Dated: September 10, 1949
With these words I move.
Mr. President: Amendment No. 424 is already included in some amendment. No. 428.
Shri Kala Venkata Rao (Madras: General): Sir, I move:
"That in amendment No. 369 of List VII (Seventh Week), in clause (6) of the proposed article 24, for the words 'one year' the words 'eighteen months' be substituted."
I will give my reasons in the end after speaking about another matter which is connected with this clauses. I think it was Machiavelli who said that one .will excuse the murderer of his own father but not the person who will take away his property. Perhaps that is the reason why there is so much discussion about this subject here and elsewhere. Property is not of a single species; property is or various species. I may particularly point out to you Sir, and the honourable Members, that clauses (4) and (6)' of this amendment refer to a particular species of property, namely zamindari property. I really feel that the word "property" should not be applied to this particular species at all, because when the sanad was granted in 1802, or earlier than that in Bengal when the Permanent Settlement was introduced, the sanad milkiyat intimrari. gave the right to the zamindars to collect the rent only. They were only mere agents to collect the rent and were asked to pay a portion of it as peshkash to the Government. Therefore the belief that the zamindars have got a right of property in this business is far from the truth. It is a well-known maxim that nobody can confer on someone what he does not himself possess. From time Immemorial the tradition and the law of this country has been that the tiller of the soil, or the society of which he has been a member, is the owner of the village or the particular holding. Therefore, when only the right to collect the rent was conferred on the zamindar it can never be said that a kind of property was conferred upon these gentlemen because the grantee himself had no proprietory right in that land.
Secondly, even this right to collect rent was restricted even from the beginning. Regulation No. 25 of 1802 in Madras granted the sanad Milkiyat Istimrari on the 13th of July 1802. On the same day four other Regulations were issued. Regulation No. 30, called the Patta Regulation, definitely said that the rent that was to be, collected from the individual Pattadar should bethe same as it existed on that date and should not be altered. The word "unalterable" was used in the Regulation No. 30 of 1802. These Regulations ,having been promulgated on the same day and by the same government, we have to draw the conclusion that while the sanad granted him the right to collect the rent, another Regulation of the same day stated that the rent to be paid by the particular pattadar,should not be increased by the zamindar. This was made clear after a long struggle, by Regulation No. 5 of 1802 which definitely said...
Shri Alladi Krishnaswami Ayyar (Madras: General): On a point of order, Sir, are we just now interested in going into the whole history of zamindari with reference to a consideration of clauses (4) and (6) of the draft article ?
Shri Kala Venkata Rao: The question has been asked on the floor of this House as to why there should be any discrimination as is shown in clauses (4) and (6) regarding zamindari property. My submission is that 'zamindari' is not a property at all and therefore it should be discriminated from the other types of property. From our knowledge of history and the zamindari legislation I assert that it was never deemed to be real property, as we know it to be in some other categories.
I will illustrate this. And I am telling you what His Excellency our present Governor-General said when he took part in the discussion on the Estate Lands Committee report in the Madras Legislative Assembly in 1939. Say that I have a house in a village near Delhi. I passed, say B.L., and was coming to Delhi for starting my practice. I gave that house on rent to Mr. Munshi saying
"you please pay me Rs. 8 as rent every month". But as I was just leaving I met Mr. Krishnaswami Ayyar and I said to him "please collect Rs. 8 from Mr. Munshi every month and send me Rs. 6 and for the trouble you take please take Rs. 2 as commission".
After ten years I returned to my place and found that there were few tiles on the roof or no cement at all on the flooring. Then I asked Mr. Munshi"'How is it you have kept my house in bad repair though I gave it to you for a small rent of Rs. 8 ?" Mr. Munshi said to me "I was paying Rs. 24 as rent for this house all along and Mr. Krishnaswami Ayyar has all along been collecting it". This increase of rent from Rs. 8 to 24 was unauthorised and has been pocketted all along by the gentleman whom I requested just to collect the rent. The result was that neither the owner of the house nor the tenant thereof got any benefit out of the increase. The gentleman who was mere rent collector has been pocketing this difference of Rs. 16. If Shri Krishnaswami Ayyar gets what is called property in this transaction the zamindars also have property.
In Madras, in the year 1802 the total rental of all estates was Rs. 72 lakhs of which 48 lakhs were paid to the Government as peshkash. Now the zamindars of Madras are collecting Rs. 219 lakhs as rent, but pay the same 48 lakhs as peshkash even today. I therefore say this is no real property as we ordinarily know it and so should be treated on a different footing.
Then I have to mention in this connection that the zamindar did not also always discharge his obligations as were fixed in the sanad. It has been laid down that he must maintain irrigation works, etc. He never did anything of the kind. All the irrigation works are in disrepair and everywhere rent was increased nonetheless without any benefit coming to the ryots. Mr. Veblan defined what a 'vested interest' in property means as "a marketable right to get something for nothing". We could have terminated this authorisation to collect rent by issuing a notice but we are giving compensation and therefore be ought to thank us., Many of the zamindaries were created at the time of the decline of the Moghul rule when jungle law prevailed. We want today tocompensate them under the rule of law. Bihar has to pay 130 crores; United Provinces has to pay an equally big sum and Madras has to pay about 15 1/2 crores. All these sums will go to the zamindars just because they possess some sanads. We are not treating those sanads as mere scraps of paper. As a matter of fact are treating them as scrips. We are paying for these scrips a value related to their history and based on equity. 'Therefore I maintain that from every point of view we have to treat this species of property called the zamindari right as one different from the ordinary type of property, which we come across ordinarily.
Section 299 of the adapted Government of Act practically been redrafted as the present article with only a few alterations . The only main change is the dropping of the word 'payment'. It has been held by an eminent jurist that as long the word 'payment' is there, we have to pay compensation only in the legal tender of the country and therefore in cash. Therefore many of the provincial legislatures have to suffer. Now under this clause the amount can be paid in bonds. So, the provincial Govrnments can reconsider the question of paying the first instalment of compensation at an early stage. As a matter of fact, it will benefit the provincial governments to pay like this in bonds, particularly in Madras where section 50 makes liberal provision for interim payments. If there is an estate with an income of 6 lakhs, the sum of one lakh will be the basic annual sum. We have to pay this one lakh till we pay the total compensation without counting these payments as part of it. If we pay in money or bonds now we will gain much in the shape of interest.
Mr. President: I would remind the honourable Member that we are not discussing the Madras Bill here.
Shri Kala Venkata Rao : I am only illustrating Sir.
Mr. President: I know that lie was Revenue Minister there and knows more about that Bill than anybody here. But he need not give the benefit of that knowledge to this House. He may confine himself to the article.
Shri Kala Vetkata Rao : I will just conclude Sir. Instead of paying at the rate of one lakh of rupees as interim payment for some years we will be paying Rs. 30,000 only as interest on bonds.
I would like to say one thing more. The right of Parliament to fix compensation or the principles of compensation must be kept sacrosanct. Only when a fraud is committed on the Statute the courts can interfere in the matter.
Sir, as you pointed out, I am not justified in going into all these details. I was only trying to point out that the zamindari property is a different kind of property and therefore it has been rightly treated so in clauses (4) and (6) of this article.
I want in this connection to tell my friends what Mr. Fosdick said "History's current is sweeping us into the future and the illusion that security is dependent upon the absence of change is perhaps the most dangerous form of imbalance which plagues the mind of men". With these few words I request the honourable Mover to accept my amendment to substitute 'eighteen months' for 'one year' in clause (6), for the simple reason that if the Constitution does not come into force on 26th January 1950, there may' be some difficulty for the Madras Bill which received assent in March 1949. If the mover accepts my amendment that anticipated difficulty can be removed. Mine is only a formal amendment and I request the honourable Mover to accept it.
Thank you, Sir.The Honourable Shri Krishna Ballabh Sahay (Bihar: General): Sir, I do not move my amendment. My purpose will be served if the honourable Mover win see his way to accept the amendment moved by Shri Kala Venkata Rao.
Shri Jaspat Roy Kapoor (United Provinces: General): Sir, I move:
"That in amendment No. 369 of List VII (Seventh Week), after clause (6) of the proposed article 24, the following new clause be added :-
'(7) The provisions of clause (2) of this article shall not apply to any property belonging to evacuees to the Territory now included in Pakistan and declared as evacuee property by any law promulgated to deal with such property in the event of failure of any agreement being arrived at between India and Pakistan on the subject of property belonging to evacuees to both the countries."'
The word 'communities' is a mistake for 'countries'.
Sir. on the same subject there is another amendment which I have tabled, No. 510.It reads thus :
That in amendment No. 369 of List VIl (Seventh Week), after sub-clause (b) of clause (5) of the proposed article 24, the following new Sub-clause be added:-
'(c) the provision of any law already enacted or which may be enacted for the administration or disposal of any property which may under or for the purpose of the law be regarded as evacuee property."
Sir, I had occasion to discuss both these amendments with the Honourable Shri Gopalaswami Ayyangar and as a result of that discussion, we have come to the conclusion that the purpose of these amendments will be well served if amendment No. 510 is slightly amended and I therefore seek your permission, to move this redraft.
Mr. President: Read out the Amendment.
Shri Jaspat Roy Kapoor: I move:
"That in sub-clause (b) of clause (5) of the proposed article 24 the word 'or' be added at the end."
This is only a formal thing. The substantive thing follows-
"That after sub-clause (b) of clause (5) of the proposed article 24, the following subclause be added :-
'(c) the provisions of any existing law made or of any law that the State may hereafter make in pursuance of any agreement arrived at with a foreign State or otherwise with respect to property declared by law to be evacuee property.'
Mr. President: Yes, you can move it.
Shri Jaspat Roy Kapoor: Thank you, Sir. The other amendment that stands in my name is amendment No. 488.
Mr. President: What about 511 ?
Shri Jaspat Roy Kapoor: I do not propose to move it. The amendment that I have just now moved with your permission will take the place of 510 and 433. Amendment No. 488 which stands in my name reads thus:-
"That in amendment No. 369 of List VII (Seventh Week), in clause (2) of the proposed article 24, after the word 'determined' the words 'and given' be added."
Mr. President: This is already covered.
Shri Jaspat Roy Kapoor: I am sorry, Sir. The other amendment which stands in my name is No. 495. Sir, I move-unless it is already covered by any amendment previously moved--
Mr. President: I do not remember. You may move it formally.Shri Jaspat Roy Kapoor :
"That in amendment No. 369 of List VII (Seventh Week), in clause (3) of the proposed article 24, for the words 'unless such law having been reserved for the consideration of the President has received his assent the words 'has received the assent of the President' be substituted-."
Then there is another amendment, No. 508. Sir, I move-
"That in amendment No. 369 of List VII (Seventh Week), sub-clause (a) of clause (5) of the proposed article 24 be deleted."
I must confess, Sir, that I am feeling very unhappy, and I believe I am expressing the view of many other Members of this House because I am sure they also feel unhappy, at the manner in which this question of compensation is being dealt with and the long debate that it has necessarily given rise to. This subject of compensation has not been placed before us as a new subject. It has been engaging the attention of the country for the last so many years. It has been discussed thoroughly in the country by various political parties, in the press and on the platform, it has been discussed here in the Constituent Assembly, while we were discussing the report of the Fundamental Rights Committee, and we have--all the poltical parties in their own way, the government of the day, the Prime Minister and the Constituent Assembly-all , have reached definite decisions on the subject, and all that remained for us or for the Drafting Committee was to draw up an article in consonance with those definitely accepted principles and commitments.
But unfortunately we find that in the article now presented to us, all those things, to a very large extent, the whole question has been thrown open again for discussion and final decision. A point of order was raised by my Friend, Mr. Symanandan Sahaya but that was disallowed by you, Sir; but apart from that being a point of order, there was very great substance in his submission that a good portion of this article includes things which run contrary to the decisions Constituent Assembly.
Let us see, Sir, what are those various things that have been discussed in the country and by the Constituent Assembly also and on which final decisions have already been arrived at. So far as the Congress is concerned, the government is concerned, the Honourable the Prime Minister is concerned and this House is concerned, these three things have already been decided : No. 1, that the zamindari system shall be abolished; No. 2, that just and equitable compensation shall be paid to those from whom these zamindari rights are acquired; and No. 3, with regard to anyother property that we acquire, just and fair compensation shall be paid. These are the three things that have been decided, to which the Congress is committed. This was what we put down in our election manifesto. This is what was also incorporated in the resolution of the government as announced from the floor of this House on the 6th April 1948. This again is the thing which was declared by the Honourable the Prime Minister on the floor of the Parliament on the 6th, April 1949. Not only this, during the course of the statement made by the Honourable the Prime Minister on the 6th April 1949, be went further to assure' the foreign investors that not only would they be given just and fair compensation for any industrial- concern of theirs that shall be acquired but that necessary facilities would also be given' to them for the transmission of their money to their own country. These are the commitments of ours, of the Constituent Assembly, of the Government and or the Honourable the Prime Minister.
Now, Sir, it does appear to me and I am sure it must appear to all other Members here that it is not fair, not proper, neither desirable, to go behind either wholly or even partially what we have already stated and promise inthe past. Let us see, Sir, whether this article is in conformity with what we have decided or whether there is any departure from those commitments of ours. If there is any departure from these commitments of ours, surely this should not be accepted by us.
In clause (2) while it is conceded that no property shall be acquired without compensation therefor being determined, it does not say that the compensation shall be fair, just and equitable, the three essential words which we have always been using in our election manifesto, in the decision arrived at here and in the Honourable Prime Minister's statement and the Government's statement on industrial policy. These are essential words, Sir, and I see no reason why they should not be incorporated here. If it is contended that they are redundant and unnecessary, I do not think it is correct because these words have been deleted after due, deliberation and discussion and with a definite purpose. I submit, Sir, that it should not be so. It was, in one of the amendments that stood in my name, which, of course, is now barred by another amendment which is moved by another honourable Member and I desire that at least the word "equitable" should be inserted before the word compensation". I was agreeable to delete the words "just and fair" even, because it appeared that feelings are running, very high on this and in order that it may not appear very irksome to some of our friends to incorporate them here. of these three words, I thought if we have only the word "equitable" It may be acceptable to them and it may improve the draft at least to some extent. I do not see any reason, Sir, why at least the word "equitable" should not be placed before the word "compensation". After all, what is the intention of the framers of this resolution or of the honourable the mover of this article? Is it not his intention that an equitable compensation is paid? If it is his intention, then let the word be there; and if it is not, it is going behind our professions, assurances and commitments. It is said that if we insert the word equitable" here it would become justiciable. Why should we be afraid of anything being justiciable ? The Honourable the Prime Minister had said with very great enthusiasm and very loudly that "we are determined to stand cent per cent"-that was the expression used by him-"by all our commitments". I want no more than this and no less than this. If you make a statement with a good deal of enthusiasm, it does not convert anything into a fact, if really it is not. What were our commitments ? That we shall abolish the Zamindari. Well and good. That we must reserve to ourselves the right of acquiring the industrial property. Well and good. But what about the third of the commitments which is given the go-bye, that we shall pay "fair, just and equitable compensation" ? It is only 66 per cent. at best of the commitments that we have made : Out of these three, only two are accepted now. The third is thrown to the winds. I submit, Sir, it is not correct to say that we are prepared to abide by our commitments cent per cent.
Now, Sir, I was submitting, why is it that we are afraid of making these justiciable ? I have faith in our legislatures; I have faith in our Parliament and I am sure that at no stage any State Legislature or our Parliament will enact any law whereby any property would be taken away for public purposes without provision being made for an equitable.compensation being given. Well, if we really mean to give equitable compensation, why should we think that the judgment of a court will go against what we shall be providing in the law? Surely we should not think so. The word "equitable" is a very flexible one. What is equitable today may not be equitable tomorrow . "Equitable" as I understand, is something which is equitable in accordance with the existing political theories, the existing accepted economic principles of the society, and surely our judges and our courts of whom we have very satisfactory experience would never fail us. Have we not seer, that the interpretation of the samelaw has been different by different judges from time to time in accordance with the accepted political and economic principles of the day ? Take, for instance, the case of the law of sedition. The particular section of this law is the same now as it was ever before. But then in the year 1906 in the days of Lokmanya Tilak the interpretation of the Jaw of sedition was something entirely different from what the interpretation of it is today. What was sedition then is, now merely a criticism of the Government and even a fair criticism and is not only tolerated, but even encouraged not only by the courts but even by us here. MN, submission is that our judges have always interpreted laws in accordance. with the needs of the society and in accordance with the accepted political, economic and social theories of the day. To take one more illustration, judgments in and interpretation of Hindu law have been changing with the changing views and needs of the society. I find rot dilate further upon it now. Sir, I submit that there is no reason why we should be afraid of making all these provisions justiciable.
Then I submit, Sir, the worst into consideration, if a particular Bill, a particular Act is taken to a court of law by any person to test its legality, what will happen ? If we provide in an Act that we shall pay Rs. 100 for the acquisition of a certain prorperty and if the court of law declares that Rs. 100 IS not equitable and it adjudicates that it should be Rs. 125 or Rs. 150, we do lose nothing, because the framers of this aritcle have taken jolly good care. to provide clause (b) to clause (5) wherein they say : "Save as provided in the next succeeding clause, nothing in clause (2) of this article shall affect-
(b) the provisions of any law which the State may hereafter make for the purpose of imposing or levying any tax or penalty or for the promotion of public health or the prevention of danger of life or property."
I draw your attention particularly to the words "for the purpose of imposing or levying any tax". Now this is a very big right which you are reserving to yourself. If in the place of Rs. 100 the court adjudicates that you must pay Rs. 150, why not Say "Thank you, my Lord, we shall pay Rs. 150" and then come back and enact a law under clause 5(b) saying "thirty-three per cent. of that shall be taxable" and realize that Rs. 50 by 'way of taxes. I, therefore,, submit with these powers reserved to us under clause 5(b), it is absolutely unnecessary for us to be afraid of making the whole thing justiciable. It is what we say:
"Gunah belazzat". Why have the odium of all this ? Why expose yourself to the the charge that you are afraid of making your law justiciable ? We have nothing to gain thereby and everything to lose. I would, therefore, submit that the word "equitable" at least must be added before the word "compensation" and certain consequential amendments in clause (2) may also be made, notice of which I have already given, but the consequential amendments are a. minor matter.
Coming now, Sir, to clauses (4) and (6) which are sought to be incorporated in this article, what do we find? The first impression of a man who reads these two clauses is that they are something which are difficult to understand. Of course, we who know what really is behind these clauses can understand the reason and the motive behind them. But, if a foreigner were to read these two clauses, he would simply rub his eyes in wonder and enquire what is the logic behind these, what is the reason behind these? He may even say, what after all is the sense behind these?; for what purpose they have been incorporated? Clause (4) says: "If any Bill pending before the Legislature of a State at the commencement of this Constitution etc. Why should there be a particular sanctity attached to a Bill which is merely pending in a legislature on the date on which this Constitution comes into force ? There is no logic behind it; there is no reason behind it. It is merely an arbitrary thing.
Then, Sir, clause (4) makes a distinction between one State and another. It makes a distinction between a State which has a legislature and a State which has no legislature. We know that we have several States which have no legislature. If a Bill is pending in the legislature of a State, it will have the benefit of clause (4). But, if there is a State which unfortunately has no legislature, it cannot have the advantage of the provisions of clause (4). To make a distinction between one State and another certainly appears to me to be something ridiculous. Not only that, Clause (6) makes a distinction between a State which has a Governor and a State which has no Governor. Clause (6) says, "Any law of a State enacted not more than one year before the commencement of this Constitution, may within three months from such commencement be submitted by the Governor, of the State to the President" so on and so forth, and thereafter, if the President certifies that Act, it becomes very good law and the whole of the provisions of clause (2) may be nullified thereby. But if a State has, unfortunately or I do not know-fortunately, a Ruler and not a Governor, that State even though it may have enacted a law heretofore or may enact a law tempted by these provisions, between now and January 26, 1950 on, which date this Constitution is to come into force, that State cannot take advantage of the provisions of clause (6). Why this distinction. Is it our intention to encourage a revolution in those States? Is it our intention to ask the citizens to somehow stage a show-down and get a Governor so as to be able to take advantage of the provisions of clause (6) ? Several honourable Members who are representatives of the States are very sore on this count and rightly, because they say "we also want to abolish Zamindaries in our States; we also want to abolish jagirdaris in our States; but we have neither a legislature, some of us; nor have a Governor." While a State having a legislature and a Governor can appropriate Zamindaries and industrial property by merely enacting a law between now and 26th of January 1950 without making the slightest provision for compensation--for that after all is the implication of clauses (4) and (6), your intention is a different thing-the States which have neither a legislature nor a Governor have no right to do that. Why this invidious distinction ? Not that I want that they too should have the same right; but I am only submitting how absurd is the insertion of clauses (4) and (6) in their present form. (An honourable Member: Question).
There is one more defect in clauses (4) and (6), as I have already submitted, the intention of the framers in clause (4) is to safeguard the U.P. Zamindari Bill and the intention of clause (6) is to safeguard the Mad as and Bihar Acts. If you had put it down specifically there, it would have been an evil only to that extent. You do not say that specifically; but you make this provision in a general way which means that any other State or even the States of U.P., Madras and Bihar may enact any law whereby they can take to themselves the right of appropriating the Zamindaries or any property whatsoever without making provision for the payment of one single cowrie. After all, that is the implication of these clauses. It is a different thing that in your fairness you may not go to that extent; but the law must be clear and definite on that subject.
One impression that we create on everybody's mind by having this article in this way, particularly by having clauses (4) and (6), would be that the period between now and the commencement of the Constitution is going to be one of the darkest periods in the history of India. Is the pre-republic period in this country being made so dark that the subsequent period after the republic comes into being must appear to be very bright ? That period will it-deed be bright in itself. It :Is no use king the pre-republic period, a period of five months or so, appear so dark and gloomy and arbitrary. I submit therefore that it looks very ridiculous to have particularly these clauses (4) and (6) in the Fundamental Rights. These do not give any fundamental rights; in fact,they are a negation of the fundamental rights, which we have already adopted while adopting the Fundamental Rights Committee's report. With your permission, Sir, I would like to read the resolution adopted along with the report of Fundamental Rights Committee.
Mr. President: I would ask the honourable Member to finish.
Shri Jaspat Roy Kapoor: I am finishing, Sir; I will not take more than a couple of minutes.
I shall not even read; that honourable Members know that only too well. I will proceed immediately to my next amendment which seeks the deletion of sub-clause (a) of clause (5). Sub-clause (a) of clause (5) says : "Save as provided in the next succeeding clause, nothing in clause (2) of this article shall affect : (a) the provisions of any existing, law." May I ask, what is the necessity for this sub-clause ? What are the existing laws which are in contemplation ? I know of one law, and that is the law relating to the acquisition of larded property, take Land Acquisition Act. So far as that Act is concerned, it is certainly in consonance with the provisions of clause (2), because, that Act specifically lays down the basis on which property must be acquired. That Act needs no safeguarding by this clause. Which other Acts are intended, I do not know. I certainly would wish that it must be made clear as to what other laws there are in force today in this country which are intended to be safeguarded by this clause. Is there any other law the provisions of which are not in consonance with the provisions of clause (2)? I am lot aware of any; though I cannot venture to hazard an opinion on that subject being no expert on legal matters, I want to seek enlightenment on this subject from the honourable the Mover of this article as to what are those particular laws which he has in view and which he wants to safeguard. Even if there be one, the provisions of which are not in consonance with the provisions of clause (2), why should that Act be safeguarded ? The object of this article 24 is to make provision for Fundamental Rights. They are to be safeguarded and not any law which strikes at the root of a fundamental right.
I, therefore, submit that these clauses must go. Otherwise, it will encourage States. to rush in for laws to appropriate property without any fair compensation during this intervening period, for all these laws will be considered to be existing laws on the date on which this Constitution comes into force and will be beyond the scrutiny of a court of law.
Lastly, I come to my amendment relating to evacuee property which, in fact, is the most important of all the amendments. Though it is the most important of the amendments, I would not dilate upon it, firstly because it is rather a very delicate subject, and secondly because I am glad it is going to be accepted by the honourable the Mover. One word only about it, I will say. Our refugee brethren who have come over from Western Pakistan have left their property worth about 1,500 crores and the evacuee property in this country is worth about 500 crores or so. Delicate negotiations are going on between this country and Pakistan and they are being carried on by no less able a negotiator than the Honourable N. Gopalaswamy Ayyangar. So far, he has failed to bring about any settlement on this issue in spite of his accommodating nature, in spite of his reasonable attitude, in spite of all the greatness he has in him. So far, he has to persuade Pakistan to come to a settlement, on this question. Perhaps a settlement may be found or it may not be found In either case it is necessary that any law that we may be under the necessity of enacting hereafter and all the existing- laws and Ordinances on this subject must be beyond the pale of the provisions of clause (2), because if it is not so, when unfortunately at a subsequent stage in the event of no agreement being arrived at, we have to appropriate evacuee property, not only then we shall be losing all the property of the refugees to the extent of 1,500 crores but we shallbe compelled under clause (2) to pay compensation to evacuees also. Therefore I submit it is necessary, and since it is going to be accepted I need say nothing further on this subject. With these words and with my amendment I beg to support the article which has been moved.
Mr. President: No. 474-Mr. lbrahim. I would remind honourable Members that we have to finish this article tonight whatever the time taken and I would request them to cut short their remarks as far as possible.
Mr. K. T. M. Ahmed Ibrahim (Madras: Muslim): Sir, I move:
"That in amendment No. 369 of List VII (Seventh Week), in clause (1) of the proposed article 24, the following be added at the end :-
'and except on payment of fair and equitable compensation based on the market value of the property.' "
I also move
"That in amendment No. 369 of List VIl (Seventh Week), in clause (2) of the proposed article 24, for the words I provides for compensation' the word is 'Provides for fair and equitable compensation based on market value' be substituted."
Article 24 lays down a vital fundamental right and I think I am not going too far in stating that the entire economy of the country depends upon the proper enforcement of this Fundamental Right. Clause (1) provides that no person shall be deprived of his property save by authority of law. That is a fundamental right which is sought to be created by this article. But the succeeding clause, viz., clause (2), in effect deprives the citizen of the Fundamental Right that is sought to be secured by clause (1) because it gives to the Legislature power to determine the entire value of the right that is secured to him by clause (1). The value of any property depends upon the price it would fetch in the open market but clause (2) says that the value can be fixed by the Legislature according to its sweet will and pleasure. Then what would be the value of the property in the open market? On account of clause (2) there is bound to be uncertainty about the value of property and a sense of insecurity in the land. What would be the effect of such a sense of insecurity and uncertainty of the value of property in the economy of this country ? That is the question that arises. I would say that on account of this, clause (2) takes away almost completely what is sought to be secured to the citizen by clause (1).
Even now under the existing law we find that compensation is to be awarded to properties according to the market value of similar lands adjacent to the land sought to be acquired. That is the well-known principle of law that is being administered in this country but what would be the effect of this clause on that principle. Thai would be completely annulled. The Legislature can fix any amount of compensation. The scale of compensation depends upon the Legislature and the principle for awarding compensation also depends upon the Legislature. Such being the case there cannot be certainty about that value. There will be no incentive for people to invest money in lands or commercial undertakings or industries. It is very comprehensive and all sorts of properties are included in this clause with the result that there will be no incentive for people to invest in commercial undertaking or lands. That is the problem which arises out of this clause (2).
I would request the House to consider this impartially and without any passion and prejudice. This is a matter affecting the economy of the land Will this clause ensure the confidence in the minds of people which is needed most for the success of any commercial undertaking or for the success of any agricultural undertaking? Surely not, because the whole thing is nebulous and nobody knows what value the legislature will attach to any kind of property at any time. It is only from that point of view I request the House to look at this clause and my amendment is based only with this perspective in view
I do not think that in any part of the world compensation is awarded for any kind of property at the pleasure of the Legislature. Probably the framers of this article have been obsessed with the present question of the abolition of the Zamindari system. If you want that the Zamindari system should be abolished even without any compensation, you may frame some other article for that purpose. Let that question be not confused with the general idea of property and the general-Fundamental right of property.
My Friend the Honourable Mr. Kala Venkata Rao said something about Zamindars. He proceeded on the assumption that the whole class of Zamindars comprises of only farmers of revenue; but I would remind him that that is not a proposition which can be, accepted without any qualification. There are zamindars who have been or who are descendants of Rulers and Princes and there are Zamindars who are descendants of persons who have paid full value for the lands which they originally bought from the East India Company; there are also zamindars who have paid full value to the descendants of the persons who were originally appointed as tax-gatherers. They have paid full value to them with the knowledge and with the full consent of successive Governments. Successive Governments have allowed even these farmers of revenue to treat their property as their own property and have allowed them to alienate, lease and mortgage them. Therefore are they not ostensible owners of these properties ? Have you not allowed them to sell these to others? Have they not paid their hard-earned money for these? That also has to be taken into account while you assess the compensation for these Zamindars.
Sir, I think nothing more need be said regarding the importance of my amendment. It is only intended to ensure confidence in the people and to enable them to feel that property will have full value in the eye of the administration of the country, and that properties will not be valued according to the whims and fancies of legislatures. So that there can be development of industry, development of agriculture and development of commerce. Sir, with these words, I commend my amendment to the House'.
Mr. President: Amendment No. 475--Shri Phool Singh.
Shri Phool Singh (United Provinces : General): Mr. President, Sir, I beg to move :
"That in amendment No. 369 of List VII (Seventh Week), for- clause (2) of the proposed article 24, the following be substituted
'(2) Private property and private enterprises are guaranteed to the extent they are consistent with the general interests of the toiling masses.
(2a) In the case of acquisition or taking possession of any property movable or immovable including any interest in or in any company owning an, commercial or industrial undertaking such property shall be acquired or taken possession of only in accordance with law which shall determine the cases in which compensation is to be allowed as also the amount of compensation to be allowed and the manner in which the compensation is to be given.
(3) No such law shall be called in question in a court oil law on the points Stated in clause (2a) above."'
Sir, the only points 'that arise for consideration in this connection are, whether in case of acquisition, any compensation should be allowed, and if so, what should be the amount of compensation, and what should be the manner of its payment. The other point is, whether this right should be justiciable. This takes us to' the question of private property, whether it should be an absolute right-or whether it should be a right so far as it is consistent with the interests of the toiling masses. To hold that there should be no acquisition without compensation is to mortgagee the future or to tie. future generations so long as this law stands. Cases are quite conceivable when it may not onlybe just, but it may be necessary to acquire property without compensation. Under these circumstances, it will be best to leave it to the future Parliaments to decide as to whether compensation should be allowed in the different cases that will come before Parliament from time to time.
Similarly, he amount of compensation cannot be decided only with reference to the value of the property. There have been speakers who have even supported full compensation. I wonder why they hesitated to put in the word "market price". What is full compensation ? Market price would have been the proper word. But I think it full compensation is conceded, then it is better to say that there should be no acquisition, because the few legislations that are before the different States, they alone show that if full compensation were to be allowed, there would be no acquisition.
When fixing the amount of compensation, it is not the value of the property alone but there are many other considerations that have to be taken into account. The capacity of the State to pay the compensation, the profit that the owner of the property has already derived and the purpose for which the property is to be acquired, these are only a few of the considerations that should be taken into account when making a decision as to what should be the amount of compensation. Similarly the question whether the compensation should be paid in cash or whether it should be paid at the time of acquisition or at a later date, also cannot be decided once and for all.
All these questions have to be decided when the particular case arises according to the circumstances of each case. Sir, to decide all these points once and for all is to lose faith in the national commonsense. I think those who will come afterwards and who will legislate and decide these points will take all the relevant factors into consideration, and I think it will be better not to fetter their judgment. It is for this reason that I neither take. the view that compensation should always be allowed, nor support the view that there should be no compensation whatsoever. I think the best and the proper course will be to leave it to the Parliament to decide as each case arises.
The next point is about the justiciability of this right. The amendment that was moved this morning by the Honourable the Prime Minister states that only under two conditions the law passed will not be called in question by a court of law, and they are, either where legislation is pending when this Constitution is enforced, or when legislation is passed within one year of the date of coming into force of this Constitution. When this clause is applied to the facts, the position is this, that only in three cases, the cases of the U.P., Bihar and Madras, the courts will not be permitted to question the legality or otherwise of the legislation. But it does not take into consideration all the numerous States that have merged into our Union and where there are no legislatures, and consequently where it is not at all possible to introduce any legislation before the new Constitution is brought into force. It will not be out of place to say that it is probably those very States which most need such a provision as this. I therefore, suggest that it will be better to protect all such legislations, whether they be pending when the Constitution comes into force or they are introduced at a later date,-all such legislations should be protected from interference by courts of law.
I do not want to waste the time by repeating my previous- argument. I think when the representatives of the nation sit, they will take care to pass a legislation which will be fair and just and if the representatives of the whole nation go wrong, I doubt if any court of law will be able to correct it. To allow a court of law to go into this question is to nullify the very purpose of introducing such law.
With these words, I commend my amendment to the acceptance of the House.
Shri Guptanath Singh (Bihar: General): Sir, I beg to move:
"That in amendment No. 369 of List VII (Seventh Week), in clause (2) of the proposed article 24-
(i) for the words 'No property' the words 'all property' be substituted; and
(ii) for the words 'unless the law. provides for compensation for the property taken possession of or acquired and either fixes the amount of compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined' the words 'with or without compensation as determined by law' be substituted."
If you trace the history of private property, you will be pained to find that it Is a tale of awful woes, a story full of fraud, felony, exploitation, expropriation, inhumanity, injustice, treachery, torture, tyranny and tears. So, Sir, private property can briefly be described. In the words of a French writer, in a single sentence "all property is theft." Certainly it looks very odd, but the fact is that property is theft. It has been declared and confirmed by Lord Christ, by Maharshi Vyas and Mahatma Gandhi. Sir, if you go through the Mahabharat, Shanti Parva, Adhyaya 15, Shloka 2 you will find that the Rishi has described property beautifully, plainly and frankly. He says :
Colossal money, big capital, cannot be amassed unless and until you scratch the of others, commit heinous acts and kill others by entrapping the people just as the fishermen butcher fishes by entrapping them. When I first came across this Shloka and the verdict of the French writer, I could not believe or agree to it, but gradually and gradually when I began to see the tendencies and forces working in the society, I came to the conclusion that these thoughts were quite correct. People claim compensation for their private property. If you will permit me to use Vedic phraseology, I will ask my capitalist friends and zamindar brothers
Whose_ property is this ? Our capitalist friends and zamindar brothers win come forward with red eyes, clenched fists and frenzied emotions and say, "Well, chap, Do not you know that the whole world dances on the tip of my finger ?"
What is why, they will say,-they are claiming Compensation. But I tell you that what they claim as their private property is the property which belongs to, the nation. In Vedic parlance it may be said:
All this property belong- to (Isha) and (Isha) is represented by the nation and nation is represented, by the society and society is represented by cultivators and labourers who represent the teeming millions. Thus all property belongs to the society and not to a particular individual.
So, all the massive big buildings, mansions, and all the factories belong the nation and the society and not to a particular individual. People say that they have purchased some factories, built some buildings, and bought some lands. But I ask them where did they get the money from and how did they earn it and who erected the buildings and factories. They were erected by the teeming millions; they were cultivated by the farmers and labourers and not by those factory owners and land-lord zamindars. Therefore, these people do not deserve and cannot claim compensation for their property as a matter of right. On the merits, they have no claim, but if you examine the income of property owners, zamindars and capitalists, you will find that they have expropriated, they have consumed, they have enjoyed, several times more than the capital they invested. They have acquired and consumed lakhs of' rupees. They have purchased jewelleries worth crores of rupees. They have created numerous sources of incomes.
According to Manu, the land belongs to the cultivators.
The land belongs to the man who cultivates it, not to the big zamindar friend. Therefore, the claim of compensation made by our zamindar friends is not right. I ask them one single question, Will compensation for Red Fort and other things be allowed to the descendants of Moghul Emperors ? Sometime ago, I came across a news in some paper in U.P. that the descendants of Moghul Emperors had requested Pandit Jawaharlal Nehru that compensation should be given to them for their ancestral property. Is it not a fantastic thin- ? Have Britishers given any compensation to descendants of Moghul Emperors for the Red Fort and other massive mansions and buildings ? Numerous buildings were constructed by Britishers though the money belonged to us, but have we given anything, to them when they quitted ? These people cannot claim compensation for their property. They should not be given any compensation at all. They cannot claim it as a right but it is due to our generosity that we are allowing something to them. We have allowed compensation in Bihar,20 times to 3 times. In Madras also the Government have allowed and in U.P. the Government are going to allow something; but as a matter of right Zamindars cannot claim any compensation.
There is one thing which does not seem to me to be good. There is some discrimination made as between abolition of capitalism and zamindaries, between nationalisation of factories and other means of production and the abolition of zamindaries. Lands and factories both belong to the same category and both must be nationalised or socialised in the course. Some provision must be made in the Constitution to abolish both these things when time is ripe for it.
Panditji has moved an amendment and made a speech. If you give the speech of Pandit Nehru to a person without telling him whose speech it is, as also 'the amendment moved by him, the man will say that the speech 'has been made by some revolutionary and the amendment has been moved by someone other than a revolutionary. Pandit Nehru has certainly a revolutionary mind but the article in its present form seems to be fraimed by brains controlled by sonic unseen forces.
On merit, people do not deserve compensation, but some provision must be made in the law that compensation should be given to those who deserve and for those properties for which compensation should be paid. The forces that are working in the- country and the word are concentrating towards the elimination of capitalism, and the House and the country must realise ,his and act accordingly. Therefore I appeal to the House to accept nay amendment.
(Amendment No. 481 was not moved.)
Shri Prabhu Dayal Himatsingka (West Bengal: General): Sir, I move:
"That in amendment No. 369 of List VII (Seventh Week) in clause (2) of the proposed article 24, the words 'and either fixes the amount of the compensation, or specifies the principle,; on which, and the manner in which, the compensation is to be determined' be deleted."
This amendment was one of was of several other amendments given notice of by me, but which have been moved by others. By my amendment I want to make it specific that the compensation to be paid should be fair and equitable for the property acquired. So far as the fixing of the price and the manner in which compensation is to be determined are concerned, we have already laid down in Concurrent List item 35 of the 7th Schedule that both the Centre and the States will have the right. The Prime Minister in his speech today has stated that the compensation to be paid will be equitable and fair. That has also been the the considered statement of the Government in their declaration on their industrial Policy on the 6th April 1948. The same principle was repeated in the Honourable Prime Minister's statement on the 6th April 1949 in which foreign Capital was invited,
Therefore there is no reason why the compensation should not be clearly stated to- be equitable, fair or just, whatever word is acceptable to the framers of the article. so that there will be no doubt that the compensation intended to be paid will be fair and equitable if property is acquired. It is a question of creating confidence in the minds of investors and if we want the country to a be more and more industrialised and that people should be encouraged to put in their money in industrial undertakings, there should be some sort of guarantee that if and when such properties or undertakings are acquired by the State a fair and equitable compensation will be paid. That will be a definite encouragement to the people, and, industrial development, also will be given an impetus. It is a psychological factor, and might act as a damper. Economic conditions are already bad and if the clause acts as a damper it will further aggravate the economic condition. Without economic improvement it Will be very difficult to carry 'out any of the nation-building activities or other improvements we are anxiously aspiring for. My amendment is aimed at defining compensation payable for acquisition of property and I hope the drafting committee will accept it.
(Amendment No. 485 was not moved.)
Shri B. P. Jhunjhunwala (Bihar: General): Sir, I move:
"That in amendment No. 369 of List VII (Seventh Week), in clause (2) of the proposed article 24, the words 'either fixes the amount of the compensation, or' be deleted, and the following provisions be added at the end of the clause:-
'Provided that in applying.such Principles, due regard shall be paid to the consideration whether the property in question is being utilised by the owner or holder so as to make a definite contribution to the sum total of the country's wealth:
Provided further that this proviso shall apply also in the case of all laws which have been passed within one year before the commencement of this Constitution and to all Bills pending it the time of the commencement of this Constitution."'
Before speaking on my amendment I wish to make a few remarks on the proposed article moved by our respected Prime Minister, the Honourable Pandit Jawaharlal 'Nehru. There are two questions involved in this article. One is acquisition of property by the State and the other is the payment of compensation for the same.
The main principle enunciated by our respected Prime Minister, is that the interest of the individual is subordinate to the interest of the community or of the state,. and no patriotic Indian should deny this principle. In other words if the interest of the state or community demands, the individual should ungrudgingly give. The whole question while acquiring the property is whetherit is acquired in the interest of the State or not. Secondly, when the property is acquired, whether due compensation is paid to the property owner or not.
What are the circumstances under which property should be acquired by the State ? If the principle as enunciated by our Honourable Prime Minister is applied; certainly I presume that the State should acquire the property of any individual only when it is in the interest of the State but not by merely saying we want to nationalise a particular industry, and therefore we want to acquire it." Nationalisation of a particular industry may not be in the interest of the State at all. I shall just give an instance in respect of England which is such an advanced country where recently the transport was nationalised. And the report is (it appeared in day before yesterday's papers) that Britain's nationlised transport-road services, docks and waterways---ended its first year 1948 of State ownership with a loss of pound 4,733,000, and the report was summed up as unsatisfactory and prophesied that a further marked deterioration of the working result was "inevitable" in 1949.
As I have said, there are two principles which have to be taken into consideration in connection with this article. One is the acquirement of the property. My amendment relates particularly to this first principle.If any property or industry is to be acquired proper attention should be paid as to whether such principle is applied, and the State Legislature or the Parliament while fixing the principle for compensation as mentioned in clause (2) of the article should state whether and what if any advantage will accrue to the State be it a zamindari property or an industrial concern,-and further in laying down the principle, it should be taken into consideration-as I have said here "whether the property in question is being utilised by the owner or holder so as to make a definite contribution to the, sum total of the country's wealth" or whether the owner was wasting the property along with his energy in antisocial and anti-national activities. If we find that the owners of the private owned properties or private-owned industries are making good progress in increasing the wealth of the country and have not in the past and are not indulging in anti-social activities, in that case there should not be any occasion' for the State to acquire that property, and if it is to be acquired full compensation should be given. That point has been made clear in our Industrial Policy enunciated in the Legislative Assembly where it is said that at least for ten years there are certain industries which shall not be nationalised and after ten years stock will be taken of the position as to whether there is any justification for acquirement of any industry or not and then that industry will be acquired.
If this principle is accepted, as has been accepted in the Legislative Assembly and as has been so many times made clear by our respected Prime Minister, I do not see any reason why there is so much stir among the industrialists or among the public and why the capital is becoming shy and is not coming for-ward for investment in industry.
The second question which is, engaging the attention of the people is, if our industry will be acquired at all, whether they shall be given proper compensation or not. On this point also our Prime Minister has said that there is no question of expropriation if any property will be required by the State. People are watching as to what this Constituent Assembly does regarding this article 24. So in moving this article our Prime Minister has made it explicitly clear that no property will be expropriated and that if any property is acquired it will be acquired by giving compensation.
The only question which remains is what sort, of compensation it will be, whether it will be equitable and fair compensation or any compensation whichParliament will decide, and whether the decision and the principles which will be decided by Parliament will be justiciable or not. That is the only point which is engaging the attention of the public outside. There are differences of opinion on this point and I am not competent to say one way or the other. But if it is made clear that it will be justiciable, then there is no reason for any apprehension or any encroachment upon the fundamental right, as had been said by my honourable Friend Pandit Thakur Das Bhargava that this article is a sort of encroachment upon our fundamental right.
As I have said, when giving compensation the most important point which has to be taken into consideration is whether the person to whom compensation is given was utilising the property for improvement and in increasing the wealth of the country or not. That point should be included in the principle which the law lays down. If the industrialists or the zamindars have utilised and are utilising their wealth more in anti-social or anti-national work, and have outlived their utility that in my opinion should be a point which the Parliament should take into account while fixing the principle or amount, for compensation. If these points are covered by the article there is no necessity for any stir in the market.
There is a view that compensation should also depend upon the purpose for which it is acquired, i.e., if it is acquired for philanthropic purpose for the benefit of the people or under any scheme, the compensation may be less. In this connection I have to say that if that point is contemplated in this clause-I do not know if it is there a person of small means who happens to own a property which may be necessary for a benevolent purpose or under a scheme, these persons, should be fully compensated.With these few words I support the article.
Shri Lakshminarayan Sahu (Orissa: General): *[Mr. President, my amendment reads as follows:-
"That in amendment No. 369 of List VIl (Seventh Week), at the end of the clause (2) of the proposed article 24, the following proviso be added:-
'Provided that no compensation shall be payable to any owner or holder of any movable of immovable property, who, having owned or held such property for thirty years continuously immeditely before the coming into force of this Constitution, has either not habitually resided within the State were such property is situated, or has not done anything to develop such property. "
Mr. President, we have stated earlier in our Constitution that we would provide social, economic and political equality to everybody. In view of this declaration that we so emphatically made to the whole world, it is our duty to consider how we can secure it and what provisions we should make for it. It is in view of that that many Members have stated that the question of property is the most important in the scheme of the Constitution. This should be decided after proper consideration.
We should first of all decide as to what would be the shape of, the free India. When we go on saying that we would abolish the class distinctions, we would not run our country on the basis of religion and that we would make it a secular State, we should think over the ways of securing these objectives. In the Directive Principles also we have stated that it shall be our duty to see that the operation of the 'economic system does not result in the concentration of wealth and means of production to the common detriment'. When many a man accumulates vast wealth, we would scarcely be able to shape India in our way. We cannot do so. Thus we should give very deep consideration to the question. Take a few instances. Today there are big industries.* [] Translation of Hindustani Speech.
In an industry, one person accumulates so much wealth; after ten or twenty years, he grows so rich that he does not regard anybody else as a man, The fact is that he begins to live in a dreamland, thinking very highly of himself and looking down upon others as petty men. This system will have therefore to be abolished. I belong to a poor family, I never put on a shirt since my childhood till my matriculation. I know what hunger is. When I was a student in the Engineering College, I had nothing to eat, so I left the College, and was on the verge of committing suicide.
I therefore wish that this matter should be decided properly. One man earns Rs. 600, or 800, or 1,000 in a day, but the average income of a person in this country is merely 6 annas daily. How then can we make the people of free India happy? People say that my province, Orissa, is a very poor province, and a very small province. Why is this so 9 This is the matter that needs consideration. When I talk of Orissa it may well be that some people may insinuate that it is the spirit of provincialism that makes me do so. It is not provincialism that makes me to talk of my province. It is out of sheer necessity of self-existence; I desire to live. But in ordcr to do so I must also see as to how the people around me keep healthy and how they can live happily. I wish to tell you that all the land in Orissa has passed into the hands of the absentee landlords. They do not live in Orissa but live outside,, and come there only to recover their dues. Now, if you look into the matter you would find that these people have not got their lands by spending much money. The people of Orissa lost their land through he operation of the Sunset Law. At that time the High Court was at Calcutta and not at Cuttack. Many people therefore lost their rights in land. In this way two-thirds of the land in Orissa passed into the hands of absentee landlords. How can Orissa progress in such circumstances?
I therefore wish that there should be such a provision as would ensure that the persons who have vast lands, who cannot improve them, and who have enjoyed them for 30 years should not get any compensation. We want to shape the world in a new fashion, and want to abolish capitalism at once. Even our ideal was this:-
[Always take wealth as a source of great evil. Surely, it cannot impart even little of pleasure. The maxim "Those who are after riches are even afraid of their own progeny" has been proclaimed everywhere.]
This is from Shankarachar a. We used to prepare the people of this country for this ideal. Later on, however, new ideas began to pour into our country from the West, and the most powerful of this was the spirit of free competition; we had to adapt ourselves to their values. But the consequence of all this was that the poor man was ruined while the man with the means became almost like a conqueror, knowing not moral law. Might became right and the powerful acquired domination over the people and the country.
I therefore submit that keeping in view our goal of building up India, on new principles, it is our duty to keep before us the outlines of the new system, and we should think out how these ideas can be realised in the various provinces. I have suggested this proviso from the view-point of my province. I believe that you would be taking a correct decision in this matter but if you fail to do so, it will not be in the interests of my country; I have therefore suggested this proviso I wish that you consider it thoroughly.
Among the aboriginals, a system obtains that all the land is distributed equally among the people and in case somebody accumulates more land the position is readjusted after every 10 or 12 years. Our society is static. It has been standing still like the Himalayas since long, has been unmoving; it does not move. Those who joined the western new-comers began to perpetrate cruelty on their people and lowered their status. For this reason we should have a provision like this while we are constructing a new India. I want to say only this much.]
Mr. President: Mr. Mahboob Ali Baig, No. 493.
Mr. Mahboob Ali Baig (Madras: Muslim): I have 482 also,
Mr. President: You can move that also.
Mr. Mahboob Ali Baig: Sir, I beg to move:
"That in amendment No. 369 of List VII (Seventh Week), in clause (2) of the proposed article 24, for the words 'unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined' the words 'unless due compensation is paid for', or, alternatively, 'unless the law provides for due compensation' be substituted."
I also move:
"That in amendment No. 369 of List VII (Seventh Week). in clause (3) of the proposed article 24, the following be substituted:-
'(3) No such law as is referred to in clause (2) of this article made by the Legislature of the State shall have effect, unless such law receives the assent of the President.' "Sir, the other amendments have been covered already and therefore I do not propose to move them, but I will offer my comments on them. Sir, my amendments have a two-old purpose. The first is that they seek to declare the right of a person to property as fundamental in character, independent of the legislature or any other authority. Secondly, my amendment seeks to declare this right justiciable beyond any shadow of doubt. While the Government must have the unquestioned right to acquire property owned by individuals for public purposes, it cannot compel the owners thereof to part with them for any value less than their proper value, and the right of the person whose property is acquired to have the value determined by a court of law cannot be taken away. Our State has not yet abolished private property; at any rate this Constitution does not abolish and is not abolishing it. I refer to article 13, clause (1) sub-clause (f), that is, "subject to the other provision of this article, all citizens shall have the right to acquire, hold and dispose of property" and the sub-clause which controls this right is sub-clause (5) and there it is stated "Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing restrictions on the exercise of any of the rights conferred by the said sub-clauses. . . . . "
Even this sub-clause (5) which modifies the fundamental right says you can impose only restrictions on the exercise of any of these rights.
Therefore, Sir, it is clear that our Constitution does not propose to abolish private property, as the U.S.S.R. has done in its Constitution. The U.S.S.R. has clearly abolished private property. Our society is still based on what is technically called capitalistic system of economy, meaning thereby that property is held by individuals and not by the entire people. Our system is similar to the system prevailing in the U.K. and U.S.A. and in the Constitution for the U.S.A. it is clearly laid down that the State cannot deprive a man of his life, liberty or property without due process of law. So is the case in the U.K. To illustrate, when the present socialistic Government of Englandacquired mining rights. from private owners, it awarded compensation which was found to be in excess of what the courts themselves determined the value of the mines to be.
Thus, Sir, their society is based on the recognition of private property and is based on the capitalistic system of economy. The persons whose property is acquired must be paid the proper price and the machinery to determine what the proper price is, is the court. So, Sir, two important and inevitable concomitants of the nature of property as private property are these two, that the rights are fundamental and the rights are justiciable beyond any shadow of doubt, but it is open to us to abolish private property altogether, which we have not done till now. It would be a different matter if private property is abolished altogether and people are assured free medical aid, free education and they are assured of employment. The structure of the society has not changed.
What I am seeking today now is, while we recognize private property under article 13 and also by implication under clause ( I ) of this article itself, what we are trying to do tinder clause (2) is that we are giving power to the legislature to grant any compensation it pleases or retain principles for assessing value. of the properties. Now, Sir, whether it is permissible under any Constitution which frames fundamental rights, whether the legislature of the country should be given the power, the jurisdiction to deal with those fundamental rights, tinker with them and abridge them, is the question before us. My submission is this, that this article finds a place in the chapter which deals with fundamental rights. Fundamental rights are those with are beyond the jurisdiction of a legislature, especially of party legislature in parliamentary democracy. As soon as they are,' subject to the jurisdiction of the legislature, they cease to be fundamental. What is the fundamental right that you are giving to the people under article 24 as sought to be amended by the Prime Minister ? There is nothing at all. Therefore, it would be better not to have mentioned these rights at all under the chapter dealing with fundamental rights. The only thing that I could understand from the speech of the Prime Minister is "Your rights are recognised" yes and "when they are going to be acquired, compensation will be given to you", "What is the amount of compensation that-will be given to you will not be determined by a court of law". In fact he would have, nothing to do with courts and law. He would vest this power, to determine what the compensation will be, in the legislature. He calls the legislature 'sovereign'. It would be more correct to say that the Constitution is "sovereign". The legislature, the executive and the judiciary and all of us are governed by the Constitution. A legislature cannot have overriding powers over the provisions of, a Constitution. It is the Constitution that is binding until it has been amended by the will of the people.
Therefore, Sir, the legislature is sovereign in the sense that the people are sovereign and if the people elect members with a particular purpose of changing the Constitution, then it is correct to say that that body which is elected by the people for the purpose of changing the Constitution, that is sovereign, This question of a legislature being sovereign overriding fundamental Tights is not correct at all. Either you declare under article 24 fundamental rights or not at all. It would have been better if article 24 bad not been enacted at all and not been proposed at all; I could understand that. It will be open to the legislature provided that is liable under law to grant compensation in any way it pleases. Therefore, Sir, my submission is that it is a misnomer to say, it is incorrect, it is misleading to say that we are under article 24 declaring rights in property.Mr. President : The honourable Member has made that point formerly.
Mr. Mahboob Ali Baig: Therefore, the amendment which I have moved, No. 482, proposes that in the matter of granting compensation, the, fixation of the amount of the laying down of the principles on which compensation should be determined be entirely taken away from the jurisdiction of the legislature. If it Is necessary that a certain land should be acquired for a public purpose, it would then pass an enactment saying that this property shall be acquired giving compensation. What the compensation should be must be determined by a court of law.
Now, Sir, one word with regard to clause (3). I have stated that the law that may be passed by a State legislature or the Union legislature must receive the consent of the President. In the clause as proposed, it is stated "such law having been reserved for the, consideration of the President". want that to be categorically stated that all such laws whereby property is sought to be acquired must necessarily receive the assent of the President. Sir, one word with regard to clause (4) I have to offer and it is this. The Prime Minister said in the morning that under clause (1), unless the legislature has abused its powers, the court's jurisdiction is ousted. What he meant perhaps is that if the legislature granted compensation which is a pittance or merely illusory, then, the courts can interfere. Now, Sir, my point is this. Why not you give that benefit at least to cases that come under clause (4) ? Is it fair, I ask, that even that chance of a person who is deprived of his property to contend that the compensation that has been given to him is a pittance or merely illusory, or is a fraud on the statute should be taken away? Why should we deprive a person who is aggrieved in that way of his right to have the matter agitated in a court, and ask it to decide whether the compensation is merely illusory, whether it is a fraud on the statute, while it grants this right under the circumstances in clause (2) ? Therefore, it is very unreasonable and as my honourable Friends Pandit Thakur Das Bhargava and Mr. Jaspat Roy Kapoor have said clearly, such a thing is unknown to law, unjust and unfair and discriminatory. Therefore, clause (4) must go.
My comment with regard to clause (6) is this. When some Acts were passed by some local legislatures, the law prevailing was the Government of India Act of 1935, section 299. Laws were enacted for the abolition of Zamindaris and that was the law applicable. Is it fair, I ask that you should prevent those persons from going to court and asking the court to determine whether the enactments were ultra vires or intra vires. Even in this case, as I have said, whatever chance a man may have under clause (2) to show in a court that the compensation is merely illusory is taken away. I have not come, across any such constitution where rights which accrued previously and which were enacted under certain laws, were purposely taken away. As I said, Sir, in this case also, it is very unjust, unfair and discriminatory.
One word more before I sit down, that is, with regard to certain remarks made by my honourable Friend Mr. Kala Venkata Rao. I agreed with him in the legislature of the province of which he was the Revenue Member that these Zamindaris should be abolished.
Even earlier, than be thought of it, in 1938, as a member of the Zamindari Abolition Committee I have clearly advocated that these Zamindaris must be abolished because they were anachronisms and they have ceased to servo their purpose. I also held that owner of the property must be the tenant and not the Zamindar. I agreed with him so far. But, I found that from 1802, rightly or wrongly, according to me wrongly. Sir, the Permanent Settlement Regulation XXV vested- the proprietory rights in the Zamindar.
Mr. President: It is not necessary to go into that.
Mr. Mahboob Ali Baig: I am just pointing out. My Friend Mr. Kala Venkata Rao is wrong in saying that that Regulation did not vest the proprietary rights in the Zamindar. The very expression "Sanad Milkiyat Istimrari" when translated. means, Sanad of Permanent Settlement of proprietorship in the Not only by enactment, but the highest courts have held that the Zamindar is the owner, as .I said, on the basis of legislation which according to me was passed wrongly. On this basis several transactions have taken place : sales, mortgages and all sorts of things. Over a period of 150 years these Zamindars and their transferees have acquired substantive legal
I differ from my honourable Friend on the question or compensation. said that compensation must be given. I am not going to refer to the several inaccuracies in the statement of law and facts made by them. Therefore, the question whether the compensation that these Zamindari abolition enactments have given is just, fair or equitable, or is merely illusory, must be left to the court to determine. As I have said, till we change the structure of society from a capitalistic system of society, to a socialistic society, where it is not the individual, that owns the property but it is the entire people or the State or the co-operative agency, till then, we cannot get away from the fact that due, proper compensation should be, given.
I am compelled to remark, Sir, that in this matter, we are not very definite and bold enough. If we think that this society must be changed, we must take courage in both the hands and act. This sort of dealing with property will land us in difficulties.
Mr. President. The honourable Member is repeating himself.
Mr. Mahboob Ali Baig: As Mr. Naziruddin Ahmad asked, what is the impression that is going to be created on the public, especially on persons who are asked by us, who are asked by the Government to invest money in factories and industrial ventures? Would they dare to do it? Would anybody come forward with his money to invest his money in any venture ? Tic would read this and say......
Mr. President: I think you have taken more than enough time. You in') finish now.
Mr. Mahboob Ali Baig: Sir......
Honourable Members : Order, Order
Mr. President: No. 499.
Shri Ajit Prasad Jain (United Provinces : General): Sir I do not propose to move it.
Mr. President: No. 500.
Shrimati Renuka Ray (West Bengal : General): Sir, I move:
"That in amendment No. 369 of List VII (Seventh Week), for clause (4) of the proposed article 24, the following be substituted :-
'(4) No law making provision as aforesaid shall be called in question in any court either on the ground that the compensation provided for is inadequate or that the principles and the manner of compensation specific are fraudulent or inequitious."
I am compelled to move this amendment even at this late hour because we are faced with a very genuine and a real difficulty. By clauses (4) and (6) of the draft that we are considering, we, find that pending legislation orlegislation that has already been enacted in regard to compensation for property is to be treated on a different basis to compensation for all other types of property. If it becomes necessary to have an exemption clause for certain types of zamindari property-for, coming to brass tacks, it means the zamindari Bills of U.P. and those of Madras and Bihar are to be exempted-it necessarily follows that all other property including zamindari property in other areas must be justiciable. It means that the authority of the sovereign Parliament is to be challenged by Courts of law. I know that there is difference of opinion amongst some of the lawyers. Some hold that although other forms of property are included as justiciable, the Courts of Law will not challenge the authority of Parliament in laying down principles of compensation until and unless there is intent to fraud. Other lawyers again support the view of the Supreme Court of the United States that the word 'compensation' means equivalent value. I am not a lawyer and I have neither the merit nor the right to enter into the hair-splitting arguments that are the lawyers paradise; but as a layman I would like to know that how it is that there has to be this differentiation. Is it then that the provision of the U.P. Zamindari Bill has shown an intent to defraud, or that no compensation to be paid under its provisions 9 Why is it that the special provisions have to be made for the Zamindari Bills of U.P. Madras and Bihar ? If it were that the lawyers who hold the view that the justiciability would not be challenged unless there 'Was intent to defraud, were correct then it would not be necessary to include ,clauses (4) and (6). Shorn of all legal technicalities, as we can see it, the position really comes down to this, that it is not the Sovereign Parliament that has the last word, but it is the Court of Law that will have the last word in case of other properties except those covered by clauses (4) and (6). I would like to ask what justice is there for this procedure? There are other fundamental justiciable rights, but even these rights are subject to the, proviso that it is under the authority of law, e.g., the right of freedom of speech and expression, to assemble freely without arms, to form associations or unions-all have limitations, by which they come under the authority of Parliament. What is the justification 'in 1947 for us to place property on a very different basis? Pandit Nehru said in his speech this morning that the very conception of property is changing. The sacrosance attached to property it no longer there. Surely when we are deciding this issue today we must make it so that it is Parliament whose authority shall be supreme and that we shall not lay down a vested interest for all times.
It is quite true that Parliament sometimes does pass hasty legislations. Well we have the second chambers as Panditji pointed out this morning. Apart from that there is clause (3) of this article which gives the President, i.e., the Central Government, final power as assent has to be given by the President before any such legislation comes in. I think the safeguards here are surely enough. It is not for us to include provisions whereby there can be various interpretations given by Courts of Law. If there can be various interpretations amongst a few lawyers, even now just think of the varying interpretations that we shall have with different courts deciding differently. As I said before it will indeed become a lawyers Paradise and litigation will become even more widespread.
Mr. President: You have made out that point.
Shrimati Renuka Ray:- There is no question of expropriation of property. The question of nationalisation or socialisation really does not arise today. These are issues that have been raised to confuse the matter: The Government has laid down its economic policy. That policy does not include any nationalisation or socialisation except in the case of the abolition of ZamindariShrimati Durgabai (Madras: General): May I know from the speaker through you, Sir, whether it is her intention to oust the jurisdiction of the Court even when the compensation so fixed is fraudulent?
Shrimati Renuka Ray: I say, who is to decide what is fraudulent? Is the Zamindari Bill of U.P. and the compensation fixed in it today fraudulent, and if that is not so, then why have we to make provision for an exemption clause ? Therefore, I say that it must be Parliament that must have the supreme voice in the matter, and it cannot be left to Courts of law to challenge the decisions of Parliament even on the excuse that it is fraudulent-A Court of Law may decide that even paying half the value is fradulent. There will be nothing to debar it unless this amendment is included.
Now, as I said, there has been confusion of issues. This question of expropriation of property has been brought up. There is no question of exproperiation today, and even in the Parliament of tomorrow I do not think that so long as there is a constitutional authority and so long as there is responsible government there can ever be any question of expropriation of property, without paying compensation. Even those people who want a new economic structure and who believe in the gradual transformation of the present structure into a new economic structure where economic justice prevails, even they do not want that a new class of destitute or poor should be created. We do not want and the government of the future will not 'want to- create a new liability for the State. Thus, neither the Parliament of today nor that of the future will expropriate property without compensation, because their object will be to bring about a reduction in the disparity of wealth and not to create new class who will become the concern of the State.
Mr. President: I hope you have finished now ?
Shrimati Renuka Ray: I have just one or two more points.
Mr. President: More points or more words ?
Shrimati Renuka Ray: More points, Sir. Another point that has been raised in some of the speeches made today is that because of the economic difficulties of today it is essential for us to put this clause in the draft. Mr. Himatsingka asked the question as to how production could be increased if you do not satisfy the capitalists on this point. I say, we have been making concession after concession to capitalists, and still production has not gone up so far. The question of capital for nation and of increased production is an urgent one today. Even if capitalists do not conform, we have to find ways and. means towards this end. We cannot be at their mercy altogether if they do not play the game. But I fail to see what this article has got to do with this. This is not a provision that is being incorporated in an Act of the Legislature, but something we are considering in a permanent Constitution forthe future.
Sir, before I conclude, I just want to point out that if we do not allow constitutional remedies, if we bind and fetter the future, then a timer will come when extra-constitutional remedies will. be resorted to, and when this Constitution will be treated as a scrap of paper.
Sir, before I conclude I would appeal most particularly and most especially to Pandit Jawaharlal Nehru who, above all, believes in economic justice and social justice, to accept this amendment and substitute clause (4) by my amendment. I appeal to the Drafting Committee that if they have, any differences of opinion, then this makes it quite clear. If they believe that the provision does not mean justiciability, then what objection can they have to my amendment?
Last of all, I appeal to this House and say, let us not accept something which posterity may point to and say that, we were more interested, and concerned at all in entrenching vested interests in the Constitution, than all other rights. Let them not say that the right of propery was the only fundamental right in which we showed most concern as only to it we gave a double assurance by the incorporation of article 24 in this manner let us not forget that no other economic right is incorporated in fundamental rights--all others Ire on directives as pious hopes for the future.
Mr. President: Shri Siddaveerappa, No. 502.
Begum Aizaz Rasul (United Province: Muslim): Sir, may I invite your attention to the fact that it is quarter past seven now and we have been sitting for more than seven hours ? There are still a large number of speakers who want to take part in this important subject. Therefore, may I request you, to adjourn the discussion after taking the consent of the House till MMonday and resume it again on Monday ?
Shri R. K. Sidhva (C.P. & Berar: General): No, Sir. Most of us want to finish this subject today.
Shri Mahabir Tyagi (United Provinces: General): Sir, even if they cannot have full compensation, let the zamindars have their full say
Sardar Hukam Singh (East Punjab: Sikh): Yes, let them have their dying sobs and sighs.
Shri Deshbandhu Gupta (Delhi): Sir, may I suggest that the general discussion may be postponed to Monday and the discussion on amendments finished today ?
Shri H. V. Kamath: I suggest, we may meet after dinner, say, at ten o'clock tonight.
Mr. President: My intention was to finish this article today and I expressed this intention to the House more than once, and I wanted the speakers also to take this into consideration while speaking. But unfortunately, it is not possible for me to stop speakers when they are dealing with their amendments and when they are to the point. Therefore, I have not been able to stop them and more time has been taken than I had anticipated. Now it has been suggested by some Members that we should adjourn till Monddy next. I should like to know the view of the House.(Cries of "Adjourn" and "Do not adjourn.")
The Assembly divided (by show of bands)
Ayes : 48
Noes . 47
Shri Syamanandan Sahaya: There has been some misunderstanding, Sir. I though those who wanted to bring up' this article on Monday should raise hands now.
Mahavir. President: The House is almost evenly divided, 48 being for adjournment and 47 against.
Pandit Hirday Nath Kunzru (United Provinces: General). Sir, if I may respectfully interpret this voting, it means that there is a very large section of this House desirina adjournment. We have discussed matters of much smaller importance for a much longer time. We are now holding two sessions. But we are trying to bring the discussion of a very important article to an end speedily, merely in order that the second reading may practically cometo an end on the 17th September. Is this such an important purpose, that we should, go any length to achieve it rather than allow more time for such a debate?
Mr. President: The House stands adjourned till nine o'clock on Monday morning.
The Assembly then adjourned till Nine of the Clock, on Monday the 12th September 1949.