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.
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