Vol. 13 · pages 1111–1115

1078 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES conferred. It has been so arranged by consultation that in all probability, on the date on which this Constitution comes into existence the Privy Council would have disposed of all the cases which had been left to them for disposal under that particular enactment. But it might be that either a case remains part-heard, or a case has been disposed of in the sense that the hearing has been closed, but the decree has not been drawn, and in that sense it is pending before them. It was felt that rather than to provide for a transfer of undisposed of part-heard cases to the Supreme Court which would cause a great deal of hardship to litigants, it was desirable, to make an exception to our general rule, that the jurisdiction of the Privy Council will end on the date on which the Constitution comes into existence. That is the main purpose of amendment No. 6. With regard to amendment No. 7, it is well-known that in some of the Indian States there are Privy Councils which supervise the judgements of their High Courts, for the reason that they did not recognise the jurisdiction of the Privy Council or rather, the Privy Council of His Majesty in England. They, therefore, had their own Privy Council. Now it is felt that in view of the provision in the Constitution that there should be direct relationship between the Supreme Court and the High Court, in the different States, both in Part III and in Part I, this intermediary institution of a Privy Council of an Indian State in Part III should be statutorily put an end to, so that on the 26th January, all appeals in any State from a High Court in a State in Part III will automatically come up to be disposed of by the Supreme Court. I am told that these Privy Councils are called by different names in the different States. If that is so, the Drafting Committee proposes to get over that difficulty by having definition of Privy Council in our article 306 so as to cover the the different nomenclatures and variations of these institutions. ***** *Mr. President : Dr. Ambedkar, would you like to say anyting ? The Honourable Dr. B. R. Ambedkar : Sir, I do not think that anything that has been urged in favour of the amendments that have been moved raises any matter of substance. It is more a matter of sentiment, and I think from the point of view of convenience it is much better that we should have this clause and not feel in any way humiliated in doing it, because even if the Privy Council were to continue to exercise jurisdiction, within the limited terms mentioned in clause (3), it should not be forgotten, and I think my friends who have moved the amendments *CAD, Vol. X, 10th October 1949, p. 76.

1079DRAFT CONSTITUTION do seem to have forgotton the fact, that that jurisdiction is not the inherent jurisdiction of the Privy Council but the jurisdiction which this Assembly has conferred upon them. The Privy Council as a matter of fact would be acting as the agent of this Assembly to do a certain amount of necessary and important work. I, therefore, do not think there is any cause for feeling any humilation or that we are really bartering away our independence. With regard to the point raised by my Friend Prof. Saksena in which he referred to the foot-note to article 308. I am quite free to confess that on a better consideration, it was found by the Drafting Committee that the removal of difficulties clause may not be properly used for this purpose. In order to remove all doubt, we thought it was better to have a separate clause like this to confer jurisdiction by the Constituion itself. Mr. President : Then I will put he amendments to vote. [Both the amendments moved by Dr. Ambedkar as mentioned before were adopted: Other amendments were negatived. Article 308, as amended, was added to the Constitution.] ARTICLE 310 *The Honourable Dr. B. R. Ambedkar : Sir, I move :— “That for article 310, the following be substituted :— 310. (1) Notwithstanding anything contained in clause (2) of article 193 of this Constitution, the judges of a High Court in any Province holding office immediately before the date of commencement of this Constitution shall, unless they have elected otherwise, become on his date the judges of the High Court in the corresponding State, and shall hereupon be entitled to such salaries and allowances and to such rights in respect of leave and pensions as are provided for under article 197 of this Constitution in respect of the judges of such High Court. (2) The judges of a High Court in any Indian State corresponding to any State for the time being specified in Part III of the First Schedule holding office immediately before the date of commencement of this Constitution shall, unless they have elected otherwise, become on that date the judges of the High Court in the State so specifed and shall, notwithstanding anything contained in clauses (1) and (2) of artcle 193 of this Constitution but subject to the provisio to clause (1) of that article, continue to hold office until the expiration of such period as the President may by order determine. (3) In this article the expression ‘judge’ does not include n acting judge or an additional judge.” this article is merely what we used to call a “carry over article” merely carrying over the incumbents to the new offices in the new High Courts if they choose to elect to be appointed. ***** *CAD, Vol. X, 10th October 1949, p. 77.

1080 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES *Mr. Nazirudin Ahmad : Sir, I move : “That in amendment No. 8 of List I (Second Week), in clause (1) of the proposed article 310, for the words ‘as are provided for under article 197 of this Constitution in respect of the judges of such High Court’ the words as they were entitled to immediately before the said commenceient’ be substituted.” Clause (1) of this article provides that the Judges of High Court would on the date on which the Constitution comes into force (provisionally on the 26th of January 1950), shall continue to be Judges of the same High Court. The Honourable Dr. B. R. Ambedkar : May I draw attention to the fact that this amendment anticipates Schedule II ? This matter is to be dealt with under Schedule II and the proper time would be when Schedule II is before the House. [Amendment of Mr. Ahmed was negatived. Dr. Ambedkar’s amendment as mentioned earlier was adopted. Article 310 was added to the constitution.] ARTICLE 311 †The Honourable Dr. B. R. Ambedkar: Sir, I move : “That for article 311, the following article be substituted :— “311. (1) Until both Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution shall exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament. Explanation.—For the purposes of this clause, the Constituent Assembly of the Dominion of India includes— (i) the members chosen to represent any State or other territory for which representation is provided under clause (2) of this article, and (ii) the members chosen to fill casual vacancies in the said Assembly. (2) The President may by rules provide for— ( a) the representation in the provisional Parliament functioning under clause (1) of this article of any State or other territory which was not represented in the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution, ( b) the manner in which the representatives of such States or other territories in the provisional parliament shall be chosen, and ( c) the qualifications to be possessed by such representatives. (3) If a member of the Constituent Assembly of the Dominion of India was on the sixth day of October, 1949, also a membr of a House of the Legislature of a Governor’s Province or an Indian State, then, as from the date of commencemnt *CAD, Vol. X, 10th October 1949, p. 77. †Ibid., pp. 79-80. Provisions as to provincial Presidents of the Union and the Speaker and Deputy Speaker thereof.

1081DRAFT CONSTITUTION of this Constitution that person’s seat in the said Assembly shall, unless he has ceased to be a member thereof earlier, become vacant, and every such vacancy shall be deemed to be a casual vacancy. (4) Any person holding office immediately before the commencement of this Constitution as Speaker or Deputy Speaker of the Constituent Assembly when functioning as the Dominion Legislature under the Government of India Act, 1935, shall continue to be the Speaker or, as the case may be, the Deputy Speaker of the provisional Parliament functioning under clause (1) of this article.” Sir, I move : “That in amendment No. 9 of List I (Second Week), for clause (3) of the proposed article 311, the following be substituted :— ‘(3) If a member of the Constituent Assembly of the Dominion of India was on the sixth day of October, 1949, or thereafter becomes at any time before the commencement of this Constitution a member of a House of the Legislature of a Governor’s Province or an Indian State corresponding to any State for the time being specified in Part III of the First Schedule or a minister for any such State, then as from the date of commencement of this Constitution the seat of such member in the Constituent Assembly shall, unless he has ceased to be a member of that Assembly earlier, become vacant and every such vacancy shall be deemed to be a casual vacancy’.” Sir, I move : “That in amendment No. 9 of List I (Second Week), after clause (3) of the proposed article 311, the following new clause be inserted :— ‘(3a) Notwithstanding that any such vacancy in the Constituent assembly of the Dominion of India as is mentioned in clause (3) of this article has not occurred under that clause, steps may be taken before the commencement of this Constitution for the filling of such vacancy, but any person chosen before such commencement to fill the vacancy shall not be entitled to take his seat in the said Assembly until after the vacancy has so occurred.’ ” The object of this clause is that when constituting a provisional Parliament, it is proposed to dispense with what is called double membership. The other provisions are merely ancillary. ***** *Mr. President : Dr. Ambedkar, have you anything to say ? The Honourable Dr. B. R. Ambedkar (Bombay : General) : Sir, before I begin, I would like your permission to omit the word “becomes” in clause (3) of amendment No. 195, occurring between “thereafter” and “at any time before...”. The word is unnecessary. Now, with regard to the various amendments, it seems to me that there are only three that call for some consideration. The first is the amendment of my Friend Mr. Kamath who said that in clause ( 4) of this article, there is a certain account of discrepancy between the provisions relating to the *CAD, Vol. X, 11th October 1949, pp. 98-100.

1082 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES carry-over of the Deputy Speaker of the Centre and the absence of any such provision with regard to the carry-over of the Speaker in the Provinces. I myself, and the Drafting Committee were conscious of this difference between the two provisions, and we had intended to introduce subsequently an amendment to make good the lacuna. Mr. Kamath may, therefore, rest assured that the Drafting Committee will not allow this difference to continue, but will make good by an amendment. The other point of some substance was the one raised by my Friend Mr. Muniswamy Pillay with regard to the representation of the Scheduled Castes in the Provisional Parliament. The position is this. There are at present 310 Members of this Assembly, and the Provisional Parliament will also continue to consist of 310 Members. On the basis of population which is the principle adopted for the representation of the Scheduled Castes in the future Parliament, on a purely population basis, they should get 45 seats out of this 310. They have, as a matter of fact, today only 28 seats. The article makes a definite provision that there shall be no diminution in the 28 seats they have now. But with regard to making good the difference between the 45 to which they are entitled on the basis of population and the 28 which they have got, I think we have left enough power in the hands of the President to adopt and modify the rules so as to make good the deficiency, as far as it would be practicable to do so under the provisions of new article 312 F. Now I come to the amendment of Mr. Pataskar. So far as I have been able to understand him, there is really no difference between the draft article and the amendment suggested by him, in principle. Both article 311 as I have moved and the amendment as moved by Mr. Pataskar agree that we ought to make a provision for the abolition of dual membership. The only question that remains is how it is to be done. According to the provisions contained in this article, what is stated is that the vacancy shall occur only from the commencement of the Constitution. He will continue sitting and functioning as a Member until that date, that is to say, 25th January 1950, assuming that the Constitution comes into existence on the 26th January. But elections to fill the seats which have so become vacant may be held at any time before the commencement of this Constitution so that when the Constituent Assembly meets as the provisional Parliament there may not be any sudden depletion in its membership. What my Friend Mr. Pataskar wants is that the vacancy should come into effect from the commencement of the Constitution, and that the unseating should take place from one month thereafter. That is the only difference.