment the Provincial Constitution".

The amendment was adopted.

4.27.20
President
There is another amendment by Mr. Santhanam as follows :

"That in item (b) of Clause 22. for the words 'the qualifications for the franchise' the following be substituted:

'Limitations to adult franchise on grounds of non resident or personal disabilities not based on birth, race, religion or community'."

The amendment was adopted.

4.27.21
President
There is another amendment moved by Mr. Munshi as.. follows:

"That the second proviso to Clause 22 be deleted."

The motion was adopted.

4.27.22
President
There is another amendment moved by Seth Govind Das as follows:

"That after proviso (2) in Clause 22, the following now proviso be added:

(3) that all provisions under Clause 22(a) to (j) will be made on the principles and in conformity with the instructions laid down in the schedule annexed hereto as to maintain uniformity in there matters throughout the Indian Union'."

The amendment was adopted.

4.27.23
President
Now I put the clause, as amended to vote.

Clause 22, as amendment, was adopted.
CLAUSE 23

4.27.24
Vallabhbhai J. Patel
Sir, I move Clause 23:

"(1) If at any time when the Provincial Legislature is not in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require.

(2) An ordinance promulgated under this clause shall have the force and effect as an Act of the Provincial Legislature assented to by the Governor but every such ordinance-

(a) shall be laid before the Provincial Legislature and shall cease to operate at the expiration of six weeks from the re assemble of the Provincial Legislature, or if before the expiration of that period resolutions disapproving it are passed by the Legislature, upon the passing of the second of those resolutions: and

(b) may be withdrawn at any time by the Governor.

(3) If and in so far as an ordinance under this clause makes any provision which the Provincial Legislature would not under this Constitution be competent to enact, it shall be void."


4.27.25
Vallabhbhai J. Patel
Ordinance making power has been subjected to much criticism; but by long experience it has been found that it is necessary to have such provision in the case of an emergency when the Legislature is not sitting and there is not enough time to call the Legislature and there is immediate necessity of passing an urgent legislation.


4.27.26
Vallabhbhai J. Patel
I do not think there are many amendments to this clause. I move this proposition for the acceptance of the House.

(Messrs. Ajit Prasad Jain, H. V. Pataskar, R. K. Sidhwa, Shibbaydal Saksena and M. Ananthasayanam Ayyangar did not move their amendments.)

4.27.27
Naziruddin Ahmad
Sir, I beg to move that the following new clause be added after Clause 23:

"24. All matters incidental to or consequential upon the Clauses above shall be deemed to be part of, and included in the said clauses."


4.27.28
Naziruddin Ahmad
Sir, my object in moving this amendment is to remove all technical difficulties that may arise at the time of the drafting of the final bill. We have accepted in the House a large number of amendments in the original Report and it is just possible that there may be some gap or omission here and there, met with at the time of the final drafting. I therefore propose this amendment so as to remove any such technical difficulties.


4.27.29
President
Mr. Naziruddin, I think yours is not an amendment but the addition of a new clause. We had, I think, better dispose of Claim 23, and then go on to this new clause.


4.27.30
President
No amendment has been moved to this clause, Clause 23. If any member wishes to speak about it, he can do so now.

(No member rose to speak.)

4.27.31
President
I shall now put the motion:

"23. (1) If at any time when the Provincial Legislature is not in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require.

(2) An ordinance promulgated under this clause shall have the same force and effect as an Act of this provincial Legislature assented to by the Governor, but every such ordinance-

(a) shall be laid before the Provincial Legislature and shall case to operate at the expiration of six weeks from the re assemble of the Provincial Legislature, or, if before the expiration of that period resolution disapproving it are passed by the Legislature, upon the passing of the second of those resolution; and

(b) may be withdrawn at any time by the Governor.

(3) If and in so far as an ordinance under this clause makes any provision which the Provincial Legislature would not under this Constitution be competent 'to enact, it shall be void."

The motion was adopted.

4.27.32
President
Mr. Naziruddin Ahmad will please move his clause.


4.27.33
Naziruddin Ahmad
Sir, I beg to move that the following new clause be added after Clause 23:

"24.All matters incidental to or consequential upon the clauses above shall be deemed to be part of and included in, the said clauses."


4.27.33
Naziruddin Ahmad
Sir, I submit that this clause would be necessary to remove technical difficulties at the time of the drafting. We have introduced some new amendments in this House, without perhaps much notice. It is, therefore, just possible that there may be gaps here and there, I mean, unintentional gaps or technical difficulties. So at the time of drafting a point may arise that particular things i.e. things incidental to certain amendments adopted here or consequential upon those amendments-are not meant to be included in the Report. It is for this reason that I have proposed this new clause. I do not know of any gaps, apparent gaps, just now, but all the same I have brought forward this clause so that if there is any gap or omission, then this clause may be helpful to the draftsmen. With these few words I submit it for the acceptance of this House.


4.27.34
President
A new clause, Clause 24, has been proposed to be added here. Personally I have not been able to quite understand the effect of this additional clause. If any member wishes to speak about it. I shall be obliged if he would enlighten me on it.


4.27.35
M. Ananthasayanam Ayyangar
Sir, I do not think there is any need for such a new clause as this because we are here only approving the general principles. Things ancillary, incidental, supplementary, consequential, etc, will naturally have to be added when the final drafting is done. The clause now proposed is vague. With it, it is not enough to meet the situation, without it we are none the worse of. In any case it need not be considered or voted upon now.


4.27.36
President
As there is no other speaker, I shall put the motion to House.


4.27.37
President
The motion is that the following new clause be added after Clause 23.

"24 All matters incidental to or consequential upon the clauses above shall be disputed the part of, and included in, the said clauses."

The motion was negatived.

4.27.38
President
There is notice or another additional clause by Mr. Santhanam. Will Mr. Santhanam please move it


4.27.39
K. Santhanam
Sir, I beg to move that after Clause 23 the following new clause be inserted :-

"24 The Governor of a province in which the legislature consists of a single chamber shall have the right to return at his discretion a Bill passed by the legislature for reconsideration and may suggest amendments. If the Bill is passed again by the legislature with or without, amendments by an absolute majority he shall assent to it."


4.27.40
K. Santhanam
This is an amendment of some substance. As things stand in the drift of the model constitution, if a legislature passes a law by a snatch vote or by a very narrow majority it will have to become law immediately because there is no power of veto or any other power vested in the Governor. Sir, I myself do not want any power of veto for the Governor; I want full autonomy and full responsible government in every province. But I want to give the Governor the power to send a Bill passed by the provincial Assembly for reconsideration. If after reconsideration the Assembly passes it by an absolute majority he will have no power of veto but will have to give to his assent to it.


4.27.41
K. Santhanam
Sir, I have limited this power only to those provinces which will have unicameral legislatures because where there are two chambers the revisory function will belong to the Upper House. I have also vested this power in the Governor's discretion. Obviously a ministry which rushes a Bill through by a narrow majority will not care to advise reconsiderations and so it should be a power in the Governor's discretion.


4.27.42
K. Santhanam
Sir, I move.


4.27.43
Lakshmi Kanta Maitra
Sir, I am afraid this amendment cuts at the very root of the democratic principle which forms the basis of this constitution. What after all is Mr. Santhanam's point? It is that if in any province with a unicameral legislature a Bill is passed by a narrow majority the Governor should be invested with additional powers--which are to be exercised by him in his discretion to make suggestion to the legislature to reconsider the whole situation and then come to a decision. Now I ask the House to consider the result of such a procedure. In my opinion the inevitable result would be that the Governor would be antagonised and would straight away come into conflict with the popular ministry which would be functioning. I do not see any necessity for it; on the other hand if any measure has been passed in inordinate haste and without due consideration and discrimination, the legislature surely is not debarred from repealing it or amending it at subsequent sessions, if it is not the product of mature deliberation. So I feel that to invest the Governor with powers like this would be directly to trench upon the independence and responsibility of the legislature. It will unnecessarily bring the Governor into conflict with the ministry and I feel that the motion should not be supported..


4.27.44
N. V. Gadgil
Sir, I desire to make a suggestion which need not be incorporated here and now but may be considered as the proper stage later on. I suggest that there should be a time-limit within which the Governor should send a Bill back with or without amendments, failing which it should be taken automatically that he has assented to the Bill. The American constitution contains this kind of provision and it should be embodied here.


4.27.45
Lakshmi Kanta Maitra
While laying down a time-limit, does Mr. Gadgil accept the principle that the Governor will be in a position to reconsider the whole situation over the head of the legislature?


4.27.46
M. Ananthasayanam Ayyangar
Sir, I consider this a very whole-some provision. I do not know why my friend Pandit Maitra has any, doubt as to the intention of Mr. Gadgil in supporting this amendment. He accepts the principle and then says that there should be a time-limit. In the American constitution a time-limit of ten days is fixed. There must be a period within which the Governor must consider the matter and send it back for reconsideration of the House. After all a sufficient number of members might not have been present, there may be important matters involved relating to minorities and other matters where consideration at some greater length should have been bestowed on a Bill instead of its being through. The Governor would have to be watchful at every stage; it is not as if he would actually try to interfere at every stage with a popular ministry. He will be on his guard; has will be the President of the Council of Ministers from time to time and will exercise a wholesome influence. If in spite of all this a situation suddenly arises where a particular section wants to rush a Bill through let him put his check upon that and send it for reconsideration of the legislature. There are similar provision in the Government of India Act. I can assure my friend Pandit Maitra that a popular Governor would not try to interfere except in very special cases. I support the amendment.


4.27.47
Tajamul Hussain
Sir, I rise to support the amendment. What would be the position if a Bill is sent for the assent of the Governor and he is not satisfied with the provisions of the Bill? Ordinarily a Governor who is selected on adult franchise will not interfere with any measure which is passed by the legislature. But in case he is not satisfied with the Bill is have to sign it against him conscience? Or is he to send it back to the House with his amendments or make a total rejection? I think under the English constitution if a Bill passes through the House of Commons it goes to the House of Lords and is then sent to the King for his assent. In practice the King always assents though he has the right to reject a Bill in which case it goes back to the Houses of Parliament. If it passes again without any amendments and is again sent to the King for his assent he must sign it or he must abdicate. Similarly if the Governor is given power to refuse his consent or if he sends the Bill with his amendments it is for the provincial legislature to reconsider he Bill in the light of the Governor's suggestions. If they pass the Bill again in its original form the Governor must sign it or he must got out. Therefore I support the amendment that a chance must be given to the Governor and that he should not act merely as a figurehead.


4.27.48
Ramnarayan Singh
Sir, I strongly support the amendment. We have provided in the constitution for an elected Governor and so I do not see why people should be so afraid of him that they do not want to give him any powers. From time to time it is necessary that the Governor should take the initiative and there will be no harm if any legislation is reconsidered. I appeal to the House to give some power to the Governor so that he may be of some use to society, otherwise it is better to get rid of the Governor altogether Sir, I think this amendment should be accepted by the House.


4.27.49
Hussain Imam
Mr. President, I intervene in this debate in order that the practice might be established, when things of this nature are being discussed of advising the Constituent Assembly on the practice all the world over. I regret, Sir, at this moment many of my colleagues have not before them Constitutions of the world. They have also probably not read the exhaustive notes which have been circulated by the staff of the Constituent Assembly at the instance of the Constitutional Adviser.


4.27.50
Hussain Imam
The practice in U.S.A., to give only one instances is that the President has the power, in spite of there being dual chambers--the Senate and the House of Representatives to vote a Bill but that the veto can be overridden if a majority of two-thirds of both Houses reject it. In addition to that he has another veto. which is a pocket veto, by means of which he can disallow a Bill if it is passed within ten days of the sittings of the House. There are any number of instances to indicate what the world is doing. It will be very useful if the practice could be established of the Honourable the President getting the Constitutional Adviser to indicate, on such controversial issues, what the practice in other parts of the world is. No doubt the Constitutional Adviser has issued a book to us. It will be very useful to us. Still there is room for more information on world practice.


4.27.51
Hussain Imam
I think Mr. Santhanam's amendment is very essential. He has urged in this amendment that it will have effect only in those provinces in which the legislature consists of a single chamber. The Mover thinks that where there is a second chamber, it will act as a brake on the Lower House. But we know. Sir, that there is need for further clarification where, if there is any difference between the two Houses there are different methods of tackling it in different Countries. In regard to Money Bills the practice in some places is that the Second Chamber is made hors de combat. It has no power. In regard to other Bills, in some, of the Constitutions, the Second Chamber can vote finally, In other Constitutions, they have to sit together and come to a decision jointly, the Second Chamber's votes being usually overridden by the majorities in the Lower House. But what I was saying was that it is wrong on our part still to dream that we will be having Governors appointed by an outside authority. In future, the Governors will not be there to serve the cause of the powers-that-be. The Governor will be our man elected by adult franchise. It. is therefore necessary that you must give him full trust and confidence. If you place your confidence in him and if you provide, as suggested by Mr. Santhanam these checks and balances, you will arrive at a happy mean in which there will be one House ready to set right matters if the other goes wrong. This is the only method by which we can avoid pitfalls. I support the amendment.


4.27.52
M. A. Muthiah Chettiyar
Sir I am very glad that Mr. Santhanam has moved this amendment and that there is the prospect of the House accepting it. But my happiness is mitigated by the fact that the amendment is restricted in its application to Provinces where there is no second chamber.


4.27.53
M. A. Muthiah Chettiyar
Sir, the experience that we have of second chambers where they exist does not warrant the belief that they are a sufficient check against hasty legislation. In the last few years the Lower House has rushed through legislation with such haste that many mistakes have crept in and there have been many occasions when the leaders of the Lower House have requested the members of the Upper House to correct and send beck the Bill to the Lower House. All this, will be avoided if the Lower House is given a chance to reconsider the matter.


4.27.54
M. A. Muthiah Chettiyar
There are many reasons necessitating this opportunity or reconsideration. Sir on many occasions all the Standing Orders are suspended and legislative measures published in the Gazette only the previous evening, ace carried through the Legislature the next morning in the twinkling of an eye. They say that an emergency has arisen and that if the legislature does not pass the measure before it adjourns, the Governor would have to issue an Ordinance.


4.27.55
M. A. Muthiah Chettiyar
For these reasons I do suggest that we should go a step further and remove from the amendment the reference to single chambers so that this check may be there even in Provinces where there are two chambers.


4.27.56
M. A. Muthiah Chettiyar
With regard to the possible misuse of the power by the Governor I am glad that my hon. friend Mr. Hussain Imam has pointed that the Governor is not going to be a stranger. He is going to be a provincial man or an Indian from another province. That being some may be expected to gauge public opinion. If in his opinion he feels that the legislature is rushing through a measure against public opinion, he may be expected to send back the measure for reconsideration. There may be occasions when legislators may not have time to study any piece of legislation brought before them and they will be only glad to get a chance to look at it once again Press and public opinion in the country would play a great part in shaping the views of the Governor. If the governor acts wrongly he will be told so by the Ministry and by public opinion. I do not think the Governor will misuse the power to send back legislative measures. I hope that the Mover and the leaders of the parties will find it possible to remove this reference to single chamber and provide for this check even in places where there are two chambers.


4.27.57
B. Pocker Sahib Bahadur
I have great pleasure in supporting this amendment. At the same time I must express; my dissent from the view of the previous speaker that this should be extended even to cases where there is a bicameral legislature. The Upper House is a sufficient check against hasty legislation. Therefore, in the Provinces in which there is an Upper House it is not necessary that this power should be given to the Governor. I support the amendment.


4.27.58
Naziruddin Ahmad
I beg to support the amendment. Sir, in the speeches delivered here in this connection, one aspect of the thing has not been mentioned. It is that in some cases legislation may be ultra vires irregular or illegal in some respects. In such cases, the Minister who has sponsored such legislation may himself desire to reconsider the matter. A provision like this would give, him an opportunity to reconsider his attitude when he finds that public opinion is against the measure. It is inconceivable that a Governor, under the new Constitution, would act in an improper manner. In the circumstances power like this may be very much desired by the Ministers themselves. I believe that a power like this exists in the Government of India Act of 1935 much of which has been copied in this Report. The Government of India Act of 1935 has now been admitted to be a model legislation. As I have already submitted the Governor should be given this power in provinces where there is no second chamber and he may be expected to act in a beneficial manner.


4.27.59
Mahboob Ali Baig Sahib Bahadur
Mr. President, the other day we accepted a clause empowering provinces to choose whether they would have a second chamber or not, implying thereby that this House would accept a second chamber in the case of those provinces who choose to have it. How could we deny in these circumstances the same restraining influence to provinces which choose to have only one chamber? Either you must allow provinces to have second chambers or you must allow that restraining influence to the Governors for remitting bills for reconsideration in the case of provinces which select only one chamber. Sir in the case of provinces which elect to have only one chamber, the Governor must have this restraining influence to check hasty legislation, and we cannot deny to such provinces a provision of this kind. This is consistent, logical and necessary. Therefore I support the amendment.


4.27.60
K. T. M. Ahmed Ibrahim Sahib Bahadur
Mr. President, Sir it, is absolutely necessary for the Governor to have this power to prevent hasty legislation. I submit that his power is not inconsistent with democratic principles. In the Union Constitution, there is a provision a the effect that the President should have the power of returning bill which have been passed by the National Assembly for reconsideration within a period of six months. What the Union Constitution seeks to give to the President of the Nation must in justice be given to, me Governors of provinces. There is nothing undemocratic about it.


4.27.61
K. T. M. Ahmed Ibrahim Sahib Bahadur
Further., Sir, the Governors of provinces are invested with very great powers, and the Provincial Constitution Committee says that the Governors will not abuse those powers as they are elected Governors. Then, Sir, it is obvious that if the President of the Union who is elected by a limited franchise is given power to send back bills to the National, Assembly for reconsideration, it is in the fitness of things that the Governors who are elected on adult franchise should be given the same power. I am therefore glad to support the amendment moved by Mr. Santhanam.


4.27.62
Vallabhbhai J. Patel
Sir, I am prepared to accept this amendment of Mr. Santhanam with one change. I suggest that the last four words "by an absolute majority" should be dropped.


4.27.63
Vallabhbhai J. Patel
It was suggested that this should also cover the provinces where there are two chambers. I think it is not necessary because, where there are two chambers, if they differ, the case will come for reconsideration at a joint session. Therefore it is not necessary.


4.27.64
President
Mr. Santhanam, do you wish to say anything in reply?


4.27.65
K. Santhanam
I will just say that I accept the suggestion made by Sardar Patel, but I wish make one remark. When a bill is sent. back for reconsideration, both the parties will marshal their forces, and unless the ministry has got 51 per cent., it is likely to be defeated. It does not matter whether the words "by an absolute majority" are there or not. The effect will be just the same.


4.27.66
Lakshmi Kanta Maitra
I do not know whether the amendment moved by Mr. Santhanam has been accepted by the House or not. It is not clear to me--I think it is not clear to many members of the House as to what the decision of the House is with regard to the words "by an absolute majority".


4.27.67
President
What are you speaking about, Mr. Maitra?


4.27.68
Lakshmi Kanta Maitra
I want to know whether you are going to put the vote of the House the deletion of the words "by an absolute majority".


4.27.69
Vallabhbhai J. Patel
Mr. Santhanam has accepted the amendment.


4.27.70
President
How does it stand now?


4.27.71
Vallabhbhai J. Patel
Without any reference to the remarks made by Mr. Santhanam, I accept his amendment but with the deletion of the words "by an absolute majority".


4.27.72
B.R. Ambedkar
The sentence will read now, "If the Bill is passed again by the legislature with or without amendments, he shall assent to it".


4.27.73
President
Then I put Clause 24 to vote. The resolution as now amended, with those four words "by an absolute majority" omitted, will now read:

"The Governor of a Province in which the legislature consists of single chamber shall have the right to return at his discretion a Bill passed by the legislature for reconsideration and may suggest amendments. If the Bill this passed again by the legislature with or without amendments, he shall assent to it."

The motion was adopted.
Part II--The Provincial Judiciary

4.27.74
President
We shall go to Part II-The Provincial Judiciary.


4.27.75
Vallabhbhai J. Patel
Sir, I move:

"1. The provisions of the Government of India Act, 1935, relating to the High Court should be adopted mutatis mutandis; but judges should be appointed by the President of the Federation in consultation with the Chief Justice of the Supreme Court, the Governor of the Province and the Chief Justice of the High Court of the Province (except when the Chief Justice of the High Court himself is to be appointed).

2.The judges of the High Court shall receive such emoluments and allowances as may be determined by Act of the Provincial Legislature and until then such as are prescribed in Schedule........

3.The emoluments and allowances of the judges shall not be diminished during their term of office."


4.27.76
Vallabhbhai J. Patel
This clause proposes to incorporate the provisions of the 1935 Act regarding High Courts, but regarding the appointment of the Judges it provides that the appointment shall be made by the President of the Federal Legislature in consultation with the Chief Justice of the Supreme Court and the, Governor of the Province. With so man checks and counter checks these appointments place the High Court Judges beyond any influence of the parties or any other influences and beyond any suspicion or doubt of such a nature. There is thus enough guarantee provided for the independence of the Judiciary. The other two clauses are purely consequential relating to pay and allowances for which I hope there are no amendments. I therefore move the proposition for the acceptance of the House.

(Dr. Subbarayan, Mr. Mallayya, Mr. Ramalingam, Chettiar and Seth Govind Das did not move their amendments.)

4.27.77
President
Then there is no amendment to this clause. Does any one wish to say anything about this clause?


4.27.78
Alladi Krishnaswami Ayyar
Mine is also an amendment.


4.27.79
President
You may move it at this stage.


4.27.80
Alladi Krishnaswami Ayyar
With your leave I propose to move the following amendment to Clause 1 in II.


4.27.81
Alladi Krishnaswami Ayyar
At the end of Clause 1 in Part II, add the following:

"Provided that--

(a) all the High Courts in the Union of India shall have the right to issue prerogative writs or any substituted remedies therefore throughout the area subject to there appellate jurisdiction;

(b) the restriction as to jurisdiction in revenue matters referred to in section 226 of the Government of India Act, 1935, shall no longer apply to the High Courts; and

(c) in addition to the powers enumerated in section 224 of the Government of India Act, 1935 the High Courts shall have powers of superintendence over subordinate courts as under section 107 of the Government of India Act, 1915."


4.27.82
Alladi Krishnaswami Ayyar
The object of these amendments is to remove certain patent and glaring defects in the jurisdiction of the High Court to get rid of anomalies and to provide an adequate and effective machinery for the enforcement of fundamental rights. Clause (a) of the amendment deals with prerogative writs or any substituted remedies therefore. The reference to substituted remedies is to enable a simple remedy by application for writs in accordance with the procedure obtaining in England under recent enactment's. Under the law as it stands the High Courts of Calcutta, Bombay and Madras have the right to issue prerogative writs within the limits of their ordinary original jurisdiction. The remedy by application was substituted for the Writ of Mandamus by the Specific Relief Act, but the remedy is confined to the presidency towns. There is no conceivable reason why a citizen outside the limits of the presidency town should be left to the dilatory remedy of an ordinary suit while a remedy by application to the High Court is available to a resident of the presidency town. In regard to the prerogative writ of habeas corpus, the Criminal Procedure Coda has enabled application of substituted remedy for habeas corpus being available throughout the appellate jurisdiction of the High Court. The Privy Council has recently held that the remedy by way of Certiorari enabling the High Court to remedy proceedings of judicial and quasi-judicial bodies acting in excess of jurisdiction is available within the presidency town. Clause (a) when passed will enable all the High Courts in the Union of Indian to exercise the jurisdiction in regard to these matters throughout the area subject to their appellate jurisdiction. The Clause also will provide an effective-remedy for the fundamental rights guaranteed under the constitution. Clause (b) is intended to remedy an anomaly in the jurisdiction of the High Court. The anomaly goes back to the days of Warren Hastings. Under the law as it stands there is no bar even to a district munsiff entertaining a suit which involved a right to revenue, but the High Courts are debarred from entertaining such suits. The other day the Federal Court while upholding the right of a litigant in every respect ruled that the suit field in the High Court was liable to be dismissed on the technical ground based on section 226 of the Government of India Act. The need for removing this bar on the jurisdiction of the High Court is universally felt by the profession and has been emphasisted in several statements of the High Courts in India. The last clause is intended to remedy a defect introduced by the Act of 1935 under which the High Courts were deprived of the powers of superintendence in certain respects- over the subordinate courts. This amendment I venture to state, has the universal support of the profession and I commend it your acceptance.


4.27.83
G. Durgahai
Mr. President, Sir, I wish to make it clear at the very outset that I stand here to support Clause 1 in Part II relating to the Provincial Judiciary. Sir, I wish to confine myself to that portion of the clause which lays down the procedure for the appointment of judges to the Provincial Courts. The clause runs on the following lines:

". ....the judges should be appointed by the President of the Federation in consultation with the Chief justice of the Supreme Court, the Governor of the Province and the Chief Justice of the High Court of the Province (except when the Chief Justice of the High Court himself is to be appointed)."


4.27.84
G. Durgahai
Sir, we see thus by the manner provided in this clause we introduce some kind of intervention on the part of an external authority in matters relating to the provinces and the Provincial Governments. I think this kind of intervention and this kind of procedure laid down providing for the necessity for an external authority is bound to provoke in the minds of some people at least the fear that this is a sort of encroachment over the jurisdiction of the Provincial Government as opposed to the principles of provincial autonomy. But, Sir I confess myself was holding this view for some time, whether it would not be desirable to leave this matter to the discretion of the Provincial Governments, namely the Governor acting on the advice of his Ministers. But on a careful consideration of the matter I find that the manner as suggested by the authors of this clause has greater advantages over the other. Hereafter in the new set-up conditions are bound to be different and the High Courts have got to take upon themselves greeter and heavier tasks and onerous responsibilities. They are the repositories of the Constitution; they have got to interpret the constitution. They are the guardians of the fundamental rights in the Constitution Every common man must look to these courts for fair treatment and justice. They have got to see that their rights are safeguarded and they are in safe custody. Therefore if we have got to achieve this I we have got to see to the successful working of these High Courts and this depends mostly upon the quality of the judiciary and the manner in which it is composed. The independence of the judiciary is a thing which has to be decided and this independence to a large extent depends on the way in which these judges are to be appointed. They should not be made to feel that they owe their appointment either to this person or that person or to this party or to that party. They have to feel that they are independent. It is only in that case that get efficiency of administration of justice. It is with a view to secure this kind of independence that some sort of check is necessary and the authors of the clause have provided for this check by bringing in some external authority to have something to do with the appointments relating to the Provincial courts. We may fell why the Chief Justice of the Supreme Court also is brought into this picture but in the interests of the purity of administration of justice the Supreme Court has a great part to play hereafter. It is the highest of the High Courts of India and it will have a general advisory jurisdiction and a general appellate jurisdiction which is similar to that now exercised by the Privy Council relating to Indian units. Therefore, it is to review the work of all High Courts and also exercise the powers of general superintendence, direction and control in all matters relating to the provincial judiciary Several matters of the High Courts have got to one before this Court by way of revision, reference and appeal. Therefore, the Chief justice of the Supreme Court has got a great deal to do with these High Courts and not only that, the Supreme Court in itself has got to be composed from among the judges of the High Courts as we see. Therefore considering all these matters I feel that it is highly necessary that the Chief Justice of the Supreme Court is consulted by the President of the Federation in making these appointments to the provincial courts. Of course, this need-not really leave a fear in our minds that the freedom of the provinces is curtailed to a large extent but this sort of check will be used only on ram occasions and generally the recommendations made by the Governor on the advice of his Ministers and in consultation with the Chief Justice of the High Courts will be accepted so long as they are right and also their choice is bound to be good generally, except in very rare instances when the intervention of the Federal Authority is to be brought.


4.27.85
G. Durgahai
There is another point to be taken into consideration, namely this, that we need not feel that we are doing something very unusual. There is no one uniform principle in all federal constitutions of the world that this power of appointment to the judges of the High Courts of the units should always rest with only the Provincial Governments. It is not necessary. We have got an instance provided to us in the Canadian constitution where the power of appointment rests with the Governor General who will make the appointment. Therefore we can accept this principle without any fear or favour and adopt it in our system.


4.27.86
G. Durgahai
With these few observation, Sir, I support this clause and I commend it for the acceptance of the House.


4.27.87
Alladi Krishnaswami Ayyar
Mr. President, Sir, I have great pleasure in supporting the amendment moved by Sir Alladi Krishnaswami Ayyar. Every one of those clauses is absolutely necessary having regard to the difficulties which people have been experiencing as a result of the Government of India Act of 1935 and also the recent ruling of the Privy Council regarding certiorari. Until the recent ruling, we were having this remedy by way of unit of certiorari as regards the mofussil also, but as a result of the Privy Council ruling, we are restricted as regards that remedy only to Presidency towns. It is absolutely necessary that such a remedy must be available to the people of the mofussil also,


4.27.88
B. Pocker Sahib Bahadur
As regards the power of superintendence to be vested in the High Courts we were having the remedy before the passing of the Government of India Act of 1935, but all such remedies were excluded by the new provisions of the 1935 Act, all the litigant public have been feeling very much about the absense of the right of superintendence in the High Courts as regards proceedings in the mofussil courts. The result is that people are now restricted to remedy under Section 15 of the C.P.C. which is inadequate and does not cover all cases in which remedy is necessary. Therefore, Sir, it is necessary that these matters should be made very clear, particularly for the reason that hereafter we may not be able to rely on English practice and on precedents in England.


4.27.89
B. Pocker Sahib Bahadur
I do not know, how far I am right; but I presume for the time being that English precedents and practice may not be available to us as authority here after. In view of these circumstances, it is absolutely necessary that these clauses should find a place in the measure that we are passing.


4.27.90
B. Pocker Sahib Bahadur
I have only to make another observation in connection with this clause. I have given notice of an amendment in which I suggested that instead of the Chief Justice of the High Court of the Province concerned, it must be the High Court itself that should be consulted. Instead of the consultation being confined to the Chief Justice, the consultation must be with the High Court. My amendment being an amendment to another amendment given notice of by Dr. Subbarayan as Dr. Subbarayan has not moved that amendment, my amendment fails. However, I would like to make this remark for the Drafting Committee that it is very desirable that the consultation should not be restricted to the Chief Justice of the High Court, but should be with the High Court as such, so that the matter may be considered by all the Judges of the High Court at the Judges Meeting, and the result might be communicated to the authorities concerned.


4.27.91
Alladi Krishnaswami Ayyar
With these observations, I support the amendment proposed by Sir Alladi Krishnaswami Ayyar.


4.27.92
Jaipal Singh
Mr. President, I support Part II, Clauses 1 to 3. At the same time, I would like to have some information from the Honourable Mover as to whether any discussion has taken place and when we shall know anything about any result of the agitation that has been carried on in this country by all parties in regard to the separation of the judiciary from the executive, whether we are going to get this matter considered in the report Pandit Jawaharlal Nehru will submit on behalf of the Union powers Committee. I only want to ask this question and I hope the Honourable Mover will give us some information on this point.


4.27.93
Rai Bahadur Syamanandan Sahaya
Sir, I wanted to draw the attention of the Mover and the House to Clause 3 of Part II in which it is laid down that the "emoluments and allowances of the Judges shall not be diminished during their term of office". I was thinking, Sir, that the term "diminished" would not meet the requirements and that this should be replaced by the word, "varied". I am sorry I have not tabled an amendment, because there were other amendments which I thought would be moved. In any case, the matter is of importance and I therefore wanted to draw the attention of the Mover to this. Perhaps it may be rectified at the stage of drafting. The reasons and the principle which I suppose guided the members of the Provincial Constitution Committee to lay down that the emoluments will not be diminished during their term of office will be precisely the same as in the case of increasing their salary also. You would not naturally want the judiciary to be constantly looking up either for increasing their salary, or be under the apprehension that there will be a decrease in their salary. In these circumstances, I think it will be desirable that the word "diminished" should be changed by the word " varied" with the approval of the mover.


4.27.94
Rai Bahadur Syamanandan Sahaya
I have not formally moved an amendment. But I think the matter is of sufficient importance to be brought to the notice of the House.


4.27.95
Alladi Krishnaswami Ayyar
I find, Sir, with all respect, that this amendment may bring in complications for this reason. I agree with Sir Alladi Krishnaswami Ayyar that the powers of the High Court have to be enlarged. There are a number of restrictions placed under the Government of India Act now on the powers of the High Court regarding revenue jurisdiction. This is No. 1 in his amendment by which he wants to, correct this Act. In his amendment he wants to say that the High Court shall exercise jurisdiction over all revenue matters also without any of the restrictions or limitations contained in the Government of India Act. One of them is under section 226 which runs as follows:

"Until otherwise provided by Act of the Appropriate legislature no High Court shall have any original jurisdiction in any matter concerning the revenue or concerning any act ordered or done in the collect on thereof according to the usage and practice of the country......"


4.27.96
M. Ananthasayanam Ayyangar
Does he want by the Constitution Act to confer original jurisdiction in revenue matters also or in the matter of collection? These have been exempted. If such a power should be given here and incorporated in the Constitution Act itself, any change that may be necessitated by experience will have to be made by way of an amendment to the Constitution Act. There is absolutely no objection to the legislature of the High Court removing the restrictions.


4.27.97
M. Ananthasayanam Ayyangar
So far the jurisdiction of the High Court in the matter of writs is concerned, they are subject now to any Order in Council that may have been passed by the Government, under section 223, Orders in Council by His Majesty the Kink or otherwise. Some of the writs may be obsolete, some of them may be necessary or may be found obsolete later on. Should we go into the details? In case there is need to modify this, there will have to be two-thirds majority in both the Houses and all the processes and procedure for modifying the constitution will have to be gone-through as in other substantial matters. We can easily say the provincial legislature shall be entitled to enlarge the jurisdiction of the High Court or place a restriction upon that. I do not feel that any of these matters need to be incorporated in a Constitution Act like this.


4.27.98
M. Ananthasayanam Ayyangar
Again Clause (c) says that in addition to the powers enumerated in section 224 of the Government of India Act, 1935, the High Courts shall have powers of superintendence over subordinate courts as under section 107 of the Government of India Act. I do not deny that the High Court's powers may be enlarged in the manner suggested by Sir Alladi in his amendment. But the local legislature is competent to give not only those powers, but additional powers also not contemplated in section 107 of the Government of India Act. Why should we restrict to this or that? Evidently, Sir Alladi finds that the draft constitution placed before the House which we are discussing, seeks to embody all the provisions that exist in the present Government of India Act. I agree that we ought not to bodily incorporate those provisions whether they are good or bad. The framers of the constitution will go into the details and empower the local legislature to pass laws and regulations without intervention of His Majesty in Council, to enlarge the jurisdiction of the High Court in necessary matters, empower it to issue writs wherever necessary. These are details which will have to be referred to a Committee how and in what manner jurisdiction has to be enlarged. For this, the legislature, as we propose to have it, is entitled to go into these things. Certainly, my friend Sir Alladi would say that it is not a matter which could be disposed of at a sitting by all people; that it must be referred to a Committee of experts, so that they may look into every one of these clauses before incorporating them finally into the Bill. We have not that opportunity. He merely says the High Court's powers ought to be enlarged in a particular manner which may be good or, bad. We admit it is good. Sometime later on, it may be found bad or oppressive or hard. There may be a necessity for decentralisation.


4.27.99
M. Ananthasayanam Ayyangar
The powers of superintendence by the High Courts may be unnecessary, and uncalled for in certain matters. Therefore if we irrevocably confer all these powers on the Provincial High Courts, it will be very difficult. Why should we introduce those details? I should therefore say that my friend only wanted to bring to notice, by placing this amendment, the need for enlarging the powers of the High Courts in this direction. No doubt he has chosen the wrong method. The right method will be to place it before the Legislature and see to it that the Provincial Legislature has all the powers to enlarge the powers of the High Court in the matter of superintendence regarding revenue matters. I therefore request him not to press his amendment because it will lead to unnecessary complications.


4.27.100
M. Ananthasayanam Ayyangar
Mr. President, Sir, the remarks of my friend Mr. Ananthasayanam are based on the present Government of India Act. But the reason why Sir Alladi's amendment is necessary has been placed before the House fully. The position with regard to Prerogative Writs is a technical matter and naturally therefore there might be a certain amount of difficulty for ordinary men to understand it but we must realise the important fact in this country, viz., that only the High Courts of Calcutta, Bombay and Madras which have inherited the jurisdiction of the King's Bench Division have the power to issue Prerogative Writs within the original jurisdiction of those cities. Other High Courts have not that power nor does the power of these three High Courts extend beyond the original jurisdiction of the three towns concerned. The intention of this Clause is to see that every High Court in India should have the same power of issuing Prerogative Writs as the King's Bench Division has in England. This is not covered by the Government of India Act nor converted by anything else. What this amendment seeks is that the High Courts in India in the Provinces should have the powers possessed by the King's Bench Division. Those Prerogative Writs were ancient and known to the English Common Law but many of them have now been brought into use in Calcutta, Madras and Bombay and as lawyer members of the House would realize during the difficult days of 1942 to 1945 when the Defence of India Act was in operation, these writs did a great deal of service in vindicating them.


4.27.101
Further we have to consider this fact also that this Constitution of India, of Free India, will be a kind of Charter. It will also contain Fundamental Rights and also recognize the Rights of Citizens in certain Fundamental Rights and certain obligations on the part of Government. Now all those must be enforced by some kind of remedy in the nature of the remedies which are now secured by a Britisher from the King's Bench Division. In the Constitution of the Union where the Supreme Court is constituted the Supreme Court has been invested with the power to issue these Prerogative Writs. With regard to the Constitutional rights and various other rights, if the power is only invested in the Supreme Court and not in any other High Court, it will follow that every citizen in order to vindicate his rights would have to come to Delhi. The intention of the amendment moved by Sir Alladi is that all the High Courts must have similar powers to issue Writs within their jurisdiction. This is the only meaning of this clause. It is necessary to have it in the Constitution because otherwise a Legislature may take away or attempt to take away certain powers of the High Court. Any analogy of the Government of India Act would not apply. This being the object, it is necessary that this amendment should be there.


4.27.102
I know that the word 'Prerogative Writs' is a very vague word. That is this reason why Sir Alladi's amendment uses the words-- "any substituted remedies therefore". The idea is that either in a form defined by the Constitution or by any law made under the authority of the Constitution, those Writs will be preserved. There is no doubt about it.


4.27.103
M. Ananthasayanam Ayyangar
The Prerogative Writs are largely the creature of common law in England but attempts are made in England to put them in the Statute book in a precise form. There is no reason why we should now allow the Common Law form to remain in its vagueness, in the present proposals. Some attempt will be made later to define those Writs in a proper legislation. The principle embodied in the amendment is that the High Courts in the Provinces must have the power to issue Prerogative Writs or some remedies of the kind. So, the objections raised by my friend Mr. Ananthasayanam are not valid.


4.27.104
As regards Clause (b), there is a restriction imposed by the Government of India Act as regards jurisdiction in revenue matters. This is only done as a matter of history. This amendment recognizes the principle that even revenue matters are subject to law. As regards Clause (c)--General superintendence, the High Courts will have superintendence over all Subordinate Courts and this clause does not require any elaboration.


4.27.105
The object is that this principle must be embodied in the Constitution. It is not intended that the Provincial Legislature should have the power to tinker with these powers of the High Court. The actual power and independence of the High Courts in these matters have to be maintained in order that the liberties and rights of citizens are not curtailed by a majority in the Legislature. In defence of civil liberties and in the interests of democracy these powers are essential.


4.27.106
Tajamul Hussain
Clause 3 of Part II lays down that the Pay of the Provincial High Court Judges cannot be decreased during their term of Office, but it does not say anywhere that it cannot be increased. Sir, we must maintain the dignity and impartiality of the High Courts at all costs, If we do not mention in our Act that their pay shall not be increased and decreased, it will be giving them a chance because after all they are human beings--they will be looking upto the Legislature for favours of increment of their pay. This is a very important matter. I have not given notice of any amendment. The reason was that some honourable members had sent amendments. Therefore, Sir, my friend Rai Bahadur Shyamnandan Shahai has suggested the change, which I hope the Honourable Mover will accept. At present the provision reads:

"The emolument and allowances of the Judges shall not be diminished during their term of office."


4.27.107
Tajamul Hussain
I suggest substituting the word "varied" for the word "diminished"; with this change it will read:

"The emoluments and allowances of the Judges shall not be varied during their term of office".


4.27.108
Tajamul Hussain
I submit this for the acceptance of the House.


4.27.109
L. Krishnaswami Bharathi
Sir, I wish to say one thing in reference to Clause 1 of Part II. The first part of it reads:

"The provisions of the Government of India Act, 1935, relating to the High Court should be adopted mutatis mutandis, ....."


4.27.110
L. Krishnaswami Bharathi
I find Sections 219 to 231 of the Government of India Act relate to High Courts. With reference to one of the important provisions in that Act, I find the question of language comes in. Section 227 of that Act reads:

"All proceedings in every High Court shall be in the English language".


4.27.111
L. Krishnaswami Bharathi
I do not know if sufficient attention has been given to this aspect of the matter. I do not think, Sir, it is the intention of the Mover that the proceedings in the High Courts shall be in the English language. We are now talking of a national language or All-India language. My own personal view is that in every province, the provincial language shall be the language in which all the proceeding of the Province, including those of the High Court, shall be carried on. It may be that for some transitional period, we may have the English language, but I do not think we can allow English to be the language of our High Courts for all time to come. But the position is, if we accept the first part of this Claus as it stands with the words "mutatis mutandis" we may be committed to having the English language. I therefore, wish that some suitable provision may be made in this clause so as to avoid Section 227 of the Government of India Act with reference to the English Language.


4.27.112
President
As there is no one else who wishes to speak the Mover of the Resolution may reply to the debate, if he wishes to.


4.27.113
Vallabhbhai J. Patel
Sir, I accept Sir Alladi's amendment.


4.27.114
Vallabhbhai J. Patel
With regard to one or two questions that have been put, I would like to say a few words. Regarding the question raised by Mr. Jaipal Singh as to what has been done about the separation of the judiciary from the executive, I can only say that this is not the place to; Introduce that subject. This clause we are now considering only refers to the formation of the High Court its constitution, the method of appointment of the judges, its powers and things like that. The real question which he has raised can be decided by the Legislature, it is a matter of policy to be decided by them; and I do not think there will be difficulty now in separating the judiciary from the executive.


4.27.115
Vallabhbhai J. Patel
The other point raised is about changing the word 'diminished' into varied', that the word 'diminished' should be substituted by the word 'varied'. I do not think this change is necessary for the existing provision says that the emoluments etc., should not be varied to the disadvantage of the judges, and that clears the position. So I do not propose to have any changes made in the wording.


4.27.116
Vallabhbhai J. Patel
As I said, I accept Sir Alladi's amendment, and I commend the proposition for the acceptance of the House.


4.27.117
President
I shall now put the motion to the House.


4.27.118
L. Krishnaswami Bharathi
My point regarding the language in the High Court has not been answered to. It is an important point.


4.27.119
President
It is, of course, an important point; but I suppose the Drafting Committee will attend to it.


4.27.120
L. Krishnaswami Bharathi
Sir 'mutatis mutandis' means everything as it is, which means that you cannot vary the provision in the Government of India Act, at the time of drafting our provision. If we accept it as it is, the Drafting Committee will be committed to keeping English as the language of the High Court.


4.27.121
B. Pattabhi Sitaramayya
Sir, I think 'mutatis mutandis' means with the necessary changes.


4.27.122
President
Yes, that is my impression also. This will cover any changes that the Drafting Committee may suggest ultimately.


4.27.123
President
I shall put Sir Alladi's amendment to vote.


4.27.124
President
That the following proviso be added at the end of Clause 1:

"Provided that-

(a) all the High Courts in the Union of India shall have the right to issue prerogative writs or any substituted remedies therefore throughout the area subject to their appellate Jurisdiction;

(b) the restriction as to jurisdiction in revenue matters referred to in section 226 of the Government of India Act, 1935, shall no longer apply to the High Courts; and

(c) in addition to the powers enumerated in section 224 of the Government of India Act, 1935, the High Courts shall have powers of superintendence over subordinate courts as under section 107 of the Government of India Act, 1915."

The motion was adopted.

4.27.125
President
Then I shall put the resolution to the vote of the House as amended, i.e., with the addition of the proviso which has been just accepted. I do not think I need read out the whole clause.

Part II, as amended was adopted.
Part III-Provincial Public Service Commission and Provincial Auditor-General

4.27.126
President
Now we pass on to Part III.


4.27.127
Vallabhbhai J. Patel
Sir, this part refers to the Public Service Commissions and the Auditors-General.

"Provisions regarding Public Service Commissions and Auditors-General should be inserted on the lines of the provisions of the Act of 1935. The appointment of the Chairman of members of each Provincial Public Service Commission and of the Auditor General should be vested in the Governor in his discretion."


4.27.128
Vallabhbhai J. Patel
It is proposed to give the power to the Governor. I move the proposition for the acceptance of the House.


4.27.129
President
There are amendments to this by Shri Khurshed Lal and Shri Gopinath Srivastava, Shri S. L. Saksena, Pandit and Mr. Santhanam.

(The amendments were not moved.)

4.27.130
K. Santhanam
Sir, with reference to Part III, I have an amendment (No. 23 on Second Supplementary List, dated the 16th July 1947). Though I do not want to move the amendment at this stage, I want you, Sir, to give a ruling that this can be taken up when the Union Constitution is taken up for consideration, as it has been suggested that it can be taken up at that time. In only want to make sure that this will not be ruled out then. I want to know whether you will permit me to move the amendment at that time.


4.27.131
President
If you wish to move the amendment now you can do so I can give you no promise as to the future. I can permit you to withdraw your amendment now if you wish to, and the question will be considered at the right time, whether the amendment can be moved in connection with the other report.


4.27.132
K. Santhanam
Sir, I do not wish to move my amendments.


4.27.133
President
The question is:

"That Part III be accepted."

The motion was adopted.
Part IV-Transitional Provisions

4.27.134
Vallabhbhai J. Patel
Sir, I move:

"1. Any person holding office as Governor in any Province immediately before the commencement of this Constitution shall continue as such and shall be deemed to be the Governor of the Province under this Constitution until a successor duly elected under this Constitution assumes office.

2.There should be similar provisions mutatis mutandis in respect of the. Council of Ministers, the Legislative Assembly and the Legislative Council (in Provinces which decide to have an Upper House).

3.The Government of each Governor's Province shall be the successor of the Government of the corresponding Province immediately before the commencement of this Constitution in respect of all property, assets, rights and liabilities."


4.27.135
Vallabhbhai J. Patel
These are provisions for the transition period in order to avoid an interregnum. I do not think there can be any controversy over this acid I hope it will be accepted.


4.27.136
T. A. Ramalingam Chettiar
I do not wish to move my amendment to Clause 1 (No. 119 on list, dated the 15th July 1947).


4.27.137
K. Santhanam
I do not want to move my amendment to Clause 3 (No. 120 on List, dated the 15th July 1947).


4.27.138
M. Ananthasayanam Ayyangar
I do not wish to move my amendment to Clause 1 (No. 24 on Second Supp. List dated the 16th July 1947).

(Pandit Govind Malaviya, Shri Rohini Kumar Chaudhury, Shri M. Ananthasayanam Ayyangar, Shri Mohanlal Saksena and Prof. N. G. Ranga did not move their amendments in the 3rd and 4th Supplementary Lists)

4.27.139
President
There are two amendments by Mr. Ananthasayanam Ayangar, which are independent propositions. I shall take them up later.


4.27.140
I have only one remark to offer with regard to Clause 3 of this part which says:

"The Government of each Governor's Province shall be the successor of the Government of the corresponding Province immediately before the commencement of this Constitution in respect of all property, assets, rights and liabilities."


4.27.141
I feel, Sir that the words "successor of the Government" might create difficulties and at this stage it would serve no useful purpose to keep Clause 3. I therefore submit. that Clause 3 should be deleted. The words do "successor Government" might lead to other complications which need not be invited at this stage.


4.27.142
H. V. Kamath
Mr. President Clause 1 of of this part is of course unexceptionable and I think there will be, no difficulty in the way of its acceptance by this House. But upon its acceptance certain consequences will, to my mind, flow from it and therefore I wish to draw your attention and the attention of this August Assembly to those consequential aspects of this clause, viz., Clause 1 of Part IV. This clause says:

"Any person holding office as Governor in any province immediately before the commencement of this Constitution shall continue as such and shall be deemed to be the Governor of the Province under this Constitution until a successor duly elected under this Constitution assumes office."


4.27.143
H. V. Kamath
We are today passing from the darkness of servitude to the light of freedom. But there is bound to be an interregnum between our Dominionhood and that Republican Independence for which we are striving. This interregnum may be long or it may be short, and again there will be another time-lag between today and the commencement of this constitution. By 'Commencement' I believe the promulgation of this constitution is meant. I presume that the constitution will be promulgated perhaps by the end of this year but between now and that date of the promulgation of the constitution we are entering upon a new state and that is the state of Dominionhood. The Indian Union will be formally ushered in or inaugurated as a Dominion on the 15th of next month. Therefore, if according to this clause, in December when the constitution is likely to be promulgated, there are certain Governors in certain Provinces, they are likely to continue as such and they will be deemed to be the Governors under this constitution, I want to emphasise the word "shall be deemed to be the Governor of the Province under this constitution." I think it would be derogatory to the dignity of the constitution, if certain non-nationals are permitted to continue as Governors under this Constitution after the commencement of this Constitution and before elections under this constitution take place. As we all know, very shortly, in the middle of next month, it will be within cur power; within the competence of our own leaders to say who will be Governors and where. If, unfortunately some non-nationals --Europeans or Britishers remain or are appointed as Governors in certain provinces, on August 15th, it will follow that in December when the Constitution will be inaugurated or will commence, they will be there and therefore they will continue as Governors under this Constitution till the elections take place and their successors assume office. Therefore Sir, I submit that this is a position which, as a Sovereign body today an aspiring to become shortly a Sovereign legislature of the Dominion, we cannot envisage or tolerate. We have struggled hard these many years and decades to see the end of foreign rule in India. A few months less than five years ago our cry, our revolutionary campaign of 'Quit India' was launched and it is a happy coincidence that in the very month of August we in India are attaining Dominionhood if not independence, quite a good degree of independence, and power will, I hope, come into our hands. Thus, Sir when it will be within our competence to have our own Governors, I for one want that our own nationals and citizens of the India Union should be the Governors when the new Constitution is inaugurated. I wish to draw your attention to these words in the Transitional Provisions I am quoting: "In any province immediately before the commencement of this Constitution". We should take care to see that the Governors in all our Provinces immediately before the commencement of this Constitution are Indians, our own nationals and not non-nationals or foreigners. Have we undergone all these troubles and fought the rulers on so many occasions merely to see these martinets, these panjandrums and these minions of a foreign imperialism continuing their rule in our Provinces? I should like to see the end of it. I do not like to see the day when even after the commencement of this Constitution these very Europeans, whom we asked to quit five years ago, will be continuing as our rulers in certain provinces. I was hard put to it, some days ago to explain to a common man why Lord Mountbatten was recommended for the Governor-Generalship of the Dominion of India. We can quite understand and appreciate the high considerations of diplomacy, political strategy and tactics which influences the recommendation of Lord Mountbatten for the Governor-Generalship. But the common man fails to understand it all. It is true that we cannot always act on the views of the common man. But, at the same time, in a democracy the psychology of the common man has its place. Democracy is largely conditioned by the psychological reflexes of the common man. I would request the Hon'ble Mover and this Assembly to bear these considerations in mind and see that the Governor of any Province immediately before the commencement of this Constitution is not a non-national. It is our men, our citizens who should be there. It is only if we see to this that we can produce the necessary psychological reaction in the mind of the common man. We will fail to produce this essential psychological effect if on the dawn of freedom and independence he were unfortunately to see the same foreigner still stalking the land as ruler or Governor. Our 'Quit India Resolution' is fast bearing fruit. At such a time we should create in the mind of the common man the impression that all power has been taken over by us towards the consummation of the 'Quit India Resolution' which was inaugurated by us five years ago.

(nanyah pantha ayanaya vidyate)

4.27.144
H. V. Kamath
When we are shortly going to witness the dawn of independence we must make a supreme effort to see that the common man is able to grasp the fact that we are out on masters and that there is no foreigner ruling over us. The sooner we do this the better it is for us and for our country. If we achieve this we will have gone a long way towards awakening the 'shakti' necessary for building up our Indian Union. I am sure I am voicing the feeling of a vast majority in this Assembly when I say that at the time of the inauguration of the Provincial Constitutions, no foreigner remains as Governor in any of the Provinces. It would be a mistake to allow a foreigner to continue as Governor of a province, after that date.


4.27.145
H. V. Kamath
Sir, I will conclude with the words used on another historic occasion and request this August Assembly to tell the foreigner "We asked you to Quit India five years ago. We now again tell you with more power, more authority in our hands: For God's sake go. Leave India to its own fate,,. Leave India free to build up a strong Independent Sovereign Republic." "Jai Hind."


4.27.146
M. Ananthasayanam Ayyangar
I should like to say a few words with regard to the Transitional Provisions. These ought to be absolutely transitional. That is my desire.


4.27.147
M. Ananthasayanam Ayyangar
We must congratulate ourselves, Sir that we have spent five days over the elaborate provisions recorded in this Constitution submitted to the Assembly. I am sure we will be able to finish the details considered by the Expert Committee that will be appointed to go into the details of the formalities and bring out the Constitution at an early date. All that I am anxious about is that, when the British Government who originally fixed 30th June 1948 for ushering in a new Constitution have advanced the date, we should not be found unready. We should have our Constitution ready and there should be no delay on our part. I do want that 26th January 1948, the day which we have been celebrating as Day of Independence for India should surely be the day when we celebrate the Independence of India. Let it not be said that we have unnecessarily dragged the proceedings here. We will not be charged with that. We have spent only five days on this important matter. We have not left the details to take care of themselves. I hope all concerned will be able to push through the necessary work so that on the 26th day of January we will really have an Independent India and work under an Independent Constitution. As regards the present Governors continuing till then, I am sure that they will not continue for any longer time than is necessary. When the new constitution comes into being, I expect that only nationals will be appointed as Governors.


4.27.148
M. Ananthasayanam Ayyangar
Thirdly, after the new constitution is framed, it will take some time before elections lake place; before delimitation of constituencies takes place. All these will take some time. I do not want to have any definite date fixed within which elections should take place under the new constitution. At the same time I would like to urge that after the new constitution has been framed, care should be taken to see that within six months and not later than that, the new constitution must be in full swing. Even before the constitution is drafted, since we are providing for adult franchise; we should ask the existing Governments to prepare the electoral roles regarding adults in every village and town. Thereafter, tine delimitation of constituencies will have to take place. No effort should be lost and all efforts must be made to see that the new constitution comes into being as early as possible. With these words, I support these transitional provision clauses.


4.27.149
President
Does anyone else wish to speak about this?


4.27.150
Biswanath Das
Mr. President, Sir, I heartily, congratulate the Honourable Sardar Patel for having piloted the report within the shortest possible time, Sir, while congratulating him, I must also confess that the constitution that has been drafted for the provinces gives them less powers than what the provinces were enjoying under the Act of 1935.


4.27.151
Biswanath Das
We expect to have under the new dispensation a government of the people for the people and by the people. Now, all these three slogans will be meaningless if we do not have the leaders of the people of the provinces as governors of the provinces. Sir, the interim period that lies between the present and the date of the election should not be marred by having men of the permanent services as Governors of provinces. Sir, I support the decision taken in nominating Lord Mountbatten as the Governor-General. There may be important reasons and justifications for the same. The country will be fully with our leaders in that. Sir, that cannot however be translated into the provinces. I am not here to make any distinction between nationals and non-nationals. Sir, I cannot agree to see that people, who have been public servants, continue as governors of provinces. Most of the I.C.S. people do not have the Indian outlook and cannot in any sense be termed as servants of the people. That being the case, I would submit that it would be very hard on the country to tolerate a system of administration in which the same I.C.S. regime is being perpetuated in the provinces. I believe our leaders will not commit this blunder.


4.27.152
Biswanath Das
Sir with these submissions, I fully support the resolution and congratulate the Committee on having presented a report which was acceptable to the House so as to be passed within the shortest possible time.


4.27.153
Vallabhbhai J. Patel
Sir, I suggest a verbal alteration in Clause 1, third line instead of the words "shall continue." I want to insert the words "may be continued". "Any person holding office as Governor in any Province immediately before the commencement of this Constitution may be continued". In the fourth line I suggest the insertion of the word "when so continued" after the word "and". These are purely verbal alterations.


4.27.154
Vallabhbhai J. Patel
I will now remind the House that perhaps some of the friends who gave valedictory orations have forgotten that there is still one clause, Clause 15, to be moved. It is a controversial clause and it will take some time.


4.27.155
She C. Subrahmaniyam
May be continued by whom? Who is the authority to continue him as Governor under the new Constitution?


4.27.156
Vallabhbhai J. Patel
No doubt by the Government of India, who is the authority to appoint him. There is no difficulty about that.


4.27.157
H. V. Kamath
"May continue" or "may be continued". Why not “may continue"?


4.27.158
Vallabhbhai J. Patel
Put in "may continue" if you like.


4.27.159
P. S. Deshmukh
"May be continued" is better. "May continue" is likely to be interpreted as "should continue" and Mr. Kamath would be defeating just the object that he has in view. "May be continued" involves continuation only if so ordered by the Government.


4.27.160
President
I put this resolution to vote with this verbal change. In place of "shall continue" substitute the words "may be continued" and in the fourth line add the words 'when so continued' after the word 'and'.

The motion was adopted.

4.27.161
President
Mr. Munshi, you moved that Clause 3 be deleted. I am sorry I did put that to vote, but I take it that it is accepted.

The motion was adopted.

4.27.162
President
I shall now put the whole resolution as amended by the deletion of Clause 3 to vote, because there was some misunderstanding.

Part IV as amended, was adopted.

4.27.163
President
Mr. Ananthasayanam Ayyangar has given notice of an amendment.

(The amendment was not moved.)
CLAUSE 15

4.27.164
President
There was one clause which was passed over and that was Clause 15 and we may take up that now.


4.27.165
Vallabhbhai J. Patel

"15. (1) In the exercise of his responsibilities, the Governor shall have the following special responsibility, namely the prevention of any grave menace to the peace and tranquility of the Province or any part thereof.

(2)In the discharge of his special responsibility, the Governor shall act in his discretion :

Provided that if at any time in the discharge of his special responsibility he considers it essential that provision should be made by legislation, but is unable to secure such legislation he shall make a report to the President of the Federation who may thereupon take such action as he considers appropriate under his emergency powers."


4.27.166
Vallabhbhai J. Patel
Honourable Members may kindly refer to my introductory speech in this connection. This question of discretionary powers of the Governor is a matter which requires very careful consideration. On the one hand it encroaches upon the powers of the Ministry. The Governor has not got the services under him and it he is to exercise his functions in his discretion, if he is given authority to take control of the services for the purpose of discretionary responsibility, then it is difficult to conceive how the ministry can function and it almost amounts top a sort of introduction of Section 93 under the provisions of his Act. Again on the other side there is a feeling that looking to the conditions prevailing in the country, some provision should be made for giving special responsibilities to meet with the difficult situation which has arisen in the country today. For this purpose this clause requires careful consideration and I hope all points of view will be made clear in this debate. I therefore move this proposition for the acceptance of the House.


4.27.167
Hirday Nath Kunzru
Mr. President, I venture to suggest that it will be in the interest of us all if the discussion of this question is postponed till tomorrow. We have a new amendment before us of which notice has been given by Mr. Munshi and I think it is desirable that, we should have some time to think over it. There is no doubt that we have been thinking about this question for many days, but no suggestion was before us in the exact form which it has assumed in Mr. Munshi's amendment. I suggest, therefore, that we might take it up tomorrow. It is only half-past twelve now and the House will not lose more than half an hour if we adjourn the discussion till tomorrow. I hope that my suggestion will meet with the approval of the House, and of you, Mr. President.


4.27.168
President
I was going to suggest that instead of not utilising this half hour we might have the amendments moved and further discussion might take place tomorrow if that meets with the approval of the House. Thus the members will have an opportunity of considering the amendments also with the speeches of the Movers of those amendments if that meets with the wishes of the House.


4.27.169
Hirday Nath Kunzru
Are you suggesting that the amendment should be moved today and that the speeches might be reserved till tomorrow?


4.27.170
President
If any mover of any amendment wishes to have that right, I shall give him that right.


4.27.171
B.R. Ambedkar
It should not be concluded today.


4.27.172
Ajit Prasad Jain
The first amendment is by Messrs. Ajit Prasad Jain, Khurshed Lal and Gopinath Srivastava.

(The amendment was not moved.)
(Messrs. K. Santhanam, Kala Venkata Rao, M. Ananthasayanam. Ayyangar, Shibban Lal Saksena, and Pandit Govind Ballabh Pant did not Move their amendments.)

4.27.173
B. M. Gupta
I beg to move Sir, that the proviso to sub-clause (2) of Clause 15 be deleted and the following new sub-clauses be added:

"(3) If in the discharge of his special responsibility the Governor is satisfied that a situation has arisen in which immediate action has to be taken, he may. by a proclamation assume to himself all or any of the powers vested in or exercisable by any provincial body or authority except the High Court.

(4)The Proclamation shall be communicated forthwith to the President of the Union, who may thereupon take such action as he considers appropriate under his emergency powers.

(5)The Proclamation shall cease to operate at the expiration of 2 weeks, unless revoked before then by the Governor himself or by the President of the Union under his emergency powers, whichever is earlier."


4.27.174
President
Pandit Hirday Nath Kunzru.


4.27.175
Hirday Nath Kunzru
Mr. President, the amendment of which I have given notice runs as follows.

"That for clause 15, the following be substituted:

'Whenever the Governor is satisfied that there is a grave menace to the peace, and tranquillity of the Province or any part thereof, he may, in his discretion report to the President of the Federation.

NOTE.--The President may take such action on the report under the emergency powers vested in him as he considers appropriate'."


4.27.176
Hirday Nath Kunzru
Sir, I shall reserve my speech till. tomorrow because it will obviously be an advantage to consider the matter as a whole after all the amendments have been moved.


4.27.177
President
Mr. Munshi.


4.27.178
Sir, this amendment is only an elaboration of Mr. Gupte's amendment. I think I should also reserve whatever I have to say on the amendment for tomorrow.


4.27.179
M. S. Aney
On a point of order, Sir, Mr. Munshi's amendment is an amendment to an amendment given notice of by Pandit Govind Ballabh Pant but inasmuch as Pandit Pant did not think it worth while to move his amendment at all there is no question of Mr. Munshi moving an amendment to that.


4.27.180
President
May I point out that an amendment in the same words as Pandit Gobind Ballabh Pant's has been moved by Pandit Kunzru?


4.27.181
M. S. Aney
Then it will require a change in the wording which should be "moved by Pandit Hirday Nath Kunzru."


4.27.182
Mr. Aney seems not to have read the paper correctly. I have moved two amendments one to Pantji's, and another to Mr. Gupte's amendment. Since the former amendment was not moved, and Mr. Gupte has moved his amendment, I am perfectly in order in spite of Mr. Aney's protest. The amendment is:

"That for Clause 15 the following be substituted:

'(1) Where the Governor of a Province is satisfied in his discretion that a grave situation has arisen which threatens the peace and tranquility of the Province and that it is not possible to carry on the Government of the Province with the advice of his Ministers in accordance with the provisions of section 9 he may by Proclamation, assume to himself all or any of the functions, of Government and all or any of the powers vested in or exercisable by any Provincial body or authority; and any such Proclamation may contain. such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the objects of the Proclamation including provisions for suspending in whole or in part of the operation of any provisions of this Act relating to any Provincial body or authority:

Provided that nothing in this sub-section shall authorise the Governor to assume to himself any of the powers vested in or exercisable by a High Court or to suspend, either in whole or in part, the operation of any provision of the Act relating to High Courts.

(2)The Proclamation shall be forthwith communicated by the Governor to the President of the Union, who may thereupon take such action as he considers appropriate under his emergency powers.

(3)The Proclamation shall cease to operate at the expiration of two weeks, unless revoked earlier by the Governor himself or by the President of the Union."


4.27.183
H. V. Kamath
With due deference to the legal and constitutional ability of Mr. Kunzru, I would like to submit that the phrase "satisfied in his discretion" is not quite happy. One may say or do something in one's discretion, but "to be satisfied in one's discretion" is not usual.


4.27.184
President
We shall adjourn the discussion of this till tomorrow.


4.27.185
Hirday Nath Kunzru
I shall deal with Mr. Kamath's point tomorrow.

___________________________________


4.27.186
President
We might now take up the other item on the agenda, namely the report of the Committee dealing with the Union Constitution. Pandit Nehru will move the motion which stands in his name.


4.27.187
H. V. Kamath
Mr. President, last night we received notice of a motion to be moved by Dr. Nehru tomorrow regarding our National Flag, I would request you to let us know up to what hour we could send in amendments to this motion.


4.27.188
President
Since you received the notice last night, you could have sent in your amendment by now, but if you have not sent it, you may send it up to 5 O'clock today.


4.27.189
Maulana Hasrat Mohani
I do not find any mention of the amendment moved by me about this Union Report. There is an amendment by Dr. Deshmukh. I submitted mine at the time.


4.27.190
President
The amendments have been circulated as Honourable members know. We would have received that amendment late in the afternoon of Saturday. But all amendments have not been placed on the table.


4.27.191
Maulana Hasrat Mohani
I gave my amendment to Mr. Lengar two days before Dr. Deshmukh's amendment. It must find a place in the agenda and it must be before all Honourable members.


4.27.192
President
We shall consider it when we come to that.

________________________

REPORT ON THE PRINCIPLES OF THE UNION CONSTITUTION

4.27.193
Jawaharlal Nehru
Mr. President, Sir. I beg to move :

"That the Constituent Assembly do proceed to take into consideration the Report on the principles of the Union Constitution submitted by the Committee appointed in pursuance of the Resolution of the Assembly of the 30th April, 1947.


4.27.194
Jawaharlal Nehru
This Report has been circulated and, after the full Report was circulated a supplementary Report or rather an addendum to the previous report has also been circulated. In this Supplementary Report certain changes have been made in the previous Report. So I am putting before the House the report as amended by the Supplementary Report. I ventured to circulate a note on this report to the members of this House two days ago in which I pointed out that so, far as the Preamble and part of Clause 1 were concerned, they were covered more or less by the Objective Resolution of this House. That Resolution holds. It may have to be varied in regard to smaller matters because of Political developments since it was Passed.


4.27.195
Jawaharlal Nehru
A Sub-Committee has been asked to go into the question of drafting. We are not changing the Objectives Resolution at all. What I mean is, adapting it to the Preamble. The Objectives Resolution is history and we stand by all the principle laid down in it. In adapting it to the Preamble, certain obvious changes have to be made. At the present moment, as the House is aware, we are not going into the drafting of the Constitution, but are establishing the principles on which this should be drafted. Therefore, that draft of the Preamble is not necessary. We have settled the principles. So I suggested in my note that we may not consider this matter.


4.27.196
Jawaharlal Nehru
Part II dealing with Citizenship has not been finally decided yet by the Sub-Committee and Part III dealing with Fundamental Rights has already been considered by this House and passed. I would therefore suggest that we might begin consideration of this Report from Part IV. Chapter I, The Federal Executive. There are one or two minor matters which you may have to consider in Parts I and II. It is not necessary to take these one or two simple matters. It is better to begin with Part IV and consider the rest at a later period.


4.27.197
Jawaharlal Nehru
May I point out that I just mentioned that Fundamental Rights have been considered by this House and passed. All that we have passed will of course come up before the House once again for final consideration. There are many new members and it has been pointed out to me by some of them that they were not present here when these Fundamental Rights were considered and passed. Well, it is perfectly true. It is a little difficult for us to go back repeatedly and start afresh That I do not think will be proper. But, as a matter of fact, all these things will finally come up before the House and it will be open to any of the members to paint out anything or to amend any part of it at that time. So, I suggest, Sir, that we may proceed now with Part IV, Chapter I, If you have got, he printed pamphlet, it is on page 5. It begins with Federal Executive.


4.27.198
Jawaharlal Nehru
The Report is a fairly long one. At the end of the Report, you will find and Appendix dealing with the judiciary. This is the Report of the ad hoc Committee on the Supreme Court. That is Only for your information because these conclusions have been more or less incorporated in the Report.


4.27.199
Jawaharlal Nehru
Obviously, when we consider the constitution, the fundamental law of the nation as it is going to be, it is an intricate and important matter and we cannot just rush through it without giving it sufficient time and consideration. I may inform the House that so far as the Union Constitution Committee was concerned, it gave it their very earnest Consideration, not once, but several times. We met the Provincial Constitution Committee also on several occasions and this is the result of our joint consultation, but mostly of the Union Constitution Committee's work itself.


4.27.200
Jawaharlal Nehru
I have just been given the list of amendments. This paper contains 228 amendments. I am told, in all we have reached the figure 1,000, I have not seen them as yet, none of them. It is rather difficult for me to deal with them now. I should like to abide by the wishes of the House in the matter.


4.27.201
Jawaharlal Nehru
If I may suggest one thing at present, it is this: that we start with Part IV--Federal Executive. The very first thing that comes up is how the Head of the Federation should be elected. I understand that there are several view points on that. Possibly that particular item may be taken up. It is a simple item. The views may be this way or that: but this is a simple issue and we may consider it now, not only because it is the first item, but because it can easily be taken up without a knowledge of the ,other large number of amendments. I beg to move this.


4.27.202
Jawaharlal Nehru
May I, Sir, now go on with item I of Part IV?


4.27.203
President
I will first put the resolution that the Report be taken into consideration.


4.27.204
Maulana Hasrat Mohani
I have stated that before you take into consideration the Report. I want to make certain points clear. In this paper, which he claims to be a supplementary report, Pandit Nehru has made certain suggestions. After all, these are only his Suggestions. Is it necessary for myself or for anybody else to accept his suggestion? I for one do not accept these suggestions.


4.27.205
Maulana Hasrat Mohani
Besides, I have got very strong reasons for that. Pandit Nehru the other day said that we have already passed the Objectives Resolution and we have to keep that resolution before us in drafting everything now or afterwards.


4.27.206
President
Maulana Saheb, the simple proposition that I am putting to this House at the present moment is that the Report of the Committee be taken into consideration. When that is accepted, we will go clause by clause.


4.27.207
Haji Abdul Sathar Haji Ishaq Sait
Sir, members can express their views whether this report should be taken into consideration or not. We should have a right to speak on that motion. Maulana Saheb is speaking on that motion.


4.27.208
President
Is it your suggestion that the Report should not be taken into consideration?


4.27.209
Maulana Hasrat Mohani
Yes. What I say is this, Pandit Nehru says that he has got the Objectives Resolution already passed by the House.


4.27.210
Maulana Hasrat Mohani
Yes. What I say is this. Pandit Nehru in that Objectives Resolution. It says simply that we will have a Republic. It does not say whether the Republic will be a Unitary Republic or a Federal Republic. Even if it is a Federal Republic, it does not make it clear whether that Federal Republic, will be of a centrifugal or centripetal character and unless and until we decide all these things, it is futile to determine the model of Provincial Constitutions. This is why I suggested in my speech the other day: you want to get one thing passed in your provincial constitution; when you have passed the provincial constitution and when I propose on the occasion of a proposed revised Union Constitution Report coming for consideration before the next meeting of the Constituent Assembly perhaps in October, an amendment to the effect that it must be a Union of Indian Socialist Republics, then you may say, "you are precluded from doing that as that will be something like a settled fact. We have passed the provincial constitution and now there is no scope, left for Hasrat Mohani to add anything or to say against that."


4.27.211
Maulana Hasrat Mohani
I am afraid, Sir, that it will be very easy for you to declare my amendments to the Union Constitution out of order as you did the other day in connection with an amendment proposed by my friend. Mr. Tajamul Husain. You will say "Well the provincial constitution has been accepted and passed, now, your amendments are out of order”. You will say, that the report has been accepted and therefore my amendments are out of order. I will have raised no objection at this stage if this matter stands over. Then I will have every right to propose amendments on the occasion hen you go clause by clause. Or I will have full rights to say that I oppose the Objectives Resolution also. I have got two reasons. One I have made clear that it does not decide anything.


4.27.212
Shankar Dattatraya Deo
We cannot follow a single word or any idea.


4.27.213
President
(To Maulana Hasrat Mohani) Come to this mike, please.


4.27.214
Jainarain Vyas
On a point of order, Sir. The Honourable Member has already started considering the Report. The question before the House is whether the Report be considered or not. That question must be considered first.


4.27.215
Maulana Hasrat Mohani
Before considering the Report he should make certain points clear. It puts me at a great disadvantage if I accept this Report.


4.27.216
President
As I understand it, the Maulana's point is that I should give him a promise at this stage that his amendment will not be ruled out of order. Obviously I cannot give any promise to any member before the matter actually comes up. But you may all have noticed that I am very liberal in the matter of allowing amendments to be moved even if they come out of time. Unless there is any technical ground, I do not see any reason why his amendment may be ruled out of order. More than this I cannot say anything at this stage. I have given some sort of promise that Maulana wanted. I take it that the House wishes that we should proceed with the consideration of this report.


4.27.217
Unnamed Members
Yes, yes.

The motion to take the Report into consideration was adopted.

4.27.218
B. Pocker Sahib Bahadur
I wanted to say one word about the proposition you have put.


4.27.219
President
I put it to vote and it has been carried.


4.27.220
Jawaharlal Nehru
Sir, I suggest that we should begin with Part IV, Chapter I.

"Clause 1 (1) The Head of the Federation shall be the President (Rashtrapati) to be elected as provided below.

(2) The election shall be by an electoral college consisting of-

(a) the members of both Houses of Parliament of the Federation, and

(b) the members of the Legislatures of all the Units or where a Legislature is bicameral the members of the Lower House thereof.

In order to secure uniformity in the scale of representation of the units the votes of the Unit Legislatures shall be weighted in proportion to the population of units concerned.

Explanation.--A Unit means a Province or Indian State which returns in its own individual right members to the Federal Parliament. In Indian States which are grouped together for the purpose of returning representatives to the Council of States a Unit means the group so formed and the Legislature of the Unit means the Legislatures of all the states in that group.

(3) The election of the President shall be by secret ballot and on the system of proportional representation by means of the single transferable vote.

(4) Subject to the above provisions, elections for the office of President shall be regulated by Act of the Federal Parliament."


4.27.221
Jawaharlal Nehru
Now Sir, one thing we have to decide at the very beginning is what should be the kind of governmental structure, whether it is one system where there is ministerial responsibility or whether it is the Presidential system as prevails in the United States of America; many members possibly at first sight might object to this indirect election and may prefer an election by adult suffrage. We have given anxious thought to this matter and we came to the very definite conclusion that it would not be desirable, first because we want to emphasize the ministerial character of the Government that power really resided in the Ministry and in the Legislature and not in the President as such. At the same time we did not want to make the President just a mere figure-head like the French President. We did not give him any real power but we have made his position one of great authority and dignity. You will notice from this draft Constitution that he is also to be Commander-in-Chief of the Defence Forces just as the American President is. Now, therefore, if we had an election by adult franchise and yet did not give him any real powers, it might become slightly anomalous and there might be just extraordinary expense of time and energy and money without any adequate result. Personally, I am entirely agreeable to the democratic procedure but there is such a thing as too much of a democratic procedure and I greatly fear that if we have a wide scale wasting of the time, we might have no time left for doing anything else except preparing for the elections and having elections. We have got enough elections for the Constitution. We shall have elections 'on adult franchise basis for the Federal Legislature’. Now if you add to that an enormous Presidential election in which every adult votes in the whole of India, that will be a tremendous affair. In fact even financially it will be difficult to carry out and otherwise also it will upset most activities for a great part of the year. The American Presidential election actually stops many activities for many many months. Now it Is not for we to criticise the American system or any other system. Each country evolves the system of its choice. I do think that while there are virtues in the American system, there are great defects in that system. I am not concerned with the United States of America. I am concerned with India at present, and I am quite convinced in my mind that if we try to adopt that here, we shall prevent the development of any ministerial form of Government and we shall waste tremendous amount of time arid energy. It Is said that the American Presidential election helps the forging of unity of the country by concentrating the mind of the entire country on the Presidential election and on the conduct of those elections. One man becomes the symbol of the country. Here also he will be a' symbol of the country; but I think that having that type of election for our President would be a bad thing for us.


4.27.222
Jawaharlal Nehru
Some people suggested, why have even this rather complicated system of election that we have suggested? Why not the Central Legislature by itself elect the preside itself elect the president? That will be much simpler, of course, but there is the danger that it will be putting the thing very much on the other side, of having it on too narrow a basis. The Central Legislature may, and probably will be dominated, say, by one party or group which will form the ministry. If that group elects the President, inevitably they will tend to choose a person of their own party. He will then be even more a dummy than otherwise. The President and the ministry will represent exactly the same thing. It is possible that even otherwise the President may represent the same group or party or ideas. But we have taken a middle course and asked all the members of all the legislatures all over India, in all the units to become voters. It is just likely, that they will be choosing a party, man. Always that is possible of course. Anyway, we may rule out electing the President by the Central Legislature as being on too narrow a basis.


4.27.223
Jawaharlal Nehru
To have it on adult franchise, you must have some kind of electoral college; It has been suggested that we may have some kind of electoral college which will include all manner of people--members of municipalities, district boards and so on. That, I think will be introducing confusion without doing good to anybody. It will mean a large number of petty elections for making up the electoral college. In the various legislatures you have already a ready-made electoral college--that is, the members, of the legislatures all over India. Probably they will number a few thousands. And presumably these members of the legislatures will he lit a better position to judge of the merits of the individual in question or the candidates than some other larger electoral college consisting of municipal members and others. So I submit to the House that the method that this Committee bus suggested is quite feasible and is the right method to choose a good man who will have authority and dignity in India and abroad.


4.27.224
Jawaharlal Nehru
You will notice that in choosing this method, we have taken care to prevent any weightage in voting, because legislatures, a hag been explained, I believe in a note, may not be, representative of the population of the numbers of the population. A province like the United Provinces or Madras may have a provincial legislature of 300 persons representing some 60 or 55 million people. I do not know how many. Another legislature may have 50 members representing some 50,000. It will be rather absurd to give the same weightage and the result will be that a number of very small units in the country will really dominate the scene. Therefore weightage has been disallowed and some formula will have to be worked out carefully to see that voting is according to the population of the units concerned. I beg to move.


4.27.225
President
We shall take up the amendments to this motion, and resume discussion on this, next day.


4.27.226
President
Before we depart I would like to make one announcement. We have now the Report of the Union Powers Committee which had been circulated. Members may send in their amendments till day after tomorrow 5 P.m. i.e., up to Wednesday, the 23rd at 5 P.m. (Some Honourable Members: "We have not received the Report"). I understand the Report was circulated long ago, in fact that it has been circulated twice. But if still any member has not received a copy, he may take it now."


4.27.227
Unnamed Members
We are anxious to know the time-table for the next session. May we put off giving notice of amendments till Thursday evening?


4.27.228
President
Yes, notice of amendments to Union Powers Committee's Report may be given till 5 P.m. on Thursday, the 24th instant.

The House then adjourned till Ten of the Clock, on Tuesday, the 22nd July 1947.