Constituent Assembly Of India -Volume IX
Dated: August 20, 1949
The other day the Prime Minister, I believe while addressing some public meeting, referred to the frequent conflict between the liberty of the individual and the security of the State. Yes, I agree that the State should be secure so that the individual may have life, liberty and happiness. But the liberty of the individual is not a thing to be trifled with at the mere behest or arbitrary fiat of the executive. It was the great American thinker Thoreau who said: "At a time when men and women are unjustly imprisoned, the place for the just man and woman is also in prison." If this article as moved by Dr. Ambedkar were passed today can we say with any degree of assurance, that the liberty of men and women in this country would be worth a moments purchase and would not be trampled under foot without a moment's notice ? Sir, I do not want to alarm the House and sing a jeremiad, but I fear that such a situation is likely to arise if this article be passed today. As an autocratic negation of liberty this article takes the palm over all other constitutions of the world. Article 279 which we have already passed provides that as long as an emergency proclamation is in force the guarantees of individual freedom as set forth in article 13 will be automatically suspended throughout the Union; and now article 280 denies to the citizen the right of access to courts of law for making complaints about the violation of not only the rights of individual freedom but all other fundamental rights during the period of emergency. A general authorisation of this kind for restricting individual freedom has no parallel anywhere else.
The Drafting Committee took time to prepare a new Draft and they have tried to put up a rehash of the article. I find that the language of this article compares unfavourably with that of the Emergency Powers Act (DORA) passed in England in 1920 which the Drafting Committee have plagiarised in a dishonest fashion. Clause (3) of the proposed Draft reproduces the first part of one of the clauses of that Act, but the second and vital portion of that clause has been conveniently and dishonestly dispensed with. I do not know why this subterfuge has been resorted to. The relevant clause of that Emergency Powers Act reads thus:
And the further safeguard is this
This vital portion of the Emergency Powers Act of England is absent from our,Draft article.
Then I come to the Weimar Constitution whose provision came very near to ,this clause but which was still very mild. as compared to this. In clause 48 of $he Weimar Constitution occurs this provision:
But even to this there were safeguards. The next clause was to the effect that the President must immediately inform the Reichstag of all measures adopted by authority of this article and that these measures shall be revoked at the demand of the Reichstag. This was the safeguard of the German Constitution.
Under the American Constitution the privilege of the writ of habeas corpus shall not be suspended unless when in case of rebellion the- public safety may require it. But even here the suspension can be authorised only by the Congress whose decision can be tested by the Supreme Court as to whether the conditions under which such suspension would be justified did exist or not. That is so far as the American Constitution is concerned. So also in the Italian ,Constitution there are similar safeguards. But, unfortunately, we who Profess to build a Sovereign Democratic Republic in India have no use for such safeguards. We trust the executive implicitly. God grant that our trust be justified. But if our executive demands our trust, why should not the executive trust the judiciary, why should it not repose confidence in Parliament? Is our judiciary, bereft of all wisdom, integrity and conscience that the executive should snap their fingers at them? This is a most disgraceful state of affairs. I do not see how we can build up an egalitarian or democratic State on such a foundation.
It has been suggested that in a time of emergency the State has got to be preserved. By all means preserve the State; but not at the unjust sacrifice of the liberty of the individual. In some cases and on some occasions, the loss of liberty is worse than the loss of life. I for one would claim that liberty is even more precious than life, and the most serious emergency should not enable the State to unjustly deprive the individual of his liberty. That is a great principle and that should be the lodestar or the Pole-star of our Constitution. The right to a writ of habeas corpus is a sacred right in which is enshrined the liberty of the individual : it gives him the right of appeal to the ,Supreme Judiciary. This article before us today destroys this right of the individual.
We want ace and order so that the State will be safe during an emergency. But what sort of peace are your going to have at this rate? What to have at this rate? What sort of security or stability are you going to leave ? The State will be preserved I But it may be that the peace that you thus visualise will be the peace of the grave, the void of the desert. If that is the peace the Drafting Committee's wise men have in mind, I would rather die than live in such a peaceful situation.
In our passion for making the Centre strong, we are misinterpreting it as the strength of the executive. If we want a strong executive, let us also have a strong legislature and a strong judiciary. I have pleaded that it is not the executive alone that makes the State. 'We have the Parliament and the Judiciary which, together with the executive, make the State. All my pleadings have fallen on deaf ears. I sometimes tell myself, "O Judgment, thou art fled to brutish ceasts, And Men have lost their reason". Have we come to that stage ? I hope not. I hope, for the good of India, for the good of our fellow men and women who have just emerged from the darkness of slavery into the light of freedom, we shall do something for their happiness and not merely be content with strengthening the hands of a group) of people, a tiny coterie or caucus in power. That is not the idea which the Father of the Nation had in mind. As the House. well knows he was all for decentraliasation, and not for strengthening the Centre at all. lie was for a decentralised State and for giving power to self-sufficient units.
We are discussing the provisions for an emergency. I therefore grant that the Centre should have certain powers. All I plead is that there should be adequate safeguards, judicial safeguards and parliamentary safeguards. None of these safeguards is here in the Draft article. But this re-hashed article has come before the House for consideration and for approval. I believe it will be approved in due course. I have closely followed the provision for emergency powers in the Emergency Powers Act, 1920 of the United Kingdom. It Provides that Parliament must be summoned within five days. Secondly, the decree will expire at the end of seven days unless earlier approved by Parliament. On the same lines I have sought in my amendment No. 4 to provide that any order made under clause (1) of the article shall, before the expiration of fifteen days-India is a vast country of distances compared to England. So for So for seven days I have put in fifteen days be placed before Parliament for approval. If you mean business and if you mean to secure to individuals their liberty, and not merely the safety of the State and the security of the men in power, fifteen days would be adequate time to summon Parliament. I have also provided further on the same lines as the Emergency Powers Act of England that this order suspending the fundamental rights shall expire at the end of one week unless it has been approved earlier by resolutions of Parliament. This is a wise safeguard which I hope the House will consider in all earnestness.
My last amendment- I am not going to speak on my remaining amendments- is No.6 of the Second Week. There I do not object to power being conferred on the President subject to Parliamentary regulation and control. Therefore the last amendment of mine is to the effect that the right to move the Supreme Court or the High Court for a writ of habeas corpus by appropriate proceedings shall not be suspended except by an Act of Parliament.
During the last world war, the british Government here were indulging in the everest forms of repressing for the preservation of their Empire. Mr. Churchill went to the length of saying, "I have not become Prime Minister to preside over the liquidation of the British Empire," which shows that even Mr. Churchill feared at one time that the Empire was in danger and that it might be liquidated. Though they were thus engaged in a life and death struggle, the British Government did not suspend the right to move the courts for a writ of habeas corpus. The famous case of Talpade of Bombay is a case in point. This case came up to the Federal Court and the Chief Justice, Maurice Gwyer held Section 26 of the Defence of India Act ultra vires. This section was subsequently amended as a consequence thereof. It must be fairly fresh in the memory of my colleagues here. I therefore do not wish to dilate upon that matter. As I was saying, even the British Government did not then suspend this important right. But we who are drawing up a democratic Constitution are contemplating a provision for suspending even that right in an emergency.
After all, most of our leaders are telling us that we are today passing through a crisis. By crisis they mean a sort of emergency: we have had trouble in Hyderabad, Kashmir, West Bengal and other parts of India. But the Central Government has lived and is getting on very well without proclaiming a state of emergency. None of the fundamental rights or right to move for habeas corpus has been suspended. Even here, on August 15, 1947, when the old Government of India Act was adapted under the India Independence Act, the emergency powers vested in the Governor-General and in the Governors were omitted from the Act as adapted. They were not embodied in this adapted Act of the Government of India and the emergency powers were not conferred upon either the Governors or the Governor-General under the Act of the Government of India, as adapted. We have tided over two fateful years, very difficult years, very critical years, without any of the emergency provisions or powers being vested in the Governor or in the Governor-General. Sardar Patel told us some months ago that this country is getting more stabilized. In one breath you say the situation is getting better and more stable, and in the very next you try to insert a clause in the Constitution which seeks to deprive the citizen of all fundamental rights in case of an emergency. Dr. Ambedkar might get up and reply: "Oh! It is just written in the Constitution; it will remain a dead letter. I hope we shall not be required to use it or to put it into operation." I hope we shall never use it. That is what he said on a previous occasion I agree Dr. Ambedkar might say that. I readily grant they are all honourable men, they are all wise men and true, but a Constitution is not meant for Dr.Ambedkar or Pandit Nehru or Sardar Patel; the Constitution is meant not only for this generation; but we are building it for other generations to come, and not for Dr. Ambedkar and the present Government. I hope this Constitution will last for many generations. At times, however, apprehensions arise in my mind; looking at the Constitution as it is being built, as it is being framed by us here, sometimes I apprehend that this Constitution may not last very long. God forbid that my fears should come to pass. But I occasionally fear that the Constitution- the whole of it, at any rate may not last many more years than one can count on the figures one of one's hands.' That is what I feel: I hope I am wrong and I hope I am painting too gloomy a picture; but, Sir, I wish to plead with the House that by all means if you want to save the State, do save it, but do not unjustly deprive the individual of his rights, of his liberties, his fundamental freedoms, which we have in the opening chapter of the Constitution guaranteed to him. Towards the fag end of the Constitution we are taking away with one hand what we have given with the other. Is this the sort of liberty we have fought for? Is that the sort of liberty that we aspired after? Is that the sort of democracy that we are building........
Mr. Vice President: Will the honourable Member kindly bring his remarks to a conclusion? He has been speaking for 45 minutes.
Shri H.V. Kamath: If you think I am repeating, I shall bow to your ruling, but if I am not....
Mr. Vice-President: I am sorry to say that the Member is repeating his arguments and I shall be very glad if he will kindly conclude his remarks.
Shri H.V. Kamath: I will take only two minutes more, Sir. I bow to the Vice -President's ruling and I shall conclude. I wanted to say much more but I shall reserve that for another occasion. I am afraid that the article, if it is adopted by the House as moved by Dr. Ambedkar, is fraught with grave danger to the rights and liberties of the individual guaranteed to him under the Constitution. I fear that by this one single chapter- Chapter XI,- we are seeking to lay the foundation of a totalitarian State, a Police State, a State completely opposed to all the ideals and principles that we have held aloft during the last few decades, a State where the rights and liberties of millions of innocent men and women will be in continual jeopardy, a State where if there be peace, it will be the peace of the grave and the void of the desert. I only pray to God that He may grant us wisdom, wisdom to avert any such catastrophe, grant us fortitude and courage. Let me conclude with the prayer of Mahatma Gandhi; "Sab Ko Sanmati De Bhagawan."
Prof. K.T. Shah (Bihar:General): Mr. Vice-President, Sir, I beg to move:
Sir, I have as strong an objection as many of the speakers who have addressed this House on this subject to arming the President with such extraordinary powers extending even to the suspension of the one solitary right which by the express terms of the Constitution is guaranteed, namely, the right to move the Supreme Court for certain prerogative writs whereby any violation of the rights declared or conferred on citizens may be remedied. Here is one right more precious perhaps than any other because it makes other rights workable, real, concrete, and actually experienceable; so that if anybody feels aggrieved because of any of the fundamental rights mentioned in Part III being denied, such a person shall be in a position to move the Court which may give him appropriate relief or remedy.
As the article is now proposed a President would be in a position to suspend even this right by an executive order. The amendment of Dr. Ambedkar suggests that having made the order he must place it before Parliament as soon after making it as possible. I confess, I do not see that this is any improvement over the original draft, because, even if you lay an order ex post facto before Parliament, you only invite either acrimonious criticism, which may be of no use or avail whatsoever, of an act already done or make the relations between the Executive and the legislature strained. If you had suggested that before the order is made, Parliament would be consulted, or if you had even suggested that the remarks of Parliament may be given effect to by modification of the order, I could have understood.
Shrimati G. Durgabai: On a point of order, may I know whether the honourable speaker is speaking on the original motion or is moving his amendment?
Prof. K.T. Shah: I have moved the amendment.
Mr. Vice-President: He has moved the amendment.
Prof. K.T. Shah: That being the case, in the article and the amendment proposed by my Friend Mr. Kamath, I am suggesting further by my amendment that this fundamental right, which is the only one right guaranteed in the Constitution, shall in no case be suspended, notwithstanding anything that may have been said in the pre ceding articles. Whatever the emergency, this particular right should not be suspended. As another honourable speaker has mentioned, even if a war is there, the justice of the people, justice of this country shall not be stopped or suspended.
I realise, however, that in an emergency the officers of Government, both civil or military, may not be in a position to wait before taking action. They have to learn, however, that if we are going to live under a free democratic Constitution, whoever does a wrongful act will have to bear the consequences of that act. Anything that he might have thought was required in the interests of the country would not avail him as an answer to an act wrongful in itself. To guard, however, against any undue hardships being imposed upon officers, who act bona fide n the interests of the community and in pursuance of the orders issued for dealing with an emergency, if any fundamental right,-let us say, the freedom of movement of association, or expression,- is violated, any violation would not ipso facto be covered by the proclamation. But subsequently Parliament may pass an Act of Indemnity, enumerating the cases which might give rise to such prosecution, or such suits, or actions against individual officers, and extending the protection in its sovereign capacity as legislature to such persons, and providing a valid defence for any such charge.
This is a procedure very well known in the British Constitution which we have been copying almost ad nauseam in, and here is one case in the British Constitution, where I think we might as well take a lesson from it, and instead of giving a carte blanche as it were, to the President to do or allow any act to be done merely on the score of a Proclamation of Emergency, we would lay down, that though an officer may be acting primarily on his own risk under this order, on a proper case being made out, Parliament may consider the advisability of giving a general or special Indemnity.
What would happen would be, that public servants or officers of the State would be automatically restrained. Instead of using any force or extending their authority in any way they think proper or necessary, they would think twice before taking such steps as may not be permitted by an Act of Indemnity. Or Parliament may not pass an Indemnity Act at all. Here would be a very salutary restraining factor, which I think would be for the benefit both of sound administration and also continued freedom of the citizen.
If you accept this idea, as I hope the sponsors of the article will accept, a provision of this kind, worded as they like, suited to the occasion will amply meet the case. I think much of the difficulty that the previous speakers have referred to, much of the apprehensions that many of us feel as regards the unnecessary extension of the executive authority, would be avoided by this means.
Nowhere in this Constitution is any mention made, so far as I remember, of such a provision as I am advocating here, that is to say, an Indemnity Act. Time and again; those in authority, those responsible for the Draft Constitution, have characterised criticism in this House as being destructive or serving no purpose either for themselves or for the House. Here I make a present of this a constructive proposal, with the very respectable authority of the British Parliament and British History behind it. It is a matter of test whether the sponsors have sufficient regard for the freedom of the citizen to accept even such a suggestion as this. I leave it to their good sense.
(Amendments Nos. 20, 21, 22 were not moved.)
Shri B.M. Gupte (Bombay: General): I beg to move:
Sir, this is an amendment to an amendment moved by my Friend Mr. Thakur Das Bhargava. The only difference between my amendment and his is that I propose two months for the submission of the order to the Parliament while he has proposed only one month. Two months are preferable because that period is mentioned in the main article 275. No doubt, Dr. Ambedkar has respected to a certain extent the sentiments - expressed in this House when the matter was debated last time. But, he has not gone far enough and has not mentioned any definite period within which an order under this article shall be submitted to Parliament. Under article 275, the main Proclamation of Emergency must be endorsed by Parliament within two months. I do not see why the same effective control should not be given to the sovereign legislature in this matter, which after all, would be the most important consequence of that Proclamation. The suspension of the remedy for the fundamental rights is a very fundamental matter and it should be incumbent on the executive to get it ratified within a short specified period, say two months. I do not see that there should be any difficulty about this. Most probably, the order would be issued shortly after the Proclamation is issued, i.e., most probably it may be issued in the intervening period between the issue of the Proclamation and the meeting of Parliament. Thus there would be no difficulty in the Proclamation and the order being simultaneously submitted to Parliament. Even granting that the order may have to be issued after Parliament has dispersed, what happen? Parliament will have to be convened only for this specific purpose. I say, there is no objection. The only argument against this course would be the question of cost. I submit that in matters of vital importance, cost is of no consequence at all. We have deliberately chosen democracy as the form of our Government and after that we should not grudge the cost that might be necessary to make that democracy really effective. Of course, I do not mean to say that there should be wasteful expenditure. Those who are responsible for the conduct of the Government hereafter must so arrange their business that no unnecessary expenditure is saddled on the public purse.
But at the same time in important matters, where important principles are involved, consideration of cost is of no avail at all. It cannot certainly be a decisive factor. The suspension of Fundamental Rights is not only a very important matter but a fundamental matter and I would therefore request Dr. Ambedkar to accept Pandit Bhargava's amendment, as amended by me.
Prof. Shibban Lal Saksena: (United Provinces: General): Mr. President, Sir, I beg to move:
During the discussion on this article on the last occasion I had proposed an amendment that for the words 'President may by order' the words 'Parliament may by law' be substituted. I had hoped that the Drafting Committee had been convinced of the mistake and they would make suitable amendments. I find an improvement has been made over the former Draft, and all the rights conferred by Part III of the Constitution shall not be abrogated automatically but only those rights which the President may declare as abrogated. I think if this article forms part of the Constitution, it will still be an arbitrary denial of the liberties that we are giving in the fundamental rights. I therefore think that either the amendment which I had moved the other day and which has now been moved by Mr. Kamath to this very article 280 should be accepted or at least this amendment of mine to clause (3) of Dr. Ambedkar's amendment should be accepted. This will at least have the effect that if the Parliament is not meeting and the President thinks that the emergency requires that he shall exercise such powers, this amendment will give him that right; but as soon as Parliament meets, he will bring forward that order and see that that is laid on the table of the House and the House of People shall be entitled to vary it, rescind it or alter it. This should not be objected to. What Dr. Ambedkar wants is that during an emergency, the powers of the President should not be fettered. I am not fettering them. In fact the very proclamation of emergency will come before the House of People within two months and will have to be renewed. So Parliament is the final authority. Then what is the harm if the abrogation of fundamental rights also- if they are made in an emergency- is brought before the Parliament as soon as it meets and Parliament must have the right- particularly the House of people- to amend it, vary or rescind it. Otherwise the most fundamental rights- the most cherished rights that are given in the Chapter on fundamental rights- shall be taken away. I value the rights guaranteed in article 25 very much- the rights of Habeas Corpus and other rights. As I said last time, when we were in jails in 1942, even then during the war the foreign Government did not think it fit to deprive us of the right of Habeas Corpus. So if the power is given to the President to abrogate this right, it will be a slur on our Constitution and it should not be allowed to be included in it.
I therefore think that if Dr. Ambedkar is not prepared to accept Mr. Kamath's amendment, he should at least accept mine which will meet the point of view of his, that the President will be having the power in emergencies and even to suspend those rights but as soon as Parliament meets, then the order of the President will be liable to be rescinded by Parliament. This is the most modest amendment and if the Drafting Committee thinks over it, I hope they would accept it. Our learned Friend Pandit Kunzru had voiced his great opposition the other day about this article and he had said that this is a very dangerous article and the article should not have found a place in this book but if it is included, at least it must be so modified that the ultimate authority of Parliament is not questioned. If the Parliament has no right to vary or alter his order, then a fundamental right of the Parliament is infringed. You may say it is always open to the House to censure the executive but that is an extreme method and nobody would like to adopt it for simple variation of an order passed by the President. I therefore think that my amendment to this clause will entitle any Member who may like to move for a modification or alteration of the order of the President by a resolution. This is a very modest amendment and I hope Dr. Ambedkar will accept it.
Mr. Vice-President: There is amendment No.3031 by the Honourable G.S. Gupta.
(The amendment was not moved)
Shri H.V. Kamath: There is an amendment by Mr. Kunzru.
Mr. Vice-President: It has already been moved.
Shri R.K. Sidhva (C.P. & Berar: General): Mr. Vice-President, Sir, this is a clause which relates to emergency powers in the event of some grave emergency or a national peril existing in the country. Now, what is an emergency? My Friend Pandit Bhargava stated that an emergency can be interpreted in many ways. He is right. It is a very flexible word but it cannot be denied that an emergency is an emergency. Emergency means- according to Oxford Dictionary- a sudden juncture demanding immediate action. One cannot deny that a certain action has to be taken by a Government. May I know whether a democratic government, a government of the people, is going to take an action which will come into conflict with the wishes of the people? Are they going to take any action of such a nature which in the ordinary course it would be said that they want to suspend the Constitution because there is some small disturbance? That Government cannot exist for a day if it is going to be a democratic government. Therefore that apprehension does not stand for one moment.
I want to know, in the event of an emergency when there is a calamity and when the freedom of the country is threatened, I want to know from my friends who oppose this article whether they wasn't, like Nero fiddling when Rome was burning, if they want our ministers should be listening to radios or to some music when things may be taking place in a distant part of the country which may disturb our very freedom? If that is the attitude of these friends who oppose this article, then I do not think they have really understood the meaning of this article. This article is to be applied only in the event of a national calamity and when our very freedom is threatened. My Friend Mr. Kamath said that our well-deserved freedom must be preserved and asked why these rights are being taken away, do you want the people to revert back to slavery? I say it is for the very purpose of safeguarding our freedom, our well-deserved freedom during an emergency that I want to give the Ministers sufficient powers to see that no danger comes to our freedom and that we do not revert back to slavery.
Shri H.V. Kamath: I do not object to that but only provide the necessary safeguards.
Shri R.K. Sidhva: My friends have quoted from foreign constitutions. In the Canadian and Australian constitutions there is no such provision. But there they have the convention that in the event of emergency, the Centre can take all the necessary powers from the provinces. It has by convention been accepted as an inherent power of the Centre to do so, in the event of an emergency. Every Government has such inherent power, this inherent right to take action in the interest of our freedom, for the purpose of maintaining our freedom. If we do not safeguard our freedom in this manner, then I may assure you that our freedom will be in danger. I will go further and say that with such things as are happening I want our government to be invested with all the powers so that we may see that our freedom is not lost. Do my friends want that our freedom and our security may pass into the hands of our opponents and our enemies?
Pandit Thakur Das Bhargava: Is Parliament your enemy?
Shri R.K. Sidhva: No, I entirely agree with my Friend pandit Bhargava. I do not consider him an enemy of the country. But there are people outside who are enemies of the country, in this country and also outside, mischief mongers who are out to create mischief. I want ot safeguard our freedom against them, and for that purpose I am prepared to sacrifice a little of my own freedom, for the purpose of keeping the country's freedom intact. I do not want anybody to disturb our freedom which we have won after a great struggle.
Sir, I may tell my Friend Mr. Kamath that even in America, in the United States Constitution, there is provision to this effect.
Shri H.V. Kamath: Have you read that constitution?
Shri R.K. Sidhva: I have read it, you can also read.
Shri H.V. Kamath: I have quoted from it.
Shri R.K. Sidhva: Yes, the American Constitution recognises the power in article 1, section 8, clause 18, on the same principle of emergency.
Shri H.V. Kamath: Is it the text or the commentary?
Shri R.K. Sidhva: I have given Mr. Kamath the section. he cannot now argue that.....
Shri H.V. Kamath: It is a misquotation.
Mr. Vice-president: I shall be glad if Members do not interrupt the honourable Member.
Shri R.K. Sidhva: Sir, I strongly support this article. But at the same time, I do feel that some of the objections raised by some of my friends have some justification, that the whole of Part III need not have been suspended. There are in Part III certain clauses which even in an emergency, could be allowed to remain intact. For instance, under fundamental rights article 11 relates to untouchability. May I know whether in the event of an emergency, you want untouchability to be re-imposed? Also there is the article about titles. Do you want titles to be bestowed in an emergency? There is clause regarding begar. Do you want that in an emergency begar should continue? Article 18 says that no child below the age of fifteen shall be employed in mines. If it is an emergency, do you wish that a child of fourteen should go into a mine and work? And then there is article 19 about rights relating to religion, education and so on.
I can understand the argument of my friends as far as these rights are concerned, and I can appreciate that argument, that the Drafting Committee should not have suggested that the whole of Part III should remain suspended during an emergency. Certainly there are many rights, as for instances the right about freedom of speech, of free association etc., which cannot exist during an emergency. That is against the very principle of an emergency. But I do feel that the Drafting Committee need not suggest the wholesale suspension of Part III, where untouchability, titles and such other things are also dealt with. Emergency does not mean that the Government will not function for the day to day work also, but for the purpose of our retaining our freedom such laws, rights and privileges that are given to the people which affect the very existence of the country could be suspended, and must be suspended. But the extraordinary powers of the law can be suspended. With these words, I strongly support the article. I know this would mean taking away some of individual persons' rights, but I do not mind it, because I want and I am anxious to see that the freedom of my country is maintained and I am sure the friends who have opposed this article are also equally anxious to preserve our freedom. It is only a slight difference in the outlook. Some of my Friends, like Mr. Kamath may say that some other government may come into power and on the ground of emergency upset the whole Constitution. But change of government is always possible in a democracy. A future Government may bring in much worse laws, we cannot say what kind of Government it may be. But in the earlier stages, when we have attained our freedom after great struggle and when we know that there is danger, we should be prepared to lose a little right- although I may say I cherish my rights as much as anybody else- for the purpose of retaining our freedom. With these words, Sir, I strongly support the article.
Shri Alladi Krishnaswami Ayyar (Madras: General): Mr. Vice-President, in supporting the amendment moved to the article by the Honourable Dr. Ambedkar, I should like to say a few words. In the first place, the first part of article 280 as now put forward meets the point of view put forward by the Committee on a former occasion, namely, that the mere existence of a war is not to result in a suspension of all fundamental rights. What the article says is:
It is not intended that the President will suspend all the rights such as were referred to by my honourable Friend Mr. Sidhva which are mentioned in the Chapter on Fundamental Rights. He is quite right in saying that there are rights that do not need a suspension during the period of the war. Such rights will not, and cannot, be suspended. But instead of singling out particular clauses, it is left to the President, who- I have no doubt- will act in a reasonable and proper manner, not in a spirit of vandalism against the Fundamental Rights guaranteed to the citizen in the Constitution.
The second part of the article says:
This is to remove any possible objection that the commotion, war or internal disturbance may not extend to the whole of India and may be confined only to a particular part, and therefore there is no need for suspending the Fundamental Rights in every part of the territory of India.
Lastly, it enjoins the President or the Cabinet to place the order before the Parliament as soon as may be after it is made. There is nothing to prevent Parliament from taking any action it likes. The President may suspend, but yet the Parliament may say that there is absolutely no necessity for the suspension of this right or that right. Time and again, it has been mentioned before the House that it is a Cabinet responsible to the Parliament that is taking action in the name of the President. Parliament has a right to take any action it likes with reference to the course adopted. Under those circumstances, there can possibly be no objection to the article.
In this connection, I will remind the House of a famous saying that "a war cannot be fought on principles of the Magna Carta". Freedom of speech, right of assembly and other rights have to be secured in times of peace but if only the State exists and if the security of the State is guaranteed. Otherwise, all these rights cannot exist. We are envisaging a situation threatened by war, in a country with multitudinous people, with possibly divided loyalties, though technically they may be citizens of India. We trust that the time will come when the citizens of India will not look to far-off countries but we cannot proceed on the footing that in regard to all citizens of this country their loyalty is assured. Freedom of speech may be used for the purpose of endangering the State and resulting in crippling all the resources of the country. If only we realize that the country must exist, that the nation must exist, that the State must exist, if liberty and other things are to be guaranteed, there can be no possible objection to this article.
A reference has been made in the course of this Debate to the American Constitution. I do not know if Members of this House have read a recent book by Prof. Corwin one of the greatest authorities on constitutional law, on the President's power. During the Civil War, President Lincoln suspended the Writ of Habeas Corpus. In the American Constitution, power is given to suspend the habeas Corpus, but it is not mentioned whether the authority to suspend is the Congress or the President. But as a matter of fact the President did suspend the Writ of Habeas Corpus during the Civil War and the American people as a nation in their wisdom, never questioned the President's power.
I want to refer to another passage in regard to the President's powers. There is no country in which the President has more dictatorial powers than the United States. Prof. Corwin puts it in these terms on page 317 of his recent book:
That is the position today in America the most democratic country. Here we have the doctrine of Parliamentary sovereignty. Therefore, the Ministry must be acting in close liaison with the Parliament. The moment they act against the wishes of the Parliament, there is an end of their power so far as the powers of the President of the United States are concerned, they are unbridled. He cannot be questioned. Therefore, why quarrel with the powers of a Cabinet- I use the word Cabinet advisedly because in spite of repeated reminders. Members of the House seem to forget that the expression "President" in every article of the Constitution must be understood as a Cabinet responsible to the people. There can be no better and more profitable reading than that of Lincoln's life.
Now, I should deal with the various objections that have been raised in the course of the debate. My honourable Friend Mr. Bhargava's point has been answered in the previous part of my remarks, namely, that Parliament has the final voice in the matter. Parliament may rescind any action of the President. It may remove the Cabinet if it so chooses, because the Cabinet is as responsible to the House of the People during the war as it is during peace.
Its life depends upon parliamentary majority. There being continuous liaison between the Cabinet and the Parliament, this bogey of Parliamentary sovereignty need not be put forward at every stage. There is no question of denying the right of Parliament. The only question is how is the Parliament to govern. In times of peace it may govern by every day interfering with the executive: at another time it may govern by entrusting the power to the President or the Cabinet in whom they have confidence. Therefore, it is times and circumstances that determine the manner of action of the Parliament whose authority and sovereignty nobody disputes.
Then an extraordinary suggestion has been made that we must pass an Act of Indemnity. What is the meaning of an Indemnity Act? In countries where parliamentary sovereignty obtains an Indemnity Act is generally passed after the war is over. In spite of all Acts and Ordinances, it may be that particular officers may have outstepped the limits of law. In order to guard against infringement of the law and people being molested by action for damages and criminal prosecutions, Acts of Indemnity are generally passed. I would in this connection refer to Professor Dicey's Book on "The Law of the Constitution" in which he explains the scope and principle of an Act of Indemnity. An Act of Indemnity is not normally passed before the war is over. If Professor Shah means to say that even before the war is over, you can pass an Act of Indemnity, it would be worse than suspension of fundamental rights, because you give a carte blanche to the executive. Thereby you guarantee to absolve them of all acts of lawlessness perpetrated by them. That certainly is not what Professor Shah wants. Therefore, I submit that this proposition which has been placed before the House by Professor Shah cannot meet with their acceptance.
The third point was a legal one raised by Pandit Thakur Das Bhargava namely, with regard to to article 279: "while a Proclamation of Emergency is in operation nothing in this Act shall restrict the power of the State to make any law or to take nay executive action." As it is, if a law is passed during the period of Proclamation, it will automatically lapse with the end of the emergency: that is the meaning of article 279. Those who are for limiting the power of the President cannot quarrel with the provision as it is because where the period is restricted to a particular duration, automatically the law will come to an end, unless there is a provision in the Constitution or in the particular Act giving it a fresh lease of life after the termination of the emergency. Therefore, if anything my honourable Friend Pandit Thakur Das's amendment will give fresh life instead of cutting short the life of the law passed under article 279.
Therefore, under these circumstances, I submit that as the security of the State is more important, as the liberty of the individual is based upon the security of the State and as a war cannot be carried on under the principles of the Magna Carta, or principles of individual freedom, particularly in a country with multitudinous types of people with possibly diverse loyalties, this provision is very necessary. It will be the life of this Constitution. Far from killing the democratic Constitution- as one of the speakers said- it will save democracy from danger and from annihilation.
With these remarks I support the amendment.
Shri Krishna Chandra Sharma (United Provinces: General): Mr. Vice-President, Sir, I have listened to my honourable Friend Mr. Alladi Krishnaswami Ayyar with the attention he deserves. But what I could not understand is this, that in article 13 certain rights are given. In that very article there is a provision that those rights may be restricted. There are certain other rights given in article 15; in that very article there is a provision that the law can be made for the restriction thereof. Then again there is article 279 under which the rights given in article13 can be done away with under emergency declaration. Now my respectful submission is that when there are no rights there are no remedies, and there is no need of article 280, but when there are rights left there must be remedies for them. So, I see no reason in enacting article 280 by taking away the remedy even for the rights that have not been curtailed or taken away under the emergency legislation.
We have heard a lot about emergency. Sir, when two world wars were fought, the right to approach the High Courts of this country for certain fundamental rights was never taken away, even though we were ruled by a foreign power who were fighting for their own safety and the safety of civilization and of the world and we were fighting for our independence against that power. I do not apprehend such an emergency would even arise in this land; and there is no need to take away the rights which were not taken away even by the Britishers. After all, liberty is the sweetest thing in the world and you cannot take it away so easily. The end of all Government is the prosperity and well being of the people. We have had enough of the police state. If under any Government or any constitution a state of emergency arises so often, that Government and that constitution must be ended. If the State is strong and the people are prosperous there can arise no such emergency. You cannot rule by curtailing the rights of the people; you can maintain the constitution only if the people are prosperous and law-abiding. By resorting to police methods no State can continue. Therefore I submit that this proposed article 280 will serve no purpose whatever and it has no precedent in any constitution. Even if there are precedents you have to look to the time and the circumstances in which these constitutions were framed. By enacting this measure you will only give a handle to people who are out to create chaos and anarchy. Sir, you cannot suppress liberty and do away with the authority of the courts. I submit that this article would serve no useful purpose and it should not be passed.
An Honourable Member: The question may now be put.
Mr. Vice-President: The question is:-
The motion was adopted.
The Honourable Dr. B.R. Ambedkar: Sir, I am not at all surprised at the strong sentiments which have been expressed by some speakers who have taken part in the debate on this article against the provisions contained in the clause as I have put forward. The article deals with fundamental matter and with vital matters relating to rights of the people and it is therefore proper that we should approach a subject of this sort not only with caution but- I am also prepared to say- with some emotion. We have passed certain fundamental rights already and when we are trying to reduce them or to suspend them we should be very careful as to the ways and means we adopt in curtailing or suspending them.
Therefore my friends who have spoken against that article will, I hope, understand that I am in no sense an opponent of what they have said. In fact, I respect their sentiments very much. All the same I am sorry to say that I do not find possible to accept either any of the amendments which they have moved or the suggestions that they have made. I remain, if I may say so, quite unconvinced. At the same time, I may say that I am no less fond of the fundamental rights than they are.
I propose to deal in the course of my reply with some general questions. It is of course not possible for me to go into all the detailed points that have been urged by the various speakers. The first question is whether in an emergency there should be suspension of the fundamental rights or there should be no suspension at all; in other words, whether our fundamental rights should be absolute, never to be varied, suspended or abrogated, or whether our fundamental rights must be made subject to some emergencies. I think I am right in saying that a large majority of the House realises the necessity of suspending these rights during an emergency; the only question is about the ways and means of doing it.
Now if it is agreed that it is necessary to provide for the suspension of these rights during an emergency, the next question that legitimately arises for consideration is whether the power to suspend them should be vested absolutely in the President or whether they should be left to be determined by Parliament. Now having regard to what is being done in other countries- and I am sure every one in this House will agree that we must draw upon the experience and the provisions contained in the constitutions of other countries- the position is this. As to the suspension of the right of what is called habeas corpus. That is the position in Great Britain. Coming next to the position in the United States, we find that while the Congress has power to deal with what are called constitutional guarantees including the suspension of the writ of habeas corpus the President is not altogether left without any power to deal with the matter. I do not want to go into the detailed history of the matter. But I think I am right in saying that while the power is left with the Congress, the President is also vested with what may be called the ad interim power to suspend the writ. My friends shake their heads. But I think if they referred to a standard authority Corwin's book on 'the President', they will find that that is the position.
Pandit Hirday Nath Kunzru: Will you let me interrupt him, Sir? I am sure he is familiar with Ogg's Government of America. Perhaps he will regard that book as a standard book
The Honourable Dr. B.R. Ambedkar: Yes. That is not the only book. There are one hundred books on the American Constitution. I am certainly familiar with some fifty of them.
Pandit Hirday Nath Kunzru: It is stated there that the best legal opinion is that the right to suspend the privilege of the writ of habeas corpus vests in the Congress and that the President may exercise it only where, as Commander-in-Chief of the Armed Forces he considers it necessary for the security of the military operations.
The Honourable Dr. B.R. Ambedkar: Yes, My submission is that in the United States while the Congress has the power, the President also, as the Executive Head of the State, has the ad interim power to suspend.
Now, in framing our Constitution, we have more or less followed the American precedent. By the amendment which I had made, Parliament has been now vested with power to deal with this matter. We also propose to give the President an ad interim power to take such action as he thinks is necessary in the matter of the constitutional guarantee.
Therefore, comparing the draft article and comparing the position as you and in the United States, there is certainly not very great difference between the two. Here also the President does not take action in his personal capacity. We have a further safeguard which the American Constitution does not have, namely, our President will be guided by the advice of the executive and our executive would be subject to the authority of Parliament. Therefore, so far as the question of vesting all the power to suspend the guarantees is concerned, my submission is that ours is not altogether a novel proposal which is made without either reference to any precedent or made in a wanton manner without caring to what happens to the fundamental rights.
Now, having dealt with that question, I come to amendment No.74 of Mr. Bhargava. I think that is an important matter and should therefore explain what exactly the provision is. His amendment really refers to article 279, although he has put it as an amending to article 280. What he wants is that any action taken by the State under the authority conferred upon it by the emergency provisions to suspend the fundamental rights should automatically cease with the easing of the Proclamation. I think that is what he wants so far as amendment No.74 is concerned. My submission is that if the article is read properly, that is exactly what it means. I would like to draw his attention to article 279. He will see that that article does not save anything done under any law made under the powers given by the emergency. In order that the matter may be clear to him I would like again to draw his attention to article 227. If he compares the two, he will see that there is a fundamental difference between the two articles. Article 227 is also an article which give power to the Centre to pass certain laws in an emergency even affecting the State List. I would draw his attention to clause (2) of article 227. He will find at the end of it that 'all acts cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate except as respects things done or omitted to be done before the expiration of the same period. This clause does not occur in article 279. Therefore, not only any law that will be made under the provisions of article 279 will vanish, but anything done will also cease to be validly done. Thus, a person who was arrested under the provisions of any law made under article 279, would when the law has ceased to be in force not be governed by it merely because it has been done under any law made under that article. Under this article 279, not only the law goes, but the act done also goes.
Then I would draw attention to clause (2) of article 8. That again is an important article which must be read with article 279. Article 8 is an exception to the general provisions contained in this Constitution that the existing law will continue to operate. What article 8 says is that any existing law which is inconsistent with any of fundamental rights will be in operative. Article 8 clause (1) deals with the existing law and clause (2) deals with future laws. Thus, 'any law made under article 279' would be a future law. When the emergency ceases any law made under article 279 will come under clause (2) of article 8 so that if it becomes inconsistent with the fundamental rights it would automatically cease.
Therefore my submission is that, so far as amendment 74 is concerned the fears expressed are groundless. There is ample provision in the existing law which would cover all the cases my honourable Friend Pandit Thakur Das Bhargava has in mind.
Pandit Thakur Das Bhargava: In article 227 (2) the reference is to a law made by Parliament. It has no reference to any action taken by the executive. Secondly, it speaks of law made by Parliament whereas under article 13 we have reference to a law made by a State as defined therein.
The Honourable Dr. B.R. Ambedkar: The State there means both because the word 'State' used in article 279 is used in the same sense in which it is used in Part III where it means both the Centre, the provinces and even the municipalities.
Pandit Thakur Das Bhargava: Whereas in 227 (1) the reference is only to Parliament.
The Honourable Dr. B.R. Ambedkar: That is what I say. 279 will also be governed by 8. Therefore any law which is inconsistent with the fundamental rights granted will cease to operate.
Now, I proceed to deal with amendment No.78 of Pandit Bhargava. In that amendment he has stated that the order issued by the President suspending the provisions of any of these fundamental rights shall be expressly ratified. He says that there must be express ratification by Parliament of an order issued by the President. The draft article proposed by the drafting Committee provides that the ratification may be presumed unless Parliament by a positive action cancels the order of the President. That is the real difference between his amendment and the article as I have formulated.
Pandit Thakur Das Bhargava: But it is very fundamental difference.
The Honourable Dr. B.R.Ambedkar:But it is very fundamental thing. In a sense it is fundamental and in a sense it is not fundamental because we have provided that the Proclamation shall be placed before the Parliament. That obligation I have now imposed. Obviously if the Parliament is called and the Proclamation is placed before it, it would be a stupid thing if the people who come into the Parliament do not take positive action and such a Parliament would be an unnecessary thing and not wanted.
Pandit Thakur Das Bhargava: Is it not necessary to say that the law will only be applicable for the period of the emergency and not for shorter period and not for six months after the proclamation?
The Honourable Dr. B.R. Ambedkar: I am coming to that, but so far as this question is concerned, it is a matter of mere detail whether the Parliament should by an express resolution say that we want the President to withdraw it, or we want the President to continue it, or we want the President to continue it in a modified form. Once Parliament is called and Parliament has become seized of the matter, is it not proper that the matter should be left to Parliament and its consent presumed to have been given unless it has decided otherwise? Where is the difficulty? I do not see anything with regard to the amendment.
An honourable Member: It is one o'clock now.
Mr. Vice-President: We are going to finish this article.
The Honourable Dr. B.R. Ambedkar: Mr. Gupte has moved an amendment which is an amendment to the amendment of Pandit Bhargava, No.78. He wants that a definite period should be mentioned, that the Proclamation should be placed before Parliament within two months. Pandit Bhargava's amendment was one month, I think, if I mistake not and my original proposal is "as soon as possible." Well I do not know whether anybody wants to make this a matter of conscience and if this matter was not guaranteed, we are going to fast unto death. I think "as soon as possible" may be worked in such a manner that the matter may be placed before Parliament within one month, within two months or may be even a fortnight. It is a most elastic phrase and therefore, I submit that the provision as contained in the draft is the best under the circumstances and I hope the House will accept it.
Mr. Vice-President: I now place the amendments before the House.
Amendment No.3028- Volume II Printed List.
The Honourable Dr. B.R. Ambedkar: I withdraw that, Sir.
(The amendment was, by leave of the Assembly, withdrawn.)
Mr. Vice-President: Amendment No.3030.
Shri H.V. Kamath: I withdraw that amendment.
(The amendment was, by leave of the Assembly, withdrawn).
Mr. Vice President: I now place before the House amendment No.211 of Pandit Kunzru in the printed Consolidated List.
Pandit Hirday Nath Kunzru: I withdraw that amendment.
The amendment was, by leave of the Assembly, withdrawn.
Mr. Vice-President: I place before the House the amendment in List No.1
The question is:
The amendment was negatived.
Mr. Vice-President: The question is
The amendment was negatived.
Mr. Vice-president: The question is:
The amendment was negatived.
Amendments Nos. 23, 24, 25 and 26 all fall because Amendment No.3028 has been withdrawn.
Then I proceed to List No.2
The question is:
The amendment was negatived.
Mr. Vice President: The question is:
The amendment was negatived.
Mr. Vice-President: The question is:
The amendment was negatived.
Mr. Vice-President: The question is:
The amendment was negatived.
Mr. Vice-President: The question is:
The amendment was negatived.
Mr. Vice-President: The question is:
The amendment was negatived.
Mr. Vice-President: The question is:
The amendment was negatived.
Mr. Vice-President: Amendment No.86 does not arise.
The question is:
The amendment was negatived.
Mr. Vice-President: The question is:
The amendment was negatived.
Mr. Vice-President: The question is:
The motion was adopted.
Article 280, as amended, was added to the Constitution.
Shri H.V. Kamath: The House will now adjourn to Monday 9 a.m.
The Assembly then adjourned till Nine of the Clock on Monday, the 22nd August 1949.