Vol. 13 · pages 1116–1120

1083DRAFT CONSTITUTION It seems to me that it is really a matter of detail as to which date we should adopt for vacancy and which date we should adopt for unseating. The reason why we have adopted the 6th October 1949 as the date with reference to which the right of a Member to continue as such Member is to be determined is because it is the date on which we commenced this session of the Constituent Assembly. I do not wish to dogmatise that there is any particular virtue in the 6th October 1949, nor will Mr. Pataskar say that there is any virtue in the provision that he has moved by his amendment. As I said, there is no difference in principle, and we are all agreed that double membership should be avoided, and I, therefore, think that the amendment that I have moved. Shri H. V. Pataskar : My amendment gives the option to the Member. The Honourable Dr. B. R. Ambedkar : That, I think, will create a lot of complication. If the Member is given the option, that will create complication, because it may be that the same evil which we want to do away with may be repeated. We must take precaution to see that the evil is not repeated. I, therefore, submit that the provisions contained in 311 should commend themselves to the House. Shri Ram Sahai (Madhya Bharat) : What about the amendment moved by Mr. Sita Ram Jajoo ? The Honourable Dr. B. R. Ambedkar : We had anticipated the point raised by him, and we have modified by amendment 195 in which I have made provision for Indian States. The only thing I have not made provision for is for persons holding offices of profit. Mr. President : I shall now put the amendments to vote one by one. [6 Amendments by Mr. Kamath, 2 by Mr. Tyagi, 4 by Mr. Muniswamy Pillay, one by Mr. Saksena and 4 by others were negatived. Article 311 as amended by Dr. Ambedkar’s amendment was added to the Constitution.] ARTICLE 312-F *The Honourable Dr. B. R. Ambedkar : Sir, I move : “That after article 312-E, the following new article be inserted :— ‘312-F. (1) Casual vacancies in the seats of members of the provisional Parliament functioning under clause ( 1) of article 311 of this Constitution [including vacancies referred to in clauses 3 and (3a) of that article] shall be filled and all matters in connection with the filling of such vacancies (including the decision of doubts and disputes arising out of, or in connection with eletions to fill such vacancies shall) be regulated— *CAD, Vol. X, 11th October 1949, pp. 103-104. Provisions as to this filling of casual vacancies in the provisional President and the Provisional legislatures of the States.

1084 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (a) in accordance with such rules as may be made in this behalf by the President, and (b) until rules are so made, in accordance with the rules relating to the filling of casual vacancies in the Constituent Assembly of the Dominion of India and matters connected therewith in force at the time of the filling of such vacancies or immediately before the commencement of this Constitution, as the case may be, subject to such exceptions and modifications as may be made therein before such commencement by the President of that Assembly and thereafter by the President of the Union : Provided that where any such seat as is mentioned in this article is, immediately before it becomes vacant, held by a person belonging to the Scheduled Castes or to the Muslim or Sikh community and representing a State for the time being specified in Part I of the First Schedule, the person to fill such seat shall, unless the President of the Constituent Assembly or the President of the Union, as the case may be, considers it necessary or expedient to provide otherwise, be of the same community: Provided further that at an election to fill any such vacancy in the seat of a member representing a State for the time being specified in Part I of the First Schedule, every member of the Legislative Assembly of that State shall be entitled to participate and vote. Then I am moving my amendment No. 205 to substitute a different explanation. “That in amendment No. 164 of List III (Second Week), for the Explanation to clause (1) of the proposed new article 312-F, the following Explanation be substituted :— Explanation.—For the purpose of this clause (a) all such castes, races or tribes or parts of or groups within castes, races or tribes as are specified in the Government of India (Scheduled Castes) Order, 1936, to be Scheduled Castes in relation to any Province shall be deemed to be Scheduled Castes in relation to that Province or the corresponding State until a notification has been issued by the President under clause (1) of article 300-A specifying the Scheduled Castes in relation to that corresponding State ; ( b) all the Scheduled Castes in any Province or State shall be deemed to be a single community.” Then I come to sub-clause (2). (2) Casual vacancies in the seats of members of a House of the provisional Legislature of a State functioning under article 312 or article 312-C of this Constitution shall be filled, and all matters in connection with the filling of such vacancies (including the decision of doubts and disputes arising out of or in connection with elections to fill such vacancies) shall be regulated in accordance with such provisions governing the filling of such vacancies and regulating such matters as were in force immediately before the commencement of this Constitution subject to such exception and modifications as the President may by order by direct.”

1085DRAFT CONSTITUTION I do not think that any explanation is necessay. The provisions are quite clear. If any point is raised in the course of the debate, I shall be quite prepared to offer such explanation as I could give. ***** *The Honourable Dr. B. R. Ambedkar : Sir, just one or two points that have been raised in the course of this debate. The first point that has been touched upon by Mr. Saksena and Pandit Bhargava was in relation to the continuance of the representation of the Muslims and the Siks during this interim period. They object to this carry over on the ground that the Muslims and Sikhs have surrendered their right to special representation under the arrangements which have been entered into during the course of the proceedings of this Constituent Assembly. My, submission on this point is this, that whatever arrangements have been made, those arrangements are made in respect of the permanent structure of Parliament which is to come into operation under this Constitution. That being so, I think it would not be right nor justifiable to alter the structure of the Constituent Assembly which in the main we are carrying over and constituting it as a Provisional Parliament. With regard to the amendment of Shrimati Purnima Banerjee, I do not think it is necessary to make a specific provision for the retention of women in this Constituent Assembly. I have no doubt about it that the President in the exercise of his powers of rulemaking will bear this fact in mind and see that cerain number of women members of the Constituent Assembly or of the various parties will be brought in as members of the Provisional Parliament. With regard to Mr. Munniswamy Pillay’s amendment, the new thing he seeks to introduce is the provision for the Scheduled Tribes. As a matter of fact there is no objection to making provision for the Scheduled Tribes but the point is this that at present there is no enumeration of Scheduled Tribes, because Scheduled Tribes as such has not been recognised under the Government of India Act, 1935. Whatever tribes are included for the purposes of representation under the Government of India Act are called backward tribes. Consequently, if my Friend Mr. Munniswamy Pillay were to leave this matter in the hands of the Drafting Committee, we shall probably make some suitable arrangement to give effect to his amendment. *CAD, Vol. X, 11th October 1949, pp. 112-113.

1086 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Mr. President : I will put the amendment to vote now. [3 amendments were negatived. Article 312-F as amended by Dr. Ambedkar’s amendment was added to the Constitution] ***** *Mr. President : Then we take up Schedule IV. Shri T. T. Krishnamachari : Sir, I move that Schedule IV be deleted. Some Honourable Members : How can it be deleted ? Mr. President : So far as the Drafting Committee is concerned, they have been moving for deletion of particular articles. Now, there are amendments to this Schedule IV. I think it will be better if Dr. Ambedkar were to explain the position as to why the Schedule is dropped, because Members have given notice of amendments. That will make the position clear. The Honourable Dr. B. R. Ambedkar : Mr. Krishnamachari will explain. ***** †The Honourable Dr. B. R. Ambedkar : Sir, with regard to the Instrument of Instructions, there are two points which have to be borne in mind. The purpose of the Instrument of Instructions as was originally devised in the British Constitution for the Government of the colonies was to give certain directions to the head of the states as to how they should exercise their discretionary powers that were vested in them. Now the Instruments were effective in so far as the particular Governor or Viceroy to whom these instructions were given was subject to the authority of the Secretary of State. If in any particular matter which was of a serious character, the Governor for instance, persistently refused to carry out the Instrument of Instructions issued to him, it was open to the Secretary of State to remove him, and appoint another and hereby secure the effective carrying out of the Instrument of Instructions. So far as our Constitution is concerned, there is no functionary created by it who can see that these Instruments of Instructions are carried out faithfully by the Governor. Secondly, the discretion which we are going to leave with the Governor under this Constitution is very very meagre. He has hardly any discretion at all. He has to act on the advice of the Prime Minister in the Matter of the election of members of the Cabinet. He has also to act on the advice of the Prime Minister and his Ministers of State with respect to any particular executive or legislative action that he takes. That being so, *CAD, Vol. X, 11th October 1949, p. 114 †Ibid., pp. 115-116.

1087DRAFT CONSTITUTION supposing the Prime Minister does not propose, for any special reason or circumstances, to include in his Cabinet members of the minority community, there is nothing which the Governor can do, notwithstanding the fact that we shall be charging him through this particular Instrument of Instruction to act in a particular manner. It is therefore felt, having regard to the fact there is no discretion in the Governor and there is no functionary under the Constitution who can enforce this, that no such directions should be given. They are useless and can serve no particular purpose. Therefore, it was felt in the circumstances it is not desirable to have such Instrument of Instructions which really can be effective in a different set of circumstances which can by no stretch of imagination be deemed to exist after the new Constitution comes into existence. That is the principal reason why it is felt that this Instrument of Instructions is undesirable. Mr. President : The question is : “That the Fourth Schedule be deleted.” The motion was adopted. The Fourth Schedule was deleted from the Constitution. SECOND SCHEDULE *Mr. President : The House will now take up Schedule II. The Honourable Dr. B. R. Ambedkar : Sir, I move : “That for Part I of the Second Schedule, the following be substituted :— PART I Provisions as to the President and the Governors of States for the time being specified in Part I of the First Schedule. 1. There shall be paid to the President and to the Governors of the States for the time being specified in Part I of the First Schedule the following emoluments per mensum, that is to say : The President—10,000 rupees. The Governor of a State—5,500 rupees. There shall also be paid to the President and to the Governors such allowances as were payable respectively to the Governor-General of the Dominion of India and to the Governors of the corresponding Provinces immediately before the commencement of this Constitution 3. The President and the Governors throughout their respective terms of office shall be entitled to the same privileges to which the GovernorGeneral and the Governors of the corresponding Provinces were respectively before the commencement of this Constitution. *CAD, Vol. X, 11th October 1949, pp. 116-18.