Constituent Assembly Of India - Volume VII
Dated: December 07, 1948
Mr. Vice-President: Amendment No. 664. Professor K. T.Shah.
Prof. K. T. Shah : Mr. Vice-President, Sir, I beg to move:
Sir, the whole group of clauses lays down a principle of "no religious instruction in public educational institutions" and then seeks, as it seems to be the case, throughout this Chapter to find holes and crevices by which it can creep in like a thief in the dark, and undo the very basis and foundation of the structure we are seeking to erect.
I am free to confess that, apart from the variety of exceptions, exemptions or limitation, all sought to be imposed by this article upon its basic principle,-there is the difficulty of ambiguity of expression, the lack of clarity or insufficiency in the terms used, which makes it very difficult to devise an amendment, which might be effective in substance as well as in form, and bring out the idea more clearly and expressly than the draftsman seems to have done.
I mention one instance of ambiguity in terms, which, unfortunately, occurs also in the amendment which I am proposing, though there is, I think, no ambiguity in the term used in my amendment containing the expression 'State funds'. The term fund, as I have understood it, means in common parlance, and I venture to submit, even in legal technical terminology, not revenue or recurring income. That term means something static, something accumulated and existing, something that is what the lawyers would call 'corpus', even if they understand the Latin term in the Latin sense, 'Revenue' is something different.
Now take the clause about Institutions maintained from State funds. I for one find it very difficult to understand what 'funds' are meant here as intended by the draftsman for the maintenance of institutions. I am, of course, not anxious to read Bhagvat before buffaloes. But I must say that in trying to understand the meaning of this article, I feel it necessary to at least expose my own difficulties and handicaps in understanding precisely the terminology used, and seek clarification from those who have the handling, the making, and drafting of this Constitution in their hands.
I make no secret of the fact that I am against public educational institutions being used for providing Religious Instruction in this country, or any country, but in this country particularly, because of the variety of sects and denominations. They are, of course, called each a religion; but they very often forget the basic truth of all religion, and exalt each its own particular brand or variety of it, as any advertizer in the market lauds his own wares. But even assuming that that is permissible, outside office hours so to say, outside the normal school hours, care must at least be taken that that is not done at the expense of the normal education, and all the requirements of that education and training, in the shape of building, staff, equipment, standards, methods etc.
Now, it is by no means clear, at least in this clause(3), as it stands, that even if instruction is permitted or suffered to be provided outside the normal hours, whether that may be done at the expense of the ordinary curriculum. That will have to be, I take it, enforced in every school, whether maintained by public funds, or not. I insist, therefore, in this Amendment, that whoever wishes to provide such instruction, whatever community desires to provide such instruction, may do so, if you so agree, by its own funds. But they must be sufficient to meet the full cost; and in the full sense of the term, it must be after the school hours, in such a manner that there is no prejudice whatsoever of the ordinary curriculum prescribed standards of attainment, methods of instruction, equipment, etc.
This, in my opinion, is liable very seriously to be sacrificed and endangered if you do not introduce some such safeguard as I am seeking to make by my amendment. Our only weapon is that, if any community so desires to insist upon the pre-eminence if not exclusive importance being given to religious instruction, and is prepared to spend monies thereafter, let it do so. But the State should certainly not recognise any education given in such an institution, and in training equipment provided by that institution, unless it conforms to the public standards, and public requirements of such education and training being given up to a prescribed degree.
I have some experience of educational institutions trying to ignore, in one respect or another, one or all of these requirements. Those who have had experience of inspecting these institutions and reporting upon them to the appropriate authorities will realize what I mean when I say that the greatest difficulty lies in keeping these institutions up to a given mark, and to see from time to time that these standards are maintained.
In countries where a common standard prevails, this difficulty also exists. But in countries where there are conflicting ideals, namely secular education, material considerations in professional training and technical training, and at the same time there is, so to say, the demand of specialized religious instruction, I am afraid one or the other of these may suffer in order that the former or the latter may succeed. I feel it is imperative to require that not only shall all the funds for the provision of such instruction be supplied by the community which desired to provide it, but in addition, on pain of its education being not recognized, on pain of its degrees, diplomas and certificates not being accepted as sufficient qualification for its alumini when they seek any post or office, they shall see to it that the standards, equipment, buildings, staff and other requirements of the national system of education, and its code of regulations are fully complied with. If that is done, then probably the great evil which I find in the provision of religious instruction in a country like this would be mitigated, if not eliminated altogether.
(Amendment No. 665 was not moved.)
Mr. Vice-President : The clause is now open for general discussion.
Shrimati Renuka Ray (West Bengal : General): Mr. Vice-President, Sir, while supporting this article, there are one or two points on which I should like some elucidation. Prof. K. T. Shah has brought forward a point which really needs to be cleared up. Part (1) of this article says: "No religious instruction shall be provided in any educational institution wholly maintained out of state funds". There is likelihood of this being misinterpreted in the future, so as to nullify its very object. As he has pointed out even if a small donation is paid to a public school, it can be held that such a school is not wholly maintained out of State funds, and therefore denominational religious instruction may be given. I hope that when Dr. Ambedkar speaks, he will clearup this point because it is a very important one. If such interpretation can be given then it is necessary to have safeguards against it.
In this country we have seen the exploitation, and the prostitution of what we call religion and we have seen to our bitter cost what is done in the name of denominational religion. It has not only led to the dis-memberment and division of our country, but it has not also led to the worst horrors that could be perpetrated in the name of religion. Now, when we are building for the future, we must build in such a manner that we are able to do so untrammelled by the legacy of the past. The only real way in which this could be done is to see that the next generation are educated in such a manner that they are not actuated by motives that divide and disintegrate man from man, but that the religion of humanity is much greater to them than religious dissensions on a denominational religious basis. If that is to be so, we must be very careful, now that we are building up the Constitution for the future, that there shall not be in the fundamental rights any kind of confusion as to the kind of instruction that is to be given at least in those institution that are maintained out of public funds. If we use this word "wholly", there is likely to be this confusion that has been already pointed out and I would like to hear from Dr. Ambedkar if it is possible for him either to accept this amendment or at least to assure the House that no such interpretation will be possible in the future.
I would again urge that he should accept in particular the amendment for the deletion of clause (3) which has been moved by Mr. Jaspat Roy Kapoor, because as he has pointed out there is no doubt that if this clause remains, there is likelihood that in a certain area where there may be a small number of schools or only one school, a fight between the various denominations as to which particular type of religious instruction should be given out of school hours may ensue. Therefore, it is much better that clause (3) be deleted from this article.
I am sure that all those in this House and the country outside will agree with me that above all things, it is necessary that the instruction that is given to the citizens of the future shall be such that the idea of a Secular State in which all citizens are equal comes into being, and the provision for this adopted in our Constitution becomes a living reality. This can only be done if education which is the very basis on which we build our Society is so imparted to the young that they do not learn to realise the distinctions which separate man and man, but rather to learn that the underlying unity of humanity is more fundamental and the basis of religion to which they must adhere.
Shri V. I. Muniswami Pillai : (Madras : General): Mr. Vice-President, Sir, when we are on the very important work of evolving a secular State for this country, I feel that the second clause in article 22 is a very important one and I welcome it.
Sir, it will be in the knowledge of this sovereign body that certain institutions in the past, due to the aid that was given by the former Government, under the garb of imparting education to the masses, have taken a different stand. This has led to masses of the unfortunate communities embracing a religion that was not their own. This article makes it clear that any educational institution receiving aid from the State should not indulge in matters of religious education. This mostly helps those unfortunate communities that have fallen a prey in this respect.
Sir, further it goes to say that in the case of a minor, unless the parent has given his consent, he should not be given religious instruction or required to attend any religious worship. I feel, Sir, it is not always possible for the parents to give this consent and the institutions that are working in the rural areas and outskirts of towns will not get the genuine consent of the parents in this respect. This important duty of seeing whether the consent given is genuine and true, falls upon the local authorities who will have to verify and create agencies so that the students or pupils that are attending any institutions of certain denominations are not converted to other religions. This is my emphatic plea and I am hopeful that the local Government will take care about what is said about consent. I entirely welcome the provisions of this article 22 of the Constitution.
Shri V. S. Sarwate : [United States of Gwalior- Indore-Malwa (Madhya Bharat)]: Mr. Vice-President, Sir, I rise to support this article as it stands except clause (3). As I see it, I think article 20, 21 and 22 are to be read together. Certain propositions evolve out of them. The first is that the State is secular and it shall not impart any religious education in schools maintained by itself. Further, clause (1) of article 22 lays down that the States hall not give any religious instruction in such schools as are entirely maintained out of State funds and these shall not be allowed to give religious education. This is the first proposition. But, it does not follow that the State either bans religion or despises it. Its attitude is perfectly neutral. Article 20 allows any religious denomination to have its own schools. As I read article 21, I understand it to mean that if any particular community wants to tax itself for the purpose of imparting religious education, the Government would help it by undertaking to collect such a tax. What is done by article 21 is this: that the State will not force anybody to pay such a tax. But, it may collect and pay over to such communities, if the communities agree to pay a particular tax for the purpose of imparting religious education. As I see from the word 'wholly' I do think that if the State wants to partially aid any school which is imparting religious instructions, it is enabled to do so and I think it is right. If any community does maintain a school and imparts particular religious education and it deserves help from the State, the State should be in a position to give such aid. Therefore, the word 'wholly' is necessary and I oppose the other amendment which has been moved inserting the words `or partly'. One need not be obsessed by what happened in the past. I know and I have read in schools and colleges where certain religious education was imparted. I am grateful for the teachings which I received there but there were certain objectionable features. In one educational institution there was a religious instruction imparted in the first hour and if we did not attend in that hour, we were marked absent for the rest of the periods. In another college where I learnt, it was necessary that we attended a religious worship and if we did not attend it, we were subjected to certain fines. These were objectionable features and these are to be removed. They are removed by clause (2). Nobody is required to attend such religious worship or to attend such classes where religious education is given. But it does not prohibit the State from giving aid to such institutions; what is only meant is nobody against his will will be required or forced and compelled to receive such education or attend such religious worship, and I think this is a very salutary provision and also the permission which is given to the State to aid such institutions is also necessary. Otherwise I believe certain very good institutions in the country would suffer.
Kazi Syed Karimuddin : Mr. President, Sir, in my opinion the provisions of article 22 except clause (3) are very salutary and I really do not understand how these provisions have been opposed by Mr. Ismail from Madras. In the state of things as they stand today, in my opinion, it is much better for the minorities to avoid religious controversies, conflicts and religious dogmas to be taught in the schools and we have seen in the past, as several speakers the other day have said, that in Missionary schools people were persuaded to have conversion form one faith to the other because of the undue influence or monetary gains. Now in a secular State, where religion will be a personal matter, my submission is that in educational institutions wholly managed or wholly aided by the Government or State, religious education should not be provided. It is said, Sir, that unless religious education is given in the schools financed by the State it would not be possible for the minorities to be educated in their religion. My submission is that if the communities want that their children should be educated or should be given religious education, then it will be their duty to educate their children in Pathsalas or schools. The amendment moved by Professor Shah in my opinion cannot be acceptable at the present stage. His amendment is that no religious instruction should be provided by the State in any educational institution wholly or partly maintained out of public funds. Today as things stand in India there is Aligarh University, there is Banaras University and there are several colleges run by the Christian Missionaries which are aided by the Government. If his amendment is accepted today there will be hundreds and thousands of institutions which will be closed down immediately. Let us proceed very cautiously. For that the provision in clause (2) is very salutary. In aided schools or institutions in which there will be no compulsion on the students to take a particular religious education. I think the opposite point of view can be partially met by clause (2). It has also been stated that the word 'educational' should be removed from clause (1) and it is stated that Radios may be used to propagate and teach a particular religion. This is a State which has been declared to be secular and if a secular State decides to propagate a particular religion through radios, it will not be worth the name that it is a secular State. In my opinion it is more a question administrative policy and the word 'educational' need not be taken away from clause (1).
Sir, it has been stated that religious education should be given at home. I also oppose this. In aided schools run by communities religious education can be given and the amendment of Mr. Tajamul Husain cannot be accepted that religious education should be given at home. I contemplate a position that if parents are atheists-for instance Mr. Tajamul Husain by another amendment demands that the people should have no name and they should not have any particular dress-in that case, there will be no religious education in their houses; and if people are only to be known by numbers and not by names, then it will be very difficult for them to be educated or instructed in religious theology. Therefore my submission is that article 22 as it stands is not to the disadvantage or detriment of the minorities.
But I really object to clause (3). What has been given in clauses (1) and (2) has been taken away in clause (3). It says-
But who would be responsible for imparting the religious education in such institutions? Any outside agencies who would be giving religious instructions to the boys may not be acceptable to the authorities and moreover much mischief will be done if this religious education is given in outside hours by people who are irresponsible and by people who will be recklessly teaching boys that may be to the detriment of the nation. Therefore I support article 22 as it stands with the deletion of clause (3).
Shri M. Ananthasayanam Ayyangar : Sir, I support the article as it stands without clause (3). Instead of Professor Saksena's amendment, I would urge that the House may accept amendment No. 661. Mr. Saksena's amendment originally as it stands is that both clauses (1) and (3) of this article may be omitted but when moving the amendment he gave up the portion relating to clause (1) and pressed his amendment in regard to clause (3). Instead of that amendment No. 661 relating exclusively to the deletion of clause (3) may kindly be accepted. Sir, in supporting this clause in this article, I am very much pained that religious instruction is not to be taught in any school in a country which is full of religion. Inside our schools, we may refuse to teach religion to the children. But outside the schools we cannot forget our denominations. Religion, according to me, is the basic foundation of any society; all morality, and all good principles have to be traced to religion. But situated as we are, it is unfortunate that we are not able to come to any arrangement regarding the teaching of religion to our children in our schools.
Sir, there are two sets of amendments moved regarding this article. One requires that various provisions for the teaching of religion in the schools must be made for all the children. Another set of amendments wants that the stringent provisions of today against the teaching of religion should be made even tighter, and that even in cases where educational institutions are not exclusively run by the State and where the State does not maintain the institution wholly, no religious instructions should be imparted, and that even in institutions which are partly aided by the State, or are recognised by the State, religion ought not to be taught. That is another set of amendments. I, Sir, feel that neither the one nor the other set is possible in the circumstances in which we are situated today. We are pledged to make the State a secular one. I do not, by the word 'secular', mean that we do not believe in any religion, and that we have nothing to do with it in our day-to-day life. It only means that the State or the Government cannot aid one religion or give preference to one religion as against another. Therefore it is obliged to be absolutely secular in character, not that it has lost faith in all religions. Not even members incharge of the Government have lost faith in religion. I am sure none of us is to that extent an iconoclast or non-believer. We all do believe in some religion or other, including those who have spoken and taken part in the deliberations about this article in the Constitution. But it is regrettable that we have not been able to evolve a universal religion, a religion where the religions practices need not cloud the issues. We all believe in the existence of one God, in prayer, in meditation and so on. We all believe in the ultimate surrender to Him and that by sacrifice and service alone we can hope to realise Godhead. These are common to all religions. The Bhagavat Gita lays down that by sacrifice and service we have to see Godhead inhumanity, that service to humanity is the essence of God. I will not go into all the details; suffice it to say that I regret that in the circumstances in which we are, we are not able to teach religion to our children. If we introduce the teaching of one religion, even if there is only one boy belonging to another religion in that school, we have to make provision for the teaching of his religion also. And we know very well that even under one religion there are sects and sub sects. There are Hindus of various sects. And then there is Jainism, Buddism, Christianity, and there are the Muslims, the Parsis and so on. Therefore it is not possible, it is physically impossible for the State to make provisions for the teaching of all the religions. The only thing, under the circumstances that we can do is to avoid religious instructions in State-aided schools. If a small contribution is made by some agency and religious instruction is provided, it will all the same, be controlled by the local authority, and if the teaching is rabid, and if hatred is being taught in the school, certainly the grant can be withheld and other measures adopted to stop that kind of thing. It is not obligatory upon the State to give its grants irrespective of the way in which the educational institution is being run. So we need not think that religious instruction will be given in an institution where the major portion is contributed by the State and a small contribution-may be a farthing-is contributed by some other agency. We need not make it part and parcel of the Constitution here. I am sure no government would contribute 99 per cent and allow an educational institution to impart religious education because 1 per cent comes from some other source. Therefore, we need not accept either the one set of amendment or the other set, but confine ourselves to amendment No. 661 and amendment No. 645.
Mr. Vice-President : Much as I would like to accommodate other members, for whose opinions I have great respect, I find we have already had a number of speakers. Twelve amendments have to be put to vote. Nine amendments have been moved and I think six speakers have already spoken. I feel this article has been discussed sufficiently. I now call on Dr. Ambedkar to speak.
Pandit Lakshmi Kanta Maitra (West Bengal : General) : Sir, I want to get one or two points cleared. I am not going to make a speech. I want only to get one or two points explained.
Mr. Vice-President : I have already given my ruling. I cannot allow any further speeches, especially as you and I belong to the same Province.
Pandit Lakshmi Kanta Maitra : Belonging to the same province has nothing to do with this. I only wanted to have clarification on one point.
Mr. Vice-President : My decision is final, Panditji. Dr. Ambedkar.
The Honourable Dr. B. R. Ambedkar : Mr. Vice-President, Sir, out of the amendments that have been moved, I can persuade myself to accept only amendment No. 661 moved by Mr. Kapoor to omit sub-clause (3) from the article, and I am sorry that I cannot accept the other amendments.
It is perhaps, desirable, in view of the multiplicity of views that have been expressed on the floor of the House to explain at some length as to what this article proposes to do. Taking the various amendments that have been moved, it is clear that there are three different points of view. There is one point of view which is represented by my friend Mr. Ismail who comes from Madras. In his opinion, there ought to be no bar for religious instruction being given. The only limitation which he advocates is that nobody should be compelled to attend them. If I have understood him correctly, that is the view he stands for. We have another view which is represented by my friend Mr. Man and Mr. Tajamul Husain. According to them, there ought to be no religious instruction at all, not even in institutions which are educational. Then there is the third point of view and it has been expressed by Prof. K. T. Shah, who says that not only no religious instruction should be permitted in institutions which are wholly maintained out of State funds, but no religious instruction should be permitted even in educational institutions which are partly maintained out of State funds.
Now, I take the liberty of saying that the draft as it stands, strikes the mean, which I hope will be acceptable to the House. There are three reasons, in my judgment, which militate against the acceptance of the view advocated by my friend Mr. Is mail, namely that there ought to be no ban on religious instructions, rather that religious instructions should be provided; and I shall state those reasons very briefly.
The first reason is this. We have accepted the proposition which is embodied in article 21, that public funds raised by taxes shall not be utilised for the benefit of any particular community. For instance, if we permitted any particular religious instruction, say, if a school established by a District or Local Board gives religious instruction, on the ground that the majority of the students studying in that school are Hindus, the effect would be that such action would militate against the provisions contained in article 21. The District Board would be making a levy on every person residing within the area of that District Board. It would have a general tax and if religious instruction given in the District or Local Board was confined to the children of the majority community, it would be an abuse of article 21, because the Muslim community children or the children of any other community who do not care to attend these religious instructions given in the schools would be none-the-less compelled by the action of the District Local Board to contribute to the District Local Board funds.
The second difficulty is much more real than the first, namely the multiplicity of religious we have in this country. For instance, take a city like Bombay which contains a hetrogeneous population believing in different creeds. Suppose, for instance, there was a school in the City of Bombay maintained by the Municipality. Obviously, such a school would contain children of the Hindus believing in the Hindu religion, there will be pupils belonging to the Christian community, Zoroastrian community, or to the Jewish community. If one went further, and I think it would be desirable to go further than this, the Hindus again would be divided into several varieties; there would be the Sanatani Hindus, Vedic Hindus believing in the Vedic religion, there would be the Buddhists, there would be the Jains-even amongst Hindus there would be the Shivites, there would be the Vaishnavites, Is the educational institution to be required to treat all these children on a footing of equality and to provide religious instruction in all the denominations? It seems to me that to assign such a task to the State would be to ask it to do the impossible.
The third thing which I would like to mention in this connection is that unfortunately the religions which prevail in this country are not merely non-social; so far as their mutual relations are concerned, they are anti-social, one religion claiming that its teachings constitute the only right path for salvation, that all other religions are wrong. The Muslims believe that anyone who does not believe in the dogma of Islam is a fakir not entitled to brotherly treatment with the Muslims. The Christians have a similar belief. In view of this, it seems to me that we should be considerably disturbing the peaceful atmosphere of an institution if these controversies with regard to the truthful character of any particular religion and the erroneous character of the other were brought into juxtaposition in the school itself. I therefore say that in laying down in article 22 (1) that in State institutions there shall be no religious instruction, we have in my judgment travelled the path of complete safety.
Now, with regard to the second clause I think it has not been sufficiently well- understood. We have tried to reconcile the claim of a community which has started educational institutions for the advancement of its own children either in education or in cultural matters, to permit to give religious instruction in such institutions, notwithstanding the fact that it receives certain aid from the State. The State, of course, is free to give aid, is free not to give aid; the only limitation we have placed is this, that the State shall not debar the institution from claiming aid under its grant-in- aid code merely on the ground that it is run and maintained by a community and not maintained by a public body. We have there provided also a further qualification, that while it is free to give religious instruction in the institution and the grant made by the State shall not be a bar to the giving of such instruction, it shall not give instruction to, or make it compulsory upon, the children belonging to other communities unless and until they obtain the consent of the parents of those children. That, I think, is a salutary provision. It performs two functions....
Shri H. V. Kamath : On a point of clarification, what about institutions and schools run by a community or a minority for its own pupils-not a school where all communities are mixed but a school run by the community for its own pupils?
The Honourable Dr. B. R. Ambedkar : If my Friend Mr. Kamath will read the other article he will see that once an institution, whether maintained by the community or not, gets a grant, the condition is that it shall keep the school open to all communities. That provision he has not read.
Therefore, by sub-clause (2) we are really achieving two purposes. One is that we are permitting a community which has established its institutions for the advancement of its religious or its cultural life, to give such instruction in the school. We have also provided that children of other communities who attend that school shall not be compelled to attend such religious instructions which undoubtedly and obviously must be the instruction in the religion of that particular community, unless the parents consent to it. As I say, we have achieved this double purpose and those who want religious instruction to be given are free to establish their institutions and claim aid from the State, give religious instruction, but shall not be in a position to force that religious instruction on other communities. It is therefore not proper to say that by this article we have altogether barred religious instruction. Religious instruction has been left free to be taught and given by each community according to its aims and objects subject to certain conditions. All that is bared is this, that the State in the institutions maintained by it wholly out of public funds, shall not be free to give religious instruction.
Pandit Lakshmi Kanta Maitra : May I put the honourable Member one question? There is, for instance, an educational institution wholly managed by the Government, like the Sanskrit College, Calcutta. There the Vedas are taught, Smrithis are taught, the Gita is taught, the Upanishads are taught. Similarly in several parts of Bengal there are Sanskrit Institutions where instructions in these subjects are given. You provide in article 22(1) that no religious instruction can be given by an institution wholly maintained out of State funds. These are absolutely maintained by State funds. My point is, would it be interpreted that the teaching of Vedas, or Smrithis, or Shastras or Upanishads comes within the meaning of a religious instruction? In that case all these institutions will have to be closed down.
The Honourable Dr. B. R. Ambedkar : Well, I do not know exactly the character of the institutions to which my Friend Mr. Maitra has made reference and it is therefore quite difficult for me.
Pandit Lakshmi Kanta Maitra : Take for instance the teaching of Gita, Upanishads the Vedas and things like that in Government Sanskrit Colleges and schools.
The Honourable Dr. B. R. Ambedkar : My own view is this, that religious instruction is to be distinguished from research or study. Those are quite different things. Religious instruction means this. For instance, so far as the Islam religion is concerned, it means that you believe in one God, that you believe that Pagambar the Prophet is the last Prophet and so on, in other words, what we call "dogma". A dogma is quite different from study.
Mr. Vice-President : May I interpose for one minute? As Inspector of Colleges for the Calcutta University, I used to inspect the Sanskrit College, where as Pandit Maitra is aware, students have to study not only the University course but books outside it in Sanskrit literature and in fact Sanskrit sacred books, but this was never regarded as religious instruction; it was regarded as a course in culture.
Pandit Lakshmi Kanta Maitra : My point is, this. It is not a question of research. It is a mere instruction in religion or religious branches of study.
I ask whether lecturing on Gita and Upanishads would be considered as giving religious instruction? Expounding Upanishads is not a matter of research.
Mr. Vice-President : It is a question of teaching students and I know at least one instance where there was a Muslim student in the Sanskrit College.
Shri H. V. Kamath : On a point of clarification, does my friend Dr. Ambedkar contend that in schools run by a community exclusively for pupils of that community only, religious education should not be compulsory?
The Honourable Dr. B. R. Ambedkar : It is left to them. It is left to the community to make it compulsory or not. All that we do is to lay down that that community will not have the right to make it compulsory for children of communities which do not belong to the community which runs the school.
Prof. Shibban Lal Saksena : The way in which you have explained the word "religious instruction" should find a place in the Constitution.
The Honourable Dr. B. R. Ambedkar : I think the courts will decide when the matter comes up before them.
Mr. Naziruddin Ahmad : The honourable Member has proposed to accept the deletion of clause (3). It is an explanatory note. I would ask if its deletion will rule out the application of the principle contained therein even apart from the deletion.
The Honourable Dr. B. R. Ambedkar : Well, the view that I take is this, that clause (3) is really unnecessary. It relates to a school maintained by a community. After school hours, the community may be free to make use of it as it likes. There ought to be no provision at all in the Constitution.
Now, Sir, there is one other point to which I would like to make reference and that is the point made by Prof. K. T. Shah that the proviso permits the State to continue to give religious instruction in institutions the trusteeship of which the State has accepted. I do not think really that there is much substance in the point raised by Prof. Shah. I think he will realise that there have been cases where institutions in the early part of the history of this country have been established with the object of giving religious instruction and for some reason they were unable to have people to manage them and they were taken over by the State as a trustee for them. Now, it is obvious that when you accept a trust you must fulfil that trust in all respects. If the State has already taken over these institutions and placed itself in the position of trustee, then obviously you cannot say to the Government that notwithstanding the fact that you were giving religious instruction in these institutions, hereafter you shall not give such instruction. I think that would be not only permitting the State but forcing it to commit a breach of trust. In order therefore to have the situation clear, we thought it was desirable and necessary to introduce the proviso, which to some extent undoubtedly is not in consonance with the original proposition contained in sub-clause (1) of article 20. I hope, Sir, the House will find that the article as it now stands is satisfactory and may be accepted.
Mr. Vice-President : I am now putting the amendments to vote one after another. First of all, I put the first alternative in amendment No. 640.
The question is:
The amendment was negatived.
Mr. Vice-President : Next we come to No. 641 as amended by No. 19 of list No.
1. I shall first put No. 19 of list No. 1.
The question is:
The amendment was negatived.
Mr. Vice-President : I shall now put amendment No. 641. The question is:
The amendment was negatived.
Mr. Vice-President : The next one is amendment No. 647.
The question is:
The amendment was negatived.
Mr. Vice-President : Now amendment No. 643. The question is:
The amendment was negatived.
Mr. Vice-President : The next one is No. 644. The question is:
The amendment was negatived.
Mr. Vice-President : The next one is No. 645. The question is:
The amendment was negatived.
Mr. Vice-President : The next one is the No. 646. The question is:
The amendment was negatived.
Mr. Vice-President : The next one is No. 653. The question is:
The amendment was negatived.
Mr. Vice-President : The next one is 658. The question is:
The amendment was negatived.
Mr. Vice-President : The next one is No. 661. This has been accepted. The question is:
The amendment was adopted.
Mr. Vice-President : The next one is No. 662. The question is:
The amendment was negatived.
Mr. Vice-President : The last one is 664. The question is:
The amendment was negatived.
Mr. Vice-President : The question is:
The motion was adopted. Article 22, as amended, was added to the Constitution.
(Amendment No. 666 was not moved.)
Article 22A (New Article) Prof. K. T. Shah : Sir, I beg to move:
It may not be, perhaps, very commonly known that Heads of Religious organisations are in the enjoyment of certain extra-territorial or extra-civil privileges. They enjoy civic immunities, privileges or exemptions, which mark them out as a class apart, but which cause in many instances heavy losses to the public purse, and gravely prejudice public interest.
I do not of course object to the nominal or formal privilege enjoyed by them of titles, precedence, honorifies and the like. Some of these Heads of Religion are considered to be equal in rank to ruling princes. They are accordingly given a salute of eleven guns, at their own cost of course if fired; and are in a position to demand that that honour be paid to them. As I said just now, I do not object to that, because each time they ask for such a mark of respect, they would themselves pay for it. But there are immunities and exemptions which mark them out as apart from the rest of the citizens of the land; and as such offend the simple principle that all citizens of this country are amongst themselves equal, without any distinction of rank, or birth, or faith or sex.
This I consider to be objectionable in principle, because the inequality thereby created is of a character which has a direct and material bearing on the rights guaranteed by the constitution to the citizens. Religious Headship, if it is truly to be so regarded in the spirit in the essence, in which it was conceived, would make the holder of that position entirely apart from...
Shri Krishna Chandra Sharma (United Provinces : General) : To whom is the honourable Member proposing to give such rights? This is a Chapter on Fundamental Rights. This proposal has nothing to do with those rights.
Prof. K. T. Shah : That is for the Chair to say.
Mr. Vice-President : Professor Shah may go on.
Prof. K. T. Shah : Sir, I am stating that this is a violation of the Fundamental Rights granted. I am not asserting any new rights. I would mention one or two illustrations of such exemptions, which used to be allowed, and which I think are still being allowed, such as for instance exemption from Income-Tax and Customs Duties on goods imported from abroad for the use of the religious heads. These exemptions from customs duties under the Sea Customs Act and the Income-tax Act are claimed by virtue of the traditional privileges conceded to them as a matter of courtesy in a class society. I am not able to tell what precisely is the loss that the State has to suffer from the grant of these privileges to the several Heads of the several communities, who have sufficient fondness for outside goods or foreign articles to be constantly importing them on a large scale. Though these are articles of luxury, and though the heads of religious sects have sufficient income, they escape customs duties, and they demand exemption from income-tax.
Mr. Vice-President : Order: There is too much noise inside the House.
Prof. K. T. Shah : In that regard also, Sir, I am not able to give the exact amount of loss that this country suffers from this source today. In view of the very high level of taxation now prevailing on incomes, such exempted incomes ought to bring in substantial sums. For many Heads of Religion, have usually incomes running into lakhs, even crores, and, as such, if the same rate of taxation were imposed on them as on others, if the same manner of tax collection was adopted with reference to them also; if the same rigid and exacting technique was followed in regard to tax collection from these people, I should imagine the public exchequer would benefit very substantially. Under the existing rate an income of a crore of Rupees will yield a tax of Rs. 92 1/2 lakhs; and if there are 10 heads of religions like the Aga Khan, they would keep away from the public Treasury 9.25 crores or more.
It is not perhaps so much the amount of money which is lost to the State by the existence of these privileges and immunities of the Heads of Religion which may attract your attention. It is the essentially mundane character, the essentially worldly nature of these privileges, and, may I say, the consequent degradation of religion by such means which only mean material objects and material prosperity that ought to be objected to. As such these privileges and immunities should be disallowed after or on the passing of this Constitution. I hope the point appeals to the House and will be accepted.
Mr. Vice-President : Amendments Nos. 668 and 669 relate to language and script and have therefore to be postponed for the present.
Shri Damodar Swarup Seth may now move his amendment No. 670.
Mr. Z. H. Lari (United Provinces : General) : On a point of order, Sir. The article in respect of which an amendment was moved previously is quite different from the article which is sought to be inserted by the later amendment.
Mr. Vice-President : I thought it would save time if the amendments are moved one after another.
Mr. Z. H. Lari : But there cannot be a discussion on two Articles simultaneously. One article has to be disposed of before another is taken up for consideration.
Mr. Vice-President : Does the honourable Member want to discuss the thing now?
Mr. Z. H. Lari : Yes.
Mr. Vice-President : That can come later.
Mr. Z. H. Lari : But these two are different articles and the amendments are distinct ones.
Mr. Vice-President : When the honourable Member comes upto speak, he can say that he is discussing such and such article or amendment. Or, if he wants, I can ask Mr. Damodar Swarup to speak later.
Mr. Z. H. Lari : That would be the proper procedure.
Mr. Vice-President : That is right technically. But I would save the time of the House by proceeding in the manner I have done. I am indifferent whether you start this way or that way.
Shri R. K. Sidhva (C. P. and Berar : General): May I know whether it is your ruling or Mr. Lari's ruling?
Mr. Vice-President : I know that the honourable Member Mr. Lari will be quite willing to accept my ruling. But I want to please everybody. That is my weakness. Does Mr. Lari abide by my request?
Mr. Z. H. Lari : I bow to your decision, Sir.
Shri Damodar Swarup Seth (United Provinces : General): Sir, I beg to move:
The Draft Constitution very rightly and justly guarantees to all citizens...
The Honourable Dr. B. R. Ambedkar : Article 19 (2) (a) covers this.
Mr. Vice-President : I am told that article 19 (2) (a) covers your point.
Mr. H. V. Kamath : Article 19 (2) (a) regulates or restricts political or other secular activities associated with religion, while Seth Damodar Swarup's amendment forbids them altogether. Between a complete taboo and mere regulation there is a lot of difference.
Pandit Thakur Dass Bhargava (East Punjab : General): There was an amendment to article 19 (2) seeking to add 'prohibiting' and the amendment was not accepted by the House.
Mr. Vice-President : It practically means the same thing as Seth Damodar Swarup's amendment. I am afraid this thing has already been covered. I cannot allow it.
Amendment No. 671. This is about cow slaughter. Already covered.
Amendment No. 672 is about language and script. So it means that we have only one amendment No. 667, and the objection of Mr. Lari has been met automatically. Amendment No. 667 of Professor K. T. Shah is now for general discussion.
Shri Krishna Chandra Sharma : Mr. Vice-President, Sir, I do not see any meaning in Professor Shah's amendment with regard to the fundamental rights. The amendment runs thus:-
To say that such and such a man shall not have such and such a right is no right given. Therefore I fail to understand where the question of fundamental right arises in this proposal and how it can find a place in the chapter on fundamental rights. This proposal, I beg to submit, is out of place and as such should not find a place in this chapter of the Constitution.
Secondly, I beg to submit that Professor Shah seems to be very much afraid of religion. What is wrong with religion is not the religion itself but its wrong propagation or its propagation by inefficient or undesirable persons. Religion as such is the basis of all morality, all social and ethical values and all human institutions. I do not find what is wrong with religion itself. There might be something wrong with religion if it is handled by wrong people, if it is propagated by incompetent people.
Shri Rohini Kumar Chaudhari (Assam : General) : Sir, I oppose the motion which was moved by my honourable Friend Professor Shah. I do not understand why he should be so much against religious heads. My honourable Friend, I think, knows that there are provisions in the Civil Procedure Code whereby even ex-Ministers may be exempted from appearing in court for some months. In our part of the country there are Shatradhikars who are exempted generally speaking from appearing in any court. It would revolutionise the minds of their disciples if by any chance they are made to appear in any court and give evidence. When Professor Shah is not saying any word against the privileges which are now enjoyed by some privileged persons like high officials and Ministers of the State, why is he so anxious to curtail the privileges of heads of religious organisations in the Constitution itself, instead of allowing it to the discretion of the courts to extend the exemptions or privileges in some cases which are really necessary?
The Honourable Dr. B. R. Ambedkar : Mr. Vice-President, Sir, the amendment probably is quite laudable in its object but I do not know whether the amendment is necessary at all. In the first place, all these titles and so on which religious dignitaries have cannot be hereafter conferred by the State because we have already included in the fundamental rights that no title shall be conferred and obviously no such title can be conferred by the State. Secondly, as my honourable friend is aware perhaps, no suit can lie merely for the enforcement of a certain title which a man chooses to give himself. If a certain man calls himself a Sankaracharya and another person refuses to call him a Sankaracharya, no right of suit can lie. It has been made completely clear in Section 9 of the Civil Procedure Code that no suit can lie merely for the enforcement of what you might call a dignity. Of course if the dignity carries with it some emoluments or property of some sort, that is a different matter, but mere dignity cannot be a ground of action at all.
With regard to the amenities which perhaps some of them enjoy, it is certainly within the power of the executive and the legislature to withdraw them. It is quite true, as my honourable Friend Mr. Chaudhari said, that in some cases summons are sent by the magistrate. In other cases when the man concerned occupies a bigger position in life, instead of sending summons, he sends a letter. Some persons, when appearing in courts, are made to stand while some other persons are offered a chair. All these are matters of dignity which are entirely within the purview of the legislature and the government. If there was any anomaly or discrepancy or disparity shown between a citizen and a citizen, it is certainly open both to the legislature and the executive to remove those anomalies. I therefore think that the amendment is quite unnecessary.
Mr. Vice-President : The question is:
The motion was negatived.
Mr. Vice-President : We shall now proceed to the next article. The first amendment is No. 673 which is disallowed for the obvious reason that it practically amounts to a negative vote. Then we come to amendment No. 674.
Shri Lokanath Misra (Orissa: General): Sir, I beg to move:
Sir, in moving this substitution for the existing article No. 23, I am speaking nothing new nor anything against what has been said in article 23. It is a fact and it has been rightly recognised in article 23 that we have different scripts, different languages and even different cultures in the territory of India and they have been recognised and, preserved and they must flourish, but I should say, as all roads lead to Rome and ought also to lead to Rome, all these cultures, all these languages and all these scripts must be taken as a means to a common end, which the State must recognise, nourish and protect. In fact, it has been our desire and it has been the very soul of the birth of our freedom and our resurgence that we must go towards unity in spite of all the diversity that has divided us. I, therefore, submit to the House that although we have many languages, many cultures, many scripts, many religions, it may not yet be impossible for us to find out if there is something common for India bequeathed even from the hoary past, which has been running on till today, vitalizing and inspiring us. Just as there is the ocean to which all the rivers go, to the cultural ocean, to the spiritual ocean that is India, that has been our heritage, all our rivers of culture, language and script, hopes and aspirations must go and from a mighty ocean ever full. Sir, this article 23 which is an article recognising diversity must find out a way for our unity and unless we have that unity, the state administration or the State rolling machine, just a rule of external law, cannot bring us to unity. Therefore for a real unity, for a homogeneous unity, and natural unity, we must evolve a certain philosophy, a certain culture, and a certain language which will contain and carry everything and still be more than everything and must at the same time be running from the ageless past to the eternal future. I therefore, submit, Sir, this amendment, which I am suggesting will find favour with the House and the House will realize that, without developing this unity which can be brought about only on a very high plane, on the plane where we are one, inspite of the appearance that we are many and in the plane of the heart, which is the home of the spirit and also in the sphere of culture, which we have all been nourishing, there cannot be a real unity and we will have no real contribution to the world civilization or the amity of man, his peace and prosperity. I therefore commend this amendment to the favourable consideration of this House.
Maulana Hasrat Mohani (United Provinces : Muslim): May I suggest that we keep this amendment for a decision afterwards or till such time as we decide what shall be the language which will be accepted as the universal language for the whole country and which is the script? May I suggest that this amendment shall stand over?
Mr. Vice-President : Maulana Sahib, I have not been able to make out what you wish to say. Do you mean amendment No. 674 or the whole article?
Maulana Hasrat Mohani : This amendment, Sir.
Mr. Vice-President : Mr. Lokanath Misra says "without detriment to the spiritual heritage and cultural unity of the country which the State shall recognise, etc." Therefore, the question of language and script does not occur anywhere. It is quite possible to think of cultural unity, though the languages used in different parts of India may be different. So I do not quite see your objection.
Shri Lokanath Misra : What I referred to are our hopes and aspirations, the future to which we will go in our pilgrimage. I do not say that we do something here and now.
Maulana Hasrat Mohani : I think that this amendment should stand over as you have decided in the case of many other amendments. We cannot possibly decide this, unless we decide which will be the language of the whole country and which will be the script. How can we say that now?
Mr. Vice-President : This amendment has nothing to do with the national language or the script. It is quite in order here.
(Amendment No. 675 was not moved.)
Mr. Z. H. Lari : Mr. Vice-President, Sir, I move:
This amendment which I have moved is not a new motion. It is really a motion to restore the original decision of this House taken in April 1947. You will remember, Sir, I was not then a Member, but I find from the reports of the Committee, First series, 1947, that the Committee on Fundamental Rights reported that this clause should run in the way in which I have put. At page 30 of that report, the clause runs thus:
This recommendation of the Committee on Fundamental Rights was approved by this August House in April 1947. But curiously enough, the Drafting Committee.....
Mr. Vice-President : Is it a sub-committee of the Fundamental Rights Committee?
Mr. Z. H. Lari : Yes; it was a sub-committee and it was approved by this House as well, but the Drafting Committee which was charged with the duty of framing the Draft Constitution on the basis of resolutions adopted by this House changed the phraseology and the present sub-clause stands thus now:
The reasons which have led me to move this amendment in order to restore it to its original condition can be briefly stated.
Sir, I believe it is accepted on all hands that cultural and educational rights have to be protected and this is the intention of article 23. There can be no gainsaying on that point. The clause as it originally stood and as it was approved by this House intended to lay down that no laws, no regulations shall be passed which would adversely affect a minority in maintaining and fostering their own culture and language. That is to say, no such laws shall be passed which would nullify a right which was being conceded to a linguistic minority. If the clause were to stand as I have put it and as the House originally approved, the result would be that there will be adequate remedy at the disposal of a minority, to see that the intentions of this House are carried into effect. But, if you look to the language used in the Draft Constitution, it comes to this only that the minority or a section of the citizens shall be entitled to conserve its own language. What does it mean? What is its effect? It simply means this that a body of citizens shall be entitled to use their own language in their private intercourse. But the question is whether they will be entitled to use their own language in elementary education given at the state expense. No doubt, under another clause of this article, a minority can establish institutions of its own and by virtue of this clause (1), it will be open to that minority to impart, say, elementary education through its own mother tongue. But if the State were to establish institutions as it would do,-naturally there will be so many minorities which will not be in a position to start institutions of their own-, then the question arises, will it be possible for the minority to demand that, in those institutions which are being established by the State, in pursuance of any legislation, municipal or provincial, which makes free elementary education compulsory, elementary education be imparted through the medium of their own language?
An Honourable Member : Impossible.
Mr. Z. H. Lari : There is a voice which says it is impossible. If it is impossible and if the intention of the House is that even while receiving elementary education, it will not be necessary for the State to make adequate arrangements, then, my submission would be that the whole clause will be a paper transaction and nothing more. Anyway, at present I am drawing the attention of the House to its own decision and beg of them to consider whether there is any reason why their decision, arrived at after due consideration, should be set at nought. If the language were an improvement on the original clause, I would necessarily submit that improvement is permissible. But the question is, does the changed phraseology of this clause improve on the intention of the House, does it give effect to the intention of the House, or does it nullify the intention of the House? For the time being, I would request the Members to concentrate on this point. If it be the opinion of Dr. Ambedkar that really by the changed and different phraseology, the intentions, the import of that article are not changed and the same remains, then I have no objection. But my submission is this: the clause as it stands becomes innocuous: it is of no effect at all. It states a truism; it is not a fundamental right at all. Who can prevent any minority or any class of citizens from using their own culture and language to the extent that it is possible for them to do so irrespective of legislation or regulation that may be made by the State? The House will recognise that the field of education will be entirely covered by state institutions and unless the old clause is put in, I think there will be great difficulty.
This is not the only place where such a clause was sought to be placed on the statute book. I may refer to article 113 of the German Constitution which runs like this:
Therefore, it is not a new thing that this House has done, or the Committee on Fundamental Rights had proposed. Considering the import of this article, my submission would be that the original clause should be restored and this changed phraseology should not be accepted by this House.
With these words, Sir, I move.
Mr. Vice-President : The House stands adjourned till 10 A. M. tomorrow. The Assembly then adjourned till Ten of the Clock on Wednesday, the 8th December, 1948.
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