Honourable Dr. B. R. Ambedkar: I do not think that much explanation is necessary as to why I cannot accept the amendment of Mr. Naziruddin Ahmad. As you will see the entry really falls into two parts. In the first part it deals with specific institutions which are enumerated therein. In the second part it deals with institutions which are either financed by the Government of India, wholly or in part. Therefore, it is not possible to use the words "similar" because that would circumscribe the object of the entry, which is to give the Central Government power to take over any institution which is either financed by itself or financed partly by itself and partly by the Provinces.
Mr. President: The question is:
"That in amendment No. 14 of List I (Sixth Week), in the proposed entry 39 of List I-
(i) for the words 'on the date of commencement' the words 'at the commencement be substituted;
(This was not pressed by the Mover.)
(ii) for the words 'other institution' the words 'other similar institution' be substituted; and
The amendment was negatived.
(iii) for the words 'by Parliament' the words 'by or under any law made by Parliament' be substituted."
(This was not pressed by the Mover.)
Mr. President: The question is
"That for entry 39 of List I, the following entry be substituted:-
'39. The institutions known on the date of commencement of this Constitution, as National Library, the Indian Museum, the Imperial War Museum, the Victoria Memorial, the Indian War Memorial, and any other institution financed by the Government of India. wholly or in part and declared by Parliament by law to be an institution of national importance."'
The amendment was adopted.Entry 39, as amended was added to the Union ListEntry 40
The Honourable Dr. B. R. Ambedkar: Sir, I move:"That for entry 40 of List I, the following entry be substituted
'40. The institutions known on the date of commencement of this Constitution as the Benares Hindu University, the Aligarh Muslim University, and the Delhi University and any other institution declared by Parliament by law to be an institution of national importance."'
I submit the word "university" is a mistake and it ought to be "institution" and I hope you will permit me to substitute it.
There is no fundamental change in this except that the latter part permits also Parliament to take over any institution which it thinks is of national importance.
Dr. P. S. Deshmukh: May I suggest that 40A may also be taken together? I, is part and parcel of the same thing.
The Honourable Dr. B. R. Ambedkar: Sir, I move:"That after entry 40 of List I, the following new entry be inserted
"40A. Institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance."
Mr. President: There are some amendments to entry No. 40. Item 162 stands in the name of Mr. Naziruddin Ahmad and item I thereof substituting " at the commencement" for "on the date of commencement" need not be moved.
Mr. Naziruddin Ahmad: Sir, I beg to move:"That in amendment No. 15 of List I (Sixth week) in the proposed entry 40 of List I,"the words 'and the Delhi University and any other institution declared by Parliament by law to be an institution of national importance' the deleted."'
I have slightly altered my amendment to suit the change introduced by Dr. Ambedkar in. his own amendment. I submit that Dr. Ambedkar's amendment would unduly enlarge the jurisdiction of the Centre and many things which would be otherwise cognizable by the Provinces would now, by virtue of the words which I seek to delete, be included within the jurisdiction of the Centre. The Benares Hindu University and the Aligarh Muslim University have been regarded from their very inception as institutions of a national character and importance and therefore they have been rightly regarded so far as national institutions and they have been rightly placed under the jurisdiction of the Union. But, Sir, the wording "any other institution declared by Parliament by law to be an institution of national importance", would give undue latitude to the Centre. By virtue of these words, the Union Government will be enabled at any time to acquire jurisdiction over one institution or another of a similar kind. In fact, from a University, a College or school down to a small village school, anything may be claimed as within the jurisdiction of the Centre. While one can appreciate the desire of the Centre to express a carnivorous instinct in this respect, trying to eat everything good or bad, whether belonging to somebody else or belonging to it, I should think that the Centre is getting seriously encumbered with a large number of subjects. The effect of that would be that the Provinces or the States as they are now called will feel less and Yes-, responsibility. They will have less and less money and so they will have less and less responsibility. They will develop an irresponsibility and a sense of grievance against the Centre. The result would be that for everything, the Provinces will throw the responsibility upon the Centre.
While there is a natural desire on the part of the Centre to he the guardian of the Provinces who are regarded as not having ittained the age of majority,the Centre is taking an undue responsibility which would make it cumbersome and will highly complicate its machinery and induce it to go into matters of details of administration which should be left to the Provinces. After all the Provinces should be allowed to meddle with their own affairs, to make mistakes and learn from experience. This is the only way that Democracy grows. It is 'not by the extension of your paternal jurisdiction over the Provinces that you can make them learn democracy by experience. In fact, in this respect the, present Constitution as it is now being shaped goes far beyond the acquisitive tendency of even the British Government.
I would point out the dangers that may arise out of these words. With regard to the Delhi university, it may be supposed that the Centre should have some amount of jurisdiction. But, the Centre has already jurisdiction over the matter. It is a University in an area which is centrally administered. Therefore, so long as the Centre has jurisdiction to maintain it as a centrally administered area, Delhi University will certainly continue to be within its jurisdiction. But we are looking forward to a day when the Delhi University or Delhi itself may be made over to a Corporation or other authority and if it is desired to make Delhi a separate Province, then Delhi University will be on the shoulders of the State and not on the Union.
Then, again, we say, "any other institution declared by Parliament by law to be an institution of national importance." Any other institution may mean an institution which is not even educational. Supposing it to mean any other educational institution, it would have the effect of unduly enlarging tile jurisdiction of the Union, and curtailing the jurisdiction of the Provinces. This tendency should stop. After all the House took serious decisions in this House before the Draft Constitution was prepared. There were resolutions on individual topics and the Draft Constitution was prepared in accordance with these resolutions. Those decisions should be respected; but we find those decisions have, been flouted or circumvented without any iustification, without telling the House that our own resolutions were being violated and in what respect and to what extent. In one case, we have found, Sardar Patel thought, rightly thought, that the decision of the House should be changed. A strong and powerful man as he is he felt the necessity of taking the House into confidence; he placed his cards fully on the table and got the decision altered in a formal way. The House cheerfully accepted it. So far as the present amendments are concerned, there are wholesale changes of the decisions which we have arrived at after careful consideration in this House, ;which are recorded in our proceedings. They are being changed without adequate reasons being assigned and without allowing the House an opportunity to consider them. This tendency is a thing to which I have referred on previous occasions and I oppose this tendency. I hope the House will carefully consider the implications of this tendency and the tremendous burden of responsibility which the Centre is taking. I believe, if there was an enemy of the Central Government, he would do the very thing that we are doing to discredit it in the end. This is the best and the most effective way of encumbering it and making unpopular any future Central administration. I think we are doing something Which only our enemies would like us to do. This tendency should stop. The Drafting Committee or the men behind it want to eat more, the more they are fed.
Sardar Hukam Singh : I am not moving my amendment as it is covered.
Shri Brajeshwar Prasad: Sir, I move:
"That in amendment No. 3529 of the List of amendments, for the proposed entry 40 of List I, the following be substituted:--
"40. Education."
May I move the other amendment, Sir ?
Mr. President: Yes.
Shri Brajeshwar Prasad: Sir, I move:
"That in amendment No. 3529 of the List of Amendments, for the proposed, entry 40 of List I. the following be substituted :-
"40. All the Universities, advanced scientific research institutes and public and private educational and cultural organisations in the Indian Union shall be subject to the supervision, superintendence direction and control of the Union Government.
I consider this subject to be of vital national importance. The only way that India can rise rapidly in the councils of the nations is by providing education to the illiterate masses of this country. No form of Government can be laid on a secure basis unless the people are educated. Especially in a Parliamentary form of Government, unless the people are educated, Parliamentary democracy cannot function. The danger that, by vesting a large number of powers in the hands of the Centre, the whole machinery of administration will break down seems to me clearly an ephemeral one. Till recently India was governed on a unitary basis and the British people ran the administration on scientific, sound and efficient lines. There is no reason why there should be a change 'from a unitary to a federal form of Government. But, at the present moment, I am not going to enter into that discussion. My object is of a very limited character. I want education to be placed in the Central list. Power, Sir, must have some relation to the economic and financial resources of the provincial Governments. The financial implications of the powers that are going to be vested in the hands of the Provincial Governments have not been ascertained. I am quite clear in my own mind that they are not competent, they have not got the economic resources to fulfil or discharge even one-tenth of the powers that are going to be vested in their hands.
Sir, I do not like to make a long speech on this subject but I would like to-urge another point before I conclude. There are linguistic minorities living in different provinces and the provincial governments have not got the resources even to impart education to the permanent people living in their regions. To ask them to impart education in the mother-tongue of those linguistic minorities who have come from different provinces is to ask them to perform an impossible task. Therefore, for the sake of uniformity, for the sake of the rapid development of our education I am definitely of opinion that this subject should be vested in the hands of the Centre.
Shri H. V. Kamath: Mr. President, may I hope that you will "tend to me the same latitude that you have extended to Dr. Ambedkar to permit me to change the word 'university' to 'institution' ?
Mr. President: Yes.
Shri H. V. Kamath: Sir, I move:
"That in amendment No. 15 of List I (Sixth Week) in the proposed entry 40 of List I, the words 'and any other institution declared by Parliament by law to be an institution of national importance' be deleted."
Sir, I would like to move 191 also as Dr. Ambedkar has moved 40A.
Mr. President: Yes.
Shri H. V. Kamath: I move:
"That in amendment No. 19 of List I (Sixth Week)List I, after the word 'education' the words 'and research' be inserted."
Taking my first amendment first, I feel that the acceptance of the amendment moved by Dr. Ambedkar, referring to an institution which may be declared by Parliament by law to be one of national importance,-I am not referring to Delhi University at all but the second part of the amendment-is fraught with dangerous consequences. I hope the House will pause to consider whether such a sweeping provision for bringing within the purview of the Central Government any institution-which of course Parliament may declare by law to be of national importance-is at all necessary. The House will see that in the previous Entry No. 39 which we have passed we have given power to the Union to legislate about any institution financed by the Government of India wholly or in part and declared by Parliament by law to be an institution of national importance. This entry goes further and gives power to Union to legislate in regard to institutions, whether financed wholly or in part or not at all by Government. I have in mind certain institutions in this country which are doing very good work, wholly privately run but run on efficient lines without any Government interference. The amendment just now moved by Dr. Ambedkar shows that the grabbing instinct of the Drafting Committee is growing by leaps and bounds; and if this passes muster, if this is accepted by the House I am sure the day is not far distant when the acquisitive instinct of the Union Government will run riot and the Union will try to step in where perhaps angels fear to tread. This is a possibility, not merely possibility but probability which, I do not desire, should eventuate in our country.
As regards the two Universities mentioned in this entry, the Benares Hindu University and the Aligarh Muslim University-of course, either, it may be true that they are of national importance or because they have the communal tag attached to them, Government to show their impartial non-communal nature might legislate in regard to these Universities. As regards Delhi too because the status of Delhi is not yet defined it is perhaps desirable that it should be within the purview of the Union. But to specify here very vaguely that any other institutions may be also taken over by the Union, legislated upon by the Union - though of course the saving proviso is there that Parliament should declare by law those institutions to be of national importance - but, Sir, in modern times Parliaments are becoming more and more very pliant tools in the hands of the Executive; and if a Government takes into its head to take over or legislate or administer any particular institution not financed to take over or legislate or administer any particular institution not financed by Government at all, Parliament according to the dictates of the Executive may declare that to be one of national importance, and then the Government could take it over and administer it as it likes. I have in mind certain institutions - to take only one instance -several Yogic Institutes in this country; one very well-known Yogic Institute is Kaivalyadhama in Lonavala, in Bombay. Some Government of the future may smell a rat where there is none. Of course our present Government is well disposed towards this, but there is no guarantee that the present Government will continue for many long years to come. Suppose a Government comes into power, and it is hostile to our ancient culture, especially Yogic and Spiritual matters, that Government may get a very obedient Parliament to declare that institution as of national importance and take it over and ultimately suppress it. The House must be well aware that Herr Hitler, soon after he became the Fuhrer and Reichskanzler of Germany, closed down certain Nature Kultur, nature Culture institutions because ..................
Dr. P.S. Deshmukh : He did not act on any list.
Shri H.V. Kamath : We have the facade of democracy, which is worse. Hitler found perhaps through his Gestapo that people assembling in those Nature Kultur institutions were undesirables and were planning and plotting against the Government and so he closed them down. Here we are proceeding in another way which is more vicious than that one. At least that was a straightforward course. Here we are enabling the Union to give it a colour of propriety and legality.
As I said, if you have this entry, you will give power to the Union Government to take over any institution, firstly which is financed wholly or partly or not all by Government, and secondly, which the Government may think is contrary to their interests, for the time being. I think entry 39 as already passed is quite sufficient to cover such institutions as may be financed wholly or in part by the Government of India. There are other institutions, and or in part by the Government of India. There are other institutions, and these may be left free to act in any manner that is not contrary to the national interest.
Sir, one word more about the universities. In list II of the Schedule, there is item 18 - "Education including Universities other than those specified in entry 40 of List I." This, of course, is to be modified in the new draft which will be brought before the House shortly. But I do feel that the Union has taken more power than is necessary, more power than is desirable with regard to these matters. Personally I hold that that university is the best which is the least contaminated by governmental interference. But in modern times, of course, education, including higher education suffers from such interference. I am not against primary and secondary education being regulated by government. But the true university is, to my mind, a centre of learning and it must be the least touched, if not completely untouched by governmental interference. But I know in these days there is dragooning and regimentation not only in the primary schools and the secondary schools, but also in the higher stages of education, in the universities, though it is contrary to the true spirit of freedom, of learning which has been so aptly summarised in the Gita as -
"Na hi jnanena sadrisam Pavitramiha Vidyate."
But the purity, Pavitrata, of Jnanam is being sought to be polluted by governmental interference at every step. I hope, Sir, that at least so far as the universities are concerned, apart from these three universities, we shall leave them to be regulated not overmuch by the State Governments concerned. But provision in this entry is a very sweeping provision as regards other institutions. It is a very pernicious provision, and I hope this House will not accept it, and that this House will pass the entry only with regard to these three universities, Benares, Aligarh and Delhi. I also hope that at no distant date the communal tag of the Benares and Aligarh universities will also disappear.
As regards the second amendment, No. 191, I do not know whether any provision has been made in this List for research of this type. There is some provision for research, but whether there is provision for scientific and technical research. I am not sure. If there is provision for research in the scientific and technical fields, I shall withdraw amendment No.191. But if there is no such provision for research in scientific and technical fields, I should like to see this provision included in the entry 40A through my amendment No.191.
I move amendments Nos. 188 and 191 and commend them to the House.
Mr. President : Dr. Deshmukh, do you want to move your amendment?
Dr. P.S. Deshmukh : Yes, Sir. I move:
"That in amendment No.15 of List I (Sixth Week), in the proposed entry 40 of List I, after the words "academy of institution" be inserted."
My reasons for moving these amendments are quite simple. I was glad to find that the Honourable Dr. Ambedkar himself was of the opinion that the word "university" should be changed to "institution". But the amendment which I proposed seeks to retain the word "university" also and add to it the words "academy or institution". And if these words are there, then there is no necessity for defining what kind of institutions will come under the purview of the Union, and the long and unnecessary entry No. 40A could be easily deleted. Institutions can include scientific institutions, technical institutions, research institutions, etc. There is no necessity whatsoever to particularise and to give all these details, as well as to refer to the fact whether they are financed by the Government or not. The entry will be quite comprehensive and will meet all the purposes that are in view, if these words are added. The word "university" also should be there. You might have seen, Sir, it was only this morning, that a suggestion was made by Dr. Jayakar that university education should be taken over by the Centre. One need not got so far as that. If there are universities of national importance or academies, it should be permissible for the Union to take them over.
Mr. friend Mr. Naziruddin Ahmad and my Friend Kamath have gone far beyond what is contemplated here, and they have attributed motives which have no foundation. Mr. Kamath has smelt a rat where none exists. It does not give power to the Executive. I was rather surprised that they also do not trust the future Parliament. There need be no apprehensions. Everywhere in this schedule power is sought to be given, and authority sought to be conferred on the Parliament and there is therefore no room or justification for any apprehension of the executive acquiring power over the institutions. Nor will the Central Government be keen to acquire institutions. It will be the institutions that will be keen that the Centre should take them up. The whole thing is absolutely beside the point.
My amendments make the position clear, and if the Honourable Dr. Ambedkar will kindly listen a little more carefully, I am sure he will agree that they do away with the necessity for another item, and also the specification of the various kinds of institutions. On the other hand, even if you have the institution as specified in the entry No.40A, even then you will not be able to bring art institutions within the provision of the entry. We have scientific and technical institutions, but we know art institutions are different from these and they will not be included. So if you have these three words that I have suggested, then the entry will be sufficiently comprehensive and that will serve the purpose far better. I hope the Honourable Dr. Ambedkar will at least once be reasonable enough to accept this amendment.
Mr. President : Mr. Naziruddin Ahmad has two amendments.
Mr. Naziruddin Ahmad : I am not moving them, Sir.
Mr. President : Then there are no more amendments.
Prof. Shibban Lal Saksena : Sir, I want to speak. I want to oppose it.
Mr. President : Very well; but please do not take more than three minutes.
Prof. Shibban Lal Saksena : Sir, the entry as it stands envisages central control over three universities. But I feel universities education should be a central subject. This important subject has been debated all over the country and the Inter-University Board in our country has also discussed it, and it has come to the opinion that university education should be a central subject. So I feel we need not mention here these three universities only. In fact, this proposition that university education should be in the Union List has got a very large number of supporters. In fact, a large number of members of the universities themselves are in favour of it.
At present these universities are provincial subject and are under Provincial Governments. If there is co-ordination between these universities and some of them specialise in some branches of learning and others in other branches, it will lead to considerable advancement in the filed of education and research and there will be economy in expenditure. I know that in Oxford and Cambridge, particular colleges specialise in particular subjects. If, therefore, all the Universities in the country are brought under the purview of the Centre, we can have planned education for the whole country. At present there is a lot of duplication, leading to waste. Centralisation will lead to better co-ordination and also to better control, resulting in greater national unity.
The Honourable Dr. B.R. Ambedkar : Sir, I find my honourable Friends, Mr. Naziruddin Ahmad and Dr. Deshmukh, running at cross-purposes. One wants to enlarge the scope of the article by adding the word "academy". The other wants to limit the scope of the article by dropping the word "Delhi University and any other institution declared by Parliament by law to be an institution of national interest".
So far as Dr. Deshmukh's amendment is concerned, it seems to me quite unnecessary to introduce the word "academy" because the word 'institution' is large enough to include both University and academy. Therefore, that is quite unnecessary.
With regard to the amendment of my honourable Friend Mr. Naziruddin Ahmad, Delhi University is as was pointed out by already under the Central Legislature by virtue of the fact that the Delhi University is in a Comissioner's province, which is subject to the legislation of the Centre. Therefore, in introducing the words "Delhi University" we are really not departing from the existing state of affairs. With regard to the subsequent part of the entry relating to any other institution declared by law by Parliament, it seems to me, that it is desirable to retain those words, because there might be institutions which are of such importance from a cultural or from a national point of view and whose financial positioin may not be as sound as the position of any other institution and may require the help and assistancee of the Centre. In view of that, I think the last part of the entry is necessary and I am not prepared to accept his amendment.
Now with regard to my honourable friend Mr. Mamath, he wanted to introduce the words "research institution". He has forgotten, or probably his attention has not been drawn to my amendment dealing with entry. No.57A which deals with research institutions. Of course, that entry is limited to coordination and maintenance of standards. Mr. Mamath has, perhaps, in mind agencies established by the provinces and which it may be desirable for the Centre to take over. It seems to me that it is no use overloading the Centre with every kind of institution. It would be enough if, as I said, the provisions contained in 57A were allowed to pass because that will give the Centre enough power to maintain by law coordination and the maintenance of standards for higher education in scientific and technical institutions. I think that ought to suffice for the present.
Mr. President : I will now put the amendments. The first is, amendments Nos. 16 and 17 of Shri Brajeshwar Prasad.
Shri Brajeshwar Prasad : I ask for leave to withdraw both my amendments.
The amendments were, by leave of the Assembly, withdrawn.
Mr. President : Next, I shall take up Mr. Naziruddin Ahmad's amendment No.162.
The question is:
"That in amendment No.15 of List I (Sixth Week), in the proposed entry 40 of List I, -
"the words "and the Delhi University and any other university declared by Parliament by law to be an institution of national importance" be deleted."
The amendment was negatived.
Mr.President : The question is:
"That in amendment No.15 of List I (Sixth Week), in the proposed entry 40 of List I, the words "and any other institution declared by Parliament by law to be an institution of national importance" be deleted."
The amendment was negatived.
Mr. President : The question is:
"That in amendment No. 15 of List I (Sixth Week), in the proposed entry 40 of List I, after the words "any other university" the words "academy or institution" be inserted."
The amendment was negatived.
Mr. President : The question is:
"That for entry 40 of List I, the following entry be substituted :-
'40. The institution known on the date of commencement of this Constitution as the Benares Hindu University, the Aligarh Muslim University, and the Delhi University and any other institution declared by Parliament by law to be an institution of national importance."
The amendment was adopted.
Entry 40, as amended, was added to the Union List.
Mr. President : I shall now put the amendments to 40-A. There is an amendment (No.191) by Mr. Kamath.
The question is:
"That in amendment No.19 of List I (Sixth Week), in the proposed new entry 40A of List I, after the word "education" the words "and research" be inserted."
The amendment was negatived.
Mr. President : I now put entry 40A to vote.
The question is:
"That after entry 40 of List I, the following new entry be inserted:-
"40-A. Institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance."
The motion was adopted.
Entry 40A was added to the Union List.
(Amendment No.18 relating to new entries 40A and 40B, and Amendments Nos. 3530,3531, and 3532 were not moved.)
New Entry 40B
Pandit Thakur Das Bhargava : (East Punjab : General) : Sir, I would like this to be held over as I would like to consult my friends on this subject.
(The entry was held over.)
The Honourable Dr. B.R. Ambedkar : Sir, I move:
"That in entry 41 of List I for the words "and Zoological" the words Zoological and Anthropological" be substituted."
Shri H.V. Kamath : Sir, I move :
"That with reference to amendment No.20 of List I (Sixth Week), in entry 41 of List I, for the words "and Zoological" the words "Zoological, Anthropological and Ethnological" be substituted."
I am glad to see that this entry runs the whole gamut of life on our planet. Modern science has established that there is no such thing as inanimate matter at all. Every thing is animate : it might be occult or manifest life.
An Honourable Member: It is not modern science : it is very ancient science.
Shri H.V. Kamath : Our philosophy has held:
Sarvam Khalvidam Brahma.
Neha nanasti kinchana !
Modern science is coming to the same view that every thing in the Universe has occult or manifest life. "Geological" refers to what is called in ordinary parlance inanimate matter - ordinary matter without life but of course even there life is occult. Then we come to botanical, plants where you have the first quivering of sensation and of life. Higher up is zoological, animals with life and in whom a rudimentary mind by way of instinct has developed. Dr. Ambedkar perhaps rather feels it below or derogatory to human dignity to include man also in the term "zoological". Zoology comprehends all animals and man has been described as a social, political or philosophical animal, but a higher animal all the same. Perhaps Dr. Ambedkar feels that man should be assigned a separate category. I do not know whether anthropology includes ethnology also. Some of us are aware that many years ago during the British regime certain surveys were conducted in this country called ethnological surveys which showed the ethnic distribution of population in India. Their results have been incorporated in various history books. I do not know whether the science of anthropology would include this as well. Anthropos means man and anthropology will mean the science of man. If I am assured by the wise men of the Drafting Committee that ethnology is comprehended in the term anthropology I should not like to press my amendment. Otherwise it is an important branch of human science and if there is any doubt on that point, whether it does or does not include ethnology, I would certainly like to press my amendment and commend it to the House for acceptance.
The Honourable Dr. B.R. Ambedkar : The word "anthropological" is very wide and would cover even "ethnology".
Shri R.K. Sidhva : Sir, I move:
"That in entry 41 in List I , the word "Geological" be deleted and the words "the Geological Surveys" be inserted."
My object in deleting the word "geological" from the Union List is that in the past the Centre has neglected this very important department of survey. The country is full of potential wealth and there are rich minerals but the Government of India have taken no pains or care to discover them or survey them. If the Government of India in the past had appointed a sufficient number of geologists to do the surveys in various parts of the country we would have enough of minerals for our own consumption, a also to spare a large quantity for export to other countries. Thus our country would have been richer and wealthier.
I find that in the Government of India there has been a practice prevailing that once in five years geologists are sent to the provinces and they make a survey for three months and then the next turn will come after another five years. If the geologist finds some mineral he does not know whether commercially it is useful or not. Perhaps because the Government of India has not a sufficient number of geologists or because of lack of efficiency in the department concerned this has been neglected. Many provincial governments have complained in the matter and they are prepared to appoint geologists if the subject is transferred to the provincial List. I beg the Drafting Committee to consider this matter. It is in the interest of the country and if the Government of India is not going to exploit our rich minerals it is better to leave it to the provinces who are considerably interested in the matter. I may state that wherever the geologists have gone they have found some rich minerals existing but no effort was made to develop them for commercial purposes. I, therefore, strongly plead that geology be removed from the Union List and transferred to the Provinces.
The Honourable Dr. B.R. Ambedkar : Sir, I am afraid my Friend Mr. Sidhva has drawn too much upon the attitude of neglect and in difference shown by the Central Government in the past towards geological surveys in India. I quite admit that hitherto this matter has been neglected by the Centre, but it does not follow from that that the provinces are going to take any more interest in geology than the Centre has taken hither to.
First of all, this is a matter of very great magnitude involving a great deal of expense and I do not think that the provinces will be able to find the resources to develop the minerals which are to be found within their area. From that point of view I think there will be no advantage in transferring geology to the Concurrent List so as to give the provinces an opportunity to legislate about it.
The second difficulty I find in accepting his amendment is that we have in the Union List an entry stating that the mineral resources of India may be developed by the centre. if Parliament were to make a law that the mineral development of the country shall be a central subject obviously here would be very great difficulty created in the way of Parliament executing that law or developing the mineral resources, if the provinces retained with themselves concurrent power of legislation. Therefore, my request to Mr. Sidhva is to allow the entry to remain as it is.
Mr. President : Then I put the amendments to vote. The first amendment moved by Mr. Kamath ................
Shri H.V. Kamath : As Dr. Ambedkar assures me that the word "anthropological", I accept his superior wisdom and won't press the amendment.
The amendment was, by leave of the Assembly, withdrawn.
Mr. President : Then Mr. Sidhva's amendment...................
Shri R.K. Sidhva : In view of the assurance given, I beg to withdraw the amendment.
The amendment was, by leave of the Assembly, withdrawn.
Mr. President: The question is:
That entry 41, as amended, stand part of List I.
The amendment was adopted.
Entry 41, as amended, was added to the Union List.
Entry 42
Mr. President : I do not find any amendments to entry 42.
Entry 42, was added to the Union List.
Entry 43
Mr. President : Now we take up entry 43. Dr. Ambedkar has to move an amendment.
The Honourable Dr. B.R. Ambedkar : Sir, I move:
"That for entry 43 of List I, the following entry be substituted:
'43. Acquisition or requisitioning of property for the purposes of the Union.'"
Members will see that the original entry as it stood had other words along with it, namely, the principles of compensation etc. Those words, it is proposed to put in a separate entry in the Concurrent List. So it is unnecessary to retain those words here. That entry will be entry 35 in the Concurrent List.
Shri Syamanandan Sahaya : (Bihar General) : Sir, I want to make a suggestion.
Mr. President : Just wait a little. There is an amendment to be moved.
Shri Syamanandan Sahaya : I want to make it before the amendment is moved. This item on the list which is proposed by Dr. Ambedkar will have a deal to do with the language of article 24 and I suggest therefore that this item be held over till we have passed article 24. It may be said that in any case acquisition and requisitioning of property by the Union will be a necessary factor and will have to find a place in the items somewhere. I concede that that is an important consideration and this item will have to be included, but, after we have passed article 24, we will be in a better position to frame the language of this item, because it may be that certain powers with regard to acquisition in the States also may according to article 24 have to be vested in the Centre. I would therefore suggest that this item on the list may be held over till we have passed article 24.
The Honourable Dr. B.R. Ambedkar : I submit that is unnecessary because the power to lay down principles in any case will have to be given to the legislature. The question is whether the Centre should have a separate entry and the Province should have a separate entry for laying down principles of acquisition. What is proposed is this, that for both Centre as well as the provinces, there should be a common entry in the Concurrent List. Therefore, whatever happens to article 24, this entry regarding principles will have to be put in somewhere. Unless my friend has any objection to putting the matter in the Concurrent List, there is no object served by postponing the consideration of this entry.
Shri Syamanandan Sahaya : I was thinking of a case where even in the matter of acquisition by States the principle may have to be decided by the Central Parliament.
The Honourable Dr. B.R. Ambedkar : That is exactly the point. If my friend would understand it, if we put it in the Concurrent List, the Centre also will have power.
Shri Syamanandan Sahaya : Precisely, but you say that the "Centre also will have". My submission is.........
The Honourable Dr. B.R. Ambedkar : What I am saying is this : that we are cutting out the words "principles"etc. and putting them in entry 35 of the Concurrent List. If my Friend will refer to the two entries, 43 in the Union List and 9 in the State list he will find both of them are exactly in the same terms. In other words, both of them not only give the power to compulsorily acquire property but also give the power to lay down principles. Instead of distributing the entry regarding principles between the Centre and the provinces independently of each other, it is now proposed to take out those words "principles"etc., and put then in entry 35 of the Concurrent List.
Prof. Shibban Lal Saksena : Would there be any harm if the thing is postponed until the other article is passed ?
The Honourable Dr. B.R. Ambedkar : No good will be served by postponing. I am not in favour of having these things postponed. There is already so much time taken in the consideration of this matter.
Dr. P.S. Deshmukh : Sir, I move:
"That in amendment No.21 of List I (Sixth Week), in the proposed entry 43 of List I, after the words "of property" the words 'according to law of the Union' be inserted."
From the discussion that has just taken place, it is quite clear that it is understood that this matter, so far compensation or the principles of acquisition or requisitioning are concerned, will be subject to the legislation of Parliament. My purpose in proposing this amendment is to be make this intention obvious and leave no room for any doubt. This does not raise the question as to what should be the compensation or whether there should be compensation or anything of that nature. The Parliament should have the latitude and the power to determine all these things just as occasion may arise from time to time, but it would not be correct to leave the wording as has been proposed at the moment without referring to the powers of the Parliament or the law making powers of the Union. I think this would lead to clarity and will obviate any ambiguities hereafter which might lead to very serious trouble. I, therefore, hope that the amendment proposed by me which specified that any acquisition or requisitioning of property shall be by law passed by the Parliament and shall not be undertaken arbitrarily will be accepted.
The Honourable Dr. B.R. Ambedkar : It is quite unnecessary. These entries do deal with legislative power. What is the use of adding the words according to the law of the Union' ? According to the entry as it is, the Union will have the power to make the law. It cannot mean anything else.
Dr. D.S. Deshmukh : I beg leave to withdraw my amendment.
The amendment was, by leave of the Assembly, withdrawn.
Mr. President : The question is:
"That for entry 43 of List I, the following entry be substituted:
'43. Acquisition or requisitioning of property for the purpose of the Union.'"
The amendment was adopted.
Entry 43, as amended, was added to the Union List.
Entry 44 was added to the Union List.
Entry 45 was added to the Union List.
Entry 46 was added to the Union List.
Mr. President : There is an amendment to entry 47 standing in the name of Mr. Santhanam. As Mr. Santhanam is not moving it, I shall put the entry to the vote of the House.
Entry No.47 was added to the Union List.
Entry 48
Entry 48 was added to the Union List.
Entry 49
Mr. President : There are certain amendments to entry 49. Thakur Cheedi Lal may move his amendment No.3537 in the Printed List.
As the Member is not in the House, the amendment is not moved. Amendments Nos.3538 and 35539 are also not moved. Now I will put entry No.49 to vote.
Entry 49 was added to the Union List.
Entry 50
Mr. President : Entry 50. Mr. Brajeshwar Prasad has an amendment to this entry.
(Amendment 22 was not moved.)
Shri T.T. Krishnamachari : Sir, I move :
"That for entry 50 of List I, the following entries be substituted :-
'50. The incorporation regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including co-operative societies.
'50A. The incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State but not including universities.' "
Sir, the reason for this amendment is that the existing entry 50 which is a comprehensive entry was found to be a little confusing by some Members of the House. They represented to us that the language is a little involved and it might be made to express clearly the objects indicated therein. For instance, there was doubt whether a co-operative society carrying on trading operations in more than one State will be included in the entry or not. It was thought desirable, therefore, to split up the entry into two, clearly demarcating the position of trading corporations including banking, insurance and finance corporations and other corporations whether trading or not when they operate in more than one State, and also excluding universities. This is merely a clarificatory amendment and I do not think there is any need for explaining it further. It has been framed to meet the wishes of several Members of the House who expressed the view that the entry as it originally stood did not clearly indicate the purpose for which it stood.
Mr.President : I understand that Mr. Krishnaswami Bharathi and Shri K. Santhanam are not moving the amendments standing in their name in the printed list.
Shri Jagat Narain Lal : (Bihar : General) : Sir, I venture to suggest that splitting up of the entry into two may not be necessary in case the words "corporations, that is to say", are omitted. If this is done the entry will read thus:
"The incorporation; regulation and winding up ......................... but not including universities."
This will make the meaning quite clear. There will be no ambiguity. I suggest this to Shri T.T. Krishnamachari. The object they have in view can be achieved by adopting my suggestion.
The Honourable Dr. B.R. Ambedkar : I will consider the matter. For the present the entry proposed by Shri T.T. Krishnamachari may go in.
Mr. President : The question is :
"That for entry 50 of List I, the following entries be substituted:-
'50. The incorporation regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including co-operative societies.
50A. The incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State but not including universities'. "
The amendment was adopted.
Entries 50 and 50A were added to the Union List.
Entry 51
Entry 51 was added to the Union List.
Entry 52
The Honourable Dr. B.R. Ambedkar : I move:
"That for entry 52 of List I, the following entry be substituted:-
'52. Constitution and organisation of the Supreme Court and the High Courts; jurisdiction and powers of the Supreme Court and fees taken therein; persons entitled to practice before the Supreme Court or any High Court'. "
The last words are additions. It is found necessary to have them because the time has come when it is necessary to regulate the right to practise of persons practising in both the High Court and the Supreme Court.
Mr. President : There are certain amendments to this.
Shri Brajeshwar Prasad : I am not moving amendment No.24, Sir.
Mr. President : Mr. Naziruddin Ahmad who has given notice of an amendment to this entry is not in his place.
Sardar Hukam Singh : Sir, I beg to move:
"That in amendment No.23 of List I (Sixth Week), in the proposed entry 52 of List I-
(i) the words "and the High Courts" be deleted; and
(ii) the words "or any High Court" be deleted."
We have just listened to Dr. Ambedkar. He said that the last portion was newly included. The original draft entry 52 reads thus :
"Constitution, organisation, jurisdiction and powers of the Supreme Court and fees taken."
There is absolutely no mention of the High Courts in that entry in the original draft. This is an innovation. When we started, we had in view the framing of a federal Constitution and it was clearly observed by the honourable the Mover then - and he took credit for its flexibility - that in normal times this is framed to work as a federal Constitution, and in times of war it is so framed that it would work as a unitary Constitution. But now what do we find? With every day that passes, we are progressing more and more towards a unitary system, not merely in times of war as was first intended, but in normal times as well. Everywhere you find that there is an attempt to grab all powers for the Centre and emasculate the provinces altogether. Provincial autonomy has been made a farce. There is nothing left there. They are only municipal boards now. The reasons given are that the circumstances have changed; there are some dangers on the borders and we have to provide against them; the Centre must be sufficiently strong. I agree with all this; I am second to none in lending my support to making the Centre as strong as possible, but I differ about the way in which the Centre is going to be made strong. The question is whether the units should be free, whether sufficient confidence is reposed in them, whether there should be sufficient initiative with them, in which case they would be willing partners in lending every support to the centre, or whether we should frame an authoritarian Constitution and impose our will on them.
The Honourable Dr. B.R. Ambedkar : I do not wish to interrupt the debate, but I would like to point out that we have already passed articles 192A, 193, 197, 201 and 207 which deal with the constitution of the High Courts. Under those articles, except for pecuniary jurisdiction, the whole of the High Courts are placed, so far as their Constitution, organisation and territorial jurisdiction are concerned, in the Centre. It seems to me, therefore, that this amendment is out of order.
Sardar Hukam Singh : All I can say is that I differ from the honourable Doctor. I was going to submit that I do not agree that this pressure from outside would make the Centre strong and would make the units voluntary partners in lending their support to the Centre. So, in my humble opinion, we should not try to take every power for the Centre. So far as the persons practising in the High Courts are concerned, this can be safely left to the provinces themselves. Sir, many things are being done not even with the object of making the Centre strong, but their sole desire is to grab everything for the Centre. So, I move that the words "and the High Courts" and "or any High Court" be deleted from the entry.
Dr. P.S. Deshmukh : Sir, I move:
"That in amendment No.23 of List I (Sixth Week), for the proposed entry 52 of List I, the following be substituted :-
'52. Constitution, jurisdiction and powers of all courts including the Supreme Court; enlargement of the appellate jurisdiction of the Supreme Court and conferring of supplemental powers thereon, regulation of fees chargeable by the Supreme Court and licensing and regulation of persons entitled to practise before the Supreme Court or any High Court'."
According to the first draft, entry 52 was to be worded as follows :-
"Constitution, organisation, jurisdiction and powers of the Supreme Court and fees taken."
That is to say, it was solely intended to cover the Supreme Court and there was no reference to High Courts at all. According to the present amendment, all the High Courts have been brought in, not only for purposes of constitution and organisation, but also so far as the persons entitled to practise therein are concerned. So, Sir, it has been found necessary to widen the scope of the item as; it stood originally. I have tried to make it still wider in its application so as to bring it into line with the original of this entry to be found in entry 53 of the Government of India Act of 1935. That entry reads as follows:-
"Jurisdiction and powers of all courts, except the Federal Court, with respect to any of the matters in this list and, to such extent as is expressly authorised by Part IX of this Act, the enlargement of the appellate jurisdiction of the Federal Court, and the conferring thereon the supplemental powers."
So, if it is necessary to include the High Court, I do not see why we should not refer back to what was provided in the Act of 1935 and provide for the constitution, jurisdiction and powers of all courts including the Supreme Court.
The second point that I want to urge is that it is necessary that there should be a provision, just as there is in the Act of 1935, for the enlargement of the appellate jurisdiction of the Supreme Court and conferring of ;supplemental powers thereon. Then the last portion really seeks to give a better shape to the amendment that is proposed, so far as licensing of legal practitioners and the levying of fees chargeable by the various courts are concerned. I would be glad, if this could be accepted.
In any case, if any satisfactory and cogent explanation is coming forth which would convince me that it is not necessary to refer to the powers of all the courts or to make any provision for the enlargement of the appellate jurisdiction of the Supreme Court, I would see my way not to press this amendment. Otherwise, I think it would be necessary that the Union should have powers of enlargement of the jurisdiction of, as well as for giving supplemental powers to, the Supreme Court.
Mr. President : Amendment No.197 is covered by the amendment moved by Sardar Hukam Singh.
Shri H.V. Kamath : All right, Sir.
Shri Alladi Krishnaswami Ayyar (Madras : General) : With regard to the amendment moved by Dr. Ambedkar, I should like to say a few words. In the first place, we have already taken a particular step in regard to the High Court; that is, the appointment of the Judges is in the hands of the President. Secondly, so far as the organisation and jurisdiction is concerned, the idea is that there must be uniformity in the organization of the High Courts in the different parts of India, subject of course to the provisions o the Constitution. Therefore, in so far as the organization is concerned, with a view to emphasize the principle of uniformity and to see that there is uniformity in the different High Courts, this power is transferred to the Central Legislature. It will be realized that we have High Courts and High Courts. There ae High Courts which have been functioning for several years, for a century. There are High Courts which have come into being recently, and it is also proposed to bring in all the High Courts in the States under the jurisdiction of Parliament, and see that there is a certain uniformity in the organization and constitution of the different High Courts in India. The only legislature that can function in this regard is the Parliament. That is why that part of the amendment provides for it.
Secondly, it makes important provision in regard to the right of practitioners in the Supreme Court and in the different High Courts in India. Under the present law as it stands, each High Court makes its own rule for the enrolment of an Advocate and for the right of a person to practise in a particular High Court. So far as the Supreme Court is concerned, the Supreme Court has the power to make its own rule in regard to the person entitled to practise before the Supreme Court. The power of the Supreme Court is subject to the power of Parliament. The power of the High Court also is subject to the power of the appropriate legislature.
Now, there are certain anomalies which have necessary to be removed, an anomaly which was adverted to by Sir S. Varadachari when he retired from the Federal Court. Today any practitioner entitled to practise in the Federal Court can appear in that Court but if the case is remanded, say, to the High Court of Bombay, that practitioner will not be entitled to appear in the High Court unless he is an advocate of the Bombay High Court. That is an anomaly. You might have done a good part of the case; you might have mastered the details, the facts and the law of the case when the case was presented before the Federal Court and there is neither reason nor principle behind permitting the practitioner to appear before the Federal Court and no before the High Court from which an appeal is lodged. The proposed amendment does not give straightaway a right of audience in the High Court. It enables Parliament to remove anomalies and to see that there is a ;uniform judicial system throughout the country. I can give one instance, for example when the Honourable Sir Tej Bahadur Sapru applied, for permission to appear in the Bombay High Court, on account of the rules of the Bombay High Court, permission was refused to Sir Tej Bahadur Sapru to appear in the original side of the Bombay High Court. Similar instances have occurred in the case of other practitioners of eminence and position at the bar; and therefore to see that these anomalies are removed the Parliament is invested with the right to regulate the right of audience of the practitioners in the Supreme Court as well as in the High Court. Of course, until and unless the plenary power is exercised in a particular manner by the Parliament the existing rules of the Supreme Court and of the different High Courts in India will continue to operate. In the Parliament different sections are represented and I have no doubt that the Parliament will take a wise step calculated to improve the tone of the judicial administration as also to see that there is a certain uniformity observed in the different parts of India. That is the object of the amendment. I do not think any exception can be taken to the amendment as proposed by Dr. Ambedkar. It is a move in the right direction.
Shri H.V. Kamath : Mr. President, I shall be content with a bare and bald statement of my view in this regard. I seek to delete the words "or any High Court" appearing at the end of this proposed entry. My amendment is No.197, List III, Sixth Week, Neither Dr. Ambedkar nor my jurist friend, Mr. Alladi Krishnaswami Ayyar has shown any valid reason why the power in this regard to make regulations in respect of persons entitled to practise before the High Court, should not be given to the State Legislatures. Mr. Alladi Krishnaswami Ayyar said that at present every High Court makes regulations in this regard but we have certainly not tried to consider why this power could not be conferred on the State Legislatures. We can trust the laws of the Central Parliament. I invite your attention and the attention of the House to article 208. Dr. Ambedkar pointed out article 207, and in the light of article 207 I do not dispute the desirability of the Union Legislature to regulate in regard to the constitution and organization of High Courts; but the point with regard to persons entitled to practise, the practitioners in the High Courts, is on a different footing. Article 208 which the House has passed confers certain powers on the State Legislature with regard to jurisdiction of certain High Courts in certain circumstances. If that power can be given to the State Legislatures. I do not see why this trifling power of legislating with regard to practitioners appearing in the High Courts could not also be given to the State Legislatures, and so that matter might be transferred to List II, i.e., the State List. Otherwise I feel that by empowering Legislatures as has been done in article 208 with regard to jurisdiction of High Courts and divesting the Legislatures of power to make regulations with regard to practitioners appearing before the High Courts, I feel that the Drafting Committee is straining at a gnat while swallowing a camel.
Mr. Naziruddin Ahmad : Mr. President, as I was coming to the rostrum, I heard a remark from my honourable Friend Mr. Mahavir Tyagi that this concerns the lawyers. I should however think that the subject concerns not merely the lawyers, but the entire population of India. In fact, the independence of the High Courts, their judicial integrity are matters of concern for all.
I would like to draw the attention of the House to the manner in which the words and the High Courts' have been introduced into the amended entry. I submitted yesterday that there were certain interpolations in many of the entries. The present is a good example of this bad tendency. The original entry read thus:
"Constitution organisation, jurisdiction and powers of the Supreme Court and fees taken".
Fees have been taken out and I have no quarrel with that. The original entry dealt with the Supreme Court only. In the new entry proposed by Dr. Ambedkar, it reads:
"Constitution and organisation of the Supreme Court and the High Courts,".
Then again, he has added "persons entitled to practise before the Supreme Court or any High Court".
My first objection is as to the surreptitious manner in which important things are interpolated into the entries. I could have well understood.................
(Interruption)
Shri Mahavir Tyagi : On a point of order, Sir, is the word "surreptitiously" parliamentary ?
The Honourable Dr. B.R. Ambedkar : Is it a proper argument, Sir, to say that the Drafting Committee has surreptitiously tried to introduce something? My honourable Friend is entitled to ask me an explanation as to why I have altered the entry. There is nothing surreptitious. I am perfectly prepared to justify every item and every part of it.
Shri Mahavir Tyagi: I want your ruling, Sir, is the word "surreptitiously" parliamentary ?
Mr. President : I confess I am not acquainted with parliamentary practice to such an extent as to say whether 'surreptitiously' is or is not parliamentary. I would ask the honourable Member not to use expressions which may be offensive.
Mr. Naziruddin Ahmad : I bow down to your ruling, Sir. I submit that it would have been much more straightforward to say that we should insert the word 'High Courts'. What I meant was that instead of doing the obvious thing in the open way of clearly and specifically indicating the exact changes proposed, by the addition of the words "and the High Courts", the whole entry has been re-written, and my submission was that this was done for the purpose of not making it apparent that the words 'High Courts'are introduced here by way of change. It would require long land patient comparison between the amended entry and the original entry to bring this out. It took us a few hours, including Sardar Hukam Singh and others, long and patient comparison in order to enable us to discover this. I fail to see any reason for not moving these introductions as so many specific amendments to the original entries. This I consider to be highly objectionable and at the same time highly inconvenient.
Mr. President : Consideration of every amendment involves a study of the original which is sought to be amended by the amendment and it is nothing extraordinary if the honourable Member had to study the original along with the amended form of the entry.
Mr. Naziruddin Ahmad: All that I was respectfully submitting was that the exact change might have been indicated by the suitable amendment that the word 'High Court' be introduced at the proper place. The objection was that in every case we have to carefully compare each entry with the past entries and it took us a very long time. In fact, nothing has been gained except that it put the Members to additional labours. That is in regard to the manner in which they are being introduced. There are numerous other cases where objectionable words are not introduced openly, but through the device of a re-draft. I fully admit the justice of your remark that every Member should come prepared to read and compare them. What I was submitting was that matters might have been made easier. We have only a very short time to consider innumerable innovations. Matters have been unnecessarily made more difficult, considering the short time at our disposal.
So far as the High Courts are concerned, they were all under the Provincial jurisdiction except the Calcutta High Court. The Calcutta High Court, for reasons of history, enjoyed a peculiar position of its own. The Calcutta High Court was situated geographically at a place where before 1911 the Government of India had its seat. So, somehow or other, the Government of India and the Imperial Council had been enjoying jurisdiction over that High Court. Then, with the passing of the Government of India Act, 1935, jurisdiction over the Calcutta High Court was made over to the Provincial Government and Legislature. There were long disputations over this. One of the reasons assigned was that the Provinces were getting greater rights and as the Centre was establishing the Federal Court, the Centre should be dealing with the Federal Court and not with the High Courts. In that way, the Calcutta High Court which was under the jurisdiction of the Centre for long was taken away and was placed under the jurisdiction of the Province. Thenceforward, all the High Courts were under the jurisdiction of the Provinces. The Centre is sufficiently encumbered with Central matters. The Centre should have been concerned, I submit, with matters relating to the Supreme court, leaving it to the Provinces and the Assemblies lot deal with the High Courts. I find that every item, financial, political, legal land others, is being taken away one by one in a systematic manner from the Provinces and made over to the Centre. I submit that the position of the High Courts is of great importance. I do not know why the Centre should assume jurisdiction in a summary manner like this over the High Courts.
I wish to raise another constitutional point with regard to this. So far as the High Courts are concerned, they were placed before in the Provincial list by common consent. We debated these matters as to the jurisdiction of the High Courts and the Supreme Court here before and the Drafting Committee was asked to draft a Constitution in accordance with those decisions. I submit that we should not disregard those decisions. In fact, if we disregard those decisions, many things would be upset. I would ask your ruling, Sir, as to whether we should lightly upset those decisions. Jurisdiction over the High Courts is a matter which was provincial, and I beg to ask whether it is proper to allow this being upset without a proper consideration of the subject, without the matter being placed directly before the House we are going to make these changes.
I submitted a few minutes ago the example of Sardar Patel. On a very important occasion, he came to the House and asked for a reconsideration of the decision and then suitable amendments were incorporated in the Constitution. So far as the High Courts are concerned, this is only one of the instances. I submit that is a very important constitutional step and the matter should have been placed straightforwardly before the House instead of its being put in this way. The matter will cause much dissatisfaction. Taking jurisdiction over the High Courts in this manner is highly improper and this should have been allowed to be dealt with by the provincial assemblies. I submit, the Provinces should have been allowed full jurisdiction over their High Courts; instead of that, if the Provinces are to be deprived of their privileges one by one like this, I would rather have the Provinces abolished entirely.
Shri T.T. Krishnamachari : The attention of the Members of the House has already been drawn by Dr. Ambedkar to article 207. May I say, Sir, in view of that that the honourable Member need not labour this point?
The Honourable Dr.B.R. Ambedkar : I can reply. I want only ten minutes. I have understood what he wants to say.
Mr. Naziruddin Ahmad : There is a promise to reply but it would be an unusually fortunate thing for me actually to get a reply from Dr. Ambedkar. Hitherto, points have not been replied to. I should submit that the subject of jurisdiction over the High Court should have been introduced only after sufficient consideration and ample debate in the House. Instead of that a mere re-drafting of the entry should ;not have been the manner in which this should be done. This is too important a matter to be lightly dealt with. I submit that if we assume that the Drafting committee is entitled to do whatever it likes, then of course I am entirely out of Court. I feel I am faced with certain defeat irrespective of reason.
The Honourable Dr. B.R. Ambedkar : Sir, I am constrained to begin by stating that I have on very many occasions noted ;that my Friend Mr. Naziruddin Ahmad has got into the habit of speaking of the Drafting Committee in most derisive terms. I have not descended to his level in order to reply to him, but I should like to give him a warning that if he persists in doing this kind of thing, I shall certainly not fail to pay him in the same coin.
Mr. Naziruddin Ahmad : Are Members to be threatened in this manner? Of course it produces no effect on me.
The Honourable Dr. B.R. Ambedkar : This is not a threat. This is a warning.
Now coming to the points raised by my Friend Dr. Panjabrao Deshmukh, I am very sorry that I cannot accept his suggestion. Because he wants to enlarge entry 52 in such a manner and to such a magnitude as to include every court in this country. It is an impossible proposition and I am afraid I cannot accept it.
I shall now deal with the arguments of my Friend Mr. Naziruddin Ahmad. First of all, he said that we were trying to smuggle in the High Court in this entry 52, because it did not find a place in the entry as it stood before. The House will remember that the Drafting Committee has been from time to time revising not only the entries but also the articles. I am not here to claim any omniscience on the part of the Drafting Committee. If the Drafting Committee has failed to grasp the whole thing at one grasp, I am not prepared to blame the Drafting Committee nor am I prepared to allow anybody to sit in judgement over it and pass censure upon the Drafting Committee. It is a huge task and we are bound to go slowly on our way.
Shri H.H. Kamath : Cannot the House sit in judgement on the Drafting Committee?
The Honourable Dr. B.R. Ambedkar : But the House should recognise what I am saying viz., that it is not possible for the Drafting Committee to bring forth before the House a neat and complete formula which will not require reconsideration. Now Sir, my Friend said that we have brought in the High Courts. Well, we have deliberately brought in the High Courts because we felt that it was necessary to bring in High Courts in view of certain articles that we have already passed. My Friend, Mr. Naziruddin Ahmad, evidently forgot articles 192A, 193, 197, 201 and 207 which deal with the High Courts and if he were patiently to apply his mind to these articles, he will find that the only matter that is left to the Provincial Legislatures is to fix jurisdiction of the High Courts in a pecuniary way or with regard to the subject matter. The rest of the High Court is placed within the jurisdiction of the Centre. Obviously when considering entries in the Union List which are meant to give complete power to the Centre, we were bound to make good this lacuna and to bring in the High Courts which, as I said, by virtue of these articles excepting for two cases have been completely placed within the purview of the Parliament. There is nothing surreptitious about it. This is merely correcting an error which originally crept in by reason of the fact that the article and entry were not properly composed. That is the reason why High Courts have been brought in.
Coming to the question as to why we have brought in the entry - Persons entitled to practice before the Supreme Court and the High Court - the position has been already explained by my Friend Mr. Alladi Krishnaswami Ayyar; but I will put the same matter very shortly, and it is this that, really speaking, there is nothing very extraordinary in bringing in these words - persons entitled to practice before Supreme Court or High Court - as Members will see article 121 which gives Parliament the power to make any law with regard to persons practising before the Supreme Court. Therefore, that power is already there and there is nothing new so far as the entry refers to persons entitled to practise before the Supreme Court.
Now with regard to the High Court, the position is this. The power ;which the Centre have today is contained in entry 17 of the Concurrent List which deals with professions, and legal profession is one of the professions. It is, therefore, perfectly possible for Parliament to enact a law regulating the practice of persons appearing in the High Court by virtue of the power given to it by entry 17 which is in the Concurrent List, but the trouble with that is this. Concurrent List means that both parties can legislate. The Centre can legislate and the provinces can legislate and the legislation may be not quite in consonance with each other. Consequently it was felt that while leaving entry 17 as it is in the Concurrent List to cover all professions, to pick out a part of the legal profession and to put it here so as to make any legislation with regard to legal profession in so far as it relates to practice of persons before High Courts an exclusive subject for legislation by the Centre, and the reason why we did it was because of the hard cases referred to by my friend Mr. Alladi Krishnaswami Ayyar and I may repeat one of them. Probably you have not heard what he said. Supposing, for instance, a lawyer or a barrister from Madras appears in a case in the Supreme Court and the Supreme Court instead of deciding the case remanded the case to Bombay High Court. What happens? The Bombay Government or Bombay law if enacted under entry 17 may not permit a person from Madras to appear in the Bombay high Court, with the result that lone Madras, lawyer who appeared in the Supreme Court conducted the whole case but if the case is remitted back to the High Court of Bombay, that High Court may be law prevent him from appearing before it. I think it will be agreed that is a great hardship. In order therefore to have a uniform position with regard to persons practising in different High Courts what this entry proposes to do is to cut it from entry 17 dealing with professions and to put it here so that the practice of persons appearing in the High Court may be regulated by uniform law. There is nothing revolutionary and there is nothing surreptitious in entry 52 as is proposed by the Drafting Committee.
Mr. President: I will now but the amendments to vote. There is first the amendment of Sardar Hukam Singh. It is in two parts, and I will put the two parts separately. First part.
The question is:
""That in amendment No.23 of List (Sixth Week), in the proposed entry 52 of List I,-
(i) the words 'and the High Court' be deleted."
The amendment was negatived.
Mr. President: Then the second part :
The question is:
"That in amendment No.23 of List I (Sixth Week), in proposed entry 52 of List I,-
(ii) the words 'or any High Court' be deleted."
The amendment was negatived.
Mr. President : Then there is the amendment of Dr. Deshmukh - No.196.
The question is:
"That in amendment No.23 of List I (Sixth Week), in the proposed entry 52 of List I, the following be substituted :-
'52. Constitution, jurisdiction and powers of all courts including the Supreme Court, enlargement of the appellate jurisdiction of the Supreme Court and conferring of supplemental powers thereon; regulation of fees chargeable by the Supreme Court and licensing and regulation of persons entitled to practise before the Supreme Court or any High Court.' "
The amendment was negatived.
Mr. President: I will put the entry as moved by Dr. Ambedkar.
The question is:
"That for entry 52 of List I the following entry be substituted:-
'52. Constitution and organisation of the Supreme Court and the High Court; jurisdiction and powers of the Supreme Court and fees taken therein; persons entitled to practise before the Supreme Court or any High Court'."
The amendment was adopted.
Entry 52, as amended, was added to the Union List.
Mr. President : We rise now. We adjourn till nine o` clock, tomorrow morning.
The Assembly then adjourned till Nine of the Clock on Wednesday, the 31st August, 1949.