Constituent Assembly Of India -Volume IX
Dated: August 03, 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: We shall now take up article 276. There are certain amendments of which notice has been given which are in Part II of the Printed List.
(Amendment No. 3002 was not moved.)
Mr. Naziruddin Ahmad (West Bengal: Muslim) : May I point out that 3003 is a drafting amendment? It merely transposes a few words from one place to another.
The Honourable Dr. B. R. Ambedkar (Bombay: General): If that is so, I agree.
(Amendments Nos. 3004 and 3005 were not moved.)
Mr. President: No. 3006 is not exactly of a drafting nature. 3006 is consequential to 3003. So, better move both.
The Honourable Dr. B. R. Ambedkar: Sir, I beg to move:
I also move:
(Amendment No. 119 of Supplementary List was not moved.)
Mr. President: There is no other amendment. Does anyone wish to speak?
Mr. Naziruddin Ahmad: Mr. President, Sir amendment 3006 for addition of some words at the end of clause (b), I submit, is already covered by the earlier part of the article. The words proposed to be added are:
Some powers are being given to the President arising out of a Proclamation of Emergency notwithstanding the fact that the subject dealt with is one not enumerated in the Union List. It gives power to the President to act on subjects in the Provincial List. But this safeguard is already there at the beginning of the article 276. Dr. Ambedkar proposes to transpose these words to the beginning of clause (a). But the sense remains the same. because the article begins with the words "Notwithstanding anything contained in this Constitution", which includes the condition "notwithstanding that it is one which is not enumerated in the Union List." So there is no need to repeat them at the end. They are already implied by the general condition "notwithstanding anything contained in this Constitution" appearing at the beginning. If we are to mention special things like this in spite of the general words, then they will have-to be exhaustive, but nobody can be sure whether there will be other exceptions needing special mention. This amendment is unnecessary.
Shri T. T. Krishnamachari (Madras: General): Mr. President, Sir, I am afraid if my Friend Mr. Naziruddin Ahmad will look at section 126A of the Government of India Act, he will find why Dr. Ambedkar's amendment is necessary, because 276(b) gives executive power to the Union in times of emergency, when an emergency is declared, and these words are necessary in order to snare, the meaning perfectly clear. The thing has been clarified, in terms of the language used in the Government of India Act, section 126A. If he win read the section once again, be will find that there is no objection to the inclusion of these words in this article.
Mr. President: You do not wish to say anything. Dr. Ambedkar ?
The Honourable Dr. B. R. Ambedkar: No Sir. It is not necessary for me to say anything.
Mr. President: Then I will put the amendments to vote now.
The question is
The amendment was adopted.
Mr.President: The question is.
The amendment was adopted.
Mr. President: Then I put the article as amended.
The question is :
The motion was adopted. Article 276, as amended, was added to the Constitution.* Articles 188, 277-A, 278 and 278-A
Mr. President: Then we come to article 277.
The Honourable Dr. B. R. Ambedkar: I would like to hold article 277 back, for the present.
Mr. President: Shall we then take up article 277-A ? Article 277 is hold back for the present and we take up article 277-A now.
The Honourable Dr. B. R. Ambedkar: Sir, I think it would be better if three amendments were taken together, namely, amendment to drop article 188, introduction of a new article 277-A and the substitution of the old article 278 by the two new articles 278 and 278--A because they are cognate matters. They might be put separately for voting, purposes. But for discussion, I think, might be taken together.
Mr.President: Articles 188, 2/8 and 278-A may be taken together because they deal with cognate matters and it would be better if the discussion of all the-articles is taken up together, although we may put them to vote separately. The Honourable Dr. B. R. Ambedkar: Sir, I move:
Sir, I move:
And then, Sir, I move amendment No. 160 of List II, which reads as follows :"That for article 278, the following articles be substituted
278. Provisions in the case of Failure of Constitutional machinery in States. (1) If the President, on receipt of a report from the Governor or Ruler of a State or otherwise, is satisfied that the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation-
(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.
(3) Every Proclamation under this article. shall be laid before each House of Parliament shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolution of both Houses of Parliament
(4)A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the Proclamation under clause (3) of this article:
(1) Where by a Proclamation issued under clause (1) of article 278 of this Constitution it has been declared that the powers of the Legislature of the State shall be exercisable by or under the: authority of Parliament, it shall be competent.
(2) Any law made by or under the authority of Parliament which Parliament or the President or other authority referred to in sub-clause (a) of clause (1) of this article would not, but for the issue of a Proclamation under article 278 of this Constitution, have been competent to make shall to the extent of the incompetency cease to have effect on the expiration of a period of one year after the Proclamation has ceased to operate except as respects things done or omitted to be done before the expiration of the said period unless the provisions which shall so cease to have effect are sooner repealed or re-enacted with or without modification by an Act of the Legislature of the State."
Shri H. V. Kamath : (C.P. and Berar: General): Article 188 also?
The Honourable Dr. B. R. Ambedkar: I have said that 188 will be deleted. It is not really necessary to move the amendment, but to give the House an idea of the whole picture I have said that we propose to delete article 188.
Sir, I anticipate that there will be probably a full-dress debate on this article and I may at some stage be called upon' to offer explanation of the points of criticism that might be raised so that I think it would be right if I did not enter upon a very exhaustive treatment of the various points that arise out of the new scheme. I propose at the outset merely to give an outline of the pattern of things which we provide by the dropping of article 188, by the addition of article 277-A and by the substitution of two new articles 278 and 278-A for the old article 278.
I think I can well begin by reminding the House that it has been agreed by the House, when we were considering the general principles of the Constitution, that the Constitution should provide some machinery for the breakdown of the Constitution. In other words, some provision should be introduced in the, Constitution which would be somewhat analogous to the provisions contained in section 93 of the Government of India Act, 1935. At the stage when this principle was accepted by the House, it was proposed that if the Governor of the provinces feels that the machinery set up by this Constitution for the administration of the affairs of the Province breaks down, the Governor should have the power by Proclamation to take over the. administration of the Province himself for a fortnight and thereafter communicate the matter to the President of the Union that the machinery has failed, that he has issued a Proclamation and taken over the administration to himself, and on the report made by the Governor under the original article 188 the President could act under article 278. That was the original scheme.
It is now felt that no useful purpose could be served, if there is a real emergency by which 'the President is required to act, by allowing the Governor, in the first instance, the power to suspend the Constitution merely for a fortnight. If the President is ultimately to take the responsibility of entering into the Provincial Odd in order to sustain the constitution embodied in this Constitution, then it is much better that the President should come into the field right at the very beginning. On the basis that that is the correct approach to the situation, namely that if the responsibility is of the President then the President from the very beginning should come into the field, it is obvious that article 188 is a futility and is not required at all. That is the reason why I have proposed that article 188 be deleted."
Now I come to article 277-A. Some people might think that article 277-A is merely a pious declaration, that it ought not to be there. The Drafting Committee has taken a different view and therefore like to explain why it is that the Drafting Committee feels that article 277-A ought to be there. I think it is agreed that our Constitution, notwithstanding the many provisions which are contained in it whereby the Centre has been given powers to override the Provinces, nonetheless is a' Federal Constitution and when we say that the Constitution is a Federal Constitution it means this, that the Provinces are as sovereign in their field which is left to them by the Constitution as the Centre is in the field which is assigned to it. In other words, barring the provisions which permit the Centre to override any legislation that may be passed by the Provinces, the Provinces have a plenary authority to make any law for the peace, order and good government of that Province. Now, when once the Constitution makes the provinces sovereign and gives them Plenary powers to make any law for the peace, order and good government of the province, really speaking, the intervention of the Centre or any other authority must be deemed to be barred, because that would be an invasion of the sovereign authority of the province. That is a fundamental proposition which, I think, we must accept by reason of the fact that we have a Federal Constitution. That being so, if the Centre is to interfere in the administration of provincial affairs, as we propose to authorise the Centre by virtue of articles 278 and 278-A, it must be by and under some obligation which the Constitution imposes upon the Centre. The invasion must not be an invasion which is wanton, arbitrary and unauthorised by law. Therefore, in order to make it quite clear that articles 278 and 278-A are not to be deemed as a wanton invasion by the Centre upon the authority of the province, we, propose to introduce article 277-A. As Members will see, article 277-A says that it shall be the duty of the Union to protect every unit, and also to maintain the Constitution. So far as such obligation is concerned, it will be found that it is not our Constitution alone which is going to create this duty and this obligation. Similar clauses appear in the. American Constitution. They also occur in the Australian Constitution, where the constitution, in express terms, provides that it shall be the duty of the Central Government to protect the units or the States from external aggression or internal commotion. All that we propose to do is to add one more clause to the principle enunciated in the American and Australian Constitutions, namely, that it shall also be the duty of the Union to maintain the Constitution in the provinces as enacted by this law. There is nothing new in this and as I said, in view of the fact that we are endowing the provinces with plenary powers and making them sovereign within their own field, it is necessary to provide that if any invasion of the provincial field is done by the Centre it is in virtue of this obligation. It win be an act in fulfillment of the duty and the obligation and it cannot be treated, so far as the Constitution is concerned, as a wanton. arbitrary, unauthorised act. That is the reason why we have introduced article 277-A.
With regard to articles 278 and 278-A although they appear as two separate clauses, they are merely divisions of the original article 278. 278 has something like seven clauses. The first four clauses are embodied in the new article 278. Clauses (4) onwards are put in article 278-A. The reason for making this partition, so to say, is because otherwise the whole article 278 would have been such a mouthful that probably it would have been difficult for Members to follow the various provisions contained therein. It is to break the ice, so to say, that this division has been made.
With regard to article 278, the first change that is to be noted is that the President is to act on a report from the Governor or otherwise. The original article 188 merely provided that the President should act on the report made by the Governor. The word "otherwise" was not there. Now it is felt that in view of the fact that article 277-A, which precedes article 278, imposes a duty and an obligation upon the Centre, it would not be proper to restrict and confine the action of the President, which undoubtedly will be taken in fulfilment of the duty, to the report made by the Governor of the province. It may be that the Governor does not make a report. None-the-less, the facts are such that the President feels that big intervention is necessary and imminent. I think as a necessary consequence to the introduction of article 277-A, we must also give liberty to the President to act even when there is no report by the Governor and when the President has got certain facts within his knowledge on which he thinks, he ought to act in the fulfillment of his duty.
The second change which article 278 makes is this : that originally the authority and powers of the legislature were, exercisable only by Parliament. It is now provided that this authority may be exercisable by anybody to whom Parliament may delegate its authority. It may be too much of a burden on Parliament to take factual and de facto possession of legislative powers of the provincial legislatures which may be suspended because Parliament may have already so much work that it may not be possible for it to deal with the legislation necessary for the provinces whose legislature has been suspended under the Proclamation In order therefore to facilitate legislation, it is now provided that Parliament may do it itself or Parliament may authorise, under certain conditions and terms and restraints, some other authority to carry on the legislation.
Another very important change that is made is that the Proclamation will cease to be in operation at the expiration of two months, unless before the expiration of that period Parliament by resolution approves its further continuance. Originally, the provision was that it will continue in operation for six months, unless extended by Parliament. In the present draft, the period is restricted to only two months. After that, if the Proclamation is to be continued, it has to be ratified by Parliament by a Resolution.
The second change that is made is this, that in the original article, if Parliament had once ratified the Proclamation, that Proclamation could run automatically without further ratification for twelve months. bat position again has been altered; The twelve months is now divided into two periods of six months catch and after the first ratification, the Proclamation could-run for six months and then it shall have to be ratified by Parliament again. After Parliament has ratified, it will again run for six months only. There will be further ratification by Parliament so that six months is the period which is permitted for a Proclamation after it has been ratified by Parliament. Further continuance would require further ratification and we have put an outside limit of three years. At the end of three years, neither Parliament nor the President can continue the state of affairs in existence in the province under which this Proclamation has taken effect.
Then I come to article 278-A. Sub-clause (a) which provides for Parliament to delegate power to make laws for the State to the President or any other authority specified by him in that behalf is a new one. Sub-clause (b) of the article is merely a consequential change. consequential upon sub-clause (a) of clause (1) of article 278-A. It says that authority may be conferred upon anybody, either upon the officers of the Government of India Pr officers of even Provincial Governments to carry into effect any law that may be made by Parliament or by any agency appointed by Parliament in this behalf.
Sub-clause (c) of clause (1) of article 278-A is a new clause. It provides for the sanctioning of the budget. In the original draft article 278 no provision was made as to how to sanction and prepare the Budget of a province whose legislature has been suspended. That matter is now made clear by the introduction of sub-clause (c) of clause (1) to article 278-A which expressly provides that the President may authorise, when the House of the People is not in session, expenditure from the Consolidated Fund of the State, pending the sanction of such expenditure by Parliament.
Sub-clause (d) makes it quite clear-which probably was already implicit in the article-that the President also can exercise his powers conferred upon him by article 102 to issue Ordinances with regard to the running of the administration of any particular province which has been taken over when both the Houses are not in session. The original article 102 was confined to Ordinances to be issued with regard to the Central Government. We now make it clear by sub-,clause (d) that this power will also be exercised by the President with regard to any Ordinance that may be necessary to be passed for the conduct of the administration of a province which has been taken up.
Shri Brajeshwar Prasad (Bihar: General): Sir, I am not moving amendments Nos. 158 and 159 (List II : Second Week),
Pandit Thakur Das Bhargava (East Punjab: General): I am not moving amendment No. 202,
Shri B. V. Kamath (C.P. & Berar: General): Mr. President, may 1, at the outset request you to tell the House what method or system you would like us to adopt---whether we should move the amendments to each article separately, or whether we shall move the amendments to all the four articles at once ?
Mr. President: I would like to have the amendments to all the articles moved together.
Shri H. V. Kamath: I do not, Sir, propose to move amendments No. 161 and 162 to article 278 (List II, Second Week). I shall first take up article 277-A and move the amendments that are relevant thereto. I invite the attention of the House to List IV, Second Week, amendments Nos. 220, 221 and 222.
Sir, I move:
"That in amendment No. 121 of List I (Second Week) of Amendments to Amendments in the proposed new article 277-A, for the words 'internal disturbance' the words 'internal insurrection or chaos' be substituted. "Turning, Sir, to article 278 in the same list, I move, by your leave, the following amendments:-
Will you permit, me, Sir, to clarify the importance of,these amendments by reading out to the House how the article would read in case the amendments are accepted by the House ? Article 277-A would read, in case my amendments are accepted by the House, as follows :
Article 278 (1) would read, in case my amendments are accepted by the House, as follows:-
So much for the formal reading of the amendments.
There are before the House today, four articles.
Mr. Naziruddin Ahmed: May I suggest that all the amendments to this article may first be moved and then general discussion held later on. ?
Mr.President: Very well. Prof. Shibban Lal Saksena may move his amendments at this stage. Mr. Kamath may speak afterwards.
Prof. Shibban Lal Saksena (United Provinces: General): Sir, I move:
Shri Brajeshwar Prasad: Mr. President, I am not moving my amendment Nos. 122, 123, 124 and 125 to this article.
ShriH. V. Kamath : I am not moving my amendments Nos. 161 and 162.
Mr.President: These are all the amendments of which there is notice. Mr.Kamath may speak now.
Shri H. V. Kamath : I am deeply grateful to you, Sir, for giving me this opportunity of speaking on the matter brought before the House today by Dr. Ambedkar. These articles have a threefold object, though the various objects are inter-connected. Article 188 is firstly sought to be deleted and two new articles are sought to be inserted viz., 277-A and 278-A, and the old draft of article 278 is proposed to be modified in certain respects.Taking up the motion for the deletion of article 188, may I invite the attention of Dr. Ambedkar and the House to certain observations made in the course of the debate on article 143 relating to the deletion of the provision concerning the Governor's discretionary powers ? Replying to the debate on that occasion on behalf of the Drafting Committee, Dr. Ambedkar said that the amendment in principle was welcome to him, but that there were certain difficulties with regard to the incorporation of the amendment in the Constitution. He said then that so long as articles 188 and 175 were not finalised, it would be difficult for him or the House to make up their minds finally about the amendments moved by me seeking to divest the Governor of discretionary powers conferred upon him by the Draft Constitution. May I remind him of what he said on that occasion? I am quoting from the official records of the Assembly. He said that article 143 will have to be read in conjunction with such other articles which specifically reserve the power to the Governor. Proceeding, he said"It seems to me there are thee ways by which this matter of discretionary powers could be settled. One way is to, on the words suggested by Pandit Kunzru and others from article 143 and add such articles as 188 or 175 or such other provisions which the House may hereafter introduce vesting the Governor with discretionary powers, saying, notwithstanding article 143 the Governor shall have this or that power........
The point of reference on an earlier occasion was this : That point was raised by me in an amendment which was hotly debated in this House and Dr. Ambedkar promised to reconsider the matter after articles 175 and 188 had been disposed of by this House. The time has come now for him to reconsider the matter., We have disposed of article 175(2) which divest the Governor of discretionary powers in regard to legislation and we are seeking to delete article 188 which seeks to specifically confer discretionary powers on the Governor. It is high time now for-the House to revert to what both Dr. Ambedkar and Shri T. Krishnamachari said on that occasion. They said that after we disposed of this article we could come back and amend article 143 suitably.
Therefore, Sir, this consequential amendment is necessary to article 143 and I hope Dr. Ambedkar will bear in mind this fact and amend the article, suitably when the time comes for him to do so. That disposes of the amendment moved by Dr. Ambedkar for the deletion of article 188. I support it with the proviso that article 143 be amended suitably.
Now coming to article 277-A, we have laid according to this article certain duties upon the Union Government. Firstly, it should defend every constituent unit against any external aggression. Secondly, it should protect the State against internal disturbance, or I suppose Dr. Ambedkar and the Drafting Committee mean that the Union Government should prevent any internal disturbance from occuring in the State. Lastly, the duty is laid upon the Union Government to see that. the Government of every State is carried on in accordance with the provisions of this Constitution. As regards the last, I am wholeheartedly in agreement with that provision that the Union Government should make. it a point to see that every State honours and observes the Constitution in letter as well as in spirit. Also I have no quarrel with the provision regarding the defence of every constituent unit against external aggression. Inmy humble judgment,, however, there is likely to be a difference of opinion as regards the middle provision of protecting the State against internal disturbance.
(At this stage Mr. President vacated the Chair which was then occupied by Mr. Vice-President, Shri V. T. Krishnamachari.)
The crucial point to my mind in this connection is, what is internal disturbance and what is not. Will any petty riot or a general melee or imbroglio in any State necessitate the President's or the Union Government's intervention in the internal affairs of that State If honourable Members turn to List II of the Seventh Schedule, they will find that item I lays the responsibility for public order (but not including the use of naval, military or air forces in aid of the civil power) squarely on the shoulders of the State. That will be within the jurisdiction of the State. It is not in the Concurrent List either. Public order has been made expressly a responsibility of the State Government. Now the crux of the matter is this : You say that the State must maintain public order. But through a new article 277-A you say that the Union Government shall protect every State against internal disturbance. Let us be honest about what we are going to do. It is no use having mental reservations on this important point, If we are going to whittle down provincial autonomy, let us say so in the Constitution. Let us make no bones about it. It is dishonest on our part to say in one article that public order shall be the responsibility of the State and then in another article to confer powers upon the Union Government to intervene in the internal affairs of the State on the slightest pretext of any internal disturbance. Therefore, with a view to removing this difficulty, I have moved my amendment, No. 222 of List IV (Second Week). It seeks to substitute "internal insurrection or chaos" for "internal disturbance". "Disturbance" is a very wide and elastic term. A disturbance of the human organism may range from a little pain in the finger up to hyperpyrexia or coma. So also a disturbance within a State may range from two people coming to blows to a full-fledged insurrection leading perhaps to chaotic conditions. What are we, aiming at? Do we want to confer powers upon the Union Government to see that peace, order and tranquility in the State are not jeopardised, or are we going to confer powers upon the Union Government to intervene in the internal affairs of the State? I do not think that the latter is our objective. The Preamble says that we are going to constitute India into a sovereign democratic Republic. Dr. Ambedkar just now stated that the federal scheme envisages the sovereignty of every State within the field which is allotted to it. List II of the Seventh Schedule allots public order to the State. Now, this article seeks to divest, in howsoever small or large a measure, the State Government of powers conferred upon it by the Seventh Schedule. If this article 277-A is adopted without much consideration by this House, I foresee the destruction of provincial autonomy, the subversion of provincial autonomy by the Union Government, on the pretext of averting or quelling internal disturbance. If that is our objective, let us say so, and then let us pass this article. If we are not going to do it, if it is our aim to promote provincial autonomy-no doubt the, inevitability of gradualness comes in here let us be straight about it and let us provide as an interim measure, as a provision during the intereegnum, during the transition we are passing through during the dangerous and critical times that we are living in, let us amend this article by saying that only in the event of an insurrection or chaos shall Union Government be empowered to intervene in the internal affairs of the State, and not for any disturbance that might arise in the State. For that the State has ample powers at its disposal, the police force, the Raksha Dal and all sorts of other subsidiary forces. Can we not trust the State Goverment tolook after its own public peace and order, to maintain tranquility within the borders of its own domains? Certainly I think that is the spirit of the Constitution which we are considering in the House and with that spirit in mind, let us not confer more powers upon the President and the Union Government than are warranted by the facts or the contingencies or the possibilities of any situation that might arise in future.
I have with regard to this matter moved three amendments; namely, 220, 221 and 222. The first is merely verbal. I thought that instead of the word "Union" the words "Union Government" would be more appropriate, because article I has defined the Union. Article I says that India shall be a Union of States. If we just say "Union" it may vague and it may mean also the various authorities in the Union. Are they required to intervene and to meddle in the affairs of the Slate in case: of internal disturbance or external aggression or to see that the Government of the State is carried on in accordance with the pro.visions of the Constitution ? If Dr. Ambedkar's wisdom can appreciate this amendment of mine, I would request him to change this word "Union" to "Union Government". It is almost a verbal amendment and I leave it to their cumulative wisdom, which I am sure, is superior to mine.
The next, amendment is 221 and this also though verbal has got some sub-stance in it. The article as it has been brought forward by Dr.Ambedkar before the House today provides that the Union Government shall protect every State against external aggression and internal disturbance. According to legal terminology or constitutional parlance, I think this is rather inaccurarte. This might mean that when both these things happen then only the Union can intervene. " My lawyer friends will appreciate the distinction between the words "and" and or" and it will mean that article 277-A as it stands today will mean that unless. there is both external aggression and internal disturbance the Union cannot intervene in the affairs of the State. But if you say "or it Will mean that in any of the these contingencies, either external aggression or internal insuffection or chaos, the Union Government is competent to intervene.
With regard to amendment No. 222, I have already made a few observations as to why it is necessary, and with a view to be honest about what you mean about the scheme envisaged in the Constitution, the scheme of a sovereign democratic republic, seeking to promote not merely provincial autonomy, but seeking to develop Grain Panchayats as well right from the village panchayats up to the apex of Provincial autonomy. Thus the provision to confer upon the President, or the Union Government powers to intervene in any internal disturbance will be contrary to the spirit of the-whole Constitution. Only in the event of an insurrection or chaos should the President of the Union be empowered to intervene in the affairs of the State.
Now coming to article 278, I would appeal to the House to listen closely and carefully if they are so minded. This article 278 is a lineal descendent of the articles that have gone before in Part XI and of the articles that have been moved by Dr. Ambedkar today. They have got to be considered together, as Dr. Ambedkar remarked in the course of moving the amendments before the House just a little while ago. There have been certain changes embodied in the new draft brought before the House today, changes in relation to article 278 as it stood in the Draft Constitution, This article 278 now before the House seeks to confer more powers upon the President than were envisaged in article 278 of the Draft Constitution. Firstly, the President is empowered to act under article 278 not merely if he gets a report from the Governor or the Ruler of the State but also otherwise. What that "otherwise" is, God only knows. Reading all these articles since yesterday and the amendments moved today, it seems to me that we are not going about the business in an honest fashion. We hererepersentatives of a democracy, just liberated from foreign slavery, sitting in solemnity and dignity to frame the Constitution of our motherland, we are adopting subterfuges to nullify and set at naught, certain articles of certain provisions which we have already adopted. To my mind. this is not the way to go about business. It may be all right if we said that "if the President receives a report from the Governor or the Ruler of a State", well and good. After all we have already decided that the Governor shall be the nominee of the President. If that be so, cannot the President have confidence ' in his own nominees ? If he can not have this trust and confidence in his own nominees, let us wind up our Government and go home; let us wind up this Assembly and go home. This is not the place for us; let us go to the market-place and, let us go into the streets; let us go wherever we like, but not here in this Assembly. In that case Government should be wound up and it will have no right to function. I am using strong words, hard words, but I believe no occasions. such as this, hard words are very Sometimes it is very necessary to be cruel to be kind, and if I am hard today the House will pardon me. I have therefore, Sir moved amendment number 224 seeking to delete the words "or otherwise". I want that the President should be empowered to act only in case the Governor or the Ruler of a State informs him that a situation has arisen or that an emergency has arisen etc. etc. but not otherwise. What is this 'otherwise'? Do you me-an to say that the President, even granting that he is to act upon the advice of the Council of his Ministers, can intervene solely on the strength of his own judgement, .perhaps butteressed or reinforced by the advice of his Council of Ministers at the Centre but without a report from the State Governor or Ruler? No. I shall not be a party to this transaction. This is a foul transaction, setting at naught ,he scheme of even the limited provincial autonomy which we have provided for in this Constitution, and I shall pray to God 'that He may grant sufficient wisdom to this House to see the folly, the stupidity. the criminal nature of this transaction.
Shri L. Krishnaswami Bharathi (Madras: General): Criminal? What is the crime ?
Shri H. V. Kamath : It is a constitutional crime to empower the, President to interfere not merely on the report of the Governor or Ruler of a State, but otherwise. 'Otherwise' is a mischievous word. it is a diabolical word in this context and I pray to God that this will be deleted from this article. If God does not intervene today., I am sure at no distant date He will intervene when things will take a more serious turn and the eyes of every, one of us will be more awake than they are today.
I was saying that the President should be empowered to act only on the receipt of a report from the Governor or Ruler of a State. I would say here that we have deliberately altered the language as it stood in relation to article 188 and made it. far more elastic. The original draft article 278 stated that on receipt of a Proclamation, issued by the Governor of a State under article 188, if the President is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution etc., etc.... Let us turn to article 188 and see whit it stated. It is now sought to be deleted and I hope it will be deleted; there is no quarrel about that. If the House will have the patience to turn to article 188, that article stated that the Governor of a State must be satisfied that a grave emergency has arisen which threatens the peace and tranquillity of the State and that it is not possible to carry on the government of the State in accordance with the provisions of this Constitution. That was the scheme visualised in article 188 and article 278was a sequel to article 188. Today, article 278 does not, to my mind, to my untrained legal or constitutional mind, bear the full impress of article 188. In the proposed new article, it is sought to be laid down, "if the President is satisfied on receipt of a report from the Governor or Ruler of a State or otherwise that the government of the State cannot be carried on in accordance with the provisions of this Constitution." There is no reference to the peace and tranquillity of the State being jeopardised. Therefore, in this connection, I have got my amendment No. 225 of List lV (Second Week), which seeks to includes these words that the President must be satisfied that a grave emergency has arisen which threatens the peace and tranquillity of the State, and that-not 'or that'-the government of the State cannot be carried on in accordance with the provisions of this Constitution. There are grave dangers lurking in the article brought before us today. The dangers are that on the pretext of resolving a ministerial crises or on the pretext of purifying or reforming maladministration obtaining in a particular State, the President may have recourse to this article 278. I am sure this article is not intended for resolving any ministerial crisis that might arise in a particular State. For that the remedy lies elsewhere; the remedy lies in the dissolution of the legislature by the Governor and a reference to the electorate. The Governor is empowered by article 153 to dissolve the legislature and order fresh elections. A mere crisis or, a vote of no-confidence in the Ministry by the legislature, even a repeated vote does not, cannot empower the President of the Union Government to intervene and proclaim an emergency. Nowhere in this world has this been done. If you are going to set up a new precedent, you are welcome to do it; but let us be-ware of the catastrophes that have followed in the wake of arming the executive with unnecessary, uncalled for, tyrannical, dictatorial powers. What has been the experience of the countries where the Executive have been armed with such powers ? Yesterday, my honourable Friend Mr. T. T. Krishnamachari observed that these emergency provisions bear some resemblance to the Weimar Constitution, article 48; but be missed the point that I made. I had sought to show that the very article 48 of the Weimar Constitution of the Third Reich of Germany, was used by Herr Hitler to destroy democracy in Germany and to establish his dictatorship. All right; if we are aiming at that objective, if we in this country want dictatorship, I have no quarrel with them. Have it by all means; but say so; be honest; be straight; do not adopt subterfuges do not be crooked about your business. It does not behove us, it does not conform to our dignity to say one thing in one article and say quite a different thing, and seek to annul it by another article. I therefore think that this clause (1) of article 278 should not stand as it is. I hope the House will bestow earnest consideration. very serious thought, bring to bear its mature judgement upon the provisions of this clause (1) of article 278 and amend it suitably Otherwise, we are in for serious trouble in the future. We are laying ourselves open to snares and traps in our path wherein we shall be caught beyond any rescue. This whole Constitution will be in danger not so much from those who are agitating in the streets as from those who are in power, in case these articles are adopted as they are. If the House wants such a thing to happen, let it say so. Let us not say in the Preamble that we shall have a democratic republic. We are here seeking to destroy the foundations of democracy. About 278-A I have no amendment as such but I would only say that Proclamation under article 278 is issued only on rare occasions, i.e., when the President is satisfied on receipt of report from Governor or ruler of a State. "Or otherwise" should go. Otherwise the Ruler or Governor will be a mere sham and a mockery. Secondly, the report must satisfy the President not merely that the Government of the State cannot be carried on in accordance with the provisions of this Constitution, but also it should satisfy him that there is grave danger to the peace and tranquality of the State. Only in that eventuality should the President be clothed with this power to intervene in the affairs of a constituent State and not otherwise.Article 278-A is an enabling article in respect of various matters that follow in the event of Proclamation by the President under article 278, and therefore if the conditions I have laid down are satisfied, I have not much to quarrel with 278-A which merely seeks to clarify and further expand the provisions of article 278.
Summing up, regarding article 143 the discretionary power of the Governor must go, now that we have disposed of articles 175 and 188. Perhaps the House has forgotten that Dr. Ambedkar gave an assurance that after articles 175 and 188 this matter will be taken up. We have already passed 159 for deletion of discretionary power to summon, or dissolve the Assembly. The only other articles that remained were 175 and 188. 188 we have deleted and as for 175 we have there divested the Governor of discretionary power. So 143 must be amended. I moved at that time an amendment which has now full force, which now comes into play, and I hope that that amendment will be suitably incorporated by the Drafting Committee finally.
Regarding 277-A and 278 the House is faced with a grave situation. I appeal to the House to deliberate coolly, earnestly, seriously, deeply and dispassionately upon the provisions of articles 277-A and 278 and amend them in such a manner that the Constitution that we are framing will do us credit and will not detract from the high principles enunciated in our Charter of Freedom which Pandit Nehru moved in December 1946, and will not deviate from the nobility of those ideals, from the integrity of the high canons which were laid down in the Charter of Freedom; and above all that this Constitution which we are ushering in in the last year of the first half of this century, next year, will be the crown and glory of the labours and sufferings of millions of our compatriats, and will be the foundation of a real democracy that will set an example to other countries of the World.
Prof. Shibban Lal Saksena: Mr. President, we are considering three articles together, 188, 277-A and 278 and I think these articles are of the utmost importance in this Constitution. I personally feel happy that article 188 is being deleted. 'In fact, I had given an amendment which is No. 160 in the printed list suggesting that the Governor should not be given the power to issue Proclamation and that it should be only the President who should have the authority. So I agree with the deletion, but with this deletion article 278 has been made more sweeping. In fact, article 188 had said that if at any time the Governor of a State is satisfied that a grave emergency has arisen which threatens the peace and tranquillity of a State, then alone he was empowered to issue a Proclamation and article 278 was only to conform to that declaration. But the new draft does not take this fact into consideration. It says that if "the President on receipt of a report from the Governor or otherwise is satisfied", he can take action under this article. This gives very sweeping powers to the President. There need not be any grave emergency. If only the President is satisfied that the Government cannot be carried on in accordance with this Constitution, then he can issue a Proclamation under article 278. Article 277-A puts upon Parliament the responsibility of protecting every unit of the Union against external aggression and internal disturbance so that here also it is only external aggression and internal disturbance, and internal disturbance is too wide a term. The article does not say chaos or even grave emergency. Personally I feel that the powers given in article 278 are far too sweeping. I am glad that the ultimate authority lies with the Parliament, and therefore, we cannot say that these articles nullify the entire autonomy of the State. That of course, is a very important safeguard, because,' after all has been done, ultimately the Indian Parliament remains a sovereign body and the final authority responsible for the administration of the province. The President also cannot do anything without putting the matter before Parliament, althoughhe has two months time in which he can have his own way. I therefore think that I cannot condemn the article as strongly as my Friend Mr. Kamath has done. But I feet that by these articles we are reducing the autonomy of. the States to a farce. These articles will reduce the State Governments to great subservience to the Central Government. They cannot have any independence whatsoever. I do not want the State to pull in one direction and the Centre in another, still there must be some autonomy for the States and I say articles 277-A "and 278 take away this autonomy. I feel that even if these articles are omitted, there are articles 275 and 276 and these two articles give the executive all the powers necessary to deal with an emergency. If there is an emergency, you can issue a Proclamation under article 275, and by 276 you can legislate on matters relating'to the Provinces. So articles 275 and 276 are quite sufficient. The introduction of articles 277-A and 278 is not desirable and these articles, in fact, lay us open to the charge that we are reducing provincial autonomy to a farce. In fact, what does article 278 say? If you see the Government of India Act, 1935, you will find that this article is almost a word for word reproduction of section 93 of that Act; only for the Parliament of England, you have substituted the Houses of Parliament in India and for the period of six months, you have put down two months in this article. The rest is all identical. And what is more interesting is that in the Government of India Act, 1935 as amended, and which is now in force in this country, this particular article is omitted. So in a way the present Government of India Act under which we are now being governed, is more progressive than the article which we are now going to pass, because in this present Government of India Act, there is no section 93, and we are re-introducing it in our new Constitution. I surely think that this is a retrograde step. I should have been much happier if these particular articles were not there. Even if you must put in these two articles I would strongly plead that at least the word "otherwise" be taken away. There is no justification for the President to interfere with a State until at least the Governor who is his own nominee has reported to him. But here he has power to interfere of his own volition even though the Governor may not be of that opinion, and the Provincial Ministers may disagree with him.
Shri Brajeshwar Prasad: Sir, I would like to have elucidation on one point. If the Governor of a Province is forcibly arrested by some people, then how can he ever inform the Centre ?
An Honourable Member: A Governor cannot be arrested.
Shri Brajeshwar Prasad: Sir, I am sorry for the word "arrested". He may be kidnapped, and what happens then ?
Prof Shibban Lal Sakesena: If such a situation arises, then article 275 is there under which the Proclamation can be issued. But here, there is not even consultation with the Governor. You do not proceed on his report, but the President proceeds on his own whims. I feel also that even if you put these two articles on the Statute Book, no President will dare to act upon them, because it will create chaos. The people will rise and ask him, "Why should you interfere, even when the Governor himself does not think that it is necessary?" so he cannot take action under this article. So I appeal to the Drafting Committee that the word "otherwise' should be removed. The President should proceed on the report of the Governor, who is his own nominee. The Governor is not put by the Legislature. He is the President's own nominee. If the President war*, he may remove the Governor and post another. At least, let there be some semblance of autonomy and democracy. If a Governor becomes hostile, him and put another in his place; but let him make a report before you proceed to proclaim an emergency. The President must be able to say that be hadproceeded on the report of the Governor. So the word "otherwise" should go, and that will at least give the Governor some execuse for interference.
Then, Sir, I find that this article scraps the State Legislature and the Council of Ministers as well as the Governor, and the President and Parliament become the rulers of the Province. I would not have minded, if you had frankly said, "We are framing a unitary constitution." That would have been better. You could have had 250 counties in the country and one single Central Parliament.
Shri Brajeshwar Prasad: Hear, hear.
Prof. Shibban Lal Saksena: But now we have rejected such a formula and we have adopted this federal constitution with autonomous States. Therefore you must at least treat the States with some respect. I would, therefore, suggest that you must modify this article 278. Under this, you have given the power that Parliament can confirm the Proclamation after every six months and thus for three years the Proclamation could be continued. What happens during these three years ? Take for instance my own province of the United Provinces. Suppose the President decided-I do not know on what grounds, may be on information from the C.I.D.-suppose the President decided to proclaim a state 'of emergency, divested the Ministry and the Governor and the Legislature of all power and took all powers to himself and to the Parliament, then he might put some nominee of his own to rule that province. Now, for three years he can go on in this manner and after every six months he can get the Proclamation passed. But what happens after three years ? After three years, when his powers are exhausted, will that same legislature and the same ministry come in ? Suppose you commenced this process after six months of the commencement of the legislature, and you carry on for three years. So three and a half years are over. Then one and a half years remain and afterwards the same Governor will come in and the same Ministry will come in. After having been divested of power for three years, do they become abler and wiser then ? I think there is a very grave lacuna in this Constitution. We are just seeing the trouble in West Bengal; we are hoping that new elections will be held there and a new Ministry formed. Therefore I want that the President should be authorised to dissolve the legislature, to have new elections held and to have a new Ministry formed there, so that after eight months at least that Province might have a better and new Ministry. The same legislature, the same Ministry, which was supposed to be incompetent for three years, whose powers have been taken over by the President, will it be able to govern the Province for a single day ? If it is not, where is the power to dissolve the legislature or put in another Ministry ? There is no such power. There is a grave omission in this article and it should be rectified. I therefore suggest an amendment by adding a proviso to clause (4) which says:-
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