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CONSTITUTENT ASSEMBLY OF INDIA - VOLUME VII

Dated: January 05, 1949

So far as industrial and lab our disputes are concerned, as has been explained by Sardar Patel, this is a Provincial subject, but it has been felt desirable that there should be some uniformity of legislation followed by necessary executive action with regard to the industrial tribunals which may be constituted under Provincial laws for the purpose of settling disputes. After consultation with the Provincial Government and some of the Provincial Premiers, and representatives of Provincial Governments who were present in Delhi, it has been deemed desirable that during the interim period completely wide powers need not be taken over by the Government of India, but a suitable amendment may be made only in respect of those particular items which are now of an urgent character and which require an immediate solution. For this purpose, you will find from Amendment No. 9 that we have referred to industrial and labour disputes, trade and commerce in, and production, supply and distribution of, products of industries the development of which is declared by Dominion law to be expedient in the public interest: the sanctioning of cinematographic films for exhibition; and inquiries and statistics for the purpose of any of the matters in the Concurrent Legislative List. This will mean a consequential change in clause 7, as originally provided in the Bill. The latter portion of clause (a) will be omitted and put in the Concurrent List. The result will be that so far as legislative powers are concerned, the Dominion Parliament will have ample powers to pass laws wherever necessary and such laws will supersede provincial laws, if any; so far as the executive authority is concerned in respect of these matters, it will also be open to the Dominion Parliament to pass laws and take over responsibility for executive administration, incase such a step is considered to be desirable or necessary. Sir, it is not intended that the Provincial Governments should not be utilised for purposes of co-ordinating the policy of the Central Government even in respect of those matters where central regulation and control are necessary in the interests of the whole country. Obviously in normal circumstances, the executive machinery, which will be utilised, will be the Provincial Governments themselves. But if an occasion arises when it is necessary for the Central Government to exercise executive authority in respect of matters, which are considered to be of an all-India importance, power to do so has to be taken over by the Government of India and the Dominion Parliament. A question has arisen whether this power should be exercised by the Dominion Legislature without consultation with the Provincial Governments. Hitherto whenever the Central Government or the Dominion Legislature had an occasion to take steps for introducing legislation for development of industries, previous consultations did take place with the Provincial Governments. I believe on a suitable occasion when the matter comes up a little while later, Sardar Patel will give an assurance on behalf of the Government that during the interim period before the new Constitution comes into force, if it is necessary for the Central Government to move in accordance with the powers which are now proposed to be taken under Amendment No. 9, previous consultation with Provincial Governments will always be held and the results of such consultation will be placed before the Legislature for information.

With these words, Sir, I move that the amendment be accepted.

Mr. Vice-President: There are four amendments to this amendment, which I shall call out one after another. The first is by Mr. Naziruddin Ahmad. No. 3 in the list.

Mr. Naziruddin Ahmad: It is only a formal amendment and therefore, I am not moving it.

Shri T. T. Krishnamachari: Mr. Vice-President, Sir, I move:

"That in the new clause 2 proposed for substitution by amendment No. 9 of the original list of amendments, for the words `said Act' the word, figure and brackets `Government of India Act, 1935 (hereinafter referred to as the said Act)' be substituted."

This is a formal amendment, which makes the amendment moved by my honourable Friend Dr. Syama Prasad Mukerjee complete. I hope the House will accept it.

Pandit Hirday Nath Kunzru (United Provinces: General): Sir, it is unnecessary for me to move my amendment in view of the amendment moved by Dr. Syama Prasad Mukerjee.

Mr. Vice-President: Clause 2 is now open for general discussion. Pandit Kunzru will kindly come to the mike.

Pandit Hirday Nath Kunzru: Mr. Vice-President, the Statement of Objects and Reasons appended to the Bill before us asks for more executive power for the Government of India in the interest of the establishment of uniform principles with regard to the review of awards made by the Provincial and Central industrial tribunals. Sardar Patel, in asking that the Bill be taken into consideration also dwelt on this matter only. I think, therefore, that I am justified in concluding that this is the only reason for which Sardar Patel is asking that the Dominion Legislature should have power to confer executive functions on Central officials in connection with laws relating to the concurrent field.

It is obvious, Sir, when one reads the amendment proposed in the Bill that it goes far beyond the needs of the case. The question that is being discussed now was raised by me in connection with article 60 of the Draft Constitution which was discussed the other day. My honourable Friend Dr. Ambedkar was unable to accept my point of view and in the course of an excellent speech gave what he thought were convincing reasons against the acceptance of my amendment. This Bill only seeks to bring the Government of India Act in line with the Draft Constitution. I should have thought therefore that the matter had been finally decided by the Constituent Assembly and that it would not come up for consideration again. It seems now, however, that the House is prepared to accept the point view, that I fruitlessly urged the other day, in connection with the amendment of the Government of India Act, 1935. I do not know, Sir, whether the Provincial Governments will be able to enjoy the freedom that they seek to have only till the Draft Constitution comes into force or whether the amendment moved by my honourable Friend Dr. Syama Prasad Mukerjee means that the House is prepared to revise its opinion in connection with article 60 of the Draft Constitution. For my part, Sir, I welcome the amendment moved by Dr. Mukerjee.

Sir, Dr. Ambedkar said the other day in the course of his speech to which I have referred that it was necessary that the Dominion legislature should be in a position to pass laws extending the executive power of the Dominion officials to matters relating to the concurrent field. To explain what he meant he referred to any legislation that the Centre might pass in regard to untouchability and the failure of the provincial Governments to give effect to the Child Marriage Restraint Act. It is undoubtedly desirable that when the Central Legislature passes a measure it should be loyally given effect to by all the provinces. But, it is quite possible that in some provinces there may be little sympathy with a measure that has found favour with the Central Legislature. My honourable Friend Dr. Ambedkar said that in such a case it was eminently desirable that the Central Legislature should be able to authorise the Central officials to see that the law passed by it was properly executed.

Shri T. T. Krishnamachari: Not always.

Pandit Hirday Nath Kunzru: I have referred only to the two illustrations given by Dr. Ambedkar and I do not think that I have so far unfairly summarised his arguments.

Sir, I think that if the Central Government went so far as to appoint officials of its own to give effect to anti-untouchability laws or the Child Marriage Restraint Act, it would find itself in a serious predicament. The magnitude of the task would, I think, be beyond its powers and the consequences of its coming into conflict with provincial Governments would be so unwelcome that I am certain that any power that the Dominion legislature may have to authorise the Dominion officials to execute certain laws relating to the concurrent field is not likely to be exercised in practice. My honourable Friend Dr. Ambedkar referred to the case of Australia in respect of which I had made an erroneous statement. I accept Dr. Ambedkar's correction. But although the Commonwealth Government in Australia can ask its own officers to execute laws passed by it even in the concurrent field. Australia is, in respect of population, a very small country. I am not aware that in practice, in matters of any importance, it has actually asked the Commonwealth officials to execute laws that it should be the proper responsibility of the States Governments to enforce. In a country like India, Sir, though the Union legislature may be authorised to confer executive functions as respects laws relating to the concurrent field on Dominion officials, the size and population of the country would render it virtually impossible to put such a law into practice. I think, therefore, that the amendment moved by Dr. Syama Prasad Mukerjee is timely. It reminds the House that it is going too far in its desire to have a strong Centre. We all desire a strong Centre. We do not want that the Central authority should be unable to enforce obedience to its laws in vital matters. The unity and integrity of India depend on the authority and prestige of the Central Government. But there is a limit that must be set to the powers of the Union Legislature and the Union Government. We should not in pursuance of a theory make ourselves responsible for a policy that might lead to serious consequences. It seems to me that the amendment moved by Dr. Syama Prasad Mukerjee is going to be accepted by the House, but I hope that its acceptance will lead to a reconsideration of the decision the House has already arrived at in connection with article 60 of the Draft Constitution.

Shri B. Das (Orissa: General): Sir, I was all along unhappy since this Bill was circulated, that this Bill should try to incorporate absolute executive powers which the British Government took in its hands since 1939 in one shape or other. Consequently, Sir, I welcome the amendment which my friend Dr. Syama Prasad Mukerjee has moved whereby the executive power has been restricted. I am glad he has the support of Pandit Govind Ballabh Pant and that the amendment was jointly tabled by my honourable Friends Pandit Pant and Dr. S. P. Mukerjee. Sir, I think the House is very restive over any encroachment of democracy inside the Government as well as outside the Government. This is not the first occasion on which I have spoken of that reprehensible measure-Section 126-A of the Government of India Act, 1935, which the British House of Commons passed in 1939 and gave retrospective effect to it from 1937.Clause 2 wants to incorporate one of the original sub-paras of Section 126-A. Clause 5 wants to incorporate another sub-section of that reprehensible measure passed in the House of Commons after the War in 1939.

Sir, democracy is under trial and it is particularly under trial in a new Sovereign State like India. The foreign rulers ruled India and looked at India through Section 126-A. I cannot understand how the legal advisers of the Government of India or even how the Constitutional Adviser of this august Assembly advised that in peace time Section 126-A in its various forms should be incorporated in the first Sovereign Bill that this Sovereign House is going to pass. It was a great surprise to me and it gave me great pain. Today I feel relieved that Dr. Mukerjee had voiced the differences which the Government of India has itself had and I wholeheartedly support the motion. I hope later on my friend Pandit Pant will move the other amendment to delete clause 5. I am happy this Sovereign House is functioning as a democratic legislature and not going to give its Government autocratic powers that are required in time of war and not in time of peace.

The Honourable Pandit Govind Ballabh Pant (United Provinces: General): Sir, I had given notice of a similar amendment. In fact my name is coupled with that of Dr. Syama Prasad Mukerjee with regard to the amendment which he moved a few minutes ago. I consider it necessary to make a few observations as my reasons for giving notice of the same and identical amendment may not be identical with his. So while welcoming and supporting this amendment, I should like to state why I have considered it necessary to do so.

Section 8 of the Government of India Act gave the Federal Centre the power to appoint its own executive organization only with regard to matters included in List I. Every Federal structure involves distribution of legislative and executive functions, powers and duties. The jurisdiction of each organ, so far as it maybe possible, has to be earmarked and demarcated. We have under our Constitution now agreed to the fundamental basis of a Federal structure. In 1935 too, when that Act was passed, a Federation consisting of provinces and States was envisaged. The powers of the Federation were defined and also those of the provinces or the States that were to form its component parts. As honourable Members are doubtless aware, three lists were prepared. List I dealt with Central subjects with regard to which the Centre had the power to legislate and to have its own agency and machinery for their execution. List II contained provincial subjects and provinces alone had the authority to pass the laws to appoint suitable agency for their administration. Besides these two, there was a Concurrent List and it is with reference to that List that this amendment has been proposed. Now the Concurrent List was essentially concerned with provincial subjects, i.e. subjects which were considered to be appropriate for purposes of legislation as well as execution of these laws by the provinces themselves. But some exception was made in order to secure uniformity in the matter of legislation where such uniformity might be considered desirable. Under the scheme of that Act--and our Constitution is modelled on that Act for the most part,--the Centre has no executive authority with regard to Concurrent subjects. It could issue directive to provinces but it could not appoint its own agents in order to execute the laws that came within the purview of List III. That is why this amendment has been moved. Thus under the scheme of the 1935 Act so far as List III was concerned, the Centre had an overriding legislative authority but it had no executive authority beyond this that it could issue directives.

Now, the original clause of this Bill made a very wide provision. It in tended to give power to the Centre to appoint its own agency for the execution of any or all of the subjects mentioned in the Concurrent List. That is hardly possible ands altogether improbable, because it is not conceivable that the Centre could administer all the subjects that are included in the Concurrent List, in all the Provinces of India. That is beyond the capacity of even the most resourceful and powerful Centre. It would have led to a great deal of confusion, if we had two parallel agencies and machineries in the provinces to deal with matters that came within the purview of the Concurrent List. The Concurrent List includes criminal law, it includes civil law, it includes arbitration. It includes also miscellaneous subjects such as boilers, engines and so on and so forth. Now, if we had parallel agencies appointed on the one hand by the Provinces and on the other by the Centre, for the execution laws relating to these matters, then there would be confusion and chaos and no government would be able to function with efficiency. That is why under the original scheme of the 1935 Act, the duty of carrying out the laws relating the subjects included in the Concurrent List was imposed exclusively on the provinces, because thus alone could orderly administration of those subjects be ensured. I personally feel and think, that was a prudent arrangement. That was desirable. But all the same, the art of government is a practical one and adjustments have to be made from time to time; only whatever we do must conduce to greater efficiency, to greater economy, to greater public good and greater convenience. All these should be taken into account. So I would not altogether exclude the possibility of sometimes arrangements being made by the Centre for administering the subjects which at present might be included in the Concurrent List. So, so far as the general principle is concerned, I believe, the present Government of India accepts it, that concurrent subjects should ordinarily be administered by the Provinces. It is also, I think, accepted that no change should be made in the present system of administration except with the consent and, if I may say so, the concurrence of the provinces. We on our part, are ever ready to place ourselves at the disposal of the Centre. In fact there is no occasion for any conflict now; and howsoever much one may feel that another course might perhaps be preferable. If the Centre takes a decision, one does not only reconcile oneself to it, but I for one would think that is the only right decision, and I am, perhaps, in the wrong. That may be the case, even with respect to this particular clause. But now when we made the analysis of the provisions of this clause, we found that the reason given for it in the Statement of Objects and Reasons only suggested the appointment of judges of appellate industrial courts in order to settle lab our and industrial disputes. Honourable Members might have seen the amendments that I notified previously on the basis of that Statement of Objects and Reasons. I had suggested that in the circumstances, you might make a change in the lists, so as to meet the exigencies of the present situation. When I discussed the matter with the Honourable Home Minister, and the Honourable Minister for Industries and the Honourable Minister for Labour, we found that besides this one matter, there were two or three others also with regard to which they thought that it would be desirable to make some provision, although they had not been mentioned in the Statement of Objects and Reasons. So this amendment was recast. On the one hand, it upholds the principle that with regard to concurrent subjects, the executive authority would ordinarily vest in the provinces. On the other hand, it also accepts that there may be occasions when it may be necessary to make a departure, and it may be necessary for the Centre to step in and even to appoint its own agency and machinery. I do not yet know whether the Centre will actually do so. If I may submit with great humility, there are two sides to the shield, and some times, the Centre sees one and the provinces perhaps see the other. So one may look at one side of the shield and not attach any importance to the other side. But the advantages of one side may be more than out-balanced by the disadvantages of the other. So, unless we take a balanced view of the whole thing, it is difficult to say that the next advantage lies in any particular course that might suggest itself to any Honourable Minister who maybe in charge of a particular subject. I do not suggest that in the case of the particular subjects that are mentioned in these amendments there may be such difficulties. But I do think that the basic principle should be adhered to. Otherwise it will lead to confusion. So the position with which some of us were confronted was this, that this Bill had contemplated an over-riding executive authority in the Centre with regard to concurrent subjects. Well, that as I said, seemed to me, to be against the basic principle of the Government of India as well as of the pivotal principle of a federal structure. So some way out had to found. On the other hand there was the experience of the Honourable Ministers at the Centre who had found that their powers with regard to these particular subjects were not adequate enough to enable them to discharge their duties and obligations satisfactorily. So we hit upon this compromise, that with regard to these subjects, the powers should be conferred on the Centre. Now, that power does not by itself enable the Centre to appoint executive agents, but it gives them the option to bring such a measure in this House and if this House approves of it, then it will be open to them to appoint their own agents. I believe that it will still be simpler and easier if they were to appoint the Provincial Governments themselves as their agents for administering these subjects. We are there in the provinces to carry out their wishes to us are no less than behest. Whatever communications we get from the Centre, we try our best to give effect to the directions and even to the hints contained in them and it will be our privilege to do so even in future. I hope, however, that things will be arranged in such a manner that there will be no occasion for any confusion. What I am afraid of is confusion in the matter of administration. In the field of administration there should be no overlapping so far as it can be avoided. The ambit of provincial autonomy has been clearly defined. All the spheres of provincial administration, whether legislative, executive or judicial, should remain untampered with, so that responsibility may be imposed on the provinces and their sense of responsibility may not be impaired. On the other hand, after all, as I said we have to be guided by practical considerations and no theories can be allowed to override the demands of the actual hard realities of the day.

So, while supporting this amendment, I express the hope that there will be no desire to impose any fresh executive on the provinces and that the utmost use will be made of the provinces even in the execution of laws that may be framed with regard to these subjects.

Mr. Vice-President: Does Sardar Patel wish to offer any remarks?

The Honourable Sardar Vallabhbhai J. Patel: No, Sir. These are agreed proposals.

Mr. Vice-President: Then I shall put the question.

The question is: "That clause 2 as amended by amendment No. 9 and further modified by Amendment No. 4 do from part of the Bill."

I am sorry I find I have to put amendment No. 4 to vote first.

The question is: "That in the new clause 2 proposed for substitution by amendment No. 9 of the list of amendments, for the words said Act' the words, figure and brackets `Government of India Act, 1935 (hereinafter referred to as the said Act)' be substituted."

The amendment was adopted.

Mr. Vice-President: The question is:

"That for clause 2, the following be substituted:

`2. Amendment of section 8 of the Government of India Act, 1985- In section 8 of the said Act,-

(a) in the clause (i) of the proviso to sub-section (1), after the words `in this Act' the words `or in any law made by the Dominion Legislature with respect to any of the matters specified in the next succeeding sub-section' shall be inserted; and

(b) after sub-section (1), the following sub-section shall be inserted, namely:-

(1-A) The matters referred to in clause (i) of the proviso to sub-section (1) of this section are-

(a) industrial and lab our disputes;

(b) trade and commerce in, and production, supply and distribution of, products of industries the development of which is declared by Dominion law to be expedient in the public interest;

(c) the sanctioning of cinematographic films for exhibition; and

(d) inquiries and statistics for the purpose of any of the matters in the Concurrent Legislative List.'"

The amendment was adopted.

Mr. Vice-President: I shall now put clause 2, as amended, to the vote of the House.

The question is:

"That clause 2, as amended, stand part of the Bill."

The motion was adopted.

Clause 2, as amended, was added to the Bill.

Mr. Vice-President: The House will now take up clause 3for consideration. Amendment No. 15 standing in the name of Shri Kuladhar Chaliha has the effect of a negative vote. It is therefore disallowed. The first alternative in amendment No. 16 standing in the name of Shri T. Prakasam also has the effect of a negative vote and is therefore disallowed. Shri Prakasam may move the second alternative in amendment No.16. I understand that the mover does not want to move it. The next three amendments to this clause, Nos. 17, 18 and19, I understand are also not moved.

I shall now put clause 8 to vote.

The question is:

"That clause 3 stand part of the Bill."

The motion was adopted.

Clause 3 was added to the Bill.

Mr. Vice-President: The House will take up clause 4 for consideration.

Amendment No. 20 standing in the name of Rai Bahadur Lala Raj Kanwar is disallowed as having the effect of a negative vote.

The next two amendments, Nos. 21 and 22, I understand, are not being moved.

I shall now put clause 4 to the vote of the House.

The question is:

"That clause 4 stand part of the Bill."

The motion was adopted.

Clause 4 was added to the Bill.

Mr. Vice-President: Now we come to amendment No. 23standing in the name of the Honourable Pandit Govind BallabhPant.

The Honourable Pandit Govind Ballabh Pant: Sir, I am just moving the amendment, but I will not take much time. I beg to move:

"That after clause 4, the following new clause be inserted:-

4-A. Insertion of new section 108-A.-Before section 109in Chapter II of Part V of the said Act, the following section shall be inserted, namely:-

Previous sanction of Governor-General for certain legislative proposals.

108-A. No Bill or amendment providing for the exercise of the executive authority of the Dominion with respect to any of the matters specified in sub-section (1-A) of section 8 shall be introduced or moved in the Dominion Legislature except with the previous sanction of the Governor-General, and the Governor-General shall not give his sanction to the introduction of any such Bill or the moving of any such amendment unless be is satisfied that the views of the Government of the Provinces and the Acceding States concerned have been ascertained.'"

Sir, I have only suggested in this amendment that before any Bill or any amendment is introduced in the House with regard to the matters mentioned in section 8 or in clause 2 which we have just passed, the provinces should be consulted, that there should be a certificate to that effect and that the papers relating to such correspondence should be placed on the table. I do not want to take the time of the House by any lengthy speech in support of this amendment. The substance of this amendment is, I believe, acceptable to the Honourable the Home Minister. So far as the form is concerned, I do not worry too much about it. So, if he will be pleased to accept in substance what this amendment proposes, I will be prepared to withdraw it in form. With these words I propose this amendment.

Mr. Vice-President: There is an amendment to this amendment.

Shri T. T. Krishnamachari: That is not being moved.

The Honourable Sardar Vallabhbhai J. Patel: I entirely agree with the Honourable Pandit Pant with regard to the substance of this amendment. I therefore give him an assurance that no Bill will be introduced in the Legislature at the Centre of the nature mentioned without giving a reasonable opportunity to the provinces for giving their opinion. Therefore it would be quite appropriate if he withdraws the amendment.

The Honourable Pandit Govind Ballabh Pant: With the leave of the House I withdraw the amendment.

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

Mr. Vice-President: Now we come to clause 5. Amendment No. 24 is that the clause be deleted and it is therefore disallowed. Amendment No. 28 standing in the name of Mr. Naziruddin Ahmad.

Mr. Naziruddin Ahmad: Sir, I beg to move:

"That in clause 5, at the end of the proposed section 126-A, the following be added ....."

Shri T. T. Krishnamachari: Mr. Vice-President, Sir, may I suggest that since the intention of the mover of the Bill is to ask for this clause to be withdrawn, this amendment is not necessary and need not be moved.

The Honourable Sardar Vallabhbhai J. Patel: We have accepted a change in clause 2 and so there is no point in keeping clause 5. I think it may be deleted.

Mr. Vice-President: The motion is: "That clause 5 stand part of the Bill."

The motion was negatived.

Mr. Vice-President: Then we come to clause 6. Amendment No. 29 is disallowed as it has a negative effect.

Mr. Vice-President: Amendment No. 38 standing in the name of Mr. Naziruddin Ahmad. If you have no objection, we shall take it that the amendment has been read.

You can make your remarks upon it.

Mr. Naziruddin Ahmad: Sir, I move:

"That in clause 6, in clause (a) of sub-section (1) of the proposed new section 290-A, the word `or' occurring at the end, the whole of clause (b) of sub-section (1) and the proviso to sub-section (1) be deleted." the words `shall be administered', substituted.

or, alternatively,

That in clause 6, in clause (b) of sub-section (1) of the proposed new section 290-A, for the words `shall be administered', the words "shall with their consent be administered" be substituted.

or, alternatively,

That in clause 6, in sub-section (1) of the proposed new section 290-A, for all the words beginning with `the Governor-General may Order direct' to the end of clause (b) of the said sub-section, the following be substituted:-

`the Governor-General may by Order direct that the State or the group of State shall be administered in all respects as if the State or the group of States were-

(a) a Governor's or a Chief Commissioner's province, or (b) with the consent of the State or State concerned, as part of a Governor's province.'"

I have to draw the attention of the House to clause 6 for the insertion of the proposed new section 290-A. With regard to clause (b) of sub-section (1) of Section 290-A,the part which I object to is that "the State or group of States shall be administered in all respects as if the State or the group of States formed part of a Governor's or a Chief Commissioner's province......". The point which I would like to urge is that the States have entered into an agreement which is called the merger agreement. Under the terms of that agreement, this proposal to treat them as if they formed part of a Governor's or a Chief Commissioner's province would not be legal. Sir, I have to submit that if it is done, with the consent of the State or the States concerned, everything will be all right. So, the first part of my amendment is that the whole clause (b) be deleted. The next part of the amendment is in the alternative form that it may remain with the addition of the words "with the consent of the State or States concerned". The third alternative is the State is to be administered as an independent Governor's province or a Chief Commissioner's province or as a part of it only with their consent.

The reason which induced me to move these amendments is this: It appears that some States, compendiously described as Eastern States, entered into several agreements with the Central Government to the effect that the Ruler cedes to the Dominion Government "full and exclusive authority, jurisdiction and powers for the governance of the State and agrees to transfer the administration of the State to the Dominion Government" with effect from a certain date and the Dominion Government will be competent "to exercise such powers, authority and jurisdiction in such manner and through such agency as they may think fit". The effect of this agreement to my mind is that the State or the Ruler on behalf of this State in each case has ceded to the Government of India the management or the "administration" of the State. That power which has been ceded to the Government of India may be exercised directly or through an agency. What I object to is that this management or rather administration cannot be exercised so as to destroy or alter the identity or the integrity of the State. What has happened is that these States, a large number of them, have been, by virtue of these agreements, actually amalgamated with the Province of Orissa. That, I submit, absolutely destroys their identity. Orissa is a Governor's Province under the Government of India Act. So far as these small States are concerned, their Constitutions are rather obscure, but they are totally dissimilar to the constitution of the Province to which they are to be amalgamated. I submit that while entrusting the governance or rather the administration of the States to the Government of India to be carried on directly or through agency, no power has been given to convert these States into a part of a Governor's province. They could be managed fully and with full authority by the Province of Orissa but without in the least affecting their integrity or character and cannot be merged as part of Orissa. That is the point which I wish to submit before the House. (Interruption).

With regard to the interjection of my honourable Friend, Mr. Ananthasayanam Ayyangar, he has pointed out that it is not actually merging the State in the Governor's province but that is to be treated only "as if" it is part of a Governor's province. I fail to see any real or practical distinction or difference between the two, though there is some verbal difference. In fact, these States are to be treated just like the province, and in effect these States are to be completely merged. or rather submerged, in the province. The words "as if" do not at all relieve the situation. To emphasise them would be to shut our eyes to reality- they are, in fact, already actually a part of Orissa. The House will be pleased to consider the well known legal position. In fact, when the British left, these States did attain some kind of independence or sovereignty. This was conceded by the Honourable Dr. Ambedkar during the debate on the consideration of the Draft Constitution. Some honourable Members had suggested that these States had no sovereignty, but on a proper consideration, the Honourable Doctor, presumably on behalf of the Government of India and in full concurrence with the Government, cleared the position, namely, that they have some kind of sovereignty. Call it a modified kind of sovereignty or inferior kind of sovereignty, but some kind of sovereignty they enjoyed.

With regard to this, there is a section in the Government of India Act, as adapted, enabling these States to accede and it may be by different documents. The accession, however, is strictly limited to the terms of the accession. That is absolutely clear from the Government of India Act, Section 6, Sub-section (2). In fact, the powers ceded or subjects acceded to must be clearly specified. In these circumstances, the question really will depend upon the construction you put upon the documents. One is the instrument of accession and the second is dated the 14th or the 15th of December
1947. There were a number of similar documents executed by many Rulers of States on or about these dates. These two documents are crucial and their terms would be extremely important and the question will depend upon what powers and jurisdiction and authority have been really conceded to the Government of India--keeping in view only one point, namely, the power to merge the State in a Governor's province as part thereof. Whether this power has been clearly, specifically or by necessary implication really granted is the only point. In interpreting the second document, which is really
material, namely, the document dated the 14th or 15th of December, I find there are certain difficulties and I wish frankly to state them before the House both for and against the interpretation which I am seeking to introduce. In the preamble to this document, there is the expression-

"Whereas in the immediate interest of the State and the people the ruler is desirous that the administration should be integrated as early as possible with the province of Orissa....."

In fact, the Preamble clearly states a desire that the States concerned should be integrated with the Province of Orissa.

Mr. Vice-President: Though I do really admit that I have very little knowledge of these matters, it does seem to me as though you are talking in a general way. You ought to talk about your own amendment. This is not general discussion. These things would have been more appropriate in the general discussion.

Mr. Naziruddin Ahmad: I bow to your ruling but this, as I am going to point out, is directly concerned with the point.

Mr. Vice-President: I am afraid I do not agree with you. I must ask you to speak on the amendment.

Mr. Naziruddin Ahmad: These are the matters in the amendment. I am stating before the House the difficulty which lies against my contention. I must fairly state that also.

Mr. Vice-President: Quite so. You have your conviction, but the House has its opinion also, and probably the conviction of 299 members is much more important than the conviction of a single Member.

Mr. Naziruddin Ahmad: Of course so, but every Member has the right to speak.

Mr. Vice-President: You are not to argue but to follow my suggestion.

Mr. Naziruddin Ahmad: What is your suggestion?

Mr. Vice-President: That you speak on your amendment.

Mr. Naziruddin Ahmad: I submit, Sir, that I was speaking on my amendment.

Mr. Vice-President: Directly then, not in a round-about manner.

Mr. Naziruddin Ahmad: I am not round-about.

Mr. Vice-President: I am afraid you are arguing. My opinion holds good here.

Mr. Naziruddin Ahmad: Of course, Sir. The difficulty is that the subject is a very intricate one. I submit that this desire for integration which is clearly against me appears only in the Preamble and not in the body of the agreement which is really the operative part, and it is a well known rule of interpretation that any wish or opinion or desire inserted in the Preamble is not effective and has no weight unless the same finds a place in the body of the document also. This rule is well established. I submit that in the body of article 1, which is really directly in point, it is said "full and exclusive authority and jurisdiction and powers" but only in relation to the governance or the administration of the State. The State only agrees for the above reasons that the administration should be transferred. There are two important points in this connection. One is that the agreement relates to the governance of the State and transfers the "administration". It does not transfer sovereignty, what remains of that sovereignty at the time of execution of the instrument of accession. Whatever is left as the remainder out of the rights that were carved out of that sovereignty, that remains. There is no mention of 'integration' in the body of the document. Only the right of administration has been transferred. I submit that in administering any property which is left to your care, you cannot alter its character. Supposing for instance any one is asked to administer a certain business, say a business in sugar. You ask a managing agent, or a Receiver or an Administrator to administer it. The managing agent or the Administrator has a quinine business. He converts the sugar business into a quinine business. Instead of producing something sweet, he produces some thing bitter. I submit, Sir, that you are going to do the same thing here. You are asked to administer a State with distinct and distinctive laws, rules, forms of constitution, forms of government. You want now to change them and convert it into a part of a Governor's province with different rules and constitution. It is not merely a physical combination between the two but a complete merger and a metamorphosis as a result of which the State loses its distinctive character and identity altogether. Suppose a man in difficulty left his wife to the care of a friend; the friend transfers the wife to some other friend, converting her as the latter's own wife. This is what is going to be done.

Mr. Vice-President: A not very happy illustration.

Mr. Naziruddin Ahmad: The power to administer is a power to manage. In managing or administrating a thing you cannot convert it to something else. That is the simple position. The Honourable Dr. Patel referred to certain legal opinion having been obtained for the States. There are opinions, not of insignificant lawyers like me, but some very weighty opinions like those of Sir T. B. Sapru and others which are against the legality of the merger. They are clearly of opinion--I think the opinion has been circulated to the Government of India also that it is illegal.

The Honourable Sardar Vallabhabhai J. Patel: This Department keeps away from outside legal opinion.

Mr. Naziruddin Ahmad: Quite so, the question should be considered, independently of any outside opinion, on its merits by the House. I submit that there is a body of weighty opinion, and the matter should be carefully considered. In these circumstances I submit that item (b) of sub-clause (1) really goes against the provision in the Agreement. I submit the Agreement should be carefully considered. I find there is nothing in the agreement which justifies the conversion, of a State of one kind to one completely of a different kind. This in short is the simple proposition which I submit. I must make it absolutely clear that in doing so I am actuated only by the desire to regularise things. If there is anything irregular or if there is any lacuna, I think the Rulers should be asked in their own interests to execute another document just to transfer this right so as to treat their States as part of a Governor's province.

Suppose at some future date..............

Mr. Vice-President: I have already given twenty minutes to the honourable Member.

Mr. Naziruddin Ahmad: Is it your desire that I should stop?

Mr. Vice-President: Yes.

Mr. Naziruddin Ahmad: Thank you, Sir.

Shri T. T. Krishnamachari: Sir, I move:

"That in clause 6, in sub-section (3) of the proposed new section 290-A, after the words `give such' the word 'supplemental' be inserted."

It is more or less a formal amendment. The words mentioned in the clause are `incidental' and consequential'. `Supplemental' is also necessary.

The Honourable Sardar Vallabhai J. Patel: I accept it.

Mr. Vice-President: Amendment No. 64 to be moved by Shri Himatsingka.

Shri Prabhudayal Himatsingka (West Bengal: General): Sir, I move:

"That in clause 6, in the proposed new section 290-B, for the words `by the Government of' the words `in all respects by' be substituted."

Section 290-A makes provision for the administration of certain acceding States which are being tacked on to the Chief Commissioner's provinces or Governor's provinces. This is the contrary case where any part of the area included in a Chief Commissioner's province is to be tacked on to some acceding State. I am therefore suggesting that it shall be administered in all respects, so that there may be no doubt as to the authority of the state to which it is tacked on, to administer in all respects, executive and legislative authority and other authorities. This will be on par with the previous provision.
The Honourable Sardar Vallabhbhai J. Patel: I accept it.

Shri T. T. Krishnamachari: Sir, I move:

"That in clause 6, in sub-section (2) of the proposed new section 290-B, after the words `contain such' the word 'supplemental' be inserted."

This is similar to the previous amendment, moved by me and I hope the House will accept it.

Mr. Vice-President: Clause 6 is now open for general discussion. I shall call upon the States' people because they are the people who are principally concerned. Mr.Gopikrishna vijayavargiya. I am sorry I cannot give you too much time.

Shri Gopikrishna Vijavargiya [United States of Gwalior-Indore-Malwa (Madhya- Bharat): Mr. Vice-President, Sir, I am not taking much of the time of the House and particularly I have to reply to the amendment moved here by Mr. Naziruddin Ahmad. I come from a State and I say it is not the rulers but it is the States' people who are most concerned in this affair. It is not a legal question really, although law is required everywhere, but it is a political question. We do not want to divide this country into so many pieces and so many principalities and, therefore, it has been a consistent demand of the people of the States that the several States must go and we should form one India, and so whatever the States Ministry has done and whatever agreements have been entered into, they are in the interests of the people. After all, the people of the so-called British Indian Provinces and the States are all one, and therefore whatever has been done is in the interests of the country. I must say, Sir, that the words `as if' are quite sufficient from the legal view point and it maintains whatever little distinction is necessary. I rather wish that these states should be completely obliterated from the face of India and not even this distinction should be maintained, and therefore, I will say that all these legal objections to this section must go and we must pass this section as it is here.

Shri Ratan Lal Malaviya (C. P. & Berar: States): *[Mr. Vice-President, Sir, I rise to support Honourable Sardar Patel's Bill seeking to amend the Government of India Act, 1935, and specially clause 6. The truth is that the Chhattisgarh States had an earnest desire that all of them should be merged in order that they may share in the progress being made by the provinces and also to make their own contribution to the progress of the country as a whole. When, on 14th December 1947, Honourable Sardar Patel reached Kattak, the representative of the Chhattisgarh States submitted to him a memorandum requesting for an early merger of the States on the lines followed in merging certain states in Orissa. I am glad that the Chhattisgarh States have been merged in C. P. On the 1st January, every where in the States, the merger celebrations were held and there was rejoicing among the people, After 1st January, i.e., after the States were merged, the Provincial Government tried its best to bring about improvement in the States and took certain measures in quick succession for their development which gave us satisfaction that the merger had been beneficial to us. But the Provincial Government could not pull on well with the representatives of the States. There arose there from some trouble which still continues. The amendment Act, which is before the House should be passed so that the State representatives may have the right to advise the Provincial Government and the State administration maybe conducted in the light of their advice. On the 1st January, i.e., one month after the merger, an Advisory Board for the States in Orissa was formed and their representatives were also taken in the Executive Council. But the C. P. Government could not do the same. The representatives of the States in C. P. tried for the formation of such a board. If C. P. had formed an Advisory Council to secure the cooperation in the matter of the State administration and had taken on the board some state representatives, there would have been no discontent. It maybe that there were difficulties owing to which the C. P. Government did not form such a board. But with the acceptance of this clause the difficulties, if any, would be removed.

Sir, in this connection I may inform you that since our representatives were not in any way associated with the Government of the Central Provinces, it happened that the reports submitted by State officials against our workers,--and I may add these were responsible workers.--were accepted by the Government in due course. Naturally this led to some trouble in the initial stages. Besides, as our representatives were not associated with the administration, many excesses were committed in the realisation of the land revenue. When we approached the Prime Minister and the Government with our grievances, the officials felt annoyed with us and started cases against our workers, and I may add that a number of workers have recently been sentenced to imprisonment. Similarly, rates in respect of forest were considerably enhanced which caused considerable discontent in the States.

The facilities which the States previously enjoyed were also curtailed and this too created resentment. If the Provincial Government had cared to secure our cooperation, as would be obligatory in future by virtue of this clause, the difficulties which we are facing today and the conditions that have been created would not at all have been there.

With the passage of this clause, the representative of the people would be able to render some services to the people and the people would have an opportunity of conveying their wishes to the Government. With these words, Sir, I commend clause 6 of the Bill and express my gratitude to Honourable Sardar Patel for bringing it forward.]*

Mr. Vice-President: Sardar Patel, do you wish to say anything?

The Honourable Sardar Vallabhbhai J. Patel: I have nothing to say.

Mr. Vice-President: I shall now put the amendments one by one to vote.

Amendment No. 38 standing in the name of Mr. Naziruddin Ahmad:

The question is:

"That in clause 6, in clause (a) of sub-section (1) of the proposed new section 290-A, the word `or' occurring at the end, the whole of clause (b) of sub-section (1) and the proviso to sub-section (1) be deleted,

or, alternatively,

That in clause 6, in clause (b) of sub-section (1) of the proposed new section 290-A, for the words `shall be administered', the words "shall with their consent be administered" be substituted.

or, alternatively,

That in clause 6, in sub-section (1) of the proposed new section 290-A, for all the words beginning with `the Governor General may by Order direct' to the end of clause (b) of the said sub-section, the following be substituted:-

"the Governor-General may by Order direct that the State or the group of States shall be administered in all respects as if the State or the group of States were-

(a) a Governor's or a Chief Commissioner's province, or

(b) with the consent of the State or States concerned, as part of a Governor's province.'"

The amendment was negatived.

Mr. Vice-President: Amendment No. 56 standing in the name of Mr. T. T. Krishnamachari.

The question is:

"That in clause 6, in sub-section (3) of the proposed new section 290-A, after the words `give such' the word 'supplemental' be inserted."

The amendment was adopted.

Mr. Vice-President: Amendment no. 64 moved by Mr. Prabhudayal Himatsingka.

The question is:

"That in clause 6, in the proposed new section 290-B, for the words `by the Government of' the words `in all respects by' be substituted."

The amendment was adopted.

Mr. Vice-President: Amendment No. 75 standing in the name of Mr. T. T. Krishnamachari.

The question is:

"That in clause 6, in sub-section (2) of the proposed new section 290-B, after the words `contain such' the word 'supplemental' be inserted."

The amendment was adopted.

Mr. Vice-President: The question is:

"That clause 6, as amended, stand part of the Bill."

The motion was adopted.

Clause 6, as amended, was added to the Bill.

Mr. Vice-President: We take up clause 7. Amendment No.80 standing of the name of Mr. T. T. Krishnamachari.

Shri T. T. Krishnamachari: Mr. Vice-President, Sir, I move:

"That in sub-clause (a) of clause 7, in the proposed paragraph 34 of the Federal Legislative List, the words 'trade and commerce (whether or not within a province) in, and production, supply and distribution of, products of such industries' be deleted."

Sir, the reason for this amendment primarily was different; but now, in view of the fact that article 2 has undergone a change and also in view of the fact that my honourable Friend Mr. Govind Vallabh Pant is going to move amendments numbers 87 and 88, this will be necessary in order to clarify the position, because the words that are now sought to be omitted are being put in List III of Schedule 7, by the amendments Nos. 87 and 88. I hope the House will accept this amendment.

The Honourable Pandit Govind Ballabh Pant: With your permission, Sir, I should like to move....

Mr. Vice-President: All the three amendments?

The Honourable Pandit Govind Ballabh Pant: Yes, Sir: amendments 84, 87 and 88. I move:

"That in sub-clause (b) of clause 7, in the proposed paragraph 27 of the Provincial Legislative List, for the words `34 of List I' the words `31 (A) of List III' be substituted."

"That in sub-clause (c) of clause 7, in the proposed paragraph 29 of the Provincial Legislative List, for the words and figures `34 of List I' the words and figures `31-A of List III' be substituted."

"That in clause 7, the following new sub-clause be inserted at the end:-

`(d) after paragraph 31 of the Concurrent Legislative list the following paragraph shall be inserted as paragraph 31(A):-

31(A). Trade and commerce in, and production, supply and distribution of, products of industries, the development of which is declared by Dominion law to be expedient in the public interest under paragraph 34 of List I.'"

Sir, all the four amendments Nos. 80, 84, 87 and 88 are inter-connected and interlinked and they must stand or fall together. According to the Bill, development of industries where development under Dominion control is declared by Dominion law to be expedient in the public interest, regulation and control of such industries, trade and commerce (whether or not within a province) in, and production, supply and distribution of, products of such industries, were to be included in List I. That is, all these subjects were to be brought within the exclusive jurisdiction of the Federal Legislature and the Federal Government. Now, that would have led to several other difficulties and complications. We all realise that so far as development of industries, where development under Dominion control is declared by Dominion law to be expedient in the public interest and regulation and control of such industries should vest in the Centre. According to the entry already contained in the Federal Legislative List, development of industries where development under Dominion control is declared by Dominion law to be expedient in the public interest, is already included and there is no intention of making any change so far as that is concerned. But, as proposed in this amendment regulation and control of such industries should also be placed under the jurisdiction of the Federal Legislature. So, so far as the first two parts of this clause are concerned, they will stand as they are. But with respect to the rest, that is, trade and commerce (whether or not within a province) in, and production, supply and distribution of, products of such industries, it is proposed by the series of amendments to which I referred at the outset, that these should be included in the Concurrent List and consequential changes should be made in the other amendments. So, the main point that is before the House is whether trade and commerce (whether or not within a province) in, and production, supply and distribution of, products of such industries should or should not be transferred from this class to List III, that is, instead of being included in List I they should form part of List III.

I think honourable Members will agree that the amendments that I am proposing will serve the purpose which the original clause had in view fully and will at the same time avoid other difficulties and complications which might arise if these items were not included in the Concurrent List. For, by including these in the Concurrent List, the power is vested in the Centre to legislate with regard to these matters. Power is also vested by virtue of clause 2, which has already been amended, to appoint agents directly for the administration of any of these subjects so that the Centre can have plenary, comprehensive and if it so chooses even exclusive control with regard to these matters. But, whatever the Centre may do, I venture to submit that it will still be necessary for the provinces to exercise a number of functions within their own provincial boundaries with regard to these matters. So, if these are made the exclusive charge of the Centre, then, the provinces will not be free to discharge the duties and obligations which will necessarily devolve on them. In order to enable the provinces to play their part subject to the overriding powers that will now vest in the Centre, it is necessary to include these items in the Concurrent List and that is what I propose. Even now when we have got the Essential Supplies Act, the Centre generally frames a few basis rules and leaves the rest to the provinces. We in the provinces have been issuing orders rules and regulations with regard to these matters in our respective provinces. Whatever be the position hereafter, it will still be necessary for the provinces to exercise these powers. In our own province for example, we propose to introduce a bill so that the distribution of building materials may be regulated, that no steel or iron or coal etc, be supplied for the purpose of any building which is likely to cost more than Rs. 25,000. That is under our consideration. Now unless these items are included in the Concurrent List, we have no power to introduce such a bill in our Legislature. Besides, as I said, if these items are placed in List I, the Centre will not find it possible to administer these subjects in an efficient way. They require a very extensive network and I think it is not possible for the Centre to manage these things without the active co-operation and support of the provinces. So I propose that the amendments to which I referred at the outset be accepted unanimously by the House.

Mr. Vice-President: There are two amendments which have to be considered further. The one is No. 9 in the name of Mr. Naziruddin Ahmad which is disallowed as verbal.

Mr. Naziruddin Ahmad: It should be considered by the Draftsmen.

Mr. Vice-President: I suppose it will be. Is it necessary to hold a general discussion on this clause?

Honourable Members: No.

Mr. Vice-President: Then I shall put the amendments to vote one after another.

The question is:

"That in sub-clause (a) of clause 7, in the proposed paragraph 34 of the Federal Legislative List, the words 'trade and commerce (whether or not within a province) in, and production, supply and distribution of, products of such industries' be deleted.'

The amendment was adopted.

Mr. Vice-President: The question is:

"That in sub-clause (c) of clause 7, in the proposed paragraph 29 of the Provincial Legislative List, for the words and figures `34 of List I, the words and figures 31-A of List III be substituted."

The amendment was adopted.

Mr. Vice-President: The question is:

"That is clause 7, the following new sub-clause be inserted at the end:-

(d) after paragraph 31 of the Concurrent Legislative List the following paragraph shall be inserted as paragraph 31(A):-

31(A). Trade and commerce in, and production, supply and distribution of, products of industries, the development of which is declared by Dominion law to be expedient in the public interest under paragraph 34 of List I."

The amendment was adopted.

Mr. Vice-President: The motion is:

"That clause 7, as amended, stand part of the Bill."

The motion was adopted Clause 7, as amended, was added to the Bill.

Mr. Vice-President: The question is:

"That clause 1 and the Long Title form part of the Bill."

There is an amendment to this.

Shri. T. T. Krishnamachari: Mr. Vice-President, I move:

"That for clause 1 the following clause be substituted:--

'Short title and commencement.

1. (1) This Act may be called the Government of India (Amendment) Act, 1949.

(2) It shall come into force on the 15th day of January,1949."

Sir, the first sub-clause is necessary because the date has to altered and the second one precisely states when the Act will come into force.

Sir, I move.

Mr. Vice-President: I now put the amendment to vote. The question is:

"That for clause 1 the following clause be substituted:-

'Short title and commencement.

1. (1) This Act may be called the Government of India (Amendment) Act, 1949.

(2) It shall come into force on the 15th day of January,1949."

The amendment was adopted

Mr. Vice-President: The motion is:

"That clause 1, as amended, stand part of the Bill."

The motion was adopted.

Clause 1, as amended, was added to the Bill.

Mr. Vice-President: The question is:

"That the Long Title and the Preamble stand part of the Bill."

The motion was adopted.

The Honourable Sardar Vallabhbhai J. Patel: Sir, I move:

"That the clauses 1(A), 2, 3 and 4 be renumbered as clauses 2, 3, 4 and 5 respectively."

Mr. Vice-President: The question is:

"That the clauses 1(A), 2, 3 and 4 be renumbered as clauses 2, 3, 4 and 5 respectively."

The motion was adopted.

The Honourable Sardar Vallabhbhai J. Patel: Sir, I move:

"That the Bill, as amended, be passed."

Mr. Vice-President: The question is:

"The Bill, as amended, be passed."

The motion was adopted.

Mr. Vice-President: The House stands adjourned till ten tomorrow.

The Assembly then adjourned till Ten of the Clock on Thursday, the 6th January 1949.