Vol. 13 · pages 771–775

738 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES first place, as regards the principle for which he is fighting, namely, that the rights of a judge to his salary and pension once he is appointed have accured to him and shall not be liable to be changed by Parliament by any law that Parliament may like to make with regard to that particular matter. I think, so far as my new article is concerned, I have placed that matter outside the jurisdiction of Parliament. Parliament, no doubt, has been given the power from time to time to make laws for changing allowances, pensions etc., but it has been provided in the article that that shall apply only to new judges and shall not affect the old judges if that is adverse to the rights that have already accrued. Therefore, so far as the principle is concerned for which he is fighting, that principle has already been embodied in this article. From another point of view, his amendment seems to be quite objectionable and the reason for this is as follows. As everybody knows pensions have a definite relation to salary and the number of years that a judge has served. To say, as my honourable Friend, Pandit Kunzru suggests, that the Supreme Court judges should get a pension not less than the pension to which each one of them would be entitled in pursuance of the rules that were applicable to judges of the Federal Court, seems to presume that the Federal Court judge if he is appointed a judge of the Supreme Court shall continue to get the same salary that he is getting. Otherwise that would be a breach of the principle that pensions are regulated by the salary and the number of years that a man has put in. We have not yet come to any conclusion as to whether the Federal Court Judges should continue to get the same salary that they are getting when they are appointed to the Supreme Court. That matter, as I said, has not been decided and I doubt very much (I may say in anticipation) whether it will be possible for the Drafting Committee to advocate any such distinction as to salary between existing judges and new judges. The amendment, therefore, is premature. If the House accepts the proposition for which my honourable Friend, Pandit Kunzru is contending that the Federal Court Judges should continue to get the same salary, then probably there might be some reason in suggesting this sort of amendment that he has moved. At the present moment, I submit it is quite unnecessary and it is impossible to accept it because it seeks to establish a pension on the basis that the existing salary will be continued which is a proposition not yet accepted by the House.

739DRAFT CONSTITUTION Shri R. K. Sidhwa : The Honourable Dr. Ambedkar has not answered my point as to how the Parliament is competent to give a furnished house to the Chief Justice. The Honourable Dr. B. R. Ambedkar : We are not rejecting it. Nothing is said about the furnished house. We shall discuss that. [The amendment of Pandit Kunzru was negatived and the motion moved by Dr. Ambedkar as shown before was accepted. Article 104, as amended was added to the Constitution.] NEW ARTICLE 148-A *The Honourable Dr. B. R. Ambedkar : Sir, I move : That after article 148, the following new article be inserted :— Abolition or creation of Legislative Councils to States “148A. (1) Notwithstanding anything contained in article 148 of this Constitution, Parliament may by law provide for the abolition of the Legislative Council of a State having such a Council, or for the creation of such a Council in a State having no such Council, if the Legislative Assembly of the State passes a resolution to that effect by a majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting. (2) Any law referred to in clause (1) of this article shall contain such provisions for the amendment of this Constitution as may be necessary to give effect to the provisions of the law and may also contain such incidental and consequential provisions as Parliament may deem necessary. (3) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purpose of article 304 thereof.” As honourable members will see, this new article 148A provides for two contingencies : (i) for the abolition of the Second Chamber in those province which will have a Second Chamber at the commencement of the Constitution and (ii) for the creation of a Legislative Council in a province which at the commencement of the Constitution has decided not to have a Legislative Council but may subsequently decide to have one. The provision of this article follow very closely the provisions contained in the Government of India Act, section 60, for the creation of the Legislative Council and section 308 which provides for the abolition. The procedure adopted here for the creation and abolition is that the matter is really left with the Lower Chamber, which by a resolution may recommend either of the two courses that it may decide upon. In order to facilitate any change made either in the abolition of * CAD, Vol. IX, dated 30th July 1949, pp. 13-14.

740 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES the Second Chamber or in the creation of a Second Chamber, provision is made that such a law shall not be deemed to be an amendment of the Constitution, in order to obviate the difficult procedure which has been provided in the Draft Constitution for the amendment of the Constitution. I commend this article to the House. * * * * * *The Honourable Dr. B. R. Ambedkar : I do not think any reply is called for. Mr. President : I shall now put the amendments to the vote. I shall take up Prof. Saksena’s amendment first and I shall put it in two parts. [3 Amendments were negatived, one was withdrawn and the motion of Dr. Ambedkar as mentioned above was adopted New article 148A was added to the Constitution.] ARTICLE 150 †The Honourable Dr. B. R. Ambedkar : Sir, I move : That for article 150. the following be substituted :— Composition of the Legislative Councils. “150 (1) The total number of members in the Legislative Council of a State having such a Council shall not exceed twenty-five per cent of the total number of members in the Assembly of the State : Provided that the total number of members in the Legislative Council of a State shall in no case be less than forty. (2) The allocation of seats in the Legislative Council of a State, the manner of choosing persons to fill those seats, the qualifications to be possessed for being so chosen and the qualification entitling persons to vote in the choice of any such persons shall be such as Parliament may by law prescribe.” The original article was modelled in part on article 60 of the first Draft of the Drafting Committee. Now, the House will remember that that article 60 of the original Draft related to the composition of the Upper Chamber at the Centre. For reasons, into which I need not go at the present stage, the House did not accept the principle embodied in the old article 60. That being so, the Drafting Committee felt that it would not be consistent to retain principle which has already been abandoned in the composition of the upper chamber for the Provinces. -That having been the resulting position, the Drafting Committee was presented with a problem to suggest an alternative. Now I must confess, that the Drafting Committee could not come to any definite conclusion * CAD, Vol. IX, dated 30th July 1949, p. 20 †Ibid., pp. 21-22.

741DRAFT CONSTITUTION as to the composition of the upper chamber. Consequently they decided—you might say that they merely decided to postpone the difficulty—to leave the matter to Parliament. At the present moment I do not think that the Drafting Committee could suggest any definite proposal for the adoption of the House, and therefore they have adopted what might be called the line of least resistance in proposing sub-clause (2) of article 150. That, as I said, also creates an anomaly, namely, that the Constitution prescribes that certain provinces shall have a second chamber, as is done in article 148-A, but leaves the matter of determining the composition of the second chamber to Parliament. These are, of course, anomalies. For the moment there is no method of resolving those anomalies, and I therefore request the House to accept, for the present, the proposals of the Drafting Committee as embodied in article 150 which I have moved. [Amendment No. 90 of List III (First Week) was not moved.] Shri H. V. Kamath : Sir, I move : “That in amendment No. 5 of List I (First Week) of Amendments to Amendments, in clause (2) of the proposed article 150, for the words ‘the qualifications to be possessed for being chosen’ the words ‘qualifications and disqualifications for membership of the Council’ be substituted.’ The House will see that on a previous occasion with regard to the election of members to the legislature of a State they adopted various articles in the relevant parts. I would invite the attention of the House to article 167 for instance, which lays down the disqualifications for membership of the State Assembly in addition to the qualifications which have gone before. In providing for representation in the upper chamber and election of members to this Council I do not see why this House should not with equal validity, equal reason and equal force lay down not merely the qualifications of members to be chosen to the upper chamber but also what the disqualifications should be. Article 167 lays down how under various circumstances a member is to be disqualified for being chosen as or being a member of the Assembly or the Council of a State. Therefore I do not see any reason why the same thing should not be explicitly stated in article 150 moved by Dr. Ambedkar. There is one other point about the article and that is this. The new amendment lays down that the strengthf of the Council shall not exceed one-fourth or 25 per cent of the total number of members in the lower

742 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES House. It also lays down further in a proviso, “Provided that the total number of members in a Legislative Council of a State shall in no case be less than forty.” How these two can be reconciled in particular cases passes my understanding. For instance, we have adopted article 148…… The Honourable Dr. B. R. Ambedkar : I would ask the honourable Member to read article 167 again. Shri H. V. Kamath : I am talking of the next point. The Honourable Dr. B. R. Ambedkar : What about the first point ? Do you favour it ? Shri H. V. Kamath : I do not favour it. Dr. Ambedkar says that article 167 lays down the disqualifications……. The Honourable Dr. B. R. Ambedkar : Both for the Assembly and the Council of States. * * * * * *Mr. Naziruddin Ahmad (West Bengal : Muslim) : ...This clause looked very simple and inoffensive and the effect was that the number of members of the Legislative Council shall not be more than 25 per cent. The Honourable Dr. B. R. Ambedkar : Sir, I rise on a point of Order. My Friend is criticisng a draft which is not before the House. “Mr. Naziruddin Ahmad : I was trying to show how this unsatisfactory state of affairs in today’s amendments arose. The Honourable Dr. B. R. Ambedkar : It is not before the Members. * * * * * †The Honourable Dr. B. R. Ambedkar : Sir, there are only two points of comment, which I think call for a reply. The one point of comment, that was made both by Mr. Kamath as well as by my Friend, Mr. Naziruddin Ahmad, was that according to the proposal now placed before the House, there is a certain amount of disproportion between the membership of the Upper House and the membership of the Lower House in certain provinces. He cited the instance. I believe, if I heard him correctly, that in the province of Orissa, the members of the Lower House, on the principles which we have laid down in article 149 of the Constitution, would be near about 60. Consequently, if the minimum for an Upper House was 40, in Orissa the Upper House would be disproportionate to the Lower House in strength. Now, I think my * CAD, Vol. IX, dated 30th July 1949, p. 27. †Ibid., pp. 35-37.