Constituent Assembly Debates
Constituent Assembly Debate On 1 December, 1948
CONSTITUENT ASSEMBLY OF INDIA - VOLUME VII
Wednesday, the 1st December 1948
The Constituent Assembly of India met in the Constitution Hall, New Delhi at Half Past Nine of the Clock,Mr. Vice-President (Dr. H. C. Mookherjee), in the Chair.
Shri H. V. Kamath (C. P. & Berar: General): Sir, before we proceed with the business of the day, may I request you to be so good as to see that my learned friend, Shri Alladi Krishnaswami Ayyar, who is frequently called upon to give us the benefit of his sage counsel is allotted a seat somewhere in the centre of the hall, neither too much to the right nor to the left so that he may be heard and appreciated in the House?
Mr. Vice-President (Dr. H. C. Mookherjee): We shall try to meet the wishes of the House.
We finished our discussion on Article 12 and Dr.Ambedkar gave his reply. I am sorry I cannot accommodate those Members who want to reopen it. I shall now put the different amendments to the vote one after the other.
Mr. Vice-President: The question is:
"That in clause (1) of article 12, after the word `title' the words `not being a military or academic distinction' be inserted."
The motion was adopted.
Mr. Vice-President: The question is:
"That in clause (1) of article 12, after the words `beconferred' the words `or recognised' be inserted".
The motion was negatived.
Mr. Vice-President: The question is:
"That in clause (1) of article 12, after the word`State' the words `and the State shall in no way recognize any title conferred by the Brit ish Government on any citizen of India prior to August 15, 1947' be inserted."
The motion was negatived.
Mr. Vice-President: The question is:
"That in clause (1) of article 12, after the word`conferred' the words `or recognised' be inserted."
The motion was negatived.
Mr. Vice-President: The question is:
"That for clause (2) of article 12. the following clause be substituted.
`(2) No title conferred by any foreign State on any citizen of India shall be recognised by any State.'"
The motion was negatived.
Mr. Vice-President: The question is:
"That article 12, as amended, stand part of the Constitution."
The motion was adopted.
Article 12, as amended, was added to the Constitution.
Mr. Vice-President: We shall now take up article 13 for consideration.
Shri Damodar Swarup Seth (United Provinces: General):Sir, I beg to move:
"That for article 13, the following be substituted:
`13. Subject to public order or morality the citizens are guaranteed--
(a) freedom of speech and expression;
(b) freedom of the press;
(c) freedom to form association or unions;
(d) freedom to assemble peaceably and without arms;
(e) secrecy of postal, telegraphic and telephonic communications.
13-A. All citizens of the Republic shall enjoy freedom of movement throughout the whole of the Republic. Every citizen shall have the right to sojourn and settle in anyplace he pleases. Restrictions may, however, be imposed by or under a Federal Law for the protection of aboriginal tribes and backward classes and the preservation of public safety and peace.'"
Sir, article 13, as at present worded, appears to have been clumsily drafted. It makes one significant omission and that is about the freedom of the press. I think, Sir, it will be argued that the freedom is implicit in clause (a),that is, in the freedom of speech and expression. But, Sir,I submit that the present is the age of the Press and the Press is getting more and more powerful today. It seems desirable and proper, therefore, that the freedom of the Press should be mentioned separately and explicitly.
Now, Sir, this article 13 guarantees freedom of speech and expression, freedom to assemble peaceably and without arms, to form association and unions, to move freely throughout the territory of India, to sojourn and settle in any territory, to acquire and hold and dispose of property,and to practise any profession or trade or business. While the article guarantees all these freedoms, the guarantee is not to
affect the operation of any existing law or prevent the State from making any law in the general interests of the public. Indeed, Sir, the guarantee of freedom of speech and expression which has been given in this article, is actually not to affect the operation of any existing law or prevent the State from making any law relating to libel,slander, defamation, sedition and other matters which offend the decency or morality of the State or undermine the author ity or foundation of the State. It is therefore clear.Sir, that the rights guaranteed in article 13 are cancelled by that very section and placed at the mercy or the high-handedness of the legislature. These guarantees are also cancelled, Sir, when it is stated that, to safeguard against the offences relating to decency and morality and the undermining of the author ity or foundation of the State, the existing law shall operate. This is provided for in very wide terms. So, while certain kinds of freedom have been allowed on the one hand, on the other hand, they have been taken away by the same article as I have just mentioned. To safeguard against "undermining the author ity or foundation of the State" is a tall order and makes the fundamental right with regard to freedom of speech and expression virtually ineffectual. It is therefore clear that under theDraft Constitution we will not have any greater freedom of the press than we enjoyed under the cursed foreign regime and citizens will have no means of getting a sedition law invalidated, however flagrantly such a law may violate their civil rights.
Then, Sir, the expression `in the interests of general public' is also very wide and will enable the legislative and the executive author ity to act in their own way. Very rightly, Sir, Shri S. K. Vaze of the Servants of India Society while criticis ing this article has pointed out that if the mala fides of Government are not proved--and they certainly cannot be proved--then the Supreme Court will have no alternative but to uphold the restrictive legislation.The Draft Constitution further empowers the President, Sir,to issue proclamations of emergency whenever he thinks that the security of India is in danger or is threatened by an apprehension of war or domestic violence. The President under such circumstances has the power to suspend civilliberty.
Now, Sir, to suspend civil liberties is tantamount to a declaration of martial law. Even in the United States, civil liberties are never suspended. What is suspended there, in cases of invasion or rebellion, is only the habcas corpus writ. Though individual freedom is secured in this article,it is at the same time restricted by the will of the legislature and the executive which has powers to issue ordinances between the sessions of the legislature almost freely, unrestricted by any constitutional provision.Fundamental rights, therefore, ought to be placed absolutely outs de the jurisdiction, not only of the legislature but also of the executive. The Honourable Dr. Ambedkar, Sir,while justifying the limitations on civil liberties, has maintained that what the Drafting Committee has done is that, instead of formulating civil liberties in absolute terms and depending on the aid of the Supreme Court to invent the doctrine or theory of police powers, they have permitted the State to limit civil liberties directly. Now,if we carefully study the Law of Police Powers in the United States, it will be clearly seen that the limitations embodied in the Draft Constitution are far wider than those provided in the United States. Under the Draft Constitutionthe Law of Sedition, the Official Secrets Act and many other laws of a repressive character will remain intact just as they are. If full civil liberties subject to Police Powers,are to be allowed to the people of this country, all laws of a repressive character including the Law of Sedition will have either to go or to be altered radically and part of the Official Secrets Act will also have to go. I therefore submit that this article should be radically altered and substituted by
the addenda I have suggested. I hope, Sir,the House will seriously consider this proposal of mine. If whatever fundamental rights we get from this Draft Constitution are tempered here and there and if full civil liberties are not allowed to the people, then I submit, Sir,that the boon of fundamental rights is still beyond our reach and the making of this Constitution will prove to be of little value to this country.
Mr. Vice-President: Do I understand that amendment No.441 will not be moved? I shall not allow any discuss on but I shall put it to vote. Do I understand that the mover does not intend to move this amendment."
(Amendment 441 was not moved.)
(Amendments No. 413 and No. 414 were not moved.)
Mr. Vice-President: Amendments Nos. 415 and 418. They are the same. I will allow amendment No. 415 to be moved. It stands in the names of Pandit Lakshmi Kanta Maitra and others, including Mr. Kamath.
Shri Mihir Lal Chattopadhyay (West Bengal: General):Sir, I beg to move:
"That in clause (1) of article 13, the words `Subject to the other provisions of this article' be deleted."
Various provisos have been mentioned in this Section in clauses (2), (3), (4), (5) and (6). Therefore the words"subject to the other provisions of this article" are unnecessary.
Mr. Naziruddin Ahmad (West Bengal: Muslim): I submit that this is a drafting amendment.
Mr. Vice-President: Proceed, Mr. Chattopadhyay.
Shri Mihir Lal Chattopadhyay: Moreover, this section deals with Fundamental Rights and there should be positive enumeration of these rights and privileges at the beginning and it should not begin with provisos. Each proviso should in the natural course come afterwards. I therefore move this amendment.
(Amendment No. 419 was not moved.)
Mr. Vice-President: Then we come to amendment No. 416 standing in the name of Prof.K.T.Shah.
Prof. K. T. Shah (Bihar: General): Mr. Vice-President,Sir, I beg to move:
"That in clause (1) of article 13, for the words, "the other provisions of this article" the words `this constitution and the laws there under or in accord there withat any time in force' be substituted, and after the words`all citizens shall have' the words `and are guaranteed' be added."
The article, as amended, would read:
"Subject to this Constitution and the laws there under or in accord there with at any time in force, all citizens shall have and are guaranteed the right" etc.
Sir, my purpose in bringing forward this amendment is to point out that, if all the freedoms enumerated in this article are to be in accordance with only the provisions of this article, or are to be guaranteed subject to the provisions of this article only, then they would amount more to a negation of freedom than the promise or assurance of freedom, because in everyone of these clauses the exceptions are much more emphasised than the positive provision. In fact, what is given by one right hand seems to be taken away by three or four or five left hands; and therefore the article is rendered nagatory in any opinion.
I am sure that was not the intention or meaning of the draftsmen who put in the other articles also. I suggest therefore that instead of making it subject to the provisions of this article, we should make it subject to the provisions of this Constitution. That is to say, in this Constitution this article will remain. Therefore if you want to insist upon these exceptions, the exceptions will also remain. But the spirit of the Constitution. the ideal under which this Constitution is based, will also come in, which I humbly submit, would not be the case, if you emphasise only this article. If you say merely subject to the provisions of this article, then you very clearly emphasise and make it necessary to read only this article by itself, which is more restrictive than necessary. I am aware it might be said that, under the rules of interpretation, the whole Constitution will have to be read together and not only one clause of it. If so, I ask where is the harm in then saying,as you have said in many other
articles, "subject to the provisions of this Constitution"? and "subject also to the laws in force at any time and the laws there under"? Those laws which have not been abrogated or abolished under this article or any other article will be enforced. Those new laws which you make in accordance with this article will also be enforced, so that all the safeguards that you wish to introduce, and which you may wish to maintain against any abuse of the freedoms guaranteed or granted by this Constitution, will be available.
Why then should we draw attention and emphasize only this article, which is more full. I repeat, of exceptions and delimitations of freedom than of freedom itself? The freedoms are curtly enumerated in 5.6 or 7 items in one sub-clause of the article. The exceptions are all separately mentioned in separate sub-clauses. And their scope is so widened that I do not know what cannot be included as exception to these freedoms rather than the rule. In fact,the freedoms guaranteed or assured by this article become so elusive that are would find it necessary to have a microscope to discover where these freedoms are, whenever it suits the State or the author ities running it to deny them.I would, therefore, repeat that you should bring in the provisions of the whole Constitution, including its preamble, and including all other articles and chapters where the spirit of the Constitution should be more easily and fully gathered than merely in this article, which, in my judgment, runs counter to the spirit of the Constitution. Somebody described yesterday the Constitution as a paradise for lawyers. All written Constitutions, and even un-written ones, do admit themselves to legal chicanery of a very interesting type.Constitutions of Federal States are generally more so. But whether or not it was deliberately intended to be so, this particular Draft seems to be a very fertile ground for legal ingenuity to exercise. And that will, of course, be at the expense of the Community. Whether the State wins or loses,the public, the country in any case, will lose to one small section, that of the legal practitioners.
I also suggest that it would not be enough to enumerate these freedoms, and say the citizen shall have them. I would like to add the words also that by this Constitution these freedoms are guaranteed. That is to say, any exception which is made, unless justified by the spirit of the Constitution,the Constitution as a whole and every part of it included,would be a violation of the freedoms guaranteed hereby.
For instance, sub-clause (5) uses such a wide expression as to make anything come within the scope of the exception, and suffice to deny the practical operation of the freedoms that by one big clause you are supposed to guarantee. I, therefore, think that it is necessary to make the substitution I have suggested in this article, that the words "this Constitution and the laws there under or in accord there with at any time in force" may be substituted for the words "the other provisions of this article" and after the words "all citizens shall have" the words "and are guaranteed" be added. I hope the amendment will prove acceptable to the House.
Mr. Vice-President: Amendment Nos. 417 and 418 are of similar import. I can allow No. 417 to be moved. This amendment stands in the name of Mr. Lari.
An Honourable Member: He is not in the House.
Mr. Vice-President: Then amendment No. 418 which stands in the name of Shri Mukut Behari Lal Bhargava.
The amendment was not moved.
Mr. Vice-President: Amendment Nos. 420, 421, and 424 are of similar import and I suggest that the House should consider them together. I suggest that amendment No. 421 be moved. This stands in the name of Prof. K. T. Shah.
Prof. K. T. Shah: Mr. Vice-President, Sir, I beg to move:
"That in sub-clause (a) of clause (1) of article 13,after the word `expression'; the words `of thought and worship; of press and publication;' be added."
so that the article as amended would read:
"Subject to the other provisions of this article, all
citizens shall have the right--
(a) to freedom of speech and expression; of thought and worship; of press and publication;"
In submitting this amendment, I must confess to a feeling of amazement at the omission whether it is by oversight or deliberate. I do not know of these very essential and important items in what are known as Civil Liberties. The clause contents itself merely with the freedom of speech and of expression. I do not know what typeof freedom of speech the draftsman had in mind when he adds to it the freedom of expression separately. I thought that speech and expression would run more or less parallel together. Perhaps "expression" may be a wider term, including also expression by pictorial or other similar artistic devices which do not consist merely in words or in speech.
Allowing that is the interpretation, or that is the justification for adding this word "expression", I still do not see why freedom of worship should have been excluded. I am not particularly a very worshipful man myself. Certainly I do not indulge in any overt acts of worship or adoration.But I think a vast major ity of people feel the need and indulge in acts of worship, which may often be curtailed or be refused or in other words be denied unless the Constitution makes it expressly clear that those also will be included. All battles of religion have been fought--and it must be very well known to the draftsman that they are going on even now--in connection with the right of free worship. The United States itself owes its very origin to the denial of freedom of worship in their original home to the Fathers of the present Union some 300 odd years ago.That is why in most modern constitutions, the freedom of worship finds a very clear mention. I certainly feel therefore that this omission is very surpris ing, to say the least. Unless the Drafting Committee is in a position to explain rationally, is in a position to explain effectively why this is omitted, I for one would feel that our Constitution is lacking and will remain lacking in a most essential item of Civil Liberties if this item is omitted.
The same or even a more forceful logic applies to the other "freedom of the press, and freedom of publication."The freedom of the press, as is very well known, is one of the items round which the greatest, the bitterest of constitutional struggles have been waged in all constitutions and in all countries where liberal constitutions prevail. They have been attained at considerable sacrifice and suffering. They have now been achieved and enshrined in those countries. Where there is no written constitution, they are in the well established conventions or judicial decisions. In those which have written constitutions, they have been expressly included as the freedom of the press.
Speaking from memory, I am open to correction, although I think it would not be necessary, even the United NationsCharter gives good prominence and special mention of freedom of the press. Why our draftsmen have omitted that, I find beyond me even to imagine. I dare say they must have very good reasons why the freedom of the press has not found specific mention in their draft. But, unless and until they give the reasons and explain why it has been omitted, I feel that an amendment of the kind I am proposing is very necessary.
The Press may be liable to abuse; I feel there may have been instances where the press has gone, at least in the mind of the established author ity, beyond its legitimate limits. But any curtailment of the liberty of the press is,as one of the present Ministers, who was then a former non-official member, called, a "black Act," in the last but onesession of the legislature when there was an attempt tocurtail the liberty of the press under certaincircumstances. This endeared him at least so much to me that in spite of many differences with him. I felt he had doneyeoman service, though singly opposing even at the thirdreading of the Bill.
With the presence of such men in this House, I amamazed that in this Constitution a very glaring
omission hastaken place in the draft by leaving out the freedom of thepress. I cannot imagine, why these draftsmen, so experiencedand so seasoned, should have felt it desirable to leave outthe freedom of the press, and leave it to the charity of theadministrators of the Constitution when occasion arose toinclude it by convention or implication, and not by expressprovision. Freedom of the press, I repeat, is apt to be misunderstood, or, at any rate, apt to be regarded as licencewhich you may want to curtail. There are many ways by whichlaws can be passed or laws can be administered whereby youcan regard the liberty as verging upon licence and as suchto be curtailed. To omit it altogether, I repeat, and Irepeat with all the earnestness that I can command, would bea great blemish which you may maintain by the force of the major ity, but which you will never succeed in telling theworld is a progressive liberal constitution, if you insiston my amendment being rejected.
Mr. Vice-President: Amendment No. 420. Is it pressed?
(Mr. Naziruddin Ahmad rose in his seat to speak.)
You need not come. I only want to know whether youintend to press this, in which case, I shall put it to thevote.
Mr. Naziruddin Ahmad: Sir, I wish to speak on this.
Mr. Vice-President: You can speak in the course of thegeneral discussion, provided, of course, you get a chance.
You have given me the power to rule out; take yourseat, please; it will be put to the vote.
Mr. Naziruddin Ahmad: Without any debate, Sir?
Mr. Vice-President: Amendment No. 422.
(Shri Lakshminarayan Sahu came to the rostrum.)
You are not allowed to speak. Do you want to press it?
Shri Lakshminarayan Sahu (Orissa: General): Yes, Sir.
(Amendment No. 424 was not moved.)
Mr. Vice-President: Amendment No. 423 is disallowed.
(Amendment No. 425 was not moved.)
Mr. Vice-President: Amendment No. 426.
Giani Gurmukh Singh Musafir (East Punjab: Sikh): *[I donot wish to move my amendment, as it is covered by clause(1) of the Explanation to article 19.]
Mr. Vice-President: I cannot follow what he is saying.
An Honourable Member: He is not moving the amendment.
(Amendment No. 427 was not moved.)
Mr. Vice-President: Amendments numbers 428, 429, 430and 432 are of similar import and are therefore to beconsidered together. Amendment No. 428 may be moved.
Mr. Naziruddin Ahmad: Sir, am I to move all the amendments and speak, on all of them?
Mr. Vice-President: On amendment No. 428 only.
Mr. Naziruddin Ahmad: Will all the others be put to thevote?
Mr. Vice-President: Of course.
Mr. Naziruddin Ahmad: Sir, I beg to move:
"That at the end of sub-clause (c) of clause (1) ofarticle 13, the words `for any lawful purpose' be inserted."
The Honourable Shri K. Santhanam (Madras: General):Sir, on a point of order, sub-clause (4) covers exactly thisposition in greater detail.
Mr. Naziruddin Ahmad: I had carefully thought aboutthis objection, Sir, and I was just going to mention thedifficulty of that view. That is the only reason why I havecome here to move the amendment.
* [ ] Translation of Hindustani Speech.
Mr. Vice-President: Proceed.
Mr. Naziruddin Ahmad: Sir, all that I wish to convey bymeans of this amendment is that the people's freedom ofspeech, freedom of forming associations or unions, andmoving freely throughout the territory and residing in anyplace, should be subject to the condition that they do itfor a lawful purpose.
So far as Mr. Santhanam is concerned, he does notquarrel with the principle. His contention is that theseconditions are sufficiently expressed in the clauses (2),(3), (4), (5) and (6). I shall draw the attention of theHouse and particularly of Mr. Santhanam to sub-clause (b) ofclause (1) of article 13. It gives the right to assemble`peaceably and without arms'. The words `peaceably andwithout arms' should be objectionable from the point of viewof Mr. Santhanam because it may be argued that the words areunnecessary and the condition is sufficiently provided forin clause
(3). I submit that the amendments which stand inmy name are merely an application of this method ofdraftsmanship to the other sub-clauses. I submit if we havethem in the sub-clauses (b), they should also be in (a),(c), (d), (e), (f) and (g). If we introduce the words "forany lawful purpose" there, they will be beyond the scope of any legislature to interfere. But if we are satisfied withclauses (2), (3), (4), (5) and (6), they can be interferedwith by the Legislature. So there is this difference thatwith the inclusion of the words in the sub-clauses as Isuggest, they would be part of the Fundamental Right. That is, if any one speaks, he should do so for a lawful purpose;if he forms associations and unions, he should do it in alawful manner, i.e., he should not join or form into aconspiracy or other forbidden things of the sort. Then if hewants to move throughout the territory of India, I thinkthis should be also limited by the condition that it shouldbe for a lawful purpose. No male person should enter afemale compartment in railway carriage or enter into lady'sdressing room: and then somebody might say "I shall residein this Assembly Hall"; there must be imiting conditions. Mypoint is if you insert them in sub-clauses (a), (c), (d),(e), (f) and (g), as you have already inserted specificallyin sub-clause (b)--if you insert them in these sub-clauses,then they will be part of the Fundamental Right and clauses(2), (3), (4), (5), and (6) will not give any power to the legislatures to abrogate them. This is the reason whichinduced me to move this amendment. Sir, this point of viewshould be carefully considered.
(Amendments No. 431 and Nos. 433 to 437 were not moved.)
Mr. Vice-President: No. 438 and first part of 443. Mr.Kamath.
Shri H. V. Kamath: Mr. Vice-President, I move:
"That after sub-clause (g) of clause (1) of article 13the following new sub-clause be added:
I move this amendment, as amended by my own amendmentNo. 79 in List No. II, which runs thus:
"That for amendment No. 438 of the List of Amendments,the following be substituted:
"That after sub-clause (g) of clause (1) of article 13,the following new sub-clause be added:--
(h) to keep and bear arms;
and the following new clause be added after clause (6):
(7) Nothing in sub-clause (h) of the said clause shallaffect the operation of any existing law, or prevent theState from making any law, imposing, in the interests ofpublic order, peace and tranquillity, restrictions on theexercise of the right conferred by the said sub-clause.'"
Sir, I feel a little pardonable pride in moving this amendment before the House today. Considering as I do thatit puts an end or brings to an end one phase of ourignominious past, the past of more than a hundred years, and in view of the importance of this matter involved in the amendment, may I appeal to you, Sir, to give me a littlelatitude in the matter of time, because I want to put thecase in its entirety before the House? And may I also make apersonal request to Dr. Ambedkar or whoever it may be thatwill reply on behalf of the Drafting Committee, to pay closeattention to what is going out in the House? Yesterday wefound at the fag end of the day Dr. Ambedkar--perhaps he wasa bit fagged out and tired--I felt that he had not followedthe debate on titles.
Mr. Vice-President: I will not allow you to make anyreference to what happened yesterday.
Shri H. V. Kamath: Before I come to the amendmentitself may I say a word as to an important omission whichhas been made before article 13? I find from the Report of the Fundamental Rights Sub-Committee over which theHonourable Sardar Patel presided, the rights from 13 upto 18have been titled or designated as the Rights of Freedom.This sub-title `Rights of Freedom' has been omitted from thedraft as presented to the Assembly now. In this report whichI am reading--Report of the Committee--First Series fromDecember 1946 to July 1947--the sub-title is `Rights ofFreedom' just before we come to article 13.
Then, Sir, I come to the amendment itself. It is
commonknowledge to all of us who have lived and worked in Indiaduring the last thirty years or more that this has been auniversal demand emanating from all sections of thepopulation, firstly as a protest against the degrading andhumiliating Arms Act passed by the Brit ish Government in thelast century, and secondly, Sir, as a guarantee of the rightof self-defence. This demand has been embodied in variousCongress Resolutions during the last two decades. The mostimportant Resolution and most historic, the most momentouswas the Resolution on Fundamental Rights passed at Karachi.I read, Sir, from that Resolution the relevant extracts:
"This Congress is of opinion that to enable the massesto appreciate what Swaraj as conceived by the Congress willmean to them, it is desirable to state the position of theCongress in a manner easily understood by them. In order toend the exploitation of the masses, political freedom mustinclude real economic freedom of the starving millions. TheCongress, therefore, declares that any constitution.
Mark these words--any constitution.
* * * which may be agreed to on its behalf, shouldprovide or enable the Swaraj Government to provide for thefollowing......"
and various fundamental rights are enumerated, among them being this one--
"Every citizen has the right to keep and bear arms inaccordance with Regulations and reservations made in thatbehalf."
I find, Sir, from this list of Fundamental Rights, adoptedat the Karachi session of the Congress, almost all of themhave been incorporated in this Draft Constitution, exceptthis one, and this is a very serious omission.
I might also make an observation about this amendment,that I am in a very good company, because amendment No. 443which is similar to my amendment has been tabled by theGeneral Secretaries of the Congress--Shri Shankar Rao Deoand Acharya Jugal Kishore.
Mr. Vice-President: Do you suggest that it is the workof the Congress only? I thought it is the co-operative workof all the parties.
Shri H. V. Kamath: But, Sir, all will agree that thedominant party in this House is the Congress Party, and ifthis party is not going to stand by its past professions, ifit is going to prove false to its past, and not implementits resolution of the past, what has that party come to? If the fundamental idea of this resolution passed at Karachi isto be given the go-by, I ask this House, shall we not fallin the estimation of the people of the country? Sir, thisdemand has not been a mere demand. I very well remember that in Nagpur in 1923 or 1924 there was a Satyagraha movement against theArms Act and this Satyagraha movement attracted Satyagrahisfrom all over-India. That went on for six months, and theCongress put its seal of approval on this Satyagrahamovement against the Arms Act. Today we may say thatconditions have changed and we do not want this sort ofthing to be incorporated in our fundamental rights. But,Sir, I will come to that argument a little later.
I can appreciate the force of the argument that thisabsolute right should not be conceded today. Perhaps thereis a lurking fear in the minds of those in power that theright may be abused. For that reason I have given thisproviso in conformity with and in line with the otherprovisos which have been embodied in this article. I ampersonally not very much in favour of these elaborateprovisos. Here again, I would like to draw the attention of the Honourable Dr. Ambedkar to pages 21 and 29 of thisReport of the Committees' First Series. On page 21, we havethe Report of the Fundamental Rights Sub-Committee presidedover by the Honourable sardar Patel, and later on the samereport was discussed in the Assembly and modifications weremade in that, and the elaborate provisos which appeared in the original report of the Fundamental Rights Committee donot find a place in the resolution on the report which wasadopted by the Constituent Assembly. This perhaps needs anexplanation from Dr. Ambedkar.
Reverting to the subject matter of the amendment. Ihave already said that I do not want to make this
rightabsolute. That is why I have tabled this proviso, imposingrestrictions in the interests of public order, peace andtranquillity. It may be said that saboteurs and otherelements are abroad in the country and these may abuse thisprivilege and take advantage of this privilege conferredupon the ordinary citizen. But may I tell the House thatsaboteurs and other evil elements, villains and criminalshave managed and will always manage to get arms, Arms Act orno Arms Act; and it is the law-abiding citizen who hasalways suffered in the bargain, and it is he who has to beprotected against these elements. The history of the lasttwelve months has proved this to us most unmistakably, thatthose who suffer in these criminal riots and disturbancesare not the violent elements or the saboteurs, but the law-abiding citizens, and these have to be protected.
Again, the argument may be put forward that we shouldincorporate only such rights about which there is fear thatthey might be denied to the citizen. But if we examine thisargument a little closely, and also this article, in thelight of this argument, we will find that rights like freemovement throughout India; freedom to reside and settle inany part of India, and such other rights about which thereis no doubt or fear that they will be denied, have beenincorporated in this article. But this one right, to keepand bear arms has not found a place in this article. If thisvery diluted proposal of mine, if even this very abridgedfreedom to bear arms is not acceptable to the House, I amafraid it will create a most unfortunate impression on ourcountrymen that the Government does not trust the people,that the Government has no faith in the people, that theGovernment is afraid of the people. It is all right. Sir,for Ministers of Government to say, "We are here to protectyou". But, with security guards outside their bungalows, it is very well for them to put forward this plea. But theordinary citizen has no armed guard about him, no guardsstanding outside his house. If the Government wishes toconvey the impression to the people that the Government hasno faith in them, that it is afraid of them, if that is theattitude of the Government, then it is welcome to say so. Itwill prove to the people that you are not a populargovernment, that you are a government which has no faith in the people. If you are a popular government, this is theleast that you can do today to put an end to this ignominyof the past one hundred years.
It may be argued also that the Congress and MahatmaGandhi and our leaders have taught us to defend ourselves byAhimsa, and not by Himsa, by non-violence and not byviolence. But, Sir, may I, in all humility remind the Housethat Mahatma Gandhi used to say, "Resist, defend, non-violently, if possible, but violently, if necessary. What Ihate is cowardice." And this doctrine, Sir, has beenpropagated recently by the Honourable Sardar Patel himselfwho has been going about the country asking the people neverto run away, never to be cowards, but to resist violently ifnecessary, not to run away from the assassin, from thehooligan, from the criminal. Defend yourself by all meansand at all costs. I find my honourable Friend Mr. ShankarRao Deo laughing in his seat. He is welcome to smile orlaugh but I may tell him that he laughs best who laughslast. He has tabled an amendment here. I do not know whetherhe is serious about it. In the end I will only say that ifwe of the Congress party who are in a major ity desire toprove true to our past, if we have the desire in us toimplement all the resolutions that we have adopted in thepast, if we do not want to live with the lie in our soul, Iappeal to the House to accept this amendment and put an endto one of the most disgraceful phases of our ignominiouspast of over a hundred years.
Mr. Vice-President: May I ask whether the first part of amendment No. 443 is going to be pressed?
Shri Shankarrao Deo (Bombay: General): No, Sir.
Maulana Hasrat Mohani (United Provinces: Muslim): Sir,I want to give my wholehearted support to the motion of
myhonourable Friend who has just moved his amendment........
Mr. Vice-President: May I suggest that instead ofstarting the general discussion we postpone it till all the amendments have been moved. We shall try our best to givethe Maulana Sahib an opportunity to speak. Will he kindlyresume his seat? (Laughter)
Order, order. The Maulana Sahib is perfectly within hisrights if he wants to speak. I am sorry, Maulana Sahib, toask you to go back to your seat. It is regrettable to greetan old Member of this House in this fashion.
Mr. Mohammed Ismail Sahib (Madras: Muslim): Sir, Imove:
"That after sub-clause (g) of clause (1) of article 13,the following new sub-clause be added:--
`(h) to follow the personal law of the group orcommunity to which he belongs or professes to belong.
(i) to personal liberty and to be tried by a competentcourt of law in case such liberty is curtailed'."
Shri C. Subramaniam (Madras: General): On a point oforder, Sir, the House has already passed an article in thePart on directive principles that there should be a uniformcivil code. Here the Honourable Member wants to move thateverybody should have the liberty to follow the personal lawof the group or community to which he belongs or professesto belong. This is going contrary to the article which hasalready been passed. We have already decided that as far aspossible personal law should come under a uniform civil codeand this amendment is against the principle of that article.
As regards the other part of the amendment, it shouldbe discussed when we take up article 15.
Mr. Vice-President: It is no point of order. Mr.Mohammed Ismail Sahib may continue his speech.
Mr. Mohammed Ismail Sahib: It is really true that Imade a similar proposal when the directive principles wereunder discussion. I made it clear that this question ofpersonal law ought really to come under the chapterFundamental Rights and I also said that I shall, when theopportunity came, move this amendment at the proper time.
Person law is part of the religion of a community orsection of people which professes this law. Anything whichinterferes with personal law will be taken by that communityand also by the general public, who will judge this questionwith some commonsense, as a matter of interference withreligion. Mr. Munshi while speaking on the subjectpreviously said that this had nothing to do with religionand he asked what this had to do with religion. He as anillustrious and eminent lawyer ought to know that thisquestion of personal law is entirely based upon religion. It is nothing if it is not religious. But if he says that areligion should not deal with such things, then that isanother matter. It is a question of difference of opinion asto what a religion should do or should not. People differand people holding different views on this matter musttolerate the other view. There are religions which omitaltogether to deal with the question of personal law and there are other religions like Hinduism and Islam which dealwith personal law. Therefore I say that people ought to begiven liberty of following their personal law.
It was also stated by Dr. Ambedkar on the floor of this House that the question of following personal law was notimmutable. There were, as a matter of fact, sections ofMuslims who do not follow the personal law prescribed byIslam, but that is a different matter. It is not reasonableto say that simply because a section of people do not wantto follow a certain law of a certain religion or a certainpart of that religion that other people also should notfollow the law and that sections of people should becompelled not to follow that part of the religion whichcertain other sections of the same community are notfollowing.
That is not really reasonable, Sir, and it is reallyimmutable to the people who follow this law and thisreligion, because people, as they understand it, have notgot the right to change their religion as they please. Theremay be people who contravene their own religion, but that isa different matter and we cannot compel others also to contravene their religion. Here the question of personal lawaffects only the people who follow this law. There is nocompulsion exercised thereby on the general community or thegeneral public. This House will remember that on anotherquestion, which is really a religious question--I mean thequestion of cow-slaughter--an obligation has been placedupon other communities than the one which considers theprohibition of cow-slaughter as a religious matter. Butthen, Sir, respecting the views and feelings of our friends.the minor ity communities who have got the right andprivilege of slaughtering and eating the flesh of cows have agreed to the proposal put before the House, though that isgoing beyond affecting one particular community alone. Here,Sir, observance of personal law is confined only to the particular communities which are following these personal laws. There is no question of compelling any other community at all.
Pandit Thakur Dass Bhargava (East Punjab: General): Is the honourable Member aware of the restrictions of cow-slaughter in Pakistan?
Mr. Vice-President: Will the honourable Member kindly address the Chair."
Mr. Mohammed Ismail Sahib: I cannot hear him properly.I do not know what my friend is trying to say.
Mr. Vice-President: Do not pay any attention to that.Will the Honourable Member continue?
Pandit Thakur Dass Bhargava: I was enquiring of thehonourable Gentleman if he knows that there is a restrictionon cow-slaughter in Pakistan, in Afghanistan and in manyMuhammadan countries. In India also the Muhammadan kingsplaced such a restriction.
Mr. Mohammed Ismail Sahib: They might have or not havemade a provision of that sort. My point is that this is aquestion which affects a particular community, but becausethat community wanted to prevent that slaughter the othercommunity, which need not prohibit that slaughte" has agreedto that proposal. But with regard to personal law, itconcerns a particular community which is following aparticular set of personal laws and there is no question ofcompelling other people to follow that law and it is thequestion of the freedom of the minor ity or the major itypeople to follow their own personal law. As a matter offact, I know there are an innumerable number of Hindus whothink that interference with the personal law is interference with their religion. I know, Sir, that theyhave submitted a monster petition to the author ities or to the people who can have any say in the matter. Therefore it is not only Muslims but also Hindus who think that this is areligious question and that it should not be interferedwith. The personal law of one community does not affect theother communities. Therefore, Sir, what I urge is that thefreedom of following the personal law ought to be given toeach community and it will not interfere with the rights of any other community.
Again, Mr. Munshi stated that Muslim countries likeEgypt or Turkey have not any provision of this sort. Sir, I want to remind him that Turkey is under a treaty obligation.Under that treaty it is guaranteed that the non-Muslimminor ities are entitled to have questions of family law andpersonal status regulated in accordance with their usage.That is the obligation under which Turkey has been placedand that is obtaining in Turkey now.
Then again with regard to Egypt, no such question ofpersonal law arose in that country. But what is to be notedis that whatever the minor ities in that country wanted hasbeen granted to them: in fact more than what they wanted hasbeen granted. And if personal law had also been a matter inwhich they wanted certain privileges, that would also havebeen granted.
Then there are other countries. Yugoslavia has agreedto give this privilege to the Muslims in following theirfamily law and personal law.
Therefore, what I am asking for is not a matter whichis peculiar to myself or to the minor ity community in thiscountry. It is a thing, Sir, well understood in other partsof the world also.
Sir, I also move:
"That after clause (6) of article 13, the following newclauses be
`(7) Nothing in the clauses (2) to (6) of this articleshall affect the right guaranteed under sub-clause (h) ofclause (1) of this article'."
This is consequential. The personal law is presumed to be guaranteed by the previous amendment, that is the newsub-clause (h) to clause (1) of article 13, and this clause(7) seeks to preclude any interference with the question ofpersonal law as a result of clauses (2) to (6).
Then coming to the new clause (i), it reads thus:
"to personal liberty and to be tried by a competentcourt of law in case such liberty is curtailed."
This has nothing to do with the minor ity or the major ity. It concerns itself with the right of everycitizen. Personal liberty is the core of the whole freedom.It is the basis upon which the freedom of the land must bebuilt. But here, Sir, in this bulky Constitution thisquestion of personal liberty is left almost as an orphan.Only one mention is made of personal liberty, i.e., inarticle 15 and it is left there, it is left to be taken careof by `procedure established by law'. I do not here enterinto the controversy whether it should be "by due process oflaw', or "by procedure established by law". But what I wantto say is that only a mention has been made in the Constitution with regard to personal liberty. But personalliberty is the most fundamental of the fundamental rights and it ought not to be dealt with insuch a cursory manner, as it has been done in the Constitution.
I request your permission to read a quotation toillustrate how the Constitutions of other countries havedealt with this all-important question of personal liberty.
Much smaller countries than India have taken a moreserious and, if I may say so, a sacred view of thisquestion. The Polish Constitution says, among other things:`If in any case the judicial order cannot be producedimmediately'--(it is only on a judicial order that a man'sliberty can be curtailed)--`it must be transmitted within 48hours of the arrest stating the reasons for the arrest.Persons who have been arrested and to whom the reasons for the arrest have not been communicated within 48 hours, inwriting over the signature of judicial author ities, shall beimmediately restored to liberty.'
`The laws prescribe the means of compulsion which maybe employed by the administrative author ity to secure thecarrying out of their order.'
Then again, the same Constitution says; "No law maydeprive a citizen, who is the victim of injustice or wrong,of judicial means of redress."
Sir, another State, viz., Yugoslavia, in regard to thismatter goes even further. It has provided:
"A man after he is informed of the reasons for thearrest or detention has got the right........."
Shri C. Subramaniam: Questions of personal liberty comeonly under article 15. They are irrelevant under thisarticle. It is article 15 that deals with personal libertythus: "No person shall be deprived of his life or personalliberty except according to procedure established by law,nor shall any person be denied equality before the law orthe equal protection of the laws within the territory ofIndia." Therefore what is the use of discussing the questionof personal liberty under article 13?
Mr. Mohammed Ismail Sahib: I have already referred tothis point. Of course it is mentioned there. But to say thatbecause it is mentioned there it is necessary that thematter should be discussed only there is not correct. I amof the view that this subject is more appropriately broughtunder article 13 which speaks of the various freedoms of thecitizen. Of these freedoms, this is the most important.Therefore there is nothing wrong in my saying that this all-important question must be brought under article 13. Withthat view I have tabled this amendment and I am speaking onthis amendment.
Sir, my amendment, which I have moved with yourpermission, says that the citizen shall be guaranteed hispersonal liberty. As I was saying, the Constitution ofYugoslavia has provided: "No person may be placed underarrest for any crime or offence whatever save by order of
acompetent author ity given in writing stating the charge.This order must be communicated to the person arrested atthe time of arrest or within 24 hours of the arrest. Anappeal against the order for arrest may be lodged in theCompetent Court within three days. If no appeal has beenlodged.--(this is important)--`within this period, thepolice author ities must as a matter of course communicatethe order to the competent court within 24 hours following.The court shall be bound to confirm or annul the arrestwithin 2 days of the communication of the order and itsdecision shall be given effect forthwith. Public officialswho infringe this provision shall be punished for illegaldeprivation of liberty'''.
Sir, ours is a bulky Constitution. Our friendscongratulated themselves in having produced the bulkiestConstitution in the world. And this Constitution from whichI read out an extract just now contains only 12 articles. It is a much smaller Constitution than ours and yet in thematter of personal liberty it has made such an elaborate provision as that Imentioned. This bulky Constitution of ours does not findmore than a few words where this all important question of personal liberty is concerned.
Now, Sir, there are various Public Safety Acts enactedand enforced in the various provinces of the country. Here,personal liberty as it stands is almost a mockery ofpersonal liberty. A man is being arrested at the will andpleasure of the executive. He is put in prison and he doesnot even know for what he has been imprisoned or for whatcharge he has been detained. Even where the law puts theobligation on the Government to reveal to him the reasonsfor which he has been detained, the executive takes its owntime to do so. There are cases in which the personsconcerned were not informed of the charge for weeks andmonths and when the charges were communicated, many of themwere found to be of such a nature that they could not standbefore a court of law for a minute. No right has been givento a detenu or a person arrested or detained to test thevalidity of the order before a court of law. This kind ofadministration of law was not known even under foreign rule,that is, under Brit ish rule.
Now, Sir, another contention is being indulged in, andthat is that it was different when the Brit isher, theforeigner was in the country and that now its is our ownrule. True, but that does not mean that we can deal withliberty of the citizens as we please. Bureaucracy isbureaucracy, whether it is under foreign rule or self-rule.Power corrupts people not only under foreign rule, but alsounder self-government. Therefore, Sir, the citizen must beprotected against the vagaries of the executive in a verycareful manner as other self-governing countries have done.In almost every country in the world, they have madeelaborate provision for protecting the personal liberty of the citizen. Why should India alone be an exception, I donot understand. Therefore, the framers of the Constitution,I hope, will reconsider this question and make suitableprovisions for the protection of the liberty of the person.
Sir, in this amendment of mine I have not goneelaborately into the question of personal liberty. I onlywant the citizen concerned to be given the right of goingto, and being tried by, a court of law, if his personalliberty is curtailed. That one precious right I want to begiven to every citizen of India.
May I also, Sir, move the other consequentialamendments included in amendment No 502. I have moved onlythe one on page 53 of the List of Amendments, namely newsub-clause (7). That relates to personal law. May I move nowthe other portion of the amendment relating to new clauses(8) and (9) on page 54 of the List?
Mr. Vice-President: The Honourable Member may do so,but without making a speech.
Mr. Mohammed Ismail Sahib: Sir, I move that thefollowing new clauses be added:
"(8) Nothing in clauses (2) to (6) shall affect theright guaranteed under sub-clause (i) of clause (1) of thisarticle.
(9) No existing law shall operate after thecommencement of this
Constitution so far as the same affectsadversely the right guaranteed under sub-clause (i) ofclause (1) of this article and no law shall be passed by theParliament or any State which may adversely affect the rightguaranteed under sub-clause (i) of clause (1) of thisarticle."
These are only consequential amendments.
Mr. Vice-President: We shall now go on to amendmentsNos. 442, 499, the second part of 443, 468 and 501. Theseare all of similar import. I hold that the only twoamendments which can be moved under the new regulations areamendments Nos. 442 and 499. The others will be voted on.
Shri M. Ananthasayanam Ayyangar (Madras: General): Allthese relate to free choice in the election ofrepresentatives. In a sense this is a new subject and may onthat account be held over for consideration.
Mr. Vice-President: What about 499?
Pandit Thakur Dass Bhargava: That also relates to thesame subject.
Mr. Vice-President: The whole group will be held overfor consideration.
(Amendment No. 444 was not moved.)
Mr. Vice-President: Amendment No. 445.
Prof. K. T. Shah: Mr. Vice-President, Sir, I beg to move:
"That the following new clause be added after clause(1) of article 13:
`Liberty of the person is guaranteed. No person shallbe deprived of his life, nor be arrested or detained incustody, or imprisoned, except according to due process oflaw, nor shall any person be denied equality before the lawor equal protection of the laws within the territory ofIndia.'"
Sir, this again is of the same species of amendments which Iam trying my best to place before the House, that is to say,the enunciation and incorporation of those elementaryprinciples of modern liberal constitutions in which it is apity our Constitution seems deliberately to be lacking. Theliberty of the person, ever since the consciousness of civilliberties, has come upon the people, has been the mainbattleground of the autocrats and those fighting againstthem. In no single instance other than this has the power ofautocracy wanted to assert itself against the just claims of the individual to be respected in regard to his personalfreedom. The liberty of the person to fight against anyarbitrary arrest or detention, without due process of law,has been the basis of English constitutional growth, andalso of the French Constitution that was born after theRevolution. The autocrat, the despot, has always wished,whenever he was bankrupt of any other argument, just to shutup those who did not agree with him. It was, therefore, thatany time the slightest difference of opinion was expressed,the slightest inconvenience or embarrassment was likely to be caused by any individual, the only course open to thosewho wanted to exercise autocratic power was to imprison orarrest or detain such a person without charge or trial. Ithas been in fact in many modern constitutions among the mostcardinal articles that the liberty of the person shall besacred, shall be guaranteed by the Constitution. We arecovering new ground and should not omit to incorporate inour Constitution those items which in my opinion ought to besacrosanct, which would never lose anything by repetition,and which would also add to our moral stature.
This Constitution, Sir, was drafted at a time whenpeople were going through extraordinary stress and strain.The tragic happenings of some twelve or fourteen months agowere no doubt responsible for influencing those who draftedthis Constitution to feel that in the then prevailing goodsit was necessary to restrict somehow the freedom of theindividual. Therefore it is that the freedom of theindividual, the sacredness and sanctity of personal libertyhas been soft-pedalled in this Constitution. But now afteran interval of fourteen months. I would suggest to this House that these sad memories should be left to the limbowhere they deserve to remain. We have had no doubt theunfortunate experiences in which individuals moved bywhatever sentiments had tried to exert violence and do injury to their fellows which no civilised State can put upwith. It was therefore at the time necessary that suchindividuals should be apprehended immediately. Inemergencies like this, in cases like this, if you wait forperforming the due processes of law, if you wait forreference to a magistrate for the issue of a proper warrant,or compliance with all the other formalities of legalprocedure to be fulfilled, it is possible that the ends ofjustice may not be served, it is possible that themaintenance of law and justice may be endangered. But, Sir,I venture to submit to this House that was anextraordinarily abnormal situation which we hope will notrecur. Constitution should be framed, not for these abnormalsituations, but normal situations and for reasonable peoplewho it must be presumed will be normally law-abiding and notthrow themselves entirely to the mercy of these goondas. Weare making a constitution, Sir, for such types of people andnot for those exceptions, the few who might have temporarilylost the possession of their senses, and who therefore maybe dealt with by extraordinary procedure.
We have in this Constitution as we have in many otherConstitutions provisions relating to a state of emergencywhere the normal Constitution is suspended. I am not at allenamoured of these extraordinary exceptions to the workingof constitutions; but even I might conceive that in momentsof emergency it may be necessary, however regrettable it maybe, to suspend constitutional liberties for the time being.But we must not, when framing a constitution, always assumethat this is a state of emergency, and therefore omit tomention such fundamental things as civil liberties.
I, therefore, want to mention categorically in thisConstitution that the liberty of the person shall berespected, shall be guaranteed by law, and that no personshall be arrested, detained or imprisoned without dueprocess of law. That process it is for you to provide. Thatprocess it is for laws made under this Constitution to laydown. And if and in so far as that process is fulfilled,there is no reason to fear that any abuse of such individualliberty will take place. Why then deny it, why then omit themention of personal liberty that has all along been the markof civilised democratic constitutions against the autocraticmight of unreasoning despots? I am afraid, looking at thefate of most of my amendments, that I may perhaps be hurlingmyself against a blank wall. But I will not prejudice myhearers and certainly not the draftsmen by assuming thatthey are unreasoning until they prove that they are guiltyof utterly unreasoning opposition.
Mr. Vice-President: Amendments Nos. 446, 447 and 448.These are all of similar import. Amendment No. 448 may be moved. It stands in the joint names of Shrimati Renuka Ray,Dr. Keskar, Shri Satish Chandra and Shri Mohanlal Gautam.
(Amendments Nos. 448 and 446 were not moved.)
Mahboob Ali Baig Sahib Bahadur: (Madras: Muslim): Sir,there is another amendment in my name, amendment No. 451:that is for the deletion of clauses (2), (3), (4), (5), and(6).
Mr. Vice-President: That comes under another groupwhich will be dealt with hereafter.
Mahboob Ali Baig Sahib Bahadur: Then, alternatively, Ishall move amendment No. 447. Sir, I move:
"That clauses (2) to (6) of article 13 be deleted and the following proviso be added to clause (1):
`Provided, however that no citizen in the exercise of the said right, shall endanger the security of the State,promote ill-will between the communities or do anything todisturb peace and tranquillity in the country'."
Mr. Vice-President, Sir, to me it looks as if thefundamental rights are listed in clause (1) only to bedeprived of under clauses (2) to (6), for in the firstplace, these fundamental rights are subject to the existinglaws. If in the past the laws in force, the law-less laws asI would call them, the repressive laws, laws which wereenacted for depriving the citizens of their human rights, If they have deprived the citizens of these rights under theprovisions under clauses (2) to (6), they will continue todo so. The laws that I might refer to as such are theCriminal Law
Amendment Acts, the Press Acts and the severalSecurity Acts that have been enacted in the Provinces. And these clauses (2) to (6) further say that if the existinglaws are not rigorous, repressive and wide enough toannihilate these rights, the States as defined in article 7which covers not only legislatures, executive Governmentsand also the local bodies, nay, even the local author itiescan complete the havoc. I am not indulging in hyperbole orexaggeration. I shall presently show that there is not aniota of sentiment or exaggeration in making this criticism.Fundamental rights are fundamental, permanent, sacred andought to be guaranteed against coercive powers of a State byexcluding the jurisdiction of the executive and the legislature. If the jurisdiction of the executive and the legislature is not excluded, these fundamental rights willbe reduced to ordinary rights and cease to be fundamental.That is the import, the significance of fundamental rights.
Then, Sir, it is said by Dr. Ambedkar in his introductory speech that fundamental rights are notabsolute. Of course, they are not; they are always subjectto the interests of the general public and the safety of theState, but the question is when a certain citizen overstepsthe limits so as to endanger the safety of the State, who isto judge? According to me, Sir, and according to wellrecognised canons, it is not the executive or the legislature, but it is the independent judiciary of theState that has to judge whether a certain citizen hasoverstepped the limits so as to endanger the safety of theState. This distinction was recognised by the framers of theAmerican Constitution in that famous Fourteenth Amendmentwhich clearly laid down that no Congress can make any law toprejudice the freedom of speech, the freedom of associationand the freedom of the press. This was in 1791, and if theAmerican citizen transgressed the limits and endangered theState, the judiciary would judge him and not the legislatureor the executive.
Even in the case of Britain where there is no writtenconstitution two prominent and effective safeguards werethere. They were governed by the law of the land. The law of the land is the law which gave them freedom of thought,freedom of expression and they cannot be proceeded againstwithout due process of law. These were the two safeguards.It is only in the German Constitution that we findrestrictions such as those in clauses (2) to (6). It is onlyin the German Constitution that the fundamental rights weresubject to the provisions of the law that may be made by the legislature. That means that the citizens could enjoy onlythose rights which the legislature would give them, wouldpermit them to enjoy from time to time. That cuts at thevery root of fundamental rights and the fundamental rightscease to be fundamental. I dare say, Sir, you know what wasthe result. Hitler could make his legislature pass any law,put Germans in concentration camps without trial under theprovisions of law made by the legislature of Germany. Weknow what the result was. It was regimentation, that everyGerman should think alike and anybody who differed was sentto concentration camps. Totalitarianism, fascism was theresult.
(Mr. Vice-President rang the time bell.)
I would request you to give me some time more. I am justdeveloping the point.
Mr. Vice-President: Sorry, you cannot have time withoutmy permission. At the proper time, I would request you tofinish and take your seat. I hope you will respect mywishes.
Mahboob Ali Baig Sahib Bahadur: Sir, it is these wideconsiderations that were responsible for the deletion ofsuch clauses by this august Assembly on the 30th April,1947, when Sardar Patel who was the Chairman of theCommittee to report on Fundamental Rights, presented theseFundamental Rights. He moved for the deletion of all theseprovisos and in the discussion on the 30th of April 1947,many prominent men including Pandit Jawaharlal Nehru tookpart, and all these provisos were deleted. The proceedingscan be found on pages 445 to 447. Here, the Prime Ministerof India says:
"A fundamental right should be looked upon, not fromthe point of view of any particular difficulty of themoment, but as something that you want to make permanent in the Constitution."
Therefore, Sir, in this august Assembly on the 30th ofApril 1947, after discussion in which prominent menincluding Mr. Munshi took part, these provisos were deleted.This departure now to re-introduce these provisions, Isubmit, with great respect, is a departure which isretrograde and I submit, Sir, that we ought not to allow it.My submission is that the existence of these three provisosis the very negation of the Fundamental Rights. I wouldrequest you to consider this question from three or fourpoints of view.
(Mr. Vice-President again rang the time bell.)
With your permission, Sir,...........
Mr. Vice-President: No; there are many more speakers. Imust now insist upon your obeying my orders.
Mahboob Ali Baig Sahib Bahadur: A few more minutes,Sir.
Mr. Vice-President: I have given you enough time. Thereare other speakers. I have an obligation towards them also.
Now, we shall go to the next two amendments. One isamendment No. 449 and the other is amendment No. 453. Of these two, I think amendment No. 453 is more comprehensiveand may be moved. It stands in the joint names of Dr.Pattabhi Sitaramayya and others. There is also an amendmentto that amendment.
Shri M. Ananthasayanam Ayyangar: Sir, I submit thatthis amendment No. 453* which stands in our joint names maybe taken as formally moved. I find in the order sheet, inlist No. IV a further amendment to this amendment. I acceptthat amendment, Sir. If you kindly give permission to movethat amendment, I shall accept it and it is not necessary to move this amendment.
Mr. Vice-President: Mr. Munshi.
Shri H. V. Kamath: On a point of order, Sir, unlessthis amendment is moved, no amendment can be moved to this.This cannot be taken as moved.
Mr. Vice-President: Do you want that he should readover the amendment? I overlooked it. Mr. Munshi.
* That for clause (2) of article 13, the following be substituted:-- "Nothing in sub-clause (a) of clause (1) of thisarticle shall affect the operation of any existing law, orprevent the State from making any law relating to libel,slander, defamation, offences against decency or morality orsedition or other matters which undermine the security of the State."
Shri K. M. Munshi: (Bombay: General): Mr. Vice-President, Sir, I beg to move amendment No. 86 in theadditional list which runs as follows:
That for amendment No. 453 of the list of Amendments, thefollowing be substituted:
"That for clause (2) of article 13, the following be substituted:--
`(2) Nothing in sub-clause (a) of clause (1) of thisarticle shall affect the operation of any existing law, orprevent the State from making any law relating to libel,slander, defamation, or any matter which offends againstdecency or morality or which undermines the security of, ortends to overthrow, the State.'"
Sir, before I go to the merits of the amendment, Ishould like to point out a verbal error which I am sure myhonourable Friend Dr. Ambedkar will permit me to correct.After the words, "shall affect the operation of any existinglaw", I propose that the words "in so far as it relates to"should be added; because, that connects this clause with "to libel, etc." This would make the meaning clear and I am sure my Honourable Friend will accept it.
As regards the merits, the changes sought to be made are two. In the original clause, the word seidtion occurs. The original clause reads as follows: "relating to libel, slander, defamation, sedition or any other matter". The amendment seeks to omit the word sedition. Further the amendment seeks to substitute the words "undermines the authority or foundation of the State" by the words..
Mr. Naziruddin Ahmad: On appoint of order, Sir, we have not got this amendment at all. In list IV the number does not tally at all. I believe, Sir, it was circulated today and it can not be taken up. We should be given some breathing time in order to understand what is going on.
Mr. Vice-President: I think amendments to amendments can be permitted up to the time when the amendment is moved. I understand that this was placed on the table before each member.
Shri K. M. Munshi: Really speaking, the original amendments numbers 458 and 461 have been brought under a single amendment. There is nothing new in this amendment, Sir.
Mr. Vice-President: Go on, Mr. Munshi.
Pandit Hirday Nath Kunzru: (United Provinces: General0: Sir, may I request Mr. Munshi to read out his amendment, once again? What is it an amendment to?
Shri K. M. Munshi: This is amendment to amendment No. 453, on page 29. In effect, it combines two amendments which are already on the list. This is how it reads:
"That for clause (2) of article 13, the following be substituted:-
(2) Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law relating to libel, slander, defamation."
Then comes another change.
or any matter which offends against decency or morality."
Then comes another change.
"of which undermines the security of, or tends to overthrow the State."
That is exactly the wording of amendment No. 461.
The object of
Shri Mahavir Tyagi (United Provinces: General): May I take it that the word morality has been taken out?
Shri K. M. Munshi: I read the word morality.
Mr. Vice-President: You need be under no sort of apprehension so far as that is concerned.
Shri K. M. Munshi: The House will not permit me to do anything of the sort. Sir, the importance of this amendment is that it seeks to delete the word sedition and uses a much better phraseology, viz. "which undermines the security of, or tends to overthrow, the State. The object is to remove the word sedition which is of doubtful and varying import and to introduce words which are now considered to be the gist of an offence against the State.
Shri Amiyo Kumar Ghosh (Bihar: General): On a point of information, I want to know whether without moving the original amendment, as amendment, to it can be moved?
Mr. Vice-President: The amendment was moved formally.
Shri K. M. Munshi: I was pointing gout that the word sedition has been a word of varying import and has created considerable doubt in the minds of not only the members of this House but of Courts of Law all over the world. Its definition has been very simple and given so far back in 1868. It says "sedition embraces all those practices whether by word or deed or writing which are calculated to disturb the tranquility of the State and lead ignorant persons to subvert the Government". But in practice it has had a curious fortune. A hundred and fifty years ago in England, in holding a meeting or conducting a procession was considered sedition. Even holding an opinion against, which will bring ill-will towards Government, was considered sedition once. Our notorious Section 124-A of Penal Code was sometimes construed so widely thsat I remember in a case a criticism of a District Magistrate was urged to be covered by Section 124-A. But the public opinion has changed considerably since and now that we have a democratic Government a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State. Therrefore the word sedition has been omitted. As a matter of fact the essence of democracy is Criticism of Government. The party system which necessarily involves an advocacy of the replacement of one Government by another is its only bulwark; the advocacy of a different system of Government should be welcome because that gives vitality to a democracy. The object therefore of this amendment is to make a distinction between the two positions. Our Federal Court also in the case of Niharendu Dutt Majumdar Vs King, in III and IV Federal Court Reports, has made a distinction between what Sedition meant when the Indian Penal Code was enacted and Sedition as understood in 1942. A passage from the judgement of the Chief Justice of India would make the position, as to what is an offence against the State at present, clear. It says at page 50:
"This (sedition) is not made an offence in order to minister to the wounded vanity of Governments but because where Government and the law ceases to be obeyed because no respect is felt any longer for them, only anarchy can follow. Public disorder, or the reasonable anticipation or likelihood of public disorder is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency."
This amendment therefore seeks to use words which properly answer to the implication of the word Sedition as understood by the present generation in a democracy and therefore there is no substantial change; the equivocal word sedition only is sought to be deleted from the article. Otherwise an erroneous impression would be created that we want to perpetuate 124-A of the I.P.C. or its meaning which was considered good law in earlier days. Sir, with these words, I move this amendment.
Shri H. V. Kamath: On a point of clarification, may I ask my learned friend Mr. Munshi to examine whether the deletion of the word other from the phrase any other matter will not create some doubt or difficulty about the meaning of this amendment? Because if he will look up article 13 in the Draft Constitution, he will find that the phrase used is "any other matter". Here the word other is deleted which will mean that so far as slander, defamation and libel are concerned, they can not offend against decency or morality, but only some other matter can. Is it the contention of Mr. Munshi that neither defamation, slander nor libel offends against decency and morality?
Shri K. M. Munshi: In the original clause of this article as drafted the words were"libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the authority or foundations of the State." Here we have omitted the word sedition. Slander and defamation need not be necessarily connected with a violation of decency or morality nor do they undermine the authority of the State: the words "any matter" indicate as independent category. One category is libel, slander and defamation. The other category is any matter which offends against the State. The word other therefore would be inappropriate.