ಸಂವಿಧಾನ ರಚನಾ ಸಭೆಯಲ್ಲಿನ ಪ್ರಮುಖ ಚರ್ಚೆಗಳು ಮತ್ತು ತಿದ್ದುಪಡಿಗಳು - Constituent Assembly Debates and amendments

1. Debate on Untouchability

The Constituent Assembly Debate on Draft Article 11 (Article 17) started on 29th November 1948. Draft Article 11 was about the removal of Untouchability. The then Article 11 is Article 17 of the present Indian Constitution. Mr. Naziruddin Ahmad moved an amendment that –

“That for article 11, the following article be substituted

No one shall on account of his religion or caste be treated or regarded as an “untouchable”; and its observance in any form may be made punishable by law.”

   He moved the above amendment because the word “Untouchability” has no legal meaning. He clarified that the word “Untouchability” is not only applied for human beings but it is applied for a variety of things.

   The said amendment was negatived because the framers were not interested in substituting the above aspects.

 

   Mr. Muniswamy Pillai wanted the abolition of Untouchability. He wanted that the abolition of Untouchability must be included in Article 11 of the Constitution. Dr. Mono Mohan Das was of the opinion that the removal of Untouchability is an important fundamental right. At the same time, he explained that any sort of special privileges and safeguards must not be given to minority communities. According to him, the said Article was to save most of the people from humiliation and disgrace. Unlike other countries, he wanted the practice of Untouchability to be made a punishable crime under the Constitution. He explained his point of view by quoting the words of Mahatma Gandhi i.e. “I do not want to be reborn, but if I am reborn, I wish that I should be born as a Harijan, as an untouchable, so that I may lead a continuous struggle, a lifelong struggle against the oppressions and indignities that have been heaped upon these classes of people.” He further added that the word “Swaraj” will become meaningless as long as Untouchability is not abolished.

 

2. Debate on Federalism

One of the salient features of the Indian Constitution is that it lays down the structure of a federation just like various other western states. The exact nature of the federation of states that India has been is up for debate for a very long time. Federalism was also part of intense debate in the Constituent Assembly. JB Kriplani, who was the President at the historic Meerut Session, 1946 of the Indian National Congress, while outlining the proposed Constitution stated that it must be federal in character with maximum autonomy given to the states.

A trend towards centralization became more irresistible, with the core of the Indian problem being absent after the Partition. Yet, the Indian situation did not at all rule out the necessity of a federation as the composite and heterogeneous character of the Indian state was too real to be ignored. A federal structure of state with considerable autonomy for the provinces and regions was, therefore, historically imperative although the Union was certainly going to be much stronger than what had been anticipated by the Cabinet Mission.

• When Dr. Ambedkar presented the Draft Constitution to the Constituent Assembly, he described the Constitution proposed to be federal, even though the word used in Article 1 was Union and the word “federal” was never mentioned in the Preamble or any other provision. There was a fair consensus in the Assembly that in the view of the external conditions as well as the vastness of the country and its diverse elements, a unitary system was not only undesirable but also unworkable. India, therefore, was going to have a Federal Constitution. This view was carried by the members till the end, notwithstanding further centralizing elements introduced during the proceedings. After the Partition, the necessity of a strong centre was imperative and going back to a unitary system of governance was not an option.

 

Concept of Federalism

The concept of federalism did not go unnoticed by the Constituent Assembly. As with many other western political concepts such as republicanism, democracy, parliamentary form of government, the concept of federalism was also adopted in the discussions and later adopted by the drafters of the Constitution. The federal systems of the then U.S.S.R and the U.S. were being considered. In the U.S.S.R, for example, their diversity of races, languages, and cultures, the sprawling underdeveloped tracts, and their primitive areas of economic backwardness, had provided parallel examples of problems to be solved. But the dictatorial methods used by the Soviets and the monolithic ideology of communism impelled the non-dogmatic and democratic, Western inclined Indian leaders to copy more finely the federal scheme of the United States.

   With regard to the nature of a federal state, Mr. N. Gopalaswami Ayyangar proclaimed that one of the essential principles of a Federal Constitution is that it must provide for a method of dividing sovereign powers so that the Government at the Centre and the Governments in the Units are each within a defined sphere, co-ordinate and independent. He said that the orthodox definition of federalism as adopted by other constitutions was not rigidly followed as there was no clear demarcation between the functions of the centre and the states and that they had to be dependent on each other.

   This definition would not apply to the Indian context as they were facing problems which many of the constitution-makers who adopted federalism had not faced historically. The problem was to integrate and bring areas which were under the British Crown under one Federation.

   Dr. Ambedkar made it clear that only the President can exercise the power under Articles 250, 352 and 353 of the Constitution and this exercise requires the approval of both Houses of the Indian Parliament. He outlined this view when he opined thus: “These provisions make the Indian Constitution both ‘Unitary as well as Federal’ according to the requirements of time and circumstances. In normal times, it is framed to work as a federal system. But in times of war, it is so designed as to make it work as though it was a unitary system.”

 

India – A Union of States

According to Article 1 of the Constitution, India is a Union of States. As the Chairman of the Drafting Committee, Dr. Ambedkar was responsible for the word UNION being substituted for FEDERATION. The Drafting Committee stated that there were advantages in describing India as a “Union”, despite its Constitution being federal in structure. Reiterating this view in the Assembly, Dr. Ambedkar said that the Unitary Government of South Africa was called a Union and so it was not contrary to usage to describe India as a Union.

• Dr. Ambedkar clarified that though India was to be a Federation, the Federation was not the result of an agreement (or a contract) by the States to join a federation, and that the Federation, because of not being the result of an agreement, no State had the right to secede from it. The Federation was a Union because it was indissoluble.

   India will prosper only if all its states prosper. If there is discord between the Centre and the States, the strong foundations of federalism and democracy on which our country has thrived will start collapsing. What is yet to be seen is how successive governments deal with the problems of decentralization and demands for autonomy and statehood. There is hope for our polity to build on what the previous governments left behind and through this, we must create a legacy for the entire world to see, respect and admire.

 

3. Debate on Uniform Civil Code

Soon after independence, the question of the position of personal laws got embroiled into the muddy waters of national politics. On the floor of the Constituent Assembly, for about two years, the issue suffered convulsions owing to the utterances of progressive legislators, dissenting voices of the so-called conservative legislators, apprehensions stated by the spokesmen of the minority communities, and brickbats thrown from outside by law-men as well as laymen. The Constituent Assembly Debates in the constitution-making process revealed that the constitution makers debated the concept, relevance and utility of the Uniform Civil Code.

   The Muslim members of the Constituent Assembly opposed the move with all possible intensity at their command. In this background, the arguments for and a quest for the objective evaluation of the Uniform Civil Code, will not be out of place in India which is known for its religious, cultural and lingual diversities.

The Constituent Assembly had its first meeting in December 1946.

   The framers of the Constitution envisioned establishing a Sovereign Democratic Republic – ideas based on the ideas of justice, liberty, equality and fraternity. Later on, in 1976, the words ‘secularism’ and ‘socialism’ were added to the Preamble. Fundamental rights, especially regarding the right to freedom of religion, were designed in our Constitution before its commencement in 1950. Since then, in the Constituent Assembly as well as on every platform, a great deal of discussion on personal laws has taken place repeatedly. Even prior to the commencement of the Constitution much was debated in the Constituent Assembly for and against the personal laws.

  The Constituent Assembly debated the Uniform Civil Code under Article 35. Mohammad Ismail from Madras moved the following proviso for addition to Article 33 which provided that ‘any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law’. He advocated that the right to adhere to one’s own personal laws was one of the fundamental rights. He asserted that personal laws were a part of the way of life of the people. In his evaluation, personal laws were the part and parcel of religion and culture. Any interference with the personal laws, in his view, would tantamount to interference with the very way of life of those who had been observing such laws from generation to generation. He elucidated that India was emerging as a secular state and it must not do anything which hinders the religious and cultural ethos of the people. To strengthen his argument, he cited precedents of Yugoslavia, the Kingdom of Serbs, Croats and Slovenes which were obliged under treaty obligations to guarantee to Muslims being in minority in the matter of family laws and personal status. To enrich his arguments, he named similar protective clauses of other European constitutions which dealt with minorities. However, he pointed out that such clauses were narrow in scope as they dealt with any group, section or community of people and were not confined to minorities only.

   Mahboob Ali Beg emphasized that the civil code spoken of in Article 35 did not include family law and inheritance but since some people have doubts about it, it should be made clear by a proviso to assure that the civil code would cover the transfer of property, contract, etc., but not matters regulated by personal laws.

   M.A. Ayyangar, a member of the Constituent Assembly, intervened and remarked on it as a matter of contract. Ayyangar tried to put his argument forcefully and asserted that the matrimonial contract was enjoined by the Holy Quran and the Traditions of the Prophet. He stated that the Indian concept of secularism tolerated the existence of all religions with equal honour and dignity. He emphasised that in a secular state like India, different communities must have the freedom to practice their own religion and culture, and they should be allowed to observe their own personal law. Moreover, organisations – both of Hindus and Muslims, questioned the competence of the Constituent Assembly to interfere with religious laws. Article 35 was thus, antagonistic to religious freedom.

Many members of the Hindu community expressed their opinions contrary to the views of Muslim members. K.M. Munshi expressed his views stating that even in the absence of Article 35 it would be lawful for Parliament to enact a uniform civil code, since the article guaranteeing religious freedom gave to the state power to regulate secular activities associated with religion. In some Muslim countries, for example, Turkey and Egypt, personal laws of religious minorities were not protected. Moreover certain communities amongst Muslims, for example, Khojas and Memons did not want to follow the Shariat, but they were made to do so under the Shariat Act, 1937. European countries had uniform laws applied even to minorities. Religion should be divorced from personal law. The Hindu Code Bill did not conform in its provisions to the precepts of Manu and Yajnavalkya. In essence, personal laws discriminated between person and person on the basis of sex which was not permitted by the Constitution.

A.K. Iyer, a member of the Constituent Assembly, supported K.M. Munshi and urged the Assembly to pass the article dealing with the Uniform Civil Code.

Dr. B.R. Ambedkar, although, did not accept the amendments and defended the right of the state to interfere in the personal laws of different communities.  He defended the laws of different communities. He defended the arguments of Hindu members of the Constituent Assembly. But at the same time, he also gave some assurances to the Muslim members and he explained that the proposal was creating only a ‘power’ not an ‘obligation’. Besides, Dr. Ambedkar persuaded the Muslim members ‘not to read too much into Article 44′. He affirmed that even if the Uniform Civil Code was implemented, it would be applicable to those who would consent to be governed by it.

Conclusion: There is no doubt that the Constitution of India empowers the Parliament to enact a Uniform Civil Code. After the enactment of the Hindu Code, the demand for reforms in Muslim Personal Laws and the Uniform Civil Code gained momentum. Constitutionally all laws including personal laws can be changed or amended. In reality, personal laws are placed within the purview of Parliament and legislature. So far as the question of recognition of personal laws is concerned, the Constitution does acknowledge the existence and continuation of such laws under Entry 5 List III of Seventh Schedule, together with Article 372.

 

4. Debate on Reservations

The Constituent Assembly worked for about three years in framing the largest constitution of the world. The ideals, about which the freedom movement had spoken, were to be translated into constitutional provisions. One of them was the protection of socially backward communities. The rhetoric of establishing an egalitarian society found its vociferous expression in the words of Jawaharlal Nehru. At that time the issue of reservation was pleaded, explained, accommodated and accepted with the national spirit to assimilate sections of society including the intended beneficiaries of the reservation policy into the mainstream of national life.

   Since the Depressed Classes have had limited opportunities in the past, special attempts should be made, of course, in the educational and economic field and even in the political field to see that they have a proper place till they find their own legs to stand upon without the external aid.

   The debate on the resolution moved by Nehru in the Constituent Assembly regarding ‘aims and objects’ that later formed the Preamble of the Constitution, clearly reveal the sentiments of different sections of the people. Even though the majority of the members wholeheartedly supported the resolution, B.R. Ambedkar had his own apprehensions. The leaders of the Congress Party were very articulate in upholding the rights of the Depressed Classes and offer them adequate safeguards for exercising those rights. But doubts were also expressed regarding the effectiveness of these measures. On the one hand, a member from Madras criticized separate electorates as an effective safeguard for Scheduled Caste reservation and on the other hand, a Harijan member, Nagappa vociferously argued for reservation for the ancient people who had been exploited by those who came later and dominated them. Quoting the number of Scheduled Caste members and their population in various parts of the country, he tried to focus on the point that ‘reservation’ was essential with regard to Scheduled Castes and Scheduled Tribes.

 

Untouchability in the Constitution

The provision regarding ‘Untouchability’ in the draft Constitution was generally welcomed. Eventually, the fundamental right of ‘not being subjected to any discrimination’ came to be qualified by the provisions to procure ‘protective discrimination’.

  According to Nesiah, unlike Martin Luther King, Ambedkar was in a position of authority for as the Chairman of the Drafting Committee of the Constitution and Minister of Law, ‘he was vested with both real and symbolic authority at the highest level’. Hence he was able to intervene effectively for the emancipation of Dalits. According to one member, the inclusion of Ambedkar in the cabinet showed that there was a change of heart on the part of the caste Hindus. But later events revealed the fact that it was not really a change of heart, but only political expediency that made the Congress leadership offer Ambedkar such a position. But the relevant question is whether Ambedkar could or did exercise any real power. It would be safer to say that his skill as a lawyer was utilized by the then Congress Government.

   The discussion on reservation revolved mainly around the report on minority rights which was presented by Sardar Vallabhbhai Patel. Speaking on the Report, P.S. Deshmukh said that the report was highly satisfactory; but at the same time, he voiced the fear that the so-called majority might be marginalized. On the other hand, members from the depressed classes, like S. Nagappa and Jaipal Singh, demanded representation in proportion to their population and representation in cabinets too. With regard to reservation of seats in parliament and state legislatures, originally the Constitution proposed a time limit of ten years. Though this was not agreeable to the Scheduled Castes, they accepted the advice of the political masters.

The affirmative action policies which were in place by 1947 have since been strengthened and enlarged in a manner that Dr. B.R. Ambedkar himself could hardly have foreseen. The Indian Constitution of 1950 is the foundation document for the affirmative action in the second half of the twentieth century.

Conclusion: The Preamble of the Constitution places enormous emphasis on justice, liberty and equality; all of which resonate positively with a regime that emphasizes the well-being of the disadvantaged groups. The Constitution sets out to provide … JUSTICE, social, economic and political; LIBERTY of the thought, expression, belief, faith and worship; EQUALITY of status and opportunity; and to promote among them all, FRATERNITY assuring the dignity of the individual and unity and integrity of the Nation… The following remarks of Dr. Ambedkar on how this Preamble is to be interpreted are revealing: It means a way of life which recognizes Liberty, Equality and Fraternity which are not treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of Democracy. Liberty cannot be divorced from Equality and Equality cannot be divorced from Liberty, nor can Liberty and Equality be divorced from Fraternity.

 

5. Debate on Right to Equality & Prohibition of Discrimination

The then Article 9 is the Article 14 as well as Article 15 of the present Constitution of India. Article 14 of the Constitution of India, 1950 was not a standalone provision in the Draft Constitution, 1948. It was initially included in Draft Article 15 which read:

‘Protection of life and liberty and equality before law – No person shall be deprived of his life or liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the law within the territory of India.’

Article 14 of the Indian Constitution is – equality before law and Article 15 is – prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

Article 9 further states that –

In particular, no citizen shall, on grounds only of religion, race, caste, sex or any of them, be subjected to any disability, liability, restriction or condition with regard to – assess to shops, public restaurants, hotels and places of public entertainments.

For this purpose, Mr. C. Subramaniam suggested that the State has no power to discriminate in the above-mentioned matters. He proposed to remove the words “In particular‟ and also suggested using a separate clause i.e. 9(1a). It must be read as, “No citizen shall, on grounds only of religion, race, caste, sex or any of them be subjected to any disability.” Thereafter Mr. Syed Abdur Rouf suggested inserting the words “place of birth” instead of the word “sex”. He was afraid that there may remain chances of discrimination to be done on the basis of place of birth. The said amendment was adopted. He also explained that the word “race” is used in a very comprehensive manner. He explained his point of view that if anybody wants to discriminate against a person belonging to a particular province then such discrimination is not done on the basis of race but it is done on the basis of place of birth and under the guise of local patriotism. Thereafter Prof. K.T. Shah suggested, through an amendment, to use the word “religion” in place of the word “creed”. He further suggested that there is no need to give or mention the list of different kinds of public places. He connoted the word “public place” in a wide sense. He admitted that in the past, discrimination was done with certain communities and castes regarding their entry at different public places. He admitted that the Constitution of India is based on the principle of democratic equality. So, he considered useless to mention the names of each and every public place in the said Article. He further admitted that due to the introduction of certain exceptions in the said Article, there are chances of the flourishing of denominational, sectarian, and communal institutions. He feared that it may finish the real democracy. He further specifically insisted that in order to stop sectarian or denominational exclusiveness, schools, hospitals, asylums, etc. shall not be reserved for any reason and for any given sect or community. All public places must be made open and accessible to all citizens of the country. This shows that he wanted to promote perfect and real equality among the citizens of India. He then adhered that opening up of any institution that benefits only a given community or given members or fund providers, in reality, lacks civic sense. According to him such a concept or idea is against the equality of citizenship. He told that the Constitution of India has expressively made clear that all citizens of India are equal. For this purpose, he gave an example that – if any institution is founded and maintained exclusively by any particular person and at the same time, it receives any public recognition, protection, safeguards, etc. from any public authority then such institutions are covered under the said article. He was of the view that there shall not be any sort of vested interest in application as well as in the interpretation of the said article. The said amendment was later on negatived.

Mr. H.V. Kamath, proposed to substitute the words “State Funds” for the “revenues of the state”. Dr. B.R. Ambedkar agreed with it. Thereafter, Mr. Mohammad Tahir proposed, through an amendment that, for the words “state or dedicated to the use of the general public”, the words “state or any legal authority or dedicated to the use of the general public and any contravention of this provision shall be an offence punishable in accordance with the law” be substituted. He proposed so, for the complete realization of equality of human beings. He told so because of the miserable condition of many scheduled castes and low caste groups in India. The said amendment was adopted.

For the debate regarding the use of the words “place of” before the word “birth”, Mr. Raj Bahadur was of the view that it gives restricted meaning to the entire amendment. He was of the opinion that the word “birth” is not only applied to “residence‟ but also to “descent”. According to him if the word “descent” is only taken into consideration then it may lead to more discriminations in the future. He wanted to remove all sorts of discrimination through the Constitution. He wished that not only the distinction regarding religion, caste, sex, etc. be abolished but discrimination based on the basis of family, descent, etc. must be abolished through the Constitution. He wished that not only distinctions should be removed but all possibilities of chances of discrimination, favouritism or nepotism on the basis of birth or descent be removed.

Shri S. Nagappa was of the opinion that it is necessary for the population of India to be politically free as well as socially free. According to him, freedom means political, social and economic freedom. He wished that social rights must be given to a particular community under the present article. He admitted that obtaining social rights are more expansive and explanatory. He wanted to focus on the issue of the economic evaluation of the downtrodden classes of Indians. He admitted that “Most of our courts are courts of law and not justice.” He meant that if economic rights are given to downtrodden people then they need not have to approach courts frequently for accessing justice.

Sardar Bhopinder Singh Man suggested that “at the time of deciding about the fundamental rights, it would be incomplete if places of worship are not included in the list of such rights.” According to him places of worship must be kept open for all and such places must be in the custody of ultimate custodians or pujaris. He wanted that the barriers of religion must be removed permanently. The framers of the Indian Constitution aimed at non-discrimination by the state against any citizen on grounds of race, religion, caste, sex or any of them. The said article is framed for the citizens of India. The protection of the said article is given only to the citizens. They have specifically mentioned that there must be no chances of flourishment of denominational, sectarian and communal institutions. They wanted the flourishment of real democracy. They wanted that any social institution founded by any particular community must benefit the entire society and not only the particular community. In other words, the beneficiary of the social institutions must be the society at large. Moreover, they wanted to bring complete equality for women and children. For this, they wanted that nothing should prevent the state from making any special provisions for women and children. They wanted to promote and implement the concept of equal citizenship. They didn’t want to create a special class of scheduled castes and backward tribes. They covered all under the one head i.e. citizen. They wanted the policy of the state to be non-discriminatory. They have extended the scope of the said article by non-discrimination policy. The said policy is to be adopted by hotels, dharmasalas, musafirkhanas whether managed or not managed by public funds. The word public used in the said article is used in a generic sense i.e. it is restricted only to citizens of India. They have treated all public places uniformly including hospitals, educational institutions, etc. They wanted no special status to be accorded to any person including royal families, dynasties, rich persons, etc. They wanted the non-existence of financial inequality, social inequality, economic inequality and religious inequality. They also intended for equality before the law.

 

6. Debate on Preamble

On November 15, 1948, India was in the midst of a heated debate in the Constituent Assembly, on the nature of the Constitution.

 

Secular, Federal, Socialist

Prof K T Shah proposed inserting the words, “Secular, Federal, Socialist”. His above-mentioned words to be read as, “India shall be a Secular, Federal, Socialist Union of States.” He was of the opinion that by using such words in the Preamble, it will give an idea about the governing ideals of the Constitution. He proposed the word “Federal” because he wanted the Indian Union not to be a Unitary State. According to him, the word “Federal” implies an agreed association on equal terms of the states forming part of the Federation. The States in India must be “States forming part of the Federation”. He wanted India to be a Secular State. He believed in a clear and emphatic description of the State. He stressed the secular character of the State because of the bitter experiences of the past. According to him, this would be an assurance to the people for matters concerning the governance of the country pertaining to injustice or inequality among citizens.

Finally in the ensuing discourse, while the members agreed on the nature of the Indian state adhering to secular principles, the word ‘secular’ was dropped from the Preamble. Prof. Shah proposed the word socialist which implies or conveys, a state in which equal justice and equal opportunity for everybody is assured, in which everyone is expected to contribute by his labour, by his intelligence, and by his work, all that he can to the maximum capacity, and everyone would be assured of getting all that he needs and all that he wants for maintaining a decent civilised standard of existence. The word socialist is the synonym for curbing social abuses. He further said this can be achieved without any violation of peaceful and orderly progress, and there is no need to fear in the implications of this term the possibility of a violent revolution resulting in the disestablishment of vested interests.

   According to Ambedkar, this proposal was rejected because “What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether. If you state in the Constitution that the social organisation of the State shall take a particular form, you are, in my judgment, taking away the liberty of the people to decide what should be the social organisation in which they wish to live. It is perfectly possible today, for the majority people to hold that the socialist organisation of society is better than the capitalist organisation of society. But it would be perfectly possible for thinking people to devise some other form of social organisation which might be better than the socialist organisation of today or of tomorrow.” Mr. H.V. Kamath also opposed the amendment proposed by Mr. K.T. Shah.

 

Sovereign Democratic Republic

When BR Ambedkar proposed the Preamble, “We, the people of India, having solemnly resolved to constitute India into a sovereign, democratic, republic,” it was vehemently opposed by Maulana Hasrat Mohani. Maulana Hasrat Mohani was a leader of the Indian National Congress apart from being a noted Urdu poet and the man who coined the slogan Inquilab Zindabad. According to him, the Objectives Resolution had three words Independent Sovereign Republic. But the Drafting Committee had adopted the phrase Sovereign Democratic Republic because independence is usually implied in the word “Sovereign”. He then asked the Constituent Assembly to decide on the following three sets of words that are to be incorporated in the Preamble before the consideration of the Draft Constitution clause by clause.

• Sovereign Independent Republic,

• Sovereign Democratic Republic,

• Sovereign Democratic State.”

After due deliberations, ‘Sovereign Democratic Republic’ was adopted.

 

Union of States

The Drafting Committee advised that India shall be the Union of States.

Pandit Lakshmi Kanta Mishra held that the constitutional literature of the word “State” includes the idea of sovereignty and absolute independence. He expressed his ambiguity regarding the connotation of the meaning of State for three words viz., provinces, Pradesh and the nation. Pandit Jawaharlal Nehru suggested that the word State should be applied to Pradesh as well as Provinces.

The motion for inserting the word “Federal” before the word “Union”, and the second to substitute the word “Pradeshas” for the word “States” was negatived.

Shri Gopi Krishna Vijayavargiya told that Sovereignty is specifically mentioned in the Chinese Constitution as it is an important power. He considered this amendment an important one. Professor Shibban Lal Saksena also considered it an important amendment.

Thereafter another amendment was proposed. The following aspects were to be decided through this amendment.

• The Union was named BHARAT;

• The character of Bharat is sovereign, independent, democratic, socialist, republic;

• The government must be established by the Constitution;

• The powers of the government, legislature, executive and judiciary shall be derived from the people.

The above amendment was supported by Maulana Hasrat Mohani and objected by Shri Prabhudayal Himat Singka, Shri M. Ananthasayanam Ayyangar and Shri Loknath Mishra. Dr. B.R. Ambedkar was of the opinion that sovereignty vests with the people. The said amendment was withdrawn by the leave of the Assembly.

According to Maulana Hasrat Mohani, the Union of India shall be the Union of Sovereign States. He affirmed that the Union of India shall include completely autonomous Provinces and groups of States in which each state shall contain smaller states merged in the form of Districts and Provinces. According to him, India shall be a federation of independent units. By doing so, provincial autonomy shall be gained for each unit under the federation. He opposed the move of Dr. Ambedkar because Dr. Ambedkar used the words “Union of States” instead of “Federal Republic”. He clarified the differences in the meaning of the words Union and Federation. According to him, the word Union means as that proposed by Kaiser William and Adolf Hitler. So, under the Union, the States come under the rule. There is no place for Provincial Autonomy. Provincial Autonomy is found under Federation. By using the word Union, India is made a Unitary Government or Unity empire. He didn’t want to promote imperialism in any manner.

Shri B.M. Gupte clarified the intention of Dr. B.R. Ambedkar for using the word “Union” that Dr. Ambedkar wanted to negate the right of secession. If the word “Union” is not used then there remain the chances that the right of secession may remain open for the Provinces. According to him, as far as the Indian states are concerned, those which signed the first Instrument of Accession, there is a provision in that Instrument which allows them to secede after they have seen the full picture of the Constitution. But once they accede after the commencement of the Constitution they may perhaps not have the right. Thus, in the form of a Union, India can remain a decentralized unitary government. According to him, apart from Union, India is a federation because it bears one characteristic of federation i.e., provinces have jurisdiction over a large number of subjects.

 

In the name of God

A few members in the Constituent Assembly wanted to include ‘In the name of God’. Many were opposed to this suggestion – it was noted that it was unfortunate to put ‘God’ on a vote. One member believed that the inclusion of ‘God’ would amount to ‘compulsion of faith’ and violate the fundamental right to freedom of faith.

Conclusion: From the very beginning, the framers of the Indian Constitution wanted India to be a sovereign, independent and democratic republic apart from a secular, federal and socialistic country. They wanted India to be completely democratic republic and it must cherish all essential qualities, characteristics and ingredients of the democratic republic. They have specifically mentioned the essential qualities of a democratic republic. They wanted that the distribution of material resources must be made for the common good. They didn’t want any sort of concentration of wealth. They desired for equitable distribution of means of production. State means all states forming the Union of India. They have used the word union instead of the word federation. This shows that they wanted to keep India united forever. Moreover, they did not favour further partition or assignment of special status to any particular state or states in the long run. Due to this reason the word “Union” is used. The characteristics of “federal nature” are found in a slight proportion in the Constitution. It pertains to Provincial Autonomy regarding jurisdiction over many subjects. The Republican character of the state is also maintained. There was a slew of other amendments moved, discussed and negatived, or sought to be moved by various members. The Preamble to the Constitution of India was finalised only pursuant to deep discussions. Every word of it was debated at length.

 

7. Debate on Ordinance Making Power of the President

The Constituent Assembly Debate regarding Article 102 was conducted on 23rd May 1949. The said article relates to the president’s power to promulgate an ordinance. The said article is Article 123 of the present Indian Constitution i.e. ‘Power of President to promulgate Ordinances during recess of Parliament.’

Article 102, Draft Constitution, 1948

(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.

A member proposed an amendment to clause (1) that would restrict the President’s power to make an ordinance to when neither house of the Parliament was in session, as he deemed the existing provision to be very expansive.

   Dr. Ambedkar, who was the Drafting Committee’s Chairman, gave the counterargument that this would render the power useless as both Houses were required in the enactment of legislation. Therefore, it was essential to permit the President to exercise these ordinance-making powers even if only one House was in session, because then ‘the framework for passing law in the ordinary process does not exist’. “That in clause (1) of Article 102, for the words ‘when both Houses’, the words ‘when one or both Houses’ and for the words ‘such Ordinances’, the words ‘such Ordinance or Ordinances’ be substituted respectively.” The amendment was negative.

   Another Constituent Assembly member moved the proposal to amend clause (1) to include the proviso that no ordinance could ‘deprive any citizen of his right to personal liberty except on conviction after trial by a competent court of law’. This proposal was negatived through voting. The member sought to defend this amendment by pointing out the passing of ordinances during British rule, that had subjected people to protracted detention without trial. Citizens ought not to be stripped of their basic fundamental rights even during times of emergencies.

   In response, Dr.Ambedkar said that clause (3) of the Draft Article already specified that ordinances would be ‘subject to the same limitations as a law made by the legislature by the ordinary process’, that includes the obligation to pass laws which were conforming with Fundamental Rights. Because Draft Article 15 (Article 21) already offered this protection to the people, this amendment was not necessary.

(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament assented to by the President, but every such Ordinance – (a) Shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the re-assembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions.

Another member proposed an amendment that mandated ordinances to be placed before Parliament within 4 weeks from the date of the ordinance’s promulgation. This amendment was also negatived. The member contended that when read with Draft Article 69 (Article 85), the effect of this provision would be that there was a likelihood of the ordinance being in effect for up to 7.5 months, which was an extremely long time period. The enforcement of a fixed time frame under which an ordinance would cease to exist/expire was a needed precaution to guard against the exploitation of legislative power. While other members concurred with the rationale provided for this amendment, there was a difference of opinion with respect to the time period. A member suggested that the ordinance should expire 30 days from the date the ordinance was promulgated automatically. The amendment was negatived. Yet another member made the proposal that the clause should be amended to make sure that an ordinance would be placed before both houses immediately after the Parliament’s reassembly, and also that the amendment would cease to exist unless it is approved by either of the houses.

   • In response, Dr. Ambedkar stated that these amendments did not take into account the emergency situations during which Parliament could not reassemble within the prescribed timeframe under any circumstances. He countered that the ordinance-making power was an emergency power having very limited scope and that there were enough safeguard provisions within the Draft Article and other segments in the Indian Constitution, and these were enough to prevent any misutilization of the provision.

The next amendment moved was – “Every such ordinance shall be laid before both Houses of the Parliament immediately after each House assembles and unless approved by either House of the Parliament by Specific Resolution, shall cease to operate forthwith.” This amendment was negatived in voting.

 The chief reason for bringing the above-mentioned amendment was to give proper justification to the rule of law. It was appealed that the emergency power mustn’t be granted in an extraordinary manner. It was recommended that the extreme power must not be given to the executive unless the same is approved by the Parliament.

Conclusion: The framers of the Indian Constitution thus assigned special powers i.e. law-making powers to the President at the time when Parliament is not in session. The President of India can exercise this power only at the time of emergency. The President’s power of issuing ordinance at a time of emergency is similar to a law made by the legislature under the ordinary process. None of the laws passed by the legislature under the ordinary process was empowered to deprive citizens of their elementary rights. The same aspect is explicitly applicable to the President’s power of issuing ordinance at the time of emergency.

 

8. Debate on Abolition of Death Penalty

Between 1947 and 1949, the Constituent Assembly debated the Death Penalty. The question was asked because of its judge-centric nature, possible uncertainty in its enforcement, its discriminatory impact on the poor and the marginalised sections, and the possibility of error in the final judgment. During the debates in the Constituent Assembly, Mr. Z.H. Lari proposed for the insertion of Article 11-B in which he proposed the abolition of capital punishment except for sedition involving the use of violence. He stated that capital punishment is abolished in various countries of the world. He proposed so, because, once the said punishment is pronounced, the offender remains no more alive. Later on, if the court or tribunal comes to know that it had committed a mistake i.e. the person on whom such sentence is pronounced is not guilty then such a mistake cannot be rectified. He was of the opinion that human life is sacred. The life of a man can be taken only when such a man is harmful to the lives of others in society. He gave examples of thirty countries of the world where society is protected at large without such punishment. He also admitted that capital punishment is brutal in nature and sentiments of brutality do not prevail in the present century. He quoted the example of Dickens that – many decades ago, Dickens stated that capital punishment encourages that section of the population which is determined on committing murders, to commit murders because that is accompanied by a sort of martyrdom. He then proposed that for habitual murderers, capital punishment is proper but for those murderers that have committed the crime occasionally, for them life imprisonment is proper instead of capital punishment. He then proposed the introduction of a reformative element in the punishment. He demanded to give prime consideration to reformation in punishment. He demanded the abolition of capital punishment under three grounds viz. human judgement, the sanctity of human life and the purpose of punishment. He also admitted that if there exists a situation in which the state is put into danger and where there is a risk of loss of lives of many people then such punishment may be inflicted. He also expected the Parliament to abolish the said punishment permanently within two or three years.

Thereafter, Shri Amiyo Kumar Ghosh expressed his views. According to him, the said punishment is inhuman and there are probable chances for judges to make mistakes. He admitted that society consists of not only good elements but there are evil elements too and to keep a check on such anti-social elements from usurping the society, the State may require such penalties to be imposed on persons who want to terrorize the society. He further goes on to say that India is passing through a transitional period, where serious problems might confront the State and the Society which may require the state to impose grave penalties. So according to him, capital punishment should be abolished, but the proper place for doing such a thing is not to provide a clause to that effect in the Constitution and tie the hands of the State, but it should be done by amending the Indian Penal Code or such other laws which impose such penalty. This is keeping in view that if such a clause is provided in the Constitution, the State will be unable to prescribe such a punishment without amending the Constitution, which is a difficult matter.

   Thereafter, Shri. K. Hanumanthaiya expressed that instead of capital punishment, life imprisonment must be given to the convict. He admitted that from the State’s point of view, the fear principle is necessary. He informed that if reformation is practised then naturally, deterrent will lose its value. Under reformation, a convict who is convicted of life is released soon by giving him various concessions. If the convict is assured that if he takes away the life of anybody then for a long time he has to remain in a prison, he will not do so. Therefore, he recommended that for the safety of the State, the said punishment must not be abolished.

The said suggestion regarding Article 11-B to abolish the death penalty was negatived.

Conclusion: The intention of the framers behind moving Article 11-B was to partly abolish capital punishment. They wanted that the State must not be put into a helpless condition by completely abolishing capital punishment. They believed that only reformation cannot serve the purpose. According to them, deterrence was necessary. They also expressed their views that capital punishment can be removed after the development of the society up to a certain extent. Most of the framers were against the complete abolition of capital punishment. Article 11-B did not become part of the Indian Constitution as the motion regarding it was negatived. But their intention regarding the abolition of the death sentence has become very clear.

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Source: Byjus.