Z.H.

Lari
Date : the date on which the re – enactor is to speak
Number : the serial no. At which the re – enactor is to speak

Volume 7
8 November 1948
th

11 Mr. Vice-President, Sir, before making my submissions on the draft Constitution, I would
like to lodge a protest. The Constituent Assembly refrained from taking any decision as to the
language question, and had postponed its consideration to a future stage. But the Drafting
Committee, of its own accord, inserted a clause laving down that Hindi and English shall be
the languages for transacting the business of the House. In today's paper I saw a report that
the Muslim members from the United Provinces and Bihar have agreed that Hindi with
Devanagari script shall be the official language. I therefore think it necessary to repudiate that
statement at the very outset, and say clearly that we stand for Hindustani written in either
script as the national language of our motherland. So far as English is concerned, I think it is
necessary to retain it for some years to enable those who are not acquainted with Hindustani
to be able to take an effective part in the discussions in the House. An Honourable Member
from Madras was right when he said that there should be no linguistic imperialism. For that
reason, Hindustani written in either script along with English should be the languages used
for transacting the business of the House.
12 Coming to the Draft Constitution, which is primarily intended to usher in a democratic
secular republic, we have to see how far the contents, the form and the spirit of the provisions
contained therein are calculated to promote the Objectives Resolution unanimously adopted
by this House and universally acclaimed by the country. To assess the provisions of the Draft
Constitution, we have to see how far the Draft Constitution ensures the inherent rights of
man, rights without which life is not worth living, how far the provisions safeguard against
possible prostitution of democratic forms for totalitarianism, how far the provisions ensure
justice if not generosity for the minorities and lastly, how far they ensure the independent
development of the various national elements in the country. In order to assess the value of
the provisions, we have to bear in mind two things: firstly, certain admissions made by the
honourable Mover of the Resolution, I mean the Honourable Dr. Ambedkar, and secondly our
experience of the working of democracy in the last fifteen months after the attainment of
independence. When the House adopted resolutions which are the basis of the Draft
Constitution, we had no such experience before us; but now we have. The first admission that
the honourable Mover made was, and I will use his own words: "Democracy in India is only
a top-dressing on Indians oil, which is essentially undemocratic"..... "It is wiser not trust the
legislatures to prescribe forms of administration." With respect, I say he is mainly right.
14 Iwould like to point out in this connection the various Security Acts which have been
passed by the various legislatures, particularly the Safety Act in one province which even
excluded the right to move the High Courts under section 491 of the Criminal Procedure
Code. The second admission that he made is: "Constitutional morality is not a natural
sentiment. It has to be cultivated. We must realise that our people have yet to learn it."
15 I say not only the people but even our Governments have to learn it. To prove this I will
cite only two instances. The House will remember that in Calcutta - in Bengal - the High
Court was seized of a case and had appointed a full Bench to decide as to what is the effect of
the word reasonable' in an enactment dealing with Government's power to arrest and detain.
The Bench was to meet only next day but the Government came out with an Ordinance laying
down that the word 'reasonable' shall be held to have been deleted. No doubt, as the High
Court remarked in that case 'His Excellency the Governor of the Province' was fully within
his rights to enact an Ordinance but it was against constitutional morality.' The second
instance which I would place before the House is that the head of an autonomous institution -
I mean the Aligarh University - was only the other day asked to quit and give place to another
man although that head had the confidence of the University Court and of the community to
which the institution appertains. I say therefore in assessing the value of the provisions we
have to keep in view these two admissions made by the Honourable Minister, as well as the
recent working of the democracies during the last fifteen months.
16 Now the first requirement of a citizen is there must be security of life and there must be
safeguard of liberty. This august House when considering the Draft Fundamental Rights laid
down that nobody should be deprived of life and liberty except in accordance with due
process of law. Now those words have been substituted by the words 'procedure established
by law'. That absolutely nullifies the intention of those of personal liberty and life "in
accordance with procedure" it becomes open to the legislature to frame any legislation
affecting life and liberty. That nullifies the very intention. Therefore the substitution of the
original clause is absolutely essential. In the Introduction to the Draft Constitution reference
is made to the Japanese and Irish Constitutions but those responsible for those constitutions
had laid down the procedure itself. For instance it is laid down there that everybody arrested
shall have the right to be given the cause of arrest and he will have the right to get it
adjudicated by courts. Therefore so far as Japanese and Irish Constitutions are concerned,
they have laid down the procedure and after laying down the procedure, the Constitution says
'Nobody can be deprived of life and liberty except in accordance with procedure as
established by law'. I submit that the examples of Ire land and Japan have no relevance.  
17 Next to individual liberty and life comes the sanctity of one's house. One's house has been
said to be a citadel, and it is of sanctity for him. In all democratic constitution you will find
that no searches or seizures can be made in the houses except on causes shown and on
complaints specifying the reason thereof and thing to be seized. Similar articles should appear
in our Constitution.
18 The next necessity of the individual is the right to have elementary education. That is
singularly absent in the Fundamental Rights. In the Directive Principles of State Policy it is
contained that it shall be the endeavour of the State to provide elementary education. My
submission would be that is absolutely insufficient. What is necessary is that it should be the
duty of the State to provide elementary education and such a provision should exist in the
Constitution among the Fundamental articles.
19 Now I come to Article 13 which refers to freedom of speech, assembly or association.
These are conceded but have been hedged in by such provisos and conditions that they reduce
them to a nullity. I think addition of the words 'subject to reasonable requirements of public
order and morality' would be enough. The Honourable Mover said that in America these
rights have been circumscribed by judicial decisions, but when judicial decisions
circumscribing those rights are given, they are given out of necessities of State. I think the
addition of the words 'subject to reasonable requirements of public order and morality' would
do. I submit that Fundamental Rights as conceded in the Draft Constitution are indefinite,
insufficient and in certain particulars, vague.
20 The next item I would like to bring before you is this. The twin principles of democracy
are that everybody has a right to representation and the majority has the right to govern. The
electoral system, therefore, must be such as to ensure representation to everybody. This is the
significance of adult franchise but the method adopted, viz., that of single member
constituency really amounts to disenfranchisement of 49 per cent of the voters. It is possible
in a single member constituency to disenfranchise even a minority extending to 49 percent. I
am talking of political minority. Even political minorities are entitled to be represented in
representative institutions. Therefore the system which is laid down in this Constitution needs
revision. It may be said it prevails in England but this is why I drew the attention of the
House to certain basic facts to which the Honourable Mover has referred and I would say it
would be more advisable to follow the Irish, Swiss and now France in regard to introduction
of proportional representation by single transferable or cumulative voting. It may be said that
such system leads to multiplicity of parties. This has been in vogue for 25 years in Ireland
and everyone is aware that one party governed the country for more than fifteen years and
there had been not more than two parties. France had a plethora of parties even when there
was no proportional representation. It is better for us to adopt this principle which is more
progressive in instinct and which is really democratic.
21 Icome to another feature of the Constitution, viz., the Ordinance. There was a time when
we used to complain that Ordinance was the rule and legislature was hardly consulted. I may
here refer to the Father of the Nation who said: "Under the British rule the Viceroy could
issue Ordinance for making laws and executing them. There was a hue and cry against the
combination of legislative and executive functions. Nothing has happened to warrant a
change in our opinion. There should be no Ordinance rule. The Legislative Assemblies
should be the only Law makers". It is said when the Assembly is not meeting, an emergency
arises, and an Ordinance has to be promulgated. But there is no significance of time and
space and you can get an Assembly within two days and it is not at all difficult. Even if a
necessity existed, that has disappeared; and moreover what is its effect? Because of the use of
Ordinance-making powers the Assembly has become a rubber-stamp. In our province I know
there is hardly any legislation which is not preceded by an Ordinance and in a Parliamentary
Government where the Cabinet determines really the policy of the majority, once the Cabinet
has framed an Ordinance and it comes forward in the form of a legislation, it is impossible for
the major party to go back and therefore it is the Cabinet which determines the legislation. I
would accordingly submit that there is really no necessity of a provision requiring powers of
issuing Ordinance.
22 Then there is the contingency of emergency. No doubt an emergency clause should be
there. But such is the wide scope of the emergency as put in the Draft Constitution, that not
only actual violence, not only actual invasion as in the case of America, but threat of violence
is enough to warrant declaration of emergency. These features are dangerous and must be
eliminated.
23 I will now come to that portion of the draft which deals with minority rights. In dealing
with these rights the first thing that has to be seen is reservation of seats. That is the one
unique feature of the Constitution - that a minority is said to be safeguarded by means of
reservation of seats, without ensuring that the minority concerned has any right or voice in
determining its representative. This is meaningless and even deceptive. The only means of
safeguarding minorities is by adopting the system of proportional representation. A writer in
the Round Table of March 1948 referring to this system and its working in Ireland said that
this solved the question of reconciling justice to minorities with the necessities of a stable
Government.
24 Then I come to the Services. What a strange contrast - In the Legislature you have got
statutory reservations where they are meaningless, but when you come to the Services it is
merely said their claims shall be considered. This is a very pious wish. The experience of the
last fifteen months in the United Provinces and in other provinces has shown that mere pious
wishes are not enough. There must be statutory reservations. Take away the reservation from
the Legislature and for God's sake give us reservation in the Services. Here I speak not only
for the Muslims of the United Provinces but also for other minority people. You concede
reservations to Anglo-Indians but you deny it to the Muslims. Why this discrimination? Take
the situation in the United Provinces. If you peruse the results of the last twelve months there,
hardly five per cent of the Muslims have been taken in the services. I say if you take into
account their discharges and dismissals it will be 75 percent., but if you take new recruitment
- it is hardly 5 per cent.
26 My friend wants me to follow in the footsteps of Pakistan. I am not going to do so.
28 I
have not mortgaged my rights to Pakistan. I stand here as a citizen of India. What
Pakistan does or does not do is not my concern.
31 We never said that Muslims in these parts are going to migrate to Pakistan. We are the
children of the soil and as such we claim the rights of citizens of India.
33 Interruptions only show how uncharitable and how undemocratic are these.........
35 I Submit to the order. I was saying that my time was very short.
37 Give me two minutes more please.
38 Now there is the question of the Cabinet. I admit there can be no statutory representation
there. In a parliamentary system of Government it is inconceivable. But you have to consider
whether, after introducing proportional representation, it is not proper for us to go back to the
Presidential system. In that case it will be possible to have the election of the Cabinet on the
Swiss system. But in the present set-up of the Constitution I admit that statutory reservation is
impossible and the best that could be done has been done.
39 Lastly, I would beg of this House to consider that there must be some provision which
should recognise the existence of an opposition in the Legislature. Of late since the Socialists
seceded from the Congress, there have been utterances from responsible men indicating that
the majority party - I do not say this is a confirmed opinion - are not very charitably disposed
towards such an opposition. Just as it is in South Africa, or in England or in other countries,
the position of the Leader of the Opposition should be accepted, and the one means of
accepting is that it should be provided that he should be also granted a salary as in other
countries. We know that in the system that is coming, men like myself have no chance to
come back. Therefore, it is not in our interest but in the interests of democracy that there
should be a proper Opposition which is constructive and charged with a duty to the country,
and the motherland, and this can be assured only when you give a status to it in the
Constitution itself.
40 Inotice that in the further amendments provided by the Drafting Committee, there is a
suggestion for the appointment of an Advisory Committee to advise the President and there
the position of the Leader of the Opposition has been recognised. But his position should be
recognised even in the Constitution for the Union and for the States.
41 With these few submissions I conclude. I have made references to certain admissions
by Dr. Ambedkar but all the same I have faith in the goodness of my countrymen and in the
catholic spirit of those who inhabit this motherland, and I hope that they will rise to the
occasion, and now that the critical phase has passed, now that passions have subsided, they
will be more realistic and more conciliatory so that there may be an even balance in the
country between the majority and the minority, not only theoretically but actually, so that we
may concentrate on making India great.

23rd November 1948

72 Sir,
on a point of order. Can any person be allowed to address the House unless he
formally moves a motion?
77 He says, it reads thus. He has not moved his amendment.

24th November 1948

151 Mr. Vice-President, I appreciate the sentiments of those who want protection of the cow -
may be on religious grounds or maybe in the interests of agriculture in this country. I have
come here not to oppose or support any of the amendments but to request the House to make
the position quite clear and not to leave the matter in any ambiguity or doubt. The House, at
the same time, must appreciate that Mussalmans of India have been, and are, under the
impression that they can, without violence to the principles which govern the State, sacrifice
cows and other animals on the occasion of Bakrid. It is for the majority to decide one way or
the other. We are not here to obstruct the attitude that the majority community is going to
adopt. But let there not linger an idea in the mind of the Muslim public that they can do one
thing, though in fact they are not expected to do that. The result has been, as I know in my
own Province on the occasion of the last Bakrid, so many orders under Section 144 in various
places, districts and cities. The consequence has been the arrests of many, molestation of
even more, and imprisonment of some. Therefore, if the House is of the opinion that
slaughter of cows should be prohibited, let it be prohibited in clear, definite and unambiguous
words. I do not want that there should be a show that you could have this thing although
the intention may be otherwise. My own submission to this House is that it is better to come
forward and incorporate a clause in Fundamental Rights that cow slaughter is henceforth
prohibited, rather than it being left vague in the Directive Principles, leaving it open to
Provincial Governments to adopt it one way or the other, and even without adopting definite
legislation to resort to emergency powers under the Criminal Procedure. In the interests of
good-will in the country and of cordial relations between the different communities I submit
that this is the proper occasion when the majority should express itself clearly and definitely.
152 I for one can say that this is a matter on which we will not stand in the way of the
majority if the majority wants to proceed in a certain way, whatever may be our inclinations.
We feel - we know that our religion does not necessarily say that you must sacrifice cow: it
permits it. The question is whether, considering the sentiments that you have, considering the
regard which the majority have for certain classes of animals, do they or do they not permit
the minority - not a right - but a privilege or a permission which it at present has? I cannot put
it higher. I won't class it as interference with my religion. But I do not want that my liberty
should be taken away, and especially the peaceful celebration of any festival should be
marred by the promulgation of orders under Section 144. I have come only to plead that.
Therefore, let the leaders of the majority community here and now make it clear and not
leave it to the back-benchers to come forward and deliver sermons one way or the other. Let
those who guide the destinies of the country, make or mar them, say definitely "this is our
view", and we will submit to it. We are not going to violate it. This is the only thing I have
come to say. I hope you will not misunderstand me when I say this. It is not due to anger,
malice or resentment but it is out of regard for cordial relations between the communities, and
what is more, due to the necessity of having a clear mind that I say this. Henceforward the
Muslim minority must know where they stand so that they may act accordingly, and there be
no occasion for any misunderstanding between the majority and the Muslims on this point.
153 In view of what I have said, I would not oppose nor support any of the amendments, but I
would invite a very clear and definite rule instead of the vague phraseology of the clauses
which have been put forward. It proceeds to say that we should have modern and scientific
agriculture. Modern and scientific agriculture will mean mechanisation and so many other
things. The preceding portion of the clause speaking about modern and scientific agriculture
and the subsequent portion banning slaughter of cattle do not fit in with each other. I
appreciate the sentiments of another member who said "this is our sentiment, and it is out of
that sentiment that we want this article". Let that article be there, but for God's sake, postpone
the discussion of the article and bring it in clear, definite and unambiguous terms so that we
may know where we stand and thereafter there should be no occasion for any
misunderstanding between the two communities on this issue which does not affect religion
but affects practices which obtain in the country.

6th November 1948

184 Yes, Sir.

240 Mr. Vice-President, the last speaker who has spoken on this article has drawn the attention of
the House to dangers to the State which are likely to arise if the article as it stands is amended by
the amendment No.528 or 530. I have not got that experience which the learned speaker has but
with the little knowledge of the working of the Legislatures during the last ten years, I can say that it
is necessary not only in the interest of individual liberty but in the interest of proper working of
legislatures that such a clause as due process of law clause should find a place in the Constitution. It
is open to that speaker at the fag end of his life as a lawyer to have a fling at the profession of law
but I can say that assistance of lawyers is absolutely essential to secure justice.

242 I stand corrected.

243 I feel that two things are necessary. We all know that the State, these days, is all-powerful. Its
coercive processes extend to the utmost limits but still there is a phase of life which must be above
the processes of Executive Government, and that is individual liberty. In America no such word as
`personal' existed. There the word liberty alone existed and possibly in that state of things, it was
possible to interpret it in such a way as to extend the scope of due process of law to other spheres of
life but when the word `personal liberty' has been definitely inserted in the clause, I doubt whether
any Court which is conscious of the requirements of a State as well as conscious of the necessities of
individual liberty, will be so uncharitable to the interest of the State as to interpret it in a way to
thwart the proper working of the State. My friend admitted that in the latter rulings in America itself
there has been a recognition of the necessities of the State and the word has been interpreted in
such a way as not to obstruct the proper working of the State. My submission would be that in this
land our Supreme Court will recognise the limits of individual liberty as well as the necessities of the
State and interpret it in such a way as to ensure individual liberty of a man.

245 My friend is right; and the only reason which was given by the Drafting Committee of which the
honourable Speaker who preceded me was a member also, was that the words `due process of law'
is not specific and the word as was used in the Japanese Constitution is more specific. No doubt the
words as they stand in the Japanese Constitution are specific because the procedure is indicated and
definitely laid down there. What is the essence of the due process of law? I think they are two. First
is, enquiry before you condemn a man. And then there is judgment after trial. If any procedure
which is adopted by any legislature provides for the hearing of a person who is suspected or is
accused, and then after a proper hearing, enables him to get the benefit of a judgment based on that
enquiry, my submission is, that the requirements of the due process of law are complied with. And I
would beg of the House to consider whether in any country, however emergent and however
unstable its conditions, is it necessary or is it not necessary that every individual citizen should feel
that he will be heard before he is condemned, and that he will be dealt with in the light of the
judgment based on the enquiries and not be subject to arbitrary detention? The House will also
remember that lately there was the question of drafting human rights, and already such a draft has
been prepared. And one of the clauses therein is that nobody should be subjected to arbitrary
detention. Now, what is the way to prevent arbitrary detention? If you have the words in this clause,
as they stand at present, namely, `procedure established by law' it means that the legislature is all-
powerful and whatever procedure is deemed proper under the circumstances will be binding upon
the courts. But, Sir, there are certain procedures which are the inherent rights of man and the
should not be infringed upon by any legislative Assembly. Men as well as assemblies, or any mass of
people are subject to passing emotions, and you will realise that in the present state of things,
particularly keeping in view the constitution that we are going to have, namely, a parliamentary
government, the legislature is controlled by a Cabinet, which means by the executive. You have also
the provisions about having ordinances which means that the cabinet--a body consisting of eight to
ten persons--decide upon a particular course of action, issue as an ordinance, and, the legislature
then has to approve of it, otherwise it would amount to a vote of censure. Therefore the legislature
in the last analysis means only the cabinet or the executive and nothing but the executive. The
question before us is whether you are going to give such powers to the Executive which can infringe
even the elementary rights of a person, the elementary rights of personal liberty, or whether you
should not put certain checks on the executive which can be done only if you accept the amendment
which has been moved by a Congress member, i.e., amendment No. 528. My amendment No. 530 is
exactly similar.

246 My friend who spoke on the other side gave instances of legislation in the British period, of
rights which were curtailed, and of innocent persons jailed. But I submit with all humility, that every
legislature and every government is liable to do such things which the British Government did. You
cannot excuse excess of law simply because those excesses are committed by a popularly elected
legislature. That is why there are two domains, one is the domain of individual liberty, and the other
domain is where the State comes in to regulate our life. What do you leave to the State? You leave
to the State everything except personal liberty. As to stability of the State my submission would be
that if there are classes or communities which are prone to violence, there are sufficient provisions
in this Constitution to deal with them--they are in article [Link], the State can come in and curtail
the liberty of such persons, and even nullify their activities. What can an individual do? If there are
parties which have got objectives which run counter to the stability of the State, you have already
got enough provisions where-by the State can declare those bodies unlawful. But this particular
clause deals with a very small sphere of action, namely, personal liberty. My submission is that our
State is not so weak as to be subverted by the activities of a particular individual, and mark that, that
individual will not have the liberty to do everything. He can be brought before a court. He can be
judged in a court of law; no doubt, he will have the assistance of counsel and the Government will
have the obligation to produce evidence against him. Does this amount to curtailing the powers of
the State? Does this amount to subverting the State? Does it amount to annihilating the State? With
all respect to the previous speaker, I feel he took a very uncharitable view of the citizens of our
State, and took a still more uncharitable view of the strength of the State which will emerge after the
promulgation of the new Constitution. No doubt, we have to go by realities. We have to take into
consideration stern facts. But I may remind the House of one thing. In America, this clause is
accepted and is reproduced in the Japanese Constitution. You know the Americans have been
responsible for framing the Japanese Constitution. A constitution for a fascist country, a country
where individuals are prone to violence--they wanted to overthrow the peace of the world--when
they were drafting a constitution for such a country, composed of such citizens, they laid down
clauses 31, 32, 33 and 34 which say that nobody shall be denied access to courts, nobody shall be
arrested unless causes are shown against him, and nobody shall be denied the privilege of the
assistance of counsel. May I say that if the framers of this latest constitution, based on experience
and knowing the nature of the people living in Japan, who are not a very peace-loving people as was
demonstrated in the last war, have accepted these provisions, that means that these provisions have
stood the test of time and have safeguarded the liberty of the individual and also guaranteed the
integrity of the state. There are two things by which we have to go. One is experience of others. No
doubt, every clause can be criticised in one way or other. But we have to be guided by experience.
Here is the experience of other countries, and this has shown that the words `due process of law'
can exist without jeopardising the existence of the State. Secondly, we know that not only here, but
throughout the world every assembly is likely to misuse its power. It is bound to happen. Power
corrupts. We should profit by the experience of other countries and by what has been observed for
centuries. Or should we go by the ipse dixit of X, Y, Z who says that there seems to be some germ of
disruption in this clause? My submission is that it is only making a bogey out of nothing. We should
not be led away by this bogey into accepting this clause. If this clause is accepted, then the whole
Constitution becomes lifeless. The article, as it stands, is lifeless and it makes also the whole
Constitution lifeless. Unless you accept this amendment, you would not earn the gratitude of future
generations. Therefore, Sir, I pray that this motion which has been supported by several members
should be accepted.

247 With these words, Sir, I support the amendment.

9th December 1948

19 Then what about article 15, Sir?