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Constituent Assembly Of India -Volume IX

Dated: September 01, 1949

The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Nine of the Clock. Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair.


Mr. President: Before starting the proceedings for the consideration of the remaining entries, I desire to make one short statement. Notice of a motion was given by Mr. Kamath to the effect that steps should be taken by the Secretariat of the Assembly to get the Vindhya Pradesh representative into the Assembly. It is a fact-and a regrettable fact-that Vindhya Pradesh has not yet been represented in this Assembly. But all steps that could be taken by our Secretariat have been taken and as a matter of fact. I understand the States Ministry also have been taking interest in the Matter. So it is unnecessary to have a motion of that sort and it was decided by the Steering Committee that in view of the fact that steps have already been taken, Mr. Kamath may be asked not to move the motion. So I think Mr. Kamath will agree that no further steps are necessary in this matter.

Shri H. V. Kamath: (C.P. & Berar : General) I had given notice also of a motion requesting you to take steps regarding the representation of Hyderabad.

Mr. President: That stands on a separate footing. I do not know what the position of the Hyderabad State in regard to the Union is at the present moment.

Shri R. K. Sidhva: (C.P. & Berar: General) : What are the reasons for the representative of Vindhya Pradesh not being returned to the Assembly ?

Mr. President: I am not sure, but I think the reason is that there is no proper electorate which could elect the representatives as there is no legislature and the Rajpramukh has been asked to create a college of electors which has not been done yet. That is the reason for their non-representation at the present moment, but I think they will now take steps to do that.

Seth Govind Das :- (C.P. & Berar: General) : May I take it that the constituencies have now been fixed and the Rajpramukh informed of it ?

Mr. President: We cannot fix the electorate. It is left to the Rajpramukh to fix the electorate. We have asked them to send representatives and they have promised also that they would do it now.

Shri H. V. Kamath: Will you kindly permit me to say just one word? I had asked not the Secretariat, but I had requested you, Sir, is President.

Mr. President: But whatever was done by the Secretariat wag done under my orders.

Shri H. V. Kamath: But I request only you.

Mr. President: But what action can I take personally ? The thing has to go through the Secretariat.Shri H. V. Kamath: My point was that the notice of my motion was to the President and not to the Secretariat.

Mr. President: The action has been taken under my instructions by the Secretariat.

We shall now take up entry 74. There are certain amendments to this. Dr. Ambedkar may move his first.

List I : Entry 74

The Honourable Dr. B. R Ambedkar: (Bombay: General) : Sir, I move:

'That for entry 74 of List I, the following entry be substituted :-

'74. The regulation and development of inter-State rivers and river-valleys to the extent to which such Regulation or development under the control of the Union is declared by Parliament by law to be expedient in the public interest."

Shri Brajeshwar Prasad: (Bihar: General) : Mr. President, may I with your permission, say one word before I move my amendment" Somehow, due to my fault perhaps, one word is missing from this amendment. I want the inclusion of the word "regulation". Sir, I beg to move :

That in amendment 3562 of the List of Amendments, for the proposed entry 74 of List I, the following be substituted :-

"74. The regulation and development of inter-State rivers and inter-State waterways, including flood control, irrigation navigation and hydroelectric power and for other purposes, where such development under the control of the Union is declared

by Parliament by law to be necessary or expedient in the public interest."

Sir, I have only one comment to offer, that this amendment of mine is more comprehensive than the amendment moved by Dr. Ambedkar.

Mr. President: There is an amendment of which notice has been given by Shri Kala Venkata Rao that this entry should be dropped altogether. It is only a motion for deletion and he need not move it as an amendment.

The Honourable Dr. B. R. Ambedkar : Sir, all that I would like to say is that whatever Shri Brajeshwar Prasad wants is included in my amendment and it is therefore unnecessary to accept it.

Shri Brajeshwar Prasad: I beg leave to withdraw my amendment. The amendment was, by leave of the Assembly, withdrawn.

Mr. President: I put the amendment in the form in which it has been moved by Dr. Ambedkar.

The question is

"That for entry 74 of List I, the following entry be substituted

'74. The regulation and development of inter-State rivers and river-valleys to the extent to which such regulation or development under the control of the Union is declared by Parliament by law to be expedient in the public interest'."

The amendment was adopted.

Entry 74, as amended, was added to the Union List,Entry 75.

Mr. President:

there are two additional entries 74-A and 74-B. I think, were covered by amendments which were moved yesterday and which were rejected. So they do not arise now. Then I come to entry 75.

Mr. Naziruddin Ahmad: (West Bengal: Muslim) : Mr. President, Sir, I beg to move:

"That in entry 75 of List I, the Words 'beyond territorial waters' be deleted."

Item No. 75 runs thus, "fishing and fisheries beyond territorial waters" Sometime ago this House accepted an article-I cannot. put my finger immediately on it-but it is a well-known article,. that the Centre will have fishing or some other right on the seas. A question was raised in the House at that time as to whether the Centre should have any right over the territorial waters. The implication 'of that article was that the Centre would have fishing and other rights in all seas, whether high seas or in territorial waters.

Mr. President: It is article 271-A.

Mr. Naziruddin Ahmad: Then, entry 75 as it stands now will curtail the right of the Centre purported to be given to it by article 271-A. I feel that entry 75 has not been revised to bring it into conformity with article 271-A. I wanted only to have a clarification, and if it is necessary to bring it up-to-date I think the amendment should be accepted.

The Honourable Dr. B. R Ambedkar: No, Sir, I cannot accept the amendment.

Mr. President: Then, we will have to put the amendment to vote. The question is :

"That in entry 75 of List-I, the words 'beyond territorial waters' be deleted."

The amendment was negatived.

Mr. President: Then I put the entry as moved in the original form. The question is:

"That the proposed entry No. 75 stand part of List I."

The motion was adopted.

Entry No. 75, as amended, was added to the Union List.

Entry 76

The Honourable Dr. B. R. Ambedkar: Sir, I move.

That for entry 76 of List I, the following entry be substituted.

'76. Manufacture, supply and distribution of salt by Union agencies; regulation and control of manufacture, supply and distribution of salt by other agencies'."

Mr. President: There is no amendment to this; so I put this entry to vote. The question is:

"That for entry 76 of List I, the following be substituted

'76. Manufacture, supply and distribution of salt by Union agencies; regulation and control of manufacture, supply and distribution of salt by other agencies."

The amendment was adopted.

Entry 76, as amended, was added to the Union List.

Shri Mahavir Tyagi : (United Provinces: General) : Sir, when you put the question to vote, Dr.Ambedkar says "Ayes" beyond the mike; with the,result that the Ayes have an undue volume of their voice.Mr. President: Unfortunately Dr. Ambedkar is unwell today; that is why he is having the mike before him. But I hope the mike will not be used for voting purposes.

Entry 77

Shri Brajeshwar Prasad: Sir, entry 77 vests in the Union Government, the power to deal with grave emergencies in any part of the territory of. India. These powers are not restricted to the provisions made in the Constitution. My interpretation is that over and above the powers granted to the Centre by the articles of this Constitution,. this entry vests the Union Legislature with additional powers to deal with grave emergencies affecting any part of the country. If we delete this entry it will mean that the powers of the Union Government will be restricted by the articles of the Constitution. This is a mighty power which is rightly being conferred. Therefore I strongly oppose the motion to delete this entry from List I.

Mr. President: The question is

"That entry 77 of List I be omitted."

The motion was adopted.

Entry 77 was deleted from List I

Entry 78

Entry 78 was added to the Union List

Entry 79

The Honourable Dr. B. R. Ambedkar: Sir, with regard to entry 79, I have to make one observation. Some Members of the House are under the impression that if entry 79 remained in List I it would be opened also to the Centre to appropriate the proceeds of any taxes that may be levied on the Stock Exchanges and futures market and taxes other than stamp duties on transactions therein. I would like to make it clear that in putting Stock Exchanges and futures market in List I, there is no intention on the part of the Drafting Committee that the Centre should have any right to appropriate the proceed of any taxes that might be levied under this entry. Consequently, the Drafting Committee proposes, in order to remove all sorts of doubt,,,, to amend article 250 which requires the proceeds of certain taxes to be distributed among the provinces. What we propose to do is, as a consequential provision, to add to article 250 which contains clauses (a) to (d) enumerating the taxes to be distributed, proceeds of any taxes on Stock Exchanges and futures market', so that they too will be subject to distribution among the provinces. That would, I am sure, remove all doubts that certain Members have that this entry if it remains in List I would give power to the Centre to appropriate the taxes. That is not the intention. The entry there is purely legislative. It would have no financial implications at all.

Pandit Hirday Nath Kunzru: (United Provinces: General): May I ask Dr. Ambedkar whether he intends also to bring in a modification of article 277 in this connection ?

The Honourable Dr.B.R.Ambedkar: Well, I shall consider any consequential provision necessary to bring in to make the matter consistent.

Mr. President: Sardar Hukam Singh and Shri Brajeshwar Prasad are not moving their amendments.

Mr. Naziruddin Ahmad: Sir, the original item 79 deals with stock exchanges and futures market and taxes other than stamp duties on transactions therein. Stamp duties are leviable by the Province on sales within their jurisdiction. The shares and stocks and securities are also liable to the payment of stamp duties on their sale price. As all stamp duties on sales are realised by the Provinces, any sales effected in the Stock Exchanges should also be levied directly by the States. The result of removing that condition from this entry will be to allow the Centre to levy this stamp duty although it would be credited to a certain fund. This will also enable the Central Government to distribute it to any State they think fit and not to the State in which the sale was effected and the stamp duty levied. I submit that the stamp duties should be exempted from the purview of the Centre.

Mr. President: Is not that the effect of the provision as it is ?

Mr. Naziruddin Ahmad: I believe there was an amendment moved.

Mr. President: That amendment was not moved by Sardar Hukam Singh.

Mr. Naziruddin Ahmad: In that case I am sorry. I need not have made, these observations. But, Sir, things are proceeding so fast that I was 'not able to fully follow the debate.. I regret my mistake.

Mr. President: Now I will put entry 79 to vote. Mr. Naziruddin Ahmed made certain remarks under a misapprehension. He has withdrawn them. The question is :

"That entry 79 be added to List I."

The motion was adopted.

Entry 79 was added to the Union List.

Entry 80

Mr. President: There are no amendments to entry 80.

Entry 80 was added to the Union List.

Entry 81

Shri Brajeshwar Prasad: Mr. President, Sir, I beg to move

That for amendment No. 3572 of the List of amendments, the following be substituted:-

"That for entry 81 of List I. the following be substituted :-

"81. Duties in respect of succession to property including agricultural land."

The amendment that I have moved is with the view that there should be no financial autonomy in the hands of the provinces. While discussing the financial. provisions of the Constitution, I had already referred to the fact that I was only in favour of a limited character of provincial autonomy being conferred upon the provinces. I think that most of us seem to ignore the realities of our political life. Provincial autonomy has led to inequality between man and man, between one province and another. I think, Sir, that an equitable. system of financial distribution can, only be achieved if the Centre is vested with all powers in this matter. It is not only dangerous but it is almost tragic that we should go on extending the powers of the provinces. I was under the impression that a proper lesson would be drawn from the experiences of the past. The effect of partition and uprooting of millions of homes compels us to draw a proper conclusion. We must make the Centre strong. ' We are centuries behind the advanced nations of the world. Various forces are menacing us from many sides and in order to meet those forces, it is necessary to make an all-out effort. Provincial autonomy comes as a stumbling block and we must uproot it. We have got centuries of development to accomplish. Centuries will have to be compressed into moments. It is only under the leadership of one government in India that we can do this. Sir, powers must be vested in the hands of those who desire to serve the people. Powers must be vested in the hands of those who have got the ability to serve. If it is the desire of the provincial governments to serve the people, they must seek the co-operation of-the Central Government in this matter. If they want to help the people in the provinces, they must welcome the co-operation of the Centre. If they oppose this, then it gives rise to suspicion. It raises some doubt in our minds. Sir, there is that over Centralisation will lead to dominance. I do not understand, what people mean by dominance. Is it the contention that the, Government of India will exploit the people living in the provinces ? The point has been made that it is not possible for the Government of India to govern the whole country from Delhi, so far away and so remote from the other parts of the country. I am definitely of opinion that the developments of science, the developments in the means of communication have annihilated distance, time and space. After all, India is not so big as it was before. Partition has made the country smaller. The development of science has made even the world very small. The world has become a small place now, and I feel that the whole world can be governed by one Government. We all owe allegiance to the ideal of a world State. So, I do not see how the Government at the Centre cannot function efficiently. I am not opposed to delegation of powers. I am only opposed to the distribution of powers, to the division of powers to the extent........

Shri R. K. Sidhva : How is all this relevant to the entry under consideration, Sir ?

Mr. President: We have heard these arguments before from the honourable Member. He has used the same arguments all along the line, in connection with so many amendments. Therefore it is not necessary to repeat the same arguments.

Dr. P. S. Deshmukh: (C.P. & Berar: General): We can take his arguments for granted.

Mr.President: We cannot go back on all the decisions taken so far, by altering one entry in this List.

Shri Brajeshwar Prasad: I do not want to reopen the provisions on which agreement has been reached in the House. I am only asking that this particular entry should be amended on the lines suggested by me. If it is your ruling that I should not continue my speech, I am quite willing to abide. by your decision, Sir.

(Prof. Shibban Lal Saksena rose to speak.)

Mr. President: I hope it is not just for contradicting what Mr. Brajeshwar Prasad said.

Prof. Shibban La] Saksena: (United Provinces: General) : No, Sir, I am supporting him. Mr. Brajeshwar Prasad has given his reasons. I personally feel that there is some substance in his amendment from another point of view. I want that there should be uniformity of taxation in this matter also. Let the duties be collected by the Centre and distributed to the provinces, so thatthe duties can be on a uniform scale. The duties should not vary from province to province. I am therefore glad that the amendment of Mr. Brajeshwar Prasad seeks to vest this power in the Centre. The Centre can make the laws and collect the duties and then whatever is obtained may be handed over to the provinces.

The Honourable Dr. B. R. Ambedkar: I may mention, Sir, that this matter was considered at the conference with the Provincial Premiers. They were of opinion that, although the principle might be sound, they were at the present moment not prepared to make this radical change.

Mr. President: I will put amendment No. 49 to the vote.

Mr. Brajeshwar Prasad: I beg leave to withdraw my amendment.

The amendment was, by leave of the Assembly, withdrawn.

Mr. President: The, question is:

"That entry 84 stand part of List I."

The motion was adopted.

Entry 81 was added to the Union List.

Entry 82

Mr. President: There is a similar amendment, by Mr. Brajeshwar Prasad.

Shri Brajeshwar Prasad: I will not deliver any speech. I would only move the amendment.

Shri R. K. Sidhva : There is no difference between this amendment and the previous amendment except that it reads "Estate duty in respect of' instead or of "Duties in respect of succession to".

Shri Brajeshwar Prasad: Sir, I move:

"That for amendment No. 3574 of the List of Amendments, the following be substituted:-

That for entry 82 of List I, the following be substituted:-

"82. Estate Duty in respect of property including agriculture land.".

If you will permit, Sir, I would advance different arguments as to why provincial autonomy should be modified.If you do not want me, to proceed, Sir. I will go back to my seat.

Mr. President: It is not necessary to discuss provincial autonomy any further I will put the amendment to the vote.

Shri Brajeshwar Prasad:I withdraw the amendment.

The amendment was, by leave of the Assembly,

Mr. President: The question is

"That entry 82 stand part of List T."

The motion was adopted.

Entry 82 was added to the Union List.

Entry 83

Mr. President: There are two amendments to this.

The Honourable Dr. B. R. Ambedkar: Sir, I move:

"That in entry 83 of List I, after the word 'railway' a comma and the word `sea' be inserted."

The intention is to complete the entry by the addition of the word "sea" which was inadvertently omitted.

(Amendment No. 51 was not moved.)

Mr. President : There are certain other amendments to this. No. 228 by Dr. Deshmukh.

Dr. P.S. Deshmukh : Mr. President, Sir, I do not propose to move item No. 228 but I beg to move item No. 230 which is the proper amendment to item 52.

"That with reference to amendment No. 52 of List I (Sixth Week) in entry 83 of List I, for the word `railway' the words `land, sea' be substituted."

I believe that yesterday I was not properly understood when I said passengers and goods traffic on the roads, especially those between more than one. State, should be within the cognizance and jurisdiction of the Union. I have no intention of taking away the right of the States so far their jurisdiction is confined to the territories under those States, but what will happen so far as traffic from one State to another is concerned and wherever more than one State comes into play? I have not been able to see any objection, if "sea and air" are to be included, why inasmuch as we are going to have national highways the word "land" also should not be included. I, therefore, move that the words "land, sea" may be added, unless Dr. Ambedkar has any special reason or there is any other ground on which this would be not proper.

Shri H.V. Kamath : My amendment No. 229 is a merely verbal amendment and I leave it to the Drafting Committee.

Shri R.K. Sidhva : Mr. President, Sir, my amendment No. 3576 on page 387 of Second Volume of printed amendments reads as under :

"That in entry 83 in List I, the following words be deleted:-

"Terminal Tax on goods or passengers carried by rail or air'."

Just now you called upon the Honourable Pandit Pant to move the amendment which he has sent in. But he is not in the House. That amendment of his is identical to mine. From this you can realize what great importance he attaches to this entry being deleted from here and put in the Provincial List. I have always said that Terminal Tax is a Provincial subject and that Terminal Tax is levied by the local bodies. We have passed the other day that the Terminal Tax should be collected by the Centre and the proceeds distributed to the provinces. I quite appreciate that. But despite that I say that if this is passed a consequential change can be made in that article. I strongly feel that the Local Bodies and they have been levying it throughout the century and it will be wrong for the Centre to take away this item. Pandit Pant feels very strongly about it, but unfortunately he is not present. I am sure he would have moved and the amendment would have been carried. I, therefore, request that the Drafting Committee will kindly consider about this entry and see that it is removed from here and taken to the Provincial List. It may be said that in view of the article that we have passed, it may not be possible to accept my amendment, but I will remind the House that Dr. Ambedkar had said: "If you pass anything here, a consequential change may be made in the article which we have already passed". Under these circumstances, I hope the Drafting Committee will have no objection.

The Honourable Dr. B.R. Ambedkar : Sir, I cannot accept Dr. Deshmukh's amendment because the inclusion of the word "land" would also permit the Centre to levy Terminal Tax on goods and passengers carried by "road". Under our scheme Terminal Taxes on goods and passengers carried by road will be a matter which will be exclusively within the jurisdiction of the different States. That is the principal objection why I cannot accept his amendment. You will remember, Sir, that he tried to move a similar amendment on another occasion which had been rejected by the House.

Now with regard to Mr. Sidhva, this matter again was debated last time and I said that although these taxes were leviable by the Centre, the proceeds of all of them would be distributable among the different Provinces. The Centre would not claim any interest. If the Provinces after getting the proceeds want to pass on any part of those proceeds to the local bodies they are free to do so. It is not possible in this Constitution to make a provision for any matter of taxation that may be available to a local authority. That is a matter inter se between the State and the local authority and therefore it is not possible now to alter this entry either by way of amending it or by way of transferring it to List No. II.

Shri R.K. Sidhva : Sir, I beg leave to withdraw my amendment.

The amendment was, by leave of the Assembly, withdrawn.

Dr. P.S. Deshmukh : I also withdraw my amendment.

The amendment was, by leave of the Assembly, withdrawn.

Mr. President : The question is :

"That in entry 83 of List I, after the word `railway' a comma and the word `sea' be inserted."

The amendment was adopted.

Entry No. 83, as amended, was added to the Union List.

Entry 84

Mr. President : Item 53 stands in the name of Mr. Brajeshwar Prasad. It is worth while to move that amendment?

Shri Brajeshwar Prasad : As you permit me, Sir, I would like to move this amendment without delivering any speech.

Mr. President : I take it that you have moved it.

Shri Brajeshwar Prasad : All right, Sir.

(Amendments Nos. 3577, 3578 and 3579 were not moved.)

Mr. President : The question is :-

"That entry 84 stand part of List I."

The motion was adopted.

Entry 84 was added to the Union List.

Entry 85

Entry No. 85 was added to the Union List.

Entry 86

(Amendment No. 54 was not moved)

The Honourable Dr. B.R. Ambedkar : Sir, I move :

"That in entry 86 of List I, the words `non-narcotic drugs' be deleted."

The proposed list put non-narcotic drugs in the Concurrent List.

Mr. President : There is one other amendment of which we have notice from the Honourable Shri K. Santhanam, but I take it that it is not moved.

Mr. Naziruddin Ahmad : Mr. President, Sir, the deletion of the words non-alcoholic drugs ……….

Mr. President : Non-narcotic drugs.

Mr. Naziruddin Ahmad : Non-narcotic drugs would entirely change the meaning of entry 86. The entry is to this effect : "Duties of excise on tobacco and other goods manufactured or produced in India except certain things including non-narcotic drugs."

Now, Sir, Dr. Ambedkar wants to delete the words `non-narcotic drugs'. The effect of this will be not as simple as it looks. Non-narcotic drugs were excepted from the central subject in the original article. If we delete these words, we delete these words from the exception. By this deletion of non-narcotic drugs from the exception, they will automatically be included within the body of the entry. By a simple deletion of these words, the effect would be that instead of this being a States subject, it will at once become a Central subject. I submit that these entries were accepted by the House after considerable deliberation. The removal of these words would rob the Provinces of a subject and unnecessarily burden the already overloaded duties of the Centre. I think this matter should be pointed out and though I know that my opposition will have o effect in this House, still I deem it necessary to voice my protest. If the Provinces are to be robbed one by one of their powers, political, financial and others, it would be far better for us to say here and now that Provincial Autonomy must go and there must be Unitary Government. I would rather welcome the attempt of Mr. Brajeshwar Prasad to scrap Provincial Autonomy at once. The effect of the present arrangement as we are changing from day to day is to kill Provincial Autonomy altogether. I can well understand that Provincial Autonomy should be abolished at once. This is a thing which I can understand. Rather than reducing the Provinces to a state of importance a state resembling the District Boards and Municipalities, I think it would be far better to abolish the provinces altogether, and …………

Shri R.K. Sidhva : It is a larger issue, Sir, to suggest that Provincial Autonomy should be abolished.

Mr. Naziruddin Ahmad : That is what we are doing. I merely say that instead of doing it bit by bit and taking away from the powers of the Provinces in slices indirectly, it would have been far better to do so directly and say that there shall be no Provincial Autonomy except to the extent the Centre please. That would have been better. This removal of the words `non-narcotic drugs is a dangerous chance as many other dangerous changes have been made.

The Honourable Dr. B.R. Ambedkar : It is quite true, Sir, that at present this entry is in the provincial list. But, there are two facts to be recognised. One is that no province has at any time so far levied any tax on these items. Therefore, it has not been exploited by the provinces for their financial purposes. Secondly, even when the matter becomes concurrent, and any legislation is made by the Centre, which has a revenue aspect, the revenue will be liable to be distributable under the provisions of clause (2) of article 253. Consequently, so far as finances are concerned, there is really no loss to the provinces at all. Then, it is necessary that we should have an All-India Drug Act operating throughout the area. That cannot happen unless non-narcotic drugs are put in the Concurrent List. That also saves the power of the Provinces to make such local legislation as they may like with regard to these drugs.

Mr. President : I put the amendment moved by Dr. Ambedkar. The question is :

"That in entry 86 of List I, the words `non-narcotic drugs' be deleted."

The amendment was adopted.

Mr. President : The question is :

"That entry 86, as amended, stand part of List I."

The motion was adopted.

Entry 86, as amended, was added to the Union List.

ntry 86-A Mr. President : There is an amendment by Mr. Kamath for adding entry 86-A.

Shri H.V. Kamath : Mr. President, Sir, I move :

"That with reference to amendment No. 55 of List I (Sixth Week), after entry 86 of List I, the following new entry be added :-

"86-A. Prescription and maintenance of standards for drugs, medicines and other pharmaceutical products."

It is a notorious fact that in this country, as perhaps I some other countries of the world, all sorts of cheap drugs and quack medicines are put for sale on the market without any effective control by Central or Provincial Governments. It is a very serious matter inasmuch as it imperils the health of the nation which is already at a somewhat low ebb. It has been held by many medical authorities in this country that if some effective control is not exercised by Government in this regard, it would be difficult to raise the standard of health of the people, when they are exposed to all sorts of dangerous quack remedies in the market. I do not find in Lists I, II or III any specific provision in this regard. There is entry 40 in List II which refers only to intoxicating liquors, and narcotic drugs. There is entry 20 in the Concurrent List. `Poisons and dangerous drugs'. I do not think that these two entries cover the subject-matter of my amendment. There is of course the omnibus entry in List II, No. 15, Public Health. We are talking so much about raising the standard of health of the nation and this is one of the important matters with which the State will have to deal. In the last Budget session, the Health Minister, in reply to one of the questions, said that the whole matter of drug standards was under the active consideration of Government.

Mr. President : Will you refer to entry No. 20 of List III as amended by amendment No. 129?

"20, Drugs and poisons, subject to the provisions in entry 62 of List I with respect to opium."

Shri H.V. Kamath : Perhaps, it provides to some extent, but my amendment is specifically with regard to the maintenance of standards which is not mentioned in the entry which you have just quoted. I would, therefore suggest, having regard to the vital question of the health of the nation and bearing in mind the reply given by the Health Minister in the last budget session that this whole matte of drugs and similar provisions regarding the prescription of standards were under the active consideration of Government, that the Centre and not the provinces must have exclusive legislative power in this regard, because it is such a vital matter. I move amendment 231 of List III (VI Week) and commend it to the House for acceptance.

Shri Mahavir Tyagi : Why you want to prescribe the medicine?

Shri H.V. Kamath : It is prescribing of standard.

Mr. Naziruddin Ahmad : Very ambiguous!

Shri H.V. Kamath : I do not know if the medical and scientific terminology used in my amendment has been misunderstood. This terminology will be found in any standard book on Pharmacology.

The Honourable Dr. B.R. Ambedkar : We have got the power. It is covered by entry 20 which we are going to put in the Concurrent List.

Mr. President : The question is :

"That with reference to amendment No. 55 of List I (Sixth Week), after entry 86 of List I, the following new entry be added:-

86-A, Prescription and maintenance of standards for drugs, medicines and other pharmaceutical products."

The amendment was negatived.

Entry 87

Mr. President : Entry No. 87. There is no amendment. Entry No. 87 was added to the Union List. ________ Entry 88

Mr. President : Entry 88.

Shri Brajeshwar Prasad : Sir, I move :

"That for amendment No. 3583 of the List of Amendments, the following be substituted :-

"That for entry 88 of List I the following substituted :-

"88. Taxes on the capital value of the assets, inclusive of agricultural land, of individuals and companies; taxes on the capital of companies." Dr. P.S Deshmukh : I beg to move:

"That is amendment No. 56 of List I (Sixth Week), in the proposed entry 88 of List I, for the word `inclusive' the word `exclusive' be substituted."

My amendment is an amendment to that of Mr. Brajeshwar Prasad. Actually it is negation of the proposed entry 88. Otherwise I am content with the entry as it stands.

Mr. President : I put Mr. Brajeshwar Prasad's amendment to vote.

Shri Brajeshwar Prasad : I beg leave to withdraw it, Sir.

The amendment was, by leave of the Assembly, withdrawn.

Mr. President : The question is :

"That Entry 88 stand part of List I."

The motion was adopted.

Entry 88 was added to the Union List.

Entry 88-A

Mr. President : I have notice from a large number of members for addition of an entry 88A. Shri Goenka.

Shri Ram Nath Goenka : (Madras : General) : Mr. President, I beg to move.

Shri Deshbandhu Gupta: (Delhi): I rise on a point of Order, Sir. The amendment, which stands in the name of Mr. Goenka offends against the Fundamental Right guaranteed in clause 13-A which refers to freedom of speech and expression and as such cannot be considered. In this connection I wish to refer to the Supreme Court Judgment of the United States which was given recently in the famous Louisiana case. The facts of the case are that a 2 per cent licensing tax was levied on the newspapers in that State. Nine publishers opposed that and questioned the validity of the tax on the ground ……….

The Honourable Dr. B.R. Ambedkar : I hope my friend is not going to read that 4 pages printed judgment of the Supreme Court of the United States. It has been circulated to everybody.

Shri Deshbandhu Gupta : It is wrong for my friend to presume that the whole judgment will be read. Of course, if it is necessary to read some extracts I will do so. I am only referring to the parts which are relevant to point raised by me. I wish to point out that exception was taken by those publishers on the ground that the tax violated the Federal Constitution in two particulars (1) that it abridges the freedom of the press in contravention of the due process clause contained in Section 1 of the Fourteenth Amendment (2) that it denies appellees the equal protection of the laws in contravention of the same amendment.

The Honourable Dr. B.R. Ambedkar: I am also rising on a point of order.

Mr. Naziruddin Ahmad : There could not be two points of order at the same time.

The Honourable Dr. B.R. Ambedkar : My point of order is an elementary one whether my friend who is a signatory to this amendment – his name is mentioned here after Shri Sitaram Jajoo – having already given notice of this amendment can he now say that this is not in order ?

Shri Deshbandhu Gupta : My friend has amended his own amendments hundred times.

The Honourable Dr. B.R. Ambedkar : If he was to propose an amendment to his amendment, that would be in order.

Shri Deshbandhu Gupta : I have every right to change my opinion just as my friend has done very often.

Mr. President : Even if he has signed the notice, I do not know whether he signed for 88A.

The Honourable Dr. B.R. Ambedkar : His name is Shri Deshbandhu Gupta!

Mr. President : Any way I do not think we could prevent him from speaking now.

Shri Deshbandhu Gupta : I am glad that you have held that I am perfectly in order in raising this point of order. I was pointing out that the ground for appeal was that it violated the Federal Constitution in, two respects, viz. freedom of press and expression. The Honourable Justice Sutherland of the Supreme Court accepted the point of appeal and held that the measure which was in question did offend against the liberty of the press granted by the U.S Constitution. They traced the history of this tax and the struggle that has been going on in England for over a century on this point. The important observation they made was:

"That conclusions there stated is that the object of the constitutional provision was to prevent previous restraints on publication, and the Court was careful not to limit the protection of the right to any particularly way of abridging it. Liberty of the Press within the meaning of the constitutional provision, it was broadly said, meant principally although not exclusively, immunity from previous restraints or (from) censorship." Justice Cooley said : "The evils to be prevented were not the censorship of the press merely but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens." In the light of this test the Supreme Court held : "The predominant purpose of the grant of immunity here invoked was to preserve an untrammelled press as a vital source of public information. The newspapers, magazines and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity; and since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgment of the publicity afforded by a free press cannot be regarded otherwise than with grave concern." And at the end, they say : "The tax here involved is bad not because it takes money from the pockets of the appellees. If that were all, a wholly different question would be presented. It is bad because, in the light of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guarantees. A free press stands as one of the grant interpreters between the government and the people. To allow it to be fettered is to fetter ourselves." Sir………

Shri S. Nagappa : (Madras : General) : Sir, on a point of order. Is the honourable Member raising a point of order or making a speech? He has already taken some fifteen minutes.

Mr. President : He has mentioned his point of order that he is now arguing the point.

Shri Deshbandhu Gupta : My point is this. In the light of this important judgment of the Supreme Court of U.S.A. the amendment which my Friend Shri Goenka seeks to move offends against the fundamental right guaranteed in article 13A and as such in ultra vires. I therefore suggest that this matter may be held over and referred back to the Drafting Committee to be examined in the light of the judgment of the Supreme Court of the U.S.A., and also in the light of the point of order that I have raised. I do not want to obstruct the proceedings of the House and only urge that this matter being an important matter, and concerns the fourth estate, it is a very vital question, and there matter, and concerns the fourth estate, it is a very vital question, and therefore, nothing would be lost if the Drafting Committee is asked to re-examine the whole question from this point of view. I hope the House will agree with me and that this matter will be held over.

Shri R.K. Sidhva : May I know whether a judgment of the Supreme Court of the U.S.A. is binding upon us ? What is the point of order raised please?

Mr. President : The point of order is that the amendment proposed offends against article 13 which we have already passed.

Pandit Thakur Das Bhargava (East Punjab : General) : Sir, the point of order which has been raised and in respect of which certain extracts have been read out to the House from the decision of the Supreme Court of the United States of America, is further strengthened by a reference to article 13 we have already passed. In article 13, we have already said :

"All citizens shall have the right to freedom of speech and expression."

and this right is only circumscribed by clause (2) of the same article, which says:

"Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation or any matter which offends against decency or morality or which undermines the security of or tends to overthrow, the State."

This provision is only a safeguard in the hands of the Government against the unrestricted use of the right of freedom of expression. Now, when a State seeks to tax the press, as such, it certainly seeks to tamper with the right of the freedom of speech. It is, of course, an accepted principle of law that what cannot be done directly by the law cannot be done indirectly by it. When we are incompetent to pass any law to restrict the freedom of speech unless it comes within clause (2) of article 13, it stands to reason that we cannot indirectly take away the right of freedom of speech.

Then again, Sir, if you will kindly refer to article 8, you will see that it lays down that :

"All laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency be void."

And further:

"The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void."

Sir, my contention is that any law which restricts the freedom of speech of an individual, or freedom of expression of the Press-because the freedom of the Press is only an extension of the principle of the freedom of speech of an individual-any law that abridges that right, is inconsistent with article 8, and is void. As it is, we by one provision in the Constitution guarantee the right of freedom of speech, and by another take away the same provision by another subterfuge. I do not want at this stage, to stress the point whether this is a tax on knowledge, whether it is opposed to the fundamental law as in America or England. But so far as our own Constitution is concerned, my contention is that this provision is opposed to the spirit and the letter of article 13. Therefore, this amendment is out of order.

Mr. President : I should like to hear the Members on the main question. But before I do that, I would like to know whether the Drafting Committee would re-consider this item. In that case I shall be saved the trouble of going into the question. In any case I shall not be able to give a decision just now; I have to take some time to consider it.

The Honourable Dr. B.R. Ambedkar : We should like to hear the various points of view as expressed in this House, and then if the House or you, Sir, find that it is not possible to come to any definite conclusion right now then the matter may be remitted to the Drafting Committee so that the Committee, in view of the various expressions of opinion, might find out some formula acceptable to the House. But I do not think, as it is, it is any use trying to recast it. We have got here very definite amendments. Once is by my friend here and there is another by my friend Mr. Jhunjhunwala – quite definite amendments.

Mr. President : There are really two point to be considered. One is whether the amendment which is proposed to be moved by Mr. Goenka is in order in view of the previous article which we have already passed. And the second is……..

The Honourable Dr. B.R. Ambedkar : Sir, if I may say so, this matter cannot be decided on the basis of whether something will be ultra vires or whether something will not be ultra vires. This House is not competent to decide that. That is a judicial matter. All that the House must decide is whether we want to give protection to the newspapers from the various entries which are included, either in List I, List II or List III; and if we want to give them any exemption from these entries then to what extent we should give this exemption. What the court will decide is a matter of which we cannot be sure about. We cannot give any assurance to any newspaperman here and now that we have made a case which is fool-proof and knave-proof. We cannot give that assurance. So we had better decide the particular question, whether we do want to give protection to newspapers from the operation of the various entries. That is the main question.

(Shri R.K. Sidhva, Pandit Thakur Das Bhargava, Shri Mahavir Tyagi and other Members began talking all together.)

Mr. President : One at a time please.

Shri R.K. Sidhva : If I have understood Mr. Gupta….

Mr. President : Are you going to argue the point?

Shri R.K. Sidhva : Yes, Sir.

Mr. President : Please wait. There are two points involved. One is the point of order which has been raised, whether the amendment which is sought to be moved by Mr. Goenka is in order or not, in view of the article which we have already passed. And the second point is whether on the merits, the amendment of Mr. Goenka should be accepted in its present form or in any other form.

Shri Alladi Krishnaswami Ayyar (Madras : General) : On the first point, I should like to say a few words.

Mr. President : I was just asking if there was any chance of deciding the question on its merit, then the question of point of order might be done away with, and I would not be required to go into the question. If I am required to go into that question. I shall in any case take a little time to consider it and I will not be able to give my decision right away just now. Therefore, I am asking if it is to be held over, whether the Drafting Committee might consider it and then let us know what the position is, and if they think that this must remain there, then in that case, I would have to give my decision, of my ruling.

Shri T.T. Krishnamachari (Madras : General) : Sir, it is for you to decide. If you remit anything to the Drafting Committee, the Committee has got to consider it. If that is your decision, then the Drafting Committee has nothing more to do, except to reconsider the matter and submit its report to you.

Mr. President : If that is so, I would rather suggest that in order to save time the Drafting Committee reconsider this matter and if they think………

Shri Alladi Krishnaswami Ayyar : In the view, at any rate, of some of the members of the Drafting Committee, there is no substance in this point of order. They are quite clear and they are able to convince you. If even then you feel any doubt, by all means refer it to the Drafting Committee. We will be prepared to reconsider the whole situation. I do think that what exactly are the points of view must be presented to the House and to you, Sir, because ultimately the duty falls on you to decide whether there is any substance in this point of order or not. All that the Drafting Committee or any individual Members can do is to assist you in arriving at a conclusion with regard to the point of order. It is not a matter of voting. Therefore, all that we can do is to assist you to come to a conclusion whether there is any substance in this point of order or not. So far as I am concerned, it may be that I may be open to conviction and if really you think also that there is some doubt over the matter, we will consider it when it is referred to the Drafting Committee; but so far as this point of order is concerned, I have very, very clear and definite views. If you will permit me to say a few words on this point of order at any stage you think fit, I can convince you. A point of order simply because it is raised by any Honourable Member, cannot at once be referred to the Drafting Committee. It is not as if there is substance in every point of order. But, this one is of very great and fundamental importance. Therefore, I would ask you to consider it and then rule on the question whether it is a matter worth or fit for consideration.

Shri Jagat Narain Lal (Bihar : General) : Sir, all the while, the point of order is being discussed. As I understood you to say was this : that if the matter is such as could, on merits, be considered by the Drafting Committee, the point of order may not arise and it may not be discussed. But I find that that matter has not received consideration. I suggest that the point of order may be held in abeyance and the views of the House on the merits of the question, if necessary, may be taken.

Mr. President : That is the difficulty. If it is not out of order, then in that case the views of the House will have to be taken, but if it is out of order, then………

Shri Alladi Krishnaswami Ayyar : The Drafting Committee considered the question as to whether it can be transferred to the Central Lit. My friend the honourable Dr. Ambedkar, President, will bear out that we came to the conclusion that we can support the transfer to the Central List. We have given our best consideration and we have came to the conclusion that having regard to the wide circulation of newspapers, having regard to the fact that newspapers are inter-provincial in their character, we can agree to the matter being put on the Central list. So far as that point is concerned, we have decided and clearly.

Mr. President : You should also consider the question whether it does not offend against article 13.

The Honourable Dr. B.R. Ambedkar : On that we have some views and if you are prepared to hear, I will submit them.

Shri Jagat Narain Lal : Before Dr. Ambedkar is called upon to submit his point of view, we should be allowed to support the point of order raised by Mr. Deshbandhu Gupta.

Shri R.K. Sidhva : Not necessarily the views in support! There may be solution also.

Mr. President : That is the whole point-whether we should have a full-dress debate on this question or whether one or two speeches should be allowed. Messrs. Deshbandhu Gupta and Bhargava have put their point of view before us. I would like to hear the other point of view.

Shri R.K. Sidhva : The point of order raised by Messrs. Deshbandhu Gupta and Bhargava is that this offends against article 13 and therefore is out of order. They have quoted 13(a) relating to freedom of speech and expression. Now the amendment says "taxes on newspapers". Surely, newspapers pay tax on income. It does not mean that because the expression "freedom and speech and expression" is there, they are not going to pay any taxes or anything of that kind. With due deference to my friends, there are taxes on newspapers. They have to pay income-tax on the profit they make. If there are any further taxes to be levied, surely this article does not offend article 13. If you go to that extent in interpreting freedom of speech and expression, there will be a chaos. It does not mean that we are going to tax the articles or editorials appearing in a newspaper. That is a very narrow conception of that interpretation. I do not know where that will lead us. If there is any exemption from any tax today on the proprietors of newspapers, I can understand if; but may I know whether newspaper proprietors pay taxes today or not? They do pay taxes. Therefore, I contend that the objection does not stand for one moment.

Shri Jagat Narain Lal : As representing the Press, some of us claim to be heard by this House. Sir, freedom of speech and expression are terms which we have imported from the English and American Constitutions and we are trying to forge a Constitution at present which shall be ahead of these Constitutions. If we are forging a constitution which instead of being ahead of these constitutions goes backward, I should say that we cannot be proud of such a constitution. I have heard Mr. Sidhva. His interpretation seems to be too narrow. Dr. Ambedkar shuddered at the idea of the whole judgment of the Supreme Court being read. I do not propose to read the entire judgment. I will confine myself only to a few passages. I would like him as an eminent jurist to go through them. It is not simply a judgment to be merely casually read but it embodies the public opinion both from England and American constitutions; and I should say that at this stage and in this century it is becoming for us, as an advanced country, to guarantee full freedom of speech and expression. I will read only a few passages :

"In 1712 in response to a message from Queen Anne (Hansard's Parliamentary History England Vol. 6. p. 1063) Parliament imposed a tax upon all newspapers and upon advertisements. Collect, Vol. I, pp 8-10. That the main purpose of these taxes was to suppress the publication of comments and criticisms objectionable to the Crown does not admit of doubt. Stewart, Lennox and the Taxes on knowledge, 15 Scottish Historical Review, 322-327. There followed more than a century of resistance to, and evasion of, the taxes, and of agitation for their repeal. In the article last referred to (p. 326), which was written in 1918, it was pointed out that these taxes constituted one of the factors that aroused the American Colonists to protest against taxation for the purposes of the home government; and that the Revolution really began when, in 1765, that government sent stamps for newspaper duties to the American colonists."

Then I will read the rest of the portion. It says :"It is idle to suppose that so many of the best men of England would for a century of time have waged, as they did, stubborn and often precarious warfare against these taxes if a mere matter of taxation had been involved."The aim of this struggle was not simply to relieve the Press of the burden of taxation but to establish and preserve the right of the English people to full information in respect of the doings or misdoings of their Government. If words so telling as this could be interpreted as an intention to evade taxation it is very unfortunate indeed.

I do not want to read more of this passage. What I want to say is this that if it is the intention to create unnecessary commotion in this country, it is very unnecessary and undesirable indeed. Therefore, Sir, I think that the point of order raised by Shri Deshbandhu Gupta is very timely.

Mr. Naziruddin Ahmad : Mr. President, Sir, this point of order, I submit, raises an important constitutional question. The point sought to be made is that under article 13 we have guaranteed freedom of opinion and freedom of expression to all people and also to newspapers. Under clause (2) of article 13, there are certain powers given to curtail this right.

The question really turns upon whether the imposition of a tax on newspapers is really an attempt to affect the freedom of opinion and freedom of expression of a newspaper. It may be argued that the tax does not affect the freedom of expression and freedom of opinion, but is merely a realisation of some taxes from the press. This was, as I find, the exact situation which arose before the United States Court and the opinion expressed by the United States Court in this respect, so far as it is relevant, consists of two or three sentences. There the question was raised that it was merely a tax and did not directly affect the expression of opinion and therefore, did not go against the constitutional guarantee. But the reply of the United States Supreme Court was to the effect that the tax would curtail the right of freedom of opinion and expression. I shall just read only two or three sentences from the judgment :

"The tax is a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the Constitutional guarantee."

Mr. President : Do you read that in favour of the view that it is ultra vires?

Mr. Naziruddin Ahmad : I submit that the judgment has pronounced against the validity of the tax.

Mr. President : If the motive is to curtail circulation.

Mr.Naziruddin Ahmad : The verdict of the Supreme Court was that it was really in the guise of a tax to control and stop circulation and expression of opinion.

Mr. President : But supposing there is no intention to control or curtail the expression of opinion. Then that would not be ultra vires.

Mr. Naziruddin Ahmad : The matter would really depend not upon the intention, because that is a matter which cannot be understood, ascertained or measured except from the words of the statute. It can only be judged by the terms of the Act and by the effect that it may produce. The main argument of the American Court was to the effect that though it is a mere tax and apparently not in derogation of freedom of opinion and freedom of expression, still it will have the effect of reducing the circulation of many newspapers. We cannot therefore go into the intention, whether it is good or whether it is bad, because that is a matter which cannot be ascertained otherwise than through the wording. We are to consider the tax mainly by its effect. There is no doubt that the tax will have the effect of suppressing many newspapers; in that way it will curtail freedom of expression and of opinion if the tax has the effect of reducing the circulation however slightly. It is well known, Sir, that a free press stand as an interpreter between the Government and the people. To allow it to be fettered is to fetter ourselves.

Then, of course, there is the question of merit; but that is a different, matter. But as we have guaranteed the freedom of expression and opinion by article 13 clause (1), and also taken some power to curtail the right under clause (2) I specified directions, there should be no further attempt to curtail these right. I submit that this is a matter which has to be carefully considered.

I readily admit the fact that there is no question of intention involved. We cannot attribute any bad intention to the legislature at all. But under the guise of a tax freedom of opinion, will be curtailed consciously or unconsciously.

Sir, one of the elements which ensure freedom in a democratic country is the Press. It is called the Fourth Estate of the Realm, the other three being the Legislature, the Judiciary and the Executive. Any attempt in any way to curtail the liberty of the press should, therefore, be carefully considered by us.

Mr. President : I would like to hear Dr. Ambedkar and Shri Alladi Krishnaswami Ayyar on this point of order. I do not think it is necessary to have any more speeches in favour of the point of order.

The Honourable Dr. B.R. Ambedkar : Sir, I should like at the outset to state what the point of order is, or how I have understood it, because I should like to be corrected at the outset, if I am wrong. The point of order seems to be this that in view of the fact that this Assembly has passed article 13 which is a part of the Fundamental Rights and which says that all citizens shall have the right to freedom of speech or expression-in view of this, is it open to this House to pass an article which would curtail the fundamental right given by article 13? I take it that is the point that we have now to consider.

In support of the proposition that this House is now debarred from considering any proposal which would have the effect of limiting freedom of speech, there has been cited a judgment of the Supreme Court of the United States in which – I have not read the whole thing, but only parts- it has been said that any tax levied on the press is ultra – vires, in view of the fact – I am using the language of the United States – that it abridges the freedom of the press.

Shri Deshbandhu Gupta : Barring income-tax. It is stated in the judgment itself.

The Honourable Dr. B.R. Ambedkar : Now, Sir, it is not clear from the statement of fact of that particular case what the nature of the particular tax was which was called in question, nor is it clear as to the severity of that particular tax which was called in question. In my judgment, apart from the levy of the tax, the severity of the tax also would be an element in considering whether the tax was ultra vires or not. As I said, there is no reference to this important fact in this judgment. I am therefore not prepared to go by that judgment.

I am proceeding along other lines of arguments which I think are substantial and are not open to any criticism. The first point I want to submit is this : that, notwithstanding the fact that the constitutional guarantees which were given in the Constitution of the United States, the United States Supreme Court itself has held that these fundamental rights, guaranteed by the Constitution are not absolute and that the Congress of the United States has, notwithstanding the language used in the Constitution, the right to impose reasonable restrictions on those fundamental rights. In fact I may remind the House that, in the opening speech which I made in support of the motion that this House do proceed to take into consideration the draft Constitution, I devoted a considerable part to the consideration of this matter, because I had noticed some criticisms in papers and by others, to whom I was bound to pay a certain amount of respect and attention that our fundamental rights were of no value at al, as they were subjected to various limitations which were enumerated in propositions that follow article 13, namely clauses (2), (3), (4) and (5).

In order to meet those criticisms, I took some trouble to examine the decisions of the Supreme Court on this matter. I did so because at one time I felt that in view of the fact that the constitutional guarantees which were called fundamental rights were enunciated in the Constitution of the United States in absolute terms without any qualifications, it may not have been open to the Supreme Court of the United States to limit those provision. But to my great surprise I found that the United States Supreme Court had taken the very same attitude that we have taken in the framing of the Constitution, namely that fundamental rights, however fundamental they may be, could not be absolute rights. They must be subject to certain limitations.

Now, if the House will permit me I shall quote only one passage from my speech. This is what I said.

In Gitlow vs. New York, in which the issue was the constitutionality of a New York, `criminal anarchy' law which purported to punish utterances calculated to bring about violent change, the Supreme Court said:

"It is a fundamental principle, long established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom."

And I quoted many other cases. My whole point is this: that even in the United States itself, it is an acknowledged proposition that there must be some limitations upon the fundamental rights. On that there can be no question at all, in my judgment. Therefore, in so far as our entry – I am not going into the amendments for the moment – deals with tax on advertisements, my submission is that that entry could not be questioned as an entry which is ultra vires of this House, because it is going to put some kind of limitation upon the freedom of the press if it is acted upon by the provincial Governments. I entirely refuse to accept that interpretation that any tax levied under the head `Advertisements would be ultra vires because it would infringe article 13.

The proposition which I submit could be enunciated and which is plausible and which may be accepted is this : that any imposition upon a newspaper of a tax of a severe nature which will result in wiping it out altogether, such an exercise of the taxation power, would be ultra vires, because it would completely wipe out the freedom of speech which has been guaranteed by article 13. In so far as the taxation imposed upon advertisements is not of a reasonable nature and is discriminatory, that is to say, it is merely confined to newspapers and all other forms of advertisements are exempted, then I can understand that that would violate article 15 under which we propose to give equal protection to all. Therefore my submission is that any argument which goes to the length of saying that anything which affects newspapers and the freedom of speech or writing in a newspaper would be ultra vires. I take the liberty to say, is not an argument which I am prepared to accept and which, I hope, this House will not accept.

Now I come to the other question. It is quite true that, in view of certain circumstances which have come to the surface in certain provinces, it may be necessary to transfer this particular entry regarding newspapers from List I to List II or place it in List III. This is a matter not of constitutional law. That is a matte of policy and a matter of confidence; whether you are prepared to put more confidence in the Centre or whether you are prepared to put more confidence in the provinces or whether you are prepared to put confidence in the provinces but would like to reserve to the Centre a certain amount of liberty and power to correct any wrong that a province might do in a matter which of course is open for discussion. That is what we have been discussing; whether any particular entry should remain in List I or part in List I and part in List II or in List III.

On that the House has of perfect liberty to decide, because it is matter on which the House has got complete freedom, and nobody is going to suggest that the House has its hands tied down by reason of article 13 and that it cannot do anything to impose any kind of limitation upon the newspapers. I repudiate that argument absolutely.

Now, Sir, I should like to deal with the various amendments. If you will permit me, I would like to deal with them because those who may follow me may criticise what I am saying. It seems to me that the friends who are interested in newspapers are really trying to get complete immunity, so to say, from any kind of taxation that may be levied by the provinces. The first amendment moved by my friend, Mr. Goenka, and several others-there are some fifty or sixty names- is that it should be transferred to the Union List, List I. In doing that they have done something which we ourselves had not done. Our newspaper entry is not connected with taxation. Those members who have closely watched the arrangement in List I and List II will realize that we have separated the entries into two parts, entries which are purely legislative and entries which are taxational. You will remember that newspapers, although they are mentioned in List III, they are mentioned only among the legislative entries. Now, the amendment moved by my friend, Mr. Goenka, has done the worst from his point of view, viz., he has put the newspapers in that part of List I which deals with taxation. It means that it would be open now for the Centre to levy a tax on newspapers. (Hear, hear) I do not like newspapers and I am not interested in either injuring them or in protecting them. I am prepared to place the whole mate in the hands of the House to do what it likes.

The second amendment moved by my friend, Mr. Jhunjhunwala, does what? He thinks that, although newspapers may be transferred to List I, newspapers as goods open to sale, will still remain in List II because the entry in that list is a very broad entry and would cover newspapers as goods and therefore he feels that there is no purpose served by merely accepting the amendment of Mr. Goenka because they would be liable to be taxed by the provinces under the entry relating to taxes on sale of goods. Therefore he has moved his amendment to get the newspapers out of the Sales Tax Act.

Now, the question to be considered is whether the provinces would agree that so important a part of what I may call the base of their taxation as constituted by the newspapers should be altogether eliminated from the field of provincial taxation. It is matter which has to be considered. Sir, being a financial matter, I do not think that the Drafting Committee would be prepared to take the responsibility on its own shoulders without consultation either with the Finance Ministry or with the Finance Ministers of the Provinces. We have been taking a great deal of responsibility so far as purely legislative entries are concerned. When the question of finance is concerned, we have a sort of standing convention that we should always consult the Central Finance Ministry as well as the Finance Ministers of the various provinces.

Therefore, these are the difficulties that are involved in these amendments. Now I do not know if you transfer the entry on newspapers to the Union List, the Centre may levy a tax on newspapers as manufacturers, because the Centre is entitled to put an excise duty on any goods manufactured in any part of India. It seems to me therefore that it would be difficult for the newspapers to escape taxation. All these things have to be taken into consideration. That is to say, these are extraneous matters to which I have given expression at this stage because I think that every Member who wants to take part in the debate, ought to know what the difficulties are. All that I am interested in at the moment is this that there is no bar to the House considering any kind of limitation notwithstanding that we have passed article 13. The proposition which is being sought to be placed before the House for its acceptance is in my judgment a very dangerous proposition. It would eliminate even taxation absolutely. Even article 24 could not be there. Many other complications would arise. If you say that because fundamental rights are guaranteed therefore the taxation power should also not be exercised because that would result in the limitation or the destruction of the fundamental rights, it is too large a proposition and I do not think that anybody will ever accept this.

Shri Alladi Krishnaswami Ayyar : Mr. President, Sir, I do not want to travel the same ground so ably covered by my friend, the Honourable Dr. Ambedkar, but I should like to add a few words in regard to certain points which were not touched by him. Reliance has been placed on article 13. If as a result of the interpretation of article 13 none of the subjects referred to in that article ought to be the subject of any taxation, what we are leading up to, the House may realise. Freedom of the press may be taken as included in freedom of speech and expression, though as in other Constitutions, there is no special clause relating to the freedom of the press. If you refer to 13(f) ("to acquire, hold and dispose of property") a man has got a right to hold property. Therefore if this argument were sound no succession duty can be levied; his heir is entitled to hold the property, no estate duty can be levied. No kind of tax including capital levy will operate on that property, because you have guaranteed in the Constitution the right to acquire, hold and dispose of property. This will be a most dangerous doctrine to lay down, and I do not think that any court will be so foolish as to put that meaning on the expression "to acquire, hold and dispose of property". Proposals are on the anvil for the abolition of zamindari property. A zamindar has got the right to acquire, hold and dispose of property. Therefore you cannot have any kind of legislation with regard to the abolition of zamindari property. Then again take the right to practise any profession the lawyer's profession or any other profession. That right is there and therefore a professional tax cannot be levied according to the argument of the other side. We have already passed an article to the effect that professional taxes can be levied. then take the expression "carry on any occupation, trade or business." The right is there and therefore you cannot levy any tax on any trade; you cannot levy any tax on any business or on any occupation. The result of this doctrine, of this mixing up a taxation provision with the provisions guaranteeing fundamental rights under article 13 would be to tie the hands of the State in such a way that no progress can be made. No State can function on that basis. It will be impossible to subscribed to a proposition of that description. It is unnecessary for me to go over other clauses, similarly in the chapter on Fundamental Rights, because I am not arguing, before a Court of Law to reinforce this particular point.

Then, reference has been made to the United States Supreme Court. I hope I will not be guilty of advertising myself if I refer to the fact that it was I that gave a reference to this case to the gentleman who was sponsoring the cause of newspapers of this country and my honourable Friend, Mr. Goenka will bear me out……

Shri Deshbandhu Gupta : We are thankful to you.

Shri Alladi Krishnaswami Ayyar : Having regard to the infancy of newspaper industry or whatever you call it in this country, the need for inter-provincial circulation, the possibility and the hardship of differential and different taxes being levied by different provinces, I felt the justice of the particular claim, namely, that it is much better whatever might be the form the tax may ultimately take that power should adhere in the Centre. I was of that opinion and I still adhere t that opinion and I am not holding any view against that, but to hold that opinion is not to give a carte blanche to newspapers or to say that every profession in India, every kind of income every kind of industry, every kind of business can be taxed, but not newspapers or advertisements in newspapers. We have to some extent to count upon the wisdom of Parliament. It may be that under certain circumstances no tax ought to be levied at all and under other circumstances a tax may be levied at a low rate.

I should like to say a few words about advertising. A cinema girl is advertised in a newspaper and the newspaper is making plenty of money out of it. The marriage proposal between two parties is advertised or sometimes referred to in a newspaper. Let us realise the gravity of the step which you want to take. Under these circumstances to say that because it is a newspaper it is to be exempted from taxes, I submit is not a proposition which will either commend called a public point of view. At this stage of the discussion I am purely on the Constitutional point of view. At this stage of the discussion I am purely on the Constitutional point of view. Some reference has been made to the American constitution. It was unfortunate that instead of taking all the articles into consideration one should take hold of a judgment, read a passage here or read a passage here, take hold of some rules in a text book and then to lead or mislead the House and sometimes the public.

An honourable Member : That is what the lawyers always do.

Shri Alladi Krishnaswami Ayyar : There are two articles in the American Constitution, articles 5 and 14 referring to due process of law. The House may remember that at a particular stage in the proceedings of this House, I took strong exception to that expression `due process' being borrowed into our Constitution. Yesterday in some other meeting somebody said that I was in favour of imprisoning all people. I do not favour such a preposterous proposition. I cannot bear a prison and I can sympathize with people who are sent to prison. the only question is whether in the larger interests of the State what exactly are the limitations to be put on the rights guaranteed under the constitution including the right to property.

I will give you one instance. There is a provision in the United States Constitution to the effect that judges shall get a fixed salary and their salary shall not be diminished during the term of office. In the very early stages of the history of the United States Supreme Court the view was taken by the judges themselves that their salaries were exempt room taxation. fortunately in the later years the United States Supreme Court has gone back upon that view and the Court itself has said that a fixed salary does not mean that the judges are immune from the ordinary liabilities incidental to citizenship. Therefore you will have to take in all these cases. Supposing you put in a licence fee in respect of certain kinds of meetings, then you are interfering with the freedom of speech. If the tax is so oppressive as to strike at the very foundation of the right, it may be that the Court may well say that that law is invalid. That is what the honourable Dr. B.R. Ambedkar was alluding to. In the case of every written Constitution, when you are dealing with the question whether the Legislature is acting within the terms of its power under a particular provision or not, the Courts are called upon to decide whether the legislature is keeping to the terms and spirit of the particular provision which clothes the Legislature with that particular power. If in acting under one provision the legislature misuses or abuses the power contained in the provision or invades the field entrusted to another legislature the Court may very well come to the conclusion that what provision is invalid. for example relying upon the maxim of Chief Justice Marshal that the power to tax is the power to destroy, you so tax as to practically destroy the freedom of the Press, certainly the arm of the Court will be long enough to protect that.

Under those circumstances, the House will be taking a dangerous step and a step which is fraught with serious evil to this country if it is said that particular people are exempt from taxation. It is another thing whether that power is within the term and within the spirit of the Constitution. In regard to other matters I have nothing to add to what the Honourable Dr. Ambedkar has said, but I venture to state, Sir, in all humility that there is absolutely not substance in the points of law raised, whatever might be the amendments that may be brought in order to see that newspapers do not suffer, tht there is free circulation, that there is freedom of the press, that the power to tax is not so used as to destroy the foundation of free speech and opportunity of expression.

Pandit Thakur Das Bhargava : Supposing there is not complete destruction of this right, but there is material curtailment or abridgment, will it not be covered by this?

The Honourable Dr. B.R. Ambedkar : What is reasonable the Court will decide.

Shri Alladi Krishnaswami Ayyar : I have nothing to add to my speech.

(At this stage Shri Deshbandhu Gupta rose to speak)

Mr. President : I do not think there is any right of reply in a matter like this.

Shri Deshbandhu Gupta : On a point of order, I want to clear one or two points which seems to have created confusion.

Mr. President : No. It is question whether you have the right to reply or not.

An Honourable Member : The President has already said that the honourable Member has no right of reply.

Shri Deshbandhu Gupta : Sir, as some points have been raised and I would request you to explain these points particularly as no speaker from this said has spoken after Shri Aladi Krishnaswami Ayyar raised the points.

Mr. President : I think a larger number of people spoke from your side and from your point of view.

I have understood the point of order that has been raise. I shall have to consider it and I will give my ruling later, but in the meantime I would ask Dr. Ambedkar to consider the other point which he himself has raised, supposing. I rule that it is in order, then in that case I would expect him to be ready with the answer on the merits also as to whether you will have it in the form in which it is sought to be moved by Mr. Goenka or sought to be amended by Mr. Jhunjhunwala.

The Honourable Dr. B. R. Ambedkar : In that case, they should withdraw the amendment.

Shri Deshbandhu Gupta : The amendment has not been moved. I took exception to the moving of the amendment.