Vol. 13 · pages 346–350

Part IX ORISSA. I. A resident of the State of Orissa belonging to any of the following tribes:— 1. Bagata. 5 2. Banjari. 3. Chenchu. 4. Gadaba. 5. Gond. 6. Jatapu. 10 7. Khond (Kond). 8. Konda-Dora. 9. Koya. 10. Paroja. 11. Saora (Savar). 15 12. Oraon. 13. Santal. 14. Kharia. 15. Munda. 16. Banjara. 20 17. Binjhia. 18. Kisan. 19. Koli. 20. Kora. II. A resident of any of the following areas, that is to say, the Koraput and Khondmals Districts and the Ganjam Agency belonging to either of the following tribes:— 25 1. Dom or Dombo. 2. Pan or Pano. III. A resident of the Sambalpur District belonging to any of the following tribes:— 30 1. Bauri. 2. Bhuiya 3. Bhumij. 4. Ghasi. 35 5. Turi. 6. Pan or Pano. THE GAZETTE OF INDIA EXTRAORDINARY, FEB. 26,1948 344 313THE DRAFT CONSTITUTION

APPENDIX Separate notes submitted to the Constituent Assembly by Shri Alladi Krishnaswami Ayyar, Member, Drafting Committee While I may point out that there is no difference in principle between my colleagues and myself either in regard to the distribution of legislative power between the Parliament and the Units or in regard to the Union Parliament assuming power over a subject in the Provincial (State) List when it assumes or becomes of national importance, I should like to submit the following separate note for the consideration of the Constituent Assembly in regard to the articles bearing on the above matters, i.e., Articles 217, 223(1) and 226. Distribution of Legislative Powers. —Articles 217 and 223(1) 2. The question as to the distribution of legislative power has been decided by the Constituent Assembly and it is settled that the residuary power should vest in the Centre. The only question, therefore, is how to frame the articles so as to carry out this idea. My colleagues have decided to follow the scheme in Section 100 of the Government of India Act and to have a separate article for the residuary power as also to have it as an item in the list of subjects allotted to the Union. The point of my plan is that inasmuch as it is agreed that the residuary power is to vest in the Centre (Union Parliament), the various enumerated items in the Union list are merely illustrative of the general residuary power vested in the Centre. The proper plan, therefore, is to define the powers of the States or Provincial Units in the first instance, then deal with the concurrent power and lastly deal with the power of the Centre or the Union Parliament while at the same time making out a comprehensive list of the powers vested in the Centre by way of illustration to the general power. The plan adopted in Section 100 of the Government of India Act was to some extent accounted for by the fact that there was no agreement then among political parties as regards the location of residuary power and it was left for the Governor-General to decide by which Legislature the residuary power was to be exercised in any particular place in cases not covered by any of the Lists. There is no such problem facing us now. A canvassing of the meaning and import of individual items in the Central List has become of much less importance now than under the provisions of the Government of India Act. The repetition of “notwithstanding” in every clause of Section 100 has been the subject of prolonged and unnecessary arguments in courts. 345 THE GAZETTE OF INDIA EXTRAORDINARY, FEB. 26,1948 314 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

No complication is likely to arise by reason of the States in Part III coming into the scheme of the Union as according to the draft Constitution the scheme of distribution is subject to agreement between the States and that is provided for by articles 224 and 225. Further, in the articles as framed there is no provision to the effect that the power of legislation carries with it the power to make any provisions essential to the effective exercise of the legislative authority. Some such provisions occur in the Australian and American Constitutions, vide Section 51 of the Australian Constitution and Article I, Section 8, Sub-section 18 of the American Constitution. I would, therefore, suggest for the consideration of the Constituent Assembly the following article as a substitute for Articles 217 and 223(1) in the draft. (1) The Legislature of the States in Part I, Schedule I, shall have exclusive power to make laws for the State or for any part thereof in relation to matters falling with the classes of subjects specified in List I (corresponding to Provincial Legislative List). “(2) The Legislature of any of the States in Part I, Schedule I, shall in addition to the powers under Clause (1) have power to make laws for the State of any part thereof in relation to matters falling within the classes of subjects specified in List II, provided, however, that the Union Parliament shall also have power to make laws in relation to the same matters within the entire area of the Union or any part thereof, and an Act of the legislature of the State shall have effect in and for the State as long as and as far only as it is not repugnant to any Act of the Union Parliament. “(3) In addition to the powers conferred by the previous subsection, the Union Parliament may make laws for the peace, order and good government of the Union or any part thereof in relation to all matters not falling within the classes of subjects enumerated in List I and in particular and without prejudice to the generality of the foregoing, the Union Parliament shall have exclusive power to make laws in relation to all matters falling within the classes of subjects enumerated in List III. “(4) (a) The Union Parliament shall have power to make laws for the peace, order and good government of the States in Part II, Schedule I. THE GAZETTE OF INDIA EXTRAORDINARY, FEB. 26,1948 346 315THE DRAFT CONSTITUTION

(b) Subject to the general powers of Parliament under Sub-section (a), the Legislature of the States in Part II, Schedule I, shall have the power to make laws in relation to matters coming within the following classes of subjects: Provided, however, that any law passed by that Unit shall have effect in and for that Unit so long and as far only as it is not repugnant to any law of the Union Parliament. (This provision is necessary, if the recommendations of the ad hoc Committee on Chief Commissioners’ Provinces in this regard are accepted.) “(5) The power to legislate either of the Union Parliament or the Legislature of any State shall extend to ail matters essential to the effective exercise of the legislative authority; vested in the particular legislature. “(6) Where a law of a State is inconsistent with a law of the Union Parliament or to any existing law with respect to any of the matters enumerated in List I or (List II), the law of the Parliament or as the case may be the existing law shall prevail and the law of the State shall to the extent to repugnancy be void.” (This follows the Australian and American provisions. Without embarking upon an examination of each section and each clause, a court may easily come to the conclusion that an Act taken as a whole is repugnant to another law). If it is felt necessary, special provision may be inserted in regard to laws in respect of matters in the Concurrent List on the lines of Article 231(2) though I think such a provision may not be necessary in view of the overriding power of the Central Legislature. Articles 226 and 228 3. I accept the principle underlying article 226 that if any subject in the Provincial List assumes national importance or becomes one of national interest in the language of the article, it ought to be possible for the Union to encroach (if one may use that expression) upon the Provincial field and take to itself the power to legislate on any subject in the Provincial List. But the very basis of the assumption of that power is that the subject can no longer be regarded as one merely of importance for the particular State but has assumed national dimensions. 347 THE GAZETTE OF INDIA EXTRAORDINARY, FEB. 26,1948 316 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

If these premises be correct, there is no justification for a State to continue to retain the power. The object of the assumption of the power by the Union is not by some simple or easy method without having recourse to a change in the Constitution to convert what is Provincial or State power into a concurrent power. This principle is not kept in view in Article 228 which provides that the province will continue to have the legislative power in the particular subject. The conversion of what is a Provincial power into a concurrent power would offer a premium for interference by the Centre and may strike ultimately at the federal structure of the Constitution itself. I would, therefore, suggest the substitution of the following words :— “on the ground that any matter enumerated in the State List has assumed national importance” for the words: “or expedient in the national interest...............resolution” and add the words : “that Parliament should make laws with respect to such matter”; before the words “it shall be lawful for the Parliament etc.” In article 228 for the words “Nothing in articles 226 and 227” substitute “Nothing in article 227”. ALLADI KRISHNASWAMI. Article 218 is unnecessary, as it deals with the Supreme Court which is an item in List I. Article 221 deals with a High Court. There is no point in specially providing for the jurisdiction as the jurisdiction of all Courts including the High Court is covered by items relating to the jurisdiction in the 3 Lists. As the articles dealing with the distribution of legislative power specially refer to the Lists, a separate article dealing with the Supreme High Court is superfluous and unnecessary. ALLADI KRISHNASWAMI. By Order, H. V. R. IENGAR, Secretary. THE GAZETTE OF INDIA EXTRAORDINARY, FEB. 26,1948 348 317THE DRAFT CONSTITUTION