Constitution Assembly Of India - Volume VIII
Dated: June 01, 1949
May I, Sir, by your leave out to the House what Dr. Ambedkar himself remarked about this matter on a previous occasion? Dr. Ambedkar was all in favour of a similar amendment moved in connection with the Council of Ministers at the Centre. But he wanted it to be more effective, and I have, by expanding my former amendment and submitting a new one, tried to accommodate, Dr. Ambedkar as far as I can.
Dr. Ambedkar on that occasion observed that:
Expanding his argument further- clarifying his position further-he observed:
Continuing, he said:
This is want he went on to say:
The second of the provisions that the mentioned at that time I have included in the amendment which I brought forward today. I have included a new clause to the effect that every Minister shall make a similar declaration when he quits his office: and I find that Prop.Shah has gone a step further in an amendment he has suggested and in which he has tried to include the third provision which Dr. Ambedkar suggested to male this clause completely effective.
I have left the matter of dealing with such a declaration by the Minister to the Legislature. It is likely that he may have certain shares, or titles, or interests, but the Legislature may hold that the matter is innocuous; and he may continue to enjoy those right and privileges. I have not stated here what exactly should be the course to be pursued in such a case, as Prof. Shah has sought to do in his amendment. I have left it to the Legislature to deal with it as it likes, and I hope, Sir, that by accepting this amendment, we would be guaranteeing, as far as lies in human power, the purity of our administration and of Government in so far as those in both these are concerned.
Prof. K. T. Shah: Sir, I move:
(a) in the first para,-
(b) in the second para,-
My amended amendment which I shall, with your permission, read to the House is as follows:
Shri B. Das ( Orissa: general): Would gambling in share bazars come into it?
Prof. K. T. Shah: Well, gambling is a business for many people and also a trade.
As Mr. Kamath has tried to explain the genesis of this motion, may I be permitted to amplify a little bit all the same by pointing out that on a previous occasion, in connection with the President and the Prime Minister of the Union of India, I had tried to bring forward an amendment of this nature, and that amendment was rejected. At the time of rejecting that motion, however, the Chairman of the Drafting Committee was pleased to make certain observations which suggested the unworkability or futility of the amendment as it then stood, and indicated certain condition or improvements whereby it could be made more workable. Mr. Kamath seems of have taken him at his word. I find myself now in that happy position of having to bring out these points also in a more substantial manner, perfectly in accordance with the apostolic observations of Dr. Ambedkar. The point simply is this. We are all interested in maintaining and promoting the efficiency as well as the purity of our administration. The Minister should be above any suspicion, and as such it is suggested here that it they have any change of being tempted, if they have any concern, any interest in any business, trade or profession which is likely to be, or which is being owned or controlled , aided or subsidised in any way by the Central or Provincial, Government , then all that portion must be fully declared to the State Legislature. I have hanged the word "disclosure" to "deceleration" because the word 'disclosure' might suggest some sort of previous concealment which is now to be unconcealed, and a 'declaration' is a simple statement of the holdings that the party concerned may have which are presented to the House.
Sir, it is a wholesome convention that even the Director of a Joint Stock company when he accepts office as a Director has to make a declaration, a disclosure, of his interest in any other company or concern wherein his company might be interested. We have a convention also in such a body like the Bombay Municipal Corporation wherein even a member has to make a declaration if any matter in which he is interested comes up for disposal before the body. If such conventions, if such precedents, are to be found in the ordinary law or practice of public I put it to the House, Sir, that it is of still higher importance that provincial Ministers should be similarly required to make a declaration of their holdings, in any trade or profession, on any company or enterprise, before they become Ministers.
Sir, a story is known-very well known-of a former Prime Minister of the United Kingdom, Mr. Baldwin, who before he accepted his post as Prime Minister dissociated himself completely with Baldwins Limited, which was a great iron and steel, firm, and when he retired he actually had to declare that he was not worth perhaps as many hundreds as he was worth thousands when he took office. This is a part of sacrifice inherent in the public service of a country like England and the ideal or example set by people of the kind will, I hope, be followed in this country as well. We are trying by this amendment to insert a provision in the Constitution to so it that no opportunity is left for anybody holding such high office in the State as that of Governor, Minister or Prime Minister, to use or abuse his authority, power or position for any purpose of personal aggrandizement. I have, therefore, suggested that not only should there be such a declaration, but that having so declared, the interest, share or title may be either disposed of in the public market in which case there would be nothing more to be said about it, or if that ins not done, the property, might, or share may be held in trust by say, the Reserve Bank of India which may receive all the interest, dividend, profit or rent that may be accruing from such property and credit it to the party concerned, so that when the party concerned leaves office the same may be returned to him This is a requirement which would in no way hurt the individual economically, at the same time safeguarding the purity and excellence of their conduct while in office.
I am aware, Sir, that if people want to abuse and take undue advantage of their position as Minister or Governor, they will always be able to do so. If there is one way of observing a law, there may be hundred ways of evading the law. But at the same time, so far as in us may lie, and so far as we can openly guard against such mischances, I think an amendment of this kind is necessary, particularly in view of the very common and universal complaint of growing corruption and demoralisation that seems to have invaded all branches of public service and it so with that purpose in mind that I am placing this amendment and I trust this House will not reject it.
(Amendment No. 2200, 2201 and 2202 were not moved.)
Mr. President: There is one amendment of which I have just received notice from Mr. Jaipal Singh. It is late, but in view of the fact that it raises an important question which has been left out by sheer oversight, I allow him to move it.
Shri Jaipal Singh (Bihar: General): Sir, I move:
Sir, I am very grateful to you for permitting this very late amendment of mine. The province of Assam has already been amply provided for by the directives given in the Schedule, but Bombay has been left out. At the time when the Triba' Sub-Committee met, the question of the merger o States had not been finalised. By the merger of a number of States Bombay province gets an additional population classes. I suggest that Bombay be included in the article so that in that province also there may be a Minister who may, in addition to his other duties, pay particular attention to the tribals and other backward classes.
My honourable Friend Mr. Sidhva wanted to know about Assam. I would refer him to page 185 of the Draft Constitution and therein he will find that Assam has been amply provided for, I need not say much about my amendment. The omission is due to oversight and I do hope that Dr. Ambedkar will accept my amendment.
Dr. P. S. Deshmukh: Mr. President, Sir, there are a large number of amendments that have been moved. Some of them are more or less of a consequential nature to which a mere reply that the proposal which they want to embody in the Constitution specifically would be covered by other provisions in the Constitution or by the way in which the Ministers have functioned so far would probably be sufficient. I would here just like to speak on one or two points.
I would like, first of all, to say that it would be better if this proviso is transposed either as an independent article or is embodied here in article 104 as an independent sub-clause. I refer to the proviso to para (1) of article 144 in regard to the States of Bihar, Central Provinces and Berar and Orissa and to the proposed addition suggested by Mr. Jaipal Singh in his amendment. I think this is a substantive provision which should stand independently and not as a proviso. I am glad to find that there is actually am amendment suggested by Mr. Gupta for the addition of an independent clause. I am in favour of it.
Then I may say a word about the proposal to include Bombay. I have my fullest sympathies with Mr. Jaipal Singh. For the reasons stated by him briefly, I think it would be proper to include Bombay in the list of States which have been mentioned in this article.
Then there is the amendment of Mr. Kamath which seeks to be amended by the one moved by Professor K. T. Shah. There can be no two opinions about our being very punctilious and about our making every effort to see that our public men are as scrupulous as possible. It is with this end in view that the amendment seeks to provide for a declaration of business interests of the Ministers. But the question is whether we should provide for this in the Constitution or whether there are not other means to achieve the desired end. My Friend Mr. Kamath has suggested that there should be declaration of financial and business interests of the Ministers. Professor shah who usually goes into details in such matters wants to provide further that when certain interests are found to exist they should be dealt with in a particular way. In spite of all these exhaustive amendments, I do not think the changes of misbehaviour by public men and public officers have been completely eliminated. Besides business interests there may be a thousand other things which it is equally desirable to discourage or put a stop to extraordinary indulgence in, for instance receiving addresses from the public or in celebrating one's own birthdays or the marriages of one's sons of daughters of other relatives. All these things and a whole host of others will have to be included if we want to see that our Ministers do not derive any benefit other then their legitimate remuneration.
To make out a complete list of these things and to provide for enquiries and adjudications is I think too much of a task to provide for in the Constitution. I have not a shadow of doubt in my mind that we must do everything possible to raise the moral status of our nation. I am not prepared to say that at the present moment it is very high. But the question is whether this is the right place of method to do it. I am sure the consciousness of our independence, of our nationhood, and I for one hope that has devolved on our shoulders is increasing in India, and I for one hope that even in the absence of s provision of this kind the moral standard in our country will rise higher. At the present moment however the situation is disgraceful. There is no shadow of a about, about it. Very few people, cultured people, highly educated people place any value on speaking the truth and there is a craze for deriving vicarious advantage and benefits in different ways. To enumerate all these occasions when men might be unscrupulous enough to transgress the moral code in the Constitution would be an impossible task for the draftsmen. I would therefore prefer to leave this matter entirely outside the Constitution and if necessary include them in the Instructions that may be issued by the President to the Governors to see that from day to the Ministers and the Premiers who get so much power and authority under the scheme of provincial autonomy do not misbehave and to watch and communicate ant such misbehaviour to the President. If those Instructions are followed, much good that we desire will be accomplished. That would be much better then contaminating the whole Constitution by frank admission that our public men are not capable of looking after own morality and do not care for any moral principles.
I next want to refer to my sub-province of Berar. We have mentioned Central Provinces and Berar as a State which will have an additional Minister to look after the interests of Tribals and the Scheduled Classes. It is stated that that Minister could be given other work also. This reminds me of section 52 of the Government of India Act. There was a special responsibility placed on the Governor , so far as Berar was concerned, and this was "to see that a reasonable share of the revenues of the Province was expended in or for the benefit of Berar." I do not wish to take the time of the House by referring to the Constitutional position of Berar. But, so far as exploitation from the financial point of view is concerned, I may say that it has been a long-standing complaint of Berar that the larger revenues that it contributed are swallowed up by the other and poorer areas of the Province and that Berar does not get the benefit that is due to it. Of course it is too late in the day to ask for any direction or for the placing of any special responsibility for Berar on the Governor, I would, however, like the administrators to bear in mind that the needs or Berar still require attention and consideration.
One more point and that is with respect to the 25 lakhs of rupees paid as lease money to the Nizam. I think we can now conclude that the Nizam's nominal sovereignty has, at long last, been completely abolished and terminated with Berar. Therefore the question of paying this sum of Rs. 25 lakhs to the Nizam will not I expect arise hereafter.
Mr. President: We are not concerned with the contribution which is paid by Berar or the separate finances of Berar. We are have concerned only with the question of having Ministers to look after the welfare of the backward tribes in certain provinces.
Dr. P. S. Deshmukh: I only want to say one word more, Sir. I referred to this subject since the old provision of special responsibility is going finally to be abolished. Since the payment of Rs. 25 lakhs is not going to be made to the Nizam, this money should be utilised for the benefit of the territory of Berar for educational and medical purposes. I have already made a representation to the Home Minister in this matter and I hope that since we are not going to repeat the provision existing in 1935 Act, this request of mine to utilise this sum of Rs. 25 lakhs for the people of Berar will be accepted.
Pandit Thakur Das Bhargava: Mr. President, Sir, the article under discussion, article 144, is a very important article and so I venture to take some time of the House in regard to some of the provisions in this article.
In the first place, clause (1) of article 144 is too wide. It says-
We just discussed article 143 in which the question was whether the Governor must be invested with any discretion at all. Here his discretion is too wide. now, the Governor,it he so chooses, can appoint his Ministers and the Premier may be called upon to form a minister from any party which is not the biggest party in the House. There is no bar against this. I would have liked a provision that the Governor shall only call for the leader of the biggest party in the Assembly to form the Ministry. Moreover, Sir, the words "during his pleasure" have been interpreted in different ways. A convention is to grow that the Governor is only entitled to dismiss a Minister if the Ministry fails to retain the confidence of the Legislative Assembly. In regard to this, two amendments have been moved and I am sorry I cannot support any of them because the words used are "retains the confidence of the Legislative Assembly". My humble submission is that unless the Ministry fails to command the confidence of the majority of members of the Legislative Assembly, the Ministry should not be dismissed. Now, it is true that the sole judge of this is the Governor himself and therefore he will have very great power in this regard. If the provision had been made that as long as the Ministry retains the confidence of the majority of the members of the Lower House, the matter would have been put beyond doubt and the Governor would not be within his right if he dismisses a Ministry which is still in the enjoyment of the confidence of the House.
An amendment was moved by Mr. Saksena in regard to clause (3). He wanted that only members of the Lower should be chosen as Ministers. In regard to this, my submission is that since in the Upper House we are having many members who will be elected by a large body of people, like Municipalities, District Boards, village panchayats, etc, there is no reason why we should restrict Ministership to the members of the Lower House only. My submission is that all those members who have been elected, whether they belong to the Upper House or the Lower House, should be eligible for Ministership.
In regard to the proviso, I would submit a word. I am very much against this backdoor reservation of ministership. So far as the question of the Scheduled Castes, the backward classes and the tribal people is concerned, we have got very specific provisions in this Constitution which aim at the amelioration of the condition of these classes and it will be the statutory duty of those in power to see that the interests of these classes ore not ignored and there in no need for reservation of a separate minister. The backward classes has been divided under this Constitution into two classes, the Scheduled Castes for whom reservation has been made and backward classes for whom no reservation has been made. If we turn to article 301, we will find that backward classes have been protected under that article, where it has been made the duty of the President to see that the conditions of the backward classes including the Scheduled Castes are bettered and to have an investigation made into the conditions of these classes by a Commission and then after the Commission has reported, action has again to be taken so that they may be brought up to the normal level. In regard to the tribal people, there is a specific provision in article 300 which says-
If you just see article 299, you like be pleased to see that special officers are to be appointed both by the President himself and by each State to study how these safeguards work, how these provision work. Therefore, it is the bounded duty of the President and the Union Legislature to whom the report of the Commission so to be presented to see that the condition of the backward classes is improved. I do not see why there should be overlapping of functions by different functionaries and why there should be reservation for them in the Ministries. So far as the report of the Ministers Advisory Committee is concerned, they have not recommended that for the backward classes and the Depressed Classes there should be a separate Minister. In regard to welfare there is no reason why Scheduled Castes should be differentiated or mentioned separately when there is equal responsibility on Government for both. My submission is that this distinction should be eliminated. As a matter of fact, in regard to article 301 there is no distinction. My point is that if the Scheduled classes or the backward classes require any special protection, they require special protection in the whole of India, not only in C. P., Orissa and Bihar. I have to submit, Sir, that the Constitution has already protected them. Untouchability has been made an offence. In the Fundamental Rights there are so many provision by virtue of which they have got equal access to all public places. In view of that, I am opposed to this kind of reservation. I am very much opposed to this provision because it stands for all times and may prove the thin end of the wedge for demanding such reservation in all the provinces. Moreover this provision is not only for the first ten years but for all times. This will be a blot on our Constitution and I therefore submit that this House should throw out this proviso.
The next point was made by Mr. Kamath and subsequently supported by Professor Shah in regard to the property of the Ministers. They said that the Ministers should be asked to disclose what they have at the time they are appointed as Ministers and also when they hand over the administration, that they should be made to disclose what they have amassed, what they have gathered during the time they were Ministers. This is an inquisition. I do not think that in regard to our Ministers we should resort to this kind of inquisition. We have already rejected such proposed provision for other dignitaries.
Shri A. V. Thakkar (Saurashtra): Mr. President, Sir, thought no notice has been given of an amendment by Mr. Jaipal Singh, he has spoken and perhaps he has been allowed by you Sir, to put it as an amendment. I do not know what is the actual state of things. However, since three members of this House have spoken upon it, I wish to express my opinion on the subject. Separate Ministers are recommended in the three provinces of Bihar, Orissa and C. P. to take care and to protect the interests of the tribals, scheduled castes and all other backward classes. It was on the recommendation of the Tribal Sub-Committee of the Minorities Committee that I as the Chairman along with the other members suggested that such a provision may be made in the Draft Constitution to take care of the backward people residing in these three provinces only. It was for this reason that these three provinces were considered at the time when we made recommendations, that they were backward in the matter of giving special treatment to these people or protecting them. Things have moved much since then. All these three provinces of Bihar, C.P. and Orissa have now very well organised departments for giving protection and do all kinds of welfare work for them. We did not include at that time the forward provinces like Bombay, Madras etc., because they were already moving in that matter for the last twenty or even thirty years and, therefore, they were not included. Somebody may say it is a stigma to these three provinces that they are being specially mentioned. However, I do not think that any addition should be made at this moment without any further consideration or without consulting the Bombay Ministry, which has been proposed in this amendment of Mr. Jaipal Singh. However, I have it, Sir, at that.
Shri H.V. Pataskar: Sir, so far as the consideration of this article 144 is concerned, I only object to the manner in which it has been worded and I would make the following suggestion, if that will be acceptable to those who are responsible for this draft: "The Governor's ministers shall be appointed by him and shall hold office during his pleasure." This is pleased by article 143 and in that article a provision has been made that "there shall be a Council of Minister's". Naturally, therefore, we must mention as to who is to appoint this Council of Ministers. I think the better form would have been merely to mention that "the Council of Ministers shall be appointed by the Governor." At the same time to make a further provision that " they shall hold office during his pleasure," is undesirable. My opinion is it is not necessary and is derogatory to the position which we are going to give to the Prime Minister of the State and the Council of Ministers. Probably this provision is a remnant of the old idea that the Ministers hold office during the king's pleasure. Things have changed since then and it is not necessary that we should incorporate the same language, namely, "they shall hold office during his pleasure". I admit that if the Governor is the appointing authority, naturally he should have the power in certain circumstances for which provision may be should have the power in certain circumstances for which provision may be made in this section that the Council of Ministers may be dissolved or some new ministers shall be appointed, but, Sir, when we are making a provision with regard to the appointment of a Council of Ministers in the year of grace, 1949. we need not say that "they shall hold office during the pleasure of the Governor." That "Governor" we have decided will be nominated by the President and i do not think it will be proper to say that the minister shall hold office during his pleasure. It may be asked, "What would happen if the ministers have to be changed"? The ministers should be changed only if they cease to command the confidence of majority of the members in the House and for that provision could be made in the Instrument of Instructions, but so far as article 144 reads now, I do not think it is proper that we should lay down that in the case of a Governor of the type which we have already decided upon the Council of Ministers shall be appointed by him and they shall hold office during his pleasure. This phraseology may have been taken out from some other constitutional books and as I said it is probably due to the fact that formerly as the powers of the ministers developed, they may have held office during the pleasure of the Crown, but now there is going to be no Crown and the wording of the article is not happy and proper and, therefore, I would appeal that this part of article 144 be taken out of the Constitution.
Shri Krishna Chandra Sharma: Sir, I do not think there is nay necessary for the provision regarding Scheduled class and tribal people in this article. In article 37 we have already provided for the promotion of the educational and economic interests of the weaker sections of the people and in particular of the Scheduled castes and Scheduled tribal, and again in article 301 the President is to appoint a Commission to look to the amelioration of the backward classes and the tribal people. In view of these two provision in the Draft Constitution, a special mention of a portfolio with regard to the tribal areas and Scheduled classes is unnecessary. The whole matter should n left to the State Ministry; they will consider what is necessary and what is wanted with regard to their amelioration and to incorporate details like this is going too far and I do not think this special provision will do anything not envisaged in the two articles. It does no good to a depressed class man to be told that because he is a depressed class man, therefore, such and such facilities are provided for him; it does create an inferiority complex in the man. It is not always the giving of facilities here and there that helps so much to raise a man up. It is more a matter of psychological make-up. If a man think "I am as good as A, B, C, or D", then he raises himself up; their moment you say "You are an inferior being and therefore, such and such a facility is granted to you and we raise you as against the interests of any other member", he goes down. He does not raise himself. Therefore, it is in my opinion ,in the interests of the Scheduled Classes, in the interests of Tribal Classes not to be told again and again that because they are inferior people, because they are weaker people, therefore, such and such facilities are provided for them. It does not do them any good to make a fetish of the thing. It looks such a nasty thing to be told that A has to be given a scholarship because he belongs to the Scheduled Class, that B, a better boy, a more deserving boy from economic considerations, from his talents and personal capacity, is to be denied those facilities because he belongs to the Brahmin Class or the Kshatriya Class or some other class which is different from the Scheduled Classes. How can a State say that a boy simply because he belongs to a certain community or certain class is to be provided with better facilities, though they have better conditions in life than a boy who belongs to another class, simply because he belongs to a different community? Such a thing would not be in the interests of the community as a whole. Therefore, looking into the two article I just cited and the general scheme in the Draft Constitution, I think that this special provision regarding portfolio for backward classes should be dropped.
Shri R. K. Sidhva (C.P. and Berar: General): Mr. President, Sir, I wish to draw the attention of the House to one point as regards clause (3) or article 144. The clause says: " A Minister who, for any period of six consecutive months, is not a member of the Legislature of the State, shall at the expiration of that period cease to be a Minister". I feel that this is merely a repetition or imitation of a clause which exists in the present Government of India Act of 1935. I do not think is necessary now, because, under the new Constitution, the number of members in the provincial legislatures will be ranging from 300 to 600 and I do not think we will be wanting in people to fill even special posts. I am opposed to an outsider who is not a member of the legislature, however highly qualified he may be, being called upon to hold the very responsible office of a Minister even for six months. From the experience we have gained, we find that in some cases where Ministers have been so appointed, eventually it has led to corruption. After the period of six months, somebody has to vacate a seat and it has so happened in one or two provinces that to make room for this Minister, that gentleman had to be provided with some job for which he was not qualified. Therefore, when we are going to have large Houses in which there will be members with vast experience, and experts in many respects, I feel that it is not proper, and it is not a very good principle to imitate what is existing in the Government of India Act, 1935, and say that if the Chief Minister feels that so and so who is not a member is required for expert advice, he should be taken as a Minister. Sometimes, the Chief Minister would like to favour somebody. In the name of the special qualifications that he may possess, he will be asked to become a Minister, and at the end of six months, he will have to be made a member of the legislature, because he cannot hold the office after six month. As I stated, Sir, some other member who will be asked to vacate will have to be offered something and this will lead to corrupt public life.
As regards the amendment of Mr. Jaipal Singh in which he wants to add Bombay also, I have to say that it is wrong in principle. A committee was appointed by the Advisory, Committee to this House, and they went into the whole question. They went to all the provinces. They recommended that only these provinces should have a Minister for tribal welfare and any other work. It is most improper at this juncture to come and say that Bombay also should be included. As far as Scheduled Castes are concerned, there are large numbers in Madras. When a Committee had gone into the whole question, it will be wrong in principle that a member should come up and throw before, the House a surprise amendment that another province should also be included. From that point of view, I oppose Mr. Jaipal Singh's amendment.
Shri Rohini Kumar Chaudhuri: Mr. President Sir, in most of my speeches in this House, I had made several appeals to the Honourable Dr. Ambedkar to oblige me by clarifying certain question which I had raised. My former attempts in this direction have failed; but I have faith in the example of King Bruce and I hope that this attempt of mine to get clarification from that quarter will receive proper attention.
Shri T. T. Krishnamachari: May we have the pleasure of hearing the honourable Member properly by requesting him to come to the rostrum and address the House?
Shri Rohini Kumar Chaudhuri: (after coming to he Rostrum) I am very much gratified to learn that at least there is one Member in this House who is anxious to hear what I have to say. I cannot be sufficiently grateful to him. All that I can do in return is to give my fullest attention to what that honourable Member will speak in this House.
I wanted some clarification. I want to know why particularly these provinces have been selected for reservation of Tribal members in the Cabinet. If there are important minorities in these provinces, necessarily, under the provisions of the Constitution, they will find a place in the Cabinet. If there are no important minorities in these provinces, why are these particular provinces selected for the purpose of giving representation to the backward classes and Scheduled Castes in the Cabinet?
Mr. President: There is no question of representation of Scheduled Castes and backward tribes in the Ministry. A Minister has to be appointed to look after them; not that he should belong to that Tribe or backward community.
Shri Rohini Kumar Chaudhuri: Sorry, I have not followed the point.
Mr. President: There is no question in this proviso of a man from the Tribal people or from the backward classes being appointed a Minister, or reservation of a seat in the Ministry for any of these classes. The only point is that a Minister should be appointed who will look after their interests.
Shri Rohini Kumar Chaudhuri: I am much obliged to you, Sir, If this clause then means that nay member, whether he belongs to the Scheduled Castes to Tribal classes or not, may be selected and appointed in charge off tribal welfare, that is to say, this clause only wants that a portfolio should be created for the purpose of looking after tribal affairs, I think this is not necessary. The general understanding of the tribal people is that by virtue of this proviso, the Tribal people or the Scheduled Castes will secure representation in the Cabinet. If it means that this proviso dies not necessarily mean that a member of the Tribal people or the Tribal people, then, I think this clause is a disappointment to them. If that is the interpretation that is to be put on this proviso, that any member Caste Hindu or even a Muslim or even a Christian can be placed in change of the portfolio of looking tribal welfare, and that this does not necessarily mean that a tribal person should be taken in, I would only say that that object will not go half its way.
My point is this. If there is an important minority, automatically that important minority of Scheduled Castes will find representative in the Cabinet. If you do not think that there is nay important minority or if you think that the Tribal people form an insignificant minority, then I do not understand why a particular portfolio should be created for the purpose. For instance, do you mean to say that the Minister in charge of Education, who does not belong to the tribal community, does not properly look after the education of the Tribal people, because he has not placed in charge of tribal welfare? He may not be placed particularly in charge of tribal welfare; nevertheless, he will look after the education of the Tribal people. Any Education Minister would do that. Any Minister in charge of Public Works will look after the proper communications in the tribal areas. What is the use of having a particular portfolio; you have to look after the education of the Tribal people; you have to look after the local-self-government of the Tribal people. What can one Minister do? All the Ministers in the Cabinet will be expected to look after the interests of the Tribal people in every respect. If you have a non-tribal or a Scheduled Casts member in charge of tribal welfare, what does it mean? Is it the intention that he will poke his nose in every thing and say, "you have not made sufficient arrangements for education in my area or you have not given sufficient roads for me or you have not properly looked after the health of the Tribal people?" Is that the object of creating a Minister? For that purpose this not necessary to create a Minister specially because generally every Minister to whatever community he may belong, has to look after the interests of the Tribals so far as his
Department is concerned.
Shri R. K. Sidhva: Just like the Labour Minister looks after the interests of labour, similarly a Tribal Minister can do.
Shri Rohini Kumar Chaudhuri: The interests of labour lie in a particular way but the interests of Tribal people are in every matter. Do you mean to say that this Tribal Minister will be there to look after the interest of tribal affairs only? It is considered the responsibility of all. Therefore I want clarification; as it is we have two Tribal Ministers in the Assam Cabinet now and there have been Tribal Minister since 1937 and there never was a Ministry without a Tribal Minister. This can very easily be left to the Chief Minister who will select his Ministers and he will certainly look after the interests of the Tribal people by selecting a Tribal Minister. Otherwise if you have a Minister only for tribal welfare, there will be frequent interruption in the work and there will be confusion and there will be rivalry and there will be unnecessary interference in the work of the other Ministers.
Shri Jaspat Roy Kapoor: Sir, may I have permission to move amendment No. 134 which stands in my name and with respect to which I said that I did not want to move/ I find it is a necessary amendment and I have consulted a large number of Members who feel that it should be moved.
Mr. President: The amendment is to this effect:-
Dr. P. S. Deshmukh; It should not be permitted to be moved at this late stage.
Mr. President: It seems there is some objection to this amendment being moved at this stage and so in that view I would not like to permit it.
Shri Jaspat Roy Kapoor: If any member has any technical objection it is another matter but this is an amendment which is acceptable to Dr. Ambedkar and most other Members whom I have consulted. There seems to be no harm in permission being given to this. If Dr. Deshmukh is opposed to this amendment, of course he will have his say on the merits of it, and he will have an opportunity to convince the House to reject it.
Mr. President: Would that not open up discussion again?
Dr. P. S. Deshmukh: Yes. If Dr. Ambedkar is prepared to accept it, there is another way out of it. The proviso could be separately put and if it is defeated, it will be deleted.
Mr. President: Yes, that is a way out.
The Honourable Dr. B. R. Ambedkar: I am not accepting the omission of the proviso but I am quite prepared to have the proviso transferred from this article to the Instrument of Instructions.
Pandit Thakur Das Bhargava: May I propose that this article be held over?
The Honourable Dr. B. R. Ambedkar: Why, after having debated so long?
Mr. President: The question is whether is should stand here or it should be transferred to the Instrument of Instructions, That seems to be the effect of the amendment which is sought to be proposed. if there is any considerable body of Members who are opposed to the amendment being moved at this stage, I would not allow it but if it is only the technical objection, then I should be inclined to give the House a change to consider this amendment also. i would like to know if there are many Members who are opposed to it.
Dr. P. S. Deshmukh: So far as the transposition is concerned there will be ample opportunity for that. At this stage it does not arise because this is an independent amendment proposed by Mr. Gupta to be embodied as a separate clause.
Mr. President: It this amendment of Dr. Ambedkar is prepared to say that the proviso is retained, what will be the position of Mr. Gupta's new article?
Dr. P. S. Deshmukh: If Dr. Ambedkar is prepared to say that the proviso may not be put now, the purpose of my friend's amendment would be served. Otherwise it will be a negation......
Mr. President: It is not a negation. He wants the thing to be transferred from the body of the Act to the Schedule and the Instrument of Instructions. So it is not a negation; it is only a question of transposing the thing from one place to the other.
Shri Jaspat Roy Kapoor: May I submit, Sir, as a matter of general policy I think while dealing with the Constitution we should not take our stand too much on technicalities?
Mr. President: I appreciate that.
Shri T. T. Krishnamachari: Any transposition of this proviso will deprive it of the legal status which it would otherwise possess because the Governor is not bound to carry out the instructions that are given under the Instrument of Instructions and nobody can call him into question in any Court or before any other authority for not following it. I believe the basis for this proviso is a certain measure of agreement in the sub-Committee concerned and if we are going to make a change at this stage it might upset the scheme of the Constitution as envisaged to this sub-Committee.
Mr. President: I think there is some objection to it and so I cannot allow it to be moved at this stage. Dr, Ambedkar may reply to the general debate.
Shri Jaspat Roy Kapoor: May I now that the final decision on this clause be held over till tomorrow?
Mr. President: After all this discussion I do not think that will improve matters. Even it if i held over till tomorrow, your amendment will not be moved tomorrow.
Shri Jaspat Roy Kapoor: In view of the long discussion we have had on the article it appears that a little further constitution is necessary. This long discussion suggests that there are different points of view and it is possible..........
Mr. President: That position will not be changed by tomorrow morning. Dr. Ambedkar.
The Honourable Dr. B. R. Ambedkar: Mr. President, in the course of this debate on the various amendments moved I have noticed that there are only four points which call for a reply. The first point raised in the debate is that instead of the provision that the Ministers shall hold office during pleasure it is desired that provision should be made that they shall hold office while they have the confidence of the majority of the House. Now, I have no doubt about it that it is the intention of this Constitution that the Ministry shall hold office during such time as it holds the confidence of the majority. It is on that principle that the Constitution will work. The reason why we have not so expressly stated it is because it has not been stated in that fashion or in those terms in any of the Constitution which lay down a parliamentary system of government. 'During pleasure' is always understood to men that the 'pleasure' shall not continue notwithstanding the fact that the Ministry has lost the confidence of the majority. The moment the Ministry has lost the confidence or the majority it is presumed that the President will exercise his 'pleasure' in dismissing the Ministry and therefore it is unnecessary to differ from what I may say the stereotyped phraseology which is used in all responsible governments. The amendment of my Friend Prof. Saksena, substituting the words "Lower House" I am afraid, cannot be accepted because under the provisions of the Constitution, it is open to the Prime Minister not only to select his Ministers from the Lower, but also from the Upper House. It is not the scheme that the Minister shall be taken only from the Lower House and not from the Upper House. Consequently the provision that the Minister shall be appointed for six months, although be is not elected must be so extensive as to cover both cases, and for that reason I am unable to accept his amendment.
The third amendment which has been considerable debated was moved by my Friend Mr. Kamath and Prof. Shah. With minor amendments, they are more or less of the same tenor. I that connection, what I would like to say is this, that the House will recall that amendment No. 1332 to article 62, which is a provision analogous to article 144, was moved by Prof. Shah and was debated at considerable length. On that occasion I expressed what views I held on the subject, and it seems to me, therefore, quite unnecessary to add anything to what i have said on that occasion.
Shri H. V. Kamath: My honourable Friend Dr. Ambedkar did not accept the amendment on that occasion because in his view it was not comprehensive enough. Now it is more comprehensive.
Mr. President: You have already said all that.
The Honourable Dr. B. R. Ambedkar: The fourth point is the one which has been raised by my Friend Mr. Jaipal Singh, and to some extent by Mr. Rohini Kumar Chaudhuri. The reason why this particular clause came to be introduced in the Draft Constitution is to be found in the recommendation of the sub-committee on tribal people appointed by Minorities Committee of the Constituent Assembly. In the report made by the Committee, it will be noticed that there is an Appendix to it which is called "Statutory Recommendation". The proviso which has been introduced in this article is the verbatim reproduction of the suggestion and the recommendation made by this particular committee. It is said, there, that in the Provinces of Bihar, Central Provinces & Berar and Orissa, there shall be a separate Minister for tribal welfare, provided the Minister may hold charge simultaneously of welfare work pertaining to Scheduled Castes and backward classes or any other work. Therefore, the Drafting Committee had no choice except to introduce this proviso because it was contained in that part of the Report of the Tribal Committee which was headed "Statutory Recommendation". I was the intention of this Committee that this provision should appear in the Constitution itself, that it should not be relegated to any other part of it. That is why this has come from the Drafting Committee and it merely follows the recommendation of the committee.
With regard the suggestion of my Friend Mr. Jaipal Sing, that Bombay should be included on account of the fact that as a result of the mergers that have taken place into Bombay Presidency, the number of Tribal people has increased I am sorry to say that at this stage, I cannot accept it because this is a matter on which it would be necessary to consult the Ministry of Bombay, and unfortunately my Friend The Honourable Mr. Kher who was present in the Constituent Assembly during the last few days is not here now, and I am therefore not able to accept this amendment.
Shri H. V. Kamath: With reference to my amendment, may I know if Dr. Ambedkar had resiled from the view that he expressed previously-if he has recanted?
Mr. President: I do not think that kind of cross-examination can be allowed. Now I shall take up the amendments.
There are two amendments moved by Mr. Tahir and Mr. Mohd. Ismail, Nos. 2174 and 2175 which relate to this article 144, clause (1).
If Dr. Ambedkar's amendments No. 2165 is carried, probably they will drop automatically. Therefore, I would put Dr. Ambedkar's amendment to vote.
Mr. President: The question is:
The amendment was adopted.
Mr. President: As I have said, the two amendments No. 2174 and No. 2175 do not arise.
Then there is No. 2185 by Mr. Tahir.
The question is:
The amendment was negatived.
Mr. President: Then there is Prof. Saksena's amendment No. 2187.
The question is:
The amendment was negatived.
Mr. President: There is then Dr. Ambedkar's amendment No. 2192.
The question is:
The amendment was adopted.
Mr. President: The question is:
The amendment was negatived.
Mr. President: Then we come to the amendment moved by Mr. Kamath to which another amendment was moved by Prof. Shah. I shall put Prof. Shah's amendment first.
Shri T. T. Krishnamachari: There is amendment No. 2198 moved by Dr. Ambedkar.
Mr. President: I will put that last. I will put Prof. Shah's amendment No. 185 to vote now.
The question is:
"That in amendment No. 177 of List III (Third Weed) of Amendment to Amendments, dated the 30th May, 1949, in the proposed new clause (7) of article 144-
(a) in the first para,-
(b) in the second para,-
The amendment was negatived.
Mr. President: The question is:
The amendment was negatived.
Mr. President: The question is :
The amendment was adopted.
Mr. President: The question is:
"That article 144, as amended, stand part of the Constitution.
The amendment was adopted.
Article 144, as amended, was added to the Constitution.
* New Article 144-A
Mr. President: notice of an amendment has been received from Shri B. M. Gupta that a new article 144-A be put after article 144. It reads:
I think this is already included in the article accepted. Therefore this cannot be moved.
* Article 145
Mr. P. K. Sen: (Bihar: General): I do not wish to move the amendment No. 2205 but I would like to make a few observation.
Mr. President: When we come to the discussion of the article, you can do that.
(Amendment No. 2204 and 2206 were not moved.)
(Amendment No. 136 and 178 of Lists III and IV were not moved.)
Mr. Naziruddin Ahmad (West Bengal: Muslim): Sir, I move:
I want to enable the Advocate- General to have the right of audience in all Courts in the State for which he is the Advocate-General, without any special authority, and also when he appears for the State in other States, and also in the Federal Court when he appears in that capacity. My reason is based on the analogy of article 63, clause (3). Article 63 of the Draft Constitution relates to a similar provision the Attorney-General of India, right of audience in all courts in India. Clause (3) of that article runs thus:
While there is this provision for the Attorney-General, empowering him to appear in all Courts in the territory of India by virtue of his office, there is no corresponding provision empowering or authorising the Advocate-General to appear in Courts of the State to which he is attached and also in courts in other States where the State to which he is attached is a party, and also in the Supreme Court where the State is a party. I submit that it is a necessary provision: otherwise there would be practical difficulties. If we do not insert here a clause similar to clause (3) of article 63, it would be necessary in every case for the State to authorise the Advocate-General in every case where he is required to appear. Without this statutory provision he will have to obtain authority for appearance in every case, and there may be difficulties about enrollment. A lawyer from Bihar may be appointed the Advocate-General of West Bengal. While that lawyer is enrolled in the High Court at Patna, he may not be enrolled in the High Court at Calcutta. There will be this difficulty that although he is the Advocate-General of West Bengal, he will not be entitled to appear in any Court subordinate to the Calcutta High Court because of the enrollment difficulties and it may be that the State for which he is the Advocate-General is a party in a suit or proceeding in another State; there also he should be empowered to appear on behalf of the State to which he belongs without any written authority and also without the difficulty of enrollment.
We have similar provision in the Code of Criminal Procedure as to the Public Prosecutor. In section 493 or that Code, the Public Prosecutor is authorised automatically to appear without any authority in all cases in the district for which he is the Public Prosecutor. There are similar provisions with regard to the Government Pleader or the Crown Lawyer appearing for the Crown in civil cases.
So, I submit that this is a necessary Provision, otherwise which I have suggested, and other ancillary difficulties will arise. It is similar to other provisions with regard to all lawyers appearing for the State and there is no reason why this should not be accepted in principle in the case of the Advocate-General. If the principle is accepted that the Advocate-General should have a right of audience in all courts where the State is a party without any authority, I think a provision should be made here. If the Drafting is open to any objection, it may be considered by the Drafting Committee and a suitable draft be adopted.
This is the Principle on which this amendment is based.
(Amendment Nos. 179, 2208 and 2209 were not moved.)
Mr. Naziruddin Ahmad: Sir, I would like to move my amendment with a slight verbal alteration to which, I understand, Dr. Ambedkar has no objection, Sir, I beg to move:
Sir, clause (3) as it at present stands, reads as follows:
The Honourable Dr. B. R. Ambedkar: Are you not moving amendment No.2211?
Mr. President: He has embodied it in his amendment. It is exactly the same as your amendment which need, not therefore, be moved now.
Shri Jaspat Roy Kapoor: Mr. President, Sir, I have only just one more argument to urge in support of amendment No. 2207 which has been moved by my honourable Friend Mr. Naziruddin Ahmad. According to clause (1) of article 145 the Governor of each State shall appoint a person who is qualified to appointed a judge of a High Court, to be Advocate-General for the State. Now, Sir, one who is an eminent jurist is also eligible for appointment as High Court Judge and as such he is eligible for appointment as Advocate-General also. It is quite likely that an eminent jurist may not be a duly enrolled advocate of a High Court. If an eminent jurist is appointed an Advocate-General and if by chance he is not a duly enrolled member of a High Court or even in a subordinate court. In view of this, Sir, I think it is necessary that the amendment moved by Mr. Naziruddin Ahmad, or at least the substance of it, should be accepted. It may be said that it will be a rare contingency that a jurist not enrolled in any High Court will be appointed as Advocate-General. I admit that it may be so. But then when we are so very particular in laying down every little detail in this Constitution, I do not see any reason why we should let this lacuna remain.
Shri K. M. Munshi (Bombay: General): Mr. President, Sir, I rise to oppose the amendment (No. 2207) moved by my honourable Friend Mr. Naziruddin Ahmad. The amendment appears to have been based on a confusion between the functions of the Advocate-General of India and the Advocate-General of a Province. The Advocate-General of India-whom we have styled "Advocate-General " in this Constitution-is really an Advocate-General functioning throughout of India. He has, therefore, to go to all courts in order to act for the Government of India. For instance, whenever a question of the interpretation of the Constitution is taken up before a court, under the present Civil Procedure Code, notice is given to the Government of India to appear in that matter. The Advocate-General of India, therefore, has to appear in all the provincial Courts in order to support the interests of the Centre.
As regards the Advocate-General of a province, his position is entirely different. In his own province, naturally being the Advocate-General, he has audience before all the courts in the province. But as regards the other provinces, he has no locus standi as Advocate-General. His locus standi would only be that of an advocate of one High Court and he will, therefore, be governed by the provisions of the Legal Practitioners' Act. He has no position as Advocate-General in the other provinces and, therefore, there is no reason why he should be put on the same footing as the Advocate-General of India. Ordinarily, the Advocate-General of one province goes to another provincial High Court not for purposes of any litigation connected with the State. He only goes there for his private practice and therefore to that extent he can appear only under conditions which are imposed by the High Court in which he is going to appear.
There is reciprocity of appearance between one High Court and another ordinarily. But there have been occasions when one High court for various reasons-valid or invalid. The regulation of appearance of an advocate of another High Court in one particular High Court depends upon the rules and policy of that High Court. Therefore, it is much better that the Advocate-General's appearance in another High Court is regulated by the Legal Practitioner's Act applicable to all the members of the profession. I, therefore, oppose this amendment.
Mr. Naziruddin Ahmad: I do not advocate private practice in the case of the Advocate-General. It is only when he appears for the State in another High Court that the question arises. May I draw attention to the fact that I do not want the Advocate-General to indulge in private practice? It is only when he appears for the State in another High Court that the question arise. There the question of private practice does not arise. What provision has been made for the Advocate-General appearing for his State in the Supreme Court?
Shri K. M. Munshi: No one has found any difficulty in one Advocate-General appearing in another province. There is no reason why there should be a special provision.
Prof. Shibban Lal Saksena: Sir, I wish to draw attention to one fact. We have taken the British practice in these matter as the model in framing our Constitution. In Britain the Advocate-General has the status of a Minister. Dr. Sen had given notice of an amendment to give our Advocate-General the same status, but has not moved it. I would draw attention to the fact that it will be much better if we followed the practice in England. I request Dr. Ambedkar to tell us why he does not follow that model in this respect.
Dr. P. K. Sen: Sir, I quite appreciate that this debate should not be prolonged at least by me, and I am going to finish my observations as quickly as possible.
The point I wish to place before this House is not in support of my amendment, because I am not moving it, but to express my ideas about the fundamental principles which should govern the office of the Advocate-General. The Advocate-General at the present moment is no doubt often a lawyer of eminence in the province, but his sole duty and function seems to be to advise the Government on occasions in regard to certain points that arise in cases either between the Government and a private party or between parties which in some manner or other are connected with Government. For instance, there is a trust property in the hands of the Government and the trust is being disputed by somebody or other. In various matters like this the Advocate-General's opinion is sought. His office is really a bureau or legal advice. So is also the office of the Legal Remembrancer or the Judicial Secretary. But in neither case is the Government obliged to take opinion or adopt it and, in many cases, it is treated with scant courtesy. Supposing that the Minister in charge of Labour or Revenue or Local Self-Government wants to initiate a certain measure. He no doubt consults the Advocate-General. But he can ride rough-shod over the pinion of the Advocate-General and take the opinion of any other inferior, irresponsible advocate and proceed upon it. This seems to me to be against all principles whatsoever. The Advocate-General's position should be, as I conceive it, much higher. He ought to be of the status of a Minister. The Law Minister can then influence to a very large extent, the spirit of the legislative and administrative structure of the Government. This has to a very large Crown under the Law Minister, the Advocate-General can hardly do anything, even if he were a man of great eminence to influence legislation. His powers are practically nil. As I conceive it, the position of the Advocate-General should be much higher. Unless it is equivalent to that of a Minister, it is impossible for him to discharge his duties properly. In other words, it comes to this that in my humble opinion, the Advocate-General should be charged with the portfolio of law. The question may arise about attendance in courts. Why should he then go about appearing in case? At the present moment the Advocate-General think that it is one of the Privileges of that office to earn fees by appearing in cases on behalf of the Government in the mufassal or even in the High Court. Well, that is a thing which will recede into the background of he is charged with the duties of the office of law Minister. The most preeminent of those duties shall be to establish and maintain a high level in the legislative and executive structure of the Government. He cannot then to and appear for fees in all cases; but in matters affecting high policy he would certainly go as Advocate-General to give an exposition on a high level, before the courts, of the principles and policies that actuated his Government. Now-a-days we are passing through critical times. There are various fissiparous tendencies at work and all manner of discriminatory legislation is being put through which bears the marks of very unwise and unskillful handling. What I submit is that the Advocate-General is one of those few persons who if installed in the office of the Law Minister could take a large share in regulating, shaping and moulding the polish of legislation in all its aspects. The rule of law is, in my humble judgment, the rule that should save the Government from all manner of disruptive tendencies. With the Law Minister, being in charge if these high functions it would be possible for the Government to proceed in the right manner and in the right direction. These are the observations which I humbly place before the House to consider in connection with article 145.
The Honourable Dr. B. R. Ambedkar: O do not think I need add anything to the debate that has taken place. All that I want to say is this: I am prepared to accept the amendment of Mr. Naziruddin Ahmad No. 2210.
Mr. President: I shall now put amendment No. 2207 of Mr. Naziruddin Ahmad to vote.
The question is:
Shri T. T. Krishnamachari: What is the number of the amendment, Sir?
Mr. President: I shall put the amendment to vote again.
The question is:
The amendment was negatived.
Mr. President: Then I put Amendment No. 2210 which includes within itself 2211 also.
The question is:
The amendment was adopted.
Mr. President: The question is:
The motion was adopted.
Article 145, as amended; was added to the Constitution.
Mr. President: We shall now adjourn till tomorrow morning, 8 O' clock.
The Constitution Assembly then adjourned till Eight of the Clock on Thursday the 2nd June 1949.