Constitution Assembly Of India - Volume VIII

Dated: June 14, 1949

Pandit Lakshmi Kanta Maitra: It is sub-clause (c) and not sub-clause (3).

The Honourable Dr. B. R. Ambedkar: I am sorry, it is sub-clause (c). His point is that there is no use of having sub-clause (c) as it is by the provisions laid down in the proviso. The first think I would like to remind my Friend, Mr. Alladi Krishnaswami Ayyar is this, that the proviso which is attached to sub-clause (c) is word for word the proviso attached to Section 411 of the Criminal Procedure Code and word for word the proviso contained in article 109 of the Civil Procedure Code. My. Friend, Mr. Alladi Krishnaswami Ayyar, will remember that we have introduced in the appellate civil jurisdiction of the Supreme Court a clause which is absolutely word for word the same as sub-clause (c) of clause (1) of article 111-A. Now, I should have thought that if there was some residue of good in sub-clause (c) of clause (1) or article 111, hedged as it is with all the limitations as to the rules to be made by the Supreme Court as a man of commonsense. I should think that there must be some residue of good left in sub-clause (c) here, not withstanding the limitations contained in the provision. My Friend also stated that there is a provision contained in article 112 which confers upon the Supreme Court the right to admit an appeal by special leave, which article is not limited to civil appeal but is a general article which speaks of any cause or matter. His point was that if that is there, why have sub-clause (c)? My answer to him is again the same. If 112 defines the jurisdiction which the Supreme Court has over the High Courts, if that is there in civil matters, why have sub-clause (c) in 111. My answer to him is this: If we can have sub-clause (c) in civil matters, notwithstanding the fact that we have 112, what objection can there be to have sub-clause (c), thought we have 112? The point to be borne in mind is this that with regard to 112 we have left the Supreme Court with perfect freedom to lay down the conditions on which they will admit appeals. The law does not circumscribe their jurisdiction in the matter.

Shri Alladi Krishnaswami Ayyar: There is a condition in the case of civil appeals.

The Honourable Dr. B. R. Ambedkar: It is true. Now, I do not know how this article 112 will be interpreted by the Supreme Court. We have left it to them to interpret it. They may interpret it in the way in which the Privy Council has interpreted it or they may interpret it in any manner they choose; either they may put a limited interpretation or they may put a wider inter pretation. In case they put a limited interpretation, then I have no doubt shout it that sub-clause (c) will have some value. I therefore submit, Sir, that my amendment is such that it meets the exigencies of the cases, satisfies the conscience of some people who object to people being hanged without having any right of appeal. I think it is so worded that the Supreme Court will not administratively or otherwise be overburdened with criminal appeals. I hope my Friend will now withdraw their amendments and accept mine.

Shri C. Subramaniam (Madras: General): On a point of clarification, as to the implication of the difference of language...

The Honourable Dr. B. R. Ambedkar: It is too late now.

Mr. President: The Honourable Doctor has not shown n this reply why he makes a distinction between cases in which sentence has been passed for the first time by the High Court in revision by way of enhancement of sentence and cases in which death sentence is passed in reversal of a judgment of acquittal.

The Honourable Dr. B. R. Ambedkar: The case of an appeal against enhancement of sentence differs from a case of an appeal against acquittal in two respects. When the High Court enhances the sentence against an accused person it is not convicting him for the first time. The accused already stands convicted. In the case of an appeal against acquittal the High Court is reversing the finding of the trial court and convicting the accused. The second point of difference is that in the case of enhancement the proceedings are converted into regular appeal so that in the case of enhancement proceedings the accused gets a statutory right of appeal under the Criminal Procedure Code to show that not only enhancement of sentence is not warranted but even his conviction is not justified by the facts of the case. In enhancement cases there is already one appeal. That being so, no further appeal is necessary. Thirdly, the amendment recognizes conviction or acquittal as the basis for a right of appeal to the Supreme Court. It does not recognize the nature of sentence or the type of punishment as the basis for a right of appeal.

Mr. President: Supposing in a case the trial court holds that it is a case of grievous hurt, although it has resulted in death and passes a sentence of imprisonment and supposing there is an appeal to the High Court which by way of revision holds that it is a case of murder and not grievous hurt and gives a sentence of death. For the first time, the conviction is for murder by the High Court and the sentence of death is also pased for the first time.

The Honourable Dr. B. R. Ambedkar: For the moment I am not prepared to go beyond the proposition as set out in my amendment. If Parliament later on thinks that such a case ought to be provided, it has perfect liberty under a clause (2).

Mr. President: If is a different matter and is for the House to decide. For myself, I have not been able to find the distinction.

Shri H. V. Pataskar (Bombay: General): I have moved amendment No. 25 to the original amendment No. 24 of the Honourable Dr. Ambedkar. Now there is a new amendment which has come today, namely No. 108 and the wording there is: "Parliament may by law confer on the Supreme Court any further powers to entertain etc." My amendment was also on principle the same with respect to the wording, it is liable to be interpreted differently and to my mind is in conflict with article 112 as it stands, because under article 112, there is already jurisdiction to the Supreme Court.

Mr. President: there is no time for that. I think you are too late now. We cannot allow it at this stage.

I have to put the various amendments now and those honourable Members who think that their amendments are covered by the new amendment or Dr. Ambedkar. I hope, would withdraw them.

The question is:

"That with reference to amendments Nos. 23 and 24 of List I (Fifth Week) for the new article 111-A the following be substituted:-

111-A. Appellate jurisdiction of Supreme Court with regard to Criminal matters. (1) The Supreme Court shall have power to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India--

(a) if the High Court has on appeal reversed the order of acquittal of an accused person and sentenced him to death; or

(b) if the High Court has withdrawn for trial before itself any case any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or

(c) if the High Court certifies that the case is a fit one for appeal to the Supreme Court:

Provided that an appeal under sub-clause (c) of this clause shall lie subject to such rules as may from time to time be made by the Supreme Court and to such conditions as the High Court may establish or require.

(2) Parliament may be law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject of such conditions and limitations as may be specified in such law."

The amendment was adopted.

Mr. President: I shall take the order amendments, and I shall see how far the other amendments are covered by this. There are several amendments moved, and so I shall take each one of them and see how far that amendment is covered by the amendment which has been carried and to the extent it is not covered,

I shall have to put that to vote.

Pandit Thakur Das Bhargava: I beg to withdraw all my amendments.

The amendments were, by leave of the Assembly, withdrawn.

Mr. President: That simplifies the matter are so many of them.

Shri Jaspat Roy Kapoor (United Provinces: General): The whole of my amendment (No. 23) is not covered by Dr. Ambedkar's new amendment. It does not include the case to which you have drawn his attention, namely, the case of death penalty being imposed in revision. However, I withdraw my amendment.

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

Shri H. V. Pataskar: I would like to withdraw amendment No. 25 standing in my name.

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

Mr. Naziruddin Ahmad: Sir. I would ask leave to withdraw amendment No. 33.

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

Mr. Naziruddin Ahmad I have amendment No. 41 which is not fully covered by Dr. Ambedkar's amendment. There are three points which are not covered.

Mr. President: Then you do not withdraw it?

Mr. Naziruddin Ahmad: I do not, Sir.

Mr. President: Then, I will put amendment No. 41 which is not covered by Dr. Ambedkar's amendment, to vote.

Mr. President: The question is:

"That with reference to amendment No. 1932 of the List of Amendment, after article 111. the following new article be inserted:-

111-A. Any person against whom any judgment, sentence or order has been passed by a High Court in the territory of India except the States for the time being specified in Part III of the First Schedule, in any criminal proceeding or any proceeding relating to contempt of Court, or from any judgment, sentence or order of any other tribunal exercising criminal jurisdiction which judgment, sentence or order is not liable to be set aside or modified in appeal or revision by any such High Court, shall have a right of appeal in the following cases, namely:-

(a) against any sentence of death:

(b) against any other judgment, sentence or order of such High Court or tribunal, as the case may be, that the judgment, sentence or order involves a substantial question of law; or

(c) in any other case where the High Court or the tribunal, as the case may be certifies that it is a fit case for appeal."

The amendment was negatived.

Mr. President: The question is:

"That article 111-A, as amended, stand part of the Constitution."

The amendment was adopted.

Article 111-A, as amended, was added to the Constitution.

* New Article 103-A

Mr. President: This is a new article sought to be added by Dr. P. K. Sen by his amendment No. 1870 which is printed at page 190 of the first volume of amendment. The honourable Member though he is not here now had moved this amendment and therefore, it has to be put to vote or discussed, if any one wishes to say anything. (No Member rose)

I shall put it to vote.

The question is:

"That after article 103, the following new article be inserted:--

'103-A. A person who is holding or has held the office of Judge of the Supreme Court shall not be eligible for appointment to any office of emolument under the Government of India or a State, other then that of the Chief Justice of India or the Chief Justice of a High Court:

Provided that the President may, with the consent of the Chief Justice of India. depute a judge of the Supreme Court temporarily on other duties:

Provided further that this article shall not apply in relation to any appointment made and continuing while a Proclamation of Emergency is in force, of such appointment is certified by the President to be necessary in the national interest.'"

The amendment was negatived.

* Article 164

Shrimati Purnima Banerji (United Provinces: General): Mr. President, I have a suggestion to make with regard or this article. This article refers to the method of voting in the House of the Legislature Assembly of a State and the Legislative Council of States and its right to function notwithstanding vacancies in there Houses. In article 164 there is also a passing reference to a joint sitting of both the House. I suggest, Sir, that article 172 where the question or "joint sitting" is taken up in greater detail, and which involves certain principles in which we are all interested should be taken up first. I therefore suggest that article 172 should be taken before this article is taken because once we pass this article dealing with the question of joint sitting we shall be committed to the principle of joint sitting and all the aspects of the problem will not be placed before the House.

Mr. President: Therefore, you suggest that this should not be taken now?

Shrimati Purnima Banerji: Yes, Sir.

An Honourable member: It should be taken after article 172.

Shri T. T. Krishnamachari: (Madras: General): While I appreciate Shrimati Purnima Banerji's suggestion, the words relating to a "joint sitting" here come only by the way, and if we decide to alter the appropriate articles in a different way, the Drafting Committee might just delete the words occurring here that relate to a joint sitting. If there is no reference to a joint sitting in the appropriate article, this will automatically go. There is no substance attached so far as the reference to "joint sitting" is concerned in this particular article. It is left to the Chair. It you permit the Drafting Committee to make the changes at the appropriate time in the article this article might be discussed.

Mr. President: I think it does not really touch the question whether we should have a joint sitting or not. If the other parts of the Constitution do not provide for a joint Session, then, this article will not operate at all, so far as joint sitting are concerned, and the particular expression may even be dropped later on. There is no reason for holding it up. We may take it up and dispose if it.

Dr. Ambedkar, you may move amendment 2389, though it is a formal one.

Shri Mohan Lal Gautam (United Provinces: General): I take it, Sir, that your ruling is that even if we pass this article, it will have no prejudicial effect so far as article 172 is concerned.

Mr. President: Yes; That is what I have said.

The Honourable Dr. B. R. Ambedkar: Sir, I move:

"That in clause (1) of article 164 for the words 'Save as provided' the words 'Save as otherwise provided" be substituted".

(Amendments Nos. 2390 to 2396 were not moved.)

Shri Jaspat Roy Kapoor: Sir, I beg to move:

"That with reference to amendment No. 2389 of the List of Amendments, in clause (1) of article 164, for the words 'in a House' the words 'at any sitting of a House' be substituted."

To this there is another amendment;

Sir, I move:

"That with reference to amendment No. 61 above, in clause (1) of article 164 for the words 'in a House' the words 'at any sitting of a House' be substituted."

The object of this amendment is obviously to make a necessary improvement in the drafting of this article and I hope it will be appreciated by Dr. Ambedkar and that he will readily accept it.

Mr. President: The question is:

"That in clause (1) of article 164 for the words 'Save as provided' the words 'Save as otherwise provided' be substituted."

The amendment was adopted.

Mr. President: Then, I shall put amendment 62 which will cover the other amendment also.

The question is:

"That in clause (1) of article 164, for the words 'in a House or a' the words 'at any sitting of a House or' be substituted".

The amendment was adopted.

Mr. President: The question is:

"That article 164, as amended, stand part of the Constitution."

The motion was adopted.

Article 164, as amended, was added to the Constitution.

* New Article 164-A

Mr. President: We now take article 167-A, amendment No. 65. This arises out of amendment No. 2441 and this is for the addition o another article after article 167.

Shri B. A. Mandloi (C.P. & Berar: General): Mr. President, I beg to move amendment no. 2441 on page 247 of Volume I.--

"That after article 168, the following new article 168-A be inserted:--

168-A. On a question being raised or having arisen whether a member has incurred the penalty for the breach or breaches mentioned in article 168, the Chairman of the Legislative Council or the Speaker of the Legislative Assembly, as the case may be, shall refer the matter to the Committee of Privileges or to a sub-committee appointed by him for its report. The Chairman or the Speaker shall give his decision after the report has been discussed in the House-Council and the decision of the Chairman or Speaker, shall be final'."

Sir, the House has passed article 167 and 168 regarding the disqualification for membership, and the penalty for sitting and voting before making the declaration prescribed in article 165 or when not qualified, or when disqualified. Having accepted these article, naturally, the question arises as to who is the person to decide the question whether a particular member has incurred a disqualification or not. Therefore, the necessity to incorporate a new article to empower a particular person or authority to give decision on these question arise.

Now, if we agree to this course, two important things have to be borne in mind: that the decision of the person of authority so empowered should be final, viz., the decision of the person or authority duty empowered should not be challenged in a court of law, which would necessarily prolong the litigation and defeat the very object of the articles. Therefore, whatever authority is empowered to give a decision, its decision should be final. The other important thing to be borne in mind is that the matter should be decided as early as possibly, because, under article 168, there is a penalty of Rs. 500 a day for a member who is under a disqualification and who sits or takes part in the proceedings, or votes on a particular motion. As soon as the question is raised that a particular member is under a disability, that particular member would naturally like the decision to be given as early as possible. Where he takes part in the proceedings and ultimately the decision goes against him, then, he would be liable to a penalty and if, as a prudent man, he does not take part in the proceedings and ultimately the decision goes against him, then, he loses his valuable right of participating in the deliberations. Therefore two important factors have to be borne in mind, viz., that the decision should be final and that it should be given as early as possible. My submission is that the Speaker or the Chairman of the Assembly or the Legislative Council are quite competent persons who should be empowered to give decision on such question. We know, Sir, that the Chairman and the Speaker are required to give important rulings on questions raised in the House on the spur of the moment, and they are very competent persons to give the decision whether a particular person has incurred the disability or not. I have in my amendment suggested that the matter should be referred to a Sub-Committee or to a Committee or Privileges and as soon as the matter is sifted by that Committee, the report would be placed before the House when it will be discussed and ultimately the Speaker or Chairman would be in a position to give its decision on such matters and therefore I submit that this amendment of mine should be accepted by the House.

Mr. President: You may move your amendment No. 65 also.

Shri B.A. Mandloi: I have moved my original amendment No. 2441. Amendment No. 65 is an amendment to my amendment. I am not moving amendment No. 65. My honourable Friend Shri T.T. Krishnamachari may move amendment No. 65.

Shri T.T. Krishnamachari: If he is not moving, I shall move No. 65. Sir I beg to moved:

"That in place of No. 2441, the following new article be inserted:-

167-A. Decisions on question as to disqualification of members. (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualification mentioned in clause (1) of the last preceding article the question shall be referred for the decision of the Governor and his decision shall be final.

(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion."

Sir, I would ask the House to accept this amendment version of the amendment moved by the Honourable Mr. Mandloi for this reason, that there are certain difficulties in the matter of practical application if amendment No. 2441 is accepted, viz., that there will undoubtedly be a time, even if we are to endow the speaker of a House with all the powers to put into operation the disqualification under 167, when the Speaker will not have been elected and for another even the member who is elected as Speaker might be subject to some of the disqualifications and, as the scheme now stands, the permanent Head of the State will be the person who can take action. The doubt can be raised that once the Speaker is elected, his powers should not be infringed upon. I do believe on a previous occasion also in connection with the article relating to Parliament this difficulty was felt but we got over it by the provision that in regard to all that has to be done in a House, if the President has powers, they will be delegated to the appropriate authority who might happen to be the Speaker. It is not likely that is this instance the Governor will act in this entirely unilaterally; he will act on the advice of his Ministers and naturally they will not do anything without consulting the Speaker. The second clause presupposes the bringing into being of an Election Commission which finds mention here for the first time and it relates to the Chapter on Election article 289 onwards, and the Drafting Committee have proposed by appropriate amendment to bring into being an Election Commission which will have the final say in all election matters. Therefore in order to prevent the Governor from acting himself or even acting on the advice of his Ministers from motives which might not be proper, the second clause lays the responsibility on the Governor and his advises to obtain the opinion of the Election Commissioner or whoever decides the matter on behalf on the Election Commissioner. I believe this amendment covers the lacuna which my honourable Friend Mr. Mandloi wanted to fill in by his amendment No. 2441. The prestige of the Speaker is not involved in this because we are not taking away any power from the Speaker but we are only contemplating what is to happen when the Speaker may not have come into being. I do hope the House will accept this amended version of Mr. Mandloi's amendment No. 2441.

Kazi Syed Karimuddin (C.P. & Berar. Muslim): Sir, I would like to move No. 66 which stands also in my name. Mr. President, I beg to move:

"That in amendment No. 65 above, in the proposed new article 167-A.-

(i) in clause (1), for the words 'Governor and his' the words 'Election Commission and its ' be substituted; and

(ii) clause (2) and the figure '(1)' occurring at the beginning of clause (1) be deleted."

Sir, I have heard Mr. Mandloi. According to him the Speaker will be the proper authority and on the report of the Committee to be appointed by him this decision should be finally made by the Speaker. I have two objections to his amendment, first that the point about the disqualifications of a member is very important and it has to be enquired into in great detail. Of course the members of the Committee that would be appointed must belong to a political party and the decision in regard to disqualification of members should not be entrusted to members of a political party. Therefore, it is better that this matter is entrusted to the Election Commission. But in the amendment moved by Mr. T. T. Krishnamachari it is said in clause (2) that before giving any decision on any such question the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion. According to this sub-clause (2) the Governor shall be final and the same breath it is stated that he will be bound by the opinion of the Election Commissioner, then why not accept the decision of the Election Commission and say its decision will be final and it will be pronounced by the Election Commissioner? Therefore I have moved this amendment and I commend it to the House.

Shri R.K. Sidhva (C. P. & Berar: General): Sir, I find Mr. Mandloi's amendment quite specific and distinct from the one moved by Mr. Krishnamachari. Mr. Mandloi's amendment relates only to article 168, and he wants the subject matter of breaches of the article to be decided by the Chairman or the Speaker, whereas Mr. Krishnamachari's amendment is a general one relating to disqualifications. Election malpractices or corruption should certainly go to an Election Commission. Article 168 reads:

"If a person sits or votes.......before he has complied with the requirements of article 165 act."

Article 165 relates to oath of a member, and if he refuses to take the oath it would not be proper to send it to an Election Commission. In the past the Speaker has refused to allow such a member to speak and Mr. Mandloi wants to give the Speaker this right, while Mr. Krishnamachari's amendment is a general one relating to disqualification.

Mr. President: It does not relate to article 165 only; in the subsequent portion it relates to other things also.

Shri R. K. Sidhva: My point is about refusal to take oath. Then there are also matters like insanity. If a member is insane it is for the Speaker to decide.

Mr. President: What if he take an office of profit after election or becomes insolvent? There are covered by article 167.

Shri R. K. Sidhva: These cases should go for inquiry. But if he does not take the oath would you allow him to sit in the Assembly? I submit the thing is confused and should be made clear.

Prof. Shibban Lal Saksena: Sir, I agree with Mr. Sidhva that there is some confusion in the amendment moved by my Friend Mr. Krishnamachari. Mr. Mandloi a person has incurred the prescribed penalty or not. There are two things involved in this matter; (i) whether the person is disqualified to sit in the chamber or not, (ii) whether he has incurred a penalty or not. The conditions of becoming disqualified are contained in article 167, on the basis of which it should be decided whether a disqualification has been incurred or not. This obviously the Election Commission alone can decide properly. As regards not taking the oath, etc., the Speaker should be the person to decide straightaway. So there should be two new clauses, 167-a and 168-A. It should be mentioned in 167-A that question whether a member has become subject to any of the disqualifications should go to the Election Commission; and in 168-A it should be mentioned that the Speaker should decide whether a member has incurred the penalty or not. Bringing the Governor will nor improve matters and he should have nothing to do with it. The Election Commission will say whether there is a disqualification or not and the Speaker will decide whether the penalty has been incurred or note. There is some inconsistency and it should therefore be divided into two parts as I have suggested, viz., 167-A and 168-A, relating to disqualification, to be decided by the Election Commission, and penalty, to be decided by the Speaker.

The Honourable Shri K. Santhanam: Sir, I think the objection to asking the Governor to decide is mistaken because the whole new clause refers to disqualifications mentioned in 167(1). Not taking the oath of office is not a disqualification. Until the person takes the oath he is not entitled to act and after some time his seat will become vacant automatically. It is no disqualification and my honourable Friend Mr. Sidhva may be assured that in this matter the Election Commissioner or the Governor does not come into the picture. But many of the disqualifications will require detailed investigations. e.g., whether a person owns allegiance to a foreign power, etc. Here records and evidence will have to be called for and surely the Speaker should not be made a judicial officer for this purpose and correspond with officials, etc. Another fundamental principle is that the Speaker should not come into a position of conflict with a member. No one knows what the result of the investigation is going to be, but during the process of investigation, if the Speaker conducts it, the relations between him and the member are bound to be strained. It is not therefore right to invest the Speaker with any such functions. In some Parliaments the Parliament itself sets up a Credential Committee or some such machinery to investigate such matters and pronounce judgment. We can certainly adopt such a procedure, but having set up an Election Commission which will be competent to deal with such matters it is not necessary to devise such a procedure. So far as the Governor is concerned, be is brought is merely because he is the executive head and the convenient instrumentality by which the thing can be done. He himself has no discretion in the matter and his decision will be bound by the opinion of the Election Commission. One amendment suggest: why not bring in the Election Commission direct? It is simply because the matter has to go though the executive head of the State. It is only on an understanding of the correct procedure that it has been put in. As a matter of fact it is the Election Commission which will be invested with jurisdiction to go into all these matters and pronounce whether a Member is qualified or disqualified.

Another point has been raised that under article 168 when a decision on disqualification of membership is pending for a long time a member who attends the House may be put to very heavy penalties. It is quite true. But there is nothing which compels a Member who is charged with disqualification to attend the House. He attends at his own risk. If he is absolutely certain that he is not disqualified he is certainly entitled to take the risk and attend. But if he does attend while a charge of disqualification is pending and if finally it is proved that he is actually disqualified, then he has taken a deliberate and calculated risk and he must pay the penalty. I do not think he deserves so much sympathy. I think the clause as it has been moved by my honourable Friend Mr. T.T. Krishnamachari ought to be supported.

Mr. Tajamul Husain (Bihar: Muslim): Sir, a person cannot be a member of a provincial legislature if he is a government servant or is of unsound mind or is an undischarged insolvent or is a foreigner or is disqualified by law. This is a very sound principle. The question now before us is who is to declare the member disqualified. We have got amendments here. One amendment says that the Speaker should refer the matter to the Committee of Privileges-the Speaker of the Legislative Assembly or the Chairman of the Legislative Council-the matter will be discussed by the Committee and then the Speaker or Chairman will decide it. The other amendment suggests that the Governor should decide it after consulting the Election Commission.

There is one flaw as regards the former amendment and it is this. Suppose there is no Committee of Privileges. So far we have not got any Committee of Privileges in the Draft Constitution. Then what are we to do? Another point is that the House may not be sitting. When the House is called and the matter is discussed it will mean considerable delay. There should be a quick decision and for this the Governor is the best person. The only objection in leaving it to the Governor is that he will be guided by the Cabinet by the Prime Minister. But in this matter the Prime Minister will have nothing to do and the Governor will not consult the Prime Minister. He will consult the Election Commission which is the sole authority. And whatever the Election Commission report, that will be final and binding on the Governor. Therefore, out of these two amendments I think the second amendment seems more reasonable and it should be accepted.

Pandit Thakur Das Bhargava: Sir, a perusal of amendments Nos. 65 and 2441 leaves no doubt in my mind that they envisage different sets of facts. Amendment No. 65 is clear that so far as the question relates to part (1) of article 167 it is a matter within the jurisdiction of the Election Commission and on the advice of the Election Commission the Governor shall decide the question. In regard to article 168, an amendment has been moved that the Speaker should be given power. May I humbly submit that so far as article 168 is concerned it describes the offence, which will be governed by the law of the land. Let us examine what the offence is. The offence lies in this, that a member who is fully cognizant of the fact that he is committing a crime yet persists in attending the House. A member who has not taken the oath has no right to attend the House. He knows he has not taken the oath, yet he persists in sitting in the House. Similarly when he knows that he is not qualified or disqualified.........

Mr. President: Can he sit in the House at all if he has not taken the oath?

Shri R. K. Sidhva: He can sit in the House but cannot participate in the debate unless he takes the oath. He cannot vote.

Mr. President: But does he become a member before he takes the oath?

Shri R. K. Sidhva: Yes, that has been held by previous Speakers.

Mr. President: I find article 165 is clear. It says:

"Every member ...... shall, before taking this seat, make the subscribe before the Governor......a declaration according to the form set out for the purpose in the Third Schedule."

So he has to take the oath before he sits.

Pandit Thakur Das Bhargava: So a person who has not taken the oath fully knows that he is committing a crime and therefore he is a person who should be dealt with under the ordinary law of the land and the Speaker does not come in at all. We are here considering the case of a person who is to his own knowledge committing an offence. He should be dealt with under the ordinary law of the land and he will be fined and the fine will be recovered as a debt due to the State. I do not therefore think that the House should accept the amendment moved by Mr. Mandloi. I support the amendment moved by Mr. T. T. Krishnamachari.

The Honourable Dr. B. R. Ambedkar: Sir, various points have been raised in the course of this debate and I should like to deal with them only one by one. If I heard my Friend Mr. Sidhva correctly he referred to article 165 dealing with the question of the taking of the oath or making the affirmation. The point about article 165 is this that if the provisions of article 165 are not complied with it does not cause a vacancy-the seat does not become vacant. All that 165 says is that no person can take part in the voting or in the proceedings of the House unless he has taken the oath. That is all. Therefore I do not see any difficulty about it at all.

Shri R. K. Sidhva: Why should it go to the Election Commission?

The Honourable Dr. B. R. Ambedkar: I am coming to that. So far as 165 is concerned I think he will understand the fundamental distinction between that article and article 167. In the case of 165, there is no vacancy caused: there is no disability of taking part in the proceedings of the House.

Now I come to the main amendment moved by my honourable Friend Mr. T. T. Krishnamachari and that is article 167-A. Except for one point to which I shall refer immediately I think the amendment is well founded. The reason why the decision is left with the Governor is because the general rule is that the determination of disqualification involving a vacancy of a seat is left with that particular authority which has got the power to call upon the constituency to elect a representative to fill that seat. Although it is not expressly stated it is well understood that the question whether a seat is vacant or not by reason of any disqualification such as those mentioned in article 167 must lie with that authority which has got the power to call upon the constituency to elect a representative to fill that seat. There is no doubt about it that in the new Constitution it is the Governor who has been given the power to call upon a constituency to choose a representative. That being so, the power to declare a seat vacant by reason of disqualification must as a consequence rest with the Governor. For this reason so far as clause (1) of article 167-A is concerned. I find no difficulty in accepting it.

Now I come to clause (2). This is rather widely worded. It says that any question regarding disqualification shall be decided by the Governor provided he obtains the opinion of the Election Commission and that he is bound to act in accordance with such opinion. If Members will turn to article 167, they will find that, so far as the disqualifications mentioned in (a) to (d) are concerned, the Commission is really not in a position to advise the Governor at all, because they are matters outside the purview of Election Commission. For instance, whether any particular person holds an office of profit or whether a person is of unsound mind and has been declared by a competent court to be so, or whether he is an undischarged insolvent or whether he is under any acknowledgement or adherence to a foreign power are matters which are entirely outside the purview of the Election Commission. They therefore could not be the proper body to advise the Governor. But when you come to sub-clause (e) I think it is a matter which is within the purview of the Election Commission, because under (e) disqualifications might arise by reason of any corruption or any un-professional practice that a candidate may have engaged himself in and which may have been made a matter of disqualification by the Electoral Law.

Shri L. Krishnaswami Bharathi: Cannot the Election Commission make the necessary enquiries?

The Honourable Dr. B. R. Ambedkar: There is no question of making any enquiry here. To ascertain whether a man is an undischarged insolvent no enquiry is necessary. Therefore my submission is that while clause (2) of article 167-A is right, it ought to be confined to circumstances falling within sub-clause (e) of article 167. I would therefore with your permission propose to amend clause (2) thus: "Before giving any decision on any question relating to disqualification arising under sub-clause (e) of clause (1) of the last preceding article, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion."

Mr. President: As I read the amendment proposed by Shri T. T. Krishnamachari, it seems to me that it does not contemplate a case which has happened before the election or during the election. It contemplates cases arising after the election where a man after becoming a member of the legislature incurs certain disqualifications. These will be dealt with by the Election Commission.

The Honourable Dr. B.R. Ambedkar: What happens is that, after filing a petition, the Commission may find candidate guilty of certain offences during the Course of the election, after the election has taken place and the member has taken his seat.

Mr. President: Is not the election Commission entitled to deal with such cases?

The Honourable Dr. B.R. Ambedkar: Yes, but what happens is that a man as soon as he is elected is entitled to take his seat on taking the oath or making the affirmation. He does so and subsequently his rival files an election petition and he is dislodged on the finding of court that he has committed offences under the Election Act. That would also come under (e) After a man has taken his seat.......

Mr. President: It seems to me that there are two kinds of disqualifications. A Member may have incurred certain disqualifications before he became a member or during the course of the election. The election tribunal will be entitled to deal with such cases.

The Honourable Dr. B.R. Ambedkar: That would depend upon what sort of procedure we lay down at a later stage.

Mr. President: But a man may become subject to a disqualification after taking his seat in the House.

The Honourable Dr. B.R. Ambedkar: That is what (e) provides for.

Mr. President: Then other disqualifications may also come in. He might become unsound in mind and might be declared as such or he might become an undischarged insolvent.

Mr. The Honourable Dr. B.R. Ambedkar: Those are dealt with Here. They are all about sitting members.

Shri L. Krishnaswami Bharathi: Please read the amendment.

The Honourable Dr. B.R. Ambedkar: There are two sorts of disqualification: disqualifications which are attached to the candidature as such, namely, that such and such persons who are disqualified shall not stand for election. Then, after they are choosen, certain persons shall not sit in the House if they incur the disqualifications in 167. Let us not confuse the two things.

The Honourable Shri K. Santhanam: Both are covered by 167-A.

The Honourable Dr. B.R. Ambedkar: That may be so. Let me explain. It all depends on what kind of procedure we adopt. If we adopt the procedure that whether a candidate is qualified for election or not shall be treated as a preliminary issue, that will not be a disqualification under article 167. If on the other hand we have the procedure, which we now have, that every question relating to election, including the question whether a candidate is a qualified candidate or not, can be taken up, then article 167 will apply. My intention as well as the intention of the Drafting Committee is to make a provisions permitting the Election Commission to dispose of certain preliminary questions so that the election issue may be fought only on the question whether the election was properly conducted or not. Today we have the things jumped together.

Shri M. Ananthasayanam Ayyangar (Madras: General): Sir, there are now different disqualifications set out against becoming a member and against continuing to a member. Both are covered by article 167 (1). To make it clearer it is necessary to say that a person shall be disqualified for being chosen as, or for continuing to be a member of the legislature. If it is necessary to make it clearer we may do so.

Pandit Hirday Nath Kunzru (United Provinces: General): A closure motion was moved and you accepted it. I should have thought therefore that Dr. Ambedkar's reply to the debate would put an end to the discussion on the subject.

Mr. President: I am sorry I missed the point.

Shri M. Ananthasayanam Ayyangar: May I make one submission to you. I am not going to speak. I bow to your ruling. Dr. Ambedkar has tried to move an amendment in his final reply. Otherwise if the motion moved by Mr. T.T. Krishnamachari is put to the vote, I have no objection. I have come here to suggest that Dr. Ambedkar should withdraw his amendment which he tried to move in his reply.

Mr. President: You have now done that. I am sorry I had forgotten that closure has been adopted.

Shri R. K. Sidhva: What about Dr. Ambedkar's amendment? We cannot accept it as an amendment at this stage.

Mr. President: If it had been accepted by the mover, it could have been a different matter. The question is:

"That in amendment No. 65 of List I in the proposed new article 167-A-

(i) in clause (1), for the words 'Governor and his' the words 'Election Commission and its' be substituted; and

(ii) clause (2) and the brackets and figure '(1)' occurring at the beginning of the article be deleted."

Amendment was negatived.

Mr. President: Then Mr. T.T. Krishnamachari's amendment.

Some Honourable Members: With or without Dr. Ambedkar's amendment?

Mr. President: Without. The question is:

"That for amendment No. 2441 of the List of Amendments, the following be substituted:-

"That after article 167, the following new article be inserted:-

167-A. (1) Decision on questions as to disqualification of members. (1) If any question arises as to whether a member of a house of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of last preceding article, the question shall be referred for the decision of the Governor and his decision shall be final.

(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.'"

The amendment was adopted.

Mr. President: Since this amendment is passed, Mr. Mandloi's amendment falls through. The question is:

"That new article 167-A stand part of the Constitution."

The motion was adopted.

New article 167-A was added to the Constitution.

* Article 171

Mr. President: There is only one amendment to this article, No. 67.

Shri Satish Chandra (United Provinces: General): I do not wish to move the amendment, but I would like to have clarification that the ruling you have given just now in respect of article 164 will also apply to this article, and if the principle on, all the consequential amendments to this article will be made by the Drafting Committee.

Mr. President: Yes, I think it will apply to this also.

The question is:

"That article 171 stand part of the Constitution."

The motion was adopted.

Article 171 was added to the Constitution.

*Article 175

Mr. President: There are certain amendments to this.

There is one by Sardar Bhopinder Singh Man.

Shri T.T. Krishnamachari: Article 175 and 176 may be held over.

Shri M. Ananthasayanam Ayyangar: What about 172?

Mr. President: It is being held over. It is not being taken up today.

*Article 187

(Amendment no. 2524 to 2529 were not moved)

Pandit Hirday Nath Kunzru: Mr. President, Sir, I beg to move:

"That in sub-clause (a) of clause (2) of article 187, for the words 'six weeks from the reassembly of the Legislature' the words 'two week from the promulgation of any Ordinance' be substituted."

With your permission, sir, I should like to move another amendment which is consequential to the amendment that I have moved. I moved:

"That the Explanation to clause (2) of article 187 be deleted."

Sir, a similar question came up for discussion the other day with regard to the duration of the Ordinances issued by the Governor-General. May position today on this question is generally what it was the other day, but I feel that where the members of the Legislature live in a compact area, an area which is much smaller than that from which the members of the Central Legislature are drawn, it should be comparatively speaking much easier for them to meet. The period of fourteen days during which I should like an ordinance issued by the Governor to be placed before the Legislature should therefore be employed for the purpose.

The article as it is, Sir, provides an Ordinance issued by the Governor shall remain in force as long as the Legislature of his province does not meet. Even when the legislature meets it will remain in force for six weeks from the re-assembly of the Legislature "unless before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or as the case may be on the resolution being agreed to by the Council."

This means that as there may be an interval of more than five months between two sessions of the legislatures, it is obvious that an Ordinance issued by a than six month and six weeks more.

The explanation to clause (2) says that when there are two House of the Legislature to a State and they re-assemble on different dates the period of six weeks shall be reckoned from the later of those dates for the purpose of this clause. Suppose that the Second House meets a month later than the Assembly. This will mean that the Ordinance will remain in force for some period less than six months plus the period of one month during which the Second House does not meet plus six weeks, unless before the expiry of six weeks a resolution disapproving of it is passed by the Legislative Assembly and is agreed to by the Legislative Council. Now it seems to me to be wholly unnecessary that an Ordinance which is an executive act should remain in force for so long a period. If an emergency arises requiring the promulgation of an Ordinance, requiring the executive to act without securing the permission of the Legislature, it is necessary that the Legislature should be summoned without unnecessary delay. I think therefore that the period during which it may remain in force should be reduced considerably.

The question then arises what should be the period that might be allowed to elapse before the Legislature meets to consider the Ordinance? I think that even in the biggest province two weeks will be ample for the meeting of the Legislature. It is clear, Sir, that if the Legislature were sitting when the emergency arose, then, however great and serious the emergency might be and however necessary it might be in the opinion of the executive to take immediate action, the executive would not be able to act without having a law passed by the Legislature. When the Legislature is not sitting , it is reasonable that the executive should be allowed to promulgate a measure that would have the same effect as an Act of the Legislature, but whatever the nature of the emergency may be, It can not justify the continuance of the Ordnance even for a day longer than is necessary to summon the Legislature and place the whole matter before it. The existence of a crisis, Sir, does not justify the executive in proceeding in such a way that an Ordinance passed by it may remain in force for as long as possible under the provisions of this article. The point of view of the executive should be not to delay the meeting of the legislature so that the Ordinance may remain in force as long as is possible legally, but to summon the legislature and place the matter before it as early as possible. It is only if it acts in this manner that its action will be in consonance with the spirit of the Constitution and the powers of the legislature in regard to all matters needing legislative sanction. I think, therefore, Sir, that my amendment is thoroughly reasonable. It will give the executive the power to act in at emergency and it will also enable the representative of the people to act in an emergency and it will also enable the representatives of the people beyond the needs of the case, is modified in accordance with the judgment of the legislature.

As I pointed out the other day, the objection to a procedure of the kind lid down in this article is not merely that it unnecessarily prolongs the duration of an Ordinance, but that it prevents the legislature from considering whether the terms of the Ordinance are justified by the emergency. The legislature when it meets, may either disapprove of the Ordinance or if it agrees with the executive in thinking that a special situation calling for special action exists, may feel that the Ordinance confers excessive powers on the executive and may modify it in such a way as to safeguard the liberties of the ordinary man in so far as this is consistent with the existence of an emergency. When a crisis occurs, it does not mean that the rights of the people are to be suspended altogether. A situation may arise where this has to be done; but such a situation will obviously be of an exceptional character. In other situations requiring special action to be taken, the ordinary rights of the citizen should be protected as far as possible. It is necessary, therefore, that any Ordinance that is passed by the executive should be submitted to the scrutiny of the representatives of the people as early as possible.

(Amendments 2531, 2533 and 2534 were not moved.)

Prof. Shibban Lal Saksena: Sir, I beg to move:

"That for amendments Nos. 2523, 2525, 2526, 2527, 1529, 2530 or 2532 to 2534 of the Last of Amendments, the following be substituted:-

(i) That in clause (1) of article 187, for the words 'for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require' the words that immediate action be taken, he shall report the matter to the President who may then promulgate such Ordinances as the circumstances appear to him to require' be substituted, and the proviso to the clause be deleted.

(ii) That in clause (2) of article 137, for the words 'assented to by the Governor' the words 'which has been reserved for the

consideration of the President and assented to by him' to substituted.

(iii) That in sub-clause (b) of clause (2) of article 187 for the word 'Governor' the word 'President' be substituted.

(iv) That in clause (3) of article 187, after the words 'assented to by the Governor' the words 'or by the President' be inserted and the proviso to the clause be deleted."

Sir, after these amendments, the article will read as follow:

"187. (1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both House of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary that immediate action be taken, he shall report the matter to the President who may then promulgate such ordinances as the circumstance appear to him to require.

(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him, but every such Ordinance-

(a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the re-assembly of the legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution, or, as the case may be, on the resolution being agreed to by the Council; and

(b) may be withdrawn at any time by the President.

Explanation- Where the House of the Legislature of a State having a Legislative Council are summoned to re-assemble on different dates, the period of six weeks shall be reckoned from the later of those dates for purposes of this clause.

(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor or by the President, it shall be void."

Sir, I did not wish that our Constitution should be disfigured by any power of making Ordinances by the President or by anybody else. But, now the House has already accepted that the President shall have the power of making Ordinances on certain occasions. I only want that if Ordinance making power is to be provided for, then this power should be confined only to the President and should not be conferred on each and every Governor. There may about thirty Governors in the Country. I want that this power, which is an extraordinary one, should be confined only to the President who may then promulgate such Ordinances as may appear to him to be necessary. Of course, the Governor will have to justify to the President that it is necessary that such an extraordinary measure should be taken. The President and the Prime Minister will consider and take proper steps. An Ordinance in effect means the taking away of the entire power of the legislature and therefore, it should not be freely resorted to. In the Constitution for Free India which we are framing, we are still thinking in terms of the period of slavery through which we have just passed. I hope very soon the times will change and people will insist that no Ordinance should be passed and that everything should be done by the legislature by the peoples' representatives, and them, we shall resent any governor issuing any Ordinance. I therefore think that this power of making Ordinances should not be conferred on every Governor, but should be conferred on the President only, if at all. When any particular province wants an Ordinance, that Governor should report the matter to the President and shall then consider whether an Ordinance should be promulgated or not. That would also keep the Center informed of the situation in the provinces and would ensure that the Ordinances that are passed are passed after careful consideration.

The rest of my amendments are only consequential so that the main amendment is that the power of making Ordinances should be reserved to the President and should not be given to anybody else." I hope this amendment will commend itself to the House and will be accepted.

Shri Jaspat Roy Kapoor: Sir, my amendment No. 74 being more in the nature of a drafting amendment, I will simply wish that the Drafting Committee may take it into consideration while giving final touches to the Draft.

Pandit Thakur Das Bhargava: I submit the same thing with regard to amendment no. 75, Sir.

Mr. President: The article and the amendments are open for discussion.

(No. Member rose)

The question is:

"That for amendments Nos. 2523, 2525, 2526, 2527, 2529, 2530, or 2532 to 2534 of the List or Amendments, the following be substituted:-

(i) That in clause (1) of article 187, for the words 'for to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require' the words that immediate action be taken, he shall report the matter to the President who may then promulgate such Ordinances as the circumstances appear to him to require' be substituted.

(ii) That in clause (2) of article 187, for the words 'assented to by the Governor' the words 'which has been reserved for the consideration of the President and assented to by him' be substituted.

(iii) That in sub-clause (b) of clause (2) of article 187 for the words 'Governor' the word 'President' be substituted.

(iv) that in clause (3) of article 187, after the words 'assented to by the Governor' the words 'or by the President' be inserted and the proviso to the clause be deleted."

The amendment was negatived.!

Mr. President: The question is:

"That in sub-clause (a) of clause (2) of article 187 for the words 'six weeks from the re-assembly of the Legislature' the words 'two weeks from the promulgation of any Ordinance' be substituted."" and

"That the Explanation to clause (2) of article 187 be deleted."

The amendments were negatived.

Mr. President: The question is:

"That article 187 stand part of the Constitution."

The motion was adopted.

Article 187 was added to the Constitution.

* New Article 196-A

Mr. President: We take 196-A. This is an amendment No. 2639, of which Dr. P.K. Sen has given notice. A similar amendment relating to Supreme Court was moved by Dr. Sen, but was negatived today.

(Amendment No. 2639 was not moved.)

So it is dropped.

President: We take up 203.

The Honourable Dr. B.R. Ambedkar: It is to be held over.

Shri T.T. Karishnamachari: 203 (2) (b)-there is the question of whether the particular sub-clause should be retained or modified. We require some time and might be ready with it tomorrow.

* Article 208

Mr. President: We take up 208. There is no amendment to that.

That question is:

"That article 208 added part of the "Constitution."

The motion was adopted.

Article 208 was added to the Constitution.

* Article 209

Mr. President: Article 209. There is no amendment to this either.

The question is

"That article 209 stand part of the Constitution."

The motion was adopted.

Article 209 was added to the Constitution.

* New Article 209-A

Mr. President: There are certain new article proposed No. 209-A.

The Honourable Dr. B.R. Ambedkar: 209-a is to be held over.

Mr. President: Mr. Shibban Lal Saksena has given notice of one.

Prof Shibban Lal Saksena: That also may be held over.

Pandit Hirday Nath Kunzru: Sir, I suggest in view of the Kangaroo procedure that is being adopted in regard to the discussion of the Constitution that all the articles should be postponed today and that we should be told definitely which articles will be discussed tomorrow. The procedure that is being adopted-for no fault of yours-is very inconvenient.

Mr. President: So far as today's Order Paper is concerned, that particular article which have been taken up are mentioned in it.

Pandit Hirday Nath Kunzru: What you have said is

perfectly true but suppose it is put down on the Order Paper that the Constitution will be discussed this does not mean that any Member of the House can come prepared to deal with all the articles in the Draft Constitution on one and the same day.

Mr. President: So, far as today's Order Paper is concerned, the particular article which have been taken up are mentioned and I have taken their up in the order in which they are mentioned on the Order Paper. There was a complaint made the other day and so I suggested that the particular article should be mentioned.

I think we had better adjourn till 8 A.M. tomorrow.

The Assembly then adjourned till Eight of the Clock on Wednesday the 15th June 1949.