Vol. 15 · pages 356–360

339PARLIAMENTARY DEBATES we are in the midst of a paradox; we have Fundamental Rights, we have limitations imposed upon them, and yet the Supreme Court and the High Courts say. “You shall not have any further limitations upon the Fundamental Rights.” Now comes the question ; how does this result come to be ? And here I come to the canons of interpretation which have been adopted in the United States and by the Supreme Court and High Courts in our country. As hon. Members who are familiar with the growth of the Constitution of the United States will know, although the Constitution of the United States is a bundle of bare bones, the United States Supreme Court has clothed it with flesh and muscle so that it has got the firmness of body and agillity which a human being requires. How has this happened ? This has happened because the U.S. Supreme Court, although it was the first Court in the world which was called upon to reconcile the Fundamental Rights of the citizen with the interests of the State, after a great deal of pioneering work came upon two fixed principles of the Constitution. One is that every State possesses what is called in the United States “police power”, a doctrine which means that the State has a right to protect itself whether the Constitution gives such a right expressly or not. The “police power” is an inherent thing just as our Courts have inherent powers, in certain circumstances, to do justice. It is as a result of this doctrine of “police power” that the United. States Supreme Court has been able to evolve certain limitations upon the Fundamental Rights of the United States citizens. The second doctrine which the United States Supreme Court developed and which it applied for purposes of interpreting the Constitution is known as the doctrine of “implied powers”. According to the decisions of the Supreme Court if any particular authority has been given a certain power, then it must be presumed that it has got other powers to fulfil that power and if those powers are not given expressly then the Supreme Court of the United States is prepared to presume that they are implied in the Constitution. Now, what is the attitude which the Supreme Court has taken in this country in interpreting our Constitution ? The

340 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Supreme Court has said that they will not recognise the doctrine of the “police power” which is prevalent in the United States. I do not wish to take the time of the House in reading the judgments of the Supreme Court, but those who are interested in it may find this matter dealt with in the case known as Chiranjit Lal Chowdhuri versus the Union of India otherwise known as the Sholapur Mills case. You find the judgment of Mr. Justice Mukherjee expressly rejecting this doctrine which in the text of the judgment which I have, occurs on page 15. They say they will not apply this doctrine. The reason why the Judges of the Supreme Court do not propose to adopt the doctrine of “police power” is this, so far as I am able to understand, that the Constitution has enumerated specifically the heads in clause (2) under which Parliament can lay restrictions on the Fundamental Right as to the freedom of speech and expression and that as Parliament has expressly laid down the heads under which these limitations should exist, they themselves now will not add to any of the heads which are mentioned in clause (2). That is in sum and substance, the construction that you will find in the case of Thaper’s judgment which was delivered by Mr. Justice Patanjali Sastri. He has said that they will not enlarge it and therefore as the Constitution itself does not authorise Parliament to make a law for purposes of public order “according to them Parliament has no capacity to do it and they will not invest Parliament with any such authority. In the case on the Press Emergency Laws also they have said the same thing—that in clause (2) there is no head permitting Parliament to make any limitations in the interests of preventing incitement to an offence. Since section 4 of the Press (Emergency Powers) Act provides for punishment for incitement to the commitment of any offence, Parliament has no authority to do it. That is the general line of argument which the Supreme Court Judges have adopted in interpreting the Constitution. With regard to the doctrine of implied powers, they have also more or less taken the same view. Personally myself, I take the view that there is ample scope for recognising the

341PARLIAMENTARY DEBATES doctrine of implied powers, and I think our Directive Principles are nothing else than a series of provisions which contain implicitly in them the doctrine of implied powers. I find that these Directive Principles are made a matter of fun both by judges and by lawyers appearing before them. Article 37 of the Directive Principles has been made a butt of ridicule. Article 37 says that these Directives are not justiciable that no one would be entitled to file a suit against the Government for the purpose of what we call specific performance. I admit that is so. But I respectfully submit that that is not the way of disposing of the Directive Principles. What are the Directive Principles ? The Directive Principles are nothing but obligations imposed by the Constitution upon the various Governments in this country—that they shall do certain things, although it says that if they faill to do them, no one will have the right to call for specific performance. But the fact that there are obligations of the Government, I think, stands unimpeached. My submission is this; that if these are the obligations of the State, how can the State discharge these obligations unless it undertakes legislation to give effect to them ? And if the statement of obligations necessitates the imposition and enactment of laws, it is obvious that all these fundamental principles of Directive Policy imply that the State with regard to the matters mentioned in these Directive Principles has the implied power to make a law. Therefore, my contention is this, that so far as the doctrine of implied powers is concerned, there is ample authority in the Constitution itself to permit Parliament to make registration, although it will not be specifically covered by the provisions contained in the Part on Fundamental Rights. Dr. S. P. Mookerjee (West Bengal): Even though they may become inconsistent with the provisions of the Constitution ? Dr. Ambedkar: That is a different matter. Shri Kamath: That is a vital matter. Dr. Ambedkar: What I am saying is this that the various provisos attached to the various fundamental articles need

342 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES not be interpreted as though they were matters of strait-jacket as if nothing else is permissible. Shri Kamath: You yourself made it. Dr. Ambedkar: The point that I was trying to make to the House is that on account of the declaration by the Supreme Court that this Parliament has no capacity to make a law in certain heads, the question before the House is this : can we allow the situation to remain as it is, as created by the judgments, or we must endow Parliament with the authority to make a law ? At this stage I do want to make a distinction and I do so for the special reason that Dr. Mookerjee came and said that we were taking away the freedom which people enjoyed. I think it is necessary to make a distinction between the capacity to make a law and the enactment of a particular law. All these matters as to whether a particular law encroaches upon the freedom of the people is a matter which can be discussed when the law is being made. Today we are not dealing with a law ; we are only dealing with the capacity of Parliament to make a law. [SHRIMATI DURGABAI in the chair ] Dr. S. P. Mookerjee : May I ask one question with regard to this point that you are only asking Parliament to endow you with power to make a law ? But according to the changes which have been proposed, all the laws which were invalidated will become valid retrospectively. Dr. Ambedkar: I know that is a point on which my friend Pandit Bhargava laid great stress and it would be very wrong on my part to leave it unexplained. Dr. S. P. Mookerjee : And the much-hated emergency laws will become good laws. Dr. Ambedkar: It is not quite so. Shri Kamath: Almost; Dr. Ambedkar: So far I have dealt with two heads, namely, public order and the incitement to an offence. There

343PARLIAMENTARY DEBATES remains the third category, namely friendly relations. We have at present on our statute book a law enacted in 1932 dealing with friendly relations with the foreign States. It is true that that law has not come for any adjudication before High Courts or the Supreme Court and it has so far not been declared to be ultra vires. But the fact remains that in view of rules of interpretation adopted by the Supreme court that nothing is within the capacity of Parliament unless that particular head of legislation is mentioned in clause (2) and as “friendly relations with foreign States” is not mentioned in clause (2) I do not think it requires an astrologer to predict that when that question comes before the judiciary they will follow the same line of interpretation. Shri Kamath: Dr. Ambedkar is quite enough for the purpose. Dr. Ambedkar: And it is for that reason that we have thought it necessary to include in the new heads this head of friendly relations with foreign states. My friend Dr. Mookerjee asked whether there was any country where such a law prevailed. Well, I have searched for a precedent and I can tell him that I find no country which has not such a law. In the case of England it is a rule of Common law. No statutory law is necessary. The Common Law is operative not only in England but in all the Dominions. Therefore that same rule prevails there. In fact, the common Law rule has been amended and made more stringent by a statutory provision in Canada. Pandit Kunzru (Uttar Pradesh): Will my hon. Friend explain a little more the position in England ? Dr. Ambedkar: Yes, I will. I do not know—I must leave some time for the Prime Minister. Hon. Members: Take your own time. Dr. Ambedkar: There is some confusion. I think, in the minds of the people……………. Dr. S. P. Mookerjee: And the framers of the Bill.