Constituent Assembly Of India -Volume IV
Dated: July 15, 1947
Mr. President: We shall proceed to take the report clause by clause.
The Honourable Sardar Vallabhbhai Patel: Now with your permission, Sir, I move the first clause of the report-Chapter I-the Provincial Executive,
Now in this clause two important points are involved. The first thing is that for each province there shall be a Governor. That principle is an important one. The other important principle is that he shall be elected by adult franchise. Now in the Provincial Constitution you may have seen that very limited powers are given to the Governor, and yet he has to be elected by a process which is very. cumbersome and therefore the question may naturally arise that if the Governor has got limited, powers, why do we go through the process of election which involves so much difficulty because an election in a province by the process of adult franchise is a very difficult job? Yet it is considered necessary because of the dignity of the office which a popular Governor will hold and naturally a Governor who has been elected by adult franchise of the whole province will exert considerable influence on the popular ministry as well as on the province as a whole. His dignity and status also demands that he should have the unanimous and general support of all the sections of the people in the country. Therefore, two principles are involved in this motion. One is the appointment of a Governor considered necessary in all the provinces according to the Model Provincial Constitution Report and the other is adult franchise and therefore I move.
Mr. President: I have received notice of a number of amendments to this clause. Many of them are printed and have been circulated, but I am getting amendments even now. I do not propose to take the amendments which I am getting now.
An Honourable Member: With your permission, Sir may I ask a question? Sardar Vallabhbhai Patel referred in the course of his speech to the fact that a joint meeting of the Provincial Constitution Committee and the Union Constitution Committee was held and that as a result of the deliberations of that Committee certain changes are to be made. May I know whether this clause was also considered and is it a fact that that Committee was of opinion that the ;election of Governor should not be held directly by adult franchise but he should be elected by the Provincial Legislature in accordance with the principle of proportional representation by a single transferable vote?
Mr. President: That is a question which the Mover may answer if he wishes.
Shri T. A. Ramalingam. Chettiyar (Madras: General): I want one point to be made clear. That is whether this model constitution which gas been framed for the provinces is the one which the Provinces will have to dapot necessarily or whether the Provinces are free to adopt them with such changes as they would like. This is a matter on which I would like to have elucidation.
Mr. President: All these questions will be replied to by the Mover if he wishes to answer them.
Dr. P. S. Deshmukh (C. P. & Berar: General): Sir, I would like to say a word about the amendments which have been received by you now. I would like to point out that although we were told to send the amendments early, the substantial motion has only just been made and it is only after a motion has been made that members are entitled to send any amendments. Therefore, I would request you, Sir, that these amendments which have been sent to you now and would be Sent to you up to 6 o'clock today should be admitted and considered. It would be somewhat unfair not to admit them.
Mr. President: Do I understand, Dr. Deshmukh, that we should adjourn the House for allowing members to give notice of amendments which would be taken up later?
Dr. P. S. Deshmukh: No, Sir, ram suggesting that we should go on with the amendments already printed, but if there are any amendments which are sent in during the day they might also be considered. The very first clause has numerous amendments and it will take a long time to consider them; so no time will be lost in admitting the fresh ones.
Mr. President: If there. are any amendments which you have given notice of and which, although not printed, members have had occasion to consider, then I will not stand in the way, but I will not admit amendments put before the House without proper notice, and giving opportunity to members to consider them.
Shri Mahavir Tyagi (U.P.: General): On a point of order, Sir.
Mr. President: The point or order arises on what?
Shri Mahavir Tyagi: I want to put a question to you with regard to the interpretation of the rules. Now, Sir, there is a rule that notice of amendments has to be sent one clear day in advance of the date on which the motion is made., I want to 'know if by the word "motion ' the whole report is meant or each. clause is a motion in itself. As far as I know, in our provincial legislature motion means a question put to the House or discussed before the House. Each question is a motion in itself. So, Sir, if I choose to send an amendment to, say, Clause 21, of this Report which will I expect come up day after tomorrow and give notice of an amendment today, I think, Sir, that amendment will be In order because there will be one clear day's notice.
Mr. President: Rule 32 lays down:
"Except as permitted by the Chairman, notice of any amendment to a motion en at least,one clear day, before the motion is to be moved in the Assembly. The motion which has been moved was circulated and given notice of, I think, several days ago and members have had ample time to give 24 hours' notice of amendments. Therefore, I say, I cannot take up, any amendment of which notice is given just now.
Shri Mahavir Tyagi: Sir, I was asking whether the moving of Clause 21 three days afterwards will be a motion in itself or not. The House will be in possession of that motion and be discussing it after three days. That being so, I submit I am entitled to bring in an amendment now because it will be more than one clear day in advance.
Mr. President: As I have said, if I get notice of an amendment in time for circulation to the members so that they may have an opportunity to consider it before coming to the House, I may accept it; but I cannot accept an amendment which cannot be printed and circulated to the members beforehand. If, however, notice is given now of an amendment to a motion which will come three days later, I do not mind it.
Shri Mahavir Tyagi: Thank you, Sir. my point is achieved.
Mr. President: We shall take up the amendments.
Mr. Naziruddin Ahmad: Sir, I submit that copies of the amendments were received by us only this morning. The matters dealt with are of an extremely difficult and abstruse nature and we have had no sufficient time to consider the amendments. I submit, therefore, that we may please be given at Last twenty four hours' time to go through the amendments and then get ready to say yes or no or offer observations. That is the only thing I ask for.
Mr. President: I understand these amendments were circulated last night?
Mr. Naziruddin Ahmad: But we have received them only this morning. Some of us, I understand, got them today oncoming to the House.
Mr. President: I allowed members time up to yesterday evening to send in the amendments, and it has taken time to get them printed and circulated to the members. Some of them have received the copier, rather late. If members think they have not had enough time to consider the amendments we may put off their consideration. But we have about 40 minutes more, and I suggest that we may take up their consideration now. We may not be able to take up more than one or two amendments, and if there is any difficulty we shall consider postponing them.
Nawab Muhammad Issmail Khan (United Provinces: Muslim): These amendments were laid on the table only this afternoon and we have had no time to consider the bill in the light of these amendments and I think it is only right that the members should get an opportunity to study the bill in the light of the amendments and thereafter the amendments may be taken one by one.
Mr. President: I was under the impression that the amendments were circulated last night.
Nawab Muhammed Ismail Khan: We received this book only this afternoon.
Mr. K. M. Munshi: But most members received it last night.
Mr. President: It seems there have been some delays in circulating the amendments because the addresses of some members were notknown to the office. It seems some members have not had these amendments until late this afternoon. I am entirely in the hands of the House as to whether we should consider the amendments now.
(After a pause.) I now call upon Maulana Hasrat Mohani to move his amendment.
B.Pocker Sahib Bahadur (Madras: Muslim): I only want to remind you of the request I made yesterday, that arrangements should be made to render the speeches into English as a large number of members are not able to follow the speeches in languages other than English. Therefore, Sir, in view of the fact that Maulana is going to speak in Urdu, I would request that arrangements may be made to give us a rendering into English of the valuable speech which Mr. Maulana is going to make.
Maulana Hasrat Mohani: Sir, I move my amendment to this Clause No. 1. I think I will have some difficulty in expressing myself in a foreign tongue but to accommodate my friend from Madras, I shall try my best to express myself as best as I can. I move:
By this I intend to say that we have got an inherent right of all the members of all these constituent provinces to demand a Provincial Republic for every Province. What we have intended and what we thought and what we were expecting to get, we wanted and we thought that we will get a Union of Indian Republics. My friend Mr. Tripathi had moved an amendment in the last session of this Assembly that he wanted to introduce the word 'Socialist'. It did not have the support of the House. We will see to it afterwards. If we have got a Federal Republic, it does not matter whether you agree to make it a Socialist Republic or not. In the first instance, you may have a Nationalist Constitution and majority of Nationalist members but I am sure that the tendency of the World is to become, everyone of us is becoming now, socialist mainded and I think that the time is not far off when, as we expect, we will be able to form a solid group of leftists and I think that by the latest, in the next election I hope that we will be able to capture the whole of the organization. If you now agree to make every province a Republic, I do not care whether you agree to make it socialistic or not. We will make it a socialist republic. But one think I must say, you cannot shelve this question. You cannot say "We want only a Republic in the Centre. We will not allow any of these Provinces to become a Republic", and as I said, this is a trick when you say that in each Province there shall be a Governor. I say that it must be a President. if you accept the word 'President, then it means that you agree to make every Province a Republic. If you refuse to accept the word 'President', then it means that you are determined to retain those Provinces as mere autonomous Provinces. You grant only Provincial autonomy and nothing else. If that is your intention, I most strongly protest against this sort of treatment which if I am not using any strong words, I shall say, will be something like staging a farce on the people of all the Provinces, especially on my Province, the United Provinces. Here my friend Pandit Nehru says "you can introduce afterwards any amendment you like to the Union Constitution '. I say I introduce this amendment here and now, and ask you to make this word 'Governor' President', so that you may not be able to refuse to reopen the whole thing on the occasion of my moving an amendment towill anyhow come in and this difficulty will crop up. My friend Sardar Patel also said there is no difference whether we call Governor or President. There is a great difference. Once you disallow my amendment you will say 'No, we will have only Governor'. That means that you want to give us only Provincial autonomy. You do not want many of the Provinces to go even a single step further. I have read very carefully your Union Report' In this Union Report, page 12, Clause 9 says:
To this Clause 9, a note is added which says:
In respect of the Indian States you say something. But you say the position of the Provincial units is different. They have no residuary power in respect of special subjects. You fix only the provincial subjects. And you ask us to accept this clause. We will not. Of course, you have got a majority. You can pass anything you like. But I ask in the name of justice and fairplay "What right have you got to deprive the provinces of India from aspiring to become republics of the Union of Federal Republics, and not only Federal Republics but Socialist Federal Republics at that"? This wag moved in a former meeting of the Assembly. You did not accept that. But the position was quite- different then. You were suspecting the Pakistan people might make mischief. But they have been separated now, Some Muslim Leaguers raised this objection; "Now that India and Pakistan have become two different things, what is the meaning of the AllIndia Muslim League?" All-India Muslim League means the Muslim League of India, i.e. of the minority Provinces. So, they said, "If you want to have a Muslim League, you can start one for Pakistan, where we the Muslims of the Muslim minority provinces can have no influence, except through the Council of the All-India Muslim League which according to the decision of Mr. Jinnah still exists and to which new members have already been elected. I am one of the from U.P. (Interruption).
Mr. President. Order, order.
An Honourable Member: Does the speaker think that this is the All-India Muslim League Council?
Maulana Hasrat Mohani: No, no. I am pointing out that I have nothing to do with Pakistan except as a member of the All-India Muslim League Council. Where is the harm if we take the Union Constitution first. You have deliberately put the Provincial Constitution here first. What Is the meaning of that? By taking this model provincial report fast you are doing us a very grave injustice. Of course, you can have it passed. But you cannot prohibit the provinces from demanding independence and becoming republics You have said "We want only a Unitary Republic". Thin. why have you introduced the word "Federation" in your report here? It is simply to deceive the public. You fight shy of the word "Unitary". Therefore to have your way you have said "Federation". This is why you want to preclude the provinces from demanding republic government. But I tell you, you cannot compel them. You cannot impose your authority on them. We want a Union of Socialist Republics and if you persist in imposing nationalism and a nationalist constitution on your provinces you will soon be swept off the face of the earth.
(Messrs. M. Ananthasayanam. Ayyangar, Khurshed Lal, V. Muniswami Pillai, Dr. P. Subbarayan, T. A. Ramalingam Chettiar, Ajit Prasad Jain and R. K. Sidhwa did not move their amendments.)
Mr. President: These are all the amendments of which I have received notice in regard to Clause 1. As there was a wish expressed by some members to bring in amendments and as I wanted to consider that wish, I have just allowed one amendment to be moved. The others have not been moved. That amendment will be considered tomorrow.
As regards the Union Constitution Report, I understand it has been already circulated to members and I would request members to send in notice of amendments to that Report by Thursday evening.
Now we adjourn till tomorrow at 3 P.M.
The Assembly then adjourned till Three of the Clock on Wednesday, the 16th July, 1947.
CONSTITUENT ASSEMBLY OF INDIA
NEW DELHI, THE 27TH JUNE, 1947,
THE HON'BLE SARDAR VALLABHBHAI PATEL,
CHAIRMAN, PROVINCIAL CONSTITUTION COMMITTEE.
CONSTITUENT ASSEMBLY OF INDIA.
On behalf of the members of the Committee appointed by the Hon'ble tHe President in pursuance of the resolution of the Constituent Assembly of the 30th April, 1947, to report on the principles of a model Provincial Constitution, 1 have the honour to submit the annexed Memorandum, which embodies the recommendations of the Committee together with explanatory 'notes where necessary.
I have the honour to be,
SIR, Your most obedient servant,
CONSTITUENT ASSEMBLY OF INDIA
PROVINCIAL CONSTITUTION COMMITTEE
Memorandum on the Principles of a model Provincial Constitution
The Provincial Executive
1.Governor.-For each Province there shall be a Governor to be elected directly by the people on the basis of adult suffrage.
[Note.-The Committee were of the opinion that the election of the Governor should, as far as possible, synchronize with the general election to the Provincial Legislative Assembly. This may be difficult to provide by statute, because the Legislative Assembly may be dissolved in the middle of its term.]
2.Term of Office.-
3. Casual vacancies.-
4. Age qualifications.-Every citizen of the Federation of India who, has reached his 35th year of age shall be eligible for election as Governor.
5. Disputes regarding election.-Disputes regarding the election of a Governor shall be enquired into and determined by the Supreme Court of the Federation.
6. Conditions of Governor's office.-
7. Executive authority of Province.-The executive authority of the Province shall be exercised by the Governor either directly or through officers subordinate to him, but this shall not prevent the Federal Parliament or the Provincial Legislature from conferring functions upon subordinate authorities, nor shall it be deemed to transfer to the Governor any functions conferred by any existing Indian law on any court, judge or officer or local or other authority.
8 Extent of the Executive authority of Province.-Subject to the provisions of this Constitution and of any special agreement, the executive authority of each province shall extend to the matters with respect to which the Provincial Legislature has power to make laws.
[Note.-The reference to special agreements in this provision requires a word of explanation. It is possible that in the future there may be Indian States or groups of Indian States desiring to have a common administration with a neighbouring Province in certain specified matters of common interest. In such cases, the Rulers concerned may by a special agreement cede the necessary jurisdiction to the Province. Needless to say, this will not interfere with the accession of the State or States concerned to the Federation, because the accession to the Federation will be in respect of Federal subjects, whereas the cession of jurisdiction contemplated here is in respect of Provincial subjects.]
9. Council of Ministers.-There shall be a council of ministers to aid and advise the Governor in the exercise of his functions except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
[Note.-For the most part, the Governor will act on advise, but he is required to act in his discretion in the following matters:-
10. If any question arises whether a matter is one for the Governor's discretion or not, the decision of the Governor in his discretion shall be final.
11.The question whether any, and if so, what advice was tendered by the ministers to the Governor shall not be enquired into in any court.
12. Other provisions as to ministers.-The Governor's ministers shall be chosen and summoned by him and shall hold office during his pleasure.
13.(1) A minister who for any period of six consecutive months is not a member of the Provincial Legislature shall at the expiration of that period cease to be a minister.
(2)The salaries of ministers shall be such as the Provincial Legislature may from time to time by Act determine, and, until the Provincial Legislature so determine, shall be determined by the Governor:
14.Conventions of responsible Government to he observed.-In the appointment of his ministers and his relations with them, the Governor shall be generally guided by the conventions of responsible Government as set out in Schedule............ ; but the validity of anything done by the Governor shall not be called in question on the ground' that it was done otherwise than in accordance with these conventions.
[Note.-Schedule...... will take the place of the Instrument of Instructions now issued to Governors.]
15. Special responsibilities of Governor.-(1) In the exercise of his responsibilities, the Governor shall have the following special responsibility, namely, the prevention of any grave menace to the peace and tranquillity of the Province or any part thereof.
(2) In the discharge of his special responsibility, the Governor shall act in his discretion:
16. Advocate-General for Province.-(1) The Governor shall appoint a person being one qualified to be a judge of a High Court, to be Advocate-General for the Province to give advice to the Provincial Government upon legal matters.
(2) The Advocate-General shall retire from office upon the resignation of the Prime Minister. but may continue to carry on his duties until a new Advocate-General shall have been appointed.
(3) The Advocate-General shall receive such remuneration as the Governor may determine.
17. Conduct of business of Provincial Government.-All executive action of the Government of a Province shall be expressed to be taken in the name of the Governor.
18. Rules of Business.-The Governor shall make rules for the more convenient transaction of the business of the Provincial Government and for the allocation of duties among Ministers.
The Provincial Legislature
19. Constitution of Provincial Legislatures.-(1) There shall for every Province be a Provincial Legislature which will consist of the Governor and the Legislative Assembly; in the following Provinces, there shall in addition, be a Legislative Council (here enumerate those Provinces, if any, which desire to have an Upper House).
(2) The representation of the different territorial constituencies in the Legislative Assembly shall be on the basis of population and shall be on a scale of not more than one representative for every lakh of the population, subject to a minimum of 50 for any Province.
The elections to the Legislative Assembly shall be on the basis of adult suffrage, an adult being a person of not less than 21 years of age.
(3) Every Legislative Assembly of every Province, unless sooner dissolved, shall continue for four years from the date appointed for its first meeting.
(4) In any Province where the Legislature has an Upper House, the composition of that House shall be as follows:-
[Note.-Under the existing Constitution, Madras, Bombay, Bengal, the U. P., Bihar and Assam have two Houses and the rest one. It was agreed that the members of the Constituent Assembly from each Province should vote separately and decide whether an Up per House should be instituted for the Province. There is to be no special representation in the Legislative Assembly either for universities, or for labour or for women.]
20. Composition of Provincial Legislatures, etc.-The provisions for the meeting, prorogation and dissolution of the Provincial Legislature, the relations between the two Houses (where there are two Houses), the mode of voting, the privileges of members, disqualification for membership, parliamentary procedure, including procedure in financial matters, etc. shall be on the lines of the corresponding provisions in the Act of 1935.
21. Language. In the Provincial Legislature, Business shall be transacted in the Provincial language or languages or in Hindustani (Hindi or Urdu) or in English.The Chairman (where there is an Upper House) or the Speaker, as the case may be, shall make arrangements for giving the House, where he thinks fit, a summary of the speech in a language other than that used by the member and such summary shall be included in the record of the proceedings of the House.
22. Franchise for the Provincial Legislature.-
The Provincial Legislature may from time to time make provisions With respect to all or any of the following matters, that is to say,
Legislative powers of the Governor
23.(1) If at any time when the Provincial Legislature is not in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require.
(2) An ordinance promulgated under this clause shall have the same force and effect as an Act of the Provincial Legislature assented to by the Governor, but every such ordinance-
(3) If and in so far as an ordinance under this clause makes any provision which the Provincial Legislature would not under this Constitution be competent to enact it shall be void.
[Note.-The ordinance-making power has been the subject of great criticism under the present Constitution. It must however be pointed out, that circumstances may exist where the immediate promulgation of a law is absolutely necessary and there is no time in which to summon the Provincial Legislature. In 1925, Lord Reading found it necessary to make an ordinance abolishing, the cotton excise duty when such action was immediately and imperatively required in the interests of the country. The Governor who is elected by the people and who was normally to act on the advice of ministers responsible to the Legislature is not at all likely to abuse any ordinance-making power with which he may be invested. Hence the proposed provision.]
Excluded and Partially Excluded Areas.
[The provisions of this Chapter cannot be framed until the advisory Committee has reported.)
The Provincial Judiciary
1. The provisions of the Government of India Act, 1935, relating to the High Court should be adopted mutatis mutandis; but judges should be appointed by the President of the Federation in consultation with the Chief-Justice of the Supreme Court, the Governor of the Province and the Chief Justice of the High Court of the Province (except when the the Chief Justice of the High Court himself is to be appointed)
2. The judges of the High Court shall receive such emoluments and allowances as may be determined by Act of the Provincial Legislature and until then such as are prescribed in Schedule............
3. The emoluments and allowances of the judges shall not be diminished during their term of office.
Provincial Public Service Commission and Provincial Auditor-General
Provisios regarding Public Service Commission and Auditors-General should be inserted on the lines of the provisions of the Act of 1935. The appointment of the Chairman and members of each Provincial Public Service Commission and of the Auditor-General should be vested in the Governor in his discretion.
1. Any person holding office as Governor in any province immediately before the commencement of this Constitution shall continue as such and shall be deemed to be the Governor of the Province under this Constitution until a successor, duly elected under this Constitution, assumes office.
2. There should be similar provisions, mutatis mutandis, in respect of the Council of Ministers, the Legislative Assembly and the Legislative Council (in Provinces which decide to have an Upper House).
(Note.- These provisions are necessary in order that there may be a Legislature and a Government ready to take over power in each Province as soon as this Constitution comes into force.]
3. The Government of each Governor's Province shall be the successor of the Government of the corresponding Province immediately before the commencement of this Constitution in respect of all property, assets, rights and liabilities.