Proceedings of the Meghalaya Legislative Assembly held at 9.30 on Wednesday the 15th December 1976 in the Assembly Chamber Shillong, with the Speaker in the Chair.
Minister - 6, Ministers of State - 4, Members - 44.
Ratification of the Amendment to the Constitution.
Mr. Speaker :- Let us begin the business of the day. Chief Minister to move a resolution.
Shri W.A. Sangma (Chief Minister) :- Mr. Speaker, Sir, I beg to move that this House ratifies the amendments to the Constitution of India falling within the purview of the proviso to clause (2) of Article 368 thereof, proposed to be made by the Constitution (Forty-fourth Amendment) Bill, 1976 as passed by the two Houses of Parliament and the short title of which has been changed into "The Constitution (Forty Second Amendment) Act, 1976"
Mr. Speaker :- Motion moved. Do you like to give a clarification on this?
Shri W.A. Sangma (Chief Minister) :- Mr. Speaker, Sir, the Constitution (44th Amendment) Bill has been sent to the State Legislatures for ratification as required under the proviso to clause 2 of Article 368 of the Constitution.
The objectives of the Bill, among others, are to spell out expressly the high deals of socialism, secularism and integrity of the nation, to make the high deals of socialism, secularism and integrity of the nation, to make the directive principles more comprehensive and give them precedence over those fundamental rights which have been allowed to be relied upon to frustrate socio-economic reforms for implementing the directive principles. It is also proposed to specify the fundamental duties of the citizens and make special provisions for dealing with anti-national activities.
The Bill also seeks to rationalize the jurisdiction of the courts specially regarding the constitutionally of legislation enacted by the Parliament and State Legislatures, which embody the will of the people. In the Bill provisions have been made for the creation for administrative tribunals. With the creation of these tribunals, there will be speedy disposal of service matters, revenue matters and certain other matters of special importance in the context of socio-economic development and progress and it will also reduce the mounting areas in High Courts. The above are some of the main features of the present Bill. the measures proposed to the present Bill, aim at removing the impediments that have come on our ways in reaching our objectives.
Shri S.D. Khongwir :- Mr. Speaker, Sir, it has taken me quite a lot of time to read the proposed amendment to the Constitution because, if I remember correctly, this is a major amendment. The 4th amendment Bill brings forward major changes in our Constitution. In fact, Mr. Speaker, Sir, by this proposal, we are entering a new land-mark in the history of the constitutional development of India. Certainly, Mr. Speaker, Sir, we cannot expect a Constitution of any country to remain stagnant or to remain unchanged. Constitution must grow and they must be susceptible to the progressive change and growth of the people. We cannot consider any Constitution as final. No Constitution in the world can be regarded as final Mr. Speaker, Sir. Lord Brougham has rightly observed that Constitution must grow it they are of any value. They have roots, they ripen, they endure. Mr. Speaker, Sir, I would liken the growth of the Constitution of any particular country to the growth of a tree. Mr. Speaker, Sir, we know a tree has got its own branches and it has also got its own roots. Now. Mr. Speaker, Sir, the three must conform to the growth to the growth or to the strength of the roots. It cannot neglect or disregard the strength, the condition the growth of the roots of a tree. Mr. Speaker, Sir, a tree is in process of growth, cannot expect to be over ambitious lest the roots cannot support the tree and the result would be that the tree may fall down. So also, Mr. Speaker Sir, when we come and discuss about a particular Constitution, about the progressive need of the people and how to fit in the constitutional changes in a Constitution, we must never forget the people. The people are the most important factor vis-a-vis their own Constitution. Mr. Speaker, Sir, we must never allow the people to think that the rulers are far above the people. We must never allow this to happen. The rulers and the people must march together. There should not be a gap a very wide gap between the rulers and the people.
Mr. Speaker :- But the Rulers whom you say are also the elected representatives of the people.
Shri S.D. Khongwir :- That is what I mean Mr. Speaker, Sir, but in constitutional parlance they are generally called the rulers and the people are the ruled Mr. Speaker, Sir, I would like to refer to a speech by the Prime Minister in the Lok Sabha on 27th October, 1976. The Prime Minister said there is the need to restore the length of our democracy. In this Mr. Speaker, Sir, she spoke in connection with the debate on the Constitution, on the 44th Amendment Bill in the Lok Sabha. Well Mr. Speaker, Sir, as a nation I fully agree that we really need plenty of health-giving shots so that our democracy can be strengthened. Mr. Speaker, Sir, we can never forget the part of India as a nation, as a country, the part that she plays as the champion of democracy in the world. India must stage a leadership in this aspect and become the leader of the democratic arena especially in Asia Mr. Speaker, Sir, and we must be very proud of this position that India is holding today in the world. Now Mr. Speaker, Sir, we may ask ourselves how then democracy can be strengthened? Now in democracy Mr. Speaker, Sir, I think we may fully agree that the people are the most important factors since democracy means power to the people, the people should have the will to action, the people should actively participate and they should be articulate. In this manner Mr. Speaker, Sir, it can be expected to be full of life. Democracy also demands the co-operation of all including the Opposition in the House. Both parties should accept the principle of live and let live in which the party in power does not eliminate those opposed to it and the latter while opposing obey the declared will of the majority. (Voice-hear, hear), Mr. Speaker, Sir, we cannot expect that a dominant party will devour the smaller party in a healthy democracy. We cannot expect that the dominant party will eat up a small party (laughter) Mr. Speaker, Sir, speaking of the smaller party, I cannot help mentioning about our position here as were are today (laughter). Mr. Speaker, Sir, now as H.S.P.D.P. we are a recognised group in this august House, the members having been elected in 1972 by the people on party ticket. But we find that in 1976, towards the fag end of 1976...................
Shri W.A. Sangma (Chief Minister) :- I do not see whether what the hon. member says is relevant to the subject matter before the House!
Mr. Speaker : I was also thinking on that line.
Shri S.D. Khongwir :- But Sir, let me just complete the sentence that two of our Members who used to be with us on this side of the House now have defected. I repeat the word defected to the others side, to the dominant party.
Mr. Speaker :- But I think there are political issues and I do not see how this is relevant to the resolution.
Shri S.D. Khongwir :- Actually, I am discussing about the healthy functioning of a democratic set up and in that context we have brought the relationship ...................
Mr. Speaker :- I understand your point Mr. Khongwir. But some how or other country has not enacted and law on defection. That is a political issue which should perhaps be raised outside this House.
Shri S.D. Khongwir :- This is my personal opinion. In India, if democracy is to be healthy, it should at least not encourage defection. This is my personal opinion, Sir.
Shri Hoover Hynniewta :- But the question is whether it is relevant to the ratification of this Amendment. If the Member's Opinion is that ratification of this Amendment would result in the further eating up of a smaller party, then of course it would be relevant.
Shri S.D. Khongwir :- That is just an introductory remark. I do not think the hon. Member has raised a point of order.
Mr. Speaker :- It is only a remark. I understand that he hon. Member is pleading for healthy functioning of democracy.
Shri S.D. Khongwir :- Yes for healthy functioning of democracy because in a democracy we cannot avoid a party system, we have adopted the parliamentary form of Government. So Mr. Speaker, Sir, we cannot avoid discussing parties when we sit here as members.
Shri W.A. Sangma (Chief Minister) :- With due resects to the hon. Member, I think that functioning of democracy can be discussed through some other forum. But this is not relevant to the subject matter before the House. The only reaction of the hon. Member would be either he agrees to the ratification of this Amendment or not.
Shri S.D. Khongwir :- I am coming to that.
Mr. Speaker :- Actually I have given my remark that the political issue should be discussed outside the House.
Shri Hoover Hynniewta :- Is it a remark or a ruling, Sir? A remark from the Chair, I submit, Sir, is a ruling.
Mr. Speaker :- Yes, it tantamounts to that.
Shri S.D. Khongwir :- Sir, I would desist from further discussing the issue. These are just introductory remarks before I come to the actual point on the Constitution Amendment. Because we find here in the State of Objects and Reasons straightaway the Government do not come to the Amendment itself. So also I am just placing my own objects and reasons (laughter). Then Mr. Speaker, Sir, straight away I come to the proposals in the Amendments. Mr. Speaker, Sir, in the very first page of the proposals, the Amendment speaks about the Preamble to the Constitution. Many leaders in the country including the Members of Parliament and also in other State Legislatures, have advocated the idea that since this is a historical fact, the proposal for the changes in the Preamble should not have come in. Mr. Speaker, Sir, I would agree with the present proposal, but at the same time, I would like to suggest that while reading the Preamble to the Constitution the first line says "we the people of India having solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens justice, etc etc., in our Constituent Assembly, this 26th day of November, 1949 do hereby adopt, enact and give to ourselves this Constitution."
So my suggestion here Mr. Speaker, Sir, is why can't we delete this penultimate line in the Preamble because generation after generation the people, even after 194, keep on as a nation, as a people, to adopt, enact and to give to ourselves this Constitution; meaning, Mr. Speaker, Sir, that the wordings "In our Constituent Assembly this twenty-sixth day of November, 1949, may be deleted and the Preamble may read : "We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all this citizens Justice, etc., do hereby adopt enact and give to ourselves this Constitution." So, the penultimate line : "In our Constituent Assembly this twenty-sixth day of November, 1949 may be deleted.
Another point, Mr. Speaker, Sir, that I would like to raise is with regard to the proposed amendment to Article 74. The original Article 74 reads : "There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions." That is the origin 1. Now the proposal for an amendment reads ; "There shall be Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice."
Now, Mr. Speaker, Sir, in the notes on the clauses, it has been explained : "The President acts on the advice of the Council of Ministers." It is being made explicit by this amendment that he shall be bound by such advice. There is a corresponding Article in so far as the State is concerned, i.e., Article 163. This is with regard to the Council of Ministers in so far as the State is concerned. It reads :"There shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions." Now, Mr. Speaker, Sir, I am inclined to agree with the proposed amendment to Article 74. Now, Mr. Speaker, Sir, ours is a written constitution. It has been rightly stated that in a written constitution the wordings that we employ should be very clear, concise and that we have to make it very explicit so that no doubts will arise from the wordings of the Article. Now, Mr. Speaker, Sir, before the proposed amendment the word "shall" which means mandatory was not there in the Constitution. But since India has adopted Parliamentary system of Government, which means that at the head there must be a person what they call a titular head, it is necessary in the Parliamentary from of Government to have such a head. In England they have the Queen and here in India we have our President. Now, according to the Parliamentary system of Government, even if we do not put this word "Shall" I think there is no harm because we have adopted this system of Government. But, as I have said earlier, Mr. Speaker, Sir, it is better since we in India have a written Constitution whereas in Great Britain they do not have a written Constitution. That is why, Mr. Speaker, Sir, I am inclined to agree with the present provisions in the amendments in so far as Article 74 is concerned. But, Mr. Speaker, Sir, I cannot understand about Article 163. There is no such sentence as "The Governor shall act on the advice of the Council of Ministers." We understand by the word "advice" that it is not mandatory on the person to accept the advice. It is up to him whether he acts on the advise or acts contrary to the advice. Now, Mr. Speaker, Sir, there may be a dead-lock between the Council of Ministers - their advice, and the power of the Governor. The Council of Ministers, under the leadership of the Chief Minister, may give one advice but the Governor is not bound, according to the wordings of this provision, to accept. Then, Mr. Speaker, Sir, what happens? I may visualise though I am not a constitutional 'pundit' that occasions may arise, Mr. Speaker, Sir, when there is such a problem, a difficulty or as constitutional dead-lock, that Article 356 may be attracted immediately. If the President, on receipt of a report from the Governor of a State is satisfied that the situation in which the Government of a State cannot be carried out in accordance with the provisions of this Constitutional, the President may be a proclamation assume to himself all the functions of the Government of a State. This is the provision in case of failure of the constitutional machinery of a state. So, Mr. Speaker, Sir, on this point I would like to have a clarification either from the Chief Minister or from the Law Minister; and, in this context, I would also like to refer to one Article which has not been adopted, that in Article 61.
Article 61 speaks about the procedure for the impeachment of the President. Now, Mr. Speaker, Sir, in view of the amended Article 743 we find here that the scope for violating the Constitution by the President is no longer there because the position of the President with due respect to him, may be equated..........
Mr. Speaker :- You better say with due respect to the office of the President.
Shri S.D. Khongwir :- With due respect to the office of the President, he has become more or less like the Queen of England. According to Article 74 as proposed to be amended it has become mandatory on the President to act on the advice of the Council of Ministers. Now Mr. Speaker, Sir, since it has become mandatory under Article. 74 I do not find any scope for the President to violate the Constitution and that is why Mr. Speaker, Sir, in deference to the office of the President I would like to suggest that Article 61 may be deleted from the Constitution of India. Mr. Speaker, Sir, now in view of Article 74 the President can do no wrong.
Point of Order
Shri Hoover Hynniewta :- Mr. Speaker, Sir, I would like to raise a point of order. According to the resolution moved by the Chief Minister, Sir, it says that this House ratifies the amendment to the Constitution falling within the purview of clause 2 of Article 368. The point raised by the hon. Member relating to Article 74 is not the subject matter falling within this particular clause 2 of Article 368. This is beyond the purview of the State Legislative Assembly to ratify or not to ratify or to agree or not to agree. It is simply beyond our competence and that is also not the subject matter of this resolution. The resolution has referred only to certain matters falling within the competence of this House to ratify or not to ratify. But whether the President should act completely on the advise of the Council of Ministers that is not the subject matter of this Legislative Assembly. It is only the two House of Parliament which are competent to make any decision in this regard. So Sir, since it is outside the jurisdiction of this House I beg to move a point of order that the remark made by the hon. Member in this particular matter has got no relevance and it tantamounts to our trespassing into the province of both the Houses of Parliament.
Mr. Speaker :- The point of order has been raised and in so far as the resolution is concerned, it is for the ratification of the amendment to the Constitution. The hon. Member has not said that he opposed or supported the amendment and he wants only to make some observations which may help the Parliament in future to think if the State Legislatures are to ratify any amendment to the Constitution. The State Legislature have that right, even they can give some observation for some future guidance and I think it is the right of each and every hon. Member to make certain observations for future guidance. But it is no correct to say that we are trespassing into the jurisdiction of Parliament. Parliament alone can make any amendment, that is not the case. In this particular issue the State Legislatures may also ratify and to have that right to ratify implies also the right to make certain observation. Of course at the end it is said either to ratify or not to ratify the amendment.
Shri Hoaver Hynniewta :- You have given your ruling Mr. Speaker, Sir?
Mr. Speaker :- Yes that it a ruling. But in the meantime, may I point out that the hon. Member has suggested to delete Article 61 which I think is too far fetched though he has correctly pointed out that Article 74 has been made more explicit yet there are certain provisions which empower the President to act. Supposing no party can form the Government elsewhere, the President can exercise can power. So some of the remarks made by the hon. Member are really full to though for the future.
Shri S.D. Khongwir :- So Mr. Speaker, Sir, I have got one more point and I will be very brief on that point. I consider it to be a pertinent point. This is with regard to the protection of the tribal people. Of course it is not found here in the proposals and that is why I beg to speak on this particular matter. Mr. Speaker, Sir, I think the Hon'ble Chief Minister will remember at that time when he was Chief Minister under the APHLC ministry when we have had several meetings with him together with other leaders with a view to take this opportunity to meet the Central leaders and to discuss with them about the need for the protection of our tribal people in Meghalaya. Well Mr. Speaker, Sir, we had been to Delhi at the initiative of Capt. Sangma. At that time we had requested also the members from the Congress Party when they were still 12 in number of join hands together with us and to fight unitedly and to go together to Delhi to meet the Prime Minister, the Congress President and other Central leaders for the preservation and protection of our tribal people. Well Mr. Speaker, Sir, when we went to Delhi, it was a very sad affair to relate here that our friends from the Congress Group refused to work together with us and refused to think in the line that we have discussed with them here in Shillong. That is why Mr. Speaker, Sir, at the final stage is was only the Members from the APHLC and the HSPDP who have worked together when we submitted a joint memorandum and a proposal for amendment to the Prime Minister.
Shri H.E. Pohshna :- Mr. Speaker, Sir, on a point of order, since the hon. Member has mentioned that he has requested us to go along with him to Delhi, I have never met him and he never met us on this question and I think this matter has got no relevance with the ratification of the amendment of the Constitution.
Shri S.D. Khongwir :- That is not a point of order.
Mr. Speaker :- In fact, it is only a piece of information.
Shri H.E. Pohshna :- It is a wrong information. I have to refuse because I have never met him.
Shri S.D. Khongwir :- Mr. Speaker, Sir, we do not have to go to each and every Member of this House. In business dealing in go far as the parties are concerned we contact the leaders of the groups or the parties.
Shri Hoover Hynniewta :- I think the people are more important.
Shri S.D. Khongwir :- It is up to him to inform his other colleagues.
Shri H.E. Pohshna :- From the start of the speech he referred to the two Members who defected, and I have expressed that is irrelevant.
Mr. Speaker :- I would request the hon. Member to come to the point. He wanted to get some clarification.
Shri Akramozzaman :- I wish to have the information whether there was any communication to the counter-parts of the other parties, the Congress Organisation and the Pradesh Congress President. If there was any communication in writing we want the information also.
Mr. Speaker :- I have no information about that. But to seek clarification from the Chief Minister, I think that is irrelevant again. The hon. Member just want to tell some stories.
Shri S.D. Khongwir :- Mr. Speaker, Sir, then in that case let me come to the point. I have read from the paper, the Assam Tribune, dated November 28th, 1976. This might be relevant. Mr. Speaker, Sir, in the speech of the Chief Minister of Meghalaya, Capt. W.A. Sangma is one of the meetings on National Integration at Delhi, it was reported that he has said "Capt. Williamson Sangma, Chief Minister of Meghalaya, said there was no danger of communal violence at all in this State. If the guarantees enshrined in the Constitution for the preservation of the identity of the tribal people were fulfilled in reality, there would be perfect peace in his State". So Mr. Speaker, Sir, while speaking on this aspect of the protection of the tribals here, since the Chief Minister has already admitted that he said that if the guarantees enshrined............
Mr. Speaker :- He still maintains that.
Shri S.D. Khongwir :- "If the guarantees enshrined in the Constitution", this is the only portion of his speech that I wanted to have a clarification from him. What are these guarantees that are enshrined in the Constitution for the protection and preservation of the tribal people. With these words, Mr. Speaker, Sir, after I get a clarification, if possible, from the Government, I would also fall in lien with the resolution to ratify the Amendment Bill
Prof. M.N. Majaw :- Mr. Speaker, Sir, while rising to support the resolution moved by the Leader of the House, I would not enter into technical discussion on particular articles of the Constitution, not being a qualified person myself - I would leave that to the legal pundits. But ultimately, Mr. Speaker, Sir, the final criterion of the Constitution is in its working, and for us who have the interest of the people at heart, we are more concerned as to whether this Constitution, as amendment, will be able to further the development of our areas, to uplift the needy and the poor and the neglected, preserve our tribal identity, and protect us from exploitation. It is a question as to whether the hill people in the country will really benefit by this Constitution.
Mr. Speaker :- I think the hon. Member also has implicitly said that he has the interest of the people at heart.
Prof. M.N. Majaw :- All of us, including yourself, Mr. Speaker, Sir. After having gone through these amendments carefully, I feel that the basic needs will be fulfilled. It all depends on the implementation of this Constitution. But Mr. Speaker, Sir, I would only like to make one observation upon Article 330. This Article refers to the reservation of seats for the Scheduled Castes and Scheduled Tribes in all the States of India, except in the tribal areas of Assam, Nagaland, Meghalaya, Arunachal Pradesh and Mizoram. Government have felt earlier that this population ratio or structure of 80 per cent to 20 per cent would not endanger proper representation by the Scheduled Tribes in the State of Meghalaya, but then, of course, it all depends as to whether this population ratio of 80 percent to 20 percent can be maintained in the future. I mean to say, whether the population in the future will still be overwhelmingly tribal. And so I may suggest or observed that if such an occasion arises or if it is felt that here is danger of disturbing or upsetting that population ratio, it may be advisable at the instance of the State Government to take up with the Centre as to whether constitutional provisions may not be further introduced to ensure that this population ratio or structure is not disturbed. With these few words, Mr. Speaker, Sir, I support the resolution moved by the Leader of the House.
Shri Sibendra Narayan Koch :- Mr. Speaker, Sir, I rise to support the resolution moved by the Leader of the House. While supporting the resolution Mr. Speaker, Sir, I would like to make a few observation. In fact, all the hon. Members of this House and also the people of this country know it well the difficulties which the administration is experiencing for a number of years. Now, broadly this amendment can be divided into three categories. Of these, one of the confrontation in between the legislature and the judiciary, the other is the confrontation between the individuals and the society in getting preference of their rights and the third is how the Government can come to the aid or to the rescue of the down trodden and weaker section of the people. Mr. Speaker, Sir, if we look back to the part since our Constitution is adopted, we find that there were confrontationors war between the legislature i.e. Parliament on the are hand and the judiciary on the other hand. The Supreme Court is one of the earliest ruling on Parliament power to amend the constitution it held in view of the proviso to Clause 2 of Article 13, Parliament cannot amend the Constitution which can take away or infringe the rights of the citizens. Then again Sir, in another ruling, the Supreme Court said it can. but when the same question came again for consideration the Hon'ble Supreme Court in Keshabananda Bharati case held that Parliament can amend the Constitution within the four walls of basic structure of the Constitution. This for the first time, came to be known to the people in Kashavananda Bharati case. What is this Basic structure? Another case is in chapter 3 dealing with fundamental rights of the people. If we look into it we find that the Constitution has given maximum importance to the individual rights which concern also with the million masses. Then again, in chapter 4 which is dealing with the Directive principles of State policies which are not enforceable in the court of law, as a result of which, whenever Government wanted to do something for the benefit of the masses the weaker section of people and the society, vested interest people stood on the way. All endeavours of the Government to do justice and to give justice to the people which was there in the preamble of the Constitution and which was promised by the members of the Constituent Assembly to give to the people were in vain. So, Mr. Speaker, Sir, through this amendment, I would rather say the Parliament headed by our Prime Minister, Mrs. Indira Gandhi even if it cannot be termed as gigantic step to undo injustice in our country.
Mr. Speaker :- When the Constitutional amendment has been adopted it becomes part of the Constitution. Whoever becomes the Prime Minister, he or she has to abide by the Constitution.
Shri S.N. Koch :- Anyway, Mr. Speaker, Sir, in the Centre, it is the Congress which is ruling all the time, the stands for the people all through. When the Constitution was adopted for the first time in 1949 as I said earlier stress was given to the individual rights in preference of the masses. Now, by this amendment the Government want to set trend just the reverse-people and masses interest first then the individual.
Mr. Speaker :- In other words what you mean to say is that the individual rights or individual duties are less important than justice rendered to the society?
Shri S.N. Koch :- Individual right is there but they should not be given preference when the choice is between society and the individual. So Mr. Speaker, Sir, with these observation, I full support the resolution moved by the Leader of the House and I do hope that the hon. Members in the Opposition benches will also support it and thereby strengthen the hands of the Government. Let all of us jointly contribute our mite in building up the nation.
Shri Humphrey Hadem :- Mr. Speaker, Sir, I do not want to take much time of the House. I just want to seek some clarification. While I support the resolution moved by the Leader of the House, I would like to seek clarification on one or two points on which, I think, due to overlooking or otherwise, there is some irregularity in its present form. I would like to refer to page 5 - Clause 18 as passed by the two Houses of Parliament and then again to Clause 18 which deals with Article 100 and also Clause 31, Page 9 dealing with Article 189 of the Constitution. Here Sir, in Article 100 of the Constitution, it is stated...... "Any House covers all the Houses notwithstanding the vacancies and quorum"..... The amendment as proposed here is under Article 100 of the Constitution which states further that Clause 3 and Clause 4 shall be omitted. The main heading includes deleted portion that means unquorum. These words were not deleted, and also, Sir, in Article 1989, the same thing happens, Mr. Speaker, Sir, as a consequential arrangement that can be done in future, this may be clarified. But now since, it has come to my humble observation, I must speak something otherwise the whole amendment as passed by both Houses of Parliament so far as it relates to the Legislative portion of the ratification is concerned, I do not have anything to say against but one remark which the hon. Member from the other side of the House has said at the present stage that in view of the amendment of Article 74 the question of having Article 61 no longer arises, and in view of Article 74 as proposed to be amended, it is more reasonable that this provision of Article 61 shall remain; otherwise by not having that head of the office it may in contravention of Article 74 only. With these few words Sir, I resume my seat and support the resolution as moved by the Leader of the House.
Mr. Speaker :- Now, may I ask the Hon'ble Law Minister to reply?
Shri Maham Singh (Minister Law and Parliamentary Affairs) :- Mr. Speaker, Sir, from what I have understood from the speech of the Members from Mawlai Constituency, he has not opposed the ratification of this amendment to the Constitution. He has sought only certain clarification. It might have been that he did doubtful with regard to the meaning of certain amendments of the Constitution. Mr. Speaker, Sir, I would submit that these amendments of the Constitution are a great steps forward and have been passed by the Parliament in order to meet the aspirations of the people of our country. Now, many charges have been taken place all these years after India achieved Independence. Now, as has been rightly stated by him, it may be noted that the Constitution should not remain static. Mr. Speaker, Sir, we have to meet the needs of the changing society. We have to look to the progress of our country. We have to look to the welfare of our country and that was actually the real aim of the leaders and all those who fought for the liberty of our country. It is primarily with the intention of removing poverty from the vast numbers of the poverty stricken people of this great country of ours. At the time of framing the Constitution our leaders also had the idea of having a socialistic form of Government. It was also intended to remove poverty and social injustice in our country and to have a society in which the economic prosperity of all sections of the people will be promoted. Now, these amendments of the Constitution have not actually been opposed by my friend. He has made only certain observations with regard to these amendments. The first observation that he made was that the words, that is, the date of the Constituent Assembly, that is, the 26th day of November, 1949 should be removed. In this connection, Mr. Speaker, Sir, I would like to say that we have not repealed the Constitution. My friend also is a lawyer, he is an advocate. He knows actually that when an Act is repealed the old Act goes and the new act comes into being. Now, we are only passing certain amendments to the Articles of the Constitution, the bulk of the Constitution still remains, Mr. Speaker Sir, actually it is a Constitution that has been framed on the 26th day of November, 1949. So Mr. Speaker, Sir, I would submit that this date should remain because this is only an amendment of the Constitution, which was framed by the Leaders of the country on that particular date in which it came into being. Now, Mr. Speaker, Sir, of course, it has been added in the Preamble that it is to constitute India into sovereign democratic republic and a socialistic..................
Mr. Speaker :- No, he is agreeable to that.
Shri Maham Singh (Minister Law and Parliamentary Affairs) :- What I mean to say, Mr. Speaker, Sir, is that I am very glad because actually he is also agreeable with us that we would bring about a country of social justice. So with regard to the date. I think, because ..................
Shri P.R. Kyndiah :- I take it, Mr. Speaker, Sir, by the word "us" means the nation or the country.
Shri Maham Singh (Minister Law and Parliamentary Affairs) :- Because this Constitution is framed by the representatives of the people.
Mr. Speaker :- That is, the Constitution of the people.
Shri Maham Singh (Minister Law and Parliamentary Affairs) :- And also ratify by the members, who represent the people of this august House, of other States and of Parliament. That is what I mean. Now, Mr. Speaker, Sir, another reference has been made with regard to Article 74 i.e., The amendment that the President should act on the advice of the Council of Ministers. In this connection, I would say that this amendment has been made, as has been rightly pointed out by my friend to make it explicit and also to make it free from any doubt what over that the President is to act on the advice of the Ministers. It is also in the Statement of objects and reasons that has been given in the Bill as introduced in the Parliament. Now, Mr. Speaker, Sir, the Parliament is supreme, it is the highest law making body in the country. According to him, that it, in Article 168 with regard to the Governor, it remained the same without any changes and he wants clarification but the Governor does not actually act in his discretion in all matters. The previous wordings, i.e., "There shall be a Council of Minister with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions". Now, my friend wanted a clarification.
Shri P.R. Kyndiah :- Mr. Speaker, Sir, just on a point of information. The Hon'ble Law Minister has in the course of the last five minutes or so mentioned the word "actually" about 15 times. Whether it has any relevance? (Laughter)
Mr. Speaker :- There is a habit with every person.
Shri Maham Singh (Minister Law and Parliamentary Affairs) :- Mr. Speaker, Sir, Article 163 reads "that there shall be a Council of Minister with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions except in so far as he is by or under this Constitution enquired to exercise his function or any of them in his discretion. Now my friend wanted to know why actually (Loud laughter). In this connection the Parliament is supreme. The President is expected to act according to the advise of the Council of Ministers whereas in the case of the Governor in certain functions he has to perform according to his discretion. If we read further that Article it is stated that "the Governor is by or under Constitution required to act in his discretion .........." But there is no scope with regard to the President of India to act in his discretion. There may be cases in which the Governor is to act according to his discretion.
Shri S.D. Khongwir :- Mr. Speaker, Sir, my point was different. I did not question those matters in which the Governor is required by exercise and function in his discretion. I have said nothing about it. I have said only in respect of matters where he requires the advice of the Council of Ministers.
Shri Maham Singh (Minister Law and Parliamentary Affairs) :- Article 74 says that "there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of this functions.' This is also the case with the Governor according to the wordings of the Constitution. Therefore, I do not find any other suitable amendment for this actually (loud laughter)
I shall try to avoid this work actually.
Mr. Speaker :- It is difficult to avoid one's habit.
(A voice : You go on with your "actually")
Shri Maham Singh (Minister Law and Parliamentary Affairs) :- The Governor will have to act according to the advice of the Ministers. Now, Article 61 has been rightly replied by my friend. In the Article 61 there is a provision for impeachment. They have to act according to the provision of the law but there may be cases where they do not follow the provisions of the law. For that there is a remedy. Suppose either the Governor or the President has not functioned or acted according to the provision, viz., they have acted without or against the advice of the Council of Ministers, then there is remedy in the Constitution.
Now, another point has been raised by the hon. Member from Mawhati with regard to Article 330 for reservation of seats for the tribals of Meghalaya.
Mr. Speaker :- The hon'ble Minister may not touch that point since that particular Article is not relevant to the amendment.
Shri Maham Singh (Minister Law and Parliamentary Affairs) :- The hon. Member from Mynso raised a point with regard to the heading of Article 100 i.e. voting in Houses, power of Houses to act notwithstanding vacancies and quorum. In this connection, Mr. Speaker, Sir, I would like to say that we should be guided, in the interpretation of the laws, not by the heading but by the meaning of the sections or articles themselves.
Mr. Speaker :- The hon. Member from Mynso-Raliang has pointed out that since clauses 3 and 4 of Article 100 have been deleted why the word "quorum" should remain.
Shri H. Hadem :- Mr. Speaker, Sir, if you turn to Article 118 you will find the work "quorum" has been included. In view of this it seems it is not necessary that that particular heading should remain in tact in Article 100. Again if you see Article 189 and 208................
Mr. Speaker :- Let me clarify you point to the Law Ministry. The hon. Member wants to know why the word "quorum" still remains when clause 3 and 4 been deleted.
Shri H. Hadem :- Moreover, in Article 118, which concerns with the Rules of Procedure and Conduct of Business of the House, the word "quorum" has been included.
Shri W.A. Sangma (Chief Minister) :- Article 118 reads 'until the Legislature of the State by law otherwise provides, the quorum to constitute a meeting of the House of the Legislature of a State shall be ten members or one-tenth of the total number of members of the House, whichever is greater". It empowers the Parliament and Legislatures to make Rules and Procedure..........
Mr. Speaker :- I believe, each and every Member understands that. But the hon. Member only wants to know why the word "quorum" still remains even after clauses 3 and 4 have been deleted.
Prof. M.N. Majaw :- I think it is only a consequential change.
Shri Maham Singh (Minister Law and Parliamentary Affairs) :- Mr. Speaker, Sir,.................
Mr. Speaker :- I have helped you (Laughter)
Shri Maham Singh (Minister Law and Parliamentary Affairs) :- I think I have replied to all the points that have been raised by the hon. Members. Mr. Speaker, Sir, with regards to the safeguard of the tribals and also the weaker sections of the people they have been touched at all. The safeguards remain. The question that has been raised by the hon. Member with regard to the reservation of seats in the Assembly should not disturb us very much, because all along there has always been great sympathy towards the weaker section, especially the tribals and all those safeguards and protections are incorporated on the Constitution; by way of placing them in the Sixth Schedule and other Articles of the Constitution. That is why, Mr. Speaker, Sir, on account of these protections and sympathy which our Party is having towards the tribals and the weaker sections my hon. friends from Mawlai has lost two Members (Laughter).
Mr. Speaker :- I do not think the hon. Member said that he lost two Members, but his Party lost the Members.
Prof. M.N. Majaw :- The point of clarification I raised was only because the three Parties had submitted Memorandum prior to the finalisation of this amendment and so I wanted to get only some clarification.
Shri Maham Singh (Minister Law and Parliamentary Affairs) :- So, Mr. Speaker, Sir, with all the sympathy that has been shown and with all the safeguards towards the weaker section especially the tribal people, it is for us to take advantage of these privileges that we enjoy at present. I hope, Mr. Speaker, Sir, that with these amendments our country will march ahead towards the achievement of that goal which we have promised to the people and the country and that is towards a better economic life of the people as a whole.
Shri W.A. Sangma (Chief Minister) :- Mr. Speaker, Sir, the hon. Member from Mawlai raised a particular point with regard to the safeguards for the Scheduled Tribes in the State of Meghalaya and also made a reference to the joint efforts to request the Government of India to insert a new provision in the Constitution for safeguarding the tribal people and weaker sections of the people. Now I have obligation to reply to that question. It is a fact that the hill people are very much concerned about preserving their identity. No one can deny that. It is not possible that we could ourselves alone preserve our social and cultural identity. I have been studying this particular question. I find that in spite of the best desire of a section of the people like us, it will not be possible for us to preserve that identity by our efforts alone unless the whole country realises the need for allowing us to preserve our identity. At the same time, it depends on the conduct and behaviour. It is fortunate, Mr. Speaker, Sir, that we have been helped to preserved our identity, social and cultural customs by the framers of the Constitution by providing provisions in the Constitution of India. Let us try to understand and appreciate this. There may be one or two of our people who expressed that such provision should be incorporated in the Constitution of India, but my friends in the opposition must certainly know that at the time when the Constitution was framed, though we did not have the occasion to submit memoranda on the need to have provisions for safeguarding our interests and preserving our identity, provisions to the effect were made. We must be grateful to the framers of the Constitution who, even without hearing from us and without initiative taken by us, had realised the need for such provisions, because the desire of the leaders of the country is that India should prosper, India must have unity in diversity. If India is to progress and prosper through unity in diversity, naturally there must be provisions to protects the interests of the weaker sections. It was this realisation that prompted our national leaders to incorporate such provisions in the Constitution and, as stated by my colleagues, the Law Minister, not a single provision of that type has been amended through the present amendment. The Hon. Member from Mawlai made a reference to our joint memorandum which was submitted to the Government of India for inserting special provisions as in Article 371A in respect of Nagaland. I had occasion to discuss about his matter and try to persuade the Home Minister and the Law Ministry that similar provision should be inserted in addition to the number of safeguards available in the present Constitution. Then we had discussed this matter jointly with the Law and Home Ministers. They have pointed out that such provision was not necessary with respect to Meghalaya because of the provisions under the Sixth Schedule. Again it was pointed out that in the Six Schedule, the District Council is competent to make law in respect of subject enumerated in sub-paragraph (1) of paragraph 3 regarding these matters like allotment, occupation or use, or the setting apart of land, other than any land which is a reserve forest, for the purpose of agriculture or grazing or for residential or other non-agricultural purposes or for any other purpose likely to promote the interest of the inhabitants of any village or town. Now my friends are very apprehensive about the huge influx from outside. How can these people come and settle down in Meghalaya unless the District Council gives them a piece of land for construction of a houses or for pursuing a particular business. Now, such provision is not available in the case of Nagaland because they have not accepted the Sixth Schedule. Regarding customs, the District Council is competent to make laws in respect of the appointment or succession of Chiefs or Headmen, the inheritance of property, marriage and divorce and social customs, now these legislative power of the District Councils are also made concurrent. The State Government can also make law in respect to these subjects. I have been told why should we worry, for, even if the District Councils or not take the initiative to make law, the State Legislature can do it. Some of these subjects are enumerated under List III of the Concurrent List. In such cases, the law of Parliament will prevail.
In this connection, I have pointed out that according to the provision of Paragraph 12-A (b) which is applicable in case of the State of Meghalaya it is only the President of India who can issue direction by notification that any Act of Parliament shall not apply to an autonomous district or autonomous region in the State of Meghalaya, or shall apply to such district or region or any part thereof subject to such exceptions or modification as it is specified in the notification and any such direction may be given so as to have retrospective effect. Here the President means the President of India and as such, I have pointed out the safeguard is not available to us directly. After this discussions with the Law and Home Ministers it was agreed that the provision with the Law and Home Ministers it was agreed that this provision would be suitably amended so that the Governor shall have the same powers. I have received a Communication in regard which reads as follows -
"To Chief Minister Meghalaya, Shillong
From : Home, New Delhi
No. J S N E/76/72/7272 dated 26th October, 1976 Unclass.
For Capt. W.A. Sangma from Om Mehta, Minister of State, Minister of Home, Personnel and Parliamentary Affairs (.) Kindly refer to our discussions during recent visit to Delhi (.) Government hopes to take an early decision as regards amendments to para 12-A (b) of the Sixth Schedule to the Constitution to vest powers in Governor not to apply Acts of Parliament on such of the matter specified in para three of the Schedule as fall within List I and List III of the Seventh Schedule to the Constitution (.)"
It is also not a fact that the Local Government has not taken the imitative in this regard but because of certain difficulties, they wanted to approach the Government by themselves and not along with us. Let us not try to give some sort of a picture that the Congress group was not interested. They are interested, but hey have some difficulty. Unless they get the concurrence from the High Command, they cannot take the initiative to make such laws for this purpose. But I am happy that this amendment to Paragraph 12-A (b) is going to be introduced in the next session of Parliament and the same protection which is available in respect of Nagaland will be available in respect of Nagaland will be available for us also. But it will depend on how we conduct ourselves. We know for certain that there are benami transactions. If I take the business in my name, I do not do it myself but allow somebody else to do the business. If I have my own land I give it to somebody else. Therefore, the constitutional provision alone is not going to protect our interests.
It is the conduct of each and every individual that counts. I still maintain Mr. Speaker, Sir, what I said on the 27th November as Member of the National Development Council when we talk about communal troubles and violence. I said that our State has been known for the traditional communal harmony. Uptil now there is no such trouble in our State. There may be some conflicts between individuals, but there were no communal troubles. This will continue as long as the constitutional provision for the protection of tribals and hills people is implemented. I know the Government of India will do it. They will continue to protect us. They are agreeable, apart from constitutional provision, to take up programmes by which we can be helped to progress and develop ourselves. It is upto you and me to see that all the provisions provided under the Constitution are properly implemented and it is upto you and me to take full advantage of the special programmes which are being initiated by the Government for the rapid progress of our people. Therefore, Mr. Speaker, Sir, there should be no apprehension that the distinct tribal identity and culture will not be protected. There are provisions to protect our interest to help us to maintain our identity, culture and customs. If we ourselves take the initiative and take advantage of this provision, I am sure our interest will always be safeguarded. Moreover, as pointed out by the Law Minister, even this Constitution (Amendment) Bill is aimed at helping the weaker sections. If we go through it in detail, we will find that the main objective is to help the weaker section of the people. We know that India cannot be strong, cannot claim to be developed unless and until every section is developed I am reminded of a statement that India is composed of different sections of people belonging to different cultures, languages and ethnic origins. They are bound, as it were, by a chain. If there by any weak link the whole chain will be weak. In a similar way if we allow any part of India to be weak, India cannot be strong and cannot prosper. It is not only our interest. But it is the interest of the country itself because if India wants to be strong, it must come forward to help us to develop. Therefore, Mr. Speaker, Sir, I am happy that as far as ratification of this Amendment is concerned, except for asking certain clarifications and making certain observations, the whole House is unanimous. I would, therefore, inform the House through you, Sir, that the sole aim of this Amendment is to help all of us without any reservation. Let us adopt the resolution unanimously.
Shri B.B. Lyngdoh :- Mr. Speaker, Sir, on a point of clarification, I distinctly hear that the hon. Member from Mawhati had referred to a very very important subject which is agitating the minds of the people and that is the population structure of the State. We have heard no reply from the Chief Minister on the point. Another point Mr. Speaker, Sir, in point of fact, I think we all know about the role played by the leaders of these hills in the Constituent Assembly and outside for the protection of the interest of the tribal people. I do not think it is a fact that there is no representation so far as the safeguard of the tribal people of the North East Region is concerned. I would like a clarification in this matter.
Mr. Speaker :- I think the Chief Minister did not mean that they have no chance to submit memoranda at the time when the Constituent Assembly was sitting. In fact, the Chief Minister was saying that 50 leaders of the G.N.C. met in the Parliamentary Committee.
Shri W.A. Sangma (Chief Minister) :- That is as far as the Sixth Schedule is concerned. Apart from that a number of safe-guards and economic concession have been incorporated in the Constitution for promotion with special care the educational and economic interests of the weaker sections of the people, and in particular of the Schedule Castes and the Schedule Tribes and for protecting these classes of people from social injustice and all forms of exploitation. Therefore, I want to inform the House that in addition to these particular provisions there are a number of other provision which have been embodied in the Constitution for the benefit of the weaker sections like us. Now, Mr. Speaker, Sir, about Article 330, I have indirectly replied to that question. The population structure can be maintained if the provisions already made available to us through the 6th Schedule can be properly implemented. Apart from that, we are going to bring in a piece of legislation for preventing land alienation and for the restoration of lands which have been passed from tribals to non-tribals. I have received a model Bill from the Government of India in the Ministry of Home Affairs, but I must make it very clear that we should see that our fellow citizens in our State, whether a Khasi, Garo, a Jaintia, a Bengalee, a Muslim, a Hindu or a Christian, must have their interests outside does not come in a big way to disturb our interests also protected. The only thing we should which is that the influx from outside does not come in a big way to disturb our interests, whether it belongs to a tribal community or a non-tribal community. Now regarding the dereservation, we are ourselves responsible, including my friend at present in the opposite. We have been advised by the Home Ministry that with the present population structure of more than 80 per cent constituting of tribals, it will look odd that there should be reservation of seats for Schedules Tribes. We discussed about this also and we know that there are scopes for us to maintain the population structure in future and also and they have also assured us that though there will be no reservation of seats, the interests of the Schedule of the Schedules Tribes will be protected. It is not only in the case of Meghalaya, but in that of Nagaland, Mizoram and Arunachal as well, all seats have been dereserved. A time may come, Mr. Speaker, Sir, that inspite of these protective measures, if there is need for reservation, it will still be available throughout the whole country. I think our case also can be considered, but not at this stage. I think it will be foolish on our part, when we constitute 80 per cent of the population to ask for reservation of seats. I think this is the clarification wanted by my colleague and I hope he will fall in line with me.
Mr. Speaker :- Now let me put the question before the House. The question is that this House ratifies the amendments to the Constitution of India falling within the purview of the proviso to clause (2) of Article 368 thereof, proposed to be made by the Constitution (Forty-forth Amendment) Bill, 1976, as passed by the two Houses of Parliament, and the short title of which has been changed into "The Constitution (Forty-Second Amendment) Act, 1976 be passed?
(The motion was carried and the resolution adopted)
Since there is no more business for the day, the House stands adjourned till9.30 a.m. tomorrow the 16th December 1976.
|The 15th December, 1976.||
Meghalaya Legislative Assembly.