Vol. 13 · pages 646–650

613DRAFT CONSTITUTION Sir, I move : “That in clause (2) of article 135, for the words or position of emolument’ the words ‘of profit’ be substituted.” Shri H. V. Kamath : (C. P. Berar: General): Mr. President, I move : “That in clause (3) of article 135 the words “the Governor shall have an official residence, and” be deleted.” Mr. President : “There” also must be deleted. Shri H. V. Kamath: “There” will remain……….I do not know which constitution has given inspiration to Dr. Ambedkar and his collegues of the Drafting Committee. An Honourable Member : Irish constitution. The Honourable Dr. B. R. Ambedkar : We have passed article 48 exactly in the same terms with reference to the President. Here, we are merely following article 48. ***** (All amendments of Dr. Ambedkar were accepted. Other rejected.) ***** [Article 135 as amended was adopted and added to the Constituted.] *Mr. President: There is notice of an amendment by Professor Shah suggesting the addition of a new article after article 135. The Honourable Dr. B. R. Ambedkar : Before we go to the next amendment I would like to suggest that in article 135, the word “elected” be dropped. Mr. President: That is understood. ARTICLE 136 †The Honourable Dr. B. R. Ambedkar : Sir, I move : “That in article 136 for the words ‘in the presence of the members of the Legislature of the State’ the words ‘in the presence of the Chief Justice or, in his absence, any other judge of the High Court exercising jurisdiction in relation to the State’ be substituted.” ***** Mr. President : As amendments Nos. 2107, 2108 and 2109 are not, I understand, being moved, does Dr. Ambedkar wish to make any reply to the amendments moved ? The Honourable Dr. B. R. Ambedkar : Sir, I accept the amendment moved by Shri T. T. Krishnamachari and also the one moved by my friend Mr. Kamath. *CAD, Vol. VIII, 31st May l948, p. 482. † Ibid p. 484.

614 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (The amendments which were accepted by Dr. Ambedkar were as under :) “That for amendment No. 2104 of the List of Amendments, the following be substituted :— “That in article 136, for the words ‘in the presence of the members of the Legislature of the State’ the words ‘in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the State or, in his absence the seniormost judge of that Court available’ be substituted’.” “That for amendment No. 2106 of the List of Amendments, the following be substituted :— “That in article 136, for the words ‘I, A, B., do solemnly affirm (or swear)’ the following be substituted :— swear in the name of God""I, A, B, do solemnly affirm Pandit Hirday Nath Kunzana : (United Provinces ; General): How does the oath read ? Is it, “I do swear in the name of God, or I do solemnly affirm.” or not ? The question is this : Some people may think that the Governor should take the in the name of God. There may however be people in this country who are athiests. (Interruption). (Mr. President read out the oath.) I see that there is an alternative. That is what I wanted to know. Nobody should be compelled to swear in the name of God if he does not want to do so. Mr. President : No. no. The question is ; “That article 136, as amended, stand part of the Constitution.” (The motion was adopted.) ***** Article 136, as amended, was added to the Constitution. Assembly then adjourned till Eight of the clock on Wednesday, the 1st June, 1949. ARTICLE 137 *Mr. President : We begin with article 137 today. There is an amendment to this of which notice has been given by Mr. Brajeshwar Prasad, but that is a negative one. (Amendment No. 2111 was not moved.) Shri T. T. Krishnamachari (Madras: General) : This article cannot be moved in view of the decision that has been made earlier. Shri Brajeshwar Prasad (Bihar : General) : It must be put to the vote of the House. The Honourable Dr. B. R. Ambedkar (Bombay : General) : It may be put to the vote. Mr. President : None of the other amendments is going to be moved, I take it. [Article 137 was deleted from the Constitution] ***** * CAD, Vol. VIII, 1st June 1948, p. 487.

615DRAFT CONSTITUTION ARTICLE 143 *The Honourable Dr. B. R. Ambedkar : Mr. President, Sir, I did not think that it would have been necessary for me to speak and take part in this debate after what my friend, Mr. T. T. Krishnamachari, had said on tins amendment of Mr. Kamath, but as my Friend, Pandit Kunzru, pointedly asked me the question and demanded a reply, I thought that out of courtesy I should say a few words. Sir, the main and the crucial question is, should the Governor have discretionary powers? It is that question which is the main and the principal question. After we come to some decision on this question, the other question whether the words used in the last part of clause (1) of article 143 should be retained in that article or should be transferred somewhere else could be usefully considered. The first thing, therefore, that I propose to do is to devote myself to this question which, as I said, is the crucial question. It has been said in the course of the debate that the retention of discretionary power in the Governor is contrary to responsible government in the provinces. It has also been said that the retention of discretionary power in the Governor smells of the Government of India Act, 1935, which in the main was undemocratic. Now, speaking for myself, I have no doubt in my mind that the retention in on the vesting the Governor with certain discretionary powers is in no sense contrary to or in no sense a negation of responsible government. I do not wish to take up the point because on this point I can very well satisfy the House by reference to the provisions in the Constitution of Canada and the Constitution of Australia. I do not think anybody in this House would dispute that the Canadian system of government is not a fully responsible system of government, nor will anybody in this House challenge that the Australian Government is not a responsible form of government. Having said that. I would like to read section 55 of the Canadian Constitution. “Section 55.—Where a Bill passed by the Houses of Parliament is presented to the Governor-General for the Queen’s assent, he shall, according to his discretion and subject to provisions of this Act, either assent thereto in the Queen’s name or withhold the Queen’s assent or reserve the Bill for the signification of the Queen’s pleasure.” Pandit Hirday Nath Kunzru : May I ask Dr. Ambedkar when the British North America Act was passed ? The Honourable Dr. B. R. Ambedkar : That does not matter at all. The date of the Act does not matter. Shri H. V. Kamath : Nearly a century ago ! * CAD, Vol. VIII, 1st June, pp. 500-02.

616 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES The Honourable Dr. B. R. Ambedkar : This is my reply. The Canandians and the Australians have not found it necessary to delete this provision even at this stage. They are quite satisfied that the retention of this provision in section 55 of the Canadian Act is fully compatible with responsible government. If they had felt that this provision was not compatible with responsible government, they have even today, as Dominions, the fullest right to abrogate this provision, They have not done so. Therefore, in reply to Pandit Kunzru, I can very well say that the Canadians and the Australians do not think that such a provision is an infringement of responsible government. Shri Lokanath Misra (Orissa : General) : On a point of order, Sir, are we going to have the status of Canada or Australia ? Or are we going to have a Republican Constitution ? The Honourable Dr. B. R. Ambedkar : I could not follow what he said. If, as I hope, the House is satisfied that the existence of a provision vesting a certain amount of discretion in the Governor is not incompatible or inconsistent with responsible government, there can be no dispute that the retention of this clause is desirable and, in my judgment, necessary. The only question that arises is…….. Pandit Hirday Nath Kunzru : Well, Dr. Ambedkar has missed the point of the criticism altogether. The criticism is not that in article 175 some powers might not be given to the Governor, the criticism is against vesting the Governor with certain discretionary powers of a general nature in the article under discussion. The Honourable Dr. B. R. Ambedkar : I think he has misread the article. I am sorry I do not have the draft Constitution with me. “Except in so far as he is by or under this Constitution,” those are the words. If the words were “except whenever he thinks that he should exercise this power of discretion against the wishes or against the advice of the ministers,” then I think the criticism made by my honourable Friend Pandit Kunzru would have been valid. The clause is a very limited clause; it says : “except in so far as he is by or under this Constitution”. Therefore, article 143 will have to be read in conjunction with such other articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his ministers in any matter in which he finds he ought to disregard. There, I think, lies the fallacy of the argument of my honourable Friend, Pandit Kunzru. Therefore, as I said, having stated that there is nothing incompatible with the retention of the discretionary power in the Governor in specified cases with the system of responsible Government. The only question

617DRAFT CONSTITUTION that arises is, how should we provide for the mention of this discretionary power ? It seems to me that there are three ways by which this could be done. One way is to omit the words from article 143 as my honourable Friend, Pandit Kunzru, and others desire and to add to such articles as 175, or 188 or such other provisions which the House may hereafter introduce, vesting the Governor with the discretionary power, saying notwithstanding article 143, the Governor shall have this or that power. The other way would be to say in article 143 “that except as provided in articles so and so specifically mentioned—articles 175, 188. 2(H) or whatever they are”. But the point I am trying to submit to the House is that the House cannot escape from mentioning in some manner that the Governor shall have discretion. Now the matter which seems to find some kind of favour with my honourable Friend, Pandit Kunzru and those who have spoken in the same way is that the words should be omitted from here and should be transferred somewhere else or that the specific articles should be mentioned in article 143. It seems to me that this is a mere method of drafting. There is no question of substance and no question of principle. I personally myself would be quite willing to amend the last portion of clause (I) of article 143 if I knew at this stage what are the provisions that this Constituent Assembly proposes to make with regard to the vesting of the Governor with discretionary power. My difficulty is that we have not as yet come either to article 175 or 188 nor have we exhausted all the possibilities of other provisions being made, vesting the Governor with discretionary power. If I knew that. I would very readily agree to amend article 143 and to mention the specific article, but that cannot be done now. Therefore, my submission is that no wrong could be done if the words as they stand in article 143 remain as they are. They are certainly not inconsistent. Shri H. V. Kamath : Is there no material difference between article 61(1) relating to the President vis-a-vis his ministers and this article ? The Honourable Dr. B. R. Ambedkar : Of course there is, because we do not want to vest the President with any discretionary power. Because the provincial Governments are required to work in subordination to the Central Government and therefore, in order to see that they do act in subordination to the Central Government the Governor will reserve certain things in order to give the President the opportunity to see that the rules under which the provincial Governments are supposed to act according to the Constitution or in subordination to the Central Government are observed.