Constituent Assembly Debates (proceedings)- volume VII
Dated: December 07, 1948
The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock, Mr. Vice-President (Dr. H. C. Mookherjee) in the Chair.
DRAFT CONSTITUTION -(Contd.)
Article 15 -Contd.
Mr. Vice-President (Dr. H. C. Mookherjee) : We can now resume general discussion on article 15.
The Honourable Dr. B. R. Ambedkar (Bombay : General) : Sir, May I request you to allow this matter to stand over for a little while?
Mr. Vice-President : Is that the wish of the House?
Honourable Members : Yes.
Article 20Mr. Vice-President : Then we can go to the next article, that is article 20. The motion before the House is:
"That article 20 form part of the Constitution."
I have got a series of amendments which I shall read over. Amendment No. 613 is disallowed as it has the effect of a negative vote. Nos. 614 and 616 are almost identical; No. 614 may be moved.
The Honourable Dr. B. R. Ambedkar : Sir, I move:
Sir, it was just an omission. Honourable Members will see that these words a
lso govern article 19; as a matter of fact they should also have governed article 20 because it is not the purpose to give absolute rights in these matters relating to religion. The State may reserve to itself the right to regulate all these institutions and their affairs whenever public order, morality or health require it.
Mr. Vice-President : I can put amendment No. 616 to the vote if it is to be pressed. Has any Member anything to say on the matter?(Amendment No. 616 was not moved.)
Mr. Vice-President : There is, I understand, an amendment to amendment No.
614 in List No. VI. Is that amendment to amendment being moved?
Mr. Naziruddin Ahmad (West Bengal : Muslim): Yes, Sir, I move:
Sir, the amendment moved by Dr. Ambedkar just now is also to the same effect. I should think that instead of the expression "subject to public order, morality and health" this expression would be better. The expression "ensuring public order etc.," is perhaps better than "subject to public order etc." This type of draftsmanship has been adopted in other places in the Constitution.
(Amendments Nos. 15 and 16 in List I and Nos. 615 and 617 were not moved.)
Shri Lokanath Misra (Orissa : General) : Sir, I move:
One who has a right to establish and maintain an institution for religious and charitable purposes ought also to have the right, unless such institutions offend against public order and morality or any established law, to manage and administer the same. Otherwise, there will be difficulty.
Syed Abdur Rouf (Assam : Muslim) : Sir, I beg to move:
We are dealing here with a subject which empowers religious denominations to have the right to establish and maintain institutions for religious and charitable purposes only. Religious education is as important as religion itself. Without religious education the charitable purposes or religious purposes would lose all meaning. Therefore, I hope my amendment would be accepted by the House.
(Amendments Nos. 17 of list 1, 620 and 622 were not moved.)
Mr. Naziruddin Ahmad : Sir, I beg to move:
Clause (c) provides for acquisition of movable and immovable property. It does not mention incorporeal property. Copyright is incorporeal property. It is neither movable nor immovable. The amendment would perhaps fill in a lacuna.
(Amendments Nos. 623 to 625 were not moved.)
Mr. Vice-President : Article 20 is for general discussion.
Shri Jaspat Roy Kapoor : (United Provinces : General) : Mr. Vice-President, Sir, while I accord my support to article 20, I must confess that I do not feel happy over the phraseology of it or the scope of it. I very much wish that in clause (a) thereof, the words `and charitable', were deleted. The article then should have read:
Sir having conceded the right of free profession of religion and propagation of religion, surely, it is a necessary corollary that the right to establish and maintain religious institutions should be also conceded. But to concede it as a fundamental right that any religious denomination or section thereof can maintain a charitable institution exclusively for its own benefit and deny its benefit to any other section of society is certainly repugnant to the idea of fraternity and common nationality.
Let us clearly understand what the implications, the mischievous implications I should say, of this article are. It means that I, as a member of the Hindu religious community or even as a member of a section of that community called Khatris, have the right, derive the right under this article 20, to establish say piao or place where water is served to all. Under this article. I will have it as a fundamental right to establish a piao and serve therein water only to the Khatris or to other caste Hindus and not to other sections of the Hindu community, much less to Muslims or Christians. This means that there can be a Christian, hospital where only Christians may be admitted and a non-Christian, however badly he might need medical service and even if he were lying at the door of the Christian hospital dying there, may be refused admission in the Christian hospital. It means that the upper class Hindus shall have it as a fundamental right to establish a piao, refusing at the same time water to members of the Scheduled castes. It means, Sir, that the Muslims in a Muslim `sabil' may impose restrictions for the service of water to non-Muslims. I have been always told that serving free water to all without distinction of caste or creed is a very religious act according to Islamic law. I wonder if my Muslim friends want that they should be conceded this as a fundamental right. I wonder if my depressed or Scheduled caste friends would like that the upper caste Hindus should have this as a fundamental right that they can establish a piao where members of the Scheduled castes shall be denied water. I am sure neither my Muslim friends nor my Scheduled caste friends want to concede this as a fundamental right.
One of my Christian friends, Sir, for whom I have very great respect, and I may also say, very great affection-he may not be knowing it-told me the other day that a particular section of the Christians would like to have a hospital of their own where at the time of their death or at their last moments they may get the service of Christian priests. Sir, it is not my intention that they should not have this privilege and facility. They can have this privilege and facility not only in their own hospitals but in every hospital in the country. The question is not whether they should have this facility in their own hospital or in other hospitals; but it is whether it should be open to a Christian hospital to say that no non-Christians shall be allowed entry therein. I am not a Christian; but I have very great respect for the Christian religion, and I make bold to say that such an act on the part of any Christian management would certainly be a non-Christian act. Why then, Sir, should such a right be conceded as a fundamental right?
Our society already stands disunited today. There are so many castes and creeds and communities in it. We have been tolerating these communal institutions and we may have to tolerate them for sometime more. The deletion of the words `and charitable', let there be no mistake about it, will not take away the existing right or the existing concession. This is not a right. This is rather a concession to the weakness of the society. So, let this concession continue until society as a whole voluntarily realises that this is something which is against the interests of the country as a whole, something which is against the unity of the Nation and something which is against the idea of fraternity and brotherhood. Until Society voluntarily realises it, let the concession remain. But the question is, must this right or concession hereafter be recognised by a statutory law, and not only recognised as a right, but be granted also the sanctity, the glory and the dignity of fundamental right?
I would appeal to the honourable Members to realise the grave implications of the existence of the words `and charitable'. I will quote an instance from my own place which may perhaps bring home to honourable Members the gravity of the situation that might arise after we have passed the present article in its present form. In my place, a number of years ago, an upper class Hindu established a piao in a particular locality and service of water therein to the Scheduled castes was prohibited. This led to great resentment amongst us, particularly amongst Congressmen. They approached the orthodox section of the Hindu community and entreated them to remove this restriction. The orthodox people refused to agree. Ultimately, as a result thereof, there was a communal riot. Thereafter, partly by our appeal and partly by pressure, we could make them withdraw those restrictions. But, Sir, if the Constituent Assembly includes in the list of Fundamental Rights this very restriction or right of exclusion as a fundamental right, these orthodox people will fling this sacred book of our Constitution at our face and say: "How foolishly you are talking after giving us the right to impose such restrictions in respect of our piao ".
The highest body in the land, the sovereign constitution making body of the land having conceded it as a fundamental right, what business have you now to tell us that we are in the wrong and that we should throw open our piaos to all sections of the Hindu community? Therefore, Sir, I would respectfully appeal to this House to agree to delete these words.
I am told, Sir, that the retention of these words is in the interests of the minority communities. I fail to see how it is in the interests of any minority community. I fail to see how it is in the interests of even the majority community. The minority communities, it will be readily conceded, are not so rich as the majority community. Probably all the minorities put together are not so rich as the majority communities. So the majority community, if it so wishes, can establish charitable institutions in much larger numbers than the minority communities and if such majority charitable institutions restrict their use, their benefit, to the members of the majority community, surely it is the minority communities who will suffer and not the majority community, though the majority may have this thing as a black spot on their face; but that is another thing. I would, therefore, appeal to the members of the minority communities here to agree to the deletion of these words. If they agree to the deletion of these words, I am sure the House will unanimously agree to delete these words and improve this article. If they do not agree to this, we must accept this article as it stands as we must not do anything which is not agreeable and acceptable to them.
With these words, Sir, I support article 20, not of course with any great pleasure but with some regret and disappointment, making a last minute appeal to the House to agree to the deletion of these words. If need be, Sir, I would appeal to my honourable Friend, Dr. Ambedkar, to postpone the final disposal of this clause and consult members of the minority communities whose champion he undoubtedly is whether they are agreeable to the deletion of these words and then amend the article accordingly.
One more point, Sir, one more reason for suggesting the deletion of these words, though this may not be of any great strength. Sir, at the last moment I am urging this poor argument because it does sometimes happen that when strong arguments fail, weak and poor arguments prevail. The heading of this sub-chapter is "Rights Relating to Religion" and surely, Sir, these words "and charitable" do not properly fit in this chapter at all. If for no other reason, at least on the grounds of technicality, I would appeal to my honourable Friend, Dr. Ambedkar, to agree to the deletion of these words. With these words. Sir, I support article 20.
Mr. Tajamul Husain (Bihar : Muslim) : Mr. Vice-President, Sir, I had no intention of speaking on this article but I find that my honourable Friends who have just spoken have been appealing to the minorities. I want to tell the House, Sir, that there is no minority in this country. I do not consider myself a minority. In a secular State, there is no such thing as minority. I have got the same rights, status and obligations as anybody else. I wish those who consider themselves as the majority community would forget that there is any minority today in this country. (An honourable member: Hear, hear.) Now, Sir, with regard to article 20, as far as I understood, my honourable Friend the last speaker wants clause (a) to be deleted. I will just read clause (a) of article 20:-
Now, Sir, this article gives the right to everybody-it does not matter to what religion he belongs or what religion he professes-to have his own private religious institutions if he so wants. If a person has got money and at the time of his death he wants to make a will and dedicate his property to some charitable purpose or religious purpose of a private nature, I do not think, Sir, that people should object to it. After all, as I have said already, religion is a private matter between the individual and his Creator, and if I, Sir, wish that my property should be utilised for a particular purpose after my death, I see no reason why the State should interfere with it. It is not a matter of public interest. After all it is a private individual who wishes that his religion should be observed in a particular manner.
Kazi Syed Karimuddin (C. P. and Berar: Muslim): What does the honourable Member have in his mind, a private or public institution?
Mr. Tajamul Husain:
"Every religious denomination or any section thereof shall have the right-
(a) to establish and maintain institutions for religious and charitable purposes-
These are the exact words in the article. I want these words to remain where they are. I do not want these words to be deleted.
The Honourable Dr. B. R. Ambedkar : I have nothing to say.
Mr. Vice-President : I will now put the amendments, one by one, to vote. The question is:
"That in the beginning of article 20, the words "Subject to public order, morality and health," be inserted."
The amendment was adopted.
Mr. Vice-President : The question is:
"That article 20 be numbered as clause (1) of that article and the following new clause be added at the end, namely:-
'(2) Nothing in clause (1) of this article shall affect the operation of any existing law or prevent the State from making any law for ensuring public order, public morality and public health.' "
The amendment was negatived.
Mr. Vice-President : The question is:
"That in clause (a) of article 20, after the word "maintain" the words 'manage and administer' be inserted."
The amendment was negatived.
Mr. Vice-President : The question is:
"That in clause (a) of article 20, for the words 'religious and charitable purposes' the words `religious, charitable and educational purposes' be substituted."
The amendment was negatived.
Mr. Vice-President : The question is:
"That in clause (c) of article 20, for the words 'and immovable property' the words `immovable and incorporeal property' be substituted."
The amendment was negatived.
Mr. Vice-President : The question is:
That article 20, as amended, be adopted.
The motion was adopted. Article 20, as amended, was added to the Constitution
New Article 20-A
Mr. Vice-President : Now we come to amendment No. 626 by Mr. Mahboob Ali Baig. I disallow this because two similar amendments have been rejected by this House. These two amendments are No. 612 and No. 440. We now pass on to article
Mr. Vice-President : We shall consider the amendments one by one. Amendment No. 627 is out of order as it has the effect of a negative vote. (Amendments Nos. 628, 629, 630, 634, and 631 were not moved.)
Amendment No. 632. The first part of this amendment standing in the name of Syed Abdur Rouf is disallowed as being nothing but a verbal amendment. So far as the second part is concerned, I can allow it to be moved.
Syed Abdur Rouf : Sir, I beg to move:
"That in article 21, after the word `which' the words 'wholly or partly' be inserted."
If my amendment is accepted, Sir, the article will read like this: "No person may be compelled to pay any taxes, the proceeds of which wholly or partly are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination." If my amendment is not accepted, a person may be compelled to pay taxes, the proceeds of which will partly be appropriated for religious purposes. This is certainly not desirable, and I think that unless my amendment is accepted, the very intention of this article will be frustrated. Therefore, Sir, I hope that my amendment will be accepted by the House.
Mr. Naziruddin Ahmad : Mr. Vice-President, Sir, I beg to move:
"That in article 21, for the words `the proceeds of which are' the words `on any income which is' be substituted."
Sir, the purpose of the previous amendment will be served by my amendment and they must be considered together. The article says "No person may be compelled to pay any taxes the proceeds of which etc." If my amendment is accepted, it would read like this: "No person may be compelled to pay any taxes on any income etc." Sir,
taxes are paid not on the proceeds, but on the income. Proceeds rather imply the gross receipts. Taxes do not apply to proceeds, but really to income. In fact, there is the further limitation of this `proceeds' which are specifically appropriated for payment of the expenses for the promotion or maintenance of any particular religious or
charitable denomination. My point is that you do not appropriate the gross proceeds of any undertaking or any property to any religious or charitable denomination. The reason is that what you appropriate for religion or religious denomination is the income, that is, the gross receipts minus collection expenses and other things. I submit, Sir, that the word `income' is the more appropriate word, and if this is accepted, the difficulty pointed by Mr. Syed Abdur Rouf, while moving his amendment No. 632, will also be met. In fact, he and I felt that there is some difficulty in the context and the amendments are directed towards the same purpose.
(Amendments nos. 635 and 636 were not moved.)
Mr. Vice-President : The article is now open for general discussion.
Shri Guptanath Singh (Bihar : General): *[Mr. Vice-President, I am surprised at the fact that today we are going to perpetuate by article 21 the innumerable atrocities that have been perpetrated in India in the name of religion. It states that the
property, which a person holds in the name of religious institution, would be exempted from all taxation. I hold that the property in India which stands in the name of some religion or some religious institutions such as temples, mosques and churches, is extremely detrimental to the interests of the country. That property is of no use to the Society. I would like that in our Secular State such type of folly be ended once for all
in our country. The State is above all gods. It is the God of gods. I would say that a
State being the representative of the people, is God himself. Therefore it should certainly have the right of taxation every type of property. Therefore, the property held in the name of religion and by religious institutions should certainly be taxed. I fear that if this article is not deleted from the Constitution, the majority of capitalists and Zamindars will try to donate their property for the advancement of religion and posing as the champions of religion would continue to perpetrate high handedness in the name of religion. Our state will become bankrupt as a consequence of the drying up of the source of taxation. I, therefore, pray that we should not make this constitution in such a way as to benefit only the Mullas, the Pandits and the Christian priests. I do not think I have any thing more to add what I have already said in this connection.]
Shri M. Ananthasayanam Ayyangar (Madras : General): Sir, I oppose both the amendments. The article says that no tax shall be imposed the proceeds of which will be specifically ear-marked for supporting any religious denomination. Syed Abdur Rouf's amendment desires that we should use the words "wholly or partly". I believe the whole includes the part, and therefore, that amendment is unnecessary. The other amendment moved by Mr. Naziruddin Ahmad (amendment No. 633) absolutely is inconsistent with the object of the article. The article says that unlike in the past
where particular kings imposed a kind of tax to give importance to the religion which
they professed, the article is intended to see that no such tax is imposed in any name or form, the proceeds of which will be ear-marked for encouraging any particular denomination or sect.
Mr. Naziruddin Ahmad, on the other hand, wants by his amendment to exempt the income of all temples and religious endowments. This has no bearing at all to the matter on hand. What article 21 requires is that no tax shall be imposed by the State the proceeds of which are to be appropriated for the maintenance of any particular religious denomination. I request that the article may be allowed to stand as it is. In the past we have had various Kings belonging to various denominations levying taxes
in various shapes and forms. The Muhammadan Kings recovered a particular kind of tax for supproting Mosques. The Christians did not do so in this country. The ancient Hindu Kings collected a cess called the Tiruppani cess for supporting a particular temple or temples in my part of the country. In a secular State where the State is expected to view all denominations in the same light, and not give encouragement to any one particular denomination at the expense of others, this provision is absolutely necessary. This is part and parcel of the Charter of liberty and religious freedom to see that no particular denomination is given any advantage over another denomination. This article is very important and it safeguards the interests of all minorities and religious pursuits. I therefore, appeal to the members who have moved these amendments not to press them and to accept the article as it stands.
The Honourable Dr. B. R. Ambedkar : I do not accept amendment No. 632 or amendment No. 633.
Shri H. J. Khandekar : (C. P. and Berar : General) : Sir, I want to speak.
Mr. Vice-President : I am afraid it is too late. I shall now put the amendments to the vote.
The question is:
"That in article 21, after the word 'which' the words 'wholly or partly' be inserted."
The amendment was negatived.
Mr. Vice-President : The question is:
"That in article 21, for the words 'the proceeds of which are' the words 'on any income which is' be substituted."
The amendment was negatived.
Mr. Vice-President : The question is:
"That article 21 stand part of the Constitution."
The motion was adopted. Article 21 was added to the Constitution.
Mr. Vice-President : The motion before the House is:
"That article 22 form part of the Constitution."
'The first amendment is No. 637. It is out of order as it has the effect of a negative vote. Amendment No. 638, first part, is disallowed as it has the effect of a negative vote. Amendment No. 638, second part may be moved.'
(Amendments Nos. 638 and 639 were not moved.) Amendment No. 640. You can move only one alternative.
Mr. Mohamed Ismail Sahib (Madras : Muslim): I shall move the first alternative, Sir.
Sir, I beg to move:
Sir, article 22 in the Draft Constitution as it stands puts a taboo on all religious instruction being given in State-aided schools or State educational institutions. It is not necessary for a secular State to ban religious education in State institutions. Sir, it will not be in contravention of the neutrality or the secular nature of the State to impart religious instruction. It will be going against the spirit of the Secular State if the State compels the students or pupils to study a religion to which they do not belong. But, if the pupils or their parents want that religious instruction should be given in the institutions in their own religion, then, it is not going against the secular nature of the State and the State will not be violating the neutrality which it has avowedly taken in the matter of religion. My amendment purports to make a leeway in case religious instruction is required to be given in the schools; it puts the matter in a negative form. It does not say that religious instruction must be imparted at all costs in education institutions; it only says, no compulsion shall be put upon anybody to study in any school, a religion, to which he or she does not belong. Therefore, my amendment is quite harmless and it does not go in any way against the spirit of the Constitution.
Sir, the necessity of imparting religious instruction has been recognised in many countries which are non-religious in nature. They have made religious instruction even compulsory, that is, compulsory with regard to those people who want such instruction to be given to the children in the religion to which they belong. They have not thought it fit to ban religion altogether from their Secular State. Therefore, I hold that we shall not be doing anything in violation of the secular nature of our State if we do not ban religious instruction altogether. As my amendment proposes, we shall leave the matter to the future, to the Parliament. According to my amendment, we are not saying anything now positively about religious instructions: we are only saying, no body shall be compelled to have religious instructions in a religion to which he does not belong. Whether to give religious instructions or not may be left to Parliament. According to my amendment, that is my proposal, Sir.
Prof. Shibban Lal Saksena (United Provinces: General): Mr. Vice-President, Sir, the amendment which stands in my name is further sought to be amended by me in amendment No.19 of List I. I will therefore formally move the amendment as it is. The amendment which I had originally given is this-
To this, Sir, I have given notice of an amendment No. 19 in List I which says- "That clauses (1) and (3) of article 22 be deleted."
I find that deletion of clause (1) is not accepted by Dr. Ambedkar but I would like to say what I really want to say on this.
Mr. Vice-President : What about amendment No. 20?
Prof. Shibban Lal Saksena : I am not moving it. This gives freedom to impart religious instructions in certain educational institutions outside its working hours. Now, Sir, what is really intended is this, that no minority community shall be compelled to have religious instruction in a religion not his own. That is the real purpose. But although I fully appreciate the purpose, I find that this clause is worded in too general terms and it will preclude the majority community from even imparting any religious instruction to their children because of the minorities. While minorities should not be compelled to have religious instructions against their wishes, they should be provided facilities for having their religious education if the number of their children is sufficient. It should not be forbidden to provide religious education by the State. Now, after partition of this country, about 30 to 33 crores will be the majority community and if these people want that their children should have education in their religion, they will not be able to have it if this article is passed. This is not fair. What I want is that they should be enabled to have instruction in their religion provided the same facilities they are prepared to afford to children of other denominations, if the number is sufficiently large. This is the second alternative of Mr. Mohd. Ismail's amendment but he has moved the first alternative. The second was a good one. This clause as it stands will really preclude the majority from giving religious education to their children. For example the District Board in Gorakhpur will not be able to teach Gita to children in the schools. I think this should not be so. These big scriptures of the world are really meant to develop the morality and tolerance and they should be taught and I do not wish that anything in the Fundamental Rights should forbid this. I discussed this with Dr. Ambedkar and I have said that clauses (1) and (3) should be deleted, so that this would prevent anybody from forcing any instructions against their wishes, but it would not have precluded the State from imparting instruction in religion to the children of various denominations if the number was sufficient. Clause (3) is absolutely useless. It only says-
But I want that clause (1) also should be deleted because in that case it will be possible for the State to impart instruction in religion, in Gita, in Sermon on the Mount etc., to the children in the schools but not force this instruction on anybody against his wishes. So I want that only clause (2) should remain and it should be permissible to the State to give instruction in religion to children according to their desire and choice and if their guardians permit. This is what I wish but if it is not acceptable. I am not insisting on the deletion of the first part. But clause (3) should be deleted. But I would request Dr. Ambedkar to see that the clause does not forbid the institutions in the State from giving religious instruction. This clause is too wide and should be redrafted to include this.
Mr. Vice-President : Amendment Nos. 642 and 647 are of similar import and should be considered together. No. 642 may be moved.
(Amendment No. 642 was not moved.) Amendment No. 647-Prof. K. T. Shah.
Prof. K. T. Shah (Bihar : General): Sir, I beg to move-
Sir, the clause as amended would be thus-
Sir, with all the goodwill in the world I cannot understand the reason for this particular wording that the authors of the original clause have adopted. Their stressing the word 'wholly' is, in my eyes, very intriguing. If they had not said `wholly' and simply stated `maintained out of public funds' one could have understood. But if they say that `religious instruction is to be provided in any institution completely, or wholly maintained out of State funds', then I begin to question what could conceivably be the intention of the Draftsmen in putting forward these particular words. Is it the intention of the Draftsmen, that if every single pie of expenditure in connection with a given institution is met exclusively out of State funds, then, and then only, should religious instruction be prohibited there?
An Honourable Member : Yes.
Prof. K. T. Shah: If that is your intention, as somebody I hear says, then I am afraid it is impossible to agree; and I venture to submit that the principle enunciated by the opening words would be strangely belied by that wording. If, for instance, there are in the educational institution some scholarships which come from private endowments, so that the total bill is met as to 99 per cent out of State funds, and as to 1 per cent out of these endowments, then it could be said that it is not wholly maintained by the State; and, on the strength of that 1 percent of endowments or grant or donation, you will have to open the door to the provision of religious instruction. By such religious instruction is, of course, generally meant Denominational Instruction, in a public institution.
Surely that could not have been and that should not be allowed to be the meaning and interpretation of a Section like this. All institutions, or most of them, subject to the exception that is added by way of proviso-to which I will come later in another amendment-all institutions or most of them are maintained wholly or partly out of public revenues, whether they are in the form of the entire bill footed by the State, or in the shape of some grants, or in the shape of fees, etc. received from the public by regular charge: and, as such, no public institutions, as I understand it, would be free from an incursion of any particular Religious Instruction of a denomination- and even, may I say of a controversial character.
If you permit one, you will make it impossible to refuse admission to another. That means that in a public institution, any number or any section of people who are being educated there, if only one donor can be found for each to endow a particular scholarship, or to provide for some particular item of expenditure, let us say, library grant, or some item of laboratory equipment, or some small donation for general purposes, and couple it with the condition that Religious Instruction shall be provided therein for that particular sect to which the donor belongs, then I am afraid, your educational institutions will be converted into a menagerie of faiths. There will be unexpected conflicts and controversies; and the very evil which you are out to stop by the opening words, which seem to me to enshrine a sound principle, would be all the more encouraged and supported so to say, by public countenance.
That is a state of things, which I, for one, thought must have been farthest from the intention of the draftsmen. But it seems to me, from the voice I heard a minute ago, that it is not quite as far from the intentions of the draftsmen, as in my innocence I had assumed, and it appears there is some sort of ulterior motive or arriere pensee which has guided the draftsmen in introducing the present wording.
Speaking for myself, if not for any considerable section of the House, I would like entirely to dissociate the State in India from any such interpretation as this. If you desire to exclude, as I think is but right, Religious Instruction from public institutions maintained from common funds, whether they be the entire expenditure of such institution, or whether they be a part only by way of a grant or by way of fees, or scholarships, or endowments of any kind met by the State out of public revenues, then it would be absurd,-I think it would be inconsistent with the basic principle of this constitution to permit Religious Instruction on the excuse that part of the expenditure is met by other than State funds.
The term "state funds" itself is very suspicious in my eyes. What exactly is meant by State funds? The draft, as I have complained more than once, is peculiarly defective in that there is a woeful lack of any definitions, so that words can be used in any sense that the occasion may require, or the vagaries of the interpreter might
suggest. In the absence of any definition, specially in this connection, one is entitled to put whatever interpretation seems to one to be reasonable, to have been probably intended by the draftsmen. And in the light of that assumption, I feel that this clause needs amendment by the addition of the words "wholly or partly maintained from public revenues or State funds."
I would not object to the words "state funds" as such so much as I would object to the omission of the word "partly", which I think, must be inserted if this basic principle, if our governing ideal, is to be fully carried out, namely, that no Religious Instruction, which is inevitably of a Denominational character, should be imparted in any public educational institution maintained wholly or partly out of public funds.
I think, Sir, that the intrinsic commonsense, the intrinsic honesty and clearness of this amendment, are so great that no objection would be raised to it, and I trust I would not be disappointed in that respect.
Mr. Vice-President : Amendment No. 643, standing in the name of Sardar Hukam Singh.
Sardar Hukam Singh (East Punjab : Sikh): Sir, I beg to move-
Sir, I am conscious that the definition of the words "the State" as given in article 7 is very comprehensive and it include all authorities whether of the Centre or of the States, and it does include local bodies as well. Even then, I feel that the object would not be fulfilled, if we do not add these words "or permitted" as I have proposed. We are going to build a secular State. The Object of this article, so far as I have understood it, is to prohibit all religious instructions in those institutions which are maintained by the State. If the article were to stand as it is, then it would mean that the State would not provide or I might say, any authority would not provide any religious instruction in such institutions. I presume the object is not economic; we are not safeguarding against the State spending funds on imparting religious instructions, but we are providing, rather, against imparting religious education in these institutions. And in that case, our object cannot be served unless we definitely prohibit that in these institutions. Even if no provision is made for the imparting of such religious education, it should also not be permitted. I may say that the staff might take it into its head though the State has not made any provision, the imparting of such instruction, and might start imparting such religious instructions; or a particular teacher, say, might begin in his class the imparting of such instructions. Then, so far as the article stands, it would not be offended against by the action of the teacher or the staff. That object can only be achieved if we definitely ban the imparting of such instructions, when we are making the State a secular one. Therefore, I move that after the words "shall be provided", the words "or permitted" should be added, so that there would be no chance for such religious instruction being imparted in any case, institutions that are to be controlled and subsidised by the State.
Mr. Vice-President: Amendment No. 644, standing in the name of Sardar Bhopinder Singh Man.
Sardar Bhopinder Singh Man (East Punjab : Sikh) : Mr. Vice-President, Sir, I beg to move:
and allow the sub-clause to run as follows:-
and thus keep up the strict neutrality of the State so far as religious matters are concerned, and to maintain the secular character of the State. Sir, I, as a member of the minority community, wholeheartedly welcome it and I believe that the State should function along that principle laid down in this article, and that in all spheres of State activity, the members of the minority community shall be left no cause of apprehension or fear and that it will happen very soon. However, Sir, I wonder why this article is permitted to remain so incomplete, because only educational institutions are mentioned here. Probably educational institutions were mentioned because in the popular opinion, they are the only places where religious instructions are given. But I may point out that there are other places or institutions which are completely and wholly maintained by State funds and which in modern times can be used as a vehicle for religious or communal propaganda very effectively. To mention one such vehicle, there is the radio. We all know how effectively it can be used as a platform for religious propaganda day after day. I want that this article should conform to its own logical conclusion and that it should be made complete, and that religious or communal propaganda should be prohibited in all state-owned institutions. Otherwise, to me it looks useless that you should prohibit communal or religious propaganda in one institution but allow it to go full blast in other spheres of activity. For example, take the Army itself; religious and communal propaganda can very easily be imparted there. I want that religious instruction should expressly be prohibited not only in educational institutions but in all institutions which are maintained by the State.
Mr. Vice-President : Amendment No. 645 standing in the name of Dr. Ambedkar.
The Honourable Dr. B. R. Ambedkar : Sir, I move:
The object of this amendment is to remove a possibility of doubt that might arise. If the words "by the State" remain in the draft as it now stands, it might be construed that this article permits institutions other than the State to give religious instruction. The underlying principle of this article is that no institution which is maintained wholly out of State funds shall be used for the purpose of religious instruction irrespective of the question whether the religious instruction is given by the State or by any other body.
Mr. Tajamul Husain : Mr. Vice-President, Sir, I move:
Clause (1) of this article reads thus:-
This means that religious instruction can be provided in any educational institution which is partly maintained out of State funds or which are not maintained out of State funds at all. The result would be that all private and aided schools and colleges and pathshalas and maktabs will impart religious instruction to boys and girls. I submit that this should not be allowed in a secular State. Much has been said on this subject by the previous speaker and I do not wish to go into detail, but the only thing I would like to say is, what is the use of calling India a secular State if you allow religious instruction to be imparted to young boys and girls? By this article you do not prevent if parents want to give religious instruction to their children-they are at liberty to do so at home, and nobody will object to it. In fact, every parent gives his child education well before he goes to school; generally what happens in this country is that all religious instruction is given to a boy before he attends the school; and that should be done, it is the duty of the parents to educate their children according to their own ways. But I object to a public institution, whether maintained by Government or partly maintained by Government, imparting religious instruction.
With these words, I commend my amendment to the House.
Mr. Vice-President : Amendment No. 648 is disallowed as being verbal. (Amendments Nos. 649, 650 and 652 were not moved.)
There is amendment No. 653 standing in the name of Prof. K. T. Shah.
Prof. K. T. Shah : Mr. Vice-President, Sir, I beg to move:
The proviso as amended would read:-
I would refer in this connection also to some of the arguments that I advanced previously, namely, that is could and should not be the intention or meaning of this proviso, that anybody who endows, say, a Chair, a Library, a Laboratory, or some department in a College or School, should be able to say that Religious Instruction should be provided in his behalf or of his type, even though his Trust or Endowment is not enough to meet the entire expenditure of that institution.
It would be a simple proposition, as I understand this proviso to the clause as it stands, for anybody to make a Trust or Endowment, sufficient, let us say, to meet part of the cost, e.g., building and furniture; then divest himself of the care and responsibility of managing that institution, hand it over to the State, earn cheap immortality and the title of being a munificient donor, and then ask the State to carry on the institution and also to provide Religious instruction therein, negativing the principle on which the clause to which this is a proviso was founded.
The idea, as I have understood this clause, would be defeated and the clause turned into a grotesqueness I think, if such should be the result. Perhaps, it was not intended to be so twisted out of the intention. My amendment, therefore only seeks to make it clear and explicit.
Even so, I am, for my part, not entirely satisfied that any excuse should be left to provide Religious Instruction of a particular character in any public institution managed by the State, and of which only a part, or even the whole of the expenditure is coming from the grant, Trust fund or Endowment that a donor has made.
This will be the negation, I repeat, of the basic principle on which this clause is based. The omission of the words "by the State", under an amendment just moved by the Chairman of the Drafting Committee would, if adopted-and I suppose it will be adopted-make the position still more complicated, unless it be that by a consequential amendment the authorities themselves would see that the words "by the State" here are also omitted. I do not know that they would be omitted here. I am just suggesting a possibility or conveying a hint which may reconcile, to some extent, the main clause with the proviso.
Whether or not these words are deleted from the main clause, and whether or not these words are retained in this proviso, the objection I am urging will apply all the same. I hold that it should not be open to anybody to make a trust for an educational institution in the first instance and then hand over its management to the State and demand that in that institution, simply on the ground that the founder has been providing the capital or recurring cost of that institution, there shall be religious instruction of the type favoured by him or professed by him.
I still believe that it could not be really the intention of the authors of this clause; and this proviso which would permit any such irregularity or exception should be made explicit in the way I am trying by this amendment to do. I trust that commonsense, if not legal sense, will assert itself; and the substance, if not the actual form, of my amendment will be accepted.
(Amendments Nos. 654, 655 and 657 were not moved.)
Mr. Vice-President : Amendment No. 656 is disallowed as being verbal.
Shri H. V. Kamath (C. P. and Berar : General) : Mr. Vice-President, I move-
I move this amendment with a view to obtaining some clarification on certain dark corners of these two articles-articles 22 and 23. I hope that my learned Friend Dr. Ambedkar will not, in his reply, merely toe the line of least resistance and say "I oppose this amendment", but will be good enough to give some reasons why he opposes or rejects my amendment, and I hope he will try his best to throw some light on the obscure corners of this article. If we scan the various clauses of this article carefully and turn a sidelong glance at the next articles too, we will find that there are some inconsistencies or at least an inconsistency. Clause (1) of article 22 imposes an absolute ban on religious instruction in institutions which are wholly maintained out of State funds. The proviso, however, excludes such institutions as are administered by the State which have been established under an endowment or trust-that is, under the proviso those institutions which have been established under an endowment or trust and which require, under the conditions of the trust, that religious instruction must be provided in those institutions, about those, when the State administers then, there will not be any objection to religious instruction. Clause (2) lays down that no person attending an institution recognised by the State or receiving aid out of State funds shall be required to take part in religious instruction. That means, it would not be compulsory. I am afraid I will have to turn to clause 23, sub-clause (3) (a) where it is said that all minorities, whether based on religion, community or language, shall have the right to establish and administer educational institutions of their choice. Now, is it intended that the institutions referred to in the subsequent clause which minorities may establish and conduct and administer according to their own choice, is it intended that in these institutions the minorities would not be allowed to provide religious instruction? There may be institutions established by minorities which insist on students' attendance at religious classes in those institutions and which are otherwise unobjectionable. There is no point about State aid, but I cannot certainly understand why the State should refuse recognition to those institutions established by minorities where they insist on compulsory attendance at religious classes. Such interference by the State I feel is unjustified and unnecessary. Besides, this conflicts with the next article to a certain extent. If minorities have the right to establish and administer educational institutions of their own choice, is it contended by the Honourable Dr. Ambedkar that the State will say: `You can have institutions, but you should not have religious instructions in them if you want our recognition' . Really it beats me how you can reconcile these two points of view in articles 22 and 23. The minority, as I have already said, may establish such a school for its own pupils and make religious instruction compulsory in that school. If you do not recognise that institution, then certainly that school will not prosper and it will fail to attract pupils. Moreover, we have guaranteed certain rights to the minorities and, it may be in a Christian school, they may teach the pupils the Bible and in a Muslim school the Koran. If the minorities, Christians and Muslims, can administer those institutions according to their choice and manner, does the House mean to suggest that the State shall not recognize such institutions? Sir, to my mind, if you pursue such a course, the promises we have made to the minorities in our country, the promises we have made to the ear we shall have broken to the heart. Therefore I do not see any point why, in institutions that are maintained and conducted and administered by the minorities for pupils of their own community the State should refuse to grant recognition, in case religious instruction is compulsory. When once you have allowed them to establish schools according to their choice, it is inconsistent that you should refuse recognition to them on that ground. I hope something will be done to rectify this inconsistency.
Shri Jaspat Roy Kapoor : Sir, I beg to move:
My reasons are four. Firstly, this clause is in conflict with clause (1) of article 22 which reads: "No religious instruction shall be provided in any educational institution wholly maintained out of State funds:" I am of course reading clause (1) as it will stand after the amendment moved by Dr. Ambedkar is incorporated. So that, while clause (1) lays down that no religious instruction shall be imparted in any institution which is maintained wholly by the State, clause (3) lays down that such religious instruction can be imparted out of working hours. Obviously, therefore, these two are in conflict with each other. If clause (1) is to remain, clause (3) must go. Clause (3) cannot stand in the face of clause (1).
My second reason is that the retention of clause (3) is likely to lead to conflict between the different religious denominations, because different religious denominations may claim the right to impart religious instruction to their pupils in any institution at the same time and in the same premises. That will certainly lead to a good deal of conflict. The convenient time for imparting religious instruction, after working hours, is very limited and several religious denominations may like to impart religious instruction to their pupils in the same premises and at the same convenient hour. This will place the head of the educational institution concerned in a very embarrassing position. He may be in a dilemma as to whom he should grant permission and to whom not. If a particular denomination is refused permission it might make a very serious grievance of it and, even may, in order to exercise the fundamental right granted to that community, seek forcible entry into that institution. This is likely to lead to communal and religious riots. The retention of this clause being full of mischievous potentialities, it must be deleted.
My third reason is that the management of a denominational institution may not like that religious instruction in a different religion from its own should be imparted there. A Muslim school which may perhaps be run within the precincts of a mosque would surely not like religious instruction to Hindus being imparted there in Vedic Dharma. So also, an educational institution run by Arya Samajists would surely not like religious instruction in Koran being imparted in the premises of that institution. For this reason also this clause must go.
My fourth reason is that it is absolutely unnecessary in view of clause (2). Clause (2) already provides that religious instruction can be imparted by the management of an educational institution provided of course the students agree to it or if they are minors their guardians agree to it. Such instruction can be provided not only during working hours, but even outside working hours. So it is unnecessary in view of clause (2). For these reasons I submit that clause (3) should be deleted.
Mr. Mohamed Ismail Sahib : Mr. Vice-President, I beg to move:
Clause (3) of article 22 refers mainly to institutions envisaged in clause (1) thereof. Therefore I think that instead of the word `providing', the words "being permitted to provide" will be more appropriate. I say this because, the institutions being State institutions, permission ought to be sought for and given for making any provision for imparting religious instruction in the schools. A religious denomination or community cannot go straightaway and say:
That is not possible. Therefore to make it more intelligible and reasonable, I want the substitution of the word "providing" by the words "being permitted to provide".
Then, Sir, I want the insertion of the words "in, or" after the words "educational institution" with these words the clause will read as follows:-
I want that permission should be given to a community for providing religious instruction in as well as outside working hours. It is only with the permission of the authorities of the institution that such provision will be made. Therefore, if the authorities find it practicable to include religious instruction inside the working hours, there is no harm. Such provision is really to be made in the interests of the pupils as a whole. As I said, this clause 23, has a bearing on clause (1) which deals with State institutions. Now, Sir, what is the objection to State institutions banning religious instruction altogether and for all time? The situation is this: Now, almost all the primary schools will become State institutions shortly and if no religious instruction is to be given in State schools, the position will be that up to fourteen or fifteen years of age boys and girls shall have no opportunity of getting religious instruction. To say that religious instruction should be given in their own homes or outside school hours is an impracticable proposition. Educational experts will readily agree that giving religious instruction outside school hours will be a burden which should not be placed on pupils of tender age. Moreover, we know what sort of instruction can be given outside school hours. Therefore, Sir, this important matter of religious instruction ought not to be treated in this step motherly fashion. People talk of trouble arising on account of religion. As I have been saying more than once, it is not really religion that is the source of trouble. It is the misunderstanding of religion that is the source of trouble. The point is that pupils must be made to understand what religion really is and for that purpose you must not leave them to learn their religion here and there in the nooks and corners of a village or a city. If religious instruction is to be in the interests of the pupils as well as the State, it should be given in public educational institutions where the followers of every religion will do their best to present their religion in the best light. This can be done, Sir, only if religious instruction is allowed to be given in the public State-owned institutions, where people will compete with each other to show the best of their religions to the world and thereby undesirable rivalries, competitions, bickerings and heart burings will really be eliminated. Sir, the second world war has turned people back to religion. Many European writers say that because people went away from religion, discarded religion, because they did not allow religion to be imparted to their children in their tender age, this calamity happened. Therefore, many political writers themselves are now stressing the need for religious instruction in State schools; moreover, we find that several constitutions in European countries have provided for the compulsory imparting of religious instruction in their respective countries. Therefore, I say not only that it is not harmful but I say that it is necessary, that it is very essential that every pupil must be taught his or her own religion in their proper age and that can be done only when they are in the primary schools. Therefore, when all these primary schools are going to be State schools, the State should not ban religious instruction altogether. As I said in a previous amendment, this must be left to the Parliament. There may be practical difficulties with regard to certain communities but these difficulties must be left to the Parliament to be dealt with according to circumstances. Because there may be difficulties for some people, certain other communities should not be deprived of their right of imparting religious instruction to their children. I once again want to stress the fact that it is in the interest of the State to give a grounding to children in religion. What is wanted for the stability of society as well as the State is moral grounding, moral background, and the only way to give this moral background is through religion. The world has so far failed in its experiences to find another substitute for religion. Even the hardboiled politicians are now turning their faces towards religion. When the whole world is returning to religion, we are here discarding religion, we belonging to people who think that religion is an inalienable part of our lives. If we want to avoid all the distressing experiences that the West has experienced, we should allow religious instruction to be imparted to pupils in the primary schools. If this is done, everything will be well and there will be happiness for all. That is why I say that permission should be given at least to the religious communities to arrange for religious instruction in or outside school hours as the case may be according to circumstances.
That may be left to the future legislature.
(Amendment No. 663 was not moved.)