Constituent Assembly Of India - Volume VII
Dated: November 30, 1948
Mr. Vice-President: You are wandering from the point.
Shri Santanu Kumar Dass: *[This also puts the gazette officers of the scheduled castes and minority community into difficulty. Seth Damodar Swarup has just said that there is no need for reservations as Public Service Commission would secure impartiality. But in this connection I would like to point out that though there is a Public Service Commission, and candidates appear at its examination and many of those who qualify appear in the lists, yet when there is a chance of filling posts those who have not even appeared at the examination are taken in. How does it happen? It happens because such people have a strong backing which enables them to get selected. I am afraid the continuation of Public Service Commissions would be of no use for us.
At present there is reservation in the elections and thereby we get a chance to discuss our problems here. But If there was no such reservation it would not be possible for us to come here as we would not be able to win in the general elections. I therefore, submit that there should be reservation in services and elections.
There is one thing more: It has been said that reservation should be kept for ten years. Why only for ten years? If we get equal rights within two years all would be on the same level after that period and there would be no need for reservations. With these words I support the article.]*
Shri Jaspat Roy Kapoor: Sir, may I submit that many of us do not appreciate the Marshal going to the speaker and asking him to resume his seat?
Mr. Vice-President: I am sorry for what the Marshal did; but it was not at my request. He is over-zealous.
Shri H. J. Khandekar: (C. P. & Berar: General): Sir, may I request you one thing with reference to the time limit? The speakers here are mostly Harijan speakers and they require some time to explain the situation. I would therefore request you to increase the time limit so that they can explain and support this article very well.
Mr. Vice-President: Yes.
Shri H. J. Khandekar: Mr. Vice President, Sir, I have come here to support article 10 which is being discussed in the House. Before supporting it I congratulate the friend who in the Drafting Committee has inserted this word 'backward' in article 10 clause (3). If this word `backward' had not been here, the purpose of the scheduled caste would not have been served as it should be. The condition of the scheduled castes has been explained by many friends who made their speeches in the House. The condition is so deplorable that though the candidates of the scheduled castes apply for certain Government posts, they are not selected for the posts because the people who select the candidates do not belong to that community or that section. I can give so many instances about this because I have got the experience from all provinces of the country that the scheduled caste people though they are well qualified do not get opportunity and fair treatment in the services. It would have been better If the word `scheduled caste' as has been proposed by an amendment by my friend Mr. Muniswamy Pillay would have been inserted in this article. Because the term `backward' is so vague that there is no definition of this word anywhere. I do not agree with my friend Mr. Chandrika Ram saying that the definition of the word `scheduled caste' and a list of the castes included in the scheduled caste. But I think the friend who has inserted this word in this article is aiming at the community known as the scheduled caste and when this Constitution is passed and when the article comes into operation, I hope that the Executive who will operate this clause or this Constitution will also aim at the community known as scheduled castes. Our revered leader Thakkar Bapa is in the House. He has been working for this community for about sixteen years as the General Secretary of the Harijan Sewak Sangh. He knows the difficulties of this community socially, economically, educationally, religiously and even politically. If I may say here leaving aside all these aspects, and if we consider the aspect politically, this community is not represented anywhere if no reservation of seats are given to that community.
Mr. Vice-President: You had better confine yourself to the article under discussion. How does politics enter into the picture at all?
Shri H. J. Khandekar: Therefore, if I leave aside the political aspects of the community and come to the social, educational, economical and religious aspects, the condition of the scheduled caste in this respect also is more deplorable than that of any man living in this country. I may say, that if a candidate of the scheduled caste applies for a particular post in the Government of India or in the Provincial Governments he is ordinarily ignored. There are commissions for recruiting these candidates. There is a Federal Public Service Commission, there are provincial Commissions; and while recruiting-you know, Sir, we people are educationally backward and we cannot come in competition with the other communities-If the qualifications for the Harijan candidates are not relaxed, our candidates will not be able to compete with the candidates of the Brahmin community or the so-called Savarna Hindus. Then if our candidates go to the F. P. S. C. or the Provincial Commissions they will not be successful in the selections as these commissions are not represented by us. I therefore think that while bringing this clause into operation, the F. P. S. C. or the Provincial Commissions should be instructed to relax the qualifications in connection with the Harijan candidates or the Scheduled Caste candidates and there should also be Harijan representatives on these commissions. Moreover, Sir, I know and the House and you too, Sir, know that the Government of India-I mean the present Government of India-has issued a circular about the services for the Scheduled caste. They have said that in higher services 12 1/2 per cent. of the seats are reserved for the scheduled caste and in the lower services 16 1/2 per cent. are reserved for them.
Sir, if you just see how the recruiting of Scheduled castes candidates is going on in practice, you will find that not even 1 per cent. of these candidates has been recruited in the higher services and in the lower services of the Government of India. Look at the Provincial Governments that have been run by our popular ministries. Even in those provinces, the scheduled castes have no adequate representation in the services. I, therefore, would have been very glad if after or before the word "backward", the word "scheduled castes" had been inserted, because this term `backward' is a vague one and while making the selections, communalism will arise and the commissions, I do not blame them, will be helpless. As was said here by certain friends of mine, communalism is going on, and provincialism is going on and other things are also going on and I am afraid if these things are continued, even if this clause is brought into operation, the scheduled castes will never get a chance, as the word `backward' would be interpreted in such a way that we people would get no chance in the services because the people of other castes will also claim to be backward and get the chances on reserved posts. Therefore, Sir, before resuming my seat, I would request you to see that the machinery which will operate this clause should be so pure, that no discrimination of any sort should be made between scheduled castes and other people who come under the category of backward classes. With these words, Sir, I take my seat.
Mr. Mohamed Ismail Sahib (Madras: Muslim): Mr. Vice-President, Sir, this word `backward' I cannot understand in the context in which it is put here in clause (3) of article 10. If one reads the clause without this word, then one can quite clearly and easily understand its meaning. But when the word `backward' is inserted, it obscures the meaning a great deal. The word `backward' has not been defined at all anywhere in this Constitution. But I may tell you it has been defined in certain places. In Madras it has got a definite and technical meaning. There are a number of castes and sub-castes called backward communities. The Government of Madras have counted and scheduled more than 150 of these classes in that province and in that province when you utter the word `backward', it is one of those 150 and odd communities that is meant, and not any community that is generally backward. And I may also say that those 150 and odd communities constitute almost the majority of the population of that Province, and every one of these communities comes from the Hindus-the majority community. In that list the scheduled castes are not included, and if you include the scheduled castes also in the class of those backward communities, then all of them put together, will form decidedly the majority of the whole population of that province. I want to know whether by inserting the word `backward' here you mean the same backward classes as the Madras Government means, I want to know the meaning of the word. I submit that it should not in any way be taken to mean that the backward classes as those of the minor it communities such as Muslims, Christians and the Scheduled caste people are excluded from the purview of this clause. As a matter of fact, there are backward people amongst then on-majority people as well. The Christians are backward. As a matter of fact they are not adequately represented in the services of the provinces. So also the Muslims, and also the Scheduled Castes. If any provision is made, it has to be made for such really backward people. It may be pointed out that such a provision is made in article 296 under the minorities rights. It at there the article does not speak of the reservation for those people in the services as this clause (3) does. Therefore, it is here, and that in the fundamental rights that such a provision ought to be made for such minorities as the Muslims, Christians and the Scheduled Castes.
Then Sir, I am opposed to the amendment moved by Pandit Kunzru. He says that the Government shall have the right or option of providing for reservation only for a period of ten years. Sir, the measure or yard-stick in any such matter should not be the period of time. The backwardness of the people is the result of conditions which have been persisting and in existence for several centuries and ages, and these will not die off easily. So the measure really should be the steps that are being taken to liquidate that backward condition, and it should be the forwardness of the people which has resulted as a consequence of those steps. Therefore, when these people advance and have come forward as much as any other community in the land, then these very reservations would automatically disappear. I feel that no period need be stipulated at all for this purpose. That period might be less than ten years, or it may be more than ten years, according as the backwardness persists or disappears. The measure, as I said, should be the effect and result of the steps that are being taken for removing and eliminating those conditions which go to make the backwardness. I would now request the mover of the motion to at least remove the word `backward' and make it clear to the House that here, when the clause speaks of reservation, it means also minority communities, who stand in need of such reservations.
Sir, there is only one more point which I have to touch upon. When we speak of reservations and rights and privileges, the bogey of communalism is being raised. Sir, communalism does not come in because people want their rights. When people find that they are not adequately represented, they rightly feel that they must have due representation and then such a demand comes up. It comes because of their non-representation in the services, and because of their discontent. When such discontent is removed, the unity of hearts comes in. It is the unity of hearts and not any attempt at a physical unity that will do good to the country and to the people. The differences will be there, but there must be harmony and that is what we all really want, and that harmony can be brought about only by creating contentment amongst the people. And reservation in services is one of the measures we can adopt to bring about contentment among the people. You can then say to the people, "Look here, you have your proper share in the services and you have nothing to complain." When people themselves find that they are given as good an opportunity as others, harmony will be there and the so-called communalism will not come in at all. There are countries which have followed the procedure which I am advocating and quite effectively, they have eliminated communalism. Therefore, I say that one of the ways of removing disharmony and producing harmony, is to make provision for the people's representation in the services and to make them feel that they have got a real share and an effective share in the governance of the country.
Sardar Hukam Singh (East Punjab : Sikh): Mr. Vice-President, Sir, the point that I want to press before this House has already been touched upon by one or two Members. The Honourable Pandit Kunzru has said that he wants to enquire what relation there is between article 10 and article 296. Certainly if we take article 10, clause (1), it is laid down there that "there shall be quality of opportunity for all citizens in matters of employment under the State". That would mean that when posts are to be filled, that would be done by open competition and the topmost men would be taken in. That is quite all right; that should be the procedure.
But when we look at articles 296 and 297, those two articles lay down that claims of all minorities shall betaken into consideration:-
To me it seems that there is some conflict between these two articles. If we are to fill up these posts by open competition and on merit, certainly we cannot give recognition to the claims of all minorities. Then the best men would be taken in and if some members of the minorities do happen to succeed, that would not be on the consideration of their claims as minorities but that would be under article 10 as equal citizens of the State. If they get those posts in open competition, it is all right; but if they are not adequately represented by that method, then what article296 implies is, that special consideration shall be shown to them to see that their representation is made up.
Sir, there can be only one of these two things-either there can be clear equal opportunity or special consideration. Article 10 says there shall be equality of opportunity, then it emphasises the fact by a negative clause that no citizen shall be discriminated on account of religion or race. It is quite good, but when no indication is given whether this would override article 296 or article296 is independent of it, we are certainly left in the lurch. What would be the fate of the minorities?
In clause (3) this new phrase "backward class" of citizens has been introduced. We had heard of "depressed classes", "scheduled castes", but this "backward class of citizens", so far as our part of the country is concerned, we have never seen used in any statute. Just now we have been told that "backward classes" have been defined in the Province of Madras; that may be, but that is not within my knowledge. Whereas this new term has made apprehensive the members of the scheduled castes and they have pressed here that it should be made clear that it only applies to them, if it is for their benefit, at the same time it has made the minorities apprehensive whether they are being included, as Pandit Kunzru said, whether "backward classes" would include those minorities as well, whether if they are not adequately represented any concession would be shown to them; and If they are not to be included in this phrase then what would be their fate under article 296. Unless we reconcile these two articles-296 and 10-the safeguards that are being provided in article 296 become illusory and there is apprehension in our minds as to whether that article would be to our benefit at all.
Shri K. M. Munshi: Mr. Vice-President, Sir, the criticism that has been placed before the House so far has revolved round two points. The first point is the scope of amendment No. 82 moved by my honourable friend Shri Alladi Krishnaswami Ayyar; the second is about the word "backward". I propose to deal with the first question particularly in view of what was said by my honourable friend Mr. Gupta and the comments made by my honourable friend Mr.Kamath.
I want the House to realise the scope of this article. In article 10, clause (2), the House has added the word "residence" to the various restrictions that are mentioned there.
Shri T. T. Krishnamachari (Madras: General): It has not been added, it was merely suggested.
Shri K. M. Munshi: It has been moved that it should be added; I stand corrected. We have moved an amendment to this effect implying thereby that we are going to support it and I hope we are going to get the support of the House. The amendment seeks to insert the word "residence" in clause (2); that would mean that no State, not even a local authority like a municipality or a local board, can ever make a rule that the incumbent of an office or an employee shall be a resident of that particular place. This would lead to great inconvenience. For instance, there is an amendment to insert the words "office" and "employment" separately; that would include offices which do not carry a salary. Then, take for instance the chairman of a local board. It may become necessary for a Provincial Legislature to lay down a residential qualification. The Provincial Legislature, however will not have the power to do so unless the House accepts the amendment which has been moved by my honourable friend Shri Alladi. All that amendment No. 82 seeks to do is this: if the clause with regard to residence has to be qualified and a residential qualification has to be imposed, it can only be done by the Parliament, that is by the Central Legislature. The reason of this change is that there should be uniformity with regard to this qualification throughout the whole country and that this provision should not be abused by some Legislature by imposing an impossible residential qualification.
The second difficulty which evidently has been present before the minds of some of the Members of the House is with regard to the word "State". I would like to draw the attention of the House to the different meanings of the word "state" used in the Constitution. The amendment says, "Any State for the time being specified in Schedule I". So we have to find the meaning of the word "State". I may now refer to article 1 which says:-
Now, if you go to the First Schedule, the Schedule is headed "State and Territories". So far as the First Schedule is concerned, Parts I, II and III refer to the States organised into a separate autonomous Government; while the territories are described in Part IV-Andaman and Nicobar Islands. Therefore, the words "Any State for the time being specified in the First Schedule" would cover only the States mentioned in Parts I, II and III but would not include the Andaman and Nicobar Islands.
Some difficulty has been felt by one or two members with regard to the definition of the word "States".
Shri H. V. Kamath: May I draw my learned friend Mr. Munshi's attention to the language used in the First Schedule? Part I refers to "territories" as well-"the territories known immediately before the commencement of this Constitution as the Governors' Provinces". The word "territory" is used there and not merely in connection with Andaman and Nicobar Islands. In Parts I, II, and IV the word employed is "territory".
Shri K. M. Munshi: If the Honourable Member is good enough to follow the submissions which I am making, I am sure he will be convinced, unless he is determined not to be convinced, in which case it it a different matter.
Shri H. V. Kamath: The boot, Sir, is on the other leg.
Shri K. M. Munshi: What I am saying is, if you look at the words of article 1, it says:
These do not include the Central Government of the Union. It only means the autonomous States which are mentioned in Parts I, II and III. As regards Part IV you will find in clause 3, sub-clause (2)-
Therefore Nicobar Islands are not a State within the meaning of article 1. They are a territory. These territories are not governed by any legislature of their own nor are they a state with any autonomous powers. They are directly controlled by the Centre and the Centre cannot make a distinction with regard to its own services between a resident of one province and another. It must treat every citizen equally. The scheme of this amendment therefore, if it is seen in this light, is that with regard to the States in Parts I, II and III and in respect of any office under such States, a residential qualification can be imposed by the legislature.
The other difficulty was in regard to article 7. The article uses the words "the State". They are almost made into a term of art and apply only to the words "the State" used in Part III, that is for the purpose of Fundamental rights. It has no application to either the Schedule or to the States falling within article 1. Therefore, when the amendment under discussion says "any State" it cannot mean 'the State' as defined in article 7. I submit this amendment, makes it perfectly clear that it is for the purpose of services under the States mentioned in Part I, II and III that the Central Legislature can enact a legislation, not with regard to any part of the territory which is directly controlled by the Central Government. It would be quite wrong in principle, I submit, that the Central Government should make distinctions between the residents of one province and another. Therefore, the amendment as it stands, I submit, is perfectly correct.
Shri H. V. Kamath: Mr. Vice-President, if I heard my friend aright, he did say just now that the words "any State" refers to only Parts I, II and III of the first Schedule. Then, why not say specifically and definitely in this amendment-"any State for the time being specified in Parts I of the First Schedule to III" and be done with it?
Shri K. M. Munshi: I may humbly point out to my friend that the heading of the First Schedule is "the States and Territories of India" under articles 1 and 4, and Nicobar Islands are territories; they are not States. Therefore, it is perfectly clear to any one who compares the two articles. I cannot add any further explanation to what I have given.
Shri H. V. Kamath: If the wise men of the Drafting Committee think so, and as ultimately they will have their own way in regard to this amendment right or wrong, I do not want to press this point.
Shri K. M. Munshi: The meaning as I understand it,-and I hope I have made it clear to the House-is perfectly clear and requires no further comment on my part.
The other point that has been raised-of course, it will be dealt with exhaustively by my Honourable friend Dr. Ambedkar when he replies generally-is about the use of the word "backward." There is one point of view which I would like to place before the House. I happen not to belong to the Scheduled Castes; and I am putting that point of view, which possibly may come better from me than my Honourable friend Dr. Ambedkar. Certain members of the Scheduled Caste shave expressed a doubt whether by the use of the word "backward classes" their rights or privileges or opportunities will be curtailed in any manner. I cannot imagine for the life of me how, after an experience of a year and a half of the Constitutent Assembly any honourable Member of the Scheduled Castes should have a feeling that they will not be included in the backward classes so long as they are backward. I cannot also imagine a time when there is any backward class in India which does not include the Scheduled Caste. But the point I want to draw the attention of these Members to is this. Look at what has been going on in this House for the last year and a half. Take article 11. From the first time the draft was put before the sub-committee of the Minorities Committee-the Fundamental Rights Committee-there has not been a single member of the non-Scheduled castes who has ever raised any objection to it. On the contrary, we members who do not belong to the Scheduled castes, have in order to wipe out this blot on our society, been in the forefront in this matter. Not only that, but article 296 and even this particular proviso has been put in and supported fully by members of other communities and have been supported by the whole House. There need, therefore, be no fear that the House, as constituted at present or hereafter, will ever make a distinction or discriminate against the Scheduled Castes. That fear, I think, is entirely unfounded. What we want to secure by this clause are two things. In the fundamental right in the first clause we want to achieve the highest efficiency in the services of the State-highest efficiency which would enable the services to function effectively and promptly. At the same time, in view of the conditions in our country prevailing in several provinces, we want to see that backward classes, classes who are really backward, should be given scope in the State services; for it is realised that State services give a status and an opportunity to serve the country, and this opportunity should be extended to every community, even among the backward people. That being so, we have to find out some generic term and the word "backward class" was the best possible term. When it is read with article 301 it is perfectly clear that the word "backward" signifies that class of people-does not matter whether you call them untouchables or touchables, belonging to this community or that,-a class of people who are so backward that special protection is required in the services and I see no reason why any member should be apprehensive of regard to the word "backward."
Pandit Hirday Nath Kunzru: This is begging the question. To argue like this is to argue in a circle.
Shri K. M. Munshi: Well, I have not been able to trace the circle so far, in spite of my learned friend's attempt to make me do it.
An Honourable Member: Who are those backward classes?
Shri K. M. Munshi: Article 301 makes it clear that there will be a Commission appointed for the purpose of investigating what are backward classes. Some reference has been made to Madras. I may point out that in the province of Bombay for several years now, there has been a definition of backward classes, which includes not only Scheduled Castes and Scheduled Tribes but also other backward classes who are economically, educationally and socially backward. We need not, therefore, define or restrict the scope of the word 'backward' to a particular community. Whoever is backward will be covered by it and I think the apprehensions of the Honourable Members are not justified.
Shri T. T. Krishnamachari: Mr. Vice-President, Sir, I am afraid I am in a position of disadvantage, coming as I do after Mr. Munshi, whom the House knows as a very learned lawyer. I now see that his technique in advocacy is to confuse the judge, as-if I had heard him aright-he must have confused the minds of those Members of this House who had some doubts in regard to the provisions of article 10. Sir, I was reading recently in a newspaper the comments on this Constitution by a celebrated authority-Prof. Ivor Jennings. Vice-Chancellor of the Ceylon University-and he characterises this chapter of fundamental rights as a paradise for lawyers. And, as a piece of loose drafting, article 10 takes the palm. My own view, if I may be permitted to state it, is that this article had better not find a place in this Chapter on Fundamental Rights.
Let me take clause (1): "There shall be equality of opportunity for all citizens in matters of employment under the State." What class of citizens? Literates? Illiterates? Could an illiterate file a suit before the Supreme Court alleging that he has been denied equality of opportunity? This is not my own view. This is a statement of the view which I found expressed in Professor Jennings' criticism.
I now move on to clause (2). I am afraid this House has been put to a lot of trouble merely because of the attempt to accommodate my Honourable Friend Shri Jaspat Roy Kapoor by including the word `residence' in this clause after the word `birth'. This has been beginning of all the trouble. We have had an amendment by Shri K. M. Munshi and another by Shri Alladi Krishnaswami Ayyar. Is it at all necessary to include the word `residence?' I put it to the House that it is not necessary, because if there is discrimination because of `residence' as there may be, you are not going to cover it up by putting it in here and taking it out in clause 2 (a).
An Honourable Member: Delete 2 (a) then.
Shri T. T. Krishnamachari: That is a matter for the House. But I suggest to the House that we can be impartial in this matter. We shall deny Mr. Jaspat Roy Kapoor the right to put in `residence' and we shall deny Shri Alladi Krishnaswami Ayyar the occasion to bring in an explanatory sub-clause which would whittle down the concession given as much as possible.
Now let us turn to the wording of the particular amendment moved by Shri Alladi Krishnaswami Ayyar on which my Honourable Friend Mr. Munshi dilated at length. Sir, as I said before, I am not presuming to give any advice on the matter. Let us see what the Parliament is going to do? Is it going to pass a comprehensive law covering the needs of all the States, all the local bodies, all the village panchayats (which will also be States under the definition in Article7) and all the universities? Or, is it going to enact fresh legislation as and when occasion arises and as and when a particular local body or university or village panchayat asks for special exemption? Nothing is known as to what is naturally contemplated. We do not know what procedure is going to be laid down for this purpose, and this clause is so beautifully vague that we do not know whether Parliament is at all going to be moved in the matter for a comprehensive piece of legislation. Even then what is the type of legislation it could enact?
The proposal of my friend Shri Jaspat Roy can be nullified if Parliament decides that there should be residence of at least ten years before a person can qualify for an officer in the area. Or, is Parliament going to put down one year or is it going to cover the position of refugees by putting in six months or nothing at all? My own view is that, instead of putting in a clause like 2 (a) which is so vague,-the doubt raised by my friend Mr. Kamath is quite right-we can safely trust the good sense of Parliament. We are leaving the whole thing to the good sense of Parliament, the legislatures, the Supreme Court and the advocates who will appear before that Court when we enact this Constitution in the manner in which it has been presented to us. I am afraid there must be some region where you must leave it to the good sense of some people, because we are here trying to prevent the good sense of people from nullifying the ideas which we hold today.
Sir, the amendment of Shri Alladi Krishnaswami Ayyar says: ".....under any State for the time being specified in the First Schedule or any local or other authority within its territory, any requirement as to residence within that State prior to such employment or appointment." I cannot really understand where any State comes in here, even after hearing the very able advocacy and admirable advocacy of Shri Munshi in support of the amendment. I suggest that both the amendments be dropped. If any particular State disregards our views and insists on residential qualification it would not matter very much.
I now come to clause (3). Quite a number of friends objected to the word `backward' in this clause. I have no doubt many of them have pointed out that when this House took a decision in this regard in this particular matter on a former occasion the word `backward' did not find a place. It was an after-thought which the cumulative wisdom of the Drafting Committee has devised for the purpose of anticipating the possibility of this provision being applied to a large section of the community.
May I ask who are the backward class of citizens? It does not apply to a backward caste. It does not apply to a Scheduled caste or to any particular community. I say the basis of any future division as between `backward' and forward' or non-backward might be in the basis of literacy. If the basis of division is literacy, 80 per cent. of our people fall into the backward class citizens. Who is going to give the ultimate award? Perhaps the Supreme Court. It will have to find out what the intention of the framers was as to who should come under the category of backward classes. It does not say `caste.' It says `class.' Is it a class which is based on grounds of economic status or on grounds of literacy or on grounds of birth? What is it?
My honourable Friend Mr. Munshi thinks that this word has fallen from heaven like manna and snatched by the Drafting Committee in all their wisdom. I say this is a paradise for lawyers. I do not know if the lawyers who have been on the Committee have really not tried to improve the business prospects of their clan and the opportunities of their community or class by framing a constitution so full of pitfalls.
Shri K. M. Munshi: Well, my honourable friend can attempt to become a lawyer.
Shri T. T. Krishnamachari: I am afraid I may have to, when people like Mr. Munshi desert the profession for other more lucrative occupations. If my friend wants me to say something saucy I can tell him that I could attempt that and do some justice to it.
Shri K. M. Munshi: You can, I know.
Shri T. T. Krishnamachari: I must apologise to you, Mr. Vice-President, for carrying on a conversation with Mr. Munshi notwithstanding the fact that he has been provocative. Anyhow the subject is not one which merits such sallies.
Sir, coming back to the merits of clause (3) my feeling is that this article is very loosely worded. That the word backward' is liable to different interpretations is the fear of some of my friends, though I feel that there is no need for such fear, because I have no doubt it is going to be ultimately interpreted by the Supreme authority on some basis, caste, community, religion, literacy or economic status. So I cannot congratulate the Drafting Committee on putting this particular word in; whatever might be the implication they had in their mind, I cannot help feeling that this clause will lead to a lot of litigation.
Sir, before I sit down I would like to put before the House a suggestion not to block the issue further either by admitting the amendment of Shri Jaspat Roy Kapoor or, as a sequel to it, the amendment of Shri Alladi Krishnaswami Ayyar.
The Honourable Dr. B. R. Ambedkar: Mr. Vice-President, Sir, I am going to say at the outset, before I deal with the specific questions that have been raised in the course of the debate, that I cannot accept amendment No. 334 moved by Mr. Misra; nor can I accept the two amendments moved by my friend, Mr. Naziruddin Ahmad, Nos. 336 and 337. I am prepared to accept the amendment of Mr. Imam No. 338, as amended by amendment No. 77 moved by Mr. Ananthasaynam Ayyangar. I am also prepared to accept the amendment of Mr. Kapoor, viz. No. 340, as amended by amendments Nos. 81 and 82 moved by my friends Mr. Munshi and Mr. Alladi Krishnaswami Ayyar.
I do not think that I am called upon to say anything with regard to amendments Nos. 334, 336 and 337. Such observations, therefore, as I shall make in the course of my speech will be confined to the question of residence about which there has been so much debate and the use of the word "backward" in clause (3) of article 10, My friend, Mr. T. T. Krishnamachari, has twitted the Drafting Committee that the Drafting Committee, probably in the interests of some members of that Committee, instead of producing a Constitution, have produced a paradise for lawyers. I am not prepared to say that this Constitution will not give rise to questions which will involve legal interpretation or judicial interpretation. In fact, I would like to ask Mr. Krishnamachari if he can point out to me any instance of any Constitution in the world which has not been a paradise for lawyers. I would particularly ask him to refer to the vast storehouse of law reports with regard to the Constitution of the United States, Canada and other countries. I am therefore not ashamed at all if this Constitution hereafter for purposes of interpretation is required to be taken to the Federal Court. That is the fate of every Constitution and every Drafting Committee. I shall therefore not labour that point at all.
Now, with regard to the question of residence. The matter is really very simple and I cannot understand why so intelligent a person as my friend Mr. T. T. Krishnamachari should have failed to understand the basic purpose of that amendment.
Shri T. T. Krishnamachari: For the same reason as my honourable Friend had for omitting to put that word originally in the article.
The Honourable Dr. B. R. Ambedkar: I did not quite follow. I shall explain the purpose of this amendment. It is the feeling of many persons in this House that, since we have established a common citizenship throughout India, irrespective of the local jurisdiction of the provinces and the Indian States, it is only a concomitant thing that residence should not be required for holding a particular post in a particular State because, in so far as you make residence a qualification, you are really subtracting from the value of a common citizenship which we have established by this Constitution or which we propose to establish by this Constitution. Therefore in my judgment, the argument that residence should not be a qualification to hold appointments under the State is a perfectly valid and a perfectly sound argument. At the same time, it must be realised that you cannot allow people who are flying from one province to another, from one State to another, as mere birds of passage without any roots, without any connection with that particular province, just to come, apply for posts and, so to say, take the plums and walk away. Therefore, some limitation is necessary. It was found, when this matter was investigated, that already today in very many provinces rules have been framed by the provincial governments prescribing a certain period of residence as a qualification for a post in that particular province. Therefore the proposal in the amendment that, although as a general rule residence should not be a qualification, yet some exception might be made, is not quite out of the ordinary. We are merely following the practice which has been already established in the various provinces. However, what we found was that while different provinces were laying down a certain period as a qualifying period for posts, the periods varied considerably. Some provinces said that a person must be actually domiciled. What that means, one does not know. Others have fixed ten years, some seven years and so on. It was therefore felt that, while it might be desirable to fix a period as a qualifying test, that qualifying test should be uniform throughout India. Consequently, if that object is to be achieved, viz., that the qualifying residential period should be uniform, that object can be achieved only by giving the power to Parliament and not giving it to the local units, whether provinces or States. That is the underlying purpose of this amendment putting down residence as a qualification.
With regard to the point raised by my friend, Mr. Kamath, I do not propose to deal with it because it has already been dealt with by Mr. Munshi and also by another friend. They told him why the language as it now stands in the amendment is perfectly in accord with the other provisions of this Constitution.
Now, Sir, to come to the other question which has been agitating the members of this House, viz., the use of the word "backward" in clause (3) of article 10, I should like to begin by making some general observations so that members might be in a position to understand the exact import, the significance and the necessity for using the word "backward" in this particular clause. If members were to try and exchange their views on this subject, they will find that there are three points of view which it is necessary for us to reconcile if we are to produce a workable proposition which will be accepted by all. Of the three points of view, the first is that there shall be equality of opportunity for all citizens. It is the desire of many Members of this House that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations, there ought to be no hindrance in the operation of this principle of equality of opportunity. Another view mostly shared by a section of the House is that, if this principle is to be operative-and it ought to be operative in their judgment to its fullest extent-there ought to be no reservations of any sort for any class or community at all, that all citizens, if they are qualified, should be placed on the same footing of equality so far as the public services are concerned. That is the second point of view we have. Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a `proper look-in' so to say into the administration. If honourable Members will bear these facts in mind-the three principles, we had to reconcile,-they will see that no better formula could be produced than the one that is embodied in sub-clause (3) of article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity, has been embodied in sub-clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now-for historical reasons-been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent. of the total posts under the State and only 30 per cent. are retained as the unreserved. Could anybody say that the reservation of 30 per cent. as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If honourable Members understand this position that we have to safeguard two things namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as "backward" the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think, if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word `backward' which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly. But I think honourable Members will realise that the Drafting Committee which has been ridiculed on more than one ground for producing sometimes a loose draft, sometimes something which is not appropriate and so on, might have opened itself to further attack that they produced a Draft Constitution in which the exception was so large, that it left no room for the rule to operate. I think this is sufficient to justify why the word `backward' has been used.
With regard to the minorities, there is a special reference to that in Article 296, where it has been laid down that some provision will be made with regard to the minorities. Of course, we did not lay down any proportion. That is quite clear from the section itself, but we have not altogether omitted the minorities from consideration. Somebody asked me: "What is a backward community"? Well, I think any one who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government. My honourable Friend, Mr. T. T. Krishnamachari asked me whether this rule will be justiciable. It is rather difficult to give a dogmatic answer. Personally I think it would be a justiciable matter. If the local Government included in this category of reservations such a large number of seats, I think one could very well go to the Federal Court and the Supreme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the court will then come to the conclusion whether the local Government or the State Government has acted in a reasonable and prudent manner. Mr. Krishnamachari asked: "Who is a reasonable man and who is a prudent man? These are matters of litigation". Of course, they are matters of litigation, but my honourable Friend, Mr. Krishnamachari will understand that the words "reasonable persons and prudent persons" have been used in very many laws and if he will refer only to the Transfer of Property Act, he will find that in very many cases the words "a reasonable person and a prudent person" have very well been defined and the court will not find any difficulty in defining it. I hope, therefore that the amendments which I have accepted, will be accepted by the House.
Mr. Vice-President: I am now going to put the amendments to vote, one by one.
The Honourable Dr. B. R. Ambedkar: I am sorry I forgot to say that I accept amendment No. 342.
Mr. Vice-President: The question is:-
The motion was negatived.
Mr. Vice-President: The question is:
The motion was negatived.
Mr. Vice-President: The question is:
The motion was negatived.
Mr. Vice-President: I shall put to vote amendment No.338 as amended by No. 77 of List No. 1 which has already been accepted by the Chairman of the Drafting Committee. The question is:-
The motion was adopted.
Mr. Vice-President: The question is:
The motion was negatived.
Mr. Vice-President: I will now put amendment No. 340 as modified by amendment No. 81 of List No. III to the vote.
Shri H. V. Kamath: I submit, Sir, that amendments 81and 82 will have to be put to the vote first.
Mr. Vice-President: There is no difference so far as I can see in regard to amendment No. 81 and if you insist, I am prepared to put it separately. I would like to carry the House with me, so long as it is legitimate.
Shri H. V. Kamath: I think it would be better, but I do not insist.
Mr. Vice-President: You do not insist. Then let me proceed in my own inadequate way.
Mr. Vice-President: The question is:
The motion was adopted.
Mr. Vice-President: The question is:
That after clause (2) of article 10, the following new clause be inserted:-
The motion was adopted.
Mr. Vice-President:The question is:
The motion was adopted.
Mr. Vice-President: The question is:
That clause (3) of article 10 be deleted.
The motion was negatived.
Mr. Vice-President: The question is:
The motion 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: I shall now put the article as a whole as amended by amendment No. 338, (as modified by amendment No. 77), as amended by amendment No. 340 as modified by amendments numbers 81 and 82 of list III, and as further amended by amendment No. 342. The question is.
That this Article in this modified form stand part of the Constitution.
The motion was adopted.
Article 10, as amended, was added to the Constitution.
Mr. Vice-President: We come to Article 12.
An Honourable Member: What about Article 10-A, Sir?
Mr. Vice-President: So far as our records show, that was finished. That was not moved.
The motion before the House is:
The first amendment is No. 383, standing in the name of Pandit Lakshmi Kanta Maitra and others.
(Amendment No. 383 was not moved.)
Mr. Vice-President: Amendment No. 384 is out of order.
(Amendment No. 385 was not moved.)
Mr. Vice-President: Amendments Nos. 386 and 392 may be considered together. I can allow amendment No. 386 to be moved. It stands in the name of Shri Kamleshwari Prasad Yadav.
(Amendments numbers 386 and 392 were not moved.)
Mr. Vice-President: Amendments Nos. 387 and 394 are of similar import. I shall allow amendment number 387 to be moved. One thing more: before you speak, I want to know whether Mr. A. K. Menon in whose name amendment No. 394stands, wants to press it.
Shri A. K. Menon: (Madras: General): No, Sir.
Shri T. T. Krishnamachari: Sir, I move:
Sir, article 12 clause (1) will read, as amended, as follows:
The history of this particular article the Members of the House know very well. Generally, public opinion has been against any titles being granted. The House is also aware that consequent on India becoming independent, several people who had accepted titles from our British Rulers in the past had given up their titles, though some of them do retain them still. There has been a proposal at one stage that it is the intention of the members of the Drafting Committee to exclude only hereditary titles or other privileges of birth; but Dr. Ambedkar has chosen not to move it. Actually, if he had moved it, it would have made the position of those people who did not have any hereditary titles, but resigned their titles with the advent of independence, very difficult. Then, it would mean that the Government could grant titles like Dewan Bahadur, something analogous to knighthood, and so on. It would put those people who have been patriotic enough to resign their title sat the time that we got independence in a very invidious position.
Even now, in my view, the article is not complete; because, without a specific non-recognition of titles already granted by the British, those people who have been good enough to resign their titles have no benefit. Some have resigned their titles in order to get jobs; and they have got jobs. Other people have resigned; and they have got nothing out of it. Some people have kept their titles and those titles are recognised by the present Government. It makes the position of those people who have resigned their titles very sad. It may probably be that in course of time the Government will refuse to recognise those titles. I know the one Paper which is very near to the Government refuses to recognise such titles. Personally, I think, if the House would permit me to make a personal remark, from my point of view, the retention of titles is beneficial. Here is an honourable Member of the House who bears the same name as mine. He even went to England along with me. He is a titled gentlemen; I am not and that helps to avoid confusion and I am glad he retained his title. That is by the way. What I really mean by this amendment is that certain type of titles has to be permitted. For instance, honourable Members of this House know that the Government have decided on three types of Military distinction to be granted in the future Mahavir Chakra, Parama Vir Chakra and Vir Chakra. Please do not confuse this with the name of our friend Mahabir Tyagi, a very distinguished Member of this House, to whom the title was given by his parents. In course of time, these Vir Chakras will become Bir Chakras. This amendment is moved to make provision for these Military distinctions.
In regard to academic distinctions, you may ask, academic distinctions are not conferred by the State. It may probably be that, some time later, the State might be willing to revive titles like Mahamahopadhyaya which will probably be classed as academic.
Even so, in consonance with the definition of State in article 7, the University becomes a State and no one in the House can say, that the University is something completely divorced from State. So much so, the titles granted by Universities or academic institutions have to be provided for as one cannot completely exclude it from the scope of clause (1) of article 12 as it stands now, The House might ask whether those titles earned by us by sitting for an examination come under the scope of article 12 because the holder had to sit for an examination and get it. These will not come under article 12. But there are titles which are Honoris Causa. For instance the House knows that our Prime Minister, Deputy Minister, Ministers and Governor-General are being showered with Doctorates wherever they go and wherever there happens to be a mushroom University. To provide for contingencies of that sort we are providing by this amendment that academic distinctions should be excluded from the scope of this sub-clause. I hope the House fully understands the meaning of this amendment, which in my view takes stock of things to come and provides for them. I hope the House will accept my amendment.
Mr. Vice-President: Amendments No. 388, 389, first part of 390, 391, 395 to 397 are of similar import. 389 may be moved.
Shri Lokanath Misra: Sir, I beg to move:
Sir, this is a small amendment. I beg to submit that if you are going to abolish all titles, it is also proper that those people who have already titles rightly or wrongly should no more be recognized. We know that titles are appendages and titles give a different view to the man and we know instances where people have got titles which they do not deserve and the entitled gentlemen belies the import of the title. I therefore submit that we should not only abolish all titles, we should also cease to recognise any title that has been conferred, but recognised by none of us.
Mr. Vice-President: I would like to know whether them over of amendment No. 388 wants it to be put to vote.
Shri H. V. Kamath: Yes, Sir.
Mr. Vice-President: No. 390 first part. I want to know whether this should be put to vote.
Prof. K. T. Shah: Yes.
Mr. Vice-President: 391 is the same. 393, 396 and 397are not moved. 390 (second part) is disallowed as being a verbal amendment. I can allow 398, 399 and 400 to be moved.
(Nos. 398 and 399 were not moved).
Mr. Naziruddin Ahmad: Mr. Vice-President, Sir, I beg to move:
This word `the' before "State" is a consequential change. Sir, the clause which this amendment seeks to replace runs thus:-
What is prohibited by the original clause is the 'acceptance' of a title. I would ask: if anybody accepts any foreign title, what is the penalty which is provided? No penalty is provided for accepting it. The State has no means of giving effect to this clause. If anybody accepts a title from a foreign State, what are you going to do-send him to rigorous imprisonment for six months?
The Honourable Dr. B. R. Ambedkar: The State shall not recognize it.
Mr. Naziruddin Ahmad: I am grateful for the interruption. My amendment is exactly this that no title conferred by any foreign State on the citizens of India shall be recognised by the State. The honourable Member Dr. Ambedkar has stated very kindly that the State shall not recognize it. That is really the form in which it should be stated. Supposing any title is conferred upon any honourable Member here by a foreign State and if he accepts it, you have no means of effecting a compliance with clause (2). All that you can do as has been rightly pointed out by Dr. Ambedkar is that you do not recognise it; and that is the form in which this amendment stands. I do not think any further authority is necessary than the interjection of Dr. Ambedkar to support my amendment.
(Amendments Nos. 401, 402 and 403 were not moved.)
Shri Algu Rai Shastri (United Provinces: General): *[I am not moving this amendment because a similar amendment was moved earlier by Shri Krishnamachari and I agree with him. I, therefore, do not move my amendment.]*
Mr. Vice-President: 404 is not moved. 405, 407, 410 and411 are of similar nature. I rule that amendment No. 405 maybe moved.
(Amendments Nos. 405, 407, 410, 411 and 406 were not moved.)
Mr. Vice-President: Amendment Nos. 408 and 409 are verbal ones and therefore I disallow them. Now for general discussion. Mr. Kamath.
Shri H. V. Kamath: Mr. Vice-President, Sir, with your permission, I want to say a few words in support of the amendment.
Mr. Vice-President: I can allow you discussion on the clause as a whole, but cannot allow you to speak about your own amendment.
Shri H. V. Kamath: With your permission, I want to refer to the amendment of some other member. I want to say something in support of the amendment moved by my friend Mr. Lokanath Misra. But before I come to that, I would like to say one or two words about the doubt or difficulty raised by my friend Mr. Naziruddin Ahmad in the course of his motion on amendment No. 400. He wanted to know if a member of the House, or for the matter of that, if a citizen of India, is invested with a title by any foreign State, what will happen? Shall we sentence him to rigorous imprisonment? But I say the remedy is easy. We can say that the citizen who accepts that title forfeits his citizenship of India. Such a remedy is open to us, in accordance with the provision of this article.
Mr. Naziruddin Ahmad: But there is no provision to that effect.
Shri H. V. Kamath: I suppose it will flow from the existing provision.
Now, coming to the amendment which was moved by Mr. Misra, and which I am going to support, the amendment says that titles should neither be conferred nor recognized by the State. I think, it is a very important provision in the new set-up of our country. It is one thing to say that titles should not be conferred and quite another thing to say that titles shall not be recognized. Unfortunately, Sir, even today in our country, even after the British have quitted our country, the toys or the baubles that the British have left behind still remain with us. Of course, we cannot compel our fellow-citizens, our brethren here, to give up the titles that they might have received at the hands of their erstwhile British Masters. There may not be any compulsion. But certainly, we can see to it that the State, that is to say, the Government does not in any way recognise those titles. I will illustrate my point. In most, or at least some of the government documents, records or communiqués or press-notes issued by the Government from time to time, officers of the State, including ambassadors abroad, are referred to along with their titles. If Ire member aright, our Charge-d-Affaires in Paris, and our Ambassador in America, whenever their names are mentioned by the Government in a press-note or communique, their titles go along with their names. The titles are not dropped. I for one, fail to see why Government should continue to recognise or mention these titles in the course of their official communiqués or notes.-I remember very well, that after the Russian Revolution, and after the revolution in Turkey 25 years ago, whatever titles had been bestowed by the former regime were abolished and those who did not choose to give up such titles were given no importance whatsoever. The State did not refer to those titles whenever they referred to the names.
Of course, it may be argued against the amendment of Mr. Misra, that it is not possible to make this a justiciable right. But certainly, I fail to see, if clause(1) of article 12 can be made a justiciable right, why not this? I have got very serious doubts on the point whether clause (1) of article 12 can be a justiciable, fundamental right. No title shall be conferred by the State. But if the State inadvertently or in a fit of absent-mindedness or due to some other cause, does confer titles, what can be done against the State? After all, the State itself has conferred the title. Will you proceed against the State? If you can proceed against the State in that eventuality, there is no reason why the State cannot be proceeded against, if the State in any way recognises a title conferred by the erstwhile British masters. I therefore, support Mr. Misra's amendment. So far as those titles are concerned which are still with us unfortunately, and so far as those title-holders are concerned the Government of India should not recognise them in any way whatsoever in their documents or references or in any other way. If there is any legal difficulty about incorporating it as a justiciable fundamental right, I shall be happy to hear from my learned friend Dr. Ambedkar that the principle is acceptable, and if it can be embodied in the Constitution somewhere, or if it could be brought forward in Parliament by means of a special bill, to the effect that the State will not recognise titles, then I shall be happy. I also hope that in that event, my friend Mr. Misra will not press his amendment.
Shri R. K. Sidhwa (C. P. and Berar: General): Mr. Vice-President. Sir, the conferment of titles during the British regime has been so scandalous that a large section of the people of the country has always viewed it with contempt. Therefore I am very glad that in this House and everywhere outside also, today the conferment of titles is looked upon with equal contempt, and this Constitution rightly provides that there should be no titles conferred upon anyone by the State.
If you refer to clause (3) a concession has been made of a person upon whom a title is conferred by a foreign State. Sir, if our State does not recognise in our own country the conferment of titles, I really fail to understand why we should allow even a foreign State to confer a title upon one of our own citizens. I am of the opinion that the word `title' should be omitted from the clause. It says-
Sir, emoluments, we can understand. Presents we can understand, but why titles? The whole object of this article is not to confer titles: then why include `title' in clause (3)? The beauty of this article is really spoilt by this little word. I support this article, but I should have preferred that foreign states also should not be allowed to confer any title on any of our countrymen.
The Honourable Dr. B. R. Ambedkar: Sir, I accept the amendment moved by my Friend Mr. T. T. Krishnamachari.
With regard to the amendment moved by my friend Mr. Naziruddin Ahmad, he wanted the word "acepted" to be substituted by the word "recognised". His argument was, supposing the citizen does accept a title, what is the penal provision in the Constitution which would nullify that act? My answer to that is very simple: that it would be perfectly open under the Constitution for Parliament under its residuary powers to make a law prescribing what should be done with regard to an individual who does accept a title contrary to the provisions of this article. I should have thought that that was an adequate provision for meeting the case which he has put before the House.
With regard to the second point of Mr. Kamath, if I have understood him correctly, he asked whether this is a justiciable right. My reply to that is very simple: it is not a justiciable right. The non-acceptance of titles is a condition of continued citizenship; it is not a right, it is a duty imposed upon the individual that if he continues to be the citizen of this country then he must abide by certain conditions, one of the conditions is that he must not accept a title because it would be open for Parliament, when it provides by law as to what should be done to persons who abrogate the provisions of this article, to say that if any person accepts a title contrary to the provisions of article 12 (1) or (2), certain penalties may follow. One of the penalties may be that he may lose the right of citizenship. Therefore, there is really no difficulty in understanding this provision as it is a condition attached to citizenship; by itself it is not a justiciable right.
Shri H. V. Kamath: My point is about recognition of existing titles by the State.
The Honourable Dr. B. R. Ambedkar: As I said in reply to my friend Mr. Naziruddin Ahmad, it is open for Parliament to take such action as it likes, and one of the actions which Parliament may take is to say that we shall not recognise these titles.
Shri H. V. Kamath: I want Dr. Ambedkar to accept the principle. Parliament can do what it likes later on.
The Honourable Dr. B. R. Ambedkar: Certainly it is just commonsense that if the Constitution says that no person shall accept a title, it will be an obligation upon Parliament to see that no citizen shall commit a breach of that provision.
The Assembly then adjourned till Half Past Nine of the Clock on Wednesday, the 1st December 1948.