Vol. 13 · pages 611–615

Mr. President : Yes, I am sorry I made a mistake. The Hnourable Dr. Ambedkar may give his reasons for withdrawing the article. The Honourable Dr. B. R. Ambedkar : Sir, my reason is this. As I explained on the last occasion, we have made a provision for nominating certain persons to Parliament. The original proposal was to nominate fifteen persons; subsequently it was decided that these fifteen persons should be divided into two categories, viz., twelve representing literature, science, arts, social services, and so on; and a further provision should be made for the nomination of three persons to assist and advise the Houses of Parliament in connection with any particular Bill, I feel Sir, that the provision which is already contained in article 67 which permits the President to have twelve persons nominated to Parliament would serve the purpose which underlines this new article 67-A. The services that would be rendered by the persons nominated, if article 67-A were passed into law, would be also rendered by the persons who would be nominated under article 67; and therefore the nominations under article 67-A would be merely a duplication of the nominative system covered in article 67. Besides, it is fell that in an independent Parliament which is fully sovereign and representative of the people there should not be too much of an element of nomination. We have already twelve; there may be some nominations also regarding the Anglo-Indians and it is felt that to add to that nominated quantum would be derogatory to the popular and representatiave character of Parliament. That is why I wish to withdraw this article 67-A. Article 67-A was, by leave of the Assembly withdrawn STATEMENT re: ARTICLE 92 TO 99 *The Honourable Dr. B. R. Ambedkar : Sir, I propose that we start now with article 100. Mr. President : I take it that the discussion on articles 92 to 99 should be held over for the time being to enable the business relating to finance and finance bills to be considered further. The Honourable Dr. B. R. Ambedkar : Yes. The position is this. When article 90 was under debate I suggested that the debate should not be concluded and that the article should not be put to the vote because I discovered, at the last moment, a flaw in the article, which I thought it was necessary to rectify. Now if that flaw is to be rectified, then articles 96 to 99 also require to be reconsidered in the light of that article. Article 91 we have passed. Articles 92 to 99 require further * CAD, Vol. VIII, 23rd May 1949. pp. 197-98 578 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

consideration and therefore I want those articles to be held over for the lime being. But we can begin with article 100. [Article 100 was adopted and added to the Constitution as suggested by Dr. Ambedkar .] ARTICLE 101 ***** *The Honourable Dr. B. R. Ambedkar : Sir, with regard to the amendment of Mr. Kamath, I do not think it is necessary, because where can the proceedings of Parliament be questioned in a legal manner except in a court ? Therefore the only place where the proceedings of Parliament can be questioned in a legal manner and legal sanction obtained is the court. Therefore it is unnecessary to mention the words which Mr. Kamath wants in his amendment. For the reason I have explained, the only forum where the proceedings can be questioned in a legal manner and legal relief obtained either against the President or the Speaker or any officer or Member, being the Court, it is unnecessary to specify the forum. Mr. Kamath will see that the marginal note makes it clear. With regard to the amendment moved by my Friend Mr. Naziruddin Ahmad, he has not understood that the important words in sub-clause (2) are ‘ in whom powers are vested ’. Mr. Naziruddin Ahmad : For maintaining order. The Honourable Dr. B. R. Ambedkar : ‘No officer or other Member of Paliament in whom powers are vested ’ are the persons who are protected by sub-clause (2). The Speaker is already an officer and also a Member. No powers has to be conferred upon him. The Constitution confers the power on him. Therefore, having regard to the fact that it is only ‘ other Member that is to say, Member besides the Speaker or the Deputy Speaker as the case may be, who requires to be protected. Therefore the word ‘other’ is important. Mr. President : What is the effect of the words ‘ or for maintaining order’ ? The Honourable Dr. B. R. Ambedkar : Supposing there is a brawl in the House I do not like to put it that way. But, supposing there is a brawl in the House, and the Speaker, not finding any officer at hand to remove a certain Member, asks certain other Member who is present to remove the Member who is causing the brawl. Then that particular Member is the Member who is invested with this authority by the Speaker and he would come under “other Member ”. * CAD. Vol. VIII, 23rd May 1949, pp. 200-01 579DRAFT CONSTITUTION

Mr. President : ‘Or any other officer who is not a Member of the House’ does he come under that ? The Honourable Dr. B. R. Ambedkar : ‘Officer’ would he there. Shri H. V. Kamath : May I ask for some clarification ? Mr. Santhanam, referring to my amendment said that the validity of any amendment can he called in question not merely in a court of law, but also in a legislature. Does Dr. Ambedkar agree with him ? The Honourable Dr. B. R. Ambedkar : I am responsible for the explanation I have given. Shri H. V. Kamath : As regards the other point mentioned by Dr. Ambedkar that the marginal sub-head is clear, may I point out that in the other forum, viz., the Legislative Assembly, I was told that the marginal headings have nothing to do with legislation as such and that articles or sections are taken without reference to the marginal headings. If this so, if you do not read the marginal heading and the article together, the meaning to my mind is not clear. The Honourable Dr. B. R. Ambedkar : On that point there are two views. One is that the marginal note is not part of the section and the other view is that the marginal note is : for instance, Mr. Mavalankar, when he was in Bombay, held the view that the marginal note was not part of the section, but the present Speaker of the Bombay Assembly recently said that the marginal note was very much part of the section as it gives the key to the meaning of the section. [Two amendments were negatived. Article 101 was added to the Constitution.] ***** ARTICLE 102 *The Honourable Dr. B. R. Ambedkar : Mr. President, Sir, my friend, Pandit Kunzru, has raised some fundamental objections to the provisions contained in this article 102. He said in the course of his speech that we were really reproducing the provisions contained in the Government of India Act, 1935, which were condemned by all parties in this country. It seems to me that my friend. Pandit Kunzru, has not borne in mind that there are in the Government of India Act, 1935, two different provisions. One set of provisions is contained in section 42 of the Government of India Act and the other is contained in section * CAD, Vol. VIII, 23rd May 1949, pp. 213-17. 580 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

43. The provisions contained in section 43 conferred upon the Governor-General the power to promulgate ordinances which he felt necessary to discharge the functions that were imposed upon him by the Constitution and which he was required to discharge in his discretion and individual judgment. In the ordinances which the Governor-General had the power to promulgate under section 43, the legislature was completely excluded. He could do anything—whatever he liked—which he thought was necessary for the discharge of his special functions. The other point is this; that the ordinances promulgated by the Governor-General under section 43 could be promulgated by him even when the legislature was in session. He was a parallel legislative authority under the provisions of section 43. It would be seen that the present article 102 does not contain any of the provisions which were contained in section 43 of the Government of India Act. The President, therefore, does not possess any independent power of legislation such as the powers possessed by the Governor-General under Section 43. He is not entitled under this article to promulgate ordinances when the legislature is in session. All that we are doing is to continue the powers given under Section 42 to the Governor-General to the President under the provisions of article 102. They relate to such period when the legislature is in recess, not in session. It is only then that the provisions contained in article 102 could be invoked. The provisions contained in article 102 do not confer upon him any power which the Central Legislature itself does not possess, because he has no special responsibility, he has no discretion and he has no individual judgment. Consequently, my submission is that the argument which was profounded by my friend, Pandit Kunzru, went a great deal beyond the provisions of article 102. If I may say so, this article is somewhat analogous—I am using very cautious language—to the provisions contained in the British Emergency Powers Act, 1920. Under that Act also, the King is entitled to issue a proclamation, and when a proclamation was issued, the executive was entitled to issue regulations to deal with any matter, and this was permitted to be done when Parliament was not in session. My submission to the House is that it is not difficult to imagine cases where the powers conferred by the ordinary law existing at any particular moment may be deficient to deal with a situation which may suddenly and immediately arise. What is 581DRAFT CONSTITUTION

the executive to do ? The executive has got a new situation arisen, which it must deal with Ex hypothesi it has not got the power to deal with that in the existing code of law. The emergency must be dealt with, and it seems to me that the only solution is to confer upon the President the power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law because, again Ex hypothesi, the legislature is not in session. Therefore, it seems to me that fundamentally there is no objection to the provisions contained in article 102. The point was made by my friend, Mr. Pocker, in his amendment No. 1796, whereby he urged that such an ordinance should not deprive any citizen of his fundamental right of personal liberty except on conviction after trial by a competent court of law. Now, so far as his amendment is concerned,. I think he has not read clause (3) of article 102. Clause (3) of article 102 lays down that any law made by the President under the provisions of article 102 shall be subject to the same limitations as a law made by the legislature by the ordinary process. Now, any law made in the ordinary process by the legislature is made subject to the provisions contained in the Fundamental Rights articles of this Draft Constitution. That being so, any law made under the provisions of article 102 would also be automatically subject to the provisions relating to fundamental rights of citizens, and any such law therefore will not be able to over-ride those provisions and there is no need for any provision as was suggested by my friend, Mr. Pocker, in his amendment No. 1796. The amendment suggested by my friend, Mr. Kamath, i.e., 1793, seems to me rather purposeless. Suppose one House is in session and the other is not. If a situation as I have suggested arises, then the provisions of article 102 are necessary because according to this Constitution, no law can be passed by a single House. Both Houses must participate in the legislation. Therefore the presence of one House really does not satisfy the situation at all. Shri H. V. Kamath : Does it mean that when one House only is in session, say, the House of the People, the President will still have this power ? The Honourable Dr. B. R. Ambekdar : Yes, the power can be exercised because the framework for passing law in the ordinary process does not exist. Shri H. V. Kamath : Shameful, I should say. 582 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES