CONSTITUENT ASSEMBLY OF INDIA - VOLUME IX Saturday, the 20th August 1949 The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Nine of the Clock, Mr. Vice-President (Shri V. T. Krishnamachari) in the Chair. .
Shri Biswanath Das (Orissa: General): Mr. Vice-President, Sir, I stand to oppose article 277 as unnecessary in this Constitution. Sir, the emergency powers incorporated in this Constitution are more or less adapted on the lines of Section 93 of the Government of India Act, 1935, with certain modifications necessary from their point of view for the purpose. An analysis of the clauses reveals that it is classified under three heads, firstly, provisions relating to war emergencies, secondly, provisions relating to domestic violence and thirdly, provisions relating to any such violence and acts of violence which the President considers imminent and dangerous. A Government functioning under any constitution has always the right to take all necessary powers to deal with the situation has always the right to take all necessary powers to deal with the situation in cases of external aggression or war emergencies. To that extent, any restriction of the powers and privileges of the ordinary citizens may be allowed under the Constitution. I do not believe that any honourable Member of this House seriously object to that aspect of the question. It would be ridiculous to call it democracy if a party or a provincial Government goes on in its own way to take a cow action which is contradictory and conflicting with the best interests of the Union or its safety. Under these circumstances, any power reserved for the Centre in war time and war emergencies Is welcome.
Sir, we come to the question of domestic violence and any acts of violence which according to the- President are considered imminent and dangerous. These are different questions and have to be considered from a different point of view. As I have stated on many occasions, I repeat that we are contemplating party Government in a system of democracy. Party Government necessarily means different parties. In a federation with a Centre and Units' there is no denying the fact that different political parties may be in charge, of the administration 'in the different units or even in the Centre. Under these circumstances, there is a possibility of misuse of these powers. Speaking personally. I have experience of this misuse. Recollecting-my past experience-of Madras and the Justice Party, I have seen how the District Boards and Municipalities were mercilessly superseded without rhyme or reason because the Government had the power kept to itself to supersede these municipalities. What- has been done in Madras by a certain party with regard to district boards and municipalities may be repeated by the- Centre. Therefore, I plead with the Honourable Members of this House that no more power need be left with the Centre or with the Governors who are practically the agents of the Centre to deal with any ad situation Any power that you reserve to yourself for war emergency is quite welcome. We do not oppose it. I concede the fact that the provisions contained in articles 275 to 277 and the rest are not as drastic as they are in the small Section 93 of the Government of India- Act. I do realise that the framers of the Constitution (513)have not arrogated to the Governor all the executive and legislative powers that ),on have under Section 93. 1 also further concede the fact that you do not wipe off the High Court if and when it suits you. All that is conceded. Why should you have article as 277 which is not even contemplated under Section 93 ? Section 93 does not suspend the allocation of grants from the Centre. Speaking from past experience, let me state that even in the war years (during the second world war), the provinces were getting their financial allocation from the Centre, even in the provinces where we had government under Section 93. I also feel that a responsible Government functioning at the Centre cannot afford to suspend the grants that are given to the provinces to be utilised for nation building activities unless it wants to bury itself. There is also the possibility of a totalitarian party coming into power at the Centre. Under these circumstances, I do not see any reason why more powers should be reserved in the Centre under the Constitution for taking necessary action in such cases. Sir, this is giving autonomy with vengeance to the provinces. Therefore, I plead with the honourable Members of this House as also with the Drafting Committee that a reconsideration of this article is called for.
Again, I have to state that the reports, both of the Central Committee and the Provincial Committee, have not recommended such powers as are proposed to be given to the provinces under article 277. 1 do,not see any reason why the Drafting Committee should have taken this course without any authority from this House or anything of the like contained or contemplated in the reports of the Provincial or Central Constitution Committees. With the proclamation of emergency under article 275, autonomy in the provinces is being suppressed and the powers practically vested in the provincial executive lapses more or less: into the Centre in the sense that the province has to be governed under the directions of the President. That being the position, why should you take a further step in refusing even the grants, suspending or reducing the grants which are allocated to the provinces not by the President, nor by the legislature, but by a non-political body that you yourself have constituted ?
Assuming for a minute that the grants are suspended, activities, connected with it for nation-building or administrative activities are suspended to that extent. What do you do with the money? Allocations have been made on a regular defined basis; each province gets its share while this money lies idle with-. out being used for its legitimate purpose. Why should you create this discrimination among the provinces ? If power is taken under sub-clauses (b) and (c) as I have already stated for domestic violence or such acts of violence as the President considers imminent and dangerous in the province or provinces, why should you punish the people of the province as different from the Government which may be responsible for mishandling or for encouraging these unlawful and violent activities ? It may be enough if the provincial executive is suspended; it may be enough if the provincial legislature is also suspended. But, why should the people be punished for an act for which they are not in the least responsible Under these circumstances, I find neither mason nor justice in the article has been placed before the House for approval. I have no option but to oppose it.
Shri Brajeshwar Prasad (Bihar: General): Mr. Vice-President, Sir, I rise to support this article with all the emphasis that I command. My Friend Mr. Bishwnath Das raised the question of democracy. He is shedding tears at the prospect of democracy being liquidated when there is a great emergency in this country. I am definitely of opinion that the issue involved is not democracy but the security of the country and I feel that this article is a necessary corollary of article 275. 'There must be a political reservoir of power somewhere at the Centre to deal and to meet with a situation that may arise in the country when there is a grave emergency in this country. The whole idea is unsupportable that any Government at the Centre will starve the provinces and medical facilities, Educational facilities or other nation-building departments will-come to an end. Mr. Biswanath Das is under the impression that provincial autonomy or democracy will survive in this country if there is a totalitarian party at the Centre. If a totalitarian Government at the Centre emerges, there will be no provincial autonomy left. I am of opinion that we half 'already given too much powers to the provinces and at a time when there is an emergency the whole Constitution must be changed. into a unitary constitution. It is only when there is a unitary State in this country that there can be progress. The main issue is not democracy but security of the country and the economic well-being of the people of India. We want progress of the country. Therefore, I support this article.
Shri Kuladhar Chaliha (Assam: General): Sir, I consider this a very drastic provision. It will have the effect of completely dislocating a province. In fact I think Assam will be the first casualty. If you have the power to suspend the Constitution, then how will the provinces function ? Under the pretext of this provision probably you will take all the finances to the Centre and we will have nothing left to the provinces. What will happen under this provision ? On a certain date the Communists of Burma right come into the Eastern frontier. Then under that pretext an emergency will be declared and you will take all the powers. If the entire State is on revolt against the Centre, then of course this emergency may be declared; but unless there is definition of what is 'an emergency and under what circumstances these provisions could be applied, it will be causing something which is not expected. I submit that this provision is put in a manner which does not show, all the consequences; if this is applied, it will lead to the greatest hardship, Mr. Brajeshwar Prasad is of course a very straight and balanced man and always thinks of the stability of the country and thinks that the Constitution may be jeopardised if powers are left to provinces, and he further thinks alI the good qualities are in the Centre and they are all devoid of good-the qualities in the provinces. He is anxious to concentrate all power in the President. If we go on like this the provinces will be left with nothing. You are only introducing dyarchy like the old dyarchy and everything will be in the Centre and provinces will be mere nonentities: If you want to have this provision, then you have to define what is an emergency and under what circumstances they can be applied; otherwise this word 'emergency' is so vague that even if a small Nag tribe attacks Assam you will declare emergency, or if there is Communist disturbance at Dibrugarh you may declare an emergency. I therefore request Dr Ambedkar to define the word 'emergency' and under what circumstance this ,suspension or taking the taxes can be taken by the Centre. Provinces are o course going to be mere puppets in the hands of the Centre and I trust the gentle. men in charge of the drafting of the Constitution will think over the matter and try to define what an emergency is and under what circumstances this can be applied.
Mr. Vice-President (Shri V.. T. Krishnamachari): I think Shrimati Durga Bai has moved for closure. I am sure the House will agree to that.
Honourable Members: No. No. Shrimati G. Durgabai (Madras: General): Mr. Vice-President, Article 277 empowers the President to effect alterations which are necessary in the existing arrangements with regard to the distribution of revenues between the units and the Centre. This power is conceded to the President only for the period of emergency and in my opinion this is a necessary, sequel to article 275 which has already been agreed to by this House. This Ho-use has already agreed that (]urine a period of emergency the President ought to be clothed with overriding ' powers to safeguard 'the interest and peace of the country. What are those special powers worth, may I ask, if the President is denied the authority of pleading with the units to readjust the allocation of finances between the unit and the Centre? A grave emergency arises when there is a war or a threat even to the Constitution of this country and no sacrifice is too great to successfully overcome this period of emergency. An honourable Member vehemently opposed this article 177. She has conceded that the President could ask the units to stop expenditure on development schemes of the units, but in the same breath she said that the Centre should not have power to readjust the allocation of finances or make the necessary adjustments with regard to existing finances between the units and he Centre. It should not be forgotten that first of all the President means the President acting on the advice of his Cabinet; secondly we have given this power to President only for the period of emergency. This power will not exceed in any case the financial year and lastly, it is subject again to the intervention of the Parliament at any stage even during this period if anything went wrong.
So I do not understand why some of the honourable Members should take objection to the giving of these powers, under the circumstances that have already been explained by. Dr. Ambedkar, and also by other Members who have supported this article. Under these circumstances, it is extraordinarily unjust to suppose that this article provides for financial autocracy of the Centre. Certainly it should not be considered so because we have given these powers for a period which we call an emergency period, and also we have limited its period only to the financial year in any case, and also we have given the power to Parliament to intervene at any time if anything went wrong. Therefore, Sir, I support the article 277 as amended by Dr. Ambedkar.
Shri S. V. Krishnamoorthy Rao (Mysore State): Mr. Vice-President, Sir, I also rise to support article 277 as it is framed and amended by Dr. Ambedkar's amendment. With all respect to Pandit Kunzru, I oppose his amendment. In fact, I think Mr. Chaliha has not read article 275. An emergency comes into operation only in case of war, or internal disorder or external aggression. In such circumstances, extraordinary powers have to be given to the Centre. The suspicion, I believe, is born out of the feeling that the Centre is something different from the Provinces. In fact, the period of emergency lasts only for two months, and it continues only if Parliament approves of the emergency powers within one month of the date of the meeting of Parliament; if it is not approved, then the state of emergency lapses. And also, the period for which the financial powers are given tinder Section 277 cannot be longer than one year because the budget is framed from year to year. During the period of emergency, the security and safety of the entire country must be the sole responsibility of the Centre and extraordinary powers have to be given to the Centre. Otherwise, during the period of grave emergency, if Quarrels for adjustment of financial contributions are allowed to be going on between the Provinces and the Centre, the safety of India will be jeopardised; and if India survives every province survives and every citizen survives,-not otherwise. The safety of the country must be the predominant factor and these powers as are given under article 277 are absolutely essential, and therefore, I support this article.
The Honourable Shri Satyanarayan Sinha (Bihar: General): The question may now be put.
Mr. Vice-President: I have promised Mr. Sarwate that I would allow him to speak. I will put the question later.
Mr. Naziruddin Ahmad (West Bengal: Muslim): There are also several other speakers; you may give them a little time each, say two minutes at least.
Shri V. S. Sarwate (Madhya Bharat): Mr. Vice-President, I thank you for giving me this opportunity to express my feelings. However, I shall not be long. I think that Sections 276, 277 and 227 are to be read together. When an emergency arises, the Government at the Centre would have to function in two departments, the Executive and the Legislative. By article 227, powers have been given to the Centre to legislate on matters which come within the purview of the State legislature. By article 276 (b) power has been given to the Central Government to take upon itself executive functions in respect of such matters. Now, when the Central Government takes upon itself central duties which otherwise would have been done or executed by the Provinces or States, then it is but natural and necessary that it should be provided with the necessary funds. Therefore, it follows that article 277 is a repercussion in the financial sphere, of the powers which have been given by articles 227 and 276 to which the House has already agreed. For instance,-if the Centre takes over to itself the functions of the police, in case of emergency in a State, it will require certain more financial expenditure. That has been provided by article 277. If this provision is not made, then it would be something like providing a car and not providing the petrol for running the car. Therefore, I say that these three articles are closely knit together and you away the financial provisions from the rest. With these remarks I support this proposition.
The Honourable Shri Satyanarayan Sinha: Sir, the question may be put now.
Shri H. V. Kamath (C. P. & Berar: General): Sir, Mr. B. Das has been trying to catch your dye since yesterday.
Mr. Naziruddin Ahmad: Sir, the request to put the question is very premature, Mr. Vice-President: I do not know about that. I have asked Mr. B. Das to speak.
Shri B ' Das (Orissa: General): Sir, Part XI of the Draft Constitution provides the emergency provisions. If you look at pages 129 to 131, you find articles 275 and 276 where you have the original intentions of the Union Powers Committee and the Union Constitution Committee of which Pandit Jawaharlal Nehru was the Chairman. The Drafting Committee seem to have had some inspiration and it has not been explained how it got this inspiration about the financial provisions in article 277, and the subsequent article 278,-additional articles introduced by them. Sir, it is said that India is for world peace and is following in the footsteps of the Father of the Nation. But anyone who reads article 277 can see for himself, and if it is passed it would show that India is preparing to starve all the resources of the Provinces for aggressive Wars against other nations. What does article 277 require ? It Would give that power to the President-this new Frankenstein that has been created by the Draft Constitution, for the President of India is not a democratic President, he is to be something like the South American Presidents who will exercise all emergency powers-all financial powers and even starve the provinces. Articles 249 to 259 have been discussed- threadbare on behalf of those under-fed provinces of Assam, Orissa, Bihar and Bengal which are starved for no fault of theirs, and if article 277 is allowed to be passed on the floor of the House, woe betide these poor provinces.
Sir, if I compare the attitude of mind of the authors of the Drafting Committee and that of the predecessor government here,-the former British rulers, I find that the latter did not take away the resources of the provinces during the last great war. They went on, it is true, taxing, they went on extending their taxable capacity by putting extra income-tax, corporation-tax, excess profit-tax and so many other taxes. They brought in higher export duties and so on of course, that was taxing the people of the Provinces; but at no stage did the Centre encroach upon the resources of the Provinces. Today we ,are asked to hand over that power of confiscating the provincial revenues to the President. We are told that an elected Cabinet would be there and the ,Cabinet would advise the President. We have an elected Finance Minister in the present Government as Member of this House. Why is it that he has not justified his attitude as to why he advised or his Ministry advised the Dr" ,Committee to. encroach or expropriate or usurp the resources of the provinces in time of emergency- ? Sir, this is a challenge to the democratic spirit of the 'future Parliament. Do members' of the Drafting Committee think that the Parliament will not be willing to hand over such absolute power to the dent or the Cabinet when an emergency arises ? It did in other countries. Why should the Indian Parliament be have differently ? I may say the future Parliamentarians will be as good, bad or indifferent as we all are at present.
I feel grateful that my honourable Friend Pandit Hirday Nath Kunzru has raised a debate on the important point of the President's power in regard to usurpation of provincial financial resources. It is like capital levy. it is like taking away by force what others possess. During the last Great War, the Nazis took away iron and metals from the householders not only in their own country but in conquered territories. Why should the Government of India, like the Nazis, expropriate the revenues assigned to the States in an emergency? I can not understand it at all. Is it charity which the Centre has been giving to provinces, that it would take away that part of the revenue in times of emergency? I find the provinces derive substantial shares of revenue from income-tax and central taxes :
Orissa .. 24 per cent.
Assam .. 22 per cent.
Bihar .. 20 per cent.
Bengal .. 19 per cent.
U. P. .. 18 per cent.
Bombay .. 19 per cent.
and Madras which has the largest revenue of 55.94 crores has15 per cent. from the sources of income-tax. Surely this is not a new allocation that we have done today. The present Government is not responsible for this assignment except for certain modifications by an Ordinance in 1974 whereby when Pakistan came into existence West Bengal which originally had 20 per cent.of income-tax now will have to be content with 15 per cent.
I think, Sir, that such an emergency power is not necessary. Such an usurpation will not be allowed in any democracy, not to speak of India. I listened most attentively to the speech of my honourable Friend Mr. Alladi Krishnaswami Iyer and I felt that his was a legal argument and there was no substance in it to justify the granting of such power to the President, or the Cabinet. Everybody knows that the Government of India are now angling to collect all the sales tax on behalf of the provinces and to distribute them. If article 277 will be in the brain of the Finance Minister and his Ministry, they will try to collect all resources, so that provinces will have little which they will collect, and in time of emergency the Centre will apply article 277 and thereby take away whatever provincial resources are collected by the Centre. Who says that the Cabinet of the time in time of emergency will be more democratic than it is today? The sympathy which the Finance Minister and the Finance Ministry have shown over the discussions on the Federal Finances on the floor of this sovereign House shows that provinces will get scant justice, not to speak of scant courtesy, in times of emergency. Suppose we have a Finance Minister who gets fluttered over every little incident, who becomes extra-ambitious. During the Second World War, the Government of India through their Executive Councillors became extra-ambitious and took away by means of Ordinances all our resources - lock, stock and barrel. Who can similarly doubt the power of the Central Government to pass Ordinances as ambitiously or as ignorantly as the British Government did? They imposed "control" prices and supplied all they required for themselves and the Allies and the result is that India is in the grip of inflation and prices are now 365 per cent. of the pre-war level, whereas in America they are somewhere about 200 per cent., and in England somewhere about 100 per cent. That is the effect of the "control" prices and controlled purchases.
Let me hope there will be no war, no emergency. I am for peace, in India and peace in the world. But supposing an emergency unfortunately arises, who suffers ? The people. The people have to suffer and supply goods at controlled prices as they did between 1939 and 1947. What does inflation mean ? It means that the provincial governments and the people can not make both ends meet, and if a new Finance Minister is extra-ambitious he may begin taking all the resources of the provinces by asking the President to exercise article 277. How much is that - something like 60 per cent. of the income tax; 40 per cent. of the excise duties and 40 per cent. of the jute duty in certain provinces, it comes to something like Rs. 60 crores now.
If this sovereign House had accepted the Sarkar Committee Report the provinces would have got about 60 per cent. of the proceeds of all sources of income-tax (which comes to somewhere about 150 crores of rupees) and about 60 per cent. of the share of excise duties which would have meant very large sums. If you will kindly permit me, I shall illustrate my point with reference to Orissa. The total revenue of Orissa is Rs.6.82 crores of which about 3 crores is derived from the Centre as extraordinary grants. That means Orissa's net revenue is only Rs. 3.82 crores. The standard of living of people in Orissa is very, very low.
Mr. Vice-President: Are all these details necessary ? Will the honourable Member pleas conclude his speech?
Shri B. Das: I would very much like to. But I am only expressing the feelings of the lacerated hearts of provinces which have to be deprived of even the moiety which till now they were getting from the Centre as share of central taxes. I want to quote certain figures to illustrate the standards of our administrations.
Bombay spends five annas and one pie on Education; UP spends 6.5 annas; Bihar spends 3.11 annas; Assam spends 6.2 annas, while Orissa spends 4.1 annas. If you take the question of public health and medicine about which we talk always the figures are more discouraging. C. P. spends 2.1annas per capita; Assam spends 3.1 annas. Orissa spends much less.
This is the condition of the provinces and today we are asked to be a party to article 277 whereby even the low standard of living in the provinces will become lower still. I am very much perturbed; I am very much disturbed. I think democracy will not lead to autocracy which will create Frankensteins and South American Presidents who can do anything. I have studied this Constitution carefully. I find the President can any moment become an autocrat: he can dismiss his Cabinet and dissolve the Legislature. It is no use framing a Utopian Constitution which any President can upset; and who knows that the Gandites will rule India all along ! I feel very sad at heart - I fully support the observations of my honourable friend Pandit Kunzru and I have fully sympathy with the lady Members from Bengal, Shrimati Renuka Ray, who spoke so cogently on behalf of her province. Assam has spoken and Orissa has been speaking for the second time. I, therefore, feel that Dr. Ambedkar will see his way to withdraw article 277 or redraft it to suit the wishes of the aggrieved provinces.
Mr. Vice President : The question is :
"That the question be now put."
The motion was adopted.
The Honourable Dr. B. R. Ambedkar ( Bombay : General ): Mr. Vice-President, Sir, I have given as close an attention as it is possible to give to the amendment moved by my honourable friend Pandit Kunzru, and I am sorry to say that I do not see eye to eye with him, because I feel that in large measure his amendment seems to be quite unnecessary.
Let us begin by having an idea as to what financial relations between the Centre and the provinces are normally going to be. I think it is clear from the articles which have already been passed that the provicnes will be drawing upon the Centre, in the normal course of things.
(1) proceeds of income-tax under article 251;
(2) a share of the central excise duties under article 253; and (3) certain grants and subventions under article 255.
I am not speaking of the jute duty because it stands on a separate footing and has been statutorily guaranteed.
Let us also have an idea as to what the article as proposed by me proposes to do. What the article proposes to do is this, that it should be open to the President when an emergency has been proclaimed to have the power to reallocate the proceeds of the income-tax, the excise duties and the grants which the Centre would be making under the provisions of article 255. The article as proposed by me, gives the President discretion to modify the allocations under these three heads. That is the position of the draft article as presented to the House by the Drafting Committee.
Now, what does my Friend Pandit Kunzru propose to do by his amendment ? If I have understood him correctly, he does not differ from the Drafting Committee in leaving with the President complete discretion to modify two of the three items to which I have made reference, that is to say, he is prepared to leave with the President full and complete discretion to modify any allocation made to the provinces by the Centre out of the proceeds of the excise duty, and the grants made by the Centre under article 255. If I understood him correctly, he would have no difficulty if the President, by order, completely wiped off any share that the Centre was bound to give in normal times to the provinces out of the proceeds of the excise duties and the grants made by the Centre.
Pandit Hirday Nath Kunzru (United Provinces: General): I never said any such thing.
The Honourable Dr. B. R. Ambedkar: Your amendment is limited only to the income-tax. That is what I am trying to point out. You do not, by your amendment, in any way suggest that there should be any different method of dealing with the proceeds of the excise duties or the grants made by the Centre under article 255.
Pandit Hirday Nath Kunzru: The reason why I cast my amendment in that form is this. In so far as the distribution of the proceeds of any taxes depends on a statue passed by Parliament that power can not be taken away from Parliament but it does not belong to the President. But so far as income tax is concerned, the Government of India Act 1935, envisaged the transfer of the full share of the provinces to them within a certain period and allowed the Governor-General, in case there was an emergency, to delay the transfer to the provinces and thus lengthen the total period in which the provinces were to get their full share. That was the only reason; the inference drawn by my honourable Friend is completely unjustified.
The Honourable Dr. B. R. Ambedkar: I am entitled to draw the most natural inference from the amendment as tabled.
Pandit Hirday Nath Kunzru: The honourable Member is completely misunderstanding me. Under my amendment the President will have no power to alter the distribution of the proceeds of the Union excise duties.
The Honourable Dr. B. R. Ambedkar: I am sorry the honourable member did not make the matter clear in his amendment. And if he wants to put a new construction now and make a fundamental change the amendment should have been such as to give me perfect notice as to what was intended. There is nothing in the amendment to suggest that the honourable Member wants to alter the provisions of articles 253 and 255. It may be an afterthought but I can not deal with after thoughts; I have to deal with the amendment as it is tabled. Therefore, as I read the amendment, my construction is very natural.
Pandit Hirday Nath Kunzru: The honourable Member is utterly unjustified.
The Honourable Dr. B. R. Ambedkar: That is the honourable Member's opinion. My reading is that something new is being put forward now.
Pandit Hirday Nath Kunzru: The honourable Member is misrepresenting me and knows that he is doing so.
The Honourable Dr. B. R. Ambedkar: The honourable Member is misrepresenting his own thoughts. Therefore, as I understand it, there is no question of my honourable friend suggesting any alteration in the system of modifying the proceeds of the excise duty and the grant. The only question that he raised is the question of the modification of the allocation of income-tax during an emergency. Even so what do I find ? If I again read his amendment correctly, he is not altogether taking away the discretion which is left to the President in the matter of the modification of the allocation of the income tax. All that he is doing is that if the President was to make a modification of the allocation of the income tax as contained in the previous order, then the President should proceed in a certain manner which he has stated in his amendment. In other words, the only difference between the draft clause as put by me and the amendment of my honourable Friend Pandit Kunzru is this that, so far as the discretion of the President is concerned, it should not be left unregulated, that it should be regulated in the manner which he suggests.
My reply to that is this; Where is the reason to believe that in modifying or exercising the power of the President to modify the provisions relating to the distribution of the income-tax he will act so arbitrarily as to take away altogether the proceeds of the income-tax? Where is the ground for believing that the President will not even adopt the suggestion that the President is going to wipe out altogether the total proceeds which the provinces are entitled to receive under the allocation. After all the President will be a reasonable man; he will know that to a very considerable extent the proceeds of the income-tax do form part of the revenues of the provinces; and he will also know that, notwithstanding the fact that there is an emergency, it is as much necessary to help the Centre as it is necessary to keep the provinces going.
Therefore in my judgement there is no necessity to tie down the hands of the President to act in a particular manner in the way suggested by the amendment of my Friend Pandit Kunzru. It might be that the President on consultation with the provinces or on consultation with the Finance Commission or any other expert authority might find some other method of dealing with the proceeds of the income-tax in an emergency, and the suggestion that he might have then might prove far better than what my Friend Pandit Kunzru is suggesting. I therefore think that it would be very wrong to tie down the hands of the President to act in a particular manner and not leave him the liberty or discretion to act in many other ways that might suggest themselves to him. I suggest that it is better to leave the draft as elastic as it is proposed to be done by the Drafting Committee; no advantage will be gained by accepting the amendment of my Friend Pandit Kunzru.
As I have said, I have made another amendment in the original draft which left the matter entirely and completely to the discretion of the President and Parliament had no say in the matter. By the new amendment I have proposed it is now possible for Parliament to consider any order that the President may make with regard to the allocation of the revenues; and therefore if the President is doing something which is likely to be very deleterious or injurious to the interests of the provinces, surely many representatives in Parliament who would be drawn from the provinces would be in a position to set matters right. I, therefore, think that the original arrangement should be maintained by virtue of the fact that it is the more elastic than what is suggested by my honourable friend Pandit Kunzru.
Mr. Vice President: The question is :
"That article 277 be renumbered as clause (1) of article 277 and to the said article as so renumbered the following clause be added :-
(2) Every order made under clause (1) of this article shall, as soon as may be after it is made, be laid before each House of Parliament ."
The amendment was adopted.
Mr. Vice President: The question is :
"That with reference to amendment No. 3007 of the List of Amendments and Amendment No.13 of List I ( Fourth Week) of Amendments to Amendments for article 277 the following article be substituted:-
277 (1) While a Proclamation of Emergency is in operation the Union may notwithstanding Modification of the provisions anything contained in article 251 of this Constitution retain out of relating to distribution of the moneys assigned by clause (1) of that article to States in the first taxes on income during the year of a prescribed period such sum as may be prescribed and period a Proclamation of thereafter in each year of the said prescribed period a sum less than Emergency is in operation. that retained in the preceding year by an amount, being the same amount in each year, so calculated that the sum to be retained in the last year of the period will be equal to the amount of each such annual deduction:
Provided that the President may in any year of the said prescribed period direct that the sum to be retained by the Union in that year shall be the sum retained in the preceding year and that the said prescribed period shall be correspondingly extended, but he shall not give any such direction except after consultation with the States nor shall be give any such direction unless he is satisfied that the maintenance of the financial stability of the Government of India requires him so to do.
(2) In this article 'prescribed' means prescribed by the President by Order "-
The amendment was negatived.
Mr. Vice-President: The question is :
"That article 277 as amended, stand part of the Constitution".
The motion was adopted.
Article 277, as amended, was added to the Constitution.
____________ New Article 279-A Mr. Vice-President: Pandit Thakur Das Bhargava may move his amendment No. 73 to add a new article 279-A. There is an amendment of his also to article 280 in exactly the same terms as amendment No.73. I wish to know from him whether he will move this as a new article or propose it as an amendment to article 280.
Pandit Thakur Das Bhargava (East Punjab:General): Sir, I beg to move:
"That with reference to amendment No.15 of List I (Fourth Week) of Amendments to Amendments after article 279, the following new article be added :-
'279-A, Any law made or any executive action taken under article 279 in derogation.'"
Mr. Naziruddin Ahmad: On a point of order, Mr. Vice-President. This should be moved as an amendment to article 280.
Mr. Vice-President: But he wants now to move it as a new article after article 279.
Mr. Naziruddin Ahmad: Then, article 280 also may be moved and the whole thing considered together.
Pandit Thakur Das Bhargava: I have no objection to that course being adopted.
Mr. Vice-President: I think Pandit Bhargava might move his amendment No.74 after article 280 is moved. Instead of moving amendment No.73, he may move amendment No.74 after Dr. Ambedkar moves article 280.
_____________ Article 280 The Honourable Dr. B. R. Ambedkar: Sir, I move :
"That for article 280, the following article be substituted:-
'280. (1) Where a proclamation of Emergency is in operation, the President Suspension of the may by order declare that the right to move any court rights guaranteed by for the enforcement of such of the rights conferred by Part III article 15 of the of the this Constitution as may be mentioned in the order and all Constitution during proceedings pending in any court for the enforcement of the emergencies. rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the Order.
(2) An order made as aforesaid may extended to the whole or any part of the territory of India.
(3) Every order made under clause (1) of this article shall as soon as may be after it is made be laid before each House of Parliament.'"
Sir, the House will realise that clauses (2) and (3) are additions to the old article . In the old article there was a provision that while a Proclamation of Emergency was in force the President may suspend the provisions for the rights contained in Part III throughout India. Now, it is held that, notwithstanding the fact that there may be emergency, it may be quite possible to keep the enforcement of the rights given by Part III in certain areas intact and there need not be a universal suspension throughout India merely by reason of the Proclamation. Consequently clause (2) has been introduced into the draft article to make that provision.
Thirdly, the original article did not contain any provision permitting Parliament to have a say in the matter of any order issued under clause (1). It was the desire of the House that the order of suspension should not be left absolutely unfettered in the hands of the President and consequently it is now provided that such an order should be placed before Parliament, no doubt with the consequential provision that parliament will be free to take such action as it likes.
Mr. Vice-President: Now Pandit Thakur Das Bhargava may move amendment No.74.
Shri H.V. Kamath; There are other amendments in List I of Third Week.
Mr. Vice-President: I am coming to all that.
Shri H. V. Kamath: List I may be taken up first.
Pandit Thakur Das Bhargava: With your permission I propose to move amendment No.73 for new article 279-A as well as amendment No.74 to article 280.
Mr. Naziruddin Ahmad: This proposed new article is not on the agenda for today.
Mr. Vice President; Pandit Thakur Das Bhargava has to move amendment No.74. That is what was agreed to.
Pandit Thakur Das Bhargava: The point is that if new article 279-A is agreed to, I would have no objection to drop the amendment to article 280.
Mr.Vice-President: You agreed sometime ago that you would move the amendment for the new article 279-A as an amendment to article 280.
Pandit Thakur Das Bhargava: My submission is that I have given notice of two amendments, Nos.73 and 74. The substance of both is the same. But, while one seeks to substitute article 280, the other seeks to add article 279-A. At the same time, the objective of both the amendments, is quite separate. Therefore, you may allow me to move both and put both - in fact all the amendments to the House.
Mr. Vice President: Very well, you may speak.
Pandit Thakur Das Bhargava: Sir, I move:
"That with reference to amendment No.15 of List I ( Fourth Week) of Amendments to Amendments, after article 279, the following new article be added :-
279-A. Any law made or any executive action taken under article 279 in derogation of the provisions of article 13 of Part III of the Constitution shall ensure for such period only as is considered necessary by the State as defined in that Part and in no case for a period longer than the period during which a Proclamation of Emergency is in force ".
"That in amendment No.15 of List I (Fourth Week) of Amendments to Amendments for the proposed article 280, the following be substituted:-
"280. Any law made or executive action taken under article 279 ensure for such period only as is considered necessary by the State as defined in part III of the Constitution and in no case for a period longer than the period during which a Proclamation of Emergency remains in force".
"That in amendment No. 15 of List I(Fourth Week) of Amendments to Amendments in clause (1) of the proposed article 280, after the words 'a Proclamation of Emergency' the words, figures and brackets under article 275(1) of the Constitution be inserted".
"That in amendment No.15 of List I (Fourth Week) of Amendments to Amendments, in clause (2) of the proposed article 280, the following be added at the end:-
'for a period during which the Proclamation is in force or for such shorter period as may be specified'".
"That in amendment No.15 of List I (Fourth Week) of Amendments to Amendments after clause (2) of the proposed article 280, the following new clause be added :-
(2A) Any such order may be revoked or varied by a subsequent order".
That in amendment No. 15 of List I (Fourth Week) of Amendments to Amendments, in clause (3) of the proposed article 280, the following new clause be added at the end:-
'and shall cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament:
Provided that if any such order is issued at a time when the House of the People has been dissolved or if the dissolution of the House of the People takes place during the period of one month referred to in clause (3) of this article and the order has not been approved by a resolution passed by the House of the People before the expiration of that period, this order shall cease to operate at the expiration of fifteen days from the date on which the House of the People first sits after its reconstitution unless before the expiration of that period resolutions approving the order have been passed by both Houses of Parliament."
Sir, I would beg of the House to consider article 279 which we have already passed and the present article 280 together and in the light of what we have passed under article 279, consider the effect of article 280 along with article 279.
So far as article 279 goes, we have so far agreed as follows :-
"While the Proclamation of Emergency is in operation nothing in article 13 of Part III of this Constitution shall restrict the power of the State as defined in that Part to make any law or to take any executive action which the State would otherwise be competent to make or to take".
When we have passed this article 279, it follows that as a matter of fact we have given very extensive powers to the executive, in so far as the restrictions which have been imposed by provisos to article 13 in regard to fundamental rights have been practically taken away. While the Proclamation of an emergency is in operation, the executive can change any law and make any law with regard to fundamental rights, of freedom of speech etc., and those restrictions which have been placed by the statue under Section 13 as such power will no longer avail, which means that during the period of emergency the Executive will be armed almost with autocratic powers.
Now, if you will kindly look at 280 it is half not so drastic as article 279. In regard to article 280 as it now emerges from the Drafting Committee the prick of the clause has been taken away. If you will kindly see the original section 280 then the House will come to the conclusion that this section as originally drafted was much more drastic than it is at present. The old article 280 as originally found in the Draft Constitution ran thus :-
"Where a Proclamation of Emergency is in operation, the President may by order declare that the rights guaranteed by article 25 of this Constitution shall remain suspended for such period not extending beyond a period of six months after the proclamation has ceased to be in operation as may be specified in such order ".
So that according to article 280 all the rights spoken of in article 25 would have remained suspended. Not only the right to move and the guarantee of the right to move the Supreme Court for implementing these rights was taken away, but the rights themselves were taken away. Now, there is a great difference between the guarantee of moving the Supreme Court being taken away and the rights guaranteed under III being taken away. If the rights were not taken away then the position is very safe and the Supreme Court and other citizens can not go against the declared law of the country but only the right to move the Supreme Court by appropriate proceedings is taken away. The laws remain as they are, but if the right to change the law is taken away, as it has been taken away by article 279 a position is created in which the Executive becomes too autocratic. They can do whatever they like, they can pass any law if they can make the Parliament to enact it, so that article 279 is much more drastic in its effect than article 280. If you will kindly see article 279, it appears that during the period of emergency you authorise the executive to take any action untrammelled by the provisions of article 279 and similarly, you authorise the legislature to pass any law, a legislature as it is defined in article 7, without those safeguards and restrictions which the Constitution has in its wisdom taken the trouble to enact in respect of article 13, so that the result will be that if any action is taken or the law is passed during that period, the action and the law will be good and will inure for all time. Article 279 does not say that the action taken or the law is passed during that period, the action and the law will be good and will inure for all time. Article 279 does not say that the action taken or the law passed will only be applicable for the period of emergency or within six months after that and article 279 is totally silent upon that. Therefore, any law enacted during this period will be a good law unless it is repealed or avoided. My amendment seeks to restrict this period and I want that any law passed during this period or any executive action taken during this period under the provisions of article 279 may only inure for the period of the emergency or such shorter period as the State enacting it or the executive taking the action thinks it necessary.
Therefore independently, of what we do in regard to article 280, it is absolutely necessary that you agree to the enactment of article 279-A. Otherwise, the effect will be that the powers taken under an emergency and action taken and law enacted during that period will inure for all time unless it is repealed or avoided. If you accept the amendment, then automatically as soon as the emergency passes away and normal condition return, the effect of any such action or law would be taken away and the action and the law will be automatically repealed and avoided.
In regard to article 280 I would beg of the House to consider its full implication before it considers this article. The wording "emergency" has not been defined anywhere and one of my honourable friends suggested to Dr. Ambedkar to define the word "emergency" and I told Dr. Ambedkar that he will certainly perform a miracle if he succeeded in defining the word "emergency" as the word "emergency" is so fluid and is of such a nature, that you can not possibly define it. It depends upon a particular executive to say whether there an emergency has arisen and an ordinary emergency may soon unnerve the executive of any State. A small bubble may at any time develop into a glacier and even the biggest seeming mountain of truth may just dwindle into a mere scrap of sand. Nobody can foresee or can say beforehand how the actual trouble will develop. Therefore, a panicky cabinet will declare an emergency very soon, whereas a strong and sturdy Cabinet will not declare in any such situation that an emergency has arisen. It will depend upon the nerve and spine of the Cabinet as to how they deal with this question. Therefore, I think that we should not visualise that the present Cabinet shall remain for all time or there will not be cabinets in the future which will perhaps not take the view which our present Cabinet is expected to take. Let us therefore be cautious and see that we arm the executive with such powers as are necessary, so that the liberties of the people are not jeopardized by a panicky Cabinet. Therefore it is up to us to see that we enact provisions which do not arm the Executive with too much power.
After all is said and done, Parliament is the alternate authority. If we can take away some of the powers which are sought to be given by this article 280 and invest the Parliament with those powers, it would be doing the right thing. It is in that view that I have proposed the other amendments to this article.
The first amendment in this connection to which I would draw the attention of the House is No.75. So far as this amendment is concerned, I think it is only a clarification. I have pointed out that a Proclamation of Emergency can only be issued under article 275(1). Under article 278 it is not contemplated that any proclamation of emergency can be issued. I only want to make it quite clear that it is only under this article that the power can be taken.
In regard to amendment No.76, I beg to submit that as I read the amendment of Dr. Ambedkar, I can understand that the proclamation or order may apply to the whole of India or it may apply to a part of India. In so far as the question of time is concerned, if you keep the article as it is and do not incorporate the amendment contained in No.76, in clause (2) it would mean that every order shall remain in force for the full time of its duration in the whole of India or part of India. If you add these words, it would be possible that in certain parts the order may be for a shorter period, and in the rest of India, it may be for the full period. Unless you add this, the object which Dr. Ambedkar has in view will not be fulfilled.
In regard to amendments 77 and 78, I do not want to take much of the time of the House because as a matter of fact, these two amendments have been taken from the original clause which we have already passed about the Proclamation of Emergency. If you kindly refer to article 275, you will see that these two are already there. I want these two safeguards which appear in article 275 in regard to Proclamation of Emergency may also appear in regard to this order also. After all, the first and foremost effect upon the citizens of a proclamation of emergency is that it takes away their fundamental rights. They are affected very vitally. When I understand that an emergency may be as elastic as the proverbial foot of the Chancellor, then my difficulty becomes all the greater. Unless and until Parliament confirms the particular order taking away the guarantee of enforcing the fundamental rights, we will not be safe in this country and no citizen would be safe with his liberty, unless this provision is enacted.
If you look at the present position in regard to articles 279 and 280 you will find, as a matter of fact, this provision of article 280 is not so necessary as it appears to be. One of my amendments is that instead of article 280, we may substitute article 279-A. I wish to take the House with me in coming to the conclusion that the enactment of article 280 is not so necessary as it appears at first sight. So far as the fundamental rights are concerned, article 13 is the principal article. If you take away article 13, very little remains in the Fundamental Rights over which a person should feel enthused or to feel concerned. Article 13 being practically taken away by article 279, what is there to worry any person about fundamental rights? In regard to the personal liberty of the subject and the protection of his rights, article 15 is there. The House will kindly excuse me if I dilate a bit on this provision.
Now, Sir, according to the fundamental rights as they exist today, this article 15 is the greatest blot on our Constitution. By article 15, whatever we had given in article 13 we have taken away. If the adjective law has been sought to be corrected by enacting article 13, and safeguards against the misuse of the powers given under article 13 were provided by the use of the word "reasonable " before the word "restrictions", they are all washed away by article 15, because in regard to procedure we have not put in any restriction whatsoever on the powers of the legislature. Under article 15, the legislature is at perfect liberty to pass any law it likes. It can take away all the safeguards that exist today. Under article 15 any legislature is competent to enact that no accused shall be defended by counsel. Any legislature, under article 15 as it exists today, is competent to enact that as a matter of fact, the present provisions relating to arrest, relating to remands and bail, production of defence, appeal etc. can all be abrogated. Under article 15, any special courts with special powers and procedure can be created and the liberty of the subject can be reduced to zero. This is the present position. Unless and until we see that article 15 is righted, there is nothing which you possess can be taken away by article 280. If you take full powers under article 13, what else is there for which one should feel sorry for the deprivation? If you kindly look at the fundamental rights, you will be astonished to see there is no other such fundamental right which could possibly be taken away by enacting this article 280. In the first place, if you look at those rights one by one, you will come to the conclusions that article 280 does not practically touch many of them. Taking article 8, I do not think that any person will dispute that article 280 touches any of the right in regard to the use of wells, roads, hotels, etc. Similarly in regard to article10 which deals with employment and article 11 in regard to untouchability and article 12 in regard to titles. Article 13 has already been taken away. In regard to article 14, I understand something worse can be done if article 280 is enacted. A person who has committed a crime two months ago may be tried by a law enacted subsequently by virtue of which he may be liable to a greater amount of punishment. Similarly, there can be two convictions for the same offence and the right to move the Supreme Court for immediate remedy will be taken away. In regard to article 15, I have already submitted. If the article 15 remains in its present form, I can predict that after all this Constitution is enacted and all the dust of controversy is over, and Dr. Ambedkar sits down in his bunglow, he will repent the day when he passed article 15 without any safeguards. I appeal to him and to the House that if they really mean well to the people of the country, they must see that article 15 is amended. If article 15 is not amended, this Constitution and these fundamental rights are not worth having. Therefore, I submit so far as article 15 is concerned, the law already provides that Parliament may make any law as regards procedure and thus there is no fundamental right in respect of procedure. So that, there is no other vital fundamental right which this article touches.
In regard to article 16, which deals with freedom of trade, the Parliament already possesses the power to enact laws. Article 17 deals with prohibition of traffic in human beings, and article 18 deals with the employment of children. I do not think any Government worth the name will try to conscript under article 17 one class only. The State is empowered by this article to conscript without discrimination. It is thus more an enabling than a disabling clause. No other fundamental right is affected if article 280 is not passed, in regard to articles 19, 20, 21, 22, 23 which deals with religious and cultural rights and article 24 deals with compensation.
So, that my humble submission is if my interpretation is correct, article 280 only takes away the power guaranteed to the people of moving the Supreme Court alone. The rights are not taken away; the laws are not taken away; the laws will remain as they are. Only I can not move the Supreme Court by appropriate proceedings. The laws will not be taken away except in regard to article 13. If the President takes power under this article 280, the laws will remain as they are; only the immediate remedy by appropriate proceedings is taken away. Therefore, my submission is, unless and until you change article 15, I do not care whether you enact article 280. If article 15 is amended or the safeguards are further provided by enacting other articles, as I think they must be and shall be provided in the Constitution, then article 280 would have a meaning. Then article 280 will be a necessary article because it would mean that if emergency is there, the important rights which the amended article 15 will confer will be taken away, and we should see that the Executive is not armed with such powers as to take away all the cherished and vital rights of the citizens. As I have submitted, this emergency may be very serious or may not be serious at all. Suppose there is a war in Kashmir or in any outlying part of the country, I do not see what would thereby happen to Tranvancore and Mysore, and why the rights of the people there should be taken away. It would depend upon the particular emergency. A panicky cabinet may take away all the rights, without good reason.
Therefore my humble submission is that as ultimately our last resort is the Parliament, Parliament should be given all those powers and should have the last say in the matter and as soon as an Ordinance is passed, it should be subject to the veto of the Parliament and Parliament should within one month be able to say whether it accepts it or not. If there is a Resolution that the order is not accepted, it should be scrapped. Therefore, if you want to safeguard the rights of the people, you must see that article 280 is not passed in the way it is sought to be passed by the amendments of Dr. Ambedkar.
Shri B.N. Munavalli ( Bombay States): Mr. Vice-President, I beg to move:
"That in amendment No. 15 of List I(Fourth Week) of Amendments to Amendments, in clause (3) of the proposed article 280, the full stop occurring at the end be substituted by a comma and the words 'when it meets for the first time, after such an Order' be added thereafter".
Sir, the article 280 is an article which arms the President with drastic powers. If we look to the other constitutions of other nations, we will find that no President is armed with such powers. Unless the French Constitution the President is simply Phantom of the King without Crown. The only power he assumes is that of veto and even that power is scarcely used. During the last fifty years there was no occasion to use such a power. So also under the Swiss Confederation, the President is no clothed with such powers; but curiously enough, the President under our Constitution, instead of becoming a Phantom of a King without a Crown is so to say a Phantom of King with a Crown and also with a Sceptre. Of course he is armed with these powers at the time of emergency but the fundamental rights which every citizen is to enjoy under this Constitution, will be deprived, by passing an order under this article by the President. He has no recourse even to law; but even then there is one sanguine point viz., the clause (3) which states that an order passed by President may be placed as soon as may be after it is made, before the Parliament. My amendment to this clause is that as soon as the Parliament meets for the first time after the President passes such an order, it should be placed before the House of Parliament instead of postponing the matter. My Friend Pandit Bhargava has moved certain amendments and they are quite regular and proper because the article as it stands will simply stun the citizens as they are deprived of all the fundamental rights and if his amendments are accepted, there will be some facilities. So, I support the amendments of Pandit Bhargava.
Mr. Naziruddin Ahmad: Mr. Vice-President, Sir, I beg to move -
"That in amendment No. 15 above, in clause (1) of the proposed new article 280, for the word and Roman figure Part III the words and figures 'articles 13 and 16' be substituted".
Sir, this proposed new article 280 is also equally drastic. It is just in keeping with other equally drastic clauses which are allied to it. What is the effect of article 280 as it is proposed in its new shape? It may be recollected that this article was moved by Dr. Ambedkar on a former occasion in a milder form. There were serious objections in the House. Dr. Ambedkar desired that its consideration be postponed till he could attend to it and then he has brought in something which is much more drastic, more objectionable and therefore there was not only no consideration of the objections raised but the article has been presented again to the House in a more objectionable from. In its present form it strikes at pending cases also. What is the purport of article 280? It is that during the pendency of an emergency the President may by order suspend the right of any person to go to Supreme Court or other Courts which might be empowered in this behalf by Parliament to vindicate his rights under Part III of the Constitution. What are the rights contemplated in Part III of the Constitution? They are what are called "Fundamental Rights". It is suggested that those Fundamental Rights should remain, but no one would be able to approach the Court for redress if they are violated. Pandit Bhargava has drawn a distinction which does not really apply at all. He contends that the rights will not be taken away but only the resort to Court for their vindication will be prevented. The right will be there; its existence is not to be denied, but people would be merely prevented from going to Court. This is a wrong way of approach. There is no point in giving anyone any right unless he is also enabled, in case the right is violated, to go to Court. If you say 'we give you a property absolutely, but if I take it away you must not go to Court", that is as good as denying the right itself. I submit taking these two together it amounts to this that the rights are also suspended. What are the rights that are going to be suspended? They are described in the Constitution itself - Fundamental Rights. They are however such rights which should not be in the least affected by the fact that there is an emergency. You must give the President power to act in an emergency. That power is conceded by the House. What is now contended is that needless power, the power needlessly to interfere with fundamental rights should not be given. The powers now sought are absolutely unnecessary and an emergency cannot be solved by refusing to give the people rights which are fundamental. Now, what are the fundamental rights granted by the Constitution, the enforcement of which through Court is prohibited? I shall briefly point out these rights. They are laid down in articles 9 to 23-A.
Article 9(1) lays down that there shall be no discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Does this article mean that this fundamental right of protection against discrimination is to remain in abeyance when there is a Proclamation of Emergency? Can any honourable Member conceive of a situation where it will be possible to suppress the rights relating to this that there should be no discrimination on grounds of religion, sex, and so on ? Does it mean that during an emergency, the State may make discrimination on the ground of religion or race or caste, sex, or place of birth ? Under article 7 "State" includes the Government and Parliament of India and those of the Provinces and even the "local or other bodies ". I think the obvious implication of the suppression of these rights means that it would enable any Government or even a District Board or a Municipality or a Union Board to discriminate against any person on these grounds. I think nothing can be more absurd than this.
Then we come to clause (1-a) of article 9. There it is said that there should be no disability on grounds of religion, race, caste, sex, etc. etc., in having access to shops, public restaurants, hotels and using wells, tanks, bathing ghats, roads and places of public resort. May I ask whether, during an emergency any section of the people should not be allowed to go to shops, or public restaurants, hotels, use wells, tanks and so forth? I submit these rights can not remain suspended even during an emergency.
Then we come to article 10 which says there shall be equality of opportunity in the matter of employment or appointment. If you suspend these rights during an emergency, it would mean that during an emergency, there should be no equality of opportunity. May I ask what is the point of this suspension?
Then we come to article 11 which deals with a most important right. By article 11 untouchability is abolished. If there is any observance of untouchability, if there is any discrimination on the ground of untouchability, it is made penal. Do you mean to give the President down to the meanest village Union Board authority to re-impose untouchability? I think this will not solve an emergency but will accentuate it.
Then in article 12, the conferring of titles is prohibited, or rather it says that titles are not to be recognised by the State. Does the suspension of this mean that during an emergency titles will flow from our Governments or from foreign governments and will be recognised by the State? I fail to see how this will solve an emergency.
Then we come to article 13 which guarantees the freedom of speech, and to assemble peacefully and without arms, to form associations and move freely from one place to another and so forth. But these are also hedged in by conditions, that in making the speeches we should not commit libels, slander or defamation; that there should not be violation of decency or morality, that there should not be any attempt through this freedom of speech to effect the security of the State or any attempt to overthrow the State. This freedom of speech has been circumscribed by conditions in such a way that they would be harmless even in time of emergency. Then the same conditions apply to assembling. Anything done against public order such as unlawful assemblies and similar other things are safeguarded. I think, Sir, therefore, that this right to assemble peaceably has been sufficiently safeguarded and conditions imposed so as to make them perfectly harmless. And then the right of forming associations and other things are also hedged in with similar conditions. These fundamental rights have been given to the people in such a way that they can not be used for any purpose detrimental to the safety of society or to public morals or public peace.
Then coming to article 14(1), it says that there should be no conviction except in due course of law. If you suspend this right, then it would mean that there should be conviction without any law, that you can catch hold of any person who speaks against the Government, or any newspaper writing any article against the Government and send him to jail without the authority of law. In article 14(2), we have also laid down that there should be no double prosecution and no double punishment for the same offence. If you suspend this right, it will authorise any one being punished twice for the same offence as also without the authority of any law. Also no accused under this article can be compelled to give evidence against himself.
Article 16 deals with trade and commerce, that trade and commerce should be free.
These Sir, in general, are some of the more important fundamental rights guaranteed in so many words by the Constitution. There are others but it is not necessary to recapitulate them. May I ask what earthly purpose could be served by suspending these rights? In most cases, the suspension of these rights as I have pointed out would lead to absurdities and in some cases to serious injustice, without in any way helping the State to come out of the emergency. In these circumstances, I submit that the suspension of these rights is not only unnecessary but would lead to hardship and injustice and in many cases to patent absurdities. But my amendment makes some exception in the case of articles 13 and 16. Article 13 deals with the right of freedom of speech, freedom of assembly and so on. These rights may, during an emergency, have to be curtailed in the interest of the State itself. Similarly freedom of trade guaranteed under article 16 , may have to be restricted on public grounds. In an emergency consumer goods may be concentrated in the hands of a few who may use them for purposes of blackmailing. So, it may be necessary for the State, to interfere with this right during an emergency. I have therefore by my amendment provided that the rights guaranteed under article 13 and 16 may be suspended during an emergency.
Article 280, as it would read along with my amendment is that during an emergency, the President may order that no person shall have the right to move the Court, that the rights under articles 13 and 16 have been interfered with. I have conceded this right of suspension to this extent, though I fail to see to what extent these could be legitimately or usefully suspended even during an emergency. At any rate, I am prepared to give the right to the President to interfere with these rights.
Sir, as I have already submitted an emergency is not a ground for suspending these important and valuable rights. Fundamental rights will cease to be fundamental if they could be suppressed on these flimsy and unnecessary grounds. These are inalienable rights and should not be interfered with, without the State being in the least benefited by such interference. Even during the two great World Wars - the greatest emergencies that can happen to mankind-courts were never closed. In fact, Indian and English Courts kept their doors open. No one thought that their powers should be curtailed. These rights should be justiciable. Otherwise it is impossible to say that the rights exist. The very right of violated rights being challenged in court would act as a deterrent upon the State officials acting arbitrarily. The sacred name of the President has been used - I submit exploited - in these articles. As I have already submitted, the President will not act himself. He is not supposed to be acting on his individual discretion. He has always to act on the advice of his Ministry and it is conceivable that the Ministry may be moved to action by some Secretary or Under Secretary who may start the mischief innocently, and so valuable rights which are the essence of liberty, will be suspended in the sacred name of the President.
The feeble provision that orders must be placed before the next sitting of the Legislature seems to be a poor consolation in view of the fact that such order as it passed by the President can not be questioned or criticized or even discussed in the House. So, the mere fact that they are placed before the House without any opportunity of discussing them, I submit, is a poor consolation for those who value individual freedom more than anything else.
I think, Sir, that these powers should be curtailed as much as possible, though everybody will concede that some powers should be given to the President to be exercised which are really needed to meet an emergency. But the powers claimed for the President will suppress the liberties of the people. During the War, the English Courts were open and the Indian Courts were also open and one of the greatest Law Lords - Lord Atkin - when an argument was made that during the war, justice should be so modified and individual rights so curtailed as help the war effort-made a famous pronouncement. He said: "War or no war, justice must go on. His Majesty's can not be curtailed or in the least affected by the existence of a war". War is the greatest emergency conceivable, and yet law courts were open to give effect to individual rights. We have not defined emergency. Emergency may mean anything; or it may mean nothing. A trivial matter may be called an emergency and may be used wantonly to interfere with fundamental rights and liberties of the people with which the emergency may have nothing to do. The rights may be totally irrelevant for the emergency, but yet they will remain suspended and the Courts will be absolutely powerless to give them redress. I submit that these powers can not be given. They can be confined at least to rights guaranteed under articles 13 and 16 as I have submitted. I think the matter is too serious to be passed by a mere majority of votes without any adequate debate by the device of premature closure motions.
Mr.Vice-President: Are you proposing to move No. 17?
Mr. Naziruddin Ahmad: No Sir.
(Amendment No. 16 was not moved).
Shri H. V. Kamath: Mr. Vice-President, the draft of the proposed article 280 now before the House is a mere rehash of the old draft of the same article. The House will recollect that on the last occasion, further discussion of this article was held over and the wise men of the Drafting Committee asked for time to put the article into better shape. We hoped-at any rate those of us who had taken an interest in the subject- we hoped that this article would come back to the House in a more presentable form, in a better shape. Our hopes have been disappointed. There is an old saying in Sanskrit that a person tried to do something but got something worse out of his labours :
Vinayakam Prakurvano Rachayamasa Vanaram (written in Devanagari) A person who set out to make an image of Vinayaka -Ganesha-ultimately got out of it a model of monkey. That is what has happened to the labours of the Drafting Committee. The Drafting Committee hoped-or at least we hoped-that the Committee would consider the various suggestions made in the House and embody them in the new draft. But that was not to be. The Constitution has been founded - at any rate, we the founding fathers here have tried to found the Constitution - on what I would call the "Grand Affirmation" of fundamental rights. We have tried to build on that the edifice of democracy, but I find surmounting that edifice or facade is the great negation of Part XI the notorious negation of Part XI; and article 280 is to my mind the key-stone of this arch of autocratic reaction.
The draft now before the House has been sought to be amended by my friends Pandit Thakur Das Bhargava, Mr. Munavalli and Mr. Naziruddin Ahmad. I have tabled several amendments to this proposed article which, by your leave, I shall now put before the House. My amendments visualise two separate schemes. One scheme is to vest this great fundamental power of suspension of fundamental rights completely in Parliament. That is one scheme. If that scheme be not acceptable to the House, I propose a second scheme whereby the action of the president shall be subject at every turn to the consideration and approval or rejection of Parliament. Amendment No.18 comprises these two sets and according to the order in which they appear in the list, I shall now move them before the House.
"(i) That in amendment No.15 above, in clause (1) of the proposed article 280 for the words 'the President may by order declare' the words 'Parliament may by law provide' be substituted.
(ii) That in amendment No.15 above, in clause (1) of the proposed article 280 for the words 'mentioned in the order' the words 'specified in the Act' be substituted.
(iii) That in amendment No.15 above, in clause (1) of the proposed article 280 for the words 'the rights so mentioned', the words 'any of such rights so mentioned' be substituted.
(iv) That in amendment No.15 above, in clause (1) of the proposed article 280 for the words 'in the Order' occurring at the end of the clause, the words 'in the Act' be substituted.
(v) That in amendment No.15 above, in clauses (2) and (3) of the proposed article 280 the following clause be substituted:-
(2) An Act made under clause (1) of this article may be renewed, repealed or varied by a subsequent Act of Parliament'."
These as I have already stated, vest the power of divesting or depriving the individual of the fundamental rights guaranteed to him by Part III of the Constitution in Parliament and not in the President.
The second set of amendments provided for the conferral of provisional power to suspend fundamental rights upon the President subject to its immediate ratification or rejection by Parliament. That set, Sir, is the alternative set which I have tabled, and which by your leave, I shall now move.
Sir I move:
"(i) That in amendment No.15 above in clause (1) of the proposed article 280 for the word 'mentioned' where it occurs for the first time, the word 'specified' be substituted;
(ii) That in amendment No. 15 above in clause (1) of the proposed article 280 for the words 'the rights so mentioned' the words ' any of such rights so mentioned' be substituted.
I am not moving (iii)
(iii) That in amendment No. 15 above, for clause (3) of the proposed article 280, the following be substituted:-
'And order made under clause (1) of this article, shall before the expiration of fifteen days after it has been made, be laid before each House of Parliament, and shall cease to operate at the expiration of seven days from the time when it is so laid, unless it has been approved earlier by resolutions of both Houses of Parliament.'
(iv) That in amendment No.15 above in clause (3) of the proposed article 280, the following new clauses be added:-
' (4) An order made under clause (1) of this article may be revoked by a subsequent order.
(5) And order made under clause (1) of this article may be renewed or varied by a subsequent order, subject to the provisions of clause (3) of this article.'
v) That in amendment No. 15 above at the end of the proposed article 280 the following new clause be added:-
'Notwithstanding anything contained in this article, the right to move the Supreme Court or a High Court by appropriate proceedings for a writ of habeas corpus, and all such proceedings pending in any court shall not be suspended except by an Act of Parliament.' Now, the matter under discussion today is a very serious one in all conscience and I would appeal to the House not to dismiss it very airily, but to bestow on its mature judgement. As I have already said this article to my mind is the Great Negation; and I am sure that when tempests blow- God forbid that they blow- the weight of this Negation will be so heavy that I am afraid the whole edifice will collapse. It is for that reason that I have sought your leave, Sir, to move these amendments and I would again appeal to the House to consider them earnestly and seriously.
The argument has been very often trotted out that we must have a strong centre. I am all in favour of a strong Centre-especially so in a time of emergency when the security and the stability of the State are at stake. But what do you mean by the Centre? The Centre, I may remind the House, is not merely the Executive. The Centre is Parliament, that is the Legislature, plus the Executive plus the Judiciary. We are apt to forget this when we speak of a strong Centre. We are inclined to think that by a strong Centre is meant a strong Executive. That is a wholly erroneous conception- a fallacy which should be discarded at the earliest possible moment. The Centre therefore is the Parliament (Legislature), the Executive and the Judiciary. make all the three strong - I agree- but not one at the expense of the other two, not the Executive at the expense of the Judiciary or the Legislature.