Constitution Assembly Of India - Volume VIII
Dated: June 15, 1949
The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Eight of the Clock, Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair.
* Article 203
The Honourable Dr. B. R. Ambedkar: (Bombay: General): Mr. President, Sir, I move:
I also move:
I further move:
"That with reference to amendment No. 2664 of the List of Amendments-
(Amendment No. 2665 was not moved.)
Shri H. V. Kamath (C.P. & Berar & General) : Mr. President, I move:
If the House reads the article with all the clauser together it will see that clause (1) specifies certain general powers with which every High Court is sought to be invested under this article. To my mind therefore it appears that so far as clause (2) of this article is concerned, which provides for certain specific powers or invests the High Court with powers in certain cases, it is necessary that this clause should particularise these specific provisions. Clause (1) has certain general provisions. Clause (2) which follows clause (1) and which specifies certain particular things must provide that the High Court may in particular do this and do that.
As regards amendment No. 2664 moved by Dr. Ambedkar which relates to the marginal heading of this article, a point was raised in this very House the other day with regard to marginal headings and Dr. Ambedkar himself told the House that marginal headings are by some deemed part and by others not deemed part of the Constitution. I do not know therefore whether a formal amendment in this connection is necessary. Apart from that, I am not quite sure whether the amendment moved by him in this regard in quite happily worded. The amendment reads "Power of superintendence over all courts by the High Court". What the article provides is certain powers of superintendence and cognate matters". I do not think it is quite necessary to insert the words "over all courts". The article provides for powers of superintendence. Even if the phrase "over all courts" is not included in the marginal heading it will be quite clear that powers of superintendence are meant to be included in this article. It is enough to say "Powers of superintendence by the High Court" and the article will mention "over all courts" and such other matters. What is intended by the article is to provide the High Court with powers of superintendence. As to over what courts, can following in the article itself. The marginal heading originally read, "Administrative functions of High Courts". Following the spirit of that marginal heading I think the words "Powers of superintendence by the High Court" are enough and we may leave out the words "over all courts". Sir I move.
Prof. Shibban Lal Saksena (United Provinces: General): Mr. President, Sir, with respect to the amendment moved by my honourable Friend Mr. Kamath think it has now become superfluous after amendment No. 2666 which says "Without prejudice to the generality of the foregoing provisions the High Court may." This is better than the wording contained in Mr. Kamath's amendment, namely "In particular etc." Therefore I think Mr. Kamath will not press his amendment.
I am very happy at the amendment moved by Dr. Ambedkar No. 209-by which he has stated that "every High Court shall have superintendence over all courts and tribunals". I wanted to draw the attention of the Honourable Doctor to labour tribunals. Every day labour tribunals are getting more and more important. Our experience of these tribunals is very bad. They yet have to copy the traditions of the judicial courts. I hope now, when the High Court has powers over them, they will also be brought under its supervision and control so that we can have better justice in labour tribunals and also the right procedure.
I am also glad that sub-clause (b) of clause (2) has been omitted. In this way its power has been widened. Originally it had power only to withdraw suits and appeals confined to civil cases. Now it can call any cases that it may like. I therefore support the amendment strongly.
Mr. President: The question is:
The amendment was adopted.
Mr. President: The question is:
The amendment was adopted.
Mr. President: The question is:
The amendment was negatived.
Mr. President: The question is:
The amendment was adopted.
Mr. President: The question is:
The motion was adopted.
Article 203, as ameded, was added to the Consitution.
Shri T. T. Krishnamachari (Madras : General): Sir, article 209-A, 209-B, 209-C, 210 and 211 may be held over. We are still not ready with our alternative drafts.
Honourable Members : yes, they may be held over.
* Article 270
Mr. President: Then we go to article 270.
Mr. Naziruddin Ahmad (West Bengal: Muslim): Mr. President, Sir, I beg to move:
(Amendment No. 2976 was not moved.)
The Honourable Dr. B. R. Ambedkar: Sir, I move:
Now, as regards the amendment moved by Mr. Naziruddin Ahmad, may I say that he has evidently forgotten that we are using the words "Government of India" to indicate the Government that will come into existence under the new Constitution, while the "Government of the Dominion of India" is a term which is being used to indicate the Government at the present moment? Consequently, if his amendment is accepted is accepted it would mean that the Government of India is succeeding to the liabilities, obligations and assests of the Government of India. It would make absurd reading. Therefore the words as they are there are very appropriate and ought to be retained.
The Honourable Shri K. Santhanam (Madras: General): I am afraid we are passing this article in a hurry. As it has been our attempt to bring the Indian States into line with the provinces, we are here simply providing that the old provinces will be continued while no such provision is made for the States.
The Honourable Dr. B. R. Ambedkar: What is your amendment?
The Honourable Shri K. Santhanam : I am not moving any amendment. I am only commenting on the article as it is. I think that both articles 270 and 271 are subject to the same disabilities as the other articles which are concerned only with the Propvinces and not with the States and therefore probably it will be better for the future Constitution if these two are brought in line and the article made more comprehensive so as to include the States also. Wherever the states are continued as States they should be deemed to be the successors of the old States and where they have been amalgamated or merged into the provinces they should also be mentioned appropriately. For instance, Baroda has been merged with Bombay. If you pass article 270 as if is, it will mean that the old Bombay province, without Baroda, will be a State as given in the Schedule. I think proper provison should be made. Now it simply says "...shall respectively be the successors of the Government of India or the provinces." Under the Government of India Act, Bombay was a province without the Baroda State. Today it is a province with the Baroda State included. So I would like to know what is the implication of passing article 270, as it is. Also, in the future Bombay may be construed not to include Baroda or Kolhapur. All these things have to be considered. I think it is desirable that consideration of article 270 also may be postponed so that it may be brought into line with the other provisions which may be made.
Shri H. V. Kamath: This article raises a number of issues. My Friend Mr. Santhanam has just observed that this article ought not to be passed in a hurry. I agree with him for the following reasons: Firstly, as Mr. Santhnam said, the provinces specified in Part I of the First Scheduel have undergone vast changes and are perhaps still undergoing considerable changes. We cannot at the present stage say what exactly the position will be when the Constitution commences. The example of the Bombay province has been cited. This article itself mentions at the tail-end of it West Bengal and East Punjab. It takes cognizance of the creation of these new provinces. Does it not stand to reason therefore that we should take notice of the various States that have merged into what were known as Governors' Provinces? Not merely Bombay, but Madras, Central Provinces and I believe Bihar have all undergone changes. There have been tacked on to these provinces several States. Because of these mergers, etc. there have been substantial changes made requiring changes to be made in Part I of Schedule I and in Part III of the First Schedule. Several States mentioned in part III have disappeared from the Indian scene. For instance if you take Part III of the First Schedule you will find that Baroda is not in the picture. It has merged with Bombay. Kolhapur too has gone out of the picture and joined Bombay. So, unless the Schedule itself is recast and Part I and III re-adjusted, I do not think it will be wise on our part to mention here the assests, liabilities and obligations obtaining at the time of the commencement of the Constitution. We must be clear in our own minds what the provinces specified in Part I and the States specified in Part III of the First Schedule were and what they are today.
Mr. President: Has the Schedule been adopted?
Shri H. V. Kamath: Not yet. That is why I say that this article may be held over till we adopt the Schedule.
Secondly, I am not quite sure in my own mind whether it would be adequate to say "the Government of India" in line 2 of this article, because further on in the same article we say "the Government of the Dominion of India". In order to draw a clear distinction between this and that, I suggest that we might as well as say, "the Government of the Indian Republic" in line 2 of this article or "the Government of the Union of India." As the House will recollect, article 1 of the Constitution is to the effect that India shall be a Union of States.
To make a distinction between the Dominion of India and the future Government of India, we must either say the Government of the Republic of India or the Government of the Union of India. Merely to say "Government of India" will not do.
As regards the use of the phrase "the Dominion of India", I am not quite sure in my own mind what exactly the constitutional position is. If I remember aright, at the opening of this session, the Honourable Shri Jawaharlal Nehur moved a resolution before this House on our future relations with the Common-wealth. The resolution as drafted originally said the Dominion Prime Ministers' Conference in London, etc. etc. but later the Honourable Shri Jawaharlal Nehru himself changed it to "the Commonwealth Prime Ministers' Conference." Press reports which emanated at that time said that the Conference had decided to drop the words "Dominion". I do not know when exactly this change will take effect. This will perhaps continue till we proclaim ourselves a Republic. Then the question does not arise. But after what transpired at the Common-wealth Prime Ministers Conference in London last April, we can even today, if we will, drop the word 'Dominion'. As regards the title of the Common-wealth, there are different opinions. Mr. Attlee said, "you can call it what you will," and Mr. Chiefley, the Prime Minister of Australia, the other day speaking in the House of Representatives in Australia said that he would continue to call it the British Commonwealth, would prefer the prefix "British". It is up to us in India to call ourselves what we like, and if the British Government and the Commonwealth do not insist on calling ourselves the Dominion of India, certainly I do not see any reason why we should not drop the word 'Dominion' at once. Mr. Attlee said at the Conference that the Commonwealth Countries can call themselves what they like. I therefore think that it is left to us to call our country what we will. I think that even today we can stop calling ourselves a Dominion and call ourselves the Union of India or whatever we may decide about it. After all there is no constitutional obligation to call ourselves a Dominion and if I have understood correctly the proceedings of the Commonwealth Prime Ministers' Conference and also what was told by our own Prime Minister in this House. I therefore think, Sir, that this article could be amended very usefully, very wisely, with a view to precision, constitutional or otherwise. It should be amended in the light of the proceedings of the Commonwealth Conference. We can even today call ourselves either India or some other term that the House may decide. Therefore considering all the various aspects of the matter, I feel that this article bristles with difficulties and I think it will be wise for this House to hold it over for a more suitable day when we can delliberate over this in greater detail. I therefore move, Sir, that the amendment as well as the article may be held over for a later date.
Prof. Shibban Lal Saksena: Mr. President, Sir, I am unable to understand whether this article is essential for our Constitution. It says that the new Government of India and the Governments of the States shall be the successors of the Government of the Dominion of India. Sir, in the Preamble we say that we, the people of India, are giving ourselves this Constitution. that being the case, I do not see why it is necessary to say that we are the successors of the Government of the Dominion of India. I do not think that this article is necessary in the Constitution. Besides this, as my Friends pointed out, the wording of the article needs to be changed and the article needs to be reconsidered. As Mr. Santhanam has pointed out, the provinces have changed a lot and there must be some provision to take into account the changes that have taken place. I am also not able to understand the purpose of the last five lines of this article "subject to any adjustment made or to be made, etc." I do not know whether this confers any extra legal right. I want Dr. Ambedkar to tell us what will happen if this clause is deleted. Will that mean that the new Government under this Constitution will have no property and will not be the successor of the present Government of the Dominion of India? I want that the purpose of this article should be properly explained. I feel personally that it is not necessary and need not be incorporated.
Shri R. K. Sidhva (C.P. & Berar: General): Mr. President, Sir, I would like to understand the objections raised to this article by my Friends Mr. Kamath and Professor Shibban Lal Saksena, but I cannot follow exactly what they meant, when they objected to the enactment of this article. The article is very clear, that is to say, it says that the coming Government of India will be the successor of the present Government of the Dominion of India. My Friend, Mr. Kamath, does not want the word "Dominion" to be used and instead the word "Commonwealth" to be introduced.
Shri H. V. Kamath: I wanted to say "the Government of the Republic or Union of India." My Friend, Mr. Sidhva, has not heard me correctly.
Shri R. K. Sidhva: But you were talking of the Commonwealth all along and of what Pandit Jawaharlal Nehru said in his speech on the Commonwealth resolution. Whatever may happen later on, today we are the Dominion of India. That cannot be denied. Therefore the article says that whatever property is there of the present Government will automatically go to the new Government. It is necessary that that should be mentioned; otherwise technical objections may arise. Similarly with regard to the last few lines. The matter has been made very clear. Whether it is necessary to have such an article or not is a different matter. I personally feel that to strengthen our hands it is necessary that such an article should be embodied. I therefore support this article.
Shri Mahavir Tyagi (United Provinces: General): Sir, we have agreed to remain in the Commonwealth and I do not see there should be any reason to object to the word "Dominion". My honourable Friend, Mr. Kamath, wants to behave like a woman who has married a man and still insists on calling herself a maiden. Once you are in the Commonwealth, what is the good of your getting away from the name "Dominion" I think, I would under these circumstances prefer to be a Dominion in right earnest. That would have been a better decision. Anyway now, whatever decision we have adotped, once we are in the Commonwealth, we should not fight shy of calling ourselves a Dominion. It would be much better for us to call ourselves a Dominion than neither to remain a Dominion nor to remain independent. So, I think the wording should not be objected to.
Shri Alladi Krishnaswami Ayyar (Madras: General) : Mr. President, in principle there can be no objection either to article 270 or to the amendment that has been proposed. All the liabilities of the previous Government will have to be taken over by the successor Government but I just want to point out that it may be when what are referred to as the merged States are incorporated with each province or unit-state, then certain modifications may be necessary in regard to article 270 in the mutual adjustments of rights and obligations, because in the case of a unit the successor Government will not be merely the old province plus the merged State. Therefore, in regard to previous, obligations, necessary adjustments may have to be made later on. There can be no exception to the general principle enunciated in article 270 though article 270 may require certain modifications when that scheme materialises or when we are able to come to a definite conclusion as to the position of the merged States Vis-a-Vis the units. With these words, I support the article 270 with the amendment.
Shri S.V. Krishnamoorthy Rao (Mysore State): Mr. President, Sir, I see, no reason to hold up this article on the ground that the position of the State is not yet clarified. In fact the provision is "for the time being specified in Part I of the First Schedule'and the House has not accepted the First Schedule and at the time of accepting the First Schedule, it could be clarified as to what each particular State means and as Shri Alladi Krishnaswami Ayyar put it, there is no justification for holding up this article on that one ground and therefore, I support this article.
Shri T. T. Krishnamachari: Mr. President, Sir, I have listened with attention to the objections raised to passing this article at this stage and in the manner it has emerged, by honourable Friends in this House. I am afraid, Sir, though their objections were logical. I feel we cannot give in to those objections and postpone the consideration of this article reason that the provisions which they want to bring into articles, that the succession with regard to assets, debts, right and liabilities of what are now called Indian states which have already merged hereafter provinces and state are likely to accede or come into the scheme of Federation in the same manner as the provinces, as the whole position is so nebulous at the moment. It may be that on examination it would not be worthwhile under taking the assets and liabilities of some states that are coming in as units of the Federation. It also may be that the position of Governments of the states which have got merged into the province are such that we would not like to take over their liabilities, because who do not know what they are ; we cannot take over the assets and liabilities of an admiration, which is not carried on approved lines, in which we do not know exactly where we stand. So the whole position will have to be reviewed at the time when we bring in the Indian states in to the picture. Also, Sir, it is possible that between now and the time when this constitution is to be promulgated, there might be more states merging into what are now called provinces. In the present states of thing as they are in India, there is no point in saying that we shall not proceed to act in matters where we have definite information, where we can prescribe certain methods by which we can complete this taking over of the administration of the past along with the assets and liabilities, merely because in the case of certain other states, we have not got full information. I would at the same time like to tell honourable Member of this House that the problem of the states is one of the headaches that we have to face today as constitution-makers. It may be that we will have to leave a chapter relating to states in part 111 of the schedule without being filled in until the last week or last fortnight before finalising the constitution when we will incorporate in that chapter the states of things as they are at that time, make regulations for state which have come into the federation on the same line as the provinces and all the incidental and consequential it may be some states might have to be left out. There is no point in my trying to explain at length difficulties that we have to face, because the difficulties will be apparent to anybody who look into the various covenants and the exact position of the states from the documents issued from time to time by the state ministry ; but I do not think that it is any justification for postponing identify consideration of articles which are in themselves complete in so far as the territories they deal with. Any further changes changes are occurring day after day and there may be quit a lot of changes before the constitution is complete---can only be brought in by special provisions and in a special chapter . I have no doubt that Dr. Ambedkar is very grateful to the articles which I have no doubt he has also got in mind. The position will be adequately met before the constitution is finalised and I think, Sir, in the meantime, the article may be passed as it is.
Mr. Mahboob Ali Baig Sahib (Madras: Muslim) : Mr. President, the central question is whether this article will entitle the future Government of India and the provinces to the assets and liabilities not only of British India under the old Constitution, that is the 1935 Constitution, but also to become successors of the States, the Native States as they were called.
Sir, the wording here is that the future Government of India and the Government of the States shall be the successors of the Dominion of India and of the Governors' provinces as mentioned in the Government of India Act of 1935. Under the Government of India Act, 1935, the States were kept apart and the Dominion of India or the Governors Provinces did not include the Native States at all. Therefore, if you are confining this article 270 and say that the future Government of India and of the States shall be the successors of the Dominion of India and of the Governors' provinces, clearly, the future Government of India and of the States will not at all be the successors of the States that have merged or that are going to be merged. That is the clear interpretation that could be put upon this article 270. Therefore, you must introduce in this article 270 some other sentences or phrases in order to enable the future Government of India and of the States to be the successors not only of British India of the past, under the 1935 Act, but also of the State or States that may be merged. Otherwise, the Government of India and the future provinces will not be the successors of the States. Therefore, a suitable amendment is necessary and unless that is made, I think it would be a great defect.
Shri B. Das (Orissa: General) : Sir, we are dealing with the chapter which deals with property, contracts, liabilities and suits of the former Government of India, the present Government of India and the future Government of India that this Constitution is creating. Therefore I felt a little nettled when my honourable Friend Mr. Kamath brought in the word 'Commonwealth'. As far as I am concerned, Sir, I do not like the Commonwealth, it does not exist, it does not own any property, it has no secretariat; it has an imaginary, vague head, the king of the United Kingdom. Therefore, the question of the Commonwealth does not arise.
Under the Independence Act, the present Government is the Dominion Government of India and naturally it has inherited all the properties from the old British Government and the Governor-General has been given certain discretionary powers over the properties and assets. But, one thing I do not find here mentioned, that is our relations with the United Kingdom Government. The United Kingdom Government has not yet fully handed over the properties to the Dominion Government of India. It may be said that a Committee is sitting and trying to separate the assets belonging to the old India Office; but the financial aspect of the contract is not there. Will India Office building be handed over to India? The United Kingdom through the Bank of England owes 600 millions sterling to India. It may be said that we may get it any day. But, I am not so sure. If we want to get the full value of the 600 million sterling that England owes us, I do not see why this Constitution does not make any mention of it. There are strong views expressed in the United States of America and even in England that sterling will be devalued. If the sterling gets devalued, we will lose part of our money. Why should we not introduce an article in the Constitution regarding the assets that England owes to India? Is there any contract between the United Kingdom and India over these moneys which England has almost forcibly taken and which the United Kingdom wants to misappropriate by some means? Somehow, the world situation does not permit the United Kingdom to declare a moratorium. This is a lacunas which the Drafting Committee should examine. I do not see why they should fight shy of the United Kingdom because the so-called His Majesty's Government ruled over India some time in the past and because accidentally we happen to be a Dominion till the next January. I think somehow that aspect of the question regarding the 600 million sterling that the United Kingdom owes us, should be defined in Rupees and should be introduced in the Constitution. If the sterling is devalued by 20 per cent., we will lose 120 million sterling. Therefore, I say whatever England owes to us should be mentioned somewhere in this Constitution, not necessarily in article 270 to 274. We need not fight shy, nor need we fear the United Kingdom because of its aggressiveness in the past and in future.
Shri V. S. Sarwate (Madhya Bharat): Mr. President, it seems to me that the difficulty regarding the States which have merged in the Provinces does not exist. The wording in this: "As from the commencement of this Constitution." Suppose for instance, the Constitution comes into existence on the 26th January, 1950, then, the provinces will be constituted on that date as the Governors' provinces plus the Indian States which have merged. The succeeding provinces would be the successors of the provinces as they stood on 26th January, 1950: in the case of Bombay, it would be Bombay plus Baroda. Therefore, there would be no difficulty as regards the States which have merged before the date of the commencement of the Constitution.
To my mind, there seems to be another difficulty. This article legalistic expression to a de facto thing. As soon as India was declared independent, it did succeed to the properties, assets and liabilities of the previous Government. That was a fact. My question is whether it is necessary to give legalistic expression to that fact? Why I raise this question is because the wording is, it would succeed to all liabilities and also assets. Supposing the previous, Government has given some pension or some reward in the form of grant of land to a person who served them in the disturbances of 1942, and the succeeding Government thinks that that grant was not continue that grant, would the succeeding Government be bound to continue the grant by virtue of this section? I want to know whether the succeeding Government would be bound by having this clause to continue all those things which were against our national interests. That is the difficulty which I would like the Mover of this clause to explain to the House. There may be many things which on a closer scrutiny would not deserve to be continued because they would be found to be against the national interests. So I would like to know whether this specific enumeration of this liability will bind the succeeding Government in a more particular manner. Supposing this article is omitted, what would be the effect? I think there would be no detraction from the present position of the Government except in the minds of legal persons; otherwise the fact is there that the present government has succeeded the previous government. The other sections stand in a different position. Supposing a property becomes an Estate. It is not necessary that the de facto circumstance that the Government has succeeded the previous Government must be stated in the Constitution itself.
The other point of view which I wish to bring before the House is that the Constitution is to include all the principles underlying the Constitution. This is something which is more in the form of a legal technicality. Is it necessary to include it in the Constitution itself? By a separate law which Parliament may pass, it may say that it takes upon itself the liabilities of the previous Government. I wish further to be made clear on this point-what is the difference between liability and obligations? to a layman it appears that liabilities do include obligations also. So where is the propriety of having the word 'obligation' therein? These are some of the points which I wish to bring to the notice of the House for clarification.
The Honourable Dr. B. R. Ambedkar: Mr. President, Sir, I did not think that this article would raise so much debate as it has in fact done, and I therefore feel it necessary to say a few words in order to remove any misapprehension or doubts and difficulties to which reference has been made.
The first question that is asked is, why is it necessary to have article 270 at all in the Constitution? The reply to that is a very simple one. Honourable Members will remember that before the Government of India were vested in a Corporation called the Secretary of State-in-Council. It was the Secretary of State-in-Council which held all the revenues of India, the properties of India and was liable to all the obligations that were contracted on behalf of the Government of India. The Government of India before 1935 was a unitary Government. There was no such thing as properties to the Government of India and properties belonging to the provinces. They were all held by that single Corporation which was called the Secretary of State-in-Council which was liable to be used and had the right to sue. The Government of India Act, 1935 made a very significant change, viz., it divided the assets and liabilities held by the Secretary of State-in-Council on behalf of the Government of India into two parts-assets and liabilities, which were apportioned and set apart for the Government of India and the assets and liabilities and properties which were set apart for the provinces. It is true that as the Secretary of State had not completely relinquished his control over the Government of India, the properties so divided between the Government of India on the one hand and the different provinces on the other were said in the Government of India Act, Section 172 which is the relevant section, that they shall be held by His Ministry for the Government if India and they shall also be held by His Majesty for the different provinces. But apart from that the fact is this, that the liabilities, assets and properties were divided and assigned to the different units and to the Government of India at the Centre. Now let us understand what we are doing by the passing of thus Constitution. What we are doing by the passing of this Constitution is to abrogate and repeal the Government of India Act, 1935. As you will see in the Schedule of Acts repealed, the Government of India Act, 1935 is mentioned, Obviously when you are repealing the Government of India Act which makes a provision with regard to assets and liabilities and properties, you must say somewhere in this Constitution that notwithstanding the repeal of the Government of India Act such assets as belong to the different Provinces do belong notwithstanding the repeal of the Government of India Act to those Provinces. Otherwise what would happen is this, that there would be no provision at all with regard to the assets and liabilities once the Government of India Act 1935 is repealed. In fact we are doing no more than what we commonly do when we repeal an Act that notwithstanding the repeal of certain Acts, the acts done will remain therein. It is the same sort of thing. What this article 270 practically says in that notwithstanding the repeal of the Government of India Act, 1935, the assets and liabilities of the different units and the Central Government will continue as before. In other words they will be the successor of the former Government of India and the former Provinces as existed and constituted by the Act, 1935. I hope the House will now understand why it is necessary to have this clause.
Now I come to the other question which has been raised that this article 270 does not make any reference to the liabilities and assets and properties of the Indian States. Now, there are two matters to be distinguished. First, we must distinguish the case of Indian States which are going to be incorporated into the Constitution as integral entities without any kind of modification with regard to their territory or any other matter. For instance, take Mysore, which is an independent State today and will come into the Constitution as integral State without perhaps and kind of modifications. The other case relates to State which have been merged together with neighbouring India Provinces; and the third case relates to those States that are united together to form a larger union but have not been merged in any of the Indian Provinces. Now in regard to a State like Mysore there is no doubt that the Constitution of Mysore will contain a similar provision with regard to article 270 that the assets and liabilities and properties of the existing Government of Mysore shall continue to be the properties, assets and liabilities of the new Government.
Therefore it is not necessary to make any provision for a case of this kind in article 270. Similarly about States which have been united together and integrated, their Covenant will undoubtedly provide for a case which is contemplated in article 270. Their covenant may well state that the assets and liabilities of the various States which have joined together to form a new State will continue to be the assets and liabilities of the new integrated State which has come into being by the joining together of the various States.
Then we come to the last case of States which have been merged with the Provinces. With regard to that I see no difficulty whatever about article 270. Take a concrete case. If a State has been merged in an Indian province obviously there must have been some agreement between that State which has been merged in the neighbouring Province and that neighbouring province as to how the assets and liabilities of that merged State are to be carried over- whether they are to vanish, whether the merged State is to take its own obligations, or whether the obligations are to be taken by the Indian Provinces in which the State is merged. In any case what the article says in that from the commencement of this Constitution-these words are important and I will for the moment take it that it will commence on 26th January-any agreement arrived at before that date between the Indian Province and the State that has merged into it will be the liability of the Province at the commencement of the Constitution. If, for instance, no agreement has been reached before the commencement of the Constitution, then the Central Government as well as the Provincial Governments would be perfectly free to create any new obligations upon themselves as between them and the unit or merged State or any other unit that you may conceive of. Therefore, with regard to any transaction that is to take place after the commencement of the Constitution it will be regulated by the agreement which the Provinces will be perfectly free under the Constitution to make, and we need therefore make no provision at all. With regard to the other class of States, as I said, in a case like Mysore it will be independent to make its own arrangement. When that arrangement is made we shall undoubtedly incorporate that in the special part which we propose to enact dealing with the special provisions relating to States in Part III. Therefore so far as article 270 is concerned, I think there can be no difficulty in regard to it and I think it should be passed as it stands.
Shri Mahavir Tyagi : May I know if the agreement mentioned here relates only to financial agreement or does it relate to territorial agreement also?
The Honourable Dr. B. R. Ambedkar: It speaks of assets and liabilities and obligations. If, for instance, a Provision has admitted a certain State and has undertaken an obligation to pay the Ruler a certain pension that will be an obligation within the meaning of article 270. The transfer of territory will be governed by other provisions.
Shri H. V. Kamath: May I know why the word "rights" mentioned in the marginal sub-head is omitted in the article?
The Honourable Dr. B. R. Ambedkar: The Drafting Committee will look into it.
Shri B. Das: With regard to properties possessed by India in foreign countries, specially in the U.K. may I know why those are not included among properties in article 270?
The Honourable Dr. B. R. Ambedkar: I think that property is subject to partition between India and Pakistan, e.g. the India Office Library, etc., I understand that is being discussed.
Shri B. Das : What about the Sterling Balances?
The Honourable Dr. B. R. Ambedkar: My honourable Friend knows more about it than I do.
Mr. President: The question is:
The amendment was adopted.
Mr. President: The question is:
The motion was adopted.
Article 270, as amended, was added to the Constitution.
* Article 271
The Honourable Dr. B. R. Ambedkar: Sir, I move:
"That in article 271-
Shri H. V. Kamath: Sir, I wish to raise what may be thought a minor point but I hope Dr. Ambedkar and his team of wise men will give some consideration to it when it comes to final drafting. The article with the present amendment refers to properties in the territory of India except the States for the time being specified in Part III of the First Schedule. The point I raised earlier applies to this article as well; that is why I suggest that they may be held over till we have debated the First Schedule. It is no use adopting these articles and then making changes in the Schedule later on. In the First Schedule we see what States are comprised in Part III of that Schedule. Many of the States, as I said before, have disappeared from the Indian horizon and are no longer integral entities within the territory of India. Baroda, Kolhapur and Mayurbhanj are no longer comprised in Part II of the First Schedule. Now if we pass the article today, as it is, about the various States mentioned in the Schedule without saying "subject to any modifications in the Schedule", etc. What will happen to property that belongs to States like Baroda, Kolhapur and Mayurbhanj which are merged in the provinces? I therefore suggest that the article should be held over until the First Schedule together with the various amendments comes before us for consideration.
Prof. Shibban Lal Saksena : Sir, I do not agree with the point of view put forward by Mr. Kamath. We are passing these articles in the hope that in the Schedules we shall put only those things to which we want these articles to apply. These Schedules can be framed according to our choice and they will contain only those matters which we want to be subject to these articles we are passing. I therefore think that after we have accepted article 270 as an essential part of the Constitution, this article is also important. Formerly the country was divided into a number of States and now in this Constitution every portion will come into the new Government. Therefore I do not think this article should be held over merely because there is to be a change in the Schedule.
Mr. President: The question is:
The amendment was adopted.
Mr. President: The question is:
The motion was adopted.
Article 271, as amended, was added to the Constitution.
* New Article 271-A
The Honourable Dr. B. R. Ambedkar: Sir, I beg to move:
This is very important article. We are going to have integrated into the territory of Indian several States which are for the time being maritime States and it may be quite possible for such States to raise the issue that anything underlying the ocean within the territorial waters of such States will vest in them. In order to negative any such contention being raised hereafter it is necessary to incorporate this article.
Shri H. V. Kamath: Sir, I wish my honourable Friend had clarified this article a little further and explained its significance and import. The construction of the article, to my untrained mind at least is not very clear. It speaks of "lands, minerals, and other things of value", etc. The point is whether besides minerals, what are referred to as things of value underlying the ocean are all things within Indian territorial waters included?
Mr. President: This has reference only to whatever is found on land within territorial waters.
Shri H. V. Kamath: The reference is to lands, minerals and other things of value. The point arises, what these 'other things of value' are ? What these things of value are' has to be defined. Was this expression borrowed from some other Constitution or has it been newly incorporated in our Constitution without bestowing much thought on it? If it is left vague, the matter would have to be decided by the Supreme Court. What one considers as a thing of value, another may not consider as of value. Does the expression mean precious stones or minerals or whatever is found under the surface such as fish, etc.? Some may consider even fish as of value, whereas vegetarians may not consider fish as a thing of value. The article may be re-drafted clearly indicating what the 'things of value' are, which, when found in the Indian territorial waters, shall vest in the Union. If you leave the article as it is at present worded, you will be providing a happy hunting ground for lawyers again.
Then again, the article says "All lands, minerals and other things of value underlying the ocean within the territorial waters of India". In Schedule I we have defined the States and the territories of India. But nowhere in this Constitution have we defined what the 'Indian territorial waters' are. The Constitution is silent on this point.
Mr. President: It is a well-understood expression in International Law.
The Honourable Dr. B. R. Ambedkar: It is unnecessary to define it separately.
Shri H. V. Kamath: When you think it necessary to define in the Schedule the territories of India, why should you not define in the Constitution what our territorial waters are? Under International Law, some three miles of sea from a nation's coastline is considered to be territorial waters. As stated in the four parts of the Schedule our territory comprises certain areas. There will be a demarcation of the territorial waters on the east coast and again a limit of the waters on the west. Some three miles beyond our coast will not be territorial waters. If you take the Andamans and Nicobars as the territories of India, the waters to a distance of 3 to 5 miles from those islands will be our territorial waters. It will be wise on our part to specifically define in the Constitution what our territorial waters will be. In these days new lands are being discovered in different parts of the globe. As such discoveries might lead to complications we must define our territorial waters.
As I stated earlier, nobody knows what "other things of value are". It is better now to put down clearly what they are. Otherwise everything underlying the ocean will be claimed as vested in the Union. It will be wiser and straighter and more honest to say 'everything that is found in the bed of the ocean'.
Pandit Thakur Das Bhargava (East Punjab: General) : All other things' are there.
Shri H. V. Kamath: What is of value to one may not be of value to another. I do not attach any value even to precious stones. I submit that this thing may be clarified.
Lastly, I would ask Dr. Ambedkar and his wise men whether the phrase 'underlying the ocean' connotes whatever underlies the surface of the ocean or ocean-bed or whatever is discovered beneath the bed of the ocean. Probably the existing expression is clear to lawyers. As I am not a lawyer I plead guilty to ignorance of what 'underlying the ocean' means. I hope Dr. Ambedkar will clarify the position before the House proceeds to vote on this article.
Shri A. Thanu Pillai (Travancore State) : Mr. President, Sir, I wish to say a word about this article. It says:
Then again there are the words 'other things of value'.
The Honourable Dr. B. R. Ambedkar: May I ask what exactly I have to explain?
Shri A. Thanu Pillai : Fish is a thing of value. "All lands, minerals and other things of value' is the expression used in the article. Travancore as a maritime State gets good catches of fish. If fish is a thing of value underlying the ocean within the territorial waters of India, this article will deprive the State of the right to catch fish. On the whole this requires better consideration. I hope that the States will in no way be deprived of their existing rights except to the extent necessary for the safety of the Union so far as territorial waters are concerned.
Prof. Shibban Lal Saksena : Mr. President, Sir, when we were discussing article 31 clause (ii) ran as follows:-
My Friend, Professor K. T. Shah, had then moved an amendment saying that the control and ownership of the natural resources of the country in the shape of mines and mineral wealth, forests, rivers and flowing waters as well as in the shape of the seas along the coast of the country shall be vested and belong to the country collectively etc. At that time it was not accepted. I am glad therefore that Dr. Ambedkar has though fit to provide in the Constitution that all lands, minerals and other things of value underlying the ocean within the territorial waters of India shall vest in the Union and be held for the purpose of the Union. But I would like to know from Dr. Ambedkar whether it is not necessary to mention about the skies. Now in international communications the sky also in important, e.g., who shall fly over our skies, etc. I would like to know from Dr. Ambedkar whether it is not also necessary to mention about the skies in the Constitution.
Shri Alladi Krishnaswami Ayyar: Mr. President, Sir, I think that article 271-A is a very important article and Dr. Ambedkar deserves our congratulations for putting in this article. There are two points to be noticed : One is the criticism that there is no definition as to the extent of territorial waters. In fact, that is the merit, I should think, of the article, because it is one of the moot points of international law what exactly is the extent of territorial waters. The extent will depend not merely on the assertion of a particular State but upon the principle being accepted by the comity of nations. Even today, while England and America take one view, the other nations of the world take a different view as to the extent of territorial waters. Therefore it is a good thing that the extent of the territorial waters is not mentioned in article 271-A.
The second point is whether in general terms it is right to vest territorial waters in the Union. Even in America, the Supreme Court of the United States, when the question came up with regard to the State of California, held that even though the State originally exercised rights in the territorial waters, the correct view is that the territorial waters vested in the Federal Government. Therefore this article, in so far as it provides for the territorial waters vesting in the Union, is in consonance with advanced thought in the most federal of Constitutions, namely the American Constitution. The question as to the extent of jurisdiction by the States and the courts in the States may have to be separately dealt with.
The next point to be considered is the expression "shall be held for the purposes of the Union." The apprehension has been expressed that it might mean that every kind of advantage that will accrue from it will go to the Union and therefore the coastal States might suffer. I should think that the expression "be held for the purposes of the Union" is more elastic than the first part which says "shall vest in the Union". The expression "shall be held for the purposes of the Union" does not necessarily mean the Union Government as such. "For purposes of the Union" is a wider term than the expression "shall vest in the Union". Recently in Australia the question arose and it has been held that the expression "Commonwealth" itself. Therefore I should think that the expression "for purposes of the Union" does not militate against some of the benefits being allotted to coastal States and should allay their apprehension that their present existing rights might be invaded.
Lastly, the words "all lands, mineral and other things of value underlying the ocean" are very important. One of the moot points in international law is as to whether there is any difference between what may be called surface rights and mineral rights and so I rights, and I am glad that this assertion is made here that all lands, minerals and other things of value underlying the ocean shall vest in the Union.
On all these grounds I support the amendment incorporating article 271-A.
Shri V. S. Sarwate: Mr. President, Sir, as the previous speaker has expressed, this new article raises a very fundamental question. It raises the question of the relation of the Union Government and the States which have acceded and which are coastal. Before the House accepts this article, the Covenants which these States have entered into with the Government of India will have to be examined. It will entirely depend upon the rights which have been given by virtue of the Covenant with the Government of India. I do not know whether these Covenants have been examined and then as a result of that scrutiny this article has been added. A curious position will arise if, by virtue of the Covenant, these rights have not been given to the Government of India. Assuming for the moment that such a right is not given by the Covenant, the question is whether by virtue of this article in the Constitution, that right, would be created. I am afraid that the mere incorporation of this article would not create that right if that right does not already exist. To my mind it appears that the inclusion of this clause would only have this effect that if the right is already there, it has been expressed and specifically mentioned in this Constitution. If the right is not there, it would not be so vested or created in favour of the Government of India. So I submit that unless and until the Covenants have been closely examined and it had been found that the right has been vested in the Government of India, this article should not be accepted.
Shri A. Karunakara Menon (Madras: General): Mr. President, Sir, my object in speaking on this new article 271-A is just to point out the difference that exists between the wording that is found in the marginal note and the wording that is found in the article itself. The wording in the marginal note is: "all lands, minerals and other things of value lying within territorial waters vest in the Union". This implies that all things of value lying within territorial waters belong to the Union. So, every thing of value, suspended even if it were within the territorial waters, are properties of the Union according to the marginal note; but what do we find in the article? There the wording is different. It says: "all lands, minerals and other things of value underlying the ocean within the territorial waters of India shall vest in the Union." My understanding of the words "underlying the ocean within the territorial waters" connotes altogether a different meaning from "things of value lying within territorial waters." Things of value underlying the ocean mean things left underneath the earth of the ocean and so the meaning is restricted. The things of value are restricted by the use of the words "underlying the ocean" whereas it is more wide when we say "things of value lying within territorial waters." I want to bring the words of the marginal note quite in agreement with the words that are found in the article; otherwise it might lead to complication in the future.
Shri M. Ananthasayanam Ayyanagar (Madras: General): Sir, I desire only to make a small suggestion. What about the territorial waters themselves? Under this new article 271-A all lands, minerals and other things underlying the ocean within the territorial waters belong to the Union. All territorial waters shall belong to the Union. You say "all lands, minerals and other things." So far as territorial waters are concerned, apart from the question as to whether any particular country has got only jurisdiction over the territorial waters or the territorial waters belong to that particular country by way of ownership, and apart from the internal question whether it belongs to a province which abuts the territorial waters or to the Union, we must make it clear. Therefore, I think it is necessary to add that the territorial waters themselves belong or shall vest in the Union and be held for the purpose of the Union. I think other things of value underlying the ocean will cover fish and other things. If they do not, it must clear by saying "all the produce inside the ocean, apart from minerals and the land underlying the ocean besides these two other things also vest in the Union." This must be made clear to avoid a conflict between the provincial claim for territorial waters and the Union, and also to make sure that we lay a claim for territorial waters and the Union, and also to make sure that we lay a claim for territorial waters in our own country, whatever the International Law may be. There is a difference of opinion in the International Law regarding that matter. To give a quietus to such doubts, we must lay down a definite article that the territorial waters including all the produce available in any shape or form which might be there shall vest in the Union and be held for the purposes of the Union.
Shri A. Thanu Pillai: What about the water itself?
Shri M. Ananthasayanam Ayyangar: The territorial waters themselves must belong to the Union. We must have the waters,the right to water itself, ownership of the water itself and also the fish and other things.
Shri A. Thanu Pillai: What has my honourable Friend to say about the manufacture of salt by the States?
Shri M. Ananthasayanam Ayyangar: The water itself must belong to the Union. The ownership of territorial waters must be claimed by us.
Shri Mahavir Tyagi: Why not make the "water" also a part of this article?
Shri M. Ananthasayanam Ayyangar: I would say "all lands, minerals and other things of value underlying the ocean within the territorial waters and the territorial waters of India shall vest in the Union and be held for the purposes of the Union."
An Honourable Member: What about the air?
Another Honourable Member: What about the heavens?
The Honourable Dr. B. R. Ambedkar: Sir, I gave in my speech when I moved the amendment the reasons why we thought such an article was necessary. There seems to be some doubt raised by my honourable Friend Mr. Pillai that this might also include the right to fisheries. Now I should like to draw his attention to the fact that fisheries are included List II-entry No. 29.
Shri A. Thanu Pillai: My objection related to other matters as well.
The Honourable Dr. B. R. Ambedkar: I will come to that. I am just dealing with this for the moment. Therefore this entry of fisheries being included expressly in List
No. II means that whatever jurisdiction of the Central Government would get over the territorial waters would be subject to Entry 29 in List No. II. Therefore, fisheries would continue to be a provincial subject even within the territorial waters of India. That I think must be quite clear to my honourable Friend, Mr. Pillai, now.
With regard to the first question, the position is this. In the United States, as my honourable Friend, Shri Alladi Krishnaswami Ayyar said, there has been a question as to whether the territorial waters belong to the United States Government or whether they belong to several States, because you know under the American Constitution, the Central Government gets only such powers as have been expressly given to them. Therefore, in the United States it is a moot question as yet, I think, whether the territorial waters belong to the States or they belong to the Centre. We thought that this is such an important matter that we ought not to leave it either to speculation or to future litigation or to future claims, that we ought right now to settle this question, and therefore this article is introduced. Ordinarily it is always understood that the territorial limits of a State are not confined to the actual physical territory but extent beyond that for three miles in the sea. That is a general proposition which has been accepted by international law. Now the fear is-I do not want to hide this fact-that if certain maritime State such as, for instance, Cochin, Travancore or Cutch came into the Indian Union, unless there was a specific provision in the Constitution such as the one we are trying to introduce, it would be still open to them to say: "Our accession gives jurisdiction to the Central Government over the physical territory of the original States; but our territory which includes territorial waters is free from the jurisdiction not only on the physical territory, but also on the territorial waters, which according to the International Law and according to our original status before accession belong to us." We therefore want to state expressly in the Constitution that when of that Maritime State will go to the Central Government. That kind of question shall never be subject to any kind of dispute or adjudication. That is the reason why we want to make this provision in article 271-A.
Shri M. Ananthasayanam Ayyangar: What about the ownership of the waters themselves?
The Honourable Dr. B. R. Ambedkar: What do you want to own water for? You may then want to own the sky above.
Shri M. Ananthasayanam Ayyangar: For the manufacture of salt, etc.
The Honourable Dr. B. R. Ambedkar: Your laws will prevail over that area. Whatever law you make will have its operation over the area of three miles from the physical territory. that is what is wanted and that you get by this.
Shri Mahavir Tyagi: Waters have not been included.
The Honourable Dr. B. R. Ambedkar: According to the International Law, the territory of a State not only includes its physical territory, but also three miles beyond. Any law that you make will operate over that area.
Shri Mahavir Tyagi: What about the rest of the waters?
The Honourable Dr. B. R. Ambedkar: Anything below the air you get.
Shri Mahavir Tyagi: What about waters beyond three miles?
Shri M. Ananthasayanam Ayyangar: May I ask Dr. Ambedkar if he is not aware that water is as much a property as anything else, if not better property, and dispute over water have arisen in plenty? To avoid dispute between a Province and the Union, is it not desirable to include waters also in the property of the Indian Union?
Mr. President: He has answered that; he thinks it is not necessary to say that.
The Honourable Dr. B. R. Ambedkar: Anything above the land goes with the land. If there is a tree above the land, the tree goes with the land. Water is above the land and it goes with the land.
An Honourable Member: Sir. . . . . .
Mr. President: I think we have sufficiently discussed and Dr. Ambedkar has replied to the debate. We need have no further discussion. I will put the article to vote.
Shri K. Hanumanthaiya (Mysore State): I want one clarification, Sir. As Dr. Ambedkar says if territorial waters that is, land three miles beyond the coast-line, belongs to the Union, where is the necessity for this section at all?