CONSTITUENT ASSEMBLY OF INDIA - VOLUME VII Monday, the 13th December, 1948 The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock, Mr. Vice-President (Dr. H. C. Mookherjee) in the Chair.
Prof. K. T. Shah: (Bihar: General): Sir, I have moved...........
Shri T. T. Krishnamachari (Madras: General): Sir, on a point of order, may I know whether Prof. Shah can bring in again the scheme that he had outlined in one or two earlier amendments of his and which had all been negatived in thisHouse? He is really persisting in one particular scheme in all his amendments and is the honourable Member in order in moving this amendment?
Prof. K. T. Shah: My reply to that point of order is clear. I had foreseen this objection and that is why I have worded my amendment in such a manner that this particular objection will not apply. The principle of completeseparation of powers between the various organs of Government is rejected. But that does not preclude the President, even if these powers are not separated, from being elected by popular vote, whatever his powers. Unless it is intended that I shall not be allowed to move any amendment, I do not see how the objection can arise. I leave it to the Chair. I am entirely in your hands, Sir. I do not think that the honourable Member's arguments can apply at all. It was because of this that I have worded each of my amendments in such a way that risking the possibility.............. ......
Mr. Vice-President (Dr. H. C. Mookherjee): Prof. Shah is in order.
Prof. K. T. Shah: Sir, I have moved already:
"That for article 43, the following be substituted:--
(`43. The President shall be elected by the adult citizens of India, voting by secret ballot, in each constituent part of the Union.'") The original article provides for the election of the President by an electoral college consisting of the members of the Central Legislature as well as those of the Provincial or States legislatures. That I think is not sufficiently representative of the people's will; and as such I at least am persistent enough to insist upon thepeople's will being always held supreme.
I have felt it necessary, even apart from any other scheme, that at every point, wherever I can help it, the sovereign people shall come in, whether you like it or not,and that the people's will be asserted, whether you like it or not. It is therefore I suggest that every adult citizen shall have his share in electing the head of the State; and accordingly, instead of indirect election through the representatives of the legislatures which may be elected after two, three or four years interval, I would suggest that every time a presidential election takes place, that election shall be by the votes of the people themselves.
I will give you both positive or negative arguments for this amendment. I have been accustomed to this kind of suggestion that, either my amendment is not in proper time,or this is not the proper place for it, or the third dimensional argument,-- "I oppose it." These are the three--dimensional answers to my arguments. In reply I hold that this is the only time and the only place where I can bring forward this particular amendment; and as for opposition without reason I am of course sufficiently reasonable not to take notice of it.
The point I wanted to make is this. On a previous occasion it was suggested that the principle having beensettled, it is brought up in another shape today, and so this amendment should not be taken up. I put it to you, Sir,and through you to the House, that even if one had put up this idea at the time what the general principles of the Constitution were considered, I would invite the House dispassionately to consider the point I am making now,namely that 14 or 15 months ago, when we decided upon what are called the leading principles, and nothing more than the leading principles, we were under a stress and strain, and were passing through difficult circumstances and were underinfluences, which, I venture to submit, deflected our judgment, unbalanced our outlook, and, therefore, we voted for and accepted ideas, which, in my opinion, were not then,and are not now consistent with the idea of a true, real,working democracy, in every sphere of life. If you wish to go back on it I have nothing more to say. After 15 months weare now in a position to take a more sober, balanced, and impartial view of the situation. As such if we are true to our ideals, if we are true to the principles which we have proclaimed from the house-top, if we are true to the sloganson which we asked the old Imperialist regime to quit and yield place to the children of the soil, I put it to you, Sir, that there is nothing improper, there is nothing out of the way for me to put before the House this amendment. It is after all for the House to judge. I only want to submit to the House the considerations on which it can accept my point of view.
If the Draft before us is treated on the ground that it is something like the report of a Select Committee on a Billcoming before the House, I still say that at that stage any member would be entitled to have his say even on that ground. As I have read the rules, even at the stage of a Select Committee Report before the House, a Member can say that the entire report be sent back for reasons arising out of it, without questioning the principle of the Bill, and,in this case, of the Draft.
Thirdly, after all, the principles that you have accepted, as I have understood them, are the principles contained in the Objectives Resolution; and nothing that I am saying here involves going back upon that Resolution. The Objective principle assures us that ours is a democratic,secular, sovereign republic. That is in no way questioned by my amendment. For the rest they are matters of detail.
Having given you these three reasons against the objection that this is not the time not the place. I would now pass on to say that, positively considered, the President, whether you make his term three, four or five years, will be, during that period, unless he is guilty of any offence for which he can be impeached and removed, the head, not only of the Government even under your scheme, butwill also embody the sovereignty of the people, as Mr. Tyagi pointed out in this House the other day.
And (as representing the sovereignty of the people, in their collective capacity, at home and abroad, he must be in a position to command the confidence of the people, be they majority or minority.) And I at least hold the view that the President, once elected, ceases to be a party man even as the President of this House is. So I have only suggested that the President will be the President of the whole Indian Union, who will be equally respected, equally reverenced and obeyed by every citizen, no matter whether he voted for him or not at the time of the election.
Thinking in these terms I hold that we should arm the President with the authority to say that he represents the people. It is no use telling him that there may be conflict between the Prime Minister, or the majority party in the House, and the President elected by the people. Such aconflict need not arise. The President will function only inan emergency; he will function, not ornamentally only, but in a representative capacity with the representatives of other countries. Accordingly this sort of argument would seem to be puerile namely, that you want the President to be a sort of mere gramophone of the Prime Minister. I do not want the President to be anything but the head of the State and representative of the people in their collective capacity and in their sovereignty. For this reason I hold that the President, not being a creature of party majorities in the Centre or the local legislatures but a real representative of the people, and one elected to function as the head of the State and as its representative, this fact is a conclusive argument.
In this view I may say that the possibilities of conflict between the Ministry and the head of the State, or other difficulties are, in my opinion, matters of detail,which, given good sense, given loyalty to the central them of this constitution, given sincerity amongst you the makers of the Constitution, may be easily solved. I take the view that you will do very well to have the President elected by the adult vote, instead of by an indirect round about method.After all your ParlI ament is liable to be dissolved at anytime. Though a maximum term of four or five years for the People's House, is provided, there is also provision for its dissolution at any time. The local Legislatures in the States may also be dissolved. The President on the other hand will be elected for a definite period. As such he will be outside the turm oil of party passion, will be outside the momentary ups and downs--the vic is situdes of parlI amentary fortunes; and will be much more likely to maintain balance,and to give a degree of stability to our Government which it may not have under party passions. Accordingly I commend this amendment and I trust it would be considered on its merits, and not on mere pettifogging points of order.
(Amendments Nos. 1054, 1061, 1067 were not moved.) Mr. Vice-President: Amendments Nos. 1056, 1058, 1060and 1068 are all of similar import, and can be taken together.
(Amendments Nos. 1058, 1056, and 1060 were not moved.) Mr. Mohd. Tahir (Bihar: Muslim): Mr. Vice-President,Sir, I beg to move:
"That in clause (b) of article 43, the word `elected'be deleted."
In this article we are going to form the electoral college for the election of the President. It has been said that the President shall be elected by members of an electoral college consisting of (a) the members of both Houses of ParlI ament and (b) the elected members of the Legislatures of the States. I want that the word `elected'in (b) should be deleted. My reasons for doing so are these.In the election of the President are we going to be moredemocratic or are we going to be guided by some sort of imperialistic ideas? If we delete the word `elected' Iassure the House that we will be more democratic in this respect, because members of either House--they are elected or nominated--but the members as such must have equal rights and privileges so far as the business of the Legislature is concerned. Therefore it appears to be very improper that there should be a distinction between members and members.Whether a member is elected or is nominated he must have equal rights and privileges so far as the voting for the President is concerned. In this way I think we will be moredemocratic in our action. Therefore I submit that the amendment which I have moved may be duly considered by the House as well as by the honourable Mover and accepted. With these words I moved.
Mr. Tajamul Husain (Bihar: Muslim): Mr. Vice-President,Sir, I beg to move:
"That in clause (a) of article 43, for the words `themembers' the words `the elected members' be substituted."
I shall read article 43. It says: "The President shall be elected by the members of an electoral college consisting of (a) the members of both Houses of ParlI ament, and (b) the elected members of the Legislatures of the States". Clause(a) says that the President shall be elected by the members of both the Houses of ParlI ament. The Upper House has got nominated members while the lower House, the House of the People, has got only elected members. So the President, it appears from this article, will be elected both by elected members and by nominated members of ParlI ament. And clause(b) says that the President will be elected by the elected members of the Provincial Legislatures. I cannot understand why only the elected members of the Provincial Legislature are to elect him while both elected and nominated members of the Central Legislature are to elect him. This seems to me to be anomalous. Article 44 tells us how the members are to vote. There is no provision either in this article or anywhere in the Constitution as to how nominated members are to vote. There are provisions only for elected members.Therefore I think that there is some drafting mistake.
That is the reason why I have moved this amendment that the word`elected' be added in clause (a) of article 43, so that both the elected members of the Central Legislature and the elected members of the Provincial Legislatures will elect the President. There will be no nominated members voting,and there is no provision as to how a nominated member is to vote. My amendment is very simple. I have not much to say. I have no doubt the House will accept it and also that the Honourable Dr. Ambedkar will accept the amendment.
Mr. Vice-President: I am not putting amendment No. 1063 standing in the name of Dr. Ambedkar and others to vote,because it is identical with 1064 which has just been moved.
Do you accept it, Dr. Ambedkar?
The Honourable Dr. B. R. Ambedkar (Bombay: General):Yes, Sir.
Mr. Vice-President: Then I will not put it to vote.
An amendment to amendment No. 1064 standing in the name of Shri Gokulbhai Daulatram Bhatt was not moved as the honourable Member is not in the House.
I disallow, as merely verbal, amendments Nos. 1065 and1066.
Shri S. Nagappa (Madras: General): I do not move amendment No. 1069, Sir.
The Honourable Dr. B. R. Ambedkar: Mr. Vice-President,I move:
"That to article 43, the following explanation beadded:--
`Explanation.--In this and the next succeeding article,the expression "the Legislature of a State" means, where the legislature is bicameral, the lower House of the legislature.'"
It is desirable that this amendment should be made,because there may be two legislatures in a State and consequently if this amendment is not made it will be open also to the Members of the Upper Chamber to participate in the election of the President. That is not our intention. We desire that only Members who are elected by popular vote shall be entitled to take part in the election of the President. Hence this amendment.
Mr. Vice-President: Mr. Mohd Tahir may now move his amendment No. 23 to this amendment.
Mr. Mohd Tahir: I beg to move:
"That in amendment No. 1070 of the List of Amendments,in the proposed Explanation, for the words `the Lower Houseof the Legislature', the words `the Legislative Assembly of the State' be substituted".
Now, Sir, with due respect to my friend Dr. Ambedkar I am moving this amendment. In my opinion, the term `Lower House of the Legislature' has got no existence of its own.Because, we have defined `the Legislatures' of the States not only in this draft Constitution, but also it will be found in the Government of India Act. There the Legislatures of the State have been defined either as the Legislative Council or the Legislative Assembly. We have given aparticular definition for the Houses in the States, namelyone, called Legislative Council and the other the legislative Assembly, in article 148 of the draftConstitution. Therefore my humble submission is that wherever we have to use a term regarding either of theseHouses, we must use only the term which has been defined in our Constitution and no other.
Sir, we will now consider how the term `lower House'originated. I believe it originated from the fact that till now the Members of the Legislative Assembly are being elected by the common people, the general masses of the country paying 6 annas or 12 annas as chowkidari tax and soon, whereas the members of the Legislative Council are being elected by people having higher qualifications. From this difference the feeling naturally arose in the minds of the people that the Legislative Assembly is the Lower House and the Legislative Council the Upper House. This distinction I submit should not continue in our minds after achieving theindependence of India. Therefore to my mind it does not appear to be fair to call the Legislative Assembly the Lower House. In no respect can the Assembly be said to be the Lower House. In respect of the number of members, the Assembly is greater than the Council. Also, the Legislative Assembly has got more powers than the Legislative Council of the States. In conclusion I submit that I base my argumentson the first point, namely that when we have given a particular definition as regards the Chambers of the States,it is in all fairness desirable that we should use only that expression namely, the Legislative Council and the Legislative Assembly and no other.
Mr. Vice-President: The article is now open for general discussion.
Shri K. Hanumanthaiya: (Mysore): Mr. Vice-President, we listened with great respect to the arguments of Prof. Shah.He wants the President to be elected by adult citizens. To begin with, there is a technical difficulty. If the President is to be elected by adult citizens, every citizen gets the right to vote. Under the electoral system, the voters' list is prepared according to some rules and certain people who are lunatics, who are convicted people and who have lost their sannads are not entitled to vote. But in this term `adult citizen' is included even citizens who are not entitled to vote at the general elections. That means that for the Presidential election those disqualified at the general election can vote, if the wording found in the amendment of Prof. Shah is adopted.
Secondly, Sir, the Constitution which is before the House has adopted the parlI amentary system of government. A parlI amentary system presupposes responsible government. The government is carried on not directly by the people but by the duly elected representatives of the people and inconsonance with that principle, the framers of this Constitution have wisely made the presidential election an indirect election, not a direct election as Prof. K. T. Shahenvisages.
Thirdly, Prof. Shah wants that the President should bea non-party man. If the procedure that Professor Shahenvisages is adopted, he will certainly become a party candidate. The presidential candidate who has to carry on an election campaign from one corner of the country to another will certainly be put up by some party or another and that election campaign will naturally generate party feelings and the man who is elected to the presidential office through this means will never be able to forget his party affiliations and he will not serve the purpose that Prof. Shah has in view. On the other hand,Sir, if he is elected by the members of the legislatures and the ParlI ament, he is more likely to be a non-party man,just as the Speaker of the Assembly or the ParlI ament is likely to be. Therefore, the purpose that Professor has in view that the President should be a non-party man will be better served by his being elected by the legislature and not directly by the people.
Then, Sir, Prof. Shah wants the President to be a realsovereign. That is not the intention of the framers of thisConstitution. In this Constitution, the President is giventhe position of reigning and not ruling. The President hereis more or less analogous to the King of England in theUnited Kingdom. If we give the President real power and makehim the real executive head, the whole structure asenvisaged by the Drafting Committee changes its character.This amendment does not fit into the picture of this DraftConstitution and should therefore be rejected.
Shri Biswanath Das (Orissa: General): Sir, myhonourable Friend Prof. K. T. Shah, has raised a veryimportant issue, viz., to introduce the system now in voguein the United States of America. Sir, today in democraticcountries, two different systems are working, one is thesystem now in vogue in the U.S.A. and the other is theCabinet system of responsible government. We appointed aCommittee, the Union Committee. This Committee, after duedeliberation, weighing the pros and cons, all the advantagesand difficulties of the working of the constitutions invarious countries, have devised a system of responsibilitywhich is known as the system of Cabinet responsibility. Sir,the report of that Committee was adopted by the honourableMembers of this House. It was up to Prof. Shah to have movedand taken a decision on this issue at that time. TheDrafting Committee have only given shape to the decisions of the honourable Members of this House. It is, I am afraid,too late in the day to change the structure of ourConstitution. A change in the system naturally means achange in a great many articles of this Constitution.Practically it disturbs the very basis of this Constitution.I would therefore appeal to my honourable Friend not topress his amendment. Sir, in justification of his plea, hehas appealed to us to think of a President who would be anon-party man. I would plead with him that he has undertakenan impossible task. Sir, party system is the very basis ofdemocracy. How on earth could you find a President who is anon-party man? Even the President of the United States isnot a non-party man. Those who have seriously followed theworking of the American Constitution and especially the lastPresidential election must have come to the conclusion that it is the party system that is functioning in America. IfProfessor Shah thinks of a non-party President, he will haveto think of something other than democracy. Sir, Turkey hada sort of non-party government but it has given it up inpreference to a party system of government and electionshave been introduced. You have to think of a totalitarianstate if you think of a non-party President. It isimpossible in the very nature of things. Therefore his pleathat the President is and ought to be a non-party man doesnot at all appeal to me.
Sir, the whole question turns upon one issue, viz., whois going to be responsible to the people of the country withregard to the administration. A President coming through the direct vote of the people assuch has an independent existence outside the sphere of theparlI ament. It so happens that sometimes, as honourableMembers may have seen conflicts do arise between theparlI ament and the president, and it makes a smooth workingof the machinery difficult. Sometimes important programmesmay be upset because of these differences. Even theparlI amentary system has its own difficulties. TheparlI amentary system is in vogue in very many countries. InFrance, difficulty was experienced with the cabinet systemof government with the result that in their new constitutionsome modification has been made with the result that theyhope that hereafter the parlI amentary executive in Francewill be more stable than before. Therefore it is for myhonourable Friend Prof. Shah to devise ways by which thisparlI amentary system of government, the Cabinet system ofgovernment will function well and properly with stability. I would appeal to him that a change in the important structureof our Constitution is not possible at this stage. We havesat long and the country is waiting for a Constitution. I would appeal to him and also to the other honourable Membersof this House to see that we speed up the discussion of the Constitution and pass it as early as possible. The UnionCommittee have given due attention to this question, and I would appeal therefore that the article may be accepted and the amendment may be rejected.
The Honourable Dr. B. R. Ambedkar: Mr. Vice-President,Sir, of the amendments that have been moved, I can onlyaccept 1064 and I very much regret that I cannot accept theother amendments.
Now, Sir, turning to the general debate on thisarticle, the most important amendment is the amendment ofProf. K. T. Shah, which proposes that the President shouldbe elected directly by adult suffrage. This matter, in myjudgment, requires to be considered from three points ofview. First of all, it must be considered from the point ofview of the size of the electorate. Let me give the Housesome figures of the total electorate that would be involvedin the election of the President, if we accepted Prof. K. T.Shah's suggestion.
So far as the figures are available, the totalpopulation of the Governors' provinces and theCommissioners' provinces is about 228, 163, 637. The totalpopulation of the States comes to 88, 808, 434, makingaltogether a total of nearly 317 millions for the territoryof India. Assuming that on adult franchise, the populationthat would be entitled to take part in the election of thePresident would be about 50 per cent. of the totalpopulation, the electorate will consist of 158.5 millions.Let me give the figures of the electorate that is involvedin the election of the American President. The totalelectorate in America, as I understand--I speak subject tocorrection,--is about 75 millions. I think if honourableMembers will bear in mind the figure which I have given;namely, 158.5 millions, they would realize the impossibilityof an election in which 158.5 millions of people would haveto take part. The size of the electorate, therefore, in myjudgment forbids our adopting adult suffrage in the matterof the election of the President.
The second question which has to be borne in mind indealing with this question of adult suffrage is theadministrative machinery. Is it possible for this country toprovide the staff that would be necessary to be placed atthe different polling stations to enable the 158.5 millionsto come to the polls and to record the voting? I am sureabout it that not many candidates would be standing forelection and they would not like non-official agencies to beemployed, for the simple reason, that the non-officialagency would not be under the control of the State and maybe open to corruption, to bribery, to manipulations and toother undesirable influences. The machinery, therefore, willhave to be entirely supplied from the Governmentaladministrative machinery. Is it possible either for theGovernment of India or for the State Governments to spare officials sufficient enough to managethe election in which 158.5 millions would be taking part?That again seems to me to be a complete impossibility. Butapart from these two considerations, one importantconsideration which weighed with the Drafting Committee, andalso with the Union Committee, in deciding to rule out adultsuffrage, was the position of the President in the Constitution. If the President was in the same position asthe President of the United States, who is vested with allthe executive authority of the United States, I could haveunderstood the argument in favour of direct election,because of the principle that wherever a person is endowedwith the same enormousness of powers as the President of theUnited States, it is only natural that the choice of such aperson should be made directly by the people. But what isthe position of the President of the Indian Union? He is, ifProf. K. T. Shah were to examine the other provisions of the Constitution, only a figurehead. He is not in the sameposition as the President of the United States. If anyfunctionary under our Indian Constitution is to be comparedwith the United States President, he is the Prime Minister,and not the President of the Union. So far as the PrimeMinister is concerned, it is undoubtedly provided in the Constitution that he shall be elected on adult suffrage bythe people. Now, having regard to the fact, to which I havereferred, that the President has really no powers toexecute, the last argument which one could advance in favourof the proposition that the President should be elected byadult suffrage seems to me to fall to the ground. [I,therefore submit that, having regard to the size of theelectorate, the paucity of administrative machinerynecessary to manage elections on such a vast scale and that the President does not possess any of the executive oradministrative powers which the President of the UnitedStates possesses, I submit that it is unnecessary to go into the question of adult suffrage and to provide for theelection of the President on that basis.] Our proposals in the Draft Constitution, in myjudgment, are sufficient for the necessities of the case. We have provided that he shall be elected by the electedmembers of the Legislature of the States, who themselves areelected on adult suffrage. He is also to be elected by bothHouses of ParlI ament. The lower House of the ParlI ament isalso elected directly by the people on adult suffrage. TheUpper Chamber is elected by the Lower Houses of the StatesLegislatures, which are also elected on adult suffrage.Therefore, having regard to these provisions, I think Prof.K. T. Shah's amendment is quite out of place. I, therefore,oppose that amendment.
Mr. Vice-President: I shall now put the amendments tovote, one by one Amendment No. 1051 standing in the name ofDamodar Swarup Seth.
The question is:
"That for articles 43 and 44 the following besubstituted:--
"The President shall be elected by means of the singletransferable vote by an electoral college composed of themembers of ParlI ament and an equal number of persons electedby the legislatures of the States on population basis underthe system of single transferable vote."
The amendment was negatived.
Mr. Vice-President: Amendment No. 1053 standing in thename of Profes. K. T. Shah.
The question is:
"That for article 43, the following be substituted:--
`43. The President shall be elected by the adultcitizens of India, voting by secret ballot, in eachconstituent part of the Union."
The amendment was negatived.
Mr. Vice-President: Amendment No. 1057 standing in thename of Mr. Karimuddin.
The question is:
"That for article 43, the following be substituted:--
"43. The President shall be elected on the basis ofadult suffrage."
The amendment was negatived.
Mr. Vice-President: Amendment No. 1068 standing in thename of Mr. Mohammed Tahir.
The question is:
"That in clause (b) of article 43, the word "elected"be deleted."
The amendment was negatived.
Mr. Vice-President: Amendment No. 1064 standing in thename of Mr. Tajamul Husain.
The question is:
"That in clause (a) of article 43, for the words "themembers" the words "the elected members" be substituted."
The amendment was adopted.
Mr. Vice-President: Amendment No. 1070 standing in thename of Dr. Ambedkar.
The question is:
"That to article 43 the following explanation beadded:--
"Explanation.--In this and the next succeeding article,the expression "the legislature of a State" means, where the legislature is bicameral, the Lower House of the legislature."
The amendment was adopted.
Mr. Vice-President: Amendment No. 23 of List I (FourthWeek standing in the name of Mr. Mohammed Tahir.
The question is:
"That in amendment No. 1070 of the list of amendmentsin the proposed explanation, for the words "the Lower Houseof the Legislature" the words "the Legislative Assembly of the State" be substituted."
The amendment was negatived.
Mr. Vice-President: I shall now put the article tovote.
The question is:
"That article 43, as amended stand part of the Constitution."
The motion was adopted.
Article 43, as amended was added to the Constitution.
Article 15 Mr. Vice-President: With the permission of the House, Ishould like to revert to an article left over: that isarticle 15. I have before me the proceedings of the Housefrom which it appears--this was considered on the 6thDecember last--that general discussion had concluded and Ihad called upon Dr. Ambedkar to reply. At that time it wassuggested that efforts should be made to arrive at some kindof understanding so that those who had submitted certainamendments might feel satisfied. I do not know the positionnow; but we cannot wait any longer. Dr. Ambedkar, will youplease make the position clear? If no understanding has beenarrived at, I would ask you to reply.
The Honourable Dr. B. R. Ambedkar: Mr. Vice-President.I must confess that I am somewhat in a difficult positionwith regard to article 15 and the amendment moved by myFriend Pandit Bhargava for the deletion of the words"procedure according to law" and the substitution of thewords "due process".
It is quite clear to any one who has listened to thedebate that has taken place last time that there are twosharp points of view. One point of view 1says that "due process of law" must be there in thisarticle; otherwise the article is a nugatory one. The otherpoint of view is that the existing phraseology is quitesufficient for the purpose. Let me explain what exactly "dueprocess" involves.
The question of "due process" raises, in my judgment,the question of the relationship between the legislature and the judiciary. In a federal constitution, it is always opento the judiciary to decide whether any particular law passedby the legislature is ultra vires or intra vires inreference to the powers of legislation which are granted bythe Constitution to the particular legislature. If the lawmade by a particular legislature exceeds the authority of the power given to it by the Constitution, such law would beultra vires and invalid. That is the normal thing thathappens in all federal constitutions. Every law in a federalconstitution, whether made by the ParlI ament at the Centreor made by the legislature of a State, is always subject toexamination by the judiciary from the point of view of theauthority of the legislature making the law. The `dueprocess' clause, in my judgment, would give the judiciarythe power to question the law made by the legislature onanother ground. That ground would be whether that law is inkeeping with certain fundamental principles relating to therights of the individual. In other words, the judiciarywould be endowed with the authority to question the law notmerely on the ground whether it was in excess of theauthority of the legislature, but also on the ground whetherthe law was good law, apart from the question of the powersof the legislature making the law. The law may be perfectlygood and valid so far as the authority of the legislature isconcerned. But, it may not be a good law, that is to say, itviolates certain fundamental principles; and the judiciarywould have that additional power of declaring the lawinvalid. The question which arises in considering this matter is this. We have no doubt given the judiciary thepower to examine the law made by different legislativebodies on the ground whether that law is in accordance with the powers given to it. The question now raised by theintroduction of the phrase `due process' is whether thejudiciary should be given the additional power to questionthe laws made by the State on the ground that they violatecertain fundamental principles.
There are two views on this point. One view is this;that the legislature may be trusted not to make any lawwhich would abrogate the fundamental rights of man, so tosay, the fundamental rights which apply to every individual,and consequently, there is no danger arising from theintroduction of the phrase `due process'. Another view is this: that it is not possible to trust the legislature; the legislature is likely to err, is likely to be led away bypassion, by party prejudice, by party considerations, and the legislature may make a law which may abrogate what maybe regarded as the fundamental principles which safeguardthe individual rights of a citizen. We are therefore placedin two difficult positions. One is to give the judiciary theauthority to sit in judgment over the will of the legislature and to question the law made by the legislatureon the ground that it is not good law, in consonance withfundamental principles. Is that a desirable principle? Thesecond position is that the legislature ought to be trustednot to make bad laws. It is very difficult to come to anydefinite conclusion. There are dangers on both sides. Formyself I cannot altogether omit the possibility of aLegislature packed by party men making laws which mayabrogate or violate what we regard as certain fundamentalprinciples affecting the life and liberty of an individual.At the same time, I do not see how five or six gentlemensitting in the Federal or Supreme Court examining laws madeby the Legislature and by dint of their own individualconscience or their bias or their prejudices be trusted to determine which law is good and which law is bad.It is rather a case where a man has to sail betweenCharybdis and Scylla and I therefore would not say anything. I would leave it to the House to decide in any way itlikes.
Mr. Vice-President: I shall now put the amendments oneby one to vote. No. 523.
The question is:--
"That in article 15, for the words "No person shall bedeprived of his life or personal liberty except according toprocedure established by law" the words "No person shall bedeprived of his life or liberty without due process of law"be substituted."
The amendment was negatived.
Mr. Vice-President: The question is--
"That in article 15, for the words "except according toprocedure established by law" the words "due process of law"be substituted."
The amendment was negatived.
Mr. Vice-President: No. 528.
Shri S. V. Krishnamurthy Rao (Mysore): I do not pressit.
The amendment was, by leave of the Assembly, withdrawn.
Mr. Vice-President: No. 530.
The question is:--
"That in article 15, for the words "procedureestablished by law" the words "due process of law" besubstituted."
The amendment was negatived.Mr. Vice-President: No. 526
The question is:--
"That in article 15 for the words "except' according toprocedure established by law' the words "save in accordancewith law" be substituted."
The amendment was negatived.
Mr. Vice-President: No. 527.
The question is:--
"That in article 15 for the words "except according toprocedure established by law the words "except in accordancewith law" be substituted."
The amendment was negatived.
Mr. Vice-President: I shall put the article to vote.
The question is:--
That article 15 stand part of the Constitution.
The motion was adopted.
Article 15 was added to the Constitution.
Article 44 Mr. Vice-President: We shall now take up article 44.
The motion is:--
That article 44 form part of the Constitution.
I am going to call over the amendments one by one.
No. 1071 is of a negative character and is thereforedisallowed.
(Amendments Nos. 1072 and 1073 were not moved.) Amendment No. 1074 is disallowed as being formal.
Amendment No. 1075--Dr. Ambedkar.
The Honourable Dr. B. R. Ambedkar:
Sir, I move--
"That in sub-clause (c) of clause (2) of article 44,for the words "such member" the words "the elected membersof both Houses of ParlI ament" be substituted."
Before proceeding to give the reasons for the amendmentI would like with your permission to go back for a minute toclause (2) of this article and explain the scheme as set outin sub-clauses (a) and (b) of that clause. [HonourableMembers will see that the President is to be elected byelected Members of the Lower House of each State Legislatureand by elected Members of both Houses of ParlI ament--the twoto form a single electoral college. Sub-clause (1) ofarticle 44 says that as far as practicable there shall beuniformity in the scale of representation of the differentStates in the election of the President. It would have beenpossible to achieve this uniformity by the simple method ofassigning each member of the electoral college one vote. Butthis is not possible because of the disparity between themembers of the Legislature and their ratio to populationthat exists between the different classes of States.] In thecase of States in Part I of the First Schedule, article149(3) fixes the scale of representation--one representativefor every one lakh of population. In the case of States inPart III, no such scale is laid down. [The scale may varyfrom State to State. In one State, it may be onerepresentative for every 10,000 population. In another, itmay be one for every 20,000. That being the position, thevalue of the votes cast in the election of the President bythe members of the State Legislatures cannot be measured bythe simple rule of assigning one vote one value.] Theproblem, therefore, is how to bring about uniformity in thevalue of the votes cast by members who do not represent thesame electoral unit. The formula adopted to obtain the valueof a vote cast by an elected member of the Legislature of aState is to divide the population of that state by the totalnumber of elected members of the Legislature of that State;and to divide the quotient so obtained by 1,000, and if theremainder is not less than 500 then add one to the dividend.This is what is stated in sub-clauses (b) and (c) of clause(2).
I now come to the amendment to sub-clause (c) which I have moved. With regard to the votes cast by members ofParlI ament, we are confronted by the same problem, namely,the disparity in the electoral units and consequentdisparity in the value of the votes cast by them. Thisdisparity also arises from the same causes. In the firstplace, the Council of States being elected by the StateLegislature reflects the same disparity which exists betweenStates in Part I and States in Part III. In the secondplace, there is the same disparity in the ratio of seats topopulation as between States in Part I and Part III in theelection of members of ParlI ament.
There are two ways of achieving uniformity in thevoting by members of ParlI ament. One is to divide the totalnumber of votes capable of being cast by members of all theState Legislatures by the total number of members of all theState Legislatures and the quotient will be the number ofvotes which each member will be entitled to cast. The othermethod is to divide the total number of votes capable ofbeing cast by members of the Legislatures of all the Statesby the total number of elected members of both Houses ofParlI ament. The first method is set out in sub-clause (c) asit stands. The second method is embodied in the amendment tosub-clause (c) which I have moved. The difference betweenthe two methods lies in this. In the first method allmembers of the electoral college taking part in the electionof the President are treated on the same footing in thematter of valuation of their votes. According to the secondmethod the members of ParlI ament are given equal strength in the matter of voting as the members of the StateLegislatures will have. It is felt that members ofParlI ament should have a better voice than what sub-clause (c) as it stands does.)Hence the amendment.
Mr. Vice-President: No. 1076 is disallowed as beingformal.
Amendment No. 1077--Mr. Mahavir Tyagi.
Shri Mahavir Tyagi (United Provinces: General): Sir, Imay be permitted to move 1078 instead of 1077.
Mr. Vice-President: No. 1077 will not be put to vote. Iallow 1078 to be moved.
Shri Mahavir Tyagi: Sir, I beg to move--
"That for clause (3) of article 44, the following besubstituted:--
"(3) The election of the President shall be held bysecret ballot and in accordance with the system of majoritypreferential voting by the single alternative vote."
Sir, the system of majority preferential voting by thesingle alternative vote is the name of the method which hasbeen envisaged in this article. Proportional representationby the single transferable vote is always as a rule used insuch elections where the constituencies are plural andminorities are given the privilege of sending theirrepresentatives according to the proportion of the numberamongst the electors. It is said that in Ireland theelection of the President is held by single transferablevote. I submit that everything that is done elsewhere shouldnot be taken to be a gospel truth. From the very amendmentthe House will understand that while it elects only one manfor one office, and there is only one office vacant which isgoing to be filled, the minorities cannot have anyrepresentation. It is proportional representation. How willthey have a proportion in one man--that man belongs to oneparty. The minorities will have no proportion in that onePresident elected by proportional representation. Unless theconstituency is plural the proportion does not come in. Soit is neither proportional representation because he is a"representative"; generally speaking--in ordinary parlance--I do not know--one might be very critical and look into thedictionary--but generally speaking one representative isknown as "representative". If there are more than one manthen they may be known as "representation". One is not knownas "representation".
Pandit Lakshmi Kanta Maitra (West Bengal: General):What is majority preferential system?
Shri Mahavir Tyagi: I am coming to that. [A singleconstituency for election is neither proportional becausethe minority does not get any proportion in one seat, Nor isit representation because representation always signifies anumber of persons together, and not one person. Onerepresentative is known as representative. Therefore it isneither proportional nor representation. Nor is it atransferable vote. Transferable vote means a vote which istransferred from one person to another in the manner inwhich it is described in the single transferable votingsystem. The balance of a candidate's vote after hiselection, is transferred to another candidate. It is not aquestion of transferring the balance of votes here. There isonly one candidate. The whole voting will be alternative sothat if one candidate gets defeated and his name iseliminated, then the vote is altered as it is from the nameof the defeated candidate; instead of the voter's firstchoice, the vote goes to his second choice. So this system,although it is called proportional, is not, in fact,proportional. Neither is it representation, as I have justnow explained Nor is it a "single vote". As it is, everyvoter in the legislatures of the States will have about 99.8or 99.7 votes. Here it is not a case of one man, one voteas is envisaged in the single transferable vote system.] Thetotal population of a state will first be divided bythousand, and the result will be further divided by the number of voters in the electoral college in the province, which means that the number of votes onemember of the Assembly will cast may be about 100, nevermore than 100, it may be 99 point or so. I must also pointout that in sub-clause (b) it is stated--
"if, after taking the said multiples of one thousand,the remainder is not less than five hundred, then the voteof each member referred to in sub-clause
(a) of this clauseshall be further increased by one;"
Here by some clerical error probably, they haveforgotten to mention what is to happen to the balance if it is less than half. Unless you mention that less than halfwill not be taken care of, or less than half shall bedisregarded, the authorities may not disregard it. Just asin sub-clause (c) you have stated that fractions exceedingone-half will be counted as one and other fractionsdisregarded, so also you should have said something in sub-clause
(b). Otherwise, the exact wording of this sub-clause(b) will be adhered to and each member of the legislativeassembly in the Provinces and States may have not only 99point something or 98 point something votes, but thecalculation can go on to 98.0032 and so on. So a furtherserious defect will arise in the working of the complicatedsystem of single transferable vote. On an average there willbe 3,300 representatives of the States legislatures; andeach one of them will have not only one vote, he will haveso many votes. How can we call it a single transferablevote? They will not be a uniform number; one member willhave 98 point something votes and in some other states itmay be 80 votes only. So the number of votes each memberwill possess and cast will vary from State to State.
It is also not mentioned here that these so many voteswith a voter will be given only to one candidate. Sir, I would very much like to draw the attention of the honourableDr. Ambedkar to the effect of the clause as it stands atpresent. Each member of a legislative assembly will get anumber of votes which will vary from legislature tolegislature. I am sorry the honourable Dr. Ambedkar is notattentive.
Mr. Vice-President: Dr. Ambedkar, Mr. Tyagi wants toinvite your attention to some points.
Shri Mahavir Tyagi: I want to invite attention to onepoint. The number of members in the legislatures in theprovinces and States will be approximately 3,300and.........
Shri S. Nagappa: Sir, can the honourable Member addressanother honourable Member? He has to address the Chair.
Shri Mahavir Tyagi: I am addressing the Chair. I wantthe honourable Member to pay attention to..........
Mr. Vice-President: Mr. Nagappa will kindly take hisseat.
Shri Mahavir Tyagi: According to the calculationsenvisaged here, there will be approximately 3,300 members in the legislatures of the provinces and States. The votes theywill have will not be one each. Each one of them will haveas many votes as can be obtained by dividing the populationof the State by one thousand, and dividing the result againby the number of legislators in the State. This means thateach member will have not one vote, but as many as 98 votesor 97 votes or 80 votes and so on. How can you call such asystem as single transferable vote?
I want to guard against one more defect, of which nonotice seems to have been taken. You have not said that allthese votes will be cast to one candidate. Suppose I am alegislator in U.P. and I have 98:5 votes and there are fourcandidates for one seat. You have never said that all thevotes should be given by me to one candidate only. I may give 90votes of mine to one candidate, 4 to another and 5 to athird and so on. I can thus distribute my votes to thecandidates according to my choice. You have said that eachelector will have about 98 votes, but you have not said thatall of them will have to be cast to one candidate. Thatbeing so, how will your single transferable system stand? I would request you to look into this and please correct thisclerical error. You have not said that all the votes will begiven to one candidate cumulatively and that they cannot bedistributed among so many candidates.
Secondly, the single transferable vote does not existhere, because nobody has a single vote, everybody has pluralvotes. The number of voters will be 3,300 in statelegislatures and the total number of votes will be about3,30,000. And then the same number of votes will be casthere in ParlI ament by 735 voters. Therefore, here everyvoter will have something like 460 votes. In Ireland thesystem of single transferable voting might suit becausethere each voter has one vote, but it will not suit us herebecause here each one does not have one vote, but so many,and the number of votes a legislator gets varies fromprovince to province or State to State.
Now, I come to the proposal I have made. My proposalis--
"The election of the President shall be held by secretballot and in accordance with the system of majoritypreferential voting by the single alternative vote."
According to this system, votes can be transferred from onecandidate to another and the candidate who gets the minimumnumber of votes will be eliminated from the contest, and hisvotes will be altered and counted in favour of the nexthigher candidate of his choice. And this process ofelimination will proceed on till there remains only onecandidate in the contest. He will be declared elected. Itherefore submit that my phraseology is more suitablealthough the method will remain practically the same. Onlythere is a technical difficulty which I have pointed out.
Begum Aizaz Rasul (United Provinces: Muslim): Sir, Ibeg to move:
"That in clause (3) of article 44, the words "inaccordance with the system of proportional representation"be omitted.
My arguments have more or less been covered by the speech of the previous speaker. The object with which I move thisamendment is that the first condition of proportionalrepresentation is the existence of a multiple memberconstituency. If only one man is to be returned then thequestion of proportional representation does not arise andthis point has been clearly made out by Mr. Tyagi. ThereforeI do not want to take up the time of the House in repeatinghis arguments. It might have been understood that the singletransferable vote would have been beneficial in thiselection, because it would have meant the elimination ofcandidates who got the least number of votes. I will give anexample of proportional representation in a constituencywhich is a multi-member constituency. For instance, if thereare 100 votes and 5 people have to be returned and party Agets 50 votes, B gets 25 and C gets 25, in ordinary electionall the candidates returned will come from Party A. Whereasin proportional representation Party A will get 3, B willget 1 and C will get 1. The idea is that the proportion of the electorate is reflected in the number of personselected. For this it is essential that there is more thanone seat but when there is only one seat how can theproportion of the electorate be represented in that seat,because one seat cannot be portioned into 3 or 2? ThereforeI believe that this system of proportional representationwill certainly not be correct for the election of thePresident and the minority as such where it is able to sendin its candidate in a multiple member constituency cannot doso in a constituency which can only return one member. Henceit is that I have moved this amendment.
(Amendments Nos. 1080, 1081 and 1082 were not moved.) Mr. Naziruddin Ahmad (West Bengal: Muslim): Sir, Ipropose to more amendment No. 25 on List I (Fourth Week) inplace of Amendment No. 1083, because this amendment isacceptable to the honourable Member Dr. Ambedkar.
I beg to move:
"That for amendment No. 1083 in the List of amendmentsthe following be substituted:
"That for the explanation to article 44, the followingExplanation be substituted:--
"Explanation.--In this article, the expression"population" means the population as ascertained at the lastpreceding census of which the relevant figures have beenpublished.'"
This amendment really combines the purpose ofamendments Nos. 1081 and 1083. Amendment No. 1081 tabled byDr. Ambedkar wanted to get rid of the first part of theExplanation. Amendment No. 1083 which stood originally in myname really wanted to effect certain important verbalchanges in the latter part of the Explanation and theamendment which I have moved combines the purposes of boththese amendments.
With regard to the elimination of the first part of theExplanation, which corresponds to Dr. Ambedkar's amendment,I need not say anything. I shall confine myself to that partof the amendment with which I am concerned. In fact the House will be pleased to note that article 44 deals with theelection of the President. By article 43 the members of the Houses of ParlI ament at the Centre and the elected membersof the Legislatures of the States are sought to be empoweredto vote at the presidential election. [By sub-clause (a) toclause (2) of article 44 it is provided that every member of the State legislature shall have a certain number of votesand that would be dependent upon the population of theState. But it is provided in the Explanation as it stands in the text that this population should be taken from the `lastpreceding census'. I submit that the original Explanationmay lead to an impasse, as for instance, when the electionis going to be held the figures of the `last precedingcensus' may not be available.] For example if there is acensus on the 1st January 1951, as it is normally expectedto be, and if there is an election of the President inFebruary or March 1951--within two or three months of theCensus--the figures of `the last preceding census' will notbe available. [It takes about a year to prepare and publishthe census figures. Thus if we keep the phraseology of theExplanation as it is we shall be bound to assign votes to the members of the State legislature in proportion to thepopulation as ascertained in the last preceding census,whereas the figures of the last preceding census would notbe available for the purpose. The result will be that theelection of the President cannot be held. In thesecircumstances I have suggested the amendment that we shouldtake the population from the last preceding census `forwhich the relevant figures have been published'.] By thesewords the impasse would be avoided. If election is heldwithin a short time of the census and the figures of thatcensus are not available, then this amended Explanation willallow the figures of the previous 1941 census to be reliedupon. That would remove the impasse which otherwise couldnot be avoided as we will have definite figures to go upon.In these circumstances I submit that the amendment should beaccepted.
Mr. Vice-President: The article is now open for generaldiscussion.