9. Draft Constitution as published in the Gazette of India, dated 26th February 1948 with Dr. Ambedkar’s letter dated 21st February 1948 to Dr. Rajendra Prasad, President of the Constituent Assembly of India

particularly to the position of the untouchables and he said that in regard to these acts which prevent the untouchables from sharing equally the privileges enjoyed by the general public, we will not be successful in achieving our purpose unless these acts, preventing them from using places of public resort, were made offences. There is no doubt that there is no difference of opinion between him and other Members of this House in this matter because all of us desire that this unfortunate class should be entitled to the same privileges as members of the other communities without any let or hindrance from anybody. But he will see that that purpose is carried out entirely by the provisions contained in article 11 which specifically deals with untouchability : instead of leaving it to Parliament or to the State to make it a crime, the article itself declares that any such interference with their rights shall be treated as an offence punishable by law. If his view is that there should be a provision in the Constitution dealing generally with acts which interfere with the provisions contained in article 9, I would like to draw his attention to article 27 in the Constitution which places an obligation on Parliament to make laws declaring such interferences to be offences punishable by law. The reason why such power is given to Parliament is because it is felt that any offence which deals with the Fundamental rights should be uniform throughout the territory of India, which would not be the case if this power was left to the different States and Provinces to regulate as they like. My submission therefore is that, so far as this point is concerned, the Constitution contains ample provision and nothing more is really necessary.

With regard to amendment No. 323 moved by Professor K. T. Shah, the object of which is to add “Scheduled Castes” and “Scheduled Tribes” along with women and children, I am afraid it may have just the opposite effect.

The object which all of us have in mind is that the Scheduled Castes and Scheduled tribes should not be segregated from the general public.

For instance, none of us, I think, would like that a separate school should be established for the Scheduled Castes when there is a general school in the village open to the children of the entire community. If these words are added, it will probably give a handle for a State to say, “Well, we are making special provision for the Scheduled Castes”. To my mind they can safely say so by taking shelter under the article 383DRAFT CONSTITUTION

if it is amended in the manner the Professor wants it. I therefore think that it is not a desirable amendment.

Then I come to my Friend Mr. Nagappa. He has asked me to explain some of the words which have been used in this article. His first question was whether “shop” included laundry and shaving saloon. Well, so far as I am concerned, I have not the least doubt that the word ‘ shop ‘ does include laundry and shaving place. To define the word ‘shop’ in the most generic term one can think of is to state that ‘shop’ is a place where the owner is prepared to offer his service to anybody who is prepared to go there seeking his service. A laundryman therefore would be a man sitting in his shop offering to serve the public in a particular respect, namely, wash the dirty clothes of a customer. Similarly, the owner of a shaving saloon would be sitting there offering his service for any person who enters his saloon.

The Honourable Shri B. G. Kher (Bombay : General) : Does it include the offices of a doctor and a lawyer 7 The Honourable Dr. B. R. Ambedkar : Certainly it will include anybody who offers his services. I am using it in a generic sense. I should like to point out therefore that the word ‘shop’ used here is not used in the limited sense of permitting entry. It is used in the larger sense of requiring the services if the terms of service are agreed to.

The second question put to me was whether ‘place of public resort’ includes burial grounds. I should have thought that very few people would be interested in the burial ground, because nobody would care to know what happens to him after he is dead. But, as my Friend Mr. Nagappa is interested in the point should say that I have no doubt that a place of public resort would include a burial ground subject to the fact that such a burial ground is maintained wholly or partly out of public funds. Where there are no burial grounds maintained by a municipality, local board or taluka board or Provincial Government or village panchayat, nobody of course has any right, because there is no public place about which anybody can make a claim for entry. But if there is a burial ground maintained by the State out of State funds, then obviously every person would have every right to have his body buried or cremated therein.

384 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

Then my Friend asked me whether ponds are included in tanks. The answer is categorically in the affirmative. A tank is a larger thing which must include a pond.

The other question that he asked me was whether rivers, streams, canals and water sources would be open to the untouchables. Wells, rivers, streams and canals no doubt would not come under article 9 ; but they would certainly be covered by the provisions of article 11 which make any interference with the rights of an untouchable for equal treatment with the members of the other communities an offence. Therefore my answer to my Friend Mr. Nagappa is that he need have no fears with regard to the use of rivers, streams, canals, etc., because it is perfectly possible for the Parliament to make any law under Article 11 to remove any such disability if found.

Shri S. Nagappa : What about the courses of water ? The Honourable Dr. B. R. Ambedkar : I cannot add anything to the article at this stage. But I have no doubt that any action necessary with regard to rivers and canals could be legitimately and adequately taken under article 11.

Shri R. K. Sidhwa : What about the interpretation of the word ‘public’ ?

The Honourable Dr. B. R. Ambedkar : My Friend Mr. Sidhwa read out some definition from the Indian Penal Code of the word ‘public’ and said that the word ‘public’ there was used in a very limited sense as belonging to a class. I should like to draw his attention to the fact that the word ‘public’ is used here in a special sense. A place is a place of public resort provided it is maintained wholly or partly out of State funds. It has nothing to do with the definition given in the Indian Penal Code.

Shri Mahavir Tyagi (united Provinces : General) : May I know what is to happen to the amendments which have been declared by you as verbal amendments ? Among them I fear there are some which really aim at making a substantial change in the meaning of the clause or article concerned.

Mr. Vice-President : In that matter I am the sole judge. You have given me discretionary power and I propose to exercise that power in my own way.

385DRAFT CONSTITUTION

Shri Mahavir Tyagi : I want information. I do not dispute your judgment or your right, I only want to know whether the sense of the House will be accommodated in regard to the amendments ruled out or whether such amendments will be considered by the Drafting Committee or some other body ? My suggestion is that you will be doing well the House if you will kindly appoint a small sub-committee which will go into these verbal amendments and find out whether some of them at least aim at effecting a change in the meaning of the clause concerned. I do not dispute what you said. They are out of order because you have ruled them as such. But even commas and fullstops have some value. My only request is that ...

Mr. Vice-President: May I suggest a better way which might appeal to you, a way which is better than the appointment of a sub-committee ? Those who think that their amendments are of some substance may I am sure due consideration will be shown to them.

Shri Mahavir Tyagi : Now I am satisfied, Sir.

Mr. Mohd. Tahir : As the Honourable Dr. Ambedkar has answered my points to my satisfaction with regard to amendment No. 315,1 ask for leave to withdraw it.

The amendment was, by leave of the Assembly, withdrawn. Mr. Vice-President : Now I will put the rest of the amendments to the vote of the House. Dr. Ambedkar has accepted the first one. [Following amendments were adopted as per suggesting Dr. Ambedkar.] (1) “That for amendment No. 276 in the List of Amendments, the following be substituted ‘That the second para, of clause (1) of article 9 be numbered as new clause (1a), and the words ‘In particular’ in the new use so formed, be deleted.

***** Mr. Vice-President ; The next one is No. 280 which, I understand Dr. Ambedkar has accepted. The question is :

(2) No- 280— “That in article 9, after the word ‘sex’ wherever it occurs, the words ‘place of birth’ be inserted.”

(3) No- 286—(by Mr. C. Subramaniam).

“That in sub-clause (a) of clause (1) of article 9. after the words ‘ restaurants, hotels ‘the words’ Dharamsalas, Musafirkhanas be inserted.” (4) No. 303—(by Mr. Guptanath Singh).

“That in sub-clause (b) of the second paragraph of clause (1) of article 9, after the words ‘wells, tanks’ the words ‘bathing ghats’ be inserted.” 386 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

(5) No. 314— “That in sub-clause (b) of the second paragraph of clause (1) of article 9, for the words ‘the revenues of the State’ the words ‘State funds’ be substituted.” [Rest of the amendments were negatived.]

Article 9, as amended, was added to the Constitution. ARTICLE 10

*Mr. Vice-President: Shall we pass on to the next article, new article 9-A ? The amendments here are in the form of Directive Principles. I disallow them. Then we go to article 10.

Shri T. T. Krishnamachari (Madras : General) : I think the idea is to hold this over.

The Honourable Dr. B. R. Ambedkar : I request you to hold this article over.

Mr. Vice-President : Then we may go to the next article, 10-A. (Amendment No. 369 was not moved.)

ARTICLE 11

*****

†The Honourable Dr. B. R. Amedkar : I cannot accept the amendment of Mr. Naziruddin Ahmad.

Mr. Vice-President : Dr. Ambedkar, do you wish to reply to Mr. Shah’s suggestion 7 The Honourable Dr. B. R. Ambedkar : No.

The Vice-President : I now put amendment No. 372 to vote. The question is :

“That for article 11, the following article be substituted:— ‘11. No one shall on account of his religion or caste be treated or regarded as an ‘untouchable’ ; and its observance in any form may be made punishable by law’.”

[This amendment of Mr. Nazaruddin was negatived.] Article 11 was adopted and added to the Constitution. Honourable Members : “Mahatma Gandhi ki Jai”.

[Six members spoke on this Article. Dr. Ambedkar did not make any speech.] ARTICLE 11-A AND B

***** Mr. Z. H. Lari (United Provinces : Muslim) : Mr. Vice-President,

*CAD, Vol. VII, 29th November 1948, pp. 664.

†Ibid., 30th November 1948, p. 669.

387DRAFT CONSTITUTION

I move:

“That after article U the following new article be inserted:-— ‘II-A- Imprisonment for debt is abolished.

11-B. Capital punishment except for sedition involving use of violence is abolished’.”

Sir, the two clauses are distinct and consequently when considering and adopting them it is not necessary for the House to accept both simultaneously or to reject both. It is open to the House to accept one and not to accept the other or to accept both. Mr. Vice-President : Why not move that separately

*****

*The Honourable Dr. B. R. Ambedkar (Bombay : General) : I do not accept the amendment.

Mr. Vice-President : I shall put the amendment to vote. The amendment was negatived.

ARTICLE 10

Mr. Vice President : We can now go back to Article No. 10. The motion before the House is :

That Article 10 form part of the Constitution.

***** ‡Shri H. V. Kamath : On a point of clarification, Sir, may I know from my Honourable Friend, Mr. Alladi Krishnaswami Ayyar whether the words here expressed” any State for the time being specified in the First Schedule” applies to all the four parts of the First Schedule ? The first Schedule consists of four parts. Three parts refer to the States and the last part refers to the Andaman and Nicobar Islands ; and we have already adopted article 1 which states in sub-clause (2) that “the States shall mean the States for the time being specified in Parts I, II and III of the First Schedule. May I know from him whether” any State for the time being specified in the First Schedule “means all the States and territories comprised in all the four parts of the First Schedule ? In that case the language of this amendment will have to be modified. It will have to read” under any State or territory in the first four parts I, II, III and IV of the First Schedule, “and if you want to retain only the word ‘State’ then it will be ‘under any State specified in Parts I, II and III of the First Schedule.’

*CAD, Vol. VII, 30th November 1948, p. 672.

†Ibid., 672.

‡Ibid., 678.

388 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

The Honourable Dr. B. R. Ambedkar : It is quite obvious that we have not specified parts. We have merely said ‘First Schedule’ and First Schedule includes all the States in the First Schedule. Shri H. V. Kamath : Article 1 says ‘the States included for the time being specified in Parts I, II and III of the First Schedule.’ The territories comprised in Part IV is not a State according to our Constitution.

The Honourable Dr. B. R. Ambedkar : There should be no attempt to make any distinction at all.

Shri H. V. Kamath : If my point is unanswerable, I have nothing to say.

Shri Alladi Krishnaswami Ayyar : If you only refer to the First Schedule, you will find that Part I refers to the territories known immediately before the commencement of this Constitution as the Governor’s Provinces. Part II deals with the territories known immediately before the commencement of this Constitution as the Chief Commissioners’ provinces of Delhi, Ajmer-Merwara and so on. Part III deals with Indian States. All these three categories are referred to and described as ‘States’ in Article 1. Part IV of Schedule 1 are Andamans and Nicobar Islands. These are not States but territories.

*****

*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 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

*CAD, Vol. VII, 30th November 1948, pp. 699-702.

389DRAFT CONSTITUTION

Drafting Committee, prohably 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 390 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

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 391DRAFT CONSTITUTION

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 he 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 392 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

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 tills 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 393DRAFT CONSTITUTION

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.

[Following amendments were accepted by Dr. Ambedkar and adopted by the House.]

“(i) That in clause (1) of article 10, for the words ‘in matters of employment’, the words ‘in mutters relating to employment or appointment to office’ be substituted.”

(ii) That in clause (2) of article 10. after the words ‘ineligible for any’ the words ‘employment or ‘ be inserted.”

(iii) “That in clause (2) article 10. after the words ‘place of birth’ the word ‘in India’ be added.

(iv) “That in clause (2) of articles 10, after the word ‘birth’ the word ‘residence’ be inserted.”

“(2a) Nothing in this article shall prevent Parliament from making any laws prescribing in regard to a class or classes of employment or appointment to an office under any State for the time being specified in the First Scheduled or any local or other authority within its territory any requirement as to residence within that State prior to such employment or appointment.”

That after clause (2) of article 10, the following new clause be inserted :— (v) “That in clause (2 ) of article 10, after the word ‘ineligible’ the words ‘or discriminated against’ be inserted.”

[Rest eight amendments were negatived.]

Article 10, as amended, was added to the Constitution. 394 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

*Shri T. T. Krishnamachari : Sir, I move :

“That in clause (1) of article 12 after the word “title” the words ‘not being a military or academic distinction’ be inserted.” Sir, article 12 clause (1) will read, as amended, as follows: “No title not being a military or academic distinction shall be conferred by the State.”

*****

†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 “accepted” 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 prefectly 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 tills 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.

*CAD, Vol. VII, 30th November 1948, p. 704.

†Ibid., pp. 708-09 395DRAFT CONSTITUTION

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.

*****

*Mr. Vice-President (Dr. H. C. Mookherjee) : We shall try to meet the wishes of the House.

We finished our discussion on Article 12 and Dr. ambedkar gave his reply. I am sorry I cannot accommodate those Members who want to reopen it. I shall now put the different amendments to the vote one after the other.

Mr. Vice-President : The question is :

“That in clause (1) of article 12, after the word ‘title’ the words ‘not being a military or academic distinction’ he inserted. “ The motion of Shri Krishnamachari was adopted.

[Rest 4 amendments were negatived.]

Article 12, as amended, was added to the Constitution.

***** ARTICLE 13

†Mahboob Ali Baig Sahib Bahdur: ...Anyhow I pose this question to the Chairman of the Drafting Committee whether in these circum stances, viz., where there is in existence a provision in the Constitution itself empowering the legislature or the executive to pass an order or law abridging the rights mentioned in clause (1), the court can go into the merits or demerits of the order or law and declare a certain law invalid or a certain Act as not justified. In my view the court’s jurisdiction is ousted by clearly mentioning in the Constitution itself that the State shall have the power to make laws relating to libel, association or assembly in the interest of public order, restrictions on the exercise of ………..

The Honourable Dr. B. R. Ambedkar (Bombay : General) : Sir, if I might interrupt my Honourable Friend, I have understood his point

*CAD, Vol. VII. 1st December 1948, p. 711.

†Ibid., p. 735.

396 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

and I appreciate it and I undertake to reply and satisfy him as to what it means. It is therefore unnecessary for him to dilate further on the point.

*****

*Pandit Thakur Dass Bhargva : ...Similarly, at present you have the right to assemble peaceably and without arms and you have in 1947 passed a law under which even peaceable assemblage could be bombed without warning from the sky. We have today many provisions which are against this peaceable assembling. Similarly in regard to ban on association or unions.

The Honourable Dr. B. R. Ambedkar : Is it open to my Honourable friend to speak generally on the clauses ?

Mr. Vice-President : That is what I am trying to draw his attention to. The Honourable Dr. B. R. Ambedkar : This is an abuse of the procedure of the House. I cannot help saying that. When a member speaks on an amendment, he must confine himself to that amendment. He cannot avail himself of this opportunity of rambling over the entire field. Pandit Thakur Dass Bhargava : I am speaking on the amendment; but the manner in which Dr. Ambedkar speaks and expresses himself is extremely objectionable. Why should he get up and speak in a threatening mood or a domineering tone ?

Mr. Vice-President: Everybody seems to have lost his temper except the Chair ( Laughter). I had given a warning to Mr. Bhargava and, just now, was about to repeat it when Dr. Ambedkar stood up. I am perfectly certain that he was carried away by his feeling. I do not see any reason why there should be so much feeling aroused. He has been under a strain for days together. I can well understand his position and I hope that the House will allow the matter to rest there.

Now, I hope Mr. Bhargava realises the position.

*****

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

“that with reference to amendment No. 454…………”

Shri H. V. Kamath : On a point of order, Sir, has amendment No. 454 been moved ?

Mr. Vice-President : Please continue.

The Honourable Dr. B. R. Ambedkar :

“with reference to amendment No. 454 of the List of Amendments— (i) in clause, (3), (4), (5) and (6) of article 13, after the words ‘ any existing law ‘ the words ‘ in so far as it imposes ‘ be inserted; and

*CAD, Vol. VII, 1st December 1948, p. 738

†Ibid., pp. 740-42 397DRAFT CONSTITUTION

(ii) in clause (6) of article 13, after the words ‘in particular’ the words ‘nothing in the said clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law’ be inserted.” Syed Abdur Rouf (Assam : Muslim) : On a point of order, Sir, I think that Dr. Ambedkar’s amendment cannot be an amendment to amendment No. 454. Amendment No. 454 seeks to delete clauses (2), (3), (4), (5) and (6), whereas Dr. Ambedkar’s amendment seeks to insert some words in those clauses and cannot therefore be moved as an amendment to an amendment.

Mr. Vice-President : It seems to me that what Dr. Ambedkar really seeks to do is to retain the original clauses with certain qualifications. Therefore I rule that he is in order. Shri H. V. Kamath : This will have the effect of negativing the original amendment.

Mr. Vice-President : Kindly take your seat.

The Honourable Dr. B. R. Ambedkar : From the speeches which have been made on article 13 and article 8 and the words “existing law” which occur in some of the provisos to article 13, it seems to me that there is a good deal of misunderstanding about what is exactly intended to be done with regard to existing law. Now the fundamental article is article 8 which specifically, without any kind of reservation, says that any existing law which is inconsistent with the Fundamental Rights as enacted in this part of the Constitution is void. That is a fundamental proposition and I have no doubt about it that any trained lawyer, if he was asked to interpret the words “existing law” occurring in the sub-clauses to article 13, would read “existing law” in so far as it is not inconsistent with the fundamental rights. There is no doubt that that is the way in which the phrase “existing law” in the sub-clauses would be interpreted. It is unnecessary to repeat the proposition stated in article 8 every time the phrase “existing law” occurs, because it is a rule of interpretation that for interpreting any law, all relevant sections shall be taken into account and read in such a way that one section is reconciled with another. Therefore the Drafting Committee felt that they have laid down in article 8 the full and complete proposition that any existing law, in so far as it is inconsistent with the Fundamental Rights, will stand abrogated. The Drafting Committee did not feel it necessary to incorporate some such qualification in using 398 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

the phrase “existing law” in the various clauses where these words occur. As I see, many people have not been able to read the clause in that way. In reading “existing law”, they seem to forget what has already been stated in article 8. In order to remove the misunderstanding that is likely to be caused in a layman’s mind, I have brought forward this amendment to sub-clauses (3), (4), (5) and (6) I will read for illustration sub-clause (3) with my amendment. “Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law, imposing in the interests of public order.” I am accepting Mr. Bhargava’s amendment and so I will add the word “reasonable” also.

“Imposing in the interests of public order reasonable restrictions on the exercise of the right conferred by the said sub-clause.” Now, the words “in so far as it imposes” to my mind make the idea complete and free from any doubt that the existing law is saved only in so far as it imposes reasonable restrictions. I think with that amendment there ought to be no difficulty in understanding that the existing law is saved only to a limited extent, it is saved only if it is not in conflict with the Fundamental Rights.

Sub-clause (6) has been differently worded, because the word there is different from what occurs in sub-clauses (3), (4) and (5). Honourable Members will be able to read for themselves in order to make out what it exactly means.

Now, my friend, Pandit Thakur Dass Bhargava entered into a great tirade against the Drafting Committee, accusing them of having gone out of their way to preserve existing laws. I do not know what he wants the Drafting Committee to do. Does he want us to say straightaway that all existing laws shall stand abrogated on the day on which the Constitution comes into existence ?

Pandit Thakur Dass Bhargava : Not exactly.

The Honourable Dr. B. R. Ambedkar : What we have said is that the existing law shall stand abrogated in so far as they are inconsistent with the provisions of this Constitution. Surely the administration of this country is dependent upon the continued existence of the laws which are in force today. It would bring down the whole administration to pieces if the existing laws were completely and wholly abrogated.

Now, I take article 307. He said that we have made provisions that the existing laws should be continued unless amended. Now, I should 399DRAFT CONSTITUTION

have thought that a man who understands law ought to be able to realize this fact that after the Constitution comes into existence, the exclusive power of making law in this country belongs to Parliament or to the several local legislatures in their respective spheres. Obviously, if you enunciate the proposition that hereafter no law shall be in operation or shall have any force or sanction, unless it has been enacted by Parliament, what would be the position ? The position would be that all the laws which have been made by the earlier legislature, by the Central Legislative Assembly or the Provincial Legislative Assembly would absolutely fall to pieces, because they would cease to have any sanction, not having been made by the parliament or by the local legislatures, which under this Constitution are the only body which are entitled to make law. It is, therefore, necessary that a provision should exist in the Constitution that any laws which have been already made shall not stand abrogated for the mere reason that they have not been made by Parliament. That is the reason why article 307 has been introduced into this Constitution. I, therefore, submit, Sir, that my amendment which particularises the portion of the existing law which shall continue in operation so far as the Fundamental Rights are concerned, meets the difficulty, which several Honourable Members have felt by reason of the fact that they find it difficult to read article 13 in conjunction with article 8, I, therefore, think that this amendment of mine clarifies the position and hope the House will not rind it difficult to accept it.

[After this clarification several amendments were not moved.]

*****

*The Honourable Dr. B. R. Ambedkar : Sir I move— “That in clause (4) of article 13, for the words ‘the general public’ the words ‘public order or morality’ be substituted.” These words are inappropriate in that clause.

Mr. Vice-President : 477 is identical. 479, 480 and 486 are of similar import.

(Amendments Nos. 479, 480 and 486 were not moved.)

*****

*CAD, Vol. VII, 1st December 1948, p. 744.

400 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

*The Honourable Dr. B. R. Ambedkar : Mr. Vice-President, Sir, I move :

“That in clause (5) of article 13. for the word ‘aboriginal’, the word ‘scheduled’ he substituted.”

When the Drafting Committee was dealing with the question of Fundamental Rights, the Committee appointed for the Tribal Areas had not made its Report, and consequently we had to use the word ‘aboriginal’ at the time when the Draft was made. Subsequently, we found that the Committee on Tribal Areas had used the phrase “Scheduled Tribes” and we have used the words “scheduled tribes” in the schedules which accompany this Constitution. In order to keep the language uniform, it is necessary to substitute the word “Scheduled” for the word “aboriginal”. Mr. Vice-President : There is, I understand, an amendment to this amendment, and that is amendment No. 56 of List I, standing in the name of Shri Phool Singh.

(Amendment No. 56 of list I was not moved.)

Mr. Vice-President : That means this amendment No. 491 stands as it is.

Then we come to amendment No. 488.

(Amendment No. 488 was not moved.)

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

“That in clause (6) of article 13, for the words ‘public order, morality or health’, the words ‘the general public’ be substituted.” The words ‘ public order, morality or health ‘ are quite inappropriate in that particular clause.

*****

†Shri M. Ananthasayanan Ayyangar : ...Now, therefore, except the amendments which are acceptable to Dr. Ambedkar, the others should not be accepted. They are objectionable and ought not to find a place in the Constitution.

Shri Satyanarayan Sinha (Bihar: General): I move that the question be now put.

Mr. Vice-President : An enquiry was made of me as to how I have tried to conduct the proceedings of this House. I refused to supply the information at that time, because I thought it might be left to my discretion to explain how I conduct the proceedings. I see that I have not been able to satisfy all the members who desire to speak. At the

*CAD, Vol. VII. 1st December 1948. p. 746.

†Ibid., 2nd December 1948, pp. 779-83.

401DRAFT CONSTITUTION

present moment I have here 25 notes from 25 different gentlemen all anxious to speak. There is no doubt that each one of them will be able to contribute something to the discussion. But the discussion cannot be prolonged indefinitely. This does not take into account those other gentlemen equally competent to give their opinion who stand up and who have denied to themselves the opportunity of sending me notes. I have tried to get the views of the house as a whole. If Honourable Members will kindly go through the list of speakers who have already addressed the House they will find that every province has been represented and every so-called minority from every province has been represented. In my view, in spite of what Pandit L. K. Maitra says Bengalees are a majority. In my view therefore the question has been fully discussed. But, as always, I would like to know whether it is the wish of the House that we should close this discussion.

Honourable Members : Yes, yes;

Mr. Vice-President : Then I call upon Dr. Ambedkar to reply. The Honourable Dr. B. R. Ambedkar (Bombay : General) : Mr. Vice-President, Sir, among the many amendments that have been moved to this article 13, I propose to accept amendment No. 415, No. 453 as amended by amendment No. 86 of Mr. Munshi, and amendment No. 49 in list I as modified by Mr. Thakur Dass Bhargava’s amendment to add the word ‘ reasonable’. Mr. Vice-President : Will you kindly tell us how you proposed to accept amendment No. 415 ?

The Honourable Dr. B. R. Ambedkar : The amendment which seeks to remove the words ‘subject to the other provisions of this article’.

Mr. Vice-President : And then ?

The Honourable Dr. B. R. Ambedkar : Then I accept No. 453 as modified by amendment No. 86, and amendment No. 49 in List I as modified by the amendment of Pandit Thakur Dass Bhargava which introduces the word ‘reasonable’.

Now, Sir, coming to the other amendments and the point raised by the speakers in their speeches in moving those amendments, I find that there are just a few points which call for a reply. With regard to the general attack on article 13 which has centred on the sub-clauses to clause (1), I think I may say that the House now 402 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

will be in a position to feel that the article with the amendments introduced therein has emerged in a form which is generally satisfactory. My explanation as to the importance of article 8, my amendment to the phrase “existing laws” and the introduction of the word “reasonable” remove, in my judgement, the faults which were pointed out by Honourable members when they spoke on this article, and I think the speeches made by my friends, Professor Shibban Lal Saksena and Mr. T. T. Krishnamachari and Mr. Algu Rai Shastri, will convince the House that the article as it now stands with the amendments should find no difficulty in being accepted and therefore I do not want to add anything to what my friends have said in support of this article. In fact I find considerable difficulty to improve upon the arguments used in their speeches in support of this article.

I will therefore take up the other points. Most of them have also been dealt with by my friend, Mr. Ananthasayanam Ayyangar and if, Sir, you had not called upon me, I would have said that his speech may be taken as my speech, because he has dealt with all the points which I have noted down.

Now, the only point which I had noted down to which I had thought of making some reference in the course of my reply was the point made by my friend, Professor K. T. Shah, that the Fundamental Rights do not speak of the freedom of the press. The reply given by my friend, Mr. Ananthasayanam Ayyangar, in my judgment is a complete reply. The press is merely another way of stating an individual or a citizen. The press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity. The editor of a press or the manager are all citizens and therefore when they choose to write in newspapers, they are merely exercising their right of expression, and in my judgment therefore no special mention is necessary of the freedom of the press at all.

Now, with regard to the question of bearing arms about which my friend Mr. Kamath was so terribly excited, I think the position that we have taken is very clear. It is quite true and everyone knows that the Congress Party had been agitating that there should be right to bear arms. Nobody can deny that. That is history. At the same time I think the House should not forget the fact that the circumstances when such resolutions were passed by the Congress no longer exist. 403DRAFT CONSTITUTION

Shri H. V. Kamath : A very handy argument.

The Honourable Dr. B. R. Ambedkar : It is because the British Government had refused to allow Indians to bear arms, not on the ground of peace and order, but on the ground that a subject people should not have the right to bear arms against an alien government so that they could organise themselves to overthrow the Government, and consequently the basic considerations on which these resolutions were passed in my judgment have vanished. Under the present circumstances, I personally myself cannot conceive how it would be possible for the State to carry on its administration if every individual had the right to go into the market and purchase all sorts of instruments of attack without any let or hindrance from the State. Shri H. V. Kamath : On a point of clarification, Sir, the proviso is there restricting that right.

The Honourable Dr. B. R. Ambedkar : The proviso does what ? What does the proviso say ? What the proviso can do is to regulate, and the term ‘regulation’ has been judicially interpreted as prescribing the conditions, but the conditions can never be such as to completely abrogate the right of the citizen to bear arms. Therefore regulation by itself will not prevent a citizen who wants to exercise the right to bear arms from having them. I question very much the policy of giving all citizens indiscriminately any such fundamental right. For instance, if Mr. Kamath’s proposition was accepted, that every citizen should have the fundamental right to bear arms, it would be open for thousands and thousands of citizens who are today described as criminal tribes to bear arms. It would be open to all sorts of people who are habitual criminals to claim the right to possess arms. You cannot say that under the proviso a man shall not be entitled to bear arms because he belongs to a particular class.

Shri H. V. Kamath : If Dr. Ambedkar understands the proviso fully and clearly, he will sec that such will not be the effect of my amendment.

The Honourable Dr. B. R. Ambedkar : I cannot yield now. I have not got much time left. I am explaining the position that has been taken by the Drafting Committee. The point is that it is not possible to allow this indiscriminate right. On the other hand my submission is that so far as bearing of arms is concerned, what we ought to insist upon is not the right of an individual to bear arms but his duty to bear arms. 404 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

(An Honourable Member: Hear, hear. ) In fact, what we ought to secure is that when an emergency arises, when there is a war, when there is insurrection, when the stability and security of the State is endangered, the State shall be entitled to call upon every citizen to bear arms in defence of the State. That is the proposition that we ought to initiate and that position we have completely safeguarded by the proviso to article 17.

Shri H. V. Kamath : (rose to interrupt).

Mr. Vice-President: You do not interrupt, Mr. Kamath. You cannot say that I have not given you sufficient latitude. The Honourable Dr. B. R. Ambedkar : Coming to the question of saving personal law, I think this matter was very completely and very sufficiently discussed and debated at the time when we discussed one of the Directive Principles of this Constitution which enjoins the State to seek or to strive to bring about a uniform civil code and I do not think it is necessary to make any further reference to it, but I should like to say this that, if such a saving clause was introduced into the Constitution, it would disable the legislatures in India from enacting any social measure whatsoever. The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion. In Europe there is Christianity, but Christianity does not mean that the Christians all over the world or in any part of Europe where they live, shall have a uniform system of law of inheritance. No such tiling exists. I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for ? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discrimi405DRAFT CONSTITUTION

nations and other things, which conflict with our fundamental rights. It is, therefore, quite impossible for anybody to conceive that the personal law shall be excluded from the jurisdiction of the State. Having said that I should also like to point out that all that the State is claiming in his matter is a power to legislate. There is no obligation upon the State to do away with personal laws. It is only giving a power. Therefore, no one need be apprehensive of the fact that if the State has the power, the State will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other Community in India.

We must all remember—including Members of the Muslim community who have spoken on this subject, though one can appreciate their feelings very well—that sovereignty is always limited, no matter even if you assert that it is unlimited, because sovereignly in the exercise of that power must reconcile itself to the sentiments of different communities. No Government can exercise its power in such a manner as to provoke the Muslim community to rise in rebellion. I think it would be a mad Government if it did so. But that is a matter which relates to the exercise of the power and not to the power itself.

Now, Sir, my friend, Mr. Jaipal Singh asked me certain questions about the Adibasis. I thought that that was a question which could have been very properly raised when we were discussing the Fifth and the Sixth Schedules, but as he has raised them and as he has asked me particularly to give him some explanation of the difficulties that he had found, I am dealing with the matter at this stage. The House will realize what is the position we have laid down in the Draft Constitution with regard to the Adibasis. We have two categories of areas,— scheduled areas and tribal areas. The tribal areas are areas which relate only to the province of Assam, while the scheduled areas are areas which are scattered in provinces other than Assam. They are really a different name for what we used in the Government of India Act as ‘partially excluded areas’. There is nothing beyond that. Now the scheduled tribes live in both, that is, in the scheduled areas as well as in the tribal areas and the difference between the position of the scheduled tribes in scheduled areas and scheduled tribes in tribal areas is this : In the case of the scheduled tribes in the scheduled areas, they are governed by the provisions contained in paragraph V of the Fifth 406 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES