Constituent Assembly OF INDIA Debates (Proceedings)- VOLUME V
Saturday, the 30th August 1947
The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock, Mr. President (the Honourable Dr. Rajendra Prasad) in the Chair.
SUPPLEMENTARY REPORT ON FUNDAMENTAL RIGHTS--(Contd.)
Mr. President: We have now to take up the consideration of the Supplementary Report of the Fundamental Rights Committee.
The Honourable Sardar Vallabhbhai J. Patel (Bombay: General) Sir, the House is already aware that my letter of 23rd April 1947, submitting the Report of the Advisory Committee on Fundamental Rights was considered and most of the main proposals were accepted. The report was to a certain extent incomplete because we had to consider several matters which were referred back to us, and some proposals were received direct, which had also to be considered. There were two parts of the report: one contained fundamental rights which were justifiable and the other of the report referred to fundamental rights which were not justiciable but were directives* more or less which would be useful for the governance of the country. Now the Advisory Committee considered both these parts and completed its work. This report which I place before the House contains, first, two or three important matters regarding justiciable rights which were not finished and which were referred back to us: One Is regarding clause 16 which reads--
"No person attending any school maintained or receiving aid out of public funds shall be compelled to take part in any religious instruction that may be given in the school or to attend religious workshop held in the school or in premises attached thereto,"
meaning thereby that there should be no compulsion in religious education in schools maintained by the State or receiving public aid; and the Committee has accepted this, and recommend that the House should accept it.
Then there is clause 17, which refers to conversion. It reads--
"Conversion from one religion to another brought about by coercion or undue influence shall not be recognised by law."
The Committee came to the conclusion that this general clause is enough so far as fundamental rights are concerned. On further consideration this clause seemed to us to enunciate a rather obvious doctrine which it was unnecessary to include in the constitution, and we thought it better to leave it to the legislature.
Then about clause 18(2), which reads--
"No minority whether based on religion, community or language shall be discriminated against in regard to the admission into State educational institutions, nor shall any religious instruction be compulsorily imposed on them."
* Appendix A
There was another paragraph in which it was recommended that the latter portion of the clause, namely, "nor shall any religious instruction be compulsorily imposed on them" be dropped because that is covered by clause 16.
Then we have examined the question as to whether the scope of the clause should be extended so as to include, State-aided educational institution also, and the Committee came to the conclusion that in the present circumstances we would not be justified in making any such recommendation.
Then the Fundamental Rights Sub-Committee in their report to us had recommended the adoption of Hindustani, written either in Devanagri or the Persian script, as the national language of the Union, but subsequently this question was held over because the matter was considered by the Union Constitution Committee: and as the Constituent Assembly is already seized of the subject, we thought it better not to deal with the subject. So we have not said anything 'about it, and it will be considered separately. Several other amendments were moved. We have considered them individually, and we have come to the conclusion that the fundamental rights should not be burdened with all such amendments that have been moved.
There is another part of the report which contains, in addition to. justiciable rights, certain directives of State policy which, though not cognizable by any court of law, should be regarded as fundamental in the governance of the country. The provisions that the Committee have considered are included in Appendix A which is added to the Report.
The appendix which has been circulated with the Report is also with you. So I suggest that the Report be taken into consideration.
Mr. President: The Resolution is that this Assembly do proceed to take into consideration the Supplementary Report on the subject of Fundamental Rights submitted by the Advisory Committee. If any Member wishes to say anything, he may do so now.
Mr. R. K. Sidhwa (C. P. & Berar: General) : Mr. President. Sir, you will remember this House passed a memorable Resolution in its first and second sessions Which is popularly known as the Objectives Resolution. Out of the several good measures that are indicated therein, one is in connection with social and economic equality. While moving this Resolution the learned Pandit Jawaharlal Nehru made a memorable, speech and placed before this House some ideas about which I would, like to remind members just to refresh their memory. Among other things, the Resolution states--
"Wherein shall be guaranteed and secured to all the people of India justice, social, economic, and political; equality of status, of opportunity, and before the law;........ "
And while moving that Resolution he said--
"I stand for Socialism and I hope, India will stand for Socialism and that India will go towards the constitution of a Socialist State and I do believe that the whole world will have to go that way."
Sir, after this clear statement of the objectives, when the justiciable rights came before us, I was expecting to see that in our Constitution equality, social and economic, would play a prominent part. Not having found it in the justiciable rights I expected to see this in the non-justiciable rights. I searched and searched, but searched in vain. Sir, it is all very well to say that we want to give absolute power from the villages right up to the cities so that the economic conditions are so adjusted that the people, the average people may be happy and prosperous. But I may state, Sir that however much we may try and introduce measures like the Grama Udhar and village Panchayats and village uplift, unless economic conditions are considered equitably, these measures are not going to prove of any use or be successful. Sir, what are the conditions today ? I can tell You from experience. I have the honour to be the President of the All India Local Bodies Association. These local bodies have been given the power, but they have not the money to spend. Therefore, they are quite helpless. Without money they cannot function. The powers that have been given to them are in no way useful to them. These are the conditions in which the Local Bodies suffer today.
While I was listening to the Union Powers Committee's Report and the items presented to the House the other day, we were making capital of strengthening the Centre with greater financial powers. But it must be admitted that the economic conditions of the Provinces are so poor that they are not in a position to give that help to the local Bodies that is necessary. The Local bodies suffer from insufficiency of money, and when they approach the Provincial Government, the Provincial Governments express their inability to help them on the ground that the Central does not contribute them the money that is due to them. Sir, in the Local Bodies, the electricity tax, the entertainment taxes, the betting taxes, these legitimately belong to the Local Bodies but they have been appropriated by the Provincial Governments. An enquiry was set up by the various governments and it has been laid down definitely that unless contributions are made by the Provincial Governments, Local Bodies will not function successfully.
Sir, the Local Bodies are the root, the basis of our economic conditions in India and unless the better financing of the villages is properly considered and enough money is given to them. I can tell you with confidence, that we are not going to make our average citizen happy and prosperous. We may give them power. We are all anxious to give them authority; but if you do not give them money, what will they do ? How can they proceed further ? I expected, Sir, that at least in these non-justiciable rights--they are pious--I mean to say they are pious measures because they are non-justiciable--I expected that even in these pious measures there may be some mention about the equality of social rights. I do not for a moment suggest that our popular governments both in the Centre and in the Provinces do not care for them. They are as eager as some of us, or most of us here to do the right things. But they are also confronted w1th the difficulties of money and I may tell you that unless financial conditions improve, they will not be able to advance in any direction or do any good for the average man of the country, whom we have been telling for ages that when we achieve freedom we shall see that the average man really gets real happiness. Sir, it is stated in the Resolution that all the citizens, men and women, have the right for an adequate means of livelihood. It is all very well to say "adequate means of livelihood." Where is that to come from. We have to make provision for that. Of course, I do admit that merely making a provision here will not achieve the end. But certainly if there is a provision to that effect it would be very difficult for the administration to overlook it.
Sir, the distribution of wealth in this country has been in such a miserable state of affairs that unless we bring them into a state of equality, conditions are not going to improve. I will give you two illustrations, real illustrations.
In a case when the head of the family died, he left nearly 11 crores of rupees for one issue to enjoy them. Fortunately or unfortunately, that issue also expired after about a year of the death of the father. The whole amount was distributed among the various members of the rich family who already possessed crores of rupees. If we had an equitable distribution of this wealth, this money would have come to the State.
I have known another family of a father with three children leaving Rs. 50 lakhs of rupees. Two sons within three years squandered their share and the third son was a miser and by speculation and other means made two crores out of his share. What kind of economy is this? In this country, Sir, there are only a few hundreds or few thousands who roll in crores, while millions have no proper food. This is the state of affairs. How are we going to improve it, unless this system of inequality of wealth which has been confined to a few people in the country is to be abolished ? I am sure without imposing further burden upon the average person by various kinds of taxation, if this wealth is properly distributed the State will have ample money to put this nation building programme into operation very successfully. I know, Sir, our popular Members of the Government are alert and they may be looking into the matter. I don't for a moment say they are unmindful of it or they are indifferent about it. But what I would state is that a place should have been found for this provision in some part of the constitution. These non-justiciable rights are merely to adorn the pages of the constitution and to just give a little consolation, but I would prefer them to be a part and parcel of the constitution so that every citizen may be proud to state that 'Now my time has come to enjoy equality and wealth, so that I may not remain poor for all time'. That is my point. I tried to move a Resolution in the Fundamental Rights Committee and was told that it was not the proper place. So I waited. Now the proper place has come and I want to see provision made in the non-justiciable rights.
What I submit is that if you want to improve the socialist system of economy, then you have to nationalise your big industries, and if you want to provide proper wages to your wage earners, and maternity and other benefits do not think for a moment this is a stock argument which I am advancing, but I sincerely feel that the time has come for this argument to be fulfilled. We don't want the strikes. We don't like them. But every morning you get up from bed and go to the market and if you had paid 10 annas the previous day for an article, you have now to pay 12 annas or 14 annas. What will be the effect of this on the average serviceman, who depends entirely on his monthly budget? How can he adjust his budget. I submit, Sir, the whole economic structure has broken down to pieces. While we don't want these strikes, while we want more production, we should not find absolute fault with the labourers if they go on strike. The fact is they cannot make both ends meet. Prices have gone up. If you go to the bazar what is the conditions ? Upper class people, wealthy class of people send their servants to the bazar; they don't know the condition. But the man who is absolutely dependent an the income he derives, he goes to the bazar himself and when he finds that he has got only Rs. 1-8-0 to spare and he has to pay Rs. 2-0-0 he becomes desperate. Conditions are getting worse and worse, and the popular Government, notwithstanding whatever difficulties might exist, have to face these facts. I know, Sir, in this very House there is a mixed variety of people--upper class people, wealthy people, lower class people and poor people, and it is not possible for us to bring in a measure of this sort in this Assembly. But as Pandit Jawaharlal has rightly said in the Resolution, the time has come when, whatever the position may be, we have to adjust according to the times and see that this wealth is evenly distributed.
Sir, I lay emphasis on this point, namely that whatsoever objectives you may put down, whatsoever provisions you may put down, unless you provide village panchayats, notified area committees and sanitary committees with sufficient money at their disposal, not within the power of the provinces to appropriate the same, you are not going to improve the social structure of this country, which has gone down. That is the main cause of all this trouble and it requires immediate attention.
Mr. President: Will the Honourable Member now come to the point? (Laughter).
Mr. R. K. Sidhwa: Mr. President, if these were not the points for insertion in the constitution, I don't know what are the points. My friends here clapped their hands when the Honourable President asks me to come to the point. I anticipated this and I said in a mixed House of this kind, it is not possible to have such a measure passed. If that is the desire of the House, that such a provision should not be made in the constitution, then let them please themselves. But I want to express my view. I feel strongly on this and state that the constitution ought to provide such a clause if you want this land to be happy. I shall state my view, no matter what the opinion of this House may be. Besides it is not only my own view. It is the view of the various important bodies in this country, of which I have the honour to be the President.
I therefore suggest, Sir, but I know it may be argued that these are some of the social adjustments that are borrowed from the Russian constitution. I know there are many irreligious things in the U.S.S.R. constitution which could not be made applicable to India; but there are many good, very good points which are quite suitable to India and it is certainly in our interests that we copy some of the good things from the U.S.S.R. constitution. I want to state that any good means which would bring good results to the country I shall certainly be in favour of borrowing them. With these words, Sir, while I congratulate the Committee for bringing up this proposition, I would have preferred a clause of this nature to have been inserted. It has not been inserted but I do hope, Sir, that in the governance of this country and its administration, this view point will be borne in mind particularly that unless you change your economic conditions and improve them, you are not going to bring any kind of happiness and prosperity to this country.
Mr. B. Das (Orissa: General): Sir, when the first draft of the Fundamental Rights was discussed on the floor of this House I expressed gave doubts about Clause 3 regarding citizenship. After much discussion it was sent back for redrafting. The Ad hoc Committee redrafted it and it was presented to the House for acceptance by the Honourable Sardar Patel. At the time when the Ad hoc Committee's Report was presented I had my doubts as to whether that new draft would suit the requirements of the people of India. I accept the clause to-day. Some slight changes have also been made in the body of the text of clause 3. Sir, I would like to be assured by the Honourable Sardar Patel whether Government intend to change the laws of the Union as envisaged in the proviso of clause 3. Many things have happened since we discussed Fundamental Rights in April last. India has been divided up and Indian citizens who are born in both parts of India now can claim citizenship in either Pakistan or Hindustan. There may be families that may have a brother in Pakistan acquiring the citizenship of Pakistan while others may be citizens of India. Particularly, Sir, I find many officials and non-officials whom I always took as citizens of India, have gone to place their services, their best energies in the service of Pakistan. So it is natural that Government should legislate that everybody must declare whether he is a citizen of Pakistan or Hindustan. One would not like the best brains of India to go to Pakistan and when they come back to India will they be taken as Indians or only recognized as citizens of Pakistan because they have served after the separation in that country ?
Sir, as to the other changes of the Fundamental Rights, I accept the recommendations on clause 16 and I also accept that clause 17 and sub-clause (2) of clause 18 should be deleted.
Sir, while we are talking of Fundamental Rights of the people of India, I would like to state that certain citizens, particularly in the services of the Constituent Assembly, were so unnecessarily and deplorably criticised yesterday. They have no representation on the floor of this House--it is the office of the Constituent Assembly--to reply to any charges that may be made on the floor of this House. I think it was wrong to make such statements on the floor of this House. If any member had any grievance, he ought to have approached the Staff and Finance Committee to make any enquiry about the efficiency or non-efficiency of the Constituent Assembly office. Personally I know they have discharged their onerous responsibilities with great intelligence, tack and loyalty to Independent India. They were part of the old bureaucracy and yet they came up to the high standard required of them and they have served India as faithfully and as loyally as any of us have served India. So far I record my grateful appreciation of their work and services.
Sir, I will then come to the next part of the Report which deals with the Fundamental principles of governance. My honourable friend Mr. Sidhwa had made some observation and I agree with him and regret that these pious recommendations should find no place in the Statute. I consider that the fundamental principles of governance means--Dharma of the Government--the path of duty of the Government. But we don't lay down in the Constitution Act what the Government should do and what are the responsibilities of Government to the citizens and the people of India. We say that the Government may do this and it is expected that we, members of the Constituent Assembly should be treated like children in our homes, and shout and agitate for something from the Government and then the Government, whether they may be the present Government or successor Government will legislate for the betterment of the conditions of the people of India. I am not satisfied with the opinion of the legal servants and great authorities on law in this House who interpret the functions of Government as justiciable and non-justiciable. They have said that we cannot include in the Union Constitution of India what the Government has to do for the people. I think it is the primary duty of Government to remove hunger and render social justice to every citizen and to secure social security. Sir, I am not satisfied, although Portions of the Soviet Constitution or the Irish Constitution are somehow made into a jumble and included in these 12 paras, that they bring any hope to us. The teeming millions do not find any hope that the Union Constitution that will be passed two months hence will ensure them freedom from hunger, will secure them social justice, will ensure them a minimum standard of living and a minimum standard of public health. In the principles of Constitution we have approved so far, be it the Provincial Constitution or be it the Union Constitution or be it the Union Powers I do not find anything that makes it obligatory on the Government, on the State, to discharge their obligatory duties to the people of India about common welfare and well being of the people. So better it is that these pious clauses find their way to the Appendix and not to the main Constitution Act! It is no consolation to the people of India that they elect the Constituent Assembly which elects the Dominion Government. The Government has a corresponding obligatory duty to the people to govern them properly, to look after their social welfare and their general well-being. We have appointed yesterday a body of draftsmen to draft the Union Constitution. I hope it is not too late for the legal talents of this House to find ways and means for making it obligatory on the part of the Government to function and to, exist for the welfare and well being of the people of India. Too much is made of 'justiciable' and 'non-justiciable'. I do not understand how the Irish Constitution included some of these noble principles in the body of the Constitution. If the Irish Constitution can do it, the Indian Constitution must do it. But then, Sir, we are up against a brick wall of lawyers. Legal talents are there and they rule that these are justiciable and other are non-justiciable. The result is that this House is reduced to the status of children and made to function as children. The Government though it is democratic, must follow, they say, the precedents and the traditions of the bureaucratic Governments of the past. If it does so, it cannot effect any improvement in the social conditions of the people.
This is very alarming. We are framing our Free Sovereign Constitution. Perhaps ours is the last Constitution framed in the 20th century. One would have expected that we would have profited by the knowledge, by the suffering and by the experience of other countries. I do not want this Constitution to be drawn up to last only for a year or two. There are rumblings; there are signs of the times. And if we go by the precendents of the French Constitution Assemblies we may not achieve much. The people of France elected three successive Constituent Assemblies to draft their Sovereign Constitution and there were three successive Constitutions. The French Government, under the last Constitution, has not yet been a stable one. Our Government is expected to be stable and is stable today. But nobody can be a prophet and say that it will be stable for more than a year or two. And if I, a Gandhite, am not satisfied with this Draft, how can I expect the Socialists and the communists and the others to be satisfied with it ? Let us make a more acceptable draft Let us make the draft fit in with the conditions in India. Let us tell the world through our draft Constitution that Indians have a civilization and culture, ten thousands of years old. We should draw up a democratic Constitution whereby the State serves the people and the people, the State. Let our Constitution bear the Stamp of the culture and civilisation of India.
Dr. P. S. Deshmukh : (C. P. & Berar: General) : Mr. President, Sir, before I speak on the motion itself I wish to suggest that, since this is the last day of the session, we might probably devote the whole day for the discussion of the principles which have been placed before us.
The House knows, Sir, that we have left many things incomplete. Many Reports have been presented to us and we have only dealt with parts of them. A good many sections or clauses for instance of the Union Constitution Committee, the Union Powers Committee etc., have been left over for further consideration. The same, I submit, should not happen to this particular Report. This Report, in my opinion, is the most important of all because it represents that part of the Constitution which the masses of India are looking forward to for the fulfilment of the promises made to them by their leaders. They are watching how far we are serious in our promises to ameliorate their condition and better the standard of living of the average man. From that point of view, Sir, I submit, this particular portion of the Constitution should be given more importance than the other parts and every opportunity should be given to the members to express themselves. I would further submit that the recommendations be not taken into consideration in this session if the criticism that I wish to level and many of my friends have levelled are going to have any effect on the sponsors of the measure. Only if this is done shall we be able to go to the people and tell them that we are striving to protect their interests not only temporarily but permanently.
My first criticism against the present Report is that it is, like some other reports, exceptionally perfunctory. The framers of the Report will pardon me if I use somewhat strong words. The attitude of the Members of the Committee is, I think, very correctly reflected in one of the sentences to be found in a book that has been provided by the office to us. I will read that one sentence: "Great difficulty has been experienced in selecting provisions for inclusion" of course in the draft of Fundamental Rights in the Indian Constitution--as "there is no absolute standard as to what constitutes 'Fundamental Rights', and the basis of classification varies from country to country." This, it is clear has been the sole sheet-anchor of the Committee. They have delved into: various books on Constitutions of the world to select a section here and an item there so as to suit the Indian conditions and conform to their ideals. I submit to you and to the House, Sir, that this is not the correct attitude to take when dealing with fundamental rights. India, our country, is totally incomparable with Ireland. What is there in Ireland, that we should bodily adopt its fundamental rights for our country ? What may be useful for them may not be worthy of consideration by us. The total population of Ireland is only 29 lakhs which is the same as, if not less than the population of the State of Baroda. And what is the character of this particular Constitution which has been considered worthy of imitation? I have not seen any important book on Constitutional History or Constitutional Law bestowing any special praise on the Irish Constitution and I fail to see what there is that makes it fit to be adopted whole-sale. In my opinion the Committee viewed the whole question from an utterly wrong stand-point. Our Constitution framers appear as if they merely studied the existing Constitutions and chose what they thought would probably serve as a sop to the socialists and communists. This I think summarises and properly expresses in a nutshell what has been presented to us. They did not want in any case to go very far; but none the less they were not in a position to leave out the social and economic aspects of the Constitution altogether untouched. In this half-hearted manner they have dealt with it. Therefore it is that we have something that cannot be accepted by a very large section of people either here or outside.
We expected, Sir, that the Indian society would in the future be regulated on definite principles. What are the principles that have been embodied here that people have a non-justiciable right to a means of livelihood, that the pay of man and woman would be equal, that youth and childhood will be protected etc.? All these things and everyone of the items that have been put down here are a matter of common knowledge and any modern Government would be ashamed not to own what has been embodied here. It is the absolute minimum that every modern Constitution and Government must avow. We do not want the hollow avowal of the minimum. We may not insist upon the maximum also and I am prepared for a compromise; but we do not want to depend upon mere platitudes and pious wishes, because that was not what we came here to achieve. At least since the year 1942 the character of the Congress has altogether changed. The change was due to the fact that there was a solemn promise that the Government of Independent India would be that of the peasants and workers of India and none others. That was what impelled so, many rural people, so many youths from the rural population to sacrifice themselves in the Revolution of 1942. If you analyse the figures you will be started, Sir, to find that none of the vested interests, none of the erstwhile patriots sacrificed themselves. They were the purely the backward and illiterate people from the rural communities who sacrificed themselves. Very few indeed of the people from towns who belonged to any of the higher and well-known families were ready to join them. That being so, it is our duty to look to the promises that we had held out, and in considering the Report we should have kept that ideal in view and not tried merely to make half-hearted recommendations so as to be able to say to the Socialists that we are also socialists of a sort and to try to say to the Communists that we also respect some of their theories. A friend of mine said, Sir, that there was an admixture of the Russian and the Irish Constitutions in these recommendations. I would like to inform my Honourable friend that he is labouring under a misapprehension. There is nothing of the Russian constitution in all these recommendations. Now what is the sanctity of these recommendations ? They are supposed to be directives. Instead of having all these several items, let the framers of our Constitution give us a definite programme that they are determined to give effect to. The whole of India is thirsting for it. Instead of all that we are merely going to hold out some distant and indistinct hope without providing in our constitution any effective means as to when and how they are going to be realized. Sir, I submit that it will be far better if the framers of the Report would kindly utilize the interval between this session and the next for reconsideration of their recommendations in the light of the criticism that may be levelled against the Report on the floor of this House. We may then hope to have something better than what we have here today unless the whole thing is to go to the drafting Committee whether the report is fully discussed here or not. If this happens we would be required to consider the draft. But if this comes up against for our consideration in the form of a report, we hope it will be in a different shape.
Actually, Sir, these are described as fundamental rights and fundamental rights, Sir, are in my opinion primarily intended for the protection of the-life, liberty and comfort of an average man. The fundamental rights idea is actually something like the principles of the Magna Charta against possible oppression either by a monarch or by some body of people who can get into the Government. My view is that in the framing of our present constitution there was not much need of having fundamental rights as such. All the principles, the inclusion of which we thought necessary and especially this portion of the fundamental rights which are merely recommendatory, it not being incumbent upon any Government to carry out, could, I submit, Sir, have been either embodied as ordinary provisions in a constitution or radically altered. What are the difficulties that we the people of India suffer from ? Our difficulties and impediments are diverse. The first is the poverty of our people, then ignorance and illiteracy, then lack of food, lack of vitality lack of morals, inhuman greed and consequent exploitation, ruthless profiteering and consequent oppression--moral, mental, social, spiritual and last but not least economic. To what extent are these fundamental rights going to protect us from this oppression, that is the question. And to what extent we can regard this as something on which we can go and remove these difficulties and reorganise our society, so that there is no poverty there is no ignorance no starvation, no unnecessary concentration of wealth in a few hands, etc. None of these things have been dealt with. In a word I say, Sir, they have been dealt in a deceitful manner. I understand the implication of the word 'deceitful' and yet I have no hesitation in using it. I say so, Sir, because once you have these as fundamental rights you will prohibit anybody going further than that. I wish it to be clearly understood that the intention is that not only should we not go further. That is the intention behind the wording. I wish I could take the time of the House to read out and analyse the words used in every particular recommendation to prove the truth of my statement. But it is clear that the language used does not only not go for enough for the Indian situation, but the recommendations are so framed as not to permit anybody else coming after us to change the fundamentals and go ahead in a way that should be the only way that India should go. Our problems are huge, our population is big and we cannot merely sit and take portions from here and from there and especially from an Irish constitution. After all what is this Constitution ? We have parts of the Irish Constitution copied out and we have three-fourths of the Government of India Act of 1935 copied out. If this is the Constitution which we are rushing through, I think there is no reason for any hurry at all. It should be remembered that we have got a very well considered adaption of the Government of India Act and that should suffice for our purpose. I am sure, Sir, the representatives who have come here are such that I do not expect any Indian Assembly would contain any better people than those we have here. Sir, we have the best talent in the land assembled in this Assembly. Why not take the opportunity of fashioning something original, something that is in keeping with the genius of our people and something that will be in perfect conformity with the historical background of the ancient civilization of this land ? That is my submission, Sir, I hope Honourable members will confine themselves only to general criticism of the recommendations of the Committee that we have here and I think they will do a distinct service if they do not let these recommendations be passes hurriedly. In fact when I said that the decisions taken by the House should not be binding, this was at the back of my mind. I feel that when we have the whole constitution before us, we want ourselves to have, the liberty if need be of changing the whole structure.
Yesterday I said that we had not even a skeleton. Even supposing we have a skeleton closer examination will show that the skeleton is in some parts human and in other beastly. It is skeleton which is not in keeping nor in harmony with the rest. This being the state of affairs, I submit to you, Sir, that since we are not going to meet hereafter and today is going to be the last day of our meeting, let us confine ourselves only to the general discussion of these recommendations. Passing of one or two items would not advance our cause in any way. If at all it will only damage it. And probably we may have to alter even those later on.
With these observations. Sir, I shall cut short my speech as I do not want to take too much of the time of the House especially because I spoke twice yesterday, I hope my observations will commend themselves to you and to the House.
Shri Vishwambhar Dayal Tripathi : (United Provinces : General) *[Mr. President, I welcome the report on fundamental rights, which has been presented before the House. Even though I am not satisfied with all that has been said in it, I warmly welcome some of its specific provisions. I want to invite the attention of the members of the Assembly particularly to Section 8. It has been said therein that within ten years our Swaraj Government will fully extend primary education to every poor man in every village. What it means is this that within ten or twelve or fifteen years, though every old and young man may not be educated, yet the Government will try to make full arrangements for the education of the children at least, and there shall not be any child in our country who shall not get an opportunity of education. I specially welcome this clause. Other clauses also are very important and they are appropriate as far as they go. I do not think that this report and its clauses are merely meant as a pious wish. I think that if we act fully according to them, there is no doubt that we will take the country a long way on the road to progress. But in spite of it all, there are some clauses in it which even though appropriate, are altogether inadequate. In this connection I want to invite your attention particularly to clauses 3 and 4. There are some other provisions also which should have been included in this report but they are not there.
On examining the amendments, I discover that they are coming before us in some form or other, and when we consider each clause separately the new principles involved in them will also come before us, and I hope that we will accept them only after full consideration. Once before also a report regarding fundamental rights was presented and we adopted it. It laid down justiciable fundamental rights. These principles which have been adopted in the second report are no doubts fundamental principles of administration but we cannot have them translated into action through the Courts. Our Constituent Assembly had a different status when the first report was presented. Even though we desired that it may have full power, there were some restrictions, due to which we were unable to frame our constitution freely. But after the 15th August, although we got Dominion Status alone and not full freedom yet the Constituent Assembly is going to frame such constitution as will bring full freedom to our country. Now the situation is very different from what it was before 15th August. Therefore, it has become necessary that when the Constitution comes before us once again, we may think over the principles which we accepted earlier. The reason for this is that at that time we had several mental reservations, because of which we could not think freely. But now when the complete draft constitution comes before us, we will be able to consider it more freely Sir, I am happy to know that yesterday you gave us permission to discuss the constitution when it comes before us and to make our suggestions. I want to draw your attention to clauses 3 and 4 in particular. Matters relating to economic rights have been mentioned there. What ever has been said in them is appropriate but I wonder if in spite of it we will be able to accomplish the task which it is necessary for us to do. At the present juncture when we are taking over the reins of administration we have to give it serious thought. This is not merely my desire, but that of every Congressman. I think that it is the desire of every inhabitant of our country that the lot of our poor people be improved and the poor be no longer dependent on the rich. Nowadays, the rich dig wells, build Dharamshalas and Gaushalas for the poor and loudly proclaim that they are helping the poor in every day. This is a blow to the self-respect of the poor and in this manner they can never rise. The need is that the poor may realise and feel that they have also the strength to rise to the highest level and that they also have the same facilities for advancement as other have. This feeling can be roused in the poor only when we alter the fundamental principles substantially and mould our society on socialist line. There is some indication of it in clauses 3 and 4. But these clauses have a place in all the constitutions of the world. In spite of this the poor are denied the justice that should have been extended to them. Today practically in every country the poor are dependent on the rich. Therefore I am unable to say what effect these principles will have in our country.
The leaders have made many sacrifices and led a very austere life for the liberation of the country during the last twenty-five or thirty years. In our midst, we have our Honourable President who, during his life time, has set an example of sacrifice before the world. Many of our leaders have also done the same and they are in our midst. We hope that in their presence justice will be done to the poor. But the Constitution that we are making today is not for the present only but for centuries to come. Therefore, we should include in it the principles on the basis of which justice may be done to the poor and whether our present leaders are living or not the basic principles of the constitution may be brought in the action. We see today that even though the Government is in our hands, and the Congress has made so many sacrifices, and in spite of our efforts and desires, the influence of the capitalists, is continuously increasing. Does not each one of us know that all the prominent newspapers are one by one passing into the hands of the capitalists; the chains of newspapers are coming under the control of the capitalists. If one wants to say something against capitalism, it is impossible to get it published in leading newspapers. To-day the redeeming feature is that we have as our leaders those men who have spent their lives in making sacrifices and in the service of the poor. But after then or fifteen years when these people will be advanced in age and when they will have no energy left to work, or when the ordinary people who have not made sacrifices, will come up, as leaders, then, it is difficult to imagine as to what will be the condition of the country. Therefore at this time we must frame such a constitution as may prevent such a contingency.
In my opinion when we are framing a constitution for the coming generations of India, it is necessary that we should include in it inter alia four fundamental rights. Some of these four rights are already there in an indirect form, some are coming in the form of amendments, and some would probably come at the time when the full draft of the constitution will be placed before us. We will put forth our suggestions at that time, but I want to speak to you here and now about the four fundamental rights which I have mentioned before.
The first basic principle of our constitution should be that the poor man should have full right to rise to the highest station in life, he should have the facilities to do so, not out of somebody's compassion, but by his own strength and the assistance of society. Very respectfully, I submit not by way of criticism but because I feel that we included many things in our constitution, laid down many principles and made an effort to solve many national and international questions, but we did not write even a word for removing the poverty of the poor. Except for goodwill, no other word is found in the whole constitution. Except for the right of vote, the poor man has not yet got any other right under the constitution. Being a representative of the poor I am grateful for this right to vote, but this is not enough. Therefore, I submit very humbly that we should make such rules and regulations as may make it clear and necessary that when our constitution will be ready an acted upon, it will not result in the rule of a few capitalists and vested interests and they alone will not dominate the administration and the people would not be dependent on them. There are a few friends of mine who feel irritated at the very word socialism. I do not want to irritate them and in fact there is no need of irritating them by making a mention of socialism. But I simply love this word. A time will come when socialism will reign supreme both in our country as well as in the world as was remarked by Pandit Jawaharlal Nehru while speaking on the Objectives' Resolution. Even then, if there are some who feel irrigated at it, I am not so petty as to use this word repeatedly to annoy my colleagues and friends. Therefore, if you dislike the word socialism, let it go, do not use it. But you must make such regulations as may prevent the domination of vested interests, capitalists and those who desire to keep the poor under subjugation. I would request you at least to prevent the capitalists and vested interests from standing for the membership of the legislature or from holding high posts or those in the Ministry. I am sorry to say so, but whatever I have said is not by way of criticism. When I go to old or New Delhi, I hear people wondering how such and such men have got into such and such committees. The public is suspecting as to whether the Constitution-that is being framed is for the poor people or for vested interests. The names of those people generally appear for these committees who represent the vested interests and not of those who made tremendous sacrifices for their country during the last thirty years. I do not know what we should tell the people. We admit that up to a certain stage we may require the capitalists but it is not proper that they should wield influence under the Constitution. The country will never approve of it and I know that our leaders also who have suffered for our country do not approve of it. And if they also will not approve of it, some such provision should be included as may prevent these capitalists subsequently from gaining power. This is very necessary and it can be done in either of these two ways. You can either provide that our constitution our future social structure will be on socialistic lines. If however, you do not wish to use the word socialism, you can provide that you are not prepared to retained, capitalism in any form, and so long as capitalism has to be retained, you may provide that no one who is engaged in profit-making can occupy high Governmental position. You can know who joins the Government with profit motive and how he takes unfair advantage of his position. You people understand the ways in which people take unfair advantage. I therefore respectfully submit that it is very necessary that we include some such provision in these fundamental rights as may be a safeguard against these dangers. Until we make such a provision, the poor people of this country will not be benefited by this constitution. Today we are engaged in fixing the salaries of Governors and Ministers and the allowances of members. But the greatest need at present is that of finding out ways and means to increase the income of the most lowly among the people. We have not to increase his income out of somebody's charity but we have to make such provision as may help him in making his life happy and in increasing his income. This is the foremost and the most important task facing us. Today when we go out we find people asking us as to what place we are giving to the poor in the Constitution and what we are doing for them, and they openly point out that unless some thing is done for them, this Constitution is useless for them.
The Other thing that is necessary is that we have to make the nation strong and compact. Many things are needed to make a nation compact. The most important of them all is that there must be cultural unity amongst us. For Cultural unity, among other things there should be one State language. I want to invite your attention to the speech of my learned friend Chaudhari Khaliq-uz-Zaman. When Pakistan was in the offing, he made the declaration that the language of Pakistan would be Urdu. I think that no one should have any objection to it. In one nation, there can be only one national language. It occurred to me on reading his statement that as a matter of principle it is very appropriate; and therefore it is necessary that in India too we may decide hat in our country also there shall be one language. Until we decide this there is no doubt that we can strengthen neither our cultural unity nor our national unity. There has always been one culture in our country. By adopting one language we can strengthen it and thereby strengthen the Indian nation. We admit that ten to twenty thousand of our muslim brethren came from out side but undoubtedly it is difficult to say as to who are their progeny and where they are. Nowadays about 99 per cent. Muslims, 100 per cent. Hindus, 100 per cent Christians and 100 per cent. Sikhs are the descendants of common ancestors. Some of our muslim brethren, may under misguidance hurl abuses at Rama and Krishna. But there is no doubt, that in the near future when conditions stabilize and this virus of ill-feeling and communalism is destroyed, every Muslim will consider Rama and Krishna as his ancestors just like Hindus. It has been a feature of the History of the World that in spite of change of religion cultural unity has remained intact. It was unfortunate that ill-will continued to grow amongst Hindus and Muslims in our country and its result was that we were continuously separated from each other. We have cultural unity and everyone has contributed towards it. Our culture has its roots in antiquity and every religious sect of our country has contributed towards it. Muslims have also made their own contribution. In the circumstances if we adopt one language as our State language we will be strengthening our culture and our nation. I am happy to know that very soon a resolution will come before you proposing that our State language be Hindi and that the script, be Devnagri. I think all members of this Assembly and every man, woman and child in the country will welcome this resolution.
The third thing, that is presently coming before you and which should also form part of fundamental rights, is very useful from the point of view of our culture and economy. Our country has all along been predominantly agricultural and no matter how much we may expand our trade, so long as we do not become imperialistic--which we should not be--our country will undoubtedly remain agricultural. Cow protection is very important for an agricultural country. I am happy to know that a resolution to this effect is coming before you in a very nice form, and I hope that this Assembly will adopt it unanimously. This matte too was hotly discussed. No only from financial point of view but from cultural point of view also, I think it is necessary to make adequate arrangements for cow-protection. From both the points of view, financial a s well as cultural, it is necessary and proper that we should take steps for cow-protection, and I am happy that a resolution to that effect is coming before you.
The fourth important matter has not yet come before you, but I think, that when the draft constitution including the fundamental rights will be placed before you, this also will come before you. And that is, how to make our nation strong and powerful in the shortest possible time. We do not want to attack any country of the world. We do not want that there should be any conflict in the world. But everything does not depend upon our wishes. If any country desires 50 per cent peace, we want 100 per cent. peace and we will make all possible efforts to being about peace in the world. This we can accomplish only when we are strong. From the point of view of population our country is the largest in the world and therefore it is our duty that owe put an end to the tendencies of violence that we find in the world today. But we can stop them only when we ourselves are strong and for that it is necessary that every youngman of our country should receive military training. I want that we should make a law that every youngman of our country will receive military training unless he is physically unfit and the State should compel him to receive such training. To make the nation strong, and also to remove the indiscipline that has crept into us owing to our dependence for centuries it is necessary that physically fit men should be conscripted and given military training.
These four things are very necessary and I confidently hope that when these matter come before you from time to time, you will consider them and the House will support them unanimously. I said at the very outset that so far as the principles contained in this report are concerned, I welcome them, but I think that they are inadequate. Until these fundamental principles are added, neither can the poor masses of the country be fully benefited nor can our country become strong. I hope that the Honourable Members of the Constituent Assembly will welcome this report and will support the inclusion of the fundamental principles stated by me.]*
With these words I welcome once again the report. Jai Hind.
Mr. Satyanarayan Sinha (Bihar : General) : Sir, I move:
"That the question be now put."
Mr. President: The question is:
"That the question be now put."
The motion was adopted.
Mrs. Renuka Ray (West Bengal : General) : Sir, yesterday you said in the House that the clauses of the Report would be discussed at a later stage. Some of us have amendments, particularly to clause 16. I hope we shall have an opportunity to bring up these amendments at a later stage.
Mr. President: At present we have taken up the motion that the Report be taken into consideration and if this motion is carried, then we shall take it up clause by clause and any amendments to the clauses may be taken up at that stage. Does the mover wish to say anything in reply ?
The Honourable Sardar Vallabhbhai J. Patel : I am glad the discussion is over. We have a very interesting general discussion on the Supplementary Report. The discussion on the main Report was shorter than that on the Supplementary Report. So far as the Supplementary Report is concerned, the general discussion is based on the non-justiciable rights, and on the few clauses which have been submitted in this Report about the justifiable rights there has been practically no discussion. The real prolonged discussion has been on the other part of the Report.
This Report lays down certain administrative objectives. We have already passed the main Resolution defining the objectives and therefore whether you have this prolonged debate or not is more or less an aca-demic thing. Therefore I suggest that the Report be taken up for consideration and when we come to the clauses, one by one, if any amendments are moved, then I may have to say something, but now I have nothing more to say except that the Report be taken into consideration.
Mr. President: The motion is:
"That the Report be taken into consideration."
The motion was adopted.
Mr. M.S. Aney (Deccan States) : Sir, I want to point out that it is the general rule that when a reply is made the Member who is replied to should be present in the House to hear the reply to his attack. This is a recognised rule of debate in all legislatures.
Mr. President: I hope the Members will bear in mind this advice of as experienced legislator like Mr. Aney.
The Honourable Sardar Vallabhbhai J. Patel : Sir, I move clause 16:
"No person attending any school maintained or receiving aid out of public funds shall be compelled to take part in the religious instruction that may be given in the school or to attend religious worship held in the school or in premises attached thereto."
We recommend this clause to be accepted by the Assembly in its present form. That is the final recommendation of the Advisory Committed. After a long discussion considering all the amendments, we finally came to the conclusion that this is the most suitable form for incorporation into the Fundamental Rights and I move that this clause be accepted by the House.
Mr. President: I have notice of several amendments to this Clause.
Shri R. V. Dhulekar (United Provinces : General) : Sir, I want to suggest a slight verbal change, that instead of the word "school" in the clause, the words "teaching institution" may be used.
Mr. President: But you have given no notice of any such amendment?
Shri R. V. Dhulekar: No, Sir.
Mr. President: Mr. Dhulekar suggests that the words "teaching institution" may be used, in the first line of this clause, in place of the word "school". He has given no notice of any amendment.
Mr. K. M. Munshi (Bombay : General): Sir, that will enlarge the meaning. The whole idea will be changed, it may mean a college, post-graduate school, or anything. The whole idea is that right should be restricted to a school. It is not a simple matter of changing one word by another.
Mrs. Purnima Banerji (West Bengal General) : Sir, I move.
That in clause 16, the following new paragraph be added as an explanation--
"All religious education given in educational institutions receiving State-aid will be in the nature of the elementary philosophy of comparative religions calculated to broaden the pupils' mind rather than such as will foster sectarian exclusiveness."
The object of the clause, Sir, is, as the Mover of the Report has suggested , to prevent the students attending these schools being forced to attend the religious classes, if they do not wish to do so. With that I am in perfect agreement. But I know there are a large number of institutions which are run on religious lines and which came into the field of education much before the State came in. There are in my Province 'Maktabs' and 'Pathasalas' which perform the function of importing education to children of school-going age. But we have seen that the religious instructions given there are of such a nature that, instead of broadening the mind of the child, they mis-educate the mind and sometimes breed a certain type of fanaticism and religious bigotry as a result of receiving education in these 'Maktabs' and 'Pathasalas'. It is a controversial point as to whether we should give any aid to denominational schools at all-- I do not wish to open that subject at all because there are experts appointed for this purpose and their report is awaited and I am sure after that the legislature will enter into that subject in fuller detail. My object in, moving the amendment is that the education imparted in these institutions should be restricted or controlled by the Government without any fear of interfering with anybody's religion. The curriculum should be in the control of the Government and should be of such a nature that it broadens the mind rather than create an exclusiveness. When we were discussing the Minority Rights Report, we said that our aim should be to form a united nation and we have done away with separate electorate and agreed on fundamental rights and given each the right to follow his own religion. But I do believe that however secular a State you may wish to build up, unless one member of it appreciates the religion of another member of the State, it would be impossible for us to build up a united India. Therefore, without interfering with the religion of anybody, the State should be perfectly entitled to see that, in the formative age of the child, when he is of the school-going age, the religious instruction is controlled and that the syllabus is of such a nature that the child will develop into a healthy citizen of India capable of appreciating each other's point of view. We may be united by political parties, but if we do not appreciate each other's religion. We shall find that instead of having really men of religion in our midst, we shall be breeding a type of exclusiveness which will be most harmful and on that type of mind, I am afraid, the future of the nation cannot be built up. With these few words, Sir, I move my amendment and I hope the House will agree with me and accept it.
Mrs. Renuka Ray : Mr. President, Sir, I move my amendment leaving out the first part, namely,--
That for clause 16, the following be substituted:--
"No denominational religious instruction shall be provided in schools maintained by the State. No person attending any school or educational institution recognised or aided by the State shall be compelled to attend any such religious instruction."
Sir, I feel that the farmers of the Report did not intend to imply what this clause does imply, namely, that instruction given in schools maintained by the State or out of public funds may be of a denominational character. Surely denominational schools cannot be run by a democratic secular State. Such schools may be recognised or even aided, but as the State we envisage under the new Constitution will be secular having no State religion as such, it cannot set up denominational religious institutions as State schools. I do not want to make a long speech; I merely want to point out that if my amendment is substituted for clause 16, then this interpretation will not be possible and what this clause is intended to convey will be brought out better. I hope the House will realise the necessity of making this substitution.
Sir, even before we have freedom, the Central Advisory Board of Education decided that the education that was to be given by the State in this country should not be of a denominational character and that religious education of a denomination character was the responsibility of the community and the home to which the child belongs and not of the State. I am sure that now that we have to fashion our own destinies and we are in a position to usher in that free, and democratic State for which we have striven and for which so many have sacrificed and died, it is open to us to say that we do not want to be inconsistent. We do not want to bring in an educational system whereby the education given by the State will be in direct contravention to the ideals and the interests of the State itself. I do not say that denomination religious education should not be allowed. But education given by the State should have the teaching of moral and spiritual values; it cannot by the very nature of the State be of a denominational religious character. I hope that Sardar Patel will accept this amendment, because it is not in contravention to the desire of the Committee. It merely tries to clarify the issue. The clause as it now stands may be misunderstood to mean that we are submitting to the State having denominational educational institutions as a part of its educational programme of policy.
Mr. President: There are only two amendments of which I have notice. Both the amendments have been moved. Now, the resolution and the amendments are open for discussion.
Shri K. Santhanam (Madras : General) : Sir, I strongly support the amendment moved by Shrimati Renuka Ray. I think it carries out more fully the intentions of the Sub-Committee. In our country, even in the same religion there are any number of denominations. We want, the village panchayats to control education; we want the local boards to control education. In a particular village or a particular area, a particular Hindu denomination may be in a majority. We don't want Saivaites to give Saivaite instruction; the Vaishanavaites to give Vaishnavaite education; the Lingayats to give Lingayat instruction. We do not want to give even the slightest loophole for such controversies. Therefore, it is essential that all schools maintained by the State should have no religious instruction whatsoever. Let other agencies provide this instruction, if they so choose, in 'out of class' hours. That is a different thing altogether. I am objecting to religious instruction as such, nor I am objecting even to denominational character of religious instruction, but our public institutions should be absolutely secular. They should be beyond the reach of all religious controversies. Therefore, this amendment says that where schools are maintained by the State, no denominational religious instruction shall be provided in them. It carries out the intentions of the Committee much more precisely and fully. If an institution is recognised or receives aid from public funds then there should be no compulsion. There may be religious instruction in an aided school, but where any parent of a minor or--if a student is an adult--such student does not want to attend the classes, he should not be penalised in any way. He should be allowed to absent himself from such religious instruction. I think both these clauses are fundamental and I hope that they will be unanimously accepted by the House.
Mr. H. V. Pataskar (Bombay : General) : Sir, I would like to have clarification with regard to one point. The clause states "No person attending any school". In the beginning Mr. Dhulekar suggested to replace the word "school" by "educational institution." As I understand it, the word "school" is used in a wider sense implying any class of institution where education is provided, but if it is the idea that we are going to exclude colleges, for instances, which are in one way schools where education is given, then I think what it would lead to is that in schools which are aided by Government you cannot make religious instruction compulsory, but in colleges, if we use the word 'school' in its restricted sense, you can make it compulsory. I know of some colleges in the city of Bombay where some time back this religious instruction was compulsory. So I hope the Honourable Mover will clarify this point when replying.
Mr. President: It seems to me that nobody is willing to speak on this motion or the amendment. Will Sardar Vallabhbhai Patel reply.
(B. Pocker Sahib Bahadur, Madras: Muslim, stood up.)
Mr. President: Oh, you want to speak?
B. Pocker Sahib Bahadur : Yes, Sir, I only want to say a word as regards amendment No.34. The object of this amendment seems to be to unify all the people of this country towards one religion or something tending towards it. If that is the object then I certainly oppose it. I must say that in some previous speech in Hindustani on the general discussion. some similar suggestion was made; of course, I have not been able to follow that and I am not proficient to deal with that. But generally, I would say that any attempt towards the unification of all religions or towards giving instruction in public schools which is intended to unify religion is fundamentally opposed to the other clauses of fundamental rights which we have passed.
Now, Sir, I would like to point that the carrying out of this amendment No. 34 will be opposed to the other clauses and it would be opposed to the Fundamental Rights upon which we have been working so far and the introduction of this amendment will create not only discontent but it will take away the vary basic principles upon which this Constitution is to be built. Then, I have no objection to the amendment No. 59 but I would point out that even though no denominational religious instruction may be provided in schools maintained by the State, what we find is in all the text-books which are prescribed for the various classes in the Schools we find so many religious topics are introduced particularly topics which deal with Hindu religion or some other religion. I would like to say that subjects which deal with the moral aspects only without having any religious idea introduced may find a place but if it does find a place in the text-books it may be from all religions, alike and not from any particular religion alone.
Therefore, I would oppose this amendment No. 34 and support the original clause as it stands but I would only add that there are so many educational institutions which are intended to promote some particular minorities or religious minorities because of their backwardness in the matter of education. I submit that such institutions should not be affected by this clause.
Mahboob Ali Baig Sahib Bahadur (Madras: Muslim) : This is rather an important matter and my preference is for the original proposition, i.e., as framed by the Committee. I am in entire agreement with the mover of amendment No. 59, Shrimati Renuka Ray, whose aim is to have secular education not influenced by any kind of religious or spiritual worship or education which must be the aim. The amendment by the other lady member is somewhat controversial. What would be the fundamental education that should be given to the child would be a matter of opinion and it might lead to controversy. So, Sir, the amendment No. 34 cannot be taken into account at all. It will do more harm than good. For, this elementary philosophy of comparative religion is very difficult to define. While as I have said I generally support the amendment of Shrimati Renuka Ray where it aims that in no State Schools there should be any religious instruction, it does not contemplate prevention of religious education being given by other recognized and aided schools. So the objective may not be the same by the amendment of Mrs. Renuka Ray. Allowing the proposition, rather the original motion, as framed by the Committee, is very sound. It may be that there are some institutions where religious education is given and some State aid may be given and if there is no compulsion that no pupil can be compelled to receive such education, there is no harm in it. It might stand. So, I think, Sir, that the clause 16 as amended and placed before us by the Committee is better and I support that.
Sriyut Rohini Kumar Chaudhury (Assam: General): Mr. President, Sir, I rise to give my whole-hearted support to the Motion which was moved by our Honourable friend Mrs. Purnima Banerji. It is not the personality of the Mover which has promoted me to do so but I think, Sir, taking the two motions side by side, the motion which was moved by Mrs. Banerji would take us nearer to the goal of our ideal of secular education. My Honourable friend, Mrs. Renuka Ray, has made an earnest appeal to the Honourable Sardar Patel and I am sure he is not relishing the position of having to choose between either of the two amendments but, as is well known,he is capable of surmounting any difficulties and I am sure he will get over this difficulty and give regard to the appeal of Mrs. Renuka Ray and also accept the motion made by Mrs. Banerji.
Mr. K. M. Munshi : Mr. President, Sir, my first proposition with regard to this Fundamental Right is that the words 'Public Funds' should be really 'State Funds'. Mr. Kamath's amendment was evidently lost sight of. When the original Fundamental Right was accepted, wherever the words 'Public Funds' were found, they were substituted by 'State Funds'. The object was that the money collected from public subscription should not be considered the same as 'State Funds'. Therefore I appeal to the Mover that this verbal change might be accepted. My second submission is with regard to the amendment moved by Mrs. Banerji. However laudable the object, the House will remember that this is a justiciable right and therefore every word of it will have to be discussed, considered and decided upon by the different High Courts and the Supreme Court in the end. Now, if Mrs. Banerji's amendment becomes law as a justiciable right, this will be the position. There is a School in which religious education is given. The first question raised by some friend or by some enterprising man will be 'Is it in the nature of elementary philosophy or comparative religions ? So the matter will have to be taken to the Supreme Court and eleven worthy judges will have to decided whether the kind of education given is of a particular religion or in the nature of elementary philosophy of comparative religion. Then, after having decided that, the second point which the learned judges will have to direct their attention to will be whether this elementary philosophy is calculated to broaden the minds of the pupils or to narrow their minds. Then they will have to decide upon the scope of every word, this being a justiciable right which has to be adjudicated upon by them. I have no doubt members of my profession will be very glad to throw considerable light on what is and is not a justiciable right of this nature. (A Member: For a fee). Yes, for very good fee too.
Then again they will have to consider whether a particular kind of teaching fosters sectarian exclusiveness. All this I think will require any amount of litigation before a quietus can be given to this right.
An Honourable Member: May I ask the Honourable Member whether comparative religion taught in all universities and educational centres is not narrow minded and likely to warp the minds of the pupils?
Mr. K. M. Munshi: It is not a point of order, but a question. There are no lawyers set up there to consider whether this comparative philosophy or elementary comparative philosophy taught in the educational institutions broadens the pupils' minds or not. These decisions will have to be for the whole country including the Indian States. But all these words are of a nature not capable of being interpreted in judicial terminology except by dozens of decisions and an expenditure of lakhs of rupees. Therefore, I am submitting that this is more in the nature of a dictum of what may be called broad rationalistic philosophy and is not to be approached legalistically and embodied into justiciable and non-justiciable rights. To attempt to do so would lead to considerable confusion. Even if the idea is to prescribe that religious education must not be of a nature which is exclusive, then a better phraseology would have to be found.
On the merits I would like to say only one word and it is this: Educational institutions of a denominational character often give religious education. They are doing so, not for the purpose that the students will have a general knowledge of comparative philosophy but for seeing that the students who are members of a particular denomination are given education in that kind of religion. And as a matter of practice, I may assure the House that, even if this 'justiciable rights' is there, it is not going to make any difference. Supposing there is a school of a particular denomination where a particular doctrine is taught, can any one compel that institution to impart instruction in comparative philosophy to its students ? First of all, at that stage students cannot understand philosophy. But even if you compel them, the school, its teachers and even the authors can so manipulate things that at the end of the study of comparative religion, the student comes to the conclusion that that religion is the best. I know of a concrete instance. A certain denominational school taught the sacred book of that community to the classes, but at the same time lectures were being delivered in the nature of comparative study of religion. At the end of it it was taught that theirs was by far the best. This amendment will not meet the situation. It will make it worse. I submit, it is impossible to bring this doctrine under the terms of a clause as a justiciable right. If this amendment is accepted it will work great hardship and will remain a dead letter.
Then I come to the next amendment of Mrs. Ray. As far as the first part of it is concerned, viz., "No denominational religious instruction shall be provided in schools maintained by the State", as far as the Federation is concerned, it is going to be a secular and democratic State. So far as the Units are concerned, I do not think the provinces are going to be religious States. But at the present moment this Fundamental Right would not only affect the provinces, but also the States. If the Indian States are willing to accept that, it is a different matter, but it would not be right in my opinion to lay down this general principle in the present condition of India unless we are all unanimous on this point.
As regards the second sentence, I confess it is an improvement on the phraseology of Clause 16 as adopted by the Advisory Committee and for this reason: "No person attending any school maintained or receiving aid out of public funds...." Now, the word 'maintained' in the original clause may be construed as wholly maintained. Therefore Mrs. Ray's amendment would recognise this fact. If it is wholly maintained, it is different. This clause only refers to what may be called State-aided institutions. Therefore her words 'No person attending any school or educational institution recognised or aided by the State' constitute a better phraseology. I submit it should be accepted. It runs thus: 'No person attending any school--maintained' instead of this the word 'recognised' may be inserted. The result will be: 'No person attending any school recognised or receiving aid out of public funds. So it automatically puts out of its purview State institutions which are wholly financed by the State.
Now, with regard to the words "educational institutions" I submit it enlarges the meaning of the word 'school' to a very large extent. It would create grave difficulties if it is allowed to be used. There may be pathasalas or madrassahs giving religious instruction. Their express object is to give religious instruction and everywhere today these are aided by the State. Any such rigid fundamental right would have the effect that all those thousands of educational institutions will have to go out of existence.
Shri K. Santhanam: May I know why those institutions should go out of existence ?
Mr. K. M. Munshi: The point is that there are schools which are intended to teach religion and every student who goes there is taught religion. Pathasalas are not strictly educational institutions. Therefore the word 'school' has a clear meaning that meaning is that schools are institutions where primary and secondary education is given and not education of a specialized character. Therefore I submit, Sir, Clause 16 as moved will express the idea completely if two words are changed, "maintained" is altered into "recognised" and "public funds" into "State funds". That is my submission.
Mr. Debi Prosad Khaitan (West Bengal: General) I believe that 'out of' will have to be changed into 'by'. Then it will read: "No person attending a school recognised by the state".
The Honourable Sardar Vallabhbhai J. Patel : Sir, I am prepared to accept the change suggested by Mr. Munshi that instead of the word "maintained" in the clause we put the words "recognised by the State" and instead of 'public funds' we put "out of State funds."
The only thing that I have to say in considering the clause is that one has to keep in mind that this is one of the justiciable rights and we must in drafting or in adopting the clauses keep in mind that this is not a clause which belongs to British India only but to the whole of the Indian Union and in adopting these clauses we have to consider the fact that it should not be such as to open the flood gates of litigation and create many difficulties afterwards. Therefore, these should be mainly general propositions under which special cases would give so much to go to the court and therefore with these changes which I am accepting I move the proposition for the acceptance of the House.
Dr. S. Radhakrishnan (United Provinces: General) : Mr. President, I should like to have an elucidation. Does this term "recognised by or receiving aid from" include or exclude institutions wholly maintained, administered and financed by the State ?
The Honourable Sardar Vallabhbhai J. Patel: It includes.
Mr. H. V. Pataskar: May I know if it is the idea to exclude colleges and all other higher institutions, where religious instruction may be made compulsory or is it used in the larger sense of any educational institution?
Mr. President: Mr. Pataskar wants to know whether 'school' includes colleges or not.
The Honourable Sardar Vallabhbhai J. Patel: It excludes colleges.
Mr. President : May I put the amendments to vote? The first amendment is that of Shrimati Purnima Banerji:
That in clause 16, the following new paragraph be added as an Explanation :--
religious education given in educational institutions receiving State aid
will be in the nature of the elementary philosophy of comparative religions
calculated to broaden the pupil's mind rather than such as will foster
The amendment was negatived.
That for clause 16, the following be substituted:--
"No denominational religious instruction shall be provided in schools maintained by the State. No person attending any school or educational institution recognised or aided by the State shall be compelled to attend any such religious instruction."
Mr. K. M. Munshi: I want to know whether the Honourable Mover has accepted the word "recognised" in the place of "maintained".
Mr. President: That is in the original resolution--"maintained by the State". He has accepted that I think.
Pandit Hirday Nath Kunzru (United Provinces: General): I do not understand the exact effect of the amendment. Does the acceptance of the amendment by the Honourable Sardar Vallabhbhai J. Patel mean that clause 16 will relate not to schools maintained by the State but only to schools recognised by the State and aided out of state funds ?
Mr. President: Mrs. Renuka Ray says she is withdrawing the amendment. I will put the original proposition.
Pandit Hirday Nath Kunzru : Sardar Vallabhbhai Patel said he would accept the amendments suggested by Mr. Munshi and I believe that if these amendments are accepted clause 16 would read as follows:--
"No person attending any school recognised by the State or receiving aid out of State funds shall be compelled etc. etc."
Is this correct ?
Mr. President: I am going to put that very proposition to the House as you have just now read out.
Mr. K. M. Munshi: Instead of 'state funds' it would be better to have It "recognised by or receiving aid from the State" because it cannot be recognised by State funds. That is only a matter of drafting.
Mr. President: The sentence will be:
"No person attending any school recognised by the State receiving aid out of state funds etc."
Pandit Hirday Nath Kunzru: That is, the schools maintained by the State are excluded from the scope of this clause. This is a curious phraseology and I should like the meaning of this clause to be clearly explained. If it is the intention of the Government that denominational religious instruction might be given by the state in the State schools then that should be stated clearly so that we may make up our minds and decide how we should vote on this clause.
Mr. President: We may get over the difficulty if we put the clause in the following way: "No person attending any school recognised or maintained by the State or receiving aid out of State funds etc.". Will that do ?
Pandit Hirday Nath Kunzru: I think that will remove the difficulty.
Dr. S. Radhakrishnan : If the institutions which are maintained by the State are to impart denominational religious instruction then what happens to our declaration that the State is a secular institution which will not impart any instruction of any denominational kind? That is the real question. We have adhered to the first principle that the State as such shall not be associated with any kind or religion and shall be a secular institution. In other words we are a multi-religious State and therefore we have to be impartial and give uniform treatment to the different religions, but if institutions maintained by the State, that is, administered, controlled and financed by the State, are permitted to impart religious instruction of a denominational kind, we are violating the first principle of our Constitution. On the other hand, if we say aided institutions may impart religious instruction, we protect the interests of the people against the violation of their religious conscience by saying that they shall not be compelled against their will to join classes on religion. So a distinction will have to be made between institutions maintained by the State and those institutions which are merely aided from State funds. So far as the former are concerned we cannot allow any religious instruction of a denomination character. So far as the latter are concerned, you may allow, provided you protect the rights of the minorities concerned. We have to make ourselves absolutely clear on this matter.
The Honourable Sardar Vallabhbhai J. Patel : Sir, there is some confusion. So far as any school that is entirely maintained by the State is concerned, we cannot do anything by way of introducing fundamental rights for which the remedy of taking it to the court is given. Because, this is not restricted to the British Indian portion alone; it covers the whole of India, that is the Indian Union. Therefore, if a Unit which is a State, take the case of Hyderabad, wants to maintain wholly its own school in which it wants to introduce religious education, it may compel; but we cannot give a remedy by which anybody can go to the court and say, "you will not impart religious education here". I do not think this is proper at this state. Therefore, the wording 'recognised by or receiving aid from the State funds' is introduced.
Mr. M. S. Aney: I have one doubt, Sir. Does the word "State" mean only the Union or the Units also ?
Mr. President: He wants to know whether "State" includes Units.
The Honourable Sardar Vallabhbhai J. Patel: "State" includes Units.
Shri R. V. Dhulekar: On a point of information, Sir, I would like to know whether the wording is "recognised by and receiving aid" or "recognised by or receiving aid".
The Honourable Sardar Vallabhbhai J. Patel:" The word 'Or' is there.
Mr. President: Recognised by the State or receiving aid out of State funds. One or the other.
Shri R. V. Dhulekar : If the word "or" is there, that means that even denominational institutions which are wholly maintained by private funds will not be recognised by the Government at all. So, the word "or" should not be there. It should be "and". They should be recognised by the Government and aided. If they are aided, then this rule will apply. If it is maintained only by private funds, then....
The Honourable Sardar Vallabhbhai J. Patel: Even if it is maintained by private funds, if it is recognised by the State, you cannot compel the students to have religious education.
Dr. B. Pattabhi Sitaramayya: (Madras: General) : May I express a difficulty, Sir ?
The Honourable Sardar Vallabhbhai J. Patel: There will be no end to the difficulties.
Dr. B. Pattabhi Sitaramayya: If you want to pass it in an ambiguous manner, there is no trouble. I see an obvious defeating of the purpose for which the amendment is made.
The Honourable Sardar Vallabhbhai J. Patel: I do not see any difficulty.
Mr. President: Mr. Munshi's amendment was introduced in the course of the discussion and there was no proper notice of it. Therefore, this question has arisen.
The Honourable Sardar Vallabhbhai J. Patel: What is the difficulty?
Dr. B. Pattabhi Sitaramayya : There are certain institutions in the provinces or States where certain benefactors have maintained whole institutions and they would like to impose certain religious instruction upon the students. We wanted to exempt them. That is all very well. Now, the object is to exclude a category or institutions maintained by a certain province or State or private funds without any connection with the State. Very well, then, you have excluded them. Then you have included two categories of institutions: one which is not recognised by but is receiving State aid; in that case, my argument does not apply. But, when you say recognised by or receiving aid from the State, then you have introduced two categories of institutions. One of them includes any institution recognised by the State. A state-maintained institution is a recognised one and thus becomes included, when it was meant to be excluded. Thus, the right of compulsion is taken away and the very exemption that we have given is undone; because even a State-maintained institution is a recognised one. The moment it is recognised by the State, that moment, the exemption that you have given to the State-maintained institution is taken away. Therefore, if you want to validate and affirm your exemption to, the State-maintained institutions, you must say, "recognised and receiving aid from the State". That creates only one category. Otherwise, the language with 'or' would include those institutions which you have excluded. Let us take a little time, each person for himself, to judge what it means.
Dr. Mohan Sinha Mehta : ( Udaipur State): Sir, I am very glad that the Honourable Pandit Kunzru raised that point. From the explanation that has been given, it is quite obvious that what we understand was not really intended. Now we are told that an institution maintained by a State may have religious instruction compulsory. Well, Sir, that is a position about which some of us in this House have very strong feeling, and since the matter is not clear, I would strongly submit for your consideration that it be referred back to the Committee. If you accept the first sentence in Mrs. Renuka Ray's amendment and keep the rest of the original proposition, it would be all right. It will meet the point raised by my friend, Professor Radhakrishnan............
Mr. K. M. Munshi: Are we debating the same thing over again? I think we have adopted it.
Mr. President: The difficulty is, you put in certain words in the course of the discussion, of which there was no notice to the members. The mover has accepted them and therefore the difficulty has arisen.
Dr. Mohan Sinha Mehta: The matter is of fundamental importance. There is a very real difficulty and I wish that it should be cleared before you ask us to vote on the proposition. I would remind the House that this subject was discussed at two sessions of the Central Advisory Board of Education. It is not a matter which should be treated lightly.
Pandit Hirday Nath Kunzru : Sir, may I strongly support the suggestion by Dr. Mohan Sinha Mehta. It is very desirable, in view of the importance of the subject, that this clause should be referred back to the Advisory Committee. I do not want to labour the point, but in order to show that it deals with a question of vital importance, I wish to point out that if we allow the State to give religious instruction in any school, it means that we accept the principle of a State religion and that there shall be something like an Established Church. Now, so far as I remember, Sir, during all the years that the struggle for national freedom went on, we stood for a secular State. Indeed, the earlier generation of leaders of Indian public opinion welcomed the measures taken for the disestablishment of the Protestant Church in Ireland. How can we then, Sir, consistently with our previous principles now accept a position in which the State will be in a position to give religious instruction and thus have a State religion which it is bound to protect above all other religions? Therefore, Sir, I strongly support. Dr. Mohan Sinha Mehta's suggestion and I hope Sardar Vallabhbhai Patel will have no objection to that.
There are many points which have not yet been decided by this House. Provision will be made in respect of them in the Bill that will come before us and we shall then have an opportunity of arriving at a decision with regard to them. No harm will be done if we leave one more point to be discussed and decided at a later stage. Indeed I think that it is absolutely necessary, in view of the cardinal character of the question that has arisen, that we should not decide it in a hurry today. We must refer it back to the Advisory Committee if we attach any value to fundamental principles.
Mr. K. M. Munshi : Sir, it is not correct to assume that the matter did not receive consideration at the hands of the Advisory Committee or the original Fundamental Rights Committee. There are two different propositions. One proposition is that no school which is recognized by the State, whether aided by the State or not, should be such where students are compelled to take religious instruction. It is one proposition, which is embodied in this. The reason why the word "maintained" was altered to "recognised" was this: there are several schools which do not receive aid from the State and yet they are recognised schools. I know in my part of the country there are several recognised schools which send up students for various examination, but they do not received any aid from the State, but they are schools all the same, and the object of substituting the word "maintained" by "recognised" was to cover all those schools, whether they receive State aid or not, but are recognised by the State. Now. so far as those schools are concerned, proposition contained is very simple, that they shall not compel any student to receive religious instruction against his will. The second proposition, which is quite different, which has nothing to do with this clause, is the one contained in Mrs. Renuka Ray's sentence, that in schools which are controlled, owned and maintained by the State there shall be no religious education. Now these two are entirely different propositions.
Pandit Hirday Nath Kunzru: May I point out to my honourable friend that Sardar Vallabhbhai Patel said that this clause as it stood included both the categories of schools?
Mr. K. M. Munshi: But not for the purpose of excluding religious education. This only recognizes the right of the student or his parent to say "My son shall not be given any religious instruction". This is only one part of it. The other is a different proposition. We need not mix up the two. A State-maintained institution and owned by it may conceivably give religious instruction or may not. It is an entirely different subject.
The object of this clause is not to fetter the State from putting up religious schools but from in insisting that every student shall be compelled to undergo religious instruction. This matter came up again and again and the Committee always held that it was not necessary to put down in fundamental rights the converse proposition. If the converse is brought before the House, it may be discussed at another time. But so far as this proposition is concerned, it stands as it is.
Mr. N. Gopalaswami Ayyangar :(Madras: General): A state does not recognise its own institutions. "Recognized" has got a particular meaning.
Mr. K. M. Munshi: If a school maintains an institution, then if you want to prohibit religious instruction in it, it is an entirely independent subject. It is not covered by this clause. This clause only covers institutions which are recognized and State-aided. I see no reason why this part must be held up till the other one is decided. That other one was discussed again and again and ruled out by the Committees. It is not correct to say that neither the Fundamental Rights Committee not the Advisory Committee considered it.
Mr. Alladi Krishnaswami Ayyar : (Madras: General): In view of the difficulties that have cropped up, and I submit that they are genuine, it is necessary that the clause should receive further consideration. The way in which I put the matter is this. You have got three classes of institutions: first, an institution which is maintained by the States, second, an institution which is recognized by the State, third, an institution which receives aid from the State. Now, though the subject might have been considered in a general way by the Committee, and my friend Mr. Munshi is quite right in that, personally speaking I am impressed by the argument that a State being a secular institution, there are weightier reasons why religious instruction should not be forced in an institution which is wholly maintained by the State than in a merely recognized or partly aided school. Difficulties in regard to Indian States have been pointed out. If the State maintains an institution for a particular purpose, you may make an exception: for example, for imparting Sanskrit learning or training a particular class of pandits or some such thing. But generally speaking an institution maintained by the State must stand on a better footing than an institution which is recognized by the State or which is receiving aid from the State. Therefore I do think that the whole question may be reconsidered in the light of the suggestions made in the House, instead of one point being accepted, another point being left open, and another being referred to the Advisory Committee.
I do not mean to say anything different from what Mr. Munshi has said: but certain points have cropped up here. Let us consider them; they are important points, and I do think they should be remitted for reconsideration by the Advisory Committee or even by the Committee which has been set up to revise the Draft to see whether it is possible to bring in line these different classes.
The Honourable Sardar Vallabhbhai J. Patel : These difficulties arise when at the last moment pressure is being put to accept some suggestions, and then even those who make the suggestions afterwards say 'Oh, this is not what we meant'. This question was discussed in the House and the clause was referred back to the Advisory Committee. The Advisory Committee considered it in all its aspect and brought it here. Then at the last moment these changes were pressed. We said 'All right if you think those better, we accept them'. Instead of referring back to the Advisory Committee, it would be better to refer it to a small Committee of two or three people. My suggestion is that instead of referring this small matter to the whole Advisory Committee, it should be referred to a small committee, and if they make any suggestions, they can be brought forward at the next session. I do not think it is advisable to refer it back a third time to the Advisory Committee.
Shri K. Santhanam: We are not going to consider it fresh. It may be referred to the Drafting Committee.
The Honourable Sardar Vallabhbhai J. Patel: That is better.
Mr. President: Does the House wish to refer it to the Drafting Committee?
Honourable Member: Yes.
Mr. Tajamul Husain (Bihar: Muslim): The Drafting Committee will only draft. We settle the principle.
The Honourable Sardar Vallabhbhai J. Patel: The House cannot discuss what the Drafting Committee will do.
Pandit Hirday Nath Kunzru: Mr. Patel's suggestion was better. Let us refer this to a small committee that can send its recommendations to the Drafting Committee. I think that will meet the points of view of all Members of the House.
Mr. Hussain Imam (Bihar: General): A committee appointed by the President will do. They will send their recommendations to the Drafting Committee.
Mr. President: If that is the wish of the House I do not mind.
(Interruption by a member in Hindi.)
Mr. President: The Members of the Drafting Committee are here and they have also heard the discussion, and they will get a report of this debate. I am sure they will take all points into consideration and then put forward a draft eliminating all the difficulties mentioned there.
Pandit Hirday Nath Kunzru: Is there any real difficulty in the suggestion made by Mr. Patel?
Mr. President: The House has accepted it.
Pandit Hirday Nath Kunzru: I think if Mr. Patel puts it forward strongly, the House will accept it.
Mr. President: I do not think it is necessary for him to do that. If the House accepts it I will do it.
Pandit Hirday Nath Kunzru: Let Sardar Vallabhbhai Patel put it forward strongly.
The Honourable Sardar Vallabhbhai J. Patel: I have no objection if it is referred to a committee appointed by you and that committee may send it to the Drafting Committee.
Mr. President: I will nominate four or five gentlemen who are really interested in this subject and they can send up their recommendations to the Drafting Committee.
An Honourable Member: It must come to the House.
Mr. President: Only the final report will come to the House.
Dr. P.S. Deshmukh: There are one or two things which require elucidation. If it is not necessary to take up the next item, we may discuss these one or two matters.
Mr. President: I do not know what are these matters.
The Honourable Sardar Vallabhbhai J. Patel: That may be discussed before the next session meets.
Dr. P.S. Deshmukh: We have for instance to fix the time of the next Session and other things!
Mr. President: That will not take much time.
Mr. President: Clause 17.
"Conversion from one religion to another brought about by coercion or undue Influence shall not be recognised by law."
The Honourable Sardar Vallabhbhai J. Patel : The Committee discussed this and there were several other suggestions made by the House and the clause was referred back to the Committee. After further consideration of this clause, which enunciates an obvious principle, the Committee came to the conclusion that it is not necessary to include this as a fundamental right. It is illegal under the present law and it can be illegal at any time.
Mr. President : Has anybody anything to say?
Shri M. Ananthasayanam Ayyangar (Madras: General): It is unfortunate that religion is being utilised not for the purpose of saving one's soul but for disintegrating society. Recently after the announcement by the Cabinet Mission and later on by the British Government, a number of conversions have taken place. It was said that power had been handed over to Provincial Governments who were in charge of these matters. This is dangerous. What has religion to do with a secular State? Our minorities are communal minorities for which we have made provision. Do you want an opportunity to be given for numbers to be increased for the purpose of getting more seats in the Legislatures ? That is what is happening. All people have come to the same opinion that there should be a secular State here; so we should not allow conversion from one community to another. I therefore want that a positive fundamental right must be established that no conversion shall be allowed, and if any occasion does arise like this, let the person concerned appear before a Judge and swear before him that he wishes to be converted. This may be an out-of-the-way suggestion but I would appeal to this House to realize the dangerous consequences otherwise. Later on it may attain enormous propositions. I would like this matter to be considered and the question referred back for a final draft for consideration at a later sitting.
Shri R. V. Dhulekar : *[Mr. President, my opinion is that clause 17 should be retained as it stands. In the present environment, all sorts of efforts are being made to increase the population of a particular section in this country, so that once again efforts may be made to further divide this country. There is ample proof, both within this House and outside that many who live in this country are not prepared to be the citizens of this country. Those who have caused the division of our land desire that India may be further divided. Therefore in view of the present circumstances, I think that this clause should be retained. It is necessary that full attention should be paid to this. While on tour, I see every day refugees moving about with their children and I find them at railway stations, shops, hotels, bakeries and at numerous other places. The men of these bakeries abduct these women and children. There should be legislation to stop this. I would request you that an early move should be made to stop all this and millions of people would be saved.
I submit that we cannot now tolerate things of this nature. We are being attacked, and we do not want that India's population, the numerical strength of the Hindus and other communities should gradually diminish, and after ten years the other people may again say that "we constitute a separate nation". These separatist tendencies should be crushed.
Therefore I request that Section 17 may be retained in the same from as is recommended by the Advisory Committee.
The Honourable Sardar vallabhbhai J. Patel : Much of this debate may be shortened if it be recognised that there is no difference of opinion on the merits of the case that forcible conversion should not be or cannot be recognised by law. On that principle there is no difference of opinion. The question is only whether this clause is necessary in the list of fundamental rights. Now, if it is an objective for the administration to act, it has a place in the Second Part which consists of non-justiciable rights. If you think it is necessary, let us transfer it to the Second Part of the Schedule because it is admitted that in the law of the land forcible conversion is illegal. We have even stopped forcible education and, we do not for a moment suggest that forcible conversion of one by another from one religion to another will be recognised. But suppose one thousand people are converted, that is not recognised. Will you go to a court of law and ask it not to recognise it ? it only creates complications, it gives no remedy. But if you want this principle to be enunciated as a seventh clause, coming after clause 6, in the Second Schedule, it is unnecessary to carry on any debate; you can do so. There is no difference of opinion on the merits of the case. But at this stage to talk of forcible conversion on merits is absurd, because there cannot be any question about it.
Shri R. V. Dhulekar: *[I agree that it may be transferred there.]*
The Honourable Sardar Vallabhbhai J. Patel: *[It will be transferred.]*
(At this stage Mr. Hussain Imam walked up to the rostrum to speak.)
The Honourable Sardar Vallabhbhai J. Patel: Do you advocate forcible conversion ?
Mr. Hussain Imam : No, Sir I very much regret the attitude of certain Members who are in the habit of bringing in controversial matters without any rhyme or reason. It was really a most uncalled for attack which the last speaker made on the Mussalmans, without mentioning names. But I regret that in the atmosphere which we are trying to create of amity such intrusions should be allowed to intervene and mar the fair atmosphere.
Sir, what I came to suggest was that this is such a fundamental thing, that there is no need to provide for it. According to the law everything which has been done under coercion is illegal. Anything done by reason of fraud can never stand. Forcible conversion is the highest degree of undesirable thing. But it is not proper, as the Sardar himself has admitted, to provide it in the justiciable fundamental rights. The only place which it can occupy is in the annals of High Court judgements. Any number of judgements exist which have declared that anything done by reason of fraud or coercion is illegal. Therefore it is not justiciable and cannot be justified by any sensible person in the world I strongly advocate that it is not necessary to put it in any of the lists of Fundamental Rights.
Shri R. V. Dhulekar: *[I want to ask you whether any Hindu has embraced Islam by speeches.]*
Mr. President: Then I shall put the motion.
"That this should not be put in the Fundamental Rights."
The motion was adopted.
Mr. President: Then we come to Clause 18 (2).
The Honourable Sardar Vallabhbhai J. Patel : This is the last clause, that--
"No minority whether based on religion, community or language shall be discriminated against in regard to the admission into State educational institutions, nor shall any religious instruction be compulsorily imposed on them."
This clause was referred back to the Committee and it came to the conclusion that the last sentence is not necessary, i.e., "nor shall any religious instruction be compulsorily imposed on them" because it is already covered by Clause 16 which we have passed. That being dropped, I move the proposition, without that that particular sentence, for the acceptance of the House.
K. T. M. Ahmad Ibrahim Sahib Bahadur (Madras: Muslim): Sir, I move that the following be added after the word "institutions" in Clause 18(2)--
"Provided that this clause does not apply to state Educational institutions maintained mainly for the benefit of any particular community or section of the people."
Sir, it is well known that there are in existence certain institutions maintained by the State, specially for the benefit of certain communities which are educationally backward, and if this clause is applied to such institutions also, the very object of establishing such institutions would be defeated. Therefore, it is necessary that, in order that the object of the establishment and maintenance of such educational institutions mainly for the benefit of that particular community may not be defeated,--this. clause should not apply to them. This is a very simple proposition and I hope the House will accept it.
Shri Mohanlal Saksena (United Provinces: General) : Sir, I move that, the following proviso be added to clause 18 (2) :
'Provided that no State aid shall be given to any institution imparting religious education unless the syllabus of such education is duly approved by the State.'
I do not want to make any long speech. It is obvious that if any institution wants to impart religious education and wants to take State aid as well, then it is necessary that the syllabus of religious education should be approved by the State; otherwise, it should forego the aid. We know that in the name of religion all sort of things are being taught and since the children are the trust of the State, it is necessary that before the State gives any aid, it should at least approve the syllabus of the religious instruction that is prescribed and imparted in any institution to which it gives such aid. With these words, Sir, I move.
Mrs. Purnima Banerji : Sir, my amendment, is to clause 18 (2) it reads as follows :--
"That after the word 'State', the words 'and State-aided' be inserted."
The purpose of the amendment is that no minority, whether based on community or religion shall be discriminated against in regard to the admission into State-aided and State educational institutions. Many of the provinces, e.g., U.P., have passed resolutions laying down that no educational institution will forbid the entry of any members of any community merely on the ground that they happened to belong to a particular community--even if that institution is maintained by a donor who has specified that that institution should only cater for members of his particular community. If that institution seeks State aid, it must allow members of other communities to enter into it. In the olden days, in the Anglo-Indian schools (it was laid down that, though those school were specifically intended for Anglo-Indians, 10 per cent. of the seats should be given to Indians. In the latest report adopted by this House, it is laid down at 40 per cent. I suggest Sir, that if this clause is included without the amendment in the Fundamental Rights, it will be a step backward and many Provinces who have taken a step forward will have to retrace their steps. We have many institutions conducted by very philanthropic people, who have left large sums of money at their disposal. While we welcome such donations, when a principle has been laid down that, if any institution receives State aid, it cannot discriminate or refuse admission to members of other communities, then it should be follow. We know, Sir, that many a Province has got provincial feelings. If this provision is included as a fundamental right, I suggest it will be highly detrimental. The Honourable Mover has not told us what was the reason why he specifically excluded State-aided institutions from this clause. If he had explained it, probably the House would have been convinced. I hope that all the educationists and other members of this House will support my amendment.
Mr. K. M. Munshi : Mr. President, Sir, the scope of this clause 18 (2) is only restricted to this, that where the State has got an educational institution of its own, no minority shall be discriminated against. Now, this does recognise to some extent the principle that the State cannot own an institution from which a minority is excluded. As a matter of fact, this to some extent embodies the converse proposition over which discussion took place on clause 16, namely no minority shall be excluded from any school maintained by the State. That being so, it secures the Purpose which members discussed a few minutes ago. This is the farthest limit to which I think, a fundamental right can go.
Regarding Ibrahim Sahib's amendment, I consider that it practically destroys the whole meaning and content of this fundamental right. This minority right is intended to prevent majority control legislatures from favouring their own community to the exclusion of other communities. The question therefore is : Is it suggested that the State should be at liberty to endow school for minorities ? Then it will come to this that the minority will be a favoured section of the public. This destroys the very basis of fundamental right. I submit that it should be rejected.
The next amendment moved by my Honourable friend Mr. Mohanlal Saksena is really irrelevant to this clause. However good it might be, it does not relate to the fundamental right we are dealing with. It says: "Provided that no State aid shall be given.....unless the syllabus......is duly approved by the State." This clause refers only to State institutions and not to those aided by the State. The amendment seeks to control the nature of the religious education that is given in State-aided schools. Therefore, it is outside the scope of the general proposition before the House. In regard to its content also, it says "duly approved by the State". Now, the State may approve one kind of religious education for one community and may not approve for the other. It introduces an element of discrimination which would be much more dangerous than others. I therefore, submit that it should not be accepted by the House.
Then comes Mrs. Banerji's amendment. It is wider than the clause itself. As I pointed out, clauses 16 and 18 are really two different propositions. This is with regard to communities. Through the medium of a fundamental right, not by legislation, not by administrative action this amendment seeks to close down thousands of institutions in this country.
I can mention one thing in so far as my province is concerned there are several hundreds of Hindu Schools and several dozens of Muslim Schools. Many of them are run by charities which are exclusively Hindu or Muslim. Still the educational policy of the State during the Congress regime has been that, as far as possible no discrimination should be permitted against any pupil by administrative action in these schools. Whenever a case of discrimination is found, the Educational Inspector goes into it; particularly with regard to Harijans, it has been drastically done in the Province of Bombay. Now if you have a fundamental right like this, a school which has got a thousand students and receives Rs. 500 by way of grant from Government, becomes a State-aided School. A trust intended for one community maintains the School and out of Rs. 50,000 spent for the School Rs. 500 only comes from Government as grant. But immediately the Supreme Court must hold that this right comes into operation as regards this School. Now this, as I said, can best be done by legislation in the provinces, through the administrative action of the Government which takes into consideration susceptibilities and sometimes makes allowances for certain conditions. How can you have a Fundamental law about this? How can you divert crores of rupees of trust for some other purpose by a stroke of the pen ? The idea seems to be that by placing these two lines in the constitution everything in this country has to be changed without oven consulting the people or without even allowing the legislatures to consider it. I submit that looking into the present conditions it is much better that these things should be done by the normal process of educating the people rather than by putting in a Fundamental Right. This clause is intended to be restrictive that neither the Federation nor a unit shall maintain an institution from which Minorities are excluded. If we achieve this, this will be a very great advance that we would have made and the House should be content with this much advanced.
Mr. Hussain lmam : I will not take more than two minutes of the time of the House. I think there is nothing wrong with the amendment which has been in moved by Mrs. Banerji. She neither wants those endowed institutions to be closed, nor their funds to be diverted to purposes for which they were not intended. What she does ask is that the State being a secular State, must not be a party to exclusion. It is open to the institutions which want to restrict admission to particular communities or particular classes, to refuse State-aid and thereby, after they have refused the State-aid, they are free to restrict their admission of the students to any class they like. The State will have no say in the matter. Here the word 'recognise' has not been put in. In clause 16 we put the all embracing word 'recognise'. Therefore all this trouble arose that we had to refer that to a small Committee. In this clause the position is very clear. And Mr. Munshi as a clever lawyer, has tried to cloud this. It is open to the institution Which has spent Rs. 40,000 from its funds not to receive Rs. 500 as grant from the State but it will be open to the State to declare that as a matter of State policy exclusiveness must not be accepted and this would apply equally to the majority institutions as well as, minority institutions. No institution receiving State-aid should close its door to any other class of persons in India merely because its donor has originally so desired to restrict. They are open to refuse the State-aid and they can have any restriction they like.
Mr. M. S. Aney : Sir, I am only putting this for the sake of clarification. In the Advisory Committee Report we have recommended that the last portion of this Clause, viz., 'nor shall any religious instructions be compulsorily imposed upon them' be deleted and only the rest of the thing Should be put to the vote of the House but the condition under which we made that recommendation was that clause 16 should be accepted by this House. That was the condition. Now what have we done ? Clause 16 we have referred to a certain Committee for consideration. Under those circumstances the whole clause including the last portion that is to be deleted will have to be put to the vote of the House. Is the entire clause going to be put to the vote or only the first part ?
Mr. President: I think the proposal is to have the last portion excluded.
Pandit Hirday Nath Kunzru : Mr. President, I support the amendment moved by Mrs. Banerji. I followed with great interest Mr. Munshi's exposition. His view was that if we accepted the principle that educational institutions maintained by the State shall be bound to admit boys of all communities, it would be a great gain and that we should not mix up this matter with other matters howsoever important they may be. I appreciate his view point. Nevertheless I think that it is desirable in view of the importance that we have attached to various provisions accepted by us regarding the development of a feeling of unity in the country that we should today accept the principle that a boy shall be at liberty to join any school whether maintained by the State or by any private agency which receives aid from State funds. No school should be allowed to refuse to admit a boy on the score of his religion. This does not mean, Sir, as Mr. Munshi seems to think, that the Headmaster of any School would be under a compulsion to admit any specified number of boys belonging to any particular community. Take for instance an Islamia School. If 200 Hindu boys offer themselves for admission to that School, the Headmaster will be under no obligation to admit all of them. But the boys will not be debarred, from seeking admission to it simply because they happen to be Hindus. The Headmaster will lay down certain principles in order to determine which boys should be admitted. It is the common experience of every School that the number of boys seeking admission into it is much larger than can be accommodated.
Now, in order to weed out a certain number of students, the Headmaster lays down certain principles which are purely secular and educational. The Headmaster of a Hindu High School or the Headmaster of a Muslim High School will be completely free if Mrs. Banerji's amendment is accepted, to reject Muslim or Hindu boys as the case may be because they do not satisfy the standards laid down by the respective Headmasters. I think this is a sufficient guarantee that a Headmaster will be in a position to act in accordance with the principle that all schools whether maintained or aided by the State should be open to boys of all communities and that it will not impose on him a burden which he cannot bear.
Sir, we have decided not to allow separate representation in order to create a feeling of oneness throughout the country. We have even disallowed cumulative voting because, as Sardar Vallabhbhai Patel truly stated the other day, its acceptance would mean introduction by the backdoor of the dangerous principle of communal electorates which we threw out of the front door. So great being the importance that we attach to the development of a feeling of nationalism, is it not desirable, is it not necessary that our educational institutions which are maintained or aided by the State should not cater exclusively for boys belonging to any particular religion or community? If it is desirable in the case of adults that a feeling of unity should be created, is it not much more desirable where immature children and boys are concerned that no principle should be accepted which would allow the dissemination, directly or indirectly, of anti-national ideas or feelings?
Sir, since the future welfare of every State depends on education, it is I think very important that we should today firmly lay down the principle that a school, even though it may be a private school, should be open to the children of all communities if it receives aid from Government. This principle will be in accordance with the decisions that we have arrived at on other matters so far. Its non-acceptance will be in conflict with the general view regarding the necessity of unity which we have repeatedly and emphatically expressed in this House.
The Honourable Sardar Vallabhbhai J. Patel : I do not propose to take any time, to the impatience of the House, in replying. I only wish to say that this is a simple non-discriminatory clause against the minorities in the matter of admission to schools which are maintained by the State. It is only a question whether that principle should be extended to such an extent as to include all schools which receive small or large aids. That question the committee considered at length and came to the conclusion that if we accepted this principle at present it would be enough and that the rest could be left to the legislature to be adopted wherever conditions were suitable. But in the Fundamental Rights to do away with this will be a big step forward. That was the view. Therefore I cannot accept this amendment at present.
Shri Mohanlal Saksena: Before you put the amendments to vote, I wish to say a few words about my amendment. Mr. Munshi has said that my amendment is not relevant. I would suggest that it should be referred to the committee appointed to consider clause 16.
The Honourable Sardar Vallabhbhai J. Patel: That is also not relevant.
Mr. President : I will first put the amendment of Mr. Ahmed Ibrahim Sahib to vote.
The question is
"That the, following be added after the word 'institution' in clause 18 (2):--
'Provided that this clause does not apply to state Educational institutions maintained mainly for the benefit of any particular community or section of the people.' "
The motion was negatived.
Mr. President: I will now put the amendment of Shrimati Purnima Banerji to vote.
The question is:
"That in Clause 18 (2) after the words, 'State' the words 'and State-aided' be inserted."
The motion was negatived.
Mr. President: Next I will put the amendment moved by Shri Mohanlal Saksena to vote.
The question is:
"That the following proviso be added to clause 18 (2):--
"Provided that no State aid shall be given to any institution imparting religious education unless the syllabus of such education is duly approved by the State."
The motion was negatived.
Mr. President: I will now put the original clause to vote.
The question is :
"18 (2) No minority whether based on religion, community or language shall be discriminated against in regard to the admission into state educational institutions."
The motion was adopted.
Mr. President: This part of the Report is now finished. The Schedule will be taken up later.
I have to make a certain announcement before we part. Members will recollect that it was suggested that clause 16 be referred to a Sub-Committee and that Sub-Committee will report, not to this House, but to the Drafting Committee which will consider that Report; I am suggesting the names of gentlemen who seem to be interested in that particular clause.
(1) Dr. Mohan Sinha Mehta.
(2) Pandit Hirday Nath Kunzru.
(3) Mr. Hussain Imam.
(4) Dr. Radhakrishnan.
(5) Shrimati Renuka Ray.
(6) Mr. K. M. Munshi.
The Honourable Sardar Vallabhbhai J. Patel: Shall we take the second part ?
Mr. President: Not now. The House will recollect that yesterday we had elections to fill up vacancies in the House Committee. Only two nominations were received and there were only two vacancies and therefore these two nominations are now accepted. Those gentlemen are declared elected. They are:
Then, the House has now to adjourn. Under one of the rules, the, President has power to adjourn the House for only three days. This adjournment is going to be of much longer duration and this House has to authorise the President to call it whenever he considers suitable, because we expect that the Drafting Committee will prepare the report and I propose to circulate that to the Members well in advance before calling a meeting of the Assembly, so that they may study and consider the Report and then come to the meeting of the Assembly. It it not possible today to anticipate by what time the Drafting Committee's report will be available and therefore it is not possible today to indicate even the approximate date for the meeting. I would therefore ask the House to give me leave to fix a suitable date when the Report is ready.
The Assembly agreed.
Mr. R. K. Sidhwa: Can you give us any faint idea as to when it is likely to be ?
Mr. President: I won't like to commit myself to anything at this stage.
Mr. Tajamul Husain: May I know whether there will be a meeting of the Legislature in the meantime ?
Mr. President: It is not for me, but for the Government.
Shri Mohanlal Saksena: Sir, I beg to move that the Assembly do stand adjourned till a date to be fixed by the President.
Mr. Tajamul Husain : I second it.
Mr. President: Mr. Mohanlal Saksena says that the House be adjourned to a date to be fixed by the President. I take it that is the wish of the House.
Honourable Members: Yes, yes.
Mr. President: The House, in accordance with this resolution, stands adjourned to a date to be fixed by me.
The Assembly then adjourned to a date to be fixed by the President:
*[Translation of Hindustani speech.]*
CONSTITUENT ASSEMBLY OF INDIA
New Delhi, the 25th August 1947.
In continuation of my letter No. CA/24/Com/47, dated the 23rd April 1947, I have the honour, on behalf of the committee, to submit this supplementary report on Fundamental Rights.
2. We have come to the conclusion that, in addition to justiciable fundamental rights, the constitution should include certain directives of State policy which, though not cognisable in any court of law, should be regarded as fundamental in the governance of the country. The provisions that we recommend are contained in Appendix A.
3. In para 8 of our previous report, we had referred to the recommendation of the Fundamental Rights Sub-Committee that the right of the citizen to have redress against the State in a Court of law should not be fettered by undue restrictions. After careful consideration, we have come to the conclusion that it is not necessary to provide in the constitution for any further right in this connection than those already contained in clause 22 as accepted by the Assembly in the April-May session.
4. The Constituent Assembly had referred back to us clauses 16, 17 and 18(2) of our previous report. We have re-examined the clauses and our recommendations are as follows:--
We recommend that this clause be accepted by the Assembly in its present form.
It seems to us on further consideration that this clause enunciates a rather obvious doctrine which it is unnecessary to include in the constitution and we recommend that it be dropped altogether.
We recommend that the latter portion of the clause, namely "nor shall any religious instruction be compulsorily imposed on them" be deleted in view of clause 16 above which we have recommended for retention. We recommend that the rest of the clause, be adopted by the Assembly.
We have examined the question as to whether the scope of the clause should be extended so as to include State-aided educational institutions also and have come to the conclusion that in present circumstances we would not be justified in making any such recommendation.
5. The Fundamental Rights Sub-Committee in their report to us had recommended the adoption of Hindustani, written either in Devanagari or the Persian script, as the national language of the Union of India, but we had thought it to postpone consideration of the matter in April 1947. In view of the fact that the Constituent Assembly is already seized of the matter by certain recommendations of the Union Constitution Committee's report, we think it unnecessary to incorporate any provision on the subject in the list of fundamental rights.
6. We have also examined numerous amendments in the nature of new provisions, notice of which had been given by several members during the April-May session of the Assembly, and have not been able to accept any of them. Some of them relate to matters Which have already been provided for either in the clauses already accepted by the Assembly or in new clauses which we have recommended in this report; and the other seem to us unnecessary or inappropriate.
FUNDAMENTAL PRINCIPLES OF GOVERNANCE
1. The principles of policy set forth in this part are intended for the guidance of the State. While these principles are not cognizable by any court, they are nevertheless fundamental in the governance of the country and their application in the making of laws shall be the duty of the State.
2. The State shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
3. The State shall, in particular, direct its policy towards securing--
4. The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in case of unemployment, old age, sickness, disablement and other cases of undeserved want.
5. The State shall make provision for securing just and humane conditions of work and for maternity relief for workers.
6. The State shall endeavour to secure, by suitable legislation, economic Organisation and in other ways, to all workers, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.
7. The State shall endeavour to secure for the citizens a uniform civil code.
8. Every citizen is entitled to free primary education, and it shall be the duty of the State to Provide within a period of 10 years from the commencement of this Constitution for free and compulsory primary education for all children until they complete the age of 14 years.
9. The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the aboriginal tribes, and shall protect them from social injustice and all forms of exploitation.
10. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of Public health as among its primary duties.
11. It shall be the obligation of the State to protect every monument or Place or object of artistic or historic interest, declared by the law of the Union to be of national importance, from spoliation, destruction, removal, disposal or export. as the case may be, and to preserve and maintain according to the law of the Union all such monuments or places or objects.
12. The State shall promote international peace and security by the prescription of open, just and honourable relations between nations by the firm establishment of the understandings of international law as the actual rule of conduct among governments and by the maintenance of justice and the scrupulous respect for 'treaty obligations in the dealings of organised people with one another.