Vol. 15 · pages 381–385

364 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES the States shall have the exclusive power to make laws in relation to any entry in List II, which means that Parliament shall not have the power to make laws with regard to any item in List II. If Members of this House would refer to List II, they will notice that Entry 1 in that List refers to public order. Public order is one of the categories of heads of legislation which we are introducing for the first time in clause (2) of article 19, by this amending Bill. It is therefore quite clear that if you were to give Parliament power to make law in respect of public order which is included in List II, and which according to article 246(3) confers exclusive legislative jurisdiction upon the States, then it is obvious that such an amendment would require the ratification of the States. Now the intention of the Government as well as of this House, I think on this point is quite clear, namely, that we do not propose to make any amendment to any clause which would require the assent or the ratification of the States. From that point of view, I think, all those who have tabled this amendment would agree that it is not possible to accept that amendment without involving this particular Bill in a great difficulty which it would not be possible for this House to overcome within the time within which we propose to carry through this measure. As the Prime Minister said yesterday, all of us have sympathy with the proposal, namely, that if it were possible Parliament should be given the power to legislate. We have also sympathy with the suggestion that the President may have the right to give his assent before the Bill becomes law. But the question that has to be considered is, is such a thing necessary ? Is it not contained in the very provisions of the Constitution ? Now, let me refer hon. Members to the heads of legislation we are introducing in the present clause and the place, they have in the various entries in Schedule Seven. Take the security of the State. There is no particular entry of this nature—security of State—for the simple reason that the security of the State can be affected by a variety of entries and the power is necessarily distributed under different heads. At the same time hon. Members will see that entry 1 of List

365PARLIAMENTARY DEBATES 1 is a very relevant entry so far as the security of the State is concerned. Take the second head—friendly relations with foreign States. That is covered by entries 9, 10 and 14 in List 1. Take the third head—public order, decency and morality. That is in entry 1 in List II. Dr. S. P. Mookerjee: What entry? Dr. Ambedkar: It is entry 1 in List II to some extent. And so far as newspapers, books etc. are concerned it is also related to entry 39 in List III. Contempt of court comes in entry 95 in List I and also in entry 14 in List III. Defamation is in entry 1 in List III. Incitement to an offence is in entry 1 in List III. Now having had this information before the House, I think the House will understand that in the large majority of the cases since the entry either falls in List I or in List III, Parliament has in some cases the exclusive authority to make law, in some cases concurrent authority to make them. Dr. S. P. Mookerjee: Will the Hon. Minister be more specific ? Where is the concurrent power to pass laws regarding public order ? Dr. Ambedkar: With regard to public order, there is another entry—39 in List III—which speaks of books and newspapers. Newspapers are very much concerned. Dr. S. P. Mookerjee: The Hon. Minister is arguing that with regard to certain matters—in fact with regard to all the matters either Parliament has concurrent jurisdiction or has exclusive jurisdiction. I would like him to be more specific. Dr. Ambedkar: I am giving the entries. Dr. S. P. Mookrjee: Public order? Dr. Ambedkar: The large head for public order is entry 1 in List II. Newspapers may also come under public order. Dr. S. P. Mookerjee: It is not. Dr. Ambedkar: The point is this. Some law has to be related to some entry. How is the authority of Parliament or the authority of a State to be determined to make a law ?

366 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Dr. S. P. Mookrjee: Will the Hon. Minister admit that Parliament has no concurrent jurisdiction in respect of laws relating to public order except newspapers ? Let us have it clearly. Dr. Ambedkar: Yes. Mr. Deputy Speaker: The Hon. Minister does not say that every item is in the Concurrent List. Dr. Ambedkar: A large majority of them is exclusively in the jurisdiction of Parliament and in some cases the jurisdiction is also concurrent. Therefore my submission to the House is this—that nothing is necessary for the purpose of investing Parliament to make a law in the fields which are mentioned here as exclusive right of legislation. Parliament has, in certain cases, got also concurrent power so that it can check any abuse that the Provincial Legislatures may make of the power that we are conferring. Dr. S. P. Mookerjee: What is the power regarding incitement to offence under the Concurrent List ? Dr. Ambedkar: It comes under the Penal Code. Incitement to offence is a specific offence in the Penal Code. Dr. S. P. Mookerjee: The Hon. Minister should read to the House entry 1 of……. Dr. Ambedkar : I cannot yield to him just like he did not yield to the Hon. Home Minister. This is not a lecture room and I am not lecturing to the students either. I am making my point. If my hon. friend wants an exposition we can meet somewhere in the Constitution Club—and I shall be prepared to lecture to him. Mr. Deputy Speaker: All that I can say is the hon. Member contends that entry 1 in List II—State List—only relates to public order and this is not covered. Incitement to offence is in the Penal Code. If he is not satisfied, he can draw his own inferences. Dr. Ambedkar: It is open to you to say that this does not cover public order.

367PARLIAMENTARY DEBATES Mr. Deputy Speaker: All that the Hon. Minister wants to show is that with respect to the majority of the offences, they are either in the Union List or in the Concurrent List. The minority may be more important than the majority. Dr. S. P. Mookerjee: The Hon. Minister stated that incitement to offence comes under entry 1 in the Concurrent List but that item reads like this : “Criminal law, including all matters included in the Indian Penal Code at the commencement of the Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power ”. Dr. Ambedkar: I will not give in. I would like to finish my speech before one o’clock ………. Dr. S. P. Mookerjee: It means that there will be no incitement to any offence which comes under public order in List II………….. Dr. Ambedkar: I am not running away from that point. I am very much interested in it. Dr. S. P. Mookrjee: I know you are. Dr. Ambedkar: Yes, I am. I now come to the President’s assent. Under article 200 of the Constitution the Governors or the Rajpramukhs of the different States are empowered to withhold their assent from any particular Bill and refer it to the President. That provision already exists. Naturally the Governor has to act on the advice of his Minister and if he felt that a measure should be reserved for the consideration of the President, the power is already there. No new power is required. But it may be argued that this power is in a sense nugatory, because it depends upon the advice given to him by the Ministry and the Ministry which has been a party to a measure cannot be expected to give their advice to the Governor to refer the matter to the President. There is also another article 254 which deals with the laws in the concurrent field and that article says that if there is any inconsistency between any law made by Parliament and a similar law on the same subject made by a State Legislature,

368 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES then to the extent of the repugnancy and inconsistency the law of the State shall be void. There is in addition to that a further provision in clause (2) of that article that if such a law, which is inconsistant with the law made by Parliament on the subject, is reserved for the assent of the President and the President gives his assent, notwithstanding the repugnancy the law shall remain void so far as that State is concerned. So far as our experience in the Law Ministry goes almost every State has got the fear that their law may be declared to be inconsistent and hence void. In order to prevent this contingency the States have always taken the safest course to refer all these measures to the President for his consideration and assent and his assent has generally been given either in the form in which the Bill stands or with some modifications. Therefore my submission is that so far as the Constitution is concerned articles 200 and 254(2) contain enough safeguards to see that such measures do reach the President and receive his consideration and assent. Shrimati Durgabai : Under what procedure ? Dr. Ambedkar: I was just referring to it. Under article 254(2)………….. Shrimati Durgabai : How ? Dr. Ambedkar: I know some people have got a bee in their bonnet. On all these three counts I submit that all these amendments are quite unnecessary. I propose to deal with some of the points raised by my friend Pandit Kunzru. So far as his amendment dealing with change of words is concerned, his words I suppose are merely poetical alliterations and I do not think there is any substance in them, whether you call it friendly relations or by some other words : the substance and the head of legislation remaining what it is. I am therefore not prepared to spend my time in dealing with them. But he has been making a great deal of capital with regard to the American case which he can never forget namely Near versus Minnesota. It is true that the U. S. Supreme Court