Vol. 13 · pages 616–620

The Honourable Dr. B. R. Ambedkar : Now, I come to the other question raised by my friend, Mr. Kunzru, in his amendment No. 1802. His suggestion is that such legislation enacted by the President under article 102 should automatically come to an end at the end of thirty days from the promulgation of the ordinance. The provision contained in the draft article is that it shall continue for six weeks after the meeting of Parliament. Now, the reason why my friend. Pandit Kunzru, has brought in his amendment is this; he says that under the provisions contained in the draft article, a much longer period might elapse than six weeks, because he thinks that the executive may take, say, a month or two for summoning Parliament. If Parliament is summoned, say in four months, then the six weeks also might be there—that would be practicable—or it might be longer if the Executive delays the summoning of the Parliament. Well, I do not know what exactly may happen, but my point is this that the fear which my Honourable friend Pandit Kunzru has is really unfounded, because we have provided in another article 69, which says that six months shall not elapse between two sessions of the Parliament, and I believe, that owing to the exigencies of parliamentary business, there will be more frequent sessions of the Parliament than Honourable Members at present are inclined to believe. Therefore, I say, having regard to article 69, having regard to the exigencies of business, having regard to the necessity of the government of the day to maintain the confidence of Parliament, I do not think that any such dilatory process will be permitted by the Executive of the day as to permit an ordinance promulgated under article 102 remain in operation for a period unduly long, and I, therefore, think that the provisions as they exist in the draft article might be permitted to remain. Shri H. V. Kamath : Mr. President, Sir, may I ask one last question ? Is it not repugnant to our ideas or conceptions of freedom and democracy, which are, I pressume. Dr. Ambedkar’s also, not to lay down the maximum life of an ordinance in this article ? The Honourable Dr. B. R. Ambedkar : My own feeling is this that a concrete reason for the sentiment of hostility which has been expressed by my honourable friend, Mr. Kamath as well as my honourable friend Mr. Kunzru, really arises by the unfortunate heading of chapter “ Legislative powers of the President ”. It ought to be “ Power to legislate when Parliament is not in session”. I think if that sort of 583DRAFT CONSTITUTION

innocuous heading was given to the chapter, much of the resentment to this provision will die down. Yes. The word ‘Ordinance’ is a bad word, but if Mr. Kamath with his fertile imagination can suggest a better word, I will be the first person to accept it. I do not like the word “ordinance”, but I cannot find any other word to substitute it. Mr. President : There is another amendment which has been moved by Sardar Hukam Singh in which he says that the President may promulgate ordinances after consultation with his Council of Ministers. The Honourable Dr. B. R. Ambedkar : I am very grateful to you for reminding me about this. The point is that that amendment is unnecessary, because the President could not act, will not act except on the advice of the Ministers. Mr. President : Where is the provision in the draft Constitution which binds the President to act in accordance with the advice of the Ministers ? The Honourable Dr. H. R. Ambedkar : I am sure that there is a provision, and the provision is that there shall be a Council of Ministers to aid and advise the President in the exercise of his functions. Mr. President : Since we are having this written Constitution, we must have that clearly put somewhere. The Honourable Dr. B. R. Ambedkar : Though I cannot point it out just now, I am sure there is a provision. I think there is provision that the President will be bound to accept the advice of the Ministers. In fact, he cannot act without the advice of his Ministers. Some Honourable Members : Article 61 (1). Mr. President : It only lays down the duly of the Ministers, but it does not lay down the duty of the President to act in accordance with the advice given by the Ministers. It does not lay down that the President is bound to accept the advice. Is there any other provision in the Constitution ? We would not be able even to impeach him, because he will not be acting in violation of the Constitution if there is no provision. The Honourable Dr. B. R. Ambedkar : May I draw your attention to article 61, which deals with the exercise of the President’s junctions. He can not exercise any of his functions, unless he has got the advice, ‘ in the exercise of his functions. It is not merely to ‘ aid and advise ’. “ In the exercise of his functions ” those are the most important words. 584 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

Mr. President : I have my doubts if this word could bind the President. It only lays down that there shall be a council of ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. It does not say that the President will be bound to accept that advice. The Honourable Dr. B. R. Ambedkar : If he does not accept the advice of the existing ministry, he shall have to find some other body of ministers to advise him. He will never be able to act independently of ministers. Mr. President : Is there any real difficulty in providing somewhere that the President will be bound by the advice of the ministers. The Honourable Dr. B. R. Ambedkar : We are doing that. If I may say so, there is a provision in the Instrument of Instructions. Mr. President : I have considered that also. The Honourable Dr. B. R. Ambedkar : Paragraph 3 reads : In all matters within the scope of the executive power of the Union, the President shall, in the exercise of the powers conferred upon him, be guided by the advice of his ministers. We propose to make some amendment to that. Mr. President : You want to change that. As it is, it lays down that the President will be guided by the ministers in the exercise of executive powers of the Union and not in its legislative power. The Honourable Dr. B. R. Ambedkar : Article 61 follows almost literally various other constitutions and the Presidents have always understood that that language means that they must accept the advice. If there is any difficulty, it will certainly be remedied by suitable amendment. Shri H. V. Kamath : You will be leaving this article silent on the subject of the maximum life of an ordinance which can extend to seven and a half months. It is impossible. Mr. President : is Mr. Kamath going to make a second speech on his amendment. The Honourable Dr. B. R. Ambedkar : Our President is quite different from the President of the United Stales. [All 6 amendments were rejected. Article 102 was added to the Constitution.] 585DRAFT CONSTITUTION

***** *The Honourable Dr. B. R. Ambedkar : Sir, I move : “ That in the heading to Chapter IV of Part V, for the words ‘ federal Judicature ’ the words ‘ Union Judiciary ’ be substituted.” This is merely consequential to the earlier article where India has been described as a Union. The amendment was adopted. ARTICLE 102-A ***** Mr. President : It is eight O’clock now. I think we had better close the discussion. Shri Brajeshwar Prasad : (Bihar : General) : May I have one minute of the lime of the House to speak on this motion. Mr. President : I think the House is not willing to hear further speaches now. The Honourable Dr. B. R. Ambedkar : Sir, I do not think any reply is necessary. If I may say so. it was rather unfortunate that Professor Shah should have moved this amendment. This matter was discussed in great detail when we were discussing the directive principles of State Policy. I do not therefore see why this matter was raised again and why there was a debate. The matter had been partically concluded in article 39-A. Mr. President : I will now put the amendment to vote. [The amendment was negatived.] ARTICLE 103 ‡The Honourable Dr. B. R. Ambedkar : (Bombay : General): Mr. President, Sir, I move: “That in clause (1) of article 103, for the words ‘ and such number of other judges not being less than seven, as Parliament may by law prescribe ’ the words ‘ and until Parliament by law prescribes a larger number, of seven other judges ’ be substituted.” The object of this amendment is that the constitution of the Supreme Court should not be held over until Parliament by law prescribes the number of Judges. The amendment lays down that seven Judges will constitute the Supreme Court. ***** #The Honourable Dr. B. R. Ambedkar : Sir, I move : “ That in Explanation II to clause (3) after the words ‘ judicial office ’ the words ‘ not inferior to that of a district judge ’ be inserted.” * CAD. Vol. VIII. 23rd May 1949. p.218. † Ibid, p. 227. ‡ Ibid 24th May 1949. p. 230. # Ibid., pp. 242-43. 586 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

I also move : “ That in clause (4) of article 103. for the words ‘ supported by not less than twothirds of the members present and voting has been presented to the President by both Houses of Parliament’ the words ‘ by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President’ be substituted ”. Mr. President : There is an amendment to this amendment by Dr. Bakshi Tek Chand, of which he has given notice. It is No. 101 in the printed pamphlet containing the amendments to amendments. The amendment was not moved. ***** *Mr. President : Amendment No. 1857 is a verbal amendment. Amendment No. 1858 stands in the name of Professor K. T. Shah. Is not that covered by the words ‘ incapacity and misbehaviour ’ ? Prof. K.T. Shah : I would accept it if you think that they are covered. I do not move it. ***** Mr. President : ...Amendment No. 1862 stands in the name of Dr. B. R. Ambedkar. That is also a formal amendment to substitute for the words “a declaration” the words “an affirmation or oath”. We have made similar changes whereever that expression occurs in other parts of the draft Constitution. I take it that it is moved. The Honourable Dr. B. R. Ambedkar : Sir, I formally move : “ That in clause (6) of article 103, for the words * a declaration ‘ the words ’ an affirmation or oath ‘ be substituted.’” ***** †Mr. President : ...Dr. Ambedkar, would you like to say anything about the amendments. The Honourable Dr. B. R. Ambedkar : Mr. President, Sir, I am prepared to accept two amendments. One of them is No. 1829 moved by Mr. Santhanam, and the other is No. 1845, moved by Mr. Kamath, by which he proposes that even a jurist may be appointed as a Judge of the Supreme Court. But with regard to Mr. Kamath’s amendment No. 1845, I should like to make one reservation, and it is this. I am not yet determined in my own mind whether the word “ distinguished ” is the proper word in the context. It has been suggested to me that the word “ eminent ” might be more suitable. But as I said, I am not in a position to make up my mind on this subject; and I would, therefore, like to make this reservation in favour of the Drafting Committee, that the Drafting Committee should be at liberty when it revises the Constitution, to say * CAD. Vol. VIII 24th May 1949 : p. 244. † Ibid pp. 257-60. 587DRAFT CONSTITUTION