Vol. 13 · pages 736–740

703DRAFT CONSTITUTION I think it is a matter which is within the purview of the Election Commission, because under (e) disqualifications might arise by reason of any corruption or any un-professional practice that a candidate may have engaged himself in and which may have been made a matter of disqualification by the Electoral Law. Shri L. Krishnaswami Bharathi : Cannot the Election Commission make the necessary enquiries ? The Honourable Dr. B. R. Ambedkar : There is no question of making any enquiry here. To ascertain whether a man is an undischarged insolvent no enquiry is necessary. Therefore my submission is that while clause (2) of article 167-A is right, it ought to be confined to circumstances falling within sub-clause (e) of article 167.I would therefore with your permission propose to amend clause (2) thus : “Before giving any decision on any question relating to disqualifications arising under sub-clause (e) of clause (1) of the last preceding article, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.” Mr. President : As I read the amendment proposed by Shri T. T. Krishnamachari, it seems to me that it does not contemplate a case which has happened before the election or during the election. It contemplates cases arising after the election where a man after becoming a member of the legislature incurrs certain disqualifications. These will be dealt with by the Election Commission. The Honourable Dr. B. R. Ambedkar : What happens is that, after filing a petition, the Commission may find a candidate guilty of certain offences during the course of the election, after the election has taken place and the member has taken his seat. Mr. President : Is not the Election Commission entitled to deal with such cases ? The Honourable Dr. B. R. Ambedkar : Yes, but what happens is that a man as soon as he is elected is entitled to take his seat on taking the oath or making the affirmation. He does so and subsequently his rival files an election petition and he is dislodged on the finding of the Court that he has committed offences under the Election Act. That would also come under (e). After a man has taken his seat…….. Mr. President: It seems to me that there are two kinds of disqualifications. A member may have incurred certain disqualifications before he became a member or during the course of the election. The election tribunal will be entitled to deal with such cases.

704 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES The Honourable Dr. B. R. Ambedkar : That would depend upon what sort of procedure we lay down at a later stage. Mr. President: But a man may become subject to a disqualification after taking his seat in the House. The Honourable Dr. B. R. Ambedkar : That is what (e) provides for. Mr. President : Then other disqualification may also come in. He might become unsound in mind and might be declared as such or he might become an undischarged insolvent. The Honourable Dr. B. R. Ambedkar : Those are dealt with here. They are all about sitting members. Shri L. Krishnaswami Bharathi : Please read the amendment. The Honourable Dr. B. R. Ambedkar : There are two sorts of disqualifications : disqualifications which are attached to the candidature as such, namely, that such and such persons who are disqualified shall not stand for election. Then, after they are chosen, certain persons shall not sit in the House if they incur the disqualifications in 167. Let us not confuse the two things. The Honourable Shri K. Santhanam : Both are covered by 167-A. The Honourable Dr. B. R. Ambedkar : That may be so. Let me explain. It all depends on what kind of procedure we adopt. If we adopt the procedure that whether a candidate is qualified for election-or not shall be treated as a preliminary issue, that will not be a disqualification under article 167. If on the other hand we have the procedure, which we now have, that every question relating to election, including the question whether a candidate is a qualified candidate or not, can be taken up, then article 167 will apply. My intention as well as the intention of the Drafting Committee is to make a provision permitting the Election Commission to dispose of certain preliminary questions so that the election issue may be fought only on the question whether the election was properly conducted or not. Today we have the things lumped together. * * * * * Mr. President: Then Mr. T. T. Krishnamachari’s amendment. “That for amendment No. 2441 of the List of Amendments, the following be substituted :— “That after article 167, the following new article be inserted :— Decision on questions as to disqualification of memebers. 167-A. (1) If any question arises to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of the last preceding article, the question shall be referred for the decision of the Governor and his decision shall final. (2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.” The amendment was adopted. New Article 167-A was added to the Constitution.

705DRAFT CONSTITUTION [Article 167-A, as amended by Dr. Ambedkar’s amendment was added to the Constitution.] * * * * * ARTICLE 203 *Mr. President : We take up 203. The Honourable Dr. B. R. Ambedkar : It is to be held over. Shri T. T. Krishnamachari : 203 (2) (b)—there is the question of whether the particular sub-clause should be retained or modified. We require some time and we might be ready with it tomorrow. * * * * * NEW ARTICLE 209-A † Mr. President : There are certain new articles proposed, No. 209-A. The Honourable Dr. B. R. Ambedkar : 209-A is to be held over. Mr. President : Mr. Shibban Lal Saksena has given notice of one. Prof. Shibban Lal Saksena : That also may be held over. * * * * * ARTICLE 203 ‡The Honourable Dr. B. R. Ambedkar (Bombay : General) : Mr. President, Sir, I move : “That in article 203, for the marginal heading, the following be substituted :— ‘Power of superintendence over all courts by the High Court’.” I also move: “That in clause (2) of article 203, before the words ‘The High Court may’, the words ‘Without prejudice to the generality of the foregoing provisions’, be inserted.” I further move: “That with reference to amendment No. 2664 of the List of Amendments— (i) in clause (1) of article 203, after the words ‘all courts ‘the words ‘and tribunals ‘be inserted; (ii) in clause (2) of article 203, sub-clause (b) be omitted.” * * * * * Amendments were adopted. * * * * * [Article 203, as amended by the above amendments was added to the Constitution.] * * * * * ARTICLE 270 * * * * * #The Honourable Dr. B. R. Ambedkar : Sir, I move : “That with reference to amendments Nos. 2975 and 2976 of the List of amendments, in article 270, for the words ‘assets and liabilities’ the words ‘assets, liabilities and obligations’ be substituted.” *CAD, Vol. VIII, 14th June 1949, p. 873. †Ibid., p. 873. ‡Ibid., 15th June 1949, p. 875. #Ibid, p. 877.

706 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Now, as regards the amendment moved by Mr. Naziruddin Ahmad, may I say that he has evidently forgotten that we are using the words “Government of India” to indicate the Government that will come into existence under the new Constitution, while the “Government of the Dominion of India” is a term which is being used to indicate the Government at the present moment. Consequently, if his amendment is accepted, it would mean that the Government of India is succeeding to the liabilities, obligations and assets of the Government of India. It would make absurd reading. Therefore the words as they are there, are very appropriate and ought to be retained. The Honourable Shri K. Santhanam (Madras : General) : I am afraid we are passing tills article in a hurry. As it has been our attempt to bring the Indian States into line with the provinces, we are here simply providing that the old provinces will be continued while no such provision is made for the States. The Honourable Dr. B, R. Ambedkar : What is your amendment ? The Honourable Shri K. Santhanam : I am not moving any amendment.... * * * * * *The Honourable Dr. B. R. Ambedkar : Mr. President, Sir, I did not think that this article would raise so much debate as it has in fact done, and I therefore feel it necessary to say a few words in order to remove any misapprehension or doubts and difficulties to which reference has been made. The first question that is asked is, why is it necessary to have article 270 at all in the Constitution ? The reply to that, is a very simple one. Honourable Members will remember that before the Act of 1935 the assets and liabilities and the properties belonging to the Government of India were vested in a Corporation called the Secretary of Statein-Council. It was the Secretary of State-in-Council which held all the revenues of India, the properties of India and was liable to all the obligations that were contracted on behalf of the Government of India. The Government of India before 1935 was a unitary Government. There was no such thing as properties belonging to the Government of India and properties belonging to the Provinces. They were all held by that single Corporation which was called the Secretary of State-in-Council which was liable to be sued and had the right to sue. The Government of India Act, 1935 made a very significant change, viz., it divided the assets and *CAD, Vol. VIII, 15th June 1949, pp. 883-85

707DRAFT CONSTITUTION liabilities held by the Secretary of State-in-Council on behalf of the Government of India into two parts—assets and liabilities, which were apportioned and set apart for the Government of India and the assets and liabilities and properties which were set apart for the Provinces. It is true that as the Secretary of State had not completely relinquished his control over the Government of India, the properties so divided between the Government of India on the one hand and the different Provinces on the other were said in the Government of India Act, Section 172 which is the relevant section, that they shall he held by His Majesty for the Government of India and they shall also he held by His Majesty for the different Provinces. But apart from that the fact is this, that the liabilities, assets and properties were divided and assigned to the different units and to the Government of India at the Centre. Now let us understand what we are doing by the passing of this Constitution, What we are doing by the passing of this Constitution is to abrogate and repeal the Government of India Act, 1935. As you will see in the Schedule of Acts repealed, the Government of India Act, 1935 is mentioned. Obviously when you are repealing the Government of India Act which makes a provision with regard to assets and liabilities and properties, you must say somewhere in this Constitution that notwithstanding the repeal of the Government of India Act, such assets as belong to the different Provinces do belong notwithstanding the repeal of the Government of India Act to those Provinces. Otherwise what would happen is this, that there would be no provision at all with regard to the assets and liabilities once the Government of India Act 1935 is repealed. In fact we are doing no more than what we commonly do when we repeal an Act that notwithstanding the repeal of certain Acts, the acts done will remain therein. It is the same sort of thing. What this article 270 practically says is that notwithstanding the repeal of the Government of India Act, 1935, the assets and liabilities of the different units and the Central Government will continue as before. In other words they will be the successor of the former Government of India and the former Provinces as existed and constituted by the Act of 1935. I hope the House will now understand why it is necessary to have tins clause. Now I come to the other question which has been raised that this article 270 does not make any reference to the liabilities and assets and properties of the Indian States. Now, there are two matters to be distinguished. First,