3.3 Rameshwar Prasad & Ors Versus Union of India & Anr

Part III of the minority judgment by Justice Arijit Pasayat: 'Discussions in the Constituent Assembly which throw beacon light on the role of Governors, parameters of powers exercisable under Articles 174 and 356 of the Constitution'

Arijit Pasayat

Updated on: 24 January 2006 12:0 am

3.3 Rameshwar Prasad & Ors Versus Union of India & Anr

Part III of the minority judgment by Justice Arijit Pasayat: 'Discussions in the Constituent Assembly which throw beacon light onthe role of Governors, parameters of powers exercisable under Articles 174 and356 of the Constitution'

It would also be appropriate to take note of veryenlightening discussions in the Constituent Assembly which throw beacon light onthe role of Governors, parameters of powers exercisable under Articles 174 and356 of the Constitution.

Constituent Assembly met on Ist June,1949

Article 143

(Amendment Nos. 2155 and 2156 were not moved)

H. V. Kamath (C.P. & Berar: General): Mr. President, Sir, I move:

"That in clause (1) of Article 143, the words 'except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion' be deleted."

If this amendment were accepted by the House, this clause of Article 143 would read thus :-

"There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the President in the exercise of his functions."

Sir, it appears from a reading of this clause that the Government of India Act of 1935 has been copied more or less blindly without mature consideration. There is no strong or valid reason for giving the Governor more authority either in his discretion or otherwise vis-a-vis his ministers, than has been given to the President in relation to his ministers. If we turn to Article 61 (1), we find it reads as follows :-

"There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions."

When you, Sir, raised a very important issue, the other day, Dr. Ambedkar clarified this clause by saying that the President is bound to accept the advice of his ministers in the exercise of all of his functions. But here Article 143 vests certain discretionary powers in the Governor, and to me it seems that even as it was, it was bad enough, but now after having amended Article 131 regarding election of the Governor and accepted nominated Governors, it would be wrong in principle and contrary to the tenets and principles of constitutional Government, which you are going to build up in this country. It would be wrong I say, to invest a Governor with these additional powers, namely, discretionary powers. I feel that no departure from the principles of constitutional Government should be favoured except for reasons of emergency and these discretionary powers must be done away with. I hope this amendment of mine will commend itself to the House. I move, Sir.

Prof. K. T. Shah (Bihar: General) : Mr. President, I beg to move:

"That in clause (1) of Article 143, after the word 'head a comma be placed and the words 'who shall be responsible to the 341 Governor and shall' be inserted and the word to' be deleted."

So, that the amended Article would read.

"(1) There shall be a Council of Ministers with the Chief Minister at the head who shall be responsible to the Governor and shall aid and advise the Governor in the exercise of his functions ......etc."

Sir, this is a logical consequence of the general principle of this Draft Constitution, namely, that the Government is to be upon the collective responsibility of the entire Cabinet to the legislature. At the same time, in the Cabinet the Prime Minister or the Chief Minister or by whatever title he is described would be the Principal Adviser and I would like to fix the responsibility definitely by the Constitution on the Chief Minister, the individual Ministers not being in the same position. Whatever may be the procedure or convention within the Cabinet itself, however the decisions of the Cabinet may be taken, so far as the Governor is concerned, I take it that the responsibility would be of the Chief Minister who will advise also about the appointment of his colleagues or their removal if it should be necessary. It is but in the fitness of things that he should be made directly responsible for any advice tendered to the Constitutional head of the State, namely, the Governor. As it is, in my opinion, a clear corollary from the principles we have so far accepted, I hope there would be no objection to this amendment.

(Amendments Nos. 2159 to 2163 were not moved.)

Mr. President: There is no other amendment. The Article and the amendments are open to discussion.

Shri T. T. Krishnamachari : Mr. President, I am afraid I will have to oppose the amendment moved by my honourable Friend Mr. Kamath, only for the reason that he has not understood the scope of the clearly and his amendment arises out of a misapprehension.

Sir, it is no doubt true, that certain words from this Article may be removed, namely, those which refer to the exercise by the Governor of his functions where he has to use his discretion irrespective of the advice tendered by his Ministers. Actually, I think this is more by way of a safeguard, because there are specific provisions in this Draft Constitution which occur subsequently where the Governor is empowered to act in his discretion irrespective of the advice tendered by his Council of Ministers. There are two ways of formulating the idea underlying it. One is to make a mention of this exception in this Article 143 and enumerating the specific power of the Governor where he can exercise his discretion in the s that occur subsequently, or to leave out any mention of this power here and only state is in the appropriate . The former method has been followed. Here the general proposition is stated that the Governor has normally to act on the advice of his Ministers except in so far as the exercise of his discretions covered by those in the Constitution in which he is specifically empowered to act in his discretion. So long as there are Articles occurring subsequently in the Constitution where he is asked to act in his discretion, which completely cover all cases of departure from the normal practice to which I see my honourable Friend Mr. Kamath has no objection, I may refer to Article 188, I see no harm in the provision in this Article being as it is. It happens that this House decides that in all the subsequent Articles, the discretionary power should not be there, as it may conceivably do, this particular provision will be of no use and will fall into desuetude. The point that my honourable Friend is trying to make, while he concedes that the discretionary power of the Governor can be given under Article 188, seems to be pointless. If it is to be given in Article 188, there is no harm in the mention of it remaining here. No harm can arise by specific mention of this exception of Article 143. Therefore, the serious objection that Mr. Kamath finds for mention of this exception is pointless. I therefore think that the Article had better be passed without any amendment. If it is necessary for the House either to limit the discretionary power of the Governor or completely do away with it, it could be done in the Articles that occur subsequently where specific mention is made without which this power that is mentioned here cannot at all be exercised. That is the point I would like to draw the attention of the House to and I think the Article had better be passed as it is.

Dr. P. S. Deshmukh (C. P. & Berar: General): Mr. President, Mr. T. T. Krishnamachari has clarified the position with regard to this exception which has been added to clause (1) of Article 143. If the Governor is, in fact, going to have a discretionary power, then it is necessary that this clause which Mr. Kamath seeks to omit must remain.

Sir, Besides this, I do not know if the Drafting Committee has deliberately omitted or they are going to provide it at a later stage, and I would like to ask Dr. Ambedkar whether it is not necessary to provide for the Governor to preside at the meetings of the Council of Ministers. I do not find any provision here to this effect. Since this Article 143 is a mere reproduction of section 50 of the Government of India Act, 1935, where this provision does exist that the Governor in his discretion may preside at the meetings of the Council of Minister, I think this power is very necessary. Otherwise, the Ministers may exclude the Governor from any meetings whatever and this power unless specifically provided for, would not be available to the Governor. I would like to draw the attention of the members of the Drafting Committee to this and to see if it is possible either to accept an amendment to Article 143 by leaving it over or by making this provision in some other part. I think this power of the Governor to preside over the meetings of the Cabinet is an essential one and ought to be provided for.

Shri Brajeshwar Prasad: Mr. President, Sir, the Article provides--

"That there shall be a Council of Minister with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions".

Sir, I am not a constitutional lawyer but I feel that by the Provisions of this Article the Governor is not bound to act according to the advice tendered to him by his Council of Ministers. It only means that the Ministers have the right to tender advice to Governor. The Governor is quite free to accept or to reject the advice so tendered. In another sphere of administration the Governor can act in the exercise of his functions in his discretion. In this sphere the Ministry has not got the power to tender any advice. Of course it is left open to the Governor to seed the advice of the Ministers even in this sphere.

I feel that we have not taken into account the present facts of the situation. We have tried to copy and imitate the constitutions of the different countries of the world. The necessity of the hour requires that the Governor should be vested not only with the power to act in his discretion but also with the power to act in his individual judgment. I feel that the Governor should be vested with the power of special responsibilities which the Governor under the British regime were vested in this country. I feel that there is a dearth of leadership in the provinces. Competent men are not available and there are all kinds of things going on in the various provinces. Unless the Governor is vested with large powers it will be difficult to effect any improvement in the Provincial administration. Such a procedure may be undemocratic but such a procedure will be perfectly right in the interest of the country. I feel there is no creative energy left in the middle class intelligentsia of this country. They seem to have become bereft of initiative and enterprise. The masses who ought to be the rulers of this land are down-trodden and exploited in all ways. Under these circumstances there is no way left open but for the Government of India to take the Provincial administrations in its own hands. I feel that we are on the threshold of a revolution in this country. There will be revolution, bloodshed and anarchy in this country. I feel that at this juncture it is necessary that all powers should remain centralised in the hands of the Government of India. In certain provinces the machinery of law and order seems to have completely broken down. Dacoities, arson, loot, murder and inflationary conditions are rampant. I am opposed to this Article, because I am convinced that federalism cannot succeed in a country which is passing through a transitory period. The national economy of America is fully developed. It can afford to have a federal form of Government. In a country where there is no room for expansion and for economic development, there is no necessity for a centralised economy. In India when our agriculture, industry, minerals etc. are in an incipient stage of development, it is necessary that power must be vested in the hands of the Government of India. Federalism was in vogue in the 19th century when the means of communications were undeveloped. The technical knowledge and resources at the disposal of Governments in ancient times were of a very meager character. Today the situation has completely changed. Means of communications have developed rapidly. Technical knowledge and the necessary personnel at the disposal of the Government of India are of such a wide character that it can undertake to perform all the functions which a modern Government is expected to perform. There is another reason why I am opposed to this Article. In this country there is no scope for federalism. All governments have become more or less unitary in character. If we are to escape political debacles, economic strangulation and military defeats on all fronts, then our leaders and statesmen must learn to think in unorthodox terms: otherwise there is no future for this country.

Pandit Hirday Kunzru: (United Provinces: General): Mr. President, I should like to ask Dr. Ambedkar whether it is necessary to retain after the words "that the Governor will be aided and advised by his Ministers", the words "except in regard to certain matter in respect of which he is to exercise his discretion". Supposing these words, which are reminiscent of the old Government of India Act and the old order, are omitted, what harm will be done? The functions of the Ministers legally will be only to aid and advice the Governor. The Article in which these words occur does not lay down that the Governor shall be guided by the advice of his Ministers but it is expected that in accordance with the Constitutional practice prevailing in all countries where responsible Government exists the Governor will in all matters accept the advice of his Ministers. This does not however mean that where the Statute clearly lays down that action in regard to specified matters may be taken by him on his own authority this Article 143 will stand in his way.

My Friend Mr. T. T. Krishnamachari said that as Article 188 of the Constitution empowered the Governor to disregard the advice of his Ministers and to take the administration of the province into his own hands, it was necessary that these words should be retained, i.e. the, discretionary power of the Governor should be retained. If however, he assured us, Article 188 was deleted later, the wording of Article 143 could be reconsidered. I fully understand this position and appreciate it, but I should like the words that have been objected to by my Friend Mr. Kamath to be deleted. I do not personally think that any harm will be done if they are not retained and we can then consider not merely Article 188 but also Article 175 on their merits; but in spite of the assurance of Mr. Krishnamachari the retention of the words objected to does psychologically create the impression that the House is being asked by the Drafting Committee to commit itself in a way to a principle that it might be found undesirable to accept later on. I shall say nothing with regard to the merits of Article 188. I have already briefly expressed my own views regarding it and shall have an opportunity of discussing it fully later when that Article is considered by the House. But why should we, to being with, use a phraseology that it an unpleasant reminder of the old order and that makes us feel that though it may be possible later to reverse any decision that the House may come to now, it may for all practical purposes be regarded as an accomplished fact? I think Sir, for these reasons that it will be better to accept the amendment of my honourable Friend Mr. Kamath, and then to discuss Articles 157 and 188 on their merits.

I should like to say one word more before I close. If Article 143 is passed in its present form, it may give rise to misapprehensions of the kind that my honourable Friend Dr, Deshmukh seemed to be labouring under when he asked that a provision should be inserted entitling the Governor to preside over the meetings of the Council of Ministers. The Draft Constitution does not provide for this and I think wisely does not provide for this. It would be contrary to the traditions of responsible government as they have been established in Great British and the British Dominions, that the Governor or the Governor-General should, as a matter of right, preside over the meetings of his cabinet. All that the Draft Constitution does is to lay on the Chief Ministers the duty of informing the Governor of the decisions come to by the Council of Ministers in regard to administrative matter and the legislative programme of the government. In spite of this, we see that the Article 143, as it is worded, has created a misunderstanding in the mind of a member like Dr. Deshmukh who takes pains to follow every of the Constitution with care. This is an additional reason why the discretionary power of the Governor should not be referred to in Article 143. The speech of my friend Mr. Krishnamachari does not hold out the hope that the suggestion that I have made has any chance of being accepted. Nevertheless, I feel it my duty to say that the course proposed by Mr. Kamath is better than what the Drafting Sub-Committee seem to approve.

Prof. Shibban Lal Saksena (United Provinces: General): Mr. President, Sir, I heard very carefully the speech of my honourable Friend, Mr. krishnamachari, and his arguments for the retention of the words which Mr. Kamath wants to omit. If the Governor were an elected Governor, I could have understood that he should have these discretionary powers. But now we are having nominated Governors who will function during the pleasure of the President, and I do not think such persons should be given powers which are contemplated in Article 188.

Then, if Article 188 is yet to be discussed--and it may well be rejected--then it is not proper to give these powers in this Article beforehand. If Article 188 is passed, then we may reconsider this Article and add this clause if it is necessary. We must not anticipate that we shall pass Article 188, after all that has been said in the House about the powers of the Governor.

These words are a reminder of the humiliating past. I am afraid that if these words are retained, some Governor may try to imitate the Governors of the past and quote them as precedents, that this is how the Governor on such an occasion acted in his discretion. I think in our Constitution as we are now framing it, these powers of the Governors are out of place; and no less a person than the honourable Pandit Govind Ballabh Pant had given notice of the amendment which Mr. Kamath has moved. I think the wisdom of Pandit Pant should be sufficient, guarantee that this amendment be accepted. It is just possible that Article 188 may not be passed by this House. If there is an emergency, the Premier of the province himself will come forward to request the Governor that an emergency should be declared, and the aid of the Centre should be obtained to meet the emergency. Why should the Governor declare an emergency over the head of the Premier of the Province? We should see that the Premier and the Governor of a Province are not at logger heads on such an occasion. A situation should not be allowed to arise when the Premier says that he must carry on the Government, and yet the Governor declares an emergency over his head and in spite of his protestations. This will make the Premier absolutely impotent. I think a mischievous Governor may even try to create such a situation if he so decides, or if the President wants him to do so in a province when a party opposite to that in power at the Centre is in power. I think Article 188, even if it is to be retained should be so modified that the emergency should be declared by the Governor on the advice of the Premier of the province. I suggest to Dr. Ambedkar that these words should not find a place in this Article, and as a consequential amendment, sub-section (ii) of this Article should also be deleted.

Shri Mahavir Tyagi (United Provinces: General): Sir, I beg to differ from my honourable radical Friends Mr. Kamath and Prof. Shibban Lal Saksena, and I think the more powers are given to the provinces, the stiffer must be the guardianship and control of the Centre in the exercise of those powers. That is my view. We have now given up the Centre, and we are going to have nominated Governors. Those Governors are not to be there for nothing. After all, we have to see that the policy of the Centre is carried out. We have to keep the States linked together and the Governor is the Agent or rather he is the agency which will press for and guard the Central policy. In fact, our previous conception has now been changed altogether. The whole body politic of a country is affected and influenced by the policy of the Centre. Take for instance subjects like Defence involving questions of peace or war, of relationship with foreign countries; of our commercial relations, exports and imports. All these are subjects which affect the whole body politic, and the provinces cannot remain unaffected, they cannot be left free of the policy of the Centre. The policy which is evoked in the Centre should be followed by all the States, and if the Governors were to be in the hands of the provincial Ministers then there will be various policies in various provinces and the policy of each province shall be as unstable as the ministry. For there would be ministers of various types having different party labels and different programmes to follow. Their policies must differ from one another; it will therefore be all the more necessary that there must be coordination of programmes and policies between the States and the Central Government. The Governor being the agency of the Centre is the only guarantee to integrate the various Provinces or States. The Central Government also expresses itself through the provincial States; along with their own administration, they have also to function on behalf of the Central Government. A Governor shall act as

the agency of the Centre and will see that the Central policy is sincerely carried out. Therefore the Governor's discretionary powers should not be interfered with. Democratic trends are like a wild beast. Say what you will, democracy goes by the whims and fancies of parties and the masses. There must be some such machinery which will keep this wild beast under control. I do not deprecate democracy. Democracy must have its way. But do not let it degenerate into chaos. Moreover the State governments may not be quite consistent in their own policies. Governments may change after months or years; with them will change their policies. The Governors may change too, but the policy and instructions given by the Centre to the Governors will remain practically unchanged. The more the powers given to the States the more vigilant must be the control. The Governor must remain as the guardian of the Central policy on the one side, and the Constitution on the other. His powers therefore should not be interfered with.

Shri B. M. Gupta (Bombay: General): Sir, I thinkthe explanation given by my honourable Friend Mr. T.

T.Krishnamachari Should be accepted by the House and the words concerningdiscretion of the Governor should be allowed to stand till we dispose of Article175 and Article 188.

With regard to the suggestion made by thehonourable Dr. Deshmukh about the power being given to the Governor to presideover the meetings of the cabinet I have to oppose it. He enquired whether theDrafting Committee intended to make that provision later on. I do not know theintentions of the Drafting Committee for the future but as far

asthe Draft before us is concerned I think the Drafting Committee has definitelyrejected it.

I would invite the attention of the honourableHouse to Article 147 under which the Governor shall be entitled only toinformation. If we allow him to preside over the meetings of the Cabinet wewould be departing from the position we want to give him, namely that of aconstitutional head. If he presides over the meeting of the Cabinet be shallhave an effective voice in shaping the decisions of the Cabinet in the entirefield of administration, even in fields which are not reserved for hisdiscretionary power. If certain powers have to be given to him, our endeavourshould be to restrict them as far as possible, so that the Governor's positionas a constitutional head may be maintained. Therefore, Sir, I oppose theproposal of Dr. Deshmukh.

Shri Alladi Krishnaswami Ayyar (Madras: General):Sir, there is really no difference between those who oppose and those whoapprove the amendment. In the first place, the general principle is laid down inArticle 143 namely, the principle of ministerial responsibility, that theGovernor in the various spheres of executive activity should act on the adviceof his ministers. Then the Article goes on to provide "except in so far ashe is by or under this Constitution required to exercise his functions or any ofthem in his discretion." So long as there are Articles in the Constitutionwhich enable the Governor to act in his discretion and in certain circumstances,it may be, to over-ride the cabinet or to refer to the President, this Articleas it is framed is perfectly in order. If later on the House comes to theconclusion that those Articles which enable the Governor to act in hisdiscretion in specific cases

should bedeleted, it will be open to revise this Article. But so long as there are laterArticles which permit the Governor to act in his discretion and not onministerial responsibility, the Article as drafted is perfectly in order.

The only other question is whether first to makea provision in Article 143 that the Governor shall act on ministerialresponsibility and then to go on providing "Notwithstanding anythingcontained in Article 143........he can do this" or "Notwithstandinganything contained in Article 143 he can act in his discretion." I shouldthink it is a much better method of drafting to provide in Article 143 itselfthat the Governor shall always act on ministerial responsibility excepting inparticular or specific cases where he is empowered to act in his discretion. Ifof course the House comes to the conclusion that in no case shall the Governoract in his discretion, that he shall in every case act only on ministerialresponsibility, then there will be a consequential change in this Article. Thatis, after those Articles are considered and passed it will be quite open to theHouse to delete the latter part of Article 143 as being consequential on thedecision come to by the House on the later Articles. But, as it is, this isperfectly, in order and I do not think any change is warranted in the languageof Article 143. It will be cumbrous to say at the opening of each"Notwithstanding anything contained in Article 143 the Governor can act onhis own responsibility".

Shri H. V. Kamath: Sir, on a point ofclarification, Sir, I know why it is that though emergency powers have beenconferred on the President by the Constitution no less than on Governors,perhaps

more so, discretionary power as suchhave not been vested in the President but only in Governors?

Pandit Thakur Das Bhargava (East Punjab:General): Sir, I beg to oppose the amendment of Mr. Kamath. Under Article 143the Governor shall be aided in the exercise of his functions by a Council ofMinisters. It is clear so far. I gave notice of an amendment which appears onthe order paper as Article 142-A which I have not moved. In the amendment I havesuggested that the Governor will be bound to accept the advice of his ministerson all matters except those which are under this Constitution required to beexercised by him in his discretion. My submission in that it is wrong to saythat the Governor shall be a dummy or an automaton. As a matter of factaccording to me the Governor shall exercise very wide powers and verysignificant powers too. If we look at Article 144 it says:

"The Governor's ministers shall be appointed by him and shall hold office during his pleasure."

So he has the power to appoint his ministers. Butwhen the ministers are not in existence who shall advise him in the discharge ofhis functions? When he dismisses his ministry then also he will exercise hisfunctions under his own discretion.

Then again, when the Governor calls upon theleader of a party for the choice of ministers, after a previous ministry hasbeen dissolved, in that case there will be no ministry in existence; and whowill be there to advise him? Therefore he will be

exercisinghis functions in his discretion. It is wrong to assume that the Governor willnot be charged with any functions which he will exercise in his discretion.Articles 175 and 188 are the other Articles which give him certain functionswhich he has to exercise in his discretion.

Under Article 144 (4) there is a mention of theInstrument of Instructions which is given in the Fourth Schedule. The lastparagraph of it runs thus:

"The Governor shall do all that in him lies to maintain standards of good administration, to promote all measures making for moral, social and economic welfare and tending to fit all classes of the population to take their due share in the public life and government of the state, and to secure amongst all classes and creeds co-operation, goodwill and mutual respect for religions beliefs and sentiments."

My submission is that according to me theGovernor shall be a guide, philosopher and friend of the Ministry as well as thepeople in general, so that he will exercise certain functions some of which willbe in the nature of unwritten conventions and some will be such as will beexpressly conferred by this Constitutions. He will be a man above party and hewill look at the Minister and government from a detached standpoint. He will beable to influence the ministers and members of the legislature in such a mannerthat the administration will run smoothly. In fact to say that a person like himis merely a dummy, an automaton or a dignitary

withoutpowers is perfectly wrong. It is quite right that so far as our conception of aconstitutional governor goes he will have to accept the advice of his ministersin many matters but there are many other matters in which the advice willneither be available nor will he be bound to accept that advice.

(underlined for emphasis)

Under Article 147 the Governor has power forcalling for information and part (c) says: This will be the duty of the ChiefMinister.

"If the Governor so requires, to submit forthe consideration of the Council of Ministers any matter on which a decision hasbeen taken by a Minister but which has not been considered by the Council."

This is specifically a matter which is of greatimportance. The Governor is competent to ask the Chief Minister to place anymatter before the Council of Ministers which one minister might have decided.When he calls for information he will be acting in the exercise of hisdiscretion. He may call for any kind of information. With this power he will beable to control and restrain the ministry from doing irresponsible acts. In myopinion taking the Governor as he is conceived to be under the Constitution hewill exercise very important functions and therefore it is very necessary toretain the words relating to his discretion in Article 143.

ShriH. V. Pataskar (Bombay: General): Sir, Article 143 is perfectly clear. Withregard to the amendment of my honourable Friend Mr. Kamath various points wereraised, whether the Governor is to be merely a figure-head, whether he is to bea constitutional head only or whether he is to have discretionary powers. To mymind the question should be looked at from and entirely different point of view.Article 143 merely relates to the functions of the ministers. It does notprimarily relate to the power and functions of a Governor. It only says:

"There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions."

Granting that we stop there, is it likely thatany complications will arise or that it will interfere with the discretionarypowers which are proposed to be given to the Governor? In my view Article 188 isprobably necessary and I do not mean to suggest for a moment that the Governor'spowers to act in an emergency which powers are given under Article 188, shouldnot be there. My point is this, whether if this Provision, viz., "except inso far as he is by or under this Constitution required to exercise his functionsor any of them in his discretion", is not there, is it going to affect thepowers that are going to be given to him to act in his discretion under Article188? I have carefully listened to my honourable Friend and respectedconstitutional lawyer. Mr. Alladi Krishnaswami Ayyer, but I was not able tofollow why a provision like this is necessary. He said that instead later on,while considering Article 188, we might have to say "Notwithstandinganything contained in Article

143." Inthe first place to my mind it is not necessary. In the next place, even grantingthat it becomes necessary at a later stage to make provision on Article 188 bysaying "notwithstanding anything contained in Article 143", it looksso obnoxious to keep these words here and they are likely to enable certainpeople to create a sort of unnecessary and unwarranted prejudice against certainpeople. Article 143 primarily relates to the functions of the ministers. Why isit necessary at this stage to remind the ministers of the powers of the Governorand his functions, by telling them that they shall not give any aid or advice inso far as he, the Governor is required to act in his discretion? This is anArticle which is intended to define the powers and functions of the ChiefMinister. At that point to suggest this, looks like lacking in courtesy andpoliteness. Therefore I think the question should be considered in that way. Thequestion is not whether we are going to give discretionary power to theGovernors or not. The question is not whether he is to be merely a figure-heador otherwise. These are question to be debated at their proper time and place.When we are considering Article 143 which defines the function of the Chiefminister it looks so awkward and unnecessary to say in the same "except inso far as he is by or under this Constitution required to exercise his functionsor any of them in his discretion." Though I entirely agree that Article 188is absolutely necessary suggest that in this Article 143 these words areentirely unnecessary and should not be there. Looked at from a practical pointof view this provision is misplaced and it is not courteous, nor polite, norjustified nor relevant. I therefore suggest that nothing would be lost bydeleting these words. I do not know whether my suggestion would be acceptablebut I think it is worth being considered from a higher point of view.

Shri Krishna Chandra Sharma (United Provinces:General): Sir, the position is that under Article 41 the executive powers of theUnion are vested in the President and these may be exercised by him inaccordance with the Constitution and the law. Now, the President of the Union isresponsible for the maintenance of law and order and for good Government. TheCabinet of the State is responsible to the people through the majority in theLegislature. Now, what is the link between the President and the State? The linkis the Governor. Therefore through the Governor alone the President candischarge his functions for the good Government of the country. In abnormalcircumstances it is the Governor who can have recourse to the emergency powersunder Article 188. Therefore the power to act in his discretion under Article143 ipso facto follows and Article 188 is necessary and cannot be done awaywith. Therefore certain emergency powers such as under Article 188 are necessaryfor the Governor to discharge his function of maintaining law and order and tocarry on the orderly government of the State.

I wish to say word more with regard to ProfessorShah's amendment that the Minister shall be responsible to the Governor. TheMinister has a majority in the legislature and as such, through the majority, heis responsible to the people. If he is responsible to the Governor, asdistinguished from his responsibility to the Legislature and through thelegislature to the people of the State, then he can be overthrown by themajority in the legislature and he cannot maintain his position. He cannot holdthe office. Therefore it is an impossible proposition that a Minister could everbe responsible to the Governor as distinguished from his responsibility to thepeople through the majority in the legislature. He

shouldtherefore be responsible to the Legislature and the people and not to thePresident. That is the only way in which under the scheme in the DraftConstitution the government of the country can he carried on.

(underlined for emphasis)

Shri Rohini Kumar Chaudhari: (Assam: General): Irise to speak more in quest of clarification and enlightenment than out of anyambition to make a valuable contribution to this debate.

Sir, one point which largely influenced thisHouse in accepting the Article which provided for having nominated Governors wasthat the Honourable Dr. Ambedkar was pleased to assure us that the Governorwould be merely a symbol. I ask the honourable Dr. Ambedkar now, whether anyperson who has the right to act in his discretion can be said to be a meresymbol. I am told that this provision for nominated governorship was made on themodel of the British Constitution. I would like to ask Dr. Ambedkar if HisMajesty the king of English acts in his discretions in any matter. I am told--Imay perhaps be wrong--that His Majesty has no discretion even in the matter ofthe selection of his bride. That is always done for him by the Prime Minister ofEngland.

Sir, I know to my cost and to the cost of myProvince what 'acting by the Governor in the exercise of his discretion' means.It was in the year

1942 that a Governoracting in his discretion selected his Ministry from a minority party and thatminority was ultimately converted into a majority. I know also, and the Housewill remember too, that the exercise of his discretion by the Governor of theProvince of Sindh led to the dismissal of one of the popular Ministers--Mr.Allah Bux. Sir, if in spite of this experience of ours we are asked to clothethe Governors with the powers to act in the exercise of their discretion, I amafraid we are still living in the past which we all wanted to forget.

We have always thought that it is better to begoverned by the will of the people than to be governed by the will of a singleperson who nominates the Governor who could act in his discretion. If thisGovernor is given the power to act in his discretion there is no power on earthto prevent him from doing so. He can be a veritable king Stork. Furthermore, asthe Article says, whenever the Governor thinks that he is acting in hisdiscretion nowhere can he be questioned.

There may be a dispute between theMinisters and the Governor about the competence of the former to advise theGovernor; the Governor's voice would prevail and the voice of the Ministerswould count for nothing. Should we in this age countenance such a state ofaffairs? Should we take more then a minute to dismiss the idea of having aGovernor acting in the exercise of his discretion? It may be said that thismatter may be considered hereafter. But I feel that when once we agree to thisprovision, it would not take long for us to realise that we have made a mistake.Why should that be so? Is there any room for doubt in this matter? Is there anyroom for thinking that anyone in this country, not to speak of the members ofthe legislature, will ever countenance the idea of giving the power to the

Governor nominated by a single person to act inthe exercise of his discretion? I would submit, Sir, if my premise is correct,we should not waste a single moment in discarding the provisions which empowerthe Governor to act in his discretion.

(underlined for emphasis)

I also find in the last clause of this Articlethat the question as to what advice was given by a Minister should not beenquired into in any court. I only want to make myself clear on this point.There are two functions to be discharged by a Governor. In one case he has toact on the advice of the Minister and in the other case he has to act in theexercise of his discretion. Will the Ministry be competent to advise theGovernor in matters where he can exercise his discretion? If I remember a right,in 1937 when there was a controversy over this matter whether Ministers would becompetent to advise the Governor in matters where the Governor could use hisdiscretion, it was understood that Ministers would be competent to advise theGovernor in the exercise of his discretion also and if the Governor did notaccept their advice, the Ministers were at liberty to say what advice they gave.I do not know that is the intention at present. There may be cases where theMinisters are competent to give advice to the Governor but the Governor does notaccept their advice and does something which is unpopular. A Governor who isnominated by the Centre can afford to be unpopular in the province where he isacting as Governor. He may be nervous about public opinion if he serves in hisown province but he may not care about the public opinion in a province where heis only acting. Suppose a Governor, instead of acting on the advice of hisMinister, acts

in a different way. If theMinister are criticised for anything the Governor does on his own, and theMinisters want to prosecute a party for such criticism, would not the Ministershave the right to say that they advised the Governor to act in a certain way butthat the Governor acted in a different way? Why should we not allow theMinisters the liberty to prosecute a paper, a scurrilous paper, a misinformedpaper, which indulged in such criticism of the Ministers? Why should not theMinisters be allowed to say before a court what advice they gave to theGovernor? I would say, Sir--and I may be excused for saying so--that the bestthat can be said in favour of this Article is that it is a close imitation of asimilar provision in the Government of India Act, 1935, which many Members ofthis House said, when is was published, that they would not touch even with apair of tongs.

(underlined for emphasis)

The Honourable Dr. B. R. Ambedkar : Mr.President, Sir, I did not think that it would have been necessary for me tospeak and take part in this debate after what my Friend, Mr. T. T.Krishnamachari, had said on this amendment of Mr. Kamath, but as my Friend,Pandit Kunzru, pointedly asked me the question and demanded a reply, I thoughtthat out of courtesy I should say a few words. Sir, the main and the crucialquestion is, should the Governor have discretionary powers? It is that questionwhich is the main and the principal question. After we come to some decision onthis question, the other question whether the words used in the last part ofclause (1) of Article 143 should be retained in that Article or should be

transferred somewhere else could be usefullyconsidered. The first thing, therefore, that I propose to do so is to devotemyself of this question which, as I said, is the crucial question. It has beensaid in the course of the debate that the retention of discretionary power inthe Governor is contrary to responsible government in the provinces. It has alsobeen said that the retention of discretionary power in the Governor smells ofthe Government of India Act, 1935, which in the main was undemocratic. Now,speaking for myself, I have no doubt in my mind that the retention on thevesting the Governor with certain discretionary powers is in no sense contraryto or in no sense a negation of responsible government. I do not wish to rake upthe point because on this point I can very well satisfy the House by referenceto the provisions in the Constitution of Canada and the Constitution ofAustralia. I do not think anybody in this House would dispute that the Canadiansystem of government is not a fully responsible system of government, nor willanybody in this House challenge that the Australian Government is not aresponsible form of government. Having said that, I would like to read section55 of the Canadian Constitution.

"Section 55.--Where a Bill passed by theHouse of Parliament is presented to the Governor-General for the Queen's assent,he shall, according to his discretion, and subject to the provisions of thisAct, either assent thereto in the Queen's name, or withhold the Queen's assentor reserve the Bill for the signification of the Queen's pleasure."

(underlinedfor emphasis)

Pandit Hirday Nath Kunzru: May I ask

Dr.Ambedkar when the British North

America Actwas passed?

The Honourable Dr. B. R. Ambedkar : That does notmatter at all. The date of the Act does not matter.

Shri H. V. Kamath: Nearly a century ago.

The Honourable Dr. B.R. Ambedkar : This is myreply. The Canadians and the Australians have not found it necessary to deletethis provision even at this stage. They are quite satisfied that the retentionof this provision in section 55 of the Canadian Act is fully compatible withresponsible government. If they had left that this provision was not compatiblewith responsible government, they have even today, as Dominions, the fullestright to abrogate this provision. They have not done so. Therefore in reply toPandit Kunzru I can very well say that the Canadians and the Australians do notthink such a provision is an infringement of responsible government.

Shri Lokanath Misra (Orissa : General): On apoint of order, Sir, are we going to have the status of Canada or Australia? Orare, we going to have a Republic Constitution?

The Honourable Dr. B. R. Ambedkar : I could notfollow what he said. If, as I hope, the House is satisfied that the existence ofa provision vesting a certain amount of discretion in the Governor is notincompatible or inconsistent with responsible government, there can be nodispute that the retention of this clause is desirable and, in my judgment,necessary. The only question that arises is....

Pandit Hirday Nath Kunzru : Well, Dr. Ambedkarhas missed the point of the criticism altogether. The criticism is not that inArticle 175 some powers might not be given to the Governor, the criticism isagainst vesting the Governor with certain discretionary powers of a generalnature in the Article under discussion.

The Honourable Dr. B. R. Ambedkar: I think he hasmisread the Article. I am sorry I do not have the Draft Constitution with me."Except in so far as he is by or under this Constitution," those arethe words. If the words were "except whenever he thinks that he shouldexercise this power of discretion against the wishes or against the advice ofthe ministers", then I think the criticism made by my honourable FriendPandit Kunzru would have been valid. The clause is a very limited clause; itsays: "except in so far as he is by or under this Constitution".Therefore, Article 143 will have to be read in conjunction with such otherArticles which specifically reserve the power to the Governor. It is not ageneral clause giving the Governor power to disregard the advice of hisministers in any matter in which he finds he ought to disregard. There, I think,lies the fallacy of the argument of my honourable Friend, Pandit Kunzru.

Therefore, as I said, having stated that there isnothing incompatible with the retention of the discretionary power in theGovernor in specified cases with the system of responsible Government, the onlyquestion that arises is, how should we provide for the mention of thisdiscretionary power? It seems to me that there are three ways by which thiscould be done. One way is to omit the words from Article 143 as my honourableFriend, Pandit Kunzru, and others desire and to add to such Articles as 175, or188 or such other provisions which the House may hereafter introduce, vestingthe Governor with the discretionary power, saying notwithstanding Article 143,the Governor shall have this or that power. The other way would be to say inArticle 143, "that except as provided in Articles so and so specificallymentioned-Article 175, 188, 200 or whatever they are". But the point I amtrying to submit to the House is that the House cannot escape from mentioning insome manner that the Governor shall have discretion.

Now the matter which seems to find some kind offavour with my honourable Friend, Pandit Kunzru and those who have spoken in thesame way is that the words should be omitted from here and should be transferredsomewhere else or that the specific Articles should be mentioned in Article 143.It seems to me that this is a mere method of drafting. There is no question ofsubstance and no question of principle. I personally myself would be quitewilling to amend the last portion of clause (1) of Article 143 if I knew at thisstage what are the provisions that this Constituent Assembly proposes to makewith regard to the vesting of the Governor with discretionary power. Mydifficulty is that we have not as yet come either to Articles 175 or 188 norhave we exhausted all the possibilities of other

provisionsbeing made, vesting the Governor with discretionary power. If I knew that, Iwould very readily agree to amend Article 143 and to mention the specific, butthat cannot be done now. Therefore, my submission is that no wrong could be doneif the words as they stand in Article 143 remains as they are. They arecertainly not inconsistent.

Shri H. V. Kamath: Is there no materialdifference between Article 61(1) relating to the President vis-a-vis hisministers and this ?

The Honourable Dr. B. R. Ambedkar : Of coursethere is because we do not want to vest the President with any discretionarypower. Because the provincial Governments are required to work in subordinationto the Central Government, and therefore, in order to see that they do act insubordination to the Central Government the Governor will reserve certain thingsin order to give the President the opportunity to see that the rules under whichthe provincial Governments are supposed to act according to the Constitution orin subordination to the Central Government are observed.

Shri H. V. Kamath: Will it not be better tospecify certain Articles in the Constitution with regard to discretionary power,instead of conferring general discretionary powers like this?

The Honourable Dr. B. R. Ambedkar : I said so,that

would very readily do it. I am preparedto introduce specific Articles, if I knew what are the Articles which the Houseis going to incorporate in

the Constitutionregarding vesting of the discretionary powers in the Governor.

Shri H. V. Kamath: Why not hold it over?

The Honourable Dr. B. R. Ambedkar : We canrevise. This House is perfectly competent to revise Article 143. If after goingthrough the whole of it, the House feels that the better way would be to mentionthe Articles specifically, it can do so. It is purely a logomachy.

Shri H. V. Kamath: Why go backwards and forwards?

Mr. President: The question is:

"That in clause (1) of Article 143, the words 'except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion be deleted."

The amendment was negatived.

Mr. President: The question is:

"That in clause (1) of Article 143, after the word 'head' a comma be placed and the words 'who shall be responsible to the Governor and shall' be inserted and the word 'to' be deleted."

The amendment was negatived. Mr. President: Thequestion is:

"That Article 143 stand part of theConstitution." The motion was adopted. Article 143 was added to theConstitution.

Constituent Assembly met on 2^ndJune,1949

ARTICLE 153

Mr. President: Article 153 is for theconsideration of the House.

With regard to the very first amendment, No.2321, as we had a similar amendment with regard to Article 69 which wasdiscussed at great length the other day, does Professor Shah wish to move it?

Prof. K. T. Shah: If I am in order I would liketo move it. But if you rule it out, it cannot be moved.

Mr. President: It is not a question of ruling itout. If it is moved, there will be a repetition of the argument once putforward.

Prof. K. T. Shah: I agree that this is a similaramendment, but not identical.

Mr. President: I have not said it is identical.

Prof. K. T. Shah: All right. I do not move it,Sir.

Mr. President: Amendment Nos. 2322, 2323, 2324,2325 and 2326 are not moved, as they are verbal amendments.

Prof. K. T. Shah: As my amendment No. 2327 ispart of the amendment not moved, I do not move it.

Mr. President: Then amendments Nos. 2328, 2329and 2330 also go. Amendment No. 2331 is not moved.

Mr. Mohd. Tahir (Bihar: Muslim): Mr. President, Imove:

"That at the end of sub-clause (c) of clause(2) of Article 153, the words ‘if the Governor is satisfied that theadministration is failing and the ministry has become unstable’ beinserted."

In this clause certain powers have been given tothe Governor to summon, prorogue or dissolve the Legislative Assembly. Now Iwant that some reasons may be enumerated which necessitate the dissolution of aHouse. I find that to clause (3) of Article 153 there is an amendment of Dr.Ambedkar in which he wants to omit the clause which runs thus: "(3) thefunctions of the Governor under sub-clause (a) and (c) of clause (2) of thisArticle shall be exercised by him in his discretion." I, on the other hand,want that some reasons should be given

for the dissolution. Nowhere inthe Constitution are we

enumerating the conditions and circumstancesunder which the House can be dissolved. If we do not put any condition, theremight be difficulties. Supposing in some province there is a party in power withwhose views the some reasons to dissolve the Assembly and make arrangements forfresh elections. If such things happen there will be no justification for adissolution of the House. Simply because a Governor does not subscribe to theviews of the majority party the Assembly should not be dissolved. To avoid suchdifficulties I think it is

necessary that some conditions andcircumstances should be enumerated in the Constitution under which alone theGovernor can dissolve the House. There should

be no other reason for dissolution of the Houseexcept mal-administration or instability of the Ministry and its unfitness towork. Therefore this matter should be considered and we should provide forcertain conditions and circumstances under which the Governor can dissolve theHouse.

(underlined for emphasis)

Mr. President: The next amendment, No. 2333, isnot moved. Dr. Ambedkar may move amendment No. 2334.

The Honourable Dr.B.R. Ambedkar: Sir, I move:

"That clause (3) of Article 153 beomitted."

This clause is apparently inconsistent with thescheme for a Constitutional Governor.

Mr. President: Amendment No. 2335 is the same asthe amendment just moved. Amendment No. 2336 is not moved.

Shri H.V. Kamath: Mr. President, Sir, may I haveyour leave to touch upon the meaning or interpretation of the amendment that hasjust been moved by my learned Friend, Dr. Ambedkar? If this amendment isaccepted by the House it would do away with the discretionary powers given tothe Governor. There is, however, subclause (b). Am I to understand that so faras proroguing of the House is concerned, the Governor acts in consultation withthe Chief Minister or the Cabinet and therefore no reference to it is necessaryin clause (3)?

Mr. President: He wants clause (3) to be deleted.

Shri H.V. Kamath: In clause (3) there isreferences to sub-clauses (a) and (c). I put (a) and (b) on a par with eachother. The Governor can summon the Houses or either House to meet at such timeand place as he thinks fit. Then I do not know why the act of prorogation shouldbe on a different level.

Mr. President: That is exactly what is not beingdone now. All the three are being put on a par.

Shri H. V. Kamath: Then I would like to refer toanother aspect of this deletion. That is the point which you were good enough toraise in this House the other day, that is to say, that the President of theUnion shall have a Council of Ministers to aid and advise him in the exercise ofhis functions.

The corresponding Article here is 143:

"There shall be a Council of Minister withthe Chief Minister at the head to aid and advise the Governor in the exercise ofhis functions......"

Sir, as you pointed out in connection with anArticle relating to the President vis-a-vis his Council of Ministers, is thereany provision in the Constitution which binds the Governor to accept or tofollow always the advice tendered to him by his Council of Ministers? Power isbeing conferred upon him under this Article to dissolve the LegislativeAssembly. This is a fairly serious matter in all democracies. There have beeninstances in various democracies, even in our own provinces sometimes, when aCabinet seeking to gain time against a motion of censure being brought againstthem, have sought the Governor's aid, in getting the Assembly prorogued. This ofcourse is not so serious as dissolution of the Legislative Assembly. Here theArticle blindly says, "subject to the provisions of this Article." Asregards clause (1) of the Article, I am glad that our Parliament and our otherLegislatures would meet more often and for longer periods. I hope that will beconsidered and will be given effect to at the appropriate time. Clause (2) ofthis Article is important because it deals with the dissolution of the Assemblyby the Governor of a State and in view of the fact that there is no specificprovision-of course it may be understood and reading between the lines Dr.Ambedkar might say that the substance of it is there, but we have not yetdecided even to do away with the discretionary powers of the Governor to acceptthe advice tendered to him by his Council of Ministers, there is a lacuna in theConstitution. Notwithstanding this, we are conferring upon him the power todissolve the Legislative Assembly, without even mentioning that he shouldconsult or be guided by the advice of his Ministers in this regard. I amconstrained to say that this power which we are conferring upon the Governorwill be out of tune with the new set-up that we are going to create in thecountry

unless we bind the Governor to accept the advicetendered to him by his Minister. I hope that this Article will be held over andthe Drafting Committee will bring forward another motion later on revising oraltering this Article in a suitable manner.

Shri Gopal Narain (United Provinces: General):Mr. President, Sir, before speaking on this, I wish to lodge a complaint andseek redress from you. I am one of those who have attended all the meetings ofthis Assembly and sit from beginning to the end, but my patience has beenexhausted now. I find that there are a few honourable Members of this House whohave monopolised all the debates, who must speak on every Article, on everyamendment and every amendment to amendment. know, Sir, that you have your ownlimitations and you cannot stop them under the rules, though I see from yourface that also feel sometimes bored, but you cannot stop them. I suggest to you,Sir, that some time-limit may be imposed upon some Members. They should not beallowed to speak for more than two or three minutes. So far as this Article isconcerned, it has already taken fifteen minutes, though there is nothing new init, and it only provides discretionary powers to the Governor. Still a Membercomes and oppose it. I seek redress from you, but if you cannot do this, thenyou must allow us at least to sleep in our seats or do something else than sitin this House. Sir, I support this Article.

Mr. President: I am afraid I am helpless in thismatter. I leave it to the good sense of the Members.

Shri Brajeshwar Prasad: (Rose to speak).

Mr. President: Do you wish to speak after this?(Laughter).

The Honourable Dr. B.R. Ambedkar: I do not thinkI need reply. This matter has been debated quite often. Mr. President: Then Iwill put the amendments to vote.

The question is:

"That at the end ofsub-clause (c) of clause (2) of Article 153, the words `if the Governor issatisfied that the administration is failing and the ministry has becomeunstable’ be inserted."

The amendment was negatived.

Mr. President: The question is:

"That clause (3) of Article 153 beomitted."

The amendment was adopted.

Mr. President: The question is:

"That Article 153, as amended, stand part ofthe
Constitution."

The motion was adopted.Article 153, as amended, was added to the Constitution

Constituent Assembly met on 3^rdAugust,1949

Article 278. Provisions in case of Failure ofConstitutional machinery in States.

xxx xxx xxx xxx

Pandit Hirday Nath Kunzru (United Provinces:General):

Mr. President, I am really very glad that the framers of theConstitution have at last accepted the view that Article 188 should not find aplace in our Constitution. That Article was inconsistent with the establishmentof responsible Government in the provinces and the new position of the Governor.It is satisfactory that this has at last been recognised and that the Governoris not going to be invested with the power that Article 188 proposed to conferon him. It is, however, now proposed to achieve the purpose of Article 188 andthe old Article 278 by a revision of Article 278. We have today to direct ourattention not merely to Articles 278 and 278-A, but also to Article 277-A. ThisArticle lays down that it will be the duty of the Union to ensure that thegovernment of every State is carried on in accordance with the provisions ofthis Constitution. It does not merely authorise the Central Government toprotect the State against external aggression or internal Commotion; it goesmuch further
and casts on it the duty of seeing that theGovernment of a province is carried on in accordance with the provision of thisConstitution. What exactly do these words mean? This should be clearly explainedsince the power to ensure that the provincial constitutions are being worked ina proper way makes a considerable addition to the powers that the CentralGovernment will enjoy to protect a State against external aggression or internaldisturbance. I think, Sir, that it will be desirable in this connection toconsider Articles 275 and 276, for their provisions have vital bearing on the sthat have been placed before us. Article 275 says that, when the President issatisfied that a grave emergency exists threatening the security of India or ofany part of India, then he may make a declaration to that effect. Such adeclaration will cease to operate at the end of two months, unless before theexpiry of this period, it has been approved by resolutions passed by both Housesof Parliament. If it is so approved, then, the declaration of emergency mayremain in force indefinitely, that is, so long as the Executive desires it toremain in force, or so long as Parliament allows it to remain in force. So longas the Proclamation operates, under Article 276, the Central Government will beempowered to issue directions to the government of any province as regards themanner in which its executive authority should be exercised and the
Central Parliament will be empowered to make lawswith regard to any matter even though it may not be included in the Union List.It will thus have the power of passing laws on subjects included in the StateList. Further, the Central Legislature will be able to confer powers and imposeduties on the officers and authorities of the Government of India in regard toany matter in respect of which it is competent to pass legislation. Now theeffect of these two Articles is to enable the Central Government to intervenewhen owing to external or internal causes the peace and tranquility of India orany part of it is threatened. Further, if misgovernment in a province creates somuch dissatisfaction as to endanger the public peace, the Government of Indiawill have sufficient power, under these Articles to deal with the situation.What more is needed then in order to enable the Central Government to see thatthe government of a province is carried on in a proper manner. It is obviousthat the framers of the Constitution arc thinking not of the peace andtranquility of the country, of the maintenance of law and order but of goodgovernment in provinces. They will intervene not merely to protect provincesagainst external aggression and internal disturbances but also to ensure goodgovernment within their limits. In other words, the Central Government will havethe power to intervene to protect the electors against themselves. If there is
mismanagement or inefficiency or corruption in aprovince, I take it that under Articles 277, 278 and 278-A taken together theCentral Government will have the power. I do not use the word 'President'because he will be guided by the advice of his Ministers to take the governmentof that province into its own hands. My honourable Friend, Mr. Santhanam gavesome instances in order to show how a breakdown might occur in a province evenwhen there was no external aggression, no war and no internal disturbance. Hegave one very unfortunate illustration to explain his point. He asked us tosuppose that a number of factions existed in a province which prevented thegovernment of that province from being carried on in accordance with theprovisions of this Act i.e., I suppose efficiently. He placed before us his viewthat in such a case a dissolution of the provincial legislature should takeplace so that it might be found out whether the electors were capable ofapplying a proper remedy to the situation. If, however, in the new legislaturethe old factions-I suppose by factions he meant parties-re-appeared, then theCentral Government in his opinion would be justified in taking over theadministration of the province. Sir, if there is a multiplicity of parties inany province we may not welcome it, but is that fact by itself sufficient towarrant the Central Government's Interference in provincial
administration? There are many parties in somecountries making ministries unstable. Yet the Governments of those countries arecarried on without any danger to their security or existence. It may be a matterof regret if too many parties exist in a province and they are not able to worktogether or arrive at an agreement on important matters in the interests oftheir province; but however regrettable this may be, it will not justify in myopinion, the Central Government in intervening and making itself jointly withParliament responsible for the government of the province concerned. As I havealready said, if mismanagement in a province takes place to such an extent as tocreate a grave situation in India or in any part of it, then the CentralGovernment will have the right to intervene under Articles 275 and 276. Is itright to go further than this? We hear serious complaints against thegovernments of many provinces at present, but it has not been suggested so farthat it will be in the ultimate interests of the country and the provincesconcerned that the Central Government should set aside the provincialgovernments and practically administer the provinces concerned, as if they wereCentrally administered areas. It may be said, Sir, that the provincialgovernments at present have the right to intervene when a municipality orDistrict Board is guilty of gross and persistent mal
-
administration, but a municipality or a DistrictBoard is too small to be compared for a moment in any respect with a province.The very size of a province and the number of electors in it place it on afooting of its own. If responsible government is to be maintained, then theelectors must be made to feel that the power to apply the proper remedy whenmisgovernment occurs rests with them. They should know that it depends upon themto choose new representatives who will be more capable of acting in accordancewith their best interests. If the Central Government and Parliament are giventhe power that Articles 277, 278 and 278-A read together propose to confer onthem, there is a serious danger that whenever there is dissatisfaction in aprovince with its government, appeals will be made to the Central Government tocome to its rescue. The provincial electors will be able to throw theirresponsibility on the shoulders of the Central Government. Is it right that sucha tendency should be encouraged? Responsible Government is the most difficultform of government. It requires patience, and it requires the courage to takerisks. If we have neither the patience nor the courage that is needed, ourConstitution will virtually be stillborn. I think, therefore, Sir, that theArticles that we are discussing are not needed. Articles 275 and 276 give theCentral Executive and Parliament all the power that can
reasonably be conferred on them in order toenable them to see that law and order do not break down in the country, or thatmisgovernment in any part of India is not carried to such lengths as tojeopardise the maintenance of law and order. It is not necessary to go anyfurther. The excessive caution that the framers of the Constitution seem to bedesirous of exercising will, in my opinion, be inconsistent with the spirit ofthe Constitution, and be detrimental, gravel detrimental, to the growth of asense of responsibility among the provincial electors.

Before concluding, Sir, I should like to draw theattention of the House to the Government of India Act, 1935 as adopted by theIndia (Provisional Constitution) Order, 1947. Section 93 which formed animportant part of this Act as originally passed, has been omitted from the Actas adopted in 1947, and I suppose it was omitted because it was thought to beinconsistent with the new order of things. My honourable Friend Mr. Santhanamsaid that in the Government of India Act, 1935, the Governor who was allowed toact in his discretion would not have been responsible to any authority. That, Ithink, is a mistake I may point out that the Governor, in respect of all powersthat he could exercise in his discretion, was subject to the authority of theGovernor-General and

through him and the Secretary of State for India,to the British Parliament. The only difference now is that our executive,instead of being responsible to an electorate 5,000 miles away, will beresponsible to the Indian electors. This is an important fact that must beclearly recognised, but I do not think that the lapse of two years since theadapted Government of India Act, 1935, came into force, warrants the acceptanceof the Articles now before us. The purpose of section 93 was political. Itsobject was to see that the Constitution was not used in such away as to compelthe British Government to part with more power than it was prepared to give tothe people of India. No such antagonism between the people and the Government ofIndia can exist in future. Whatever differences there may be, will arise inregard to administrative or financial or economic questions. Suppose a provincein respect of economic problems, takes a more radical line than the Governmentof India would approve. I think this will be no reason for the interference ofthe Government of India.

Shri T. T. Krishnamachari (Madras: General): Whathappens if the provincial government deliberately refuses to obey the provisionsof the Constitution and impedes the Central Government taking action underArticle 275 and 276?

Pandit Hirday Nath Kunzru: No province can do it.It cannot because it would be totally illegal. But if such a situation arisesthe Central Government will have sufficient power under Articles 275 and 276 tointervene at once. It will have adequate power to take any action that it likes.It can ask its own officers to take certain duties on themselves and if thoseofficers are impeded in the discharge, of their duties, or, if force is usedagainst them-to take an extreme case-the Central Government will be able to meetsuch a challenge effectively, without our accepting the Articles now before us.I should like the House to consider the point raised by my honourable Friend Mr.Krishnamachari very carefully. I have thought over such a situation in my ownmind, over and over again, and every time I have come to the conclusion thatArticles 275 and 276 will enable the Government of India to meet effectivelysuch a manifestation oil recalcitrance, such a rebellious attitude as thatsupposed by Mr. Krishnamachari. In such a grave situation, the Government ofIndia will have the power to take effective action under Articles 275 and 276.What need is there then for the Articles that have been placed before us?

Sir, one of the speakers said that we should notbe legalistic. Nobody has discussed the Articles moved by Dr. Ambedkar in alegalistic spirit. I certainly have not

discussed it in a narrow, legal way. I amconsidering the question from a broad political point of view from the point ofview of the best interests of the country and the realization by provincialelectors of the important fact that they and they alone are responsible for thegovernment of their province. They must understand that it rests with them todecide how it should be carried on.

Sir, even if the framers of the Constitution arenot satisfied with the arguments that I have put forward and want that theCentral Government should have more power than that given to it by Articles 275and 276, I should ask them to pause and consider whether there was not a betterway of approaching this question for the time being. In view of the discussionsthat have taken place in this House and outside, it seems to me that there is arespectable body of opinion in favour of not making the Constitution rigid, thatis, there are many people who desire that for some time to come amendments tothe Constitution should be allowed to be made in the same way as those ofordinary laws are. I think that the Prime Minister in a speech that he made heresome months ago expressed the same view. If this idea is accepted by the House,if say for five years the Constitution can be amended in the same way as anordinary law, then we shall have sufficient time to see

how the Provinces develop and how theirgovernment is carried on. If experience shows that the position is sounfortunate as to require that the Central Government should make itselfresponsible not merely for the safety of every Province but also for its goodgovernment, then you can come forward with every justification for an amendmentof the Constitution. But I do not see that there is any reason why the Houseshould agree to the Articles placed before us today by Dr. Ambedkar.

Sir, I oppose these Articles.

Shri L. Krishnaswami Bharathi (Madras: General):Sir, I felt impelled by a sense of duty to place a certain point of view beforethe House, or else I would not have come before the mike. I feel the need for abrief speech. I accord my wholehearted support to the new Articles moved by Dr.Ambedkar, but I am not at all convinced of the wisdom of the Drafting Committeein deleting Article 188. It is this point of view which I want to emphasise.

Sir, that Article has a history behind it. Therewas a full-dress debate on it for two days when eminent Premiers participated init. We must understand what Article 188 is for. It is not for normal conditions.It is in a state of grave emergency that a Governor was, under this Article,

invested with some powers. I may remind the Houseof the debate where it was Mr. Munshi's amendment which ultimately formed partof Article 188. In moving the amendment Dr. Ambedkar said that no useful purposewould be served by allowing the Governor to suspend the Constitution and thatthe President must come into the picture even earlier. Article 188 provides forsuch a possibility. It merely says that when the Governor is satisfied thatthere is such a grave menace to peace and tranquility he can suspend theConstitution. It is totally wrong to imagine that he was given the power tosuspend the Constitution for a duration of two weeks. Clause (3) provides thatit is his duty to forthwith communicate his Proclamation to the President andthe President will become seized of the matter under Article 188. That is animportant point which seems lost sight of. The Governor has to immediatelycommunicate his Proclamation. The Article was necessitated because it wasconvincingly put forward by certain Premiers. There may be a possibility that itis not at all possible to contact the President. Do you rule out the possibilityof a state of inability to contact the Central Government? Time is of theessence of the matter. By the time you contact and get the permission, manythings would have happened and the delay would have defeated the very purposebefore us. The, honourable Mr. Kher said that it is not necessary to

keep this Article because we have all sorts ofcommunications available. In Bombay I know of instances where we have not beenable to contact the Governor for not less than twenty-four hours What is theprovision under Article 278? The Governor of Madras says there is a danger topeace and tranquility. Assuming for a moment that the communications are allright, the President cannot act. He has to convene the Cabinet; the members ofthe Cabinet may not be readily available; and by the time he convenes theCabinet and gets their consent the purpose of the Article would be defeated.Therefore, it was only with a view to see in such a contingency where theGovernor finds, that delay will defeat the very objective, that Article 188 wasprovided for. I see no reason why the Drafting Committee in their wisdom ruledout such a possibility. It is no doubt true that the Article was framed twoyears ago, but since those two years many things have happened that show thatthere is urgent need for the man on the spot to decide and act quickly so that acatastrophe may be prevented. Today there is an open defiance of authorityeverywhere and that defiance is well-organised. Before the act, they cut off thetelephone wires, as they did in the Calcutta Exchange. That is what is happeningin many parts of the country. Therefore, when there is a coup d'etat it is justpossible they will cut off

communications and difficulties may arise. It isonly to provide for this possibility that the Governor is given these powers. Ido not think there will be any fool of a Governor who will, if there is time,fail to inform the President. I would like to have an explanation as to why thisfool-proof arrangement has been changed and why we have become suspicious thatthe Governor will act in a wrong manner. According to the provision, he has toforthwith communicate to the President and the President may say, "Well, Iam not convinced; cancel it." You must take into consideration that theGovernor will be responsible, acting wisely and in order to save the countryfrom disaster. The President comes into the picture directly, because theGovernor has to communicate the matter forthwith according to clause (3) ofArticle 188. As Mr. President said, it is sheer commonsense that the man on thespot should be given the powers to deal with the situation, so that it may notdeteriorate. I am not at all convinced of the wisdom of the change. Theprovision as now proposed is not as foolproof as it ought to be.

(underlined for emphasis)

Besides, I would like to have an explanation asto why the Drafting Committee goes out of the way to delete the

provision which was considered and accepted bythe House previously. In my view it is improper, because the House had decidedit. If we appoint a Drafting Committee, we direct them to draft on the basis ofthe decisions taken by us. Is this the way in which they should draft? Theirduty was to scrutinise the decisions already arrived at and then draft on thatbasis. Therefore,

would like to have an explanation ----aconvincing explanation---as to what happened within these two years which hasmade the members of the Drafting Committee delete this wholesome, healthy anduseful provision.

Mr. Naziruddin Ahmad: Mr. President, Sir, I thinkthat the amendments moved by Dr. Ambedkar constitute startling and revolutionarychanges in the Constitution. I submit a radical departure has been made from ourown decisions. We took important decisions in this House as to the principles ofthe Constitution and we adopted certain definite principles and Resolutions andthe Draft Constitution was prepared in accordance with them. Now, everything hasto be given up. Not only the Draft Constitution has been given up, but theofficial amendments which were submitted by Members of the House within theprescribed period which are printed in the official blue book have also beengiven up. During the

last recess some additional amendments to thoseamendments were printed and circulated. Those have also been given up. I beg topoint out that all the amendments and amendments to amendments which have beenmoved today are to be found for the first time only on the amendment lists forthis week which have been circulated only within a day or two from today. Soserious and radical changes should not have been introduced at the last minutewhen there is not sufficient time for slow people like us to see what ishappening and whether these changes really fit in with our original decisionsand with other parts of the Constitution as a whole. I submit that the DraftingCommittee has been drifting from our original decisions, from the DraftConstitution and from our original amendments. It would perhaps be more fittingto call the Drafting Committee "the Drifting Committee". I submit thatthe deletion of Article 188 is a very important and serious departure fromprinciples which the House solemnly accepted before. Some honourable Members whousually take the business of the House seriously have attempted to support thesechanges on the ground that some emergency powers are highly necessary. I agreewith them that emergency powers are necessary and I also agree that seriousforces of disorder are working in a systematic manner in the country and drasticpowers are

necessary. But what I fail to appreciate is theattempt to take away the normal power of the Governor or the Ruler of a State tointervene and pass emergency orders. It is that which is the most seriouschange. In fact, originally the Governor was to be elected on adult suffrage ofthe province, but now we have made a serious departure that the Governor is nowto be appointed by the President. This is the first blow to Provincial Autonomy.Again, we have deprived the Upper Houses in the States of real powers; notmerely have we taken away all effective powers from Upper Houses in theProvinces, but also made it impossible for them to function properly andeffectively. We are now going to take away the right of the Ministers of a Stateand the Members of the Legislatures and especially the people at large fromsolving their own problems. As soon as we deprive the Governor or a Ruler of hisright to interfere in grave emergencies, at once we deprive the electedrepresentatives and the Ministers from having any say in the matter. As soon asthe right to initiate emergency measures is vested exclusively in the President,from that moment you absolve the Ministers and Members of the local legislaturesentirely from any responsibility. The effect of this would mean that their moralstrength and moral responsibility will be seriously undermined. It is the aspectof the problem to which I wish to draw the attention of the House.

(underlined for emphasis)

This aspect of the matter, I submit, has notreceived sufficient or adequate consideration in this House. If there is troublein a State, the initial responsibility for quelling it must rest with theMinisters. If they fail, then the right to initiate emergency measures must lieinitially with the Governor or the Ruler. If you do not allow this, the resultwould be that the local legislature and the Ministers would have responsibilityof maintaining law and order without any powers. That would easily andinevitably develop a kind of irresponsibility. Any outside interference with theright of a State to give and ensure their own good Government will not onlyreceive no sympathy from the Ministers and the members, but the action of thePresident will be jeered at, tabooed and boycotted by the people of the State,the Members of the Legislature and the Ministers themselves.

xxx xxx xxx

Pandit Thakur Das Bhargava : I think theconstitutional machinery cannot be regarded ordinarily to have failed unless thedissolution powers are exercised by the Governor under section 153.

Xxx xxx xxx

I think we are drifting, perhaps unconsciously,towards a dictatorship. Democracy will flourish only in a democratic atmosphereand under democratic conditions. Let people commit mistakes and learn byexperience. Experience is a great tutor. The arguments to the contrary which wehave heard today were the old discarded arguments of the British bureaucracy.

The British said that they must have overriding powers, that we cannot manageour affairs and that they only knew how to manage our affairs. They said alsothat if we mismanaged things they will supersede the constitution and do whatthey thought fit. What has been our reply to this? It was that "Unless youmake us responsible for our acts, we can never learn the business of government.If we mismanage the great constitutional machinery, we must be made responsiblefor our acts. We must be given the opportunity to remedy the defects". Thisargument of ours is being forgotten. The old British argument that they mustintervene in petty Provincial matters is again being revived and adopted by thevery opponents of that argument. In fact, very respected Members of this Houseare adopting almost unconsciously the old argument of the British Government. Isubmit that even the hated British did not

go so far as we do. I submit ourreply to that will be the

same

our

respected

leaders

gave to

the

British

Government.

submit,

therefore,

that

too

much

interference

the

Centre

will

create

unpleasant

reactions in the States. If you abolishprovincial autonomy altogether that would be logical. But to make themresponsible while making them powerless would be not a proper thing to do.

(underlined for emphasis)

Then I come to the proviso to clause (1) ofArticle 278. It safeguards against the rights of the High Court in dealing withmatters within their special jurisdiction. A Proclamation of emergency will notdeprive the High Court of its jurisdiction. That is the effect of this proviso.But it conveniently forgets the existence of the Supreme Court. While it takescare to guarantee the rights of the High Courts against the Proclamation, therights of the Supreme Court are not guaranteed. I only express the hope that theabsence of any mention of the Supreme Court in the proviso will not affect thepowers of that Court.

Shri T. T. Krisnamachari: It is not necessarybecause the Central Government is subject to the jurisdiction of the

Supreme Court under all conditions.

(Underlined for emphasis)

Mr. Naziruddin Ahmad: As the honourable Memberhimself has on a previous occasion said, this Constitution would be the lawyers'heaven. Speaking from experience, I think that this proviso will lead to muchlegal battle, and lawyers alone will be benefited by this. I wish that theinterpretation put forward by Mr. T.

T. Krishnamachari is right, but it is notapparent to me. When we come to clause (2) of Article 278, in this clause it isstated that any such proclamation may be revoked or varied by a subsequentproclamation.

(underlined for emphasis)

Constituent Assembly met on 4th August 1949

The Constituent Assembly of India met in theConstitution Hall, New Delhi, at Nine of the Clock, Mr. President (TheHonourable Dr. Rajendra Prasad) in the Chair.

Articles 188, 277-A and 278-continued.

xxx xxx xxx xxx

Then coming to proposed Article 278-A sub-clause(a) and (b) of clause (1) are new. Clause (a) is new and (b) is consequential.The new point which has been introduced is also revolutionary. Instead ofallowing the Provincial Legislatures to have their say on the emergencylegislation and thereby giving the Provincial Assemblies an opportunity toassess the guilt or innocence of the Ministers or other person or to give averdict, the responsibility is thrown on the Parliament. 'That would again, as Isubmitted yesterday, go to make the Central Government and the Parliamentunpopular in the State concerned. It may happen that Provincial Ministers andothers are guilty of mismanagement and misgovernment; but if we do not allow theProvincial Assemblies to sit in judgment over them, the result would be thatguilty or innocent persons, lawbreakers and law-abiding persons, good or badpeople in the State should all be combined. The result would be that those forwhose misdeeds the Emergency Powers would be necessary, would be made so manyheroes; they would be lionised, and the object of teaching them a lesson wouldbe frustrated. The Centre would be unpopular on the ground that it is poking itsnose unnecessarily and mischievously into their domestic affairs.

Then, Sir, in sub-clause (c) of clause (1) ofthis Article 278-A, the President is expected to authorize and sanction theBudget as the head of the Parliament. This would be an encroachment on thedomestic budget of the Provinces and the States. That would be regarded with agreat deal of dis-favour. It would have been better to allow the Governor or theRuler to function and allow their own budget to be managed in their own way.Subventions may be granted but that expenditure should not be directly managedby the President.

Coming to clause (d) there is an exception infavour of Ordinances under Article 102 to the effect that "the Presidentmay issue Ordinances except when the Houses of Parliament are in session".The sub-clause is misplaced in the present Article. There is an appropriateplace where Ordinances are dealt with. Sub-clause (d) should find a place amongthe group of Articles dealing with Ordinances and not here. This is again theresult of hasty drafting.

These are some of the difficulties that have beencreated. It is not here necessary to deal with them in detail. The mostimportant consequence of this encroachment on the States sphere would be that wewould be helping the communist techniques. Their

technique is that by creating trouble in aProvince or a State, they would partially paralyse the administration andthereby force the Emergency Powers. Then, they will try to make those drasticpowers unpopular. What is more, they will make the guilty Ministers and guiltyofficers heroes. The legislature of the State would, as I have submitted, bedeprived of the right of discussion. If the President takes upon himself theresponsibility of emergency powers, then his action, I suppose, cannot bediscussed in the States legislatures. The only way of ventilating Provincial andStates grievances is to allow the Provinces and the States to find out theguilty persons and hold them up to ridicule and contempt and that would beentirely lost. This would have the effect of bringing all sorts of people goodand bad, law-breaking and law-abiding persons into one congregation. The Centrewill be unpopular and the guilty States would be regarded as so many martyrs andthe Centre would be flouted and would be forced to use more and more

Emergency Powers and would be caught in a viciouscircle. Then, the States will gradually get dissatisfied and they will showcentrifugal tendencies and this will be reflected in the general elections tothe House of the People at the Centre. The result would be that very soon thesevery drastic powers calculated to strengthen the hands of the Centre will berather a source of weakness

in no distant time.

(underlined for emphasis)

xxx xxx

There is an implication in Article 278 which issomething like saying, that you must overcome evil by good and meet lawlessnesswith law. The President has no powers to meet undemocratic forces in the countryexcept in a cratic manner. It is like saying that the forces of evil must beovercome by the forces of non-violence and good. Practical statesmen andlaw-makers will not accept this proposition easily.

Mr. President: Dr. Ambedkar.

The Honourable Dr. B. R. Ambedkar (Bombay :General) : Sir, although these Articles have given rise to a debate which haslasted for nearly five hours, I do not think that there is anything which hasemerged from this debate which requires me to modify my attitude towards theprinciples that are embodied in these Articles. I will

therefore not detain the House much longer with adetailed reply of any kind.

I would first of all like to touch for a minuteon the amendment suggested by my Friend Mr. Kamath in Article 277-A. Hisamendment was that the word "and" should be substituted by the word"or". I do not think that that is necessary, because the word"and" in the context in which it is placed is both conjunctive as wellas disjunctive, which can be read in both ways, "and" or"or", as the occasion may require. I, therefore, do not think that itis necessary for me to accept that amendment, although I appreciate hisintention in making the amendment.

The second amendment to which I should like torefer is that moved by my Friend Prof. Saksena, in which he has proposed thatone of the things which the President may do under the Proclamation is todissolve the legislature. I think that is his amendment in substance. I entirelyagree that that is one of the things which should be provided for because thepeople of the province ought to be given an opportunity to set matters right-byreference to the legislature. But I find that that is already covered bysub-clause (a) of clause (1) of Article 278, because sub-clause (a) proposesthat the President may assume

to himself the powers exercisable by the Governoror the ruler. One of the powers which is vested and which is exercisable by theGovernor is to dissolve the House. Consequently, when the President issues aProclamation and assumes these powers under sub-clause (a), that power ofdissolving the legislature and holding a now election will be automaticallytransferred to the President which powers no doubt the President will exerciseon the advice of his Ministers. Consequently my submission is that theproposition enunciated by my Friend Prof. Saksena is already covered bysub-clause (a), it is implicit in it and there is therefore no necessity formaking any express provision of that character.

Now I come to the remarks made by my FriendPandit Kunzru. The first point, if I remember correctly, which was raised by himwas that the power to take over the administration when the constitutionalmachinery fails is a new thing, which is not to be found in any constitution. Ibeg to differ from him and I would like to draw his attention to the Articlecontained in the American Constitution, where the duty of the United States isdefinitely expressed to be to maintain the Republican form of the Constitution.When we say that the Constitution must be maintained in accordance with theprovisions contained in this Constitution we practically

mean what the American Constitution means, namelythat the form of the constitution prescribed in this Constitution must bemaintained. Therefore, so far as that point is concerned we do not think thatthe Drafting Committee has made any departure from an established principle.

The other point of criticism was that Articles278 and 278-A were unnecessary in view of the fact that there are already in theConstitution Articles 275 and 276. With all respect I must submit that he (PanditKunzru) has altogether misunderstood the purposes and intentions which underlieArticle 275 and the present Article 278. His argument was that after all whatyou want is the right to legislate on provincial subjects. That right you get bythe terms of Article 276, because under that the Centre gets the power, once theProclamation is issued, to legislate on all subjects mentioned in List II. Ithink that is a very limited understanding of the provisions contained either inArticles 275 and 276 or in Articles 278 and 278-A.

I should like first of all to draw the attentionof the House to the fact that the occasions on which the two sets of Articleswill come into operation are quite different. Article 275 limits theintervention of the Centre to a state

of affairs when there is war or aggression,internal or external. Article 278 refers to the failure of the machinery byreasons other than war or aggression. Consequently the operative clauses, as Isaid, are quite different. For instance, when a proclamation of war has beenissued under Article 275, you get no authority to suspend the provincialconstitution. The provincial constitution would continue in operation. Thelegislature will continue to function and possess the powers which theconstitution gives it; the executive will retain its executive power andcontinue to administer the province in accordance with the law of the province.All that happens under Article 276 is that the Centre also gets concurrent powerof legislation and concurrent power of administration. That is what happensunder Article 276. But when Article 278 comes into operation, the situationwould be totally different. There will be no legislature in the province,because the legislature would have been suspended. There will be practically noexecutive authority in the province unless any is left by the proclamation bythe President or by Parliament or by the Governor. The two situations are quitedifferent. I think it is essential that we ought to keep the demarcation whichwe have made by component words of Articles 275 and 278. I think mixing the twothings up would cause a great deal of confusion.

Xxx xxx xxx

The Honourable Dr. B.R. Ambedkar: Only when thegovernment is not carried on in consonance with the provisions laid down for theconstitutional government of the provinces, whether there is good government ornot in the province is for the Centre to determine. I am quite clear on thepoint.

Xxx xxx xxx xxx

The Honorable Dr. B.R. Ambedkar: It would take mevery long now to go into a detailed examination of the whole thing and,referring to each say, this is the print which is established in it and say, ifany government or any legislature of a province does not act in accordance withit, that would act as a failure of machinery. The expression "failure ofmachinery" I find has been used in the Government of India Act, 1935.Everybody must be quite familiar therefore with its de facto and de juremeaning. I do not think any further explanation is necessary.

Xxx xxx xxx xxx

The Honourable Dr. B. R. Ambedkar: In regard tothe general debate which has taken place in which it has been suggested thatthese Articles are liable to be abused, I may say that I do not altogether denythat there is a possibility of these Articles being abused or employed forpolitical purposes. But that objection applies to every part of the Constitutionwhich gives power to the Centre to override the Provinces. In fact I share thesentiments expressed by my honourable Friend Mr. Gupte yesterday that the properthing we ought to expect is that such Articles will never be called intooperation and that they would remain a dead letter. If at all they are broughtinto operation, I hope the President, who is endowed with these powers, willtake proper precautions before actually suspending the administration of theprovinces. I hope the first thing he will do would be to issue a mere warning toa province that has erred, that things were not happening, in the way in whichthey were intended to happen in the Constitution. If that warning fails, thesecond thing for him to do will be to order an election allowing the people ofthe province to settle matters by themselves. It is only when these two remediesfail that he would resort to this Article. It is only in those circumstances hewould resort to this Article. I do not think we could then say that these

Articles were imported in vain or that thePresident had acted wantonly.

Shri H. V. Kamath : Is Dr. Ambedkar in a positionto assure the House that Article 143 will now be suitably amended?

The Honourable Dr. B. R. Ambedkar : I have saidso and I say now that when the Drafting Committee meets after the SecondReading, it will look into the provisions as a whole and Article 143 will besuitably amended if necessary.

Mr. President: I will now put the amendment tovote one after another.

The question is :

"That Article 188 be deleted."

The motion was adopted.

Article 188 was deleted from the Constitution.

Mr. President: Then I will take up Article 277-A.

The question is :

"That in amendment No. 121 of List I (SecondWeek) of Amendments to Amendments, in the proposed new Article 277-A, for theword 'Union' the words 'Union Government' be substituted."

The amendment was negatived.

Mr. President: Now I will put amendment No. 221.

The question is :

"That in amendment No. 121 of List I (SecondWeek) of Amendments to Amendments in the proposed new Article 277-A for the word'and' where it occurs for the first time, the word 'or' be substituted."

The amendment was negatived.

Mr. President: The question is:

"That in Amendment No. 121 of List I (SecondWeek) of Amendments to Amendments, for the words 'internal disturbance' thewords 'internal insurrection or chaos' be substituted."

The amendment was negatived.

Mr. President : The question is :

"That after Article 277 the following newArticle be inserted:-

'277-A. It shall be the duty of the Union toprotect every State against external aggression and internal disturbance and toensure that the government of every State is carried on in accordance with theprovisions of this Constitution."

The motion was adopted,

Mr. President: The question is.:

"That Article 277-A stand part of theConstitution."

The motion was adopted.

Article 277-A was added to the Constitution.

Mr. President: The question is:

"That in amendment No. 160 of List II.(Second Week), of Amendments to Amendments in clause (1) of the proposed Article278, for the word 'Ruler' the words the Rajpramukh' be substituted."

The amendment was negatived.

Mr. President: The question is:

"That in amendment No. 160 of List II(Second Week) of Amendments to Amendments, in clause (1) of the proposed Article278, the words ‘or otherwise’ be deleted."

The amendment was negatived.

Mr. President : The question is:

"That in amendment No. 160 of List II(Second Week): of Amendments to Amendments, in clause (1) of the proposedArticle 278, after the words 'is
satisfied that’ the words ‘a grave emergencyhas arisen which threatens the peace and tranquillity of the State and that' beadded."

The amendment was negatived.

Mr. President: The question is:

"That in amendment No. 160 of List II(Second Week) of Amendments to Amendments for the first proviso to clause (4) ofthe proposed Article 278, the following be substituted-

'Provided that the President may if he so thinksfit order at any time, during this period a dissolution of the State legislaturefollowed by a fresh general election, and the Proclamation shall cease to haveeffect from the day on which the newly elected legislature meets insession'."

The amendment was negatived.

Mr. President: The question is:

"That for Article 278, the followingarticles be substituted

278(1). Provisions in case of failure ofconstitutional machinery in States. -

If the President, on receipt of a reportfrom the Governor or Ruler of a State or otherwise, is satisfied that thegovernment of the State cannot be carried on in accordance with the provisionsof the Constitution, the President may by Proclamation-

(a)
assume to himself all or any of the functions ofthe Government of the State and all or any, of the powers vested in orexercisable by I the Governor or Ruler, as the case may be, or any body orauthority in the State other than the Legislature of the State;

(b)

declare that the powers of the Legislature of theState shall be exercisable by or under the authority of Parliament;

(c) make such incidental and consequentialprovisions as appear to the President to be necessary or desirable for givingeffect to the objects of the Proclamation, including provisions for suspendingin whole or in part the operation of any provisions of this Constitutionrelating to any body or authority in the State :

Provided that nothing in this clause shallauthorise the President to assume to himself any of the powers vested in orexercisable by a High Court or to suspend in whole or in part the operation ofany provisions of this Constitution relating to High Courts.

(2) Any such Proclamation may be revoked or variedby a subsequent Proclamation.

(3) Every Proclamation under this Article shall belaid before each House of Parliament and shall, except where it is aProclamation revoking a previous Proclamation, cease to operate at theexpiration of two months unless before the expiration of that period it has beenapproved by resolutions of both Houses of Parliament :

Provided that if any such Proclamation is issuedat a time when the House of the People is dissolved or if the dissolution of theHouse of the People takes place during the period of two months referred to inthis clause and the Proclamation has not been approved by a resolution passed bythe House of the People before the expiration of that period, the Proclamationshall cease to operate at the expiration of thirty days from the date on whichthe House of the People first sits after its reconstitution unless before theexpiration of that period resolutions approving the Proclamation

have been passed by both Houses of Parliament.

(4)A Proclamation so approved shall, unlessrevoked, cease to operate on the expiration of six months form the date of thepassing of the second of the resolutions approving the Proclamation under clause(3) of this Article :

Provided that if and so often as a resolutionapproving the continuance in force of such a proclamation is passed: by bothHouses of Parliament, the Proclamation shall, unless revoked, continue in forcefor a further period of six months from the date on which under this clause itwould otherwise have ceased to operate, but no such Proclamation shall in anycase remain in force for more than three years:

Provided further that if the dissolution of theHouse of the People takes place during any, such period of six months and aresolution approving the continuance in force of such Proclamation has not beenpassed by the House of the People during the said period, the Proclamation shallcease to operate at the expiration of thirty days from the date on which theHouse of the People first sits after its reconstitution unless before theexpiration of that period resolutions approving the Proclamation have beenpassed by both Houses of Parliament.

278-A. Exercise of legislative powers underproclamation issued under Article 278. (1).

Where by a Proclamation issued underclause (1) of Article 278 of this Constitution it has been declared that thepowers of the Legislature of the State shall be exercisable by or under theauthority of Parliament, it shall be competent-

(a)
for Parliament to delegate the power to make lawsfor, the State to the President or any other authority specified by him in, thatbehalf-

(b)

for Parliament or for the President or otherauthority to whom the power to make laws is delegated under sub-clause

(a)

of this clause to make laws conferring powers andimposing duties or authorising the conferring of powers and the imposition ofduties upon the Government of India or officers and authorities of theGovernment of India.

(c)

for the President to authorise when the House ofthe People is not in session expenditure from the Consolidated Fund of the Statepending the sanction of such expenditure by Parliament;

(d)for the President to promulgate Ordinancesunder Article 102 of this Constitution except when both Houses of Parliament arein session.

(2) Any law made by or under the authority ofParliament which Parliament or the President or other authority referred to insub-clause (a) of clause (1) of this Article would not, but for the issue of aProclamation under Article 278 of this Constitution, have been competent to makeshall to the extent of the incompetency cease to have effect on the expirationof a period of one year after the Proclamation has ceased to operate except asrespects things done or omitted to be done before the expiration of the saidperiod unless the provisions which shall so cease to have effect are soonerrepealed or re-enacted with or without modification by an Act of the Legislatureof the State."

The amendment was adopted.

Mr. President: The question is:

"That the proposed Article 278 stand part ofthe Constitution."

The motion was adopted.

Article 278 was added to the Constitution.

Mr. President: The question is:

"That proposed Article 278-A stand part
of the Constitution."

The motion was adopted.

Article 278-A was added to the Constitution.

1.1:Majority Judgment: Chief Justice of India, Y.K. Sabharwal, Justice B.N. Agrawaland Justice Ashok Bhan

2.1:Dissenting Judgment: Justice K.G. Balakrishnan

Published At: 24 January 2006 12:00 pm

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3.3 Rameshwar Prasad & Ors Versus Union of India & Anr

Part III of the minority judgment by Justice Arijit Pasayat: 'Discussions in the Constituent Assembly which throw beacon light on the role of Governors, parameters of powers exercisable under Articles 174 and 356 of the Constitution'