Vol. 15 · pages 376–380

359PARLIAMENTARY DEBATES Dr. Ambedkar: Now I come to articles 341 and 342. As the House knows, to-day the power of issuing scheduled castes and the scheduled tribes order so far as part A and Part B States are concerned is given only to the President while the power to issue such orders with regard to Part C States is given to Parliament. That position is now being altered and the power is given to President even to make an order with regard to scheduled castes and scheduled tribes in respect of Part C States also. Then article 372 invests the President with the power to make adaptation in existing laws in order to bring them in conformity with the provisions of the Constitution and that power is given only for two years. This House will remember on account of the pressure of other business it has not been possible for Government to examine all the existing laws in order to find out how many of them are inconsistent with the provisions of the Constitution. It is therefore felt that the President’s power to make such adaptation in the existing laws in order to bring them in conformity with the Constitution be extended by one more year so that means may be adopted in order to find out which laws are inconsistent and a consolidated order may be issued thereafter. Shri Kamath: The article also provides that once Parliament is elected under the new Constitution, the President shall not exercise this power. Dr. Ambedkar: If this article gives the power, then that of course overrides. Shri Kamath : How can that be ? Dr. Ambedkar: Then I come to article 376, clause 13. A good deal of objection was taken to this particular clause. It deals with the appointment of persons who are not citizens of India to the posts of Chief Justice and Judge of any High Court. The position is this. Article 217, clause (2) says that a Judge of the High Court must be a citizen of India. Article 376 provides that existing Judges including Judges who were not citizens on the date when the Constitution came into operation shall continue as Judges if they so choose. Now it

360 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES so happens that we have in our country some four High Court Judges who were on the date of the Constitution, Judges of Certain High Courts but were not citizens of India. They chose to remain at their posts and did not retire. We were therefore bound to carry them over under the provisions of article 376. A question has arisen and it is this. Can such a person be appointed as a Chief Justice either in the Court in which he is serving or in some other Court ? Another question that has arisen is this. Can such a Judge be transferred to another High Court, the point being whether the appointment of a Chief Justice or the transfer of a Judge from one High Court to another High court is a new appointment ? If it is a new appointment, obviously the provisions of article 217(2) would apply. This was felt as a great difficulty, because it could not be presumed that parliament intended merely to continue them but their prospects should be blocked. Such evidently was not the intention. Consequently the President under the powers vested in him under article 392, clause (1) for the purpose of removing difficulties, issued an order regularising the position. That order in some quarters has been questioned as being outside the power of the President, there being no defficulty whatsoever. In order to remove these doubts it is thought better to make a provision in the Constitution itself and that is why clause 13 is included in this Bill. Mr. Chairman: Will the Hon. Minister explain why was not originally the transfer contemplated ? Is it not a new situation created by this clause ? Dr. Ambedkar: That is what I interpret to be the intention of article 376 viz., that once they were carried over, they were carried over for all purposes, either transfer or promotion. But some people have found this difficulty …… Pandit Thakur Das Bhargava: The idea was that the Chief Justice shall not be a non-national. What is the reason now ?

361PARLIAMENTARY DEBATES Dr. Ambedkar: The reason is obvious. When you accept a man as a Judge you certainly accept him for your own convenience and you should be in a position to transfer him to some other court. For the benefit of and in fairness to that individual he should not be debarred from promotion. Pandit Thakur Das Bhargava: Would you like the Prime Minister of India to be a non-national ? Dr. Ambedkar ; We are dealing with these four exceptional cases. (Interruption). The provision is very clear and I do not think anybody can quarrel with it. I believe I have exhausted all the points raised in the course of the debate. If anything remains I shall be prepared to deal with it when the Bill is taken up clause by clause.

362 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES CONSTITUTION (1ST AMENDMENT) BILL 1951 *Shri Jawaharlal Nehru: …….. Now, it has become a convention—I cannot immediately say whether it is anything more and whether it is in the Constitution itself— that anything coming under the concurrent list of legislation, any law passed by a State Assembly, has to come up here for examination and for the President’s approval. Is that so ? An hon. Member : Not until this House has passed a law. The Minister of Law (Dr. Ambedkar): If it is inconsistant. An hon. Member: Not until this House passes a law. Shri Jawaharlal Nehru: What I mean was, if there is obvious repugnance then, of course, it does not come into effect. That is obvious. But in order to examine that there is no repugnance, in order to see that it is what the legislative lists contemplate, it comes up here of the President’s assent. Therefore, in effect …… Shri Bharati (Madras): Not necessarily, Shri Jawaharlal Nehru: I do not say it is necessary, in the sense that the law does not take effect. But I am told that it is practically automatic and anyhow it has been in practice automatic. And such laws have to come up here, every one of them, for they come up daily, first of all to the Home Ministry to examine and to the Law Ministry also to examine and it comes before the President to see whether he expresses his approval or not. So it can be taken for granted that, especially in a matter of this kind it must inevitably come. I go beyond that and if the House wishes I am perfectly willing to add that clause about the President’s assent to article 19. It is for the House to decide. * P. D., Vol 12, Part II, 31st May 1951, p. 9610.

363PARLIAMENTARY DEBATES *Dr. S. P. Mookherjee : ………. Before I take my seat, I once again request the Prime Minister to consider the main purpose of my two amendments with regard to the substitution of the word ‘Parliament’ in the place of ‘State’ or if that is not possible, at least to provide that the laws passed by the States in this behalf will be subject to the President’s assent. If that is done, it will, to a great extent, remove the difficulties which stand in our way. The Minister of Law (Dr. Ambedkar): My only excuse for intervening in this debate is to clear certain points which relate to the constitutional provisions which are necessarily involved in the amendments which have been tabled. In the first place, I propose to deal with the two amendments together : the first amendment is that Parliament should have the exclusive power to make laws under the provisions which are now being introduced in the proposed clause (2) of article 19 and the second is that, if that is not possible, the President should have the power to give his assent to any law made under this new proposed clause and unless that assent was given, that law should not be deemed to be valid. With regard to the question of bringing in Parliament, there are two aspects to the matter which, I think, it is desirable to consider carefully. One is this: Is it possible to give exclusive power to Parliament to make a law in a field which is covered by the new clause (2) ? On this matter, I should like to invite the attention of the House to article 368 which deals with the amendment of the Constitution. That article specifies certain classes of amendments to the articles “of the Constitution which would require the ratification of the States before the amendments could be deemed to have been validly passed. I do not propose to go over all the different categories that have been set out in article 368. I content myself by reference to only one and I refer to Chapter I of Part XL Article 368 says that if any article which forms part of Chapter I of Part XI is amended, then such an amendment will require the ratification of the State. It will be noticed that article 246 clause (3) falls in Chapter I of Part XI. That article says that * P. D., Vol 12, Part II, 1st June 1951, pp. 9861-69.