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(iii) Reservation for minorities in the public services. 88 case thus: A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. And this is the proposition which is in reality involved in the argument. The portion, not within brackets, which has been omitted in Mr. In other words, an amendment cannot be such as would denude the Constitution of its identity. (ii) Reservation of seats for minorities in Cabinets. Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides that if the terms of those provisions are compiled with and the alteration or amendment may include the change or abolition of those very provisions.) But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process. As the Constitution has an identity of its own, an amendment, made under a power howsoever widely worded cannot be such as would render the Constitution to lose its character and nature. In other words all these safeguards were considered. Divergent views were expressed, and the Minorities Sub-Committee met on April 17, 18 and 19, 1947 to consider this important matter. Accordingly I do not rely on them as aids to construction. After setting out Section 18, Section 29(1) and Section 29(2)(a), the Judicial Committee observed: There follow (b), (c) and (d), which set out further entrenched religious and racial matters, which shall not be the subject of legislation. I may set out here the observations of the Judicial Committee regarding Mc Cawley's case. It would not be wrong to say that the separate representation of minorities which had been the feature of the previous Constitutions and which had witnessed so much of communal tension and strife was given up in favour of joint electorates in consideration of the guarantee of fundamental rights and minorities rights which it was decided to incorporate into the new Constitution. Federalism can flourish only among communities imbued with a legal spirit and trained to reverence the law. The learned Advocate General of Maharashtra while relying a great deal on Dicey's well known work in support of his other points, has submitted that although he was one of the greatest writers on the law of English Constitution, his book was concerned with two or three guiding principles which pervade the modern Constitution of England. This Commission will make its recommendations to the Constitutionmaking body and will also suggest at which stage or stages in the Constitution these provisions should be inserted, that is whether in the Union, Group or Provincial Constitutions or in any two or more of them. A questionnaire was drafted to enquire about political, economic, religious, educational and cultural safeguards. They found that there was a plain conflict between Section 55 of the Constitution and Section 41 of the Bribery Amendment Act under which the panel was appointed. Then the Judicial Committee examined the effect of this conflict. So far as the scheduled castes were concerned it was felt that their peculiar position would necessitate special reservation for them for a period of ten years. These discussions covered such important matters as the prohibition of discrimination on grounds of race, religion, caste, etc.; the abolition of untouchability and the mandatory requirements that the enforcement of any disability arising out of untouchability should be made an offence punishable according to law; freedom to profess, practise and propagate one's religion; the right to establish and maintain institutions for religious and charitable purposes; the right to be governed by one's personal, law; the right to use one's mother-tongue and establish denominational communal or language schools etc. Having dealt with the question of fundamental rights for minorities, the Minorities Sub-Committee met again on July 21, 1947, to consider the political safeguards for minorities and their presentation in the public services. In forwarding the report of the Advisory Committee on the subject of Minority Rights, Sardar Vallabhbhai Patel, in his report dated August 8, 1947, said: ... The observations, which I have set out above, are strongly relied on by Mr. Seervai, in reply, submitted that the word "entrenched" meant nothing else that than these provisions were subject to be amended only by the procedure prescribed in Section 29(4) of the Ceylon Constitution. Palkhivala dervies support in the manner the Judicial Committee distinguished Mc Cawley's [1920] A. There the legislature, having full power to make laws by a majority, except upon one subject that was not in question, passed a law which conflicted with one of the existing terms of its Constitution Act. Cooray, reads the obiter dicta in Bribery Commissioner v. There is nothing in the language of Section 29(4) to indicate any limitations on the power of the Ceylon Parliament. Since the language of the Preamble was taken from the resolution itself the declaration in the Preamble that India would be a Sovereign, Democratic Republic which would secure to all its citizens justice, liberty and equality was implemented in Parts III and IV and other provisions of the Constitution. 193-194 will require a more detailed discussion in view of the elaborate arguments addressed on both sides based on it. Reliance has been placed on Professor Wheare's statement in his book Federal Government, 4th Edn.

That report dealt with justiciable fundamental rights; these rights, whether applicable to all citizens generally or to members of minority communities in particular offer a most valuable safeguard for minorities over a comprehensive field of social life. 922 observed: Before concluding this judgment I must refer to some of the speeches made by the members of the Constituent Assembly in the course of debates on the draft Constitution. Unless there was implied a limitation on the exercise of the amending power under Section 29(4), Section 29(4) could itself be amended to make it clear that Section 29(2) is amendable. This case furnishes an exact example where implied limitations on the power to amend the Constitution have been inferred by no less a body than the Judicial Committee of the Privy Council. 197-198: These passages show clearly that the Board in Mc Cawley's case took the view which commends itself to the Board in the present case, that (a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its powers to make law. The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh.... Another opposite observation in this connection was made in In re the Regulation and Control of Aeronautics in Canada [1932] A. It was said that inasmuch as the Act embodied a compromise under which the original provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation and the foundation upon which the whole structure was subsequently erected. Our Constitution is federal in character and not unitary. We are unable to understand how that can have any relevancy in the presence of judicial review having been made an integral part of our Constitution. It is pointed out on behalf of the petitioners that the scheme of Article 368 itself contains intrinsic pieces of evidence to give a limited meaning to the word "amendment". That Section 6(1) included making provision as to the Constitution of the Dominion is made clear by Section 8(1) which provided : "In the case of each of the new Dominions, the powers of legislature of the Dominion shall for the purpose of making provision as to the Constitution of the Dominion be exercisable in the first instance by the Constituent Assembly of that Dominion, and references in this Act to the legislature of the Dominion shall be construed accordingly. Para 20(See : Shiva Rao-The Framing of India's Constitution, Vol. 216) of the Statement by the Cabinet Mission provided: The Advisory Committee on the rights of citizens, minorities, and tribal and excluded areas should contain full representation of the interests affected, and their function will be to report to the Union Constituent Assembly upon the list of Fundamental Rights, the clauses for the protection of minorities, and a scheme for the administration of the tribal and excluded areas, and to advise whether these rights should be incorporated in the Provincial, Group, or Union Constitution. In clarifying this statement Sir Stafford Cripps at a Press Conference dated May 16, 1946 stated: But in order to give these minorities and particularly the smaller minorities like the Indian Christians and the Anglo-Indians and also the tribal representatives a better opportunity of influencing minority provisions, we have made provision for the setting up by the Constitution-making body of an influential advisory Commission which will take the initiative in the preparation of the list of fundamental rights, the minority protection clauses and the proposals for the administration of tribal and excluded areas. The only limitation, we recognise is that in regard to certain major communal issues the decision should be by a majority of each of the two major communities. The Sub-Committee on Minorities met later the same day. The members of the panel are paid remuneration (Section 45). The Judicial Committee held that the members of the Tribunal held judicial office and were judicial officers within Section 55 of the Ceylon Constitution. The Committee was to consist of representatives of muslims, the depressed classes or the scheduled castes, the sikhs, christains, parsis, anglo-Indians, tribals and excluded areas besides the Hindus Constituent Assembly Debates Vol. As a historical fact it is safe to say that at a meeting held on May 11, 1949 a resolution for the abolition of all reservations for minorities other than the scheduled castes found whole hearted support from an overwhelming majority of the members of the Advisory Committee. The British Parliament knowing the complexities of the structure of the Indian people expressly provided in Section 6(6) of the Indian Independence Act, 1947, that "the powers referred to in Sub-section (1) of this section extends to the making of laws limiting for the future the powers of the legislature of the Dominion." Sub-section (1) of Section 6 reads: The legislature of each of the new Dominions shall have full power to make laws for that Dominion, including laws having extraterritorial operation. These provisions of the Indian Independence Act amply demonstrate that when the Constituent Assembly started functioning, it knew, if it acted under the Indian Independence Act, that it could limit the powers of the future Dominion Parliaments. No similar provisions exists in any of the Independence Acts in respect of other countries, enacted by the British Parliament, e.g., Ceylon Independence Act, 1947, Ghana Independence Act, 1957, Federation of Malaya Independence Act, 1957, Nigeria Independence Act, 1960, Sierra Leone Independence Act, 1961, Tanganyika Independence Act, 1961, Southern Rhodesia Act, 1965, Jamaica Independence Act, 1962. I may mention that the aforesaid provisions in the Indian Independence Act were enacted in line with the Cabinet Statement dated May 16, 1947 and the position of the Congress Party. In the letter dated May 20, 1946, from Maulana Abul Kalam Azad to the Secretary of State, it is stated: The principal point, however, is, as stated above, that we look upon this Constituent Assembly as a sovereign body which can decide as it chooses in regard to any matter before it and can give effect to its decisions. The Advisory Committee met on February 27, 1947 to constitute various sub-committees including the Minorities Sub-Committee. The panel is composed of not more than 15 persons who are appointed by the Governor-General on the advice of the Minister of Justice (Section 41). Pursuant to the above and paras 5 and 6 of the Objectives Resolution the Constituent Assembly set up an Advisory Committee on January 24, 1947. In an emergency every citizen is liable to be subjected to extraordinary restrictions. I may here notice some relevant facts which constitute the background of the process of drafting the Constitution. In his reply dated May 22, 1946, the Secretary of State observed: When the Constituent Assembly has completed its labours, His Majesty's Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people, subject only to two provisos which are mentioned in the statement and which are not, we believe, controversial, namely, adequate provision for the protection of minorities and willingness to conclude a treaty to cover matters arising out of the transfer of power. In the Explanatory statement dated May 22, 1946, it was again reiterated as follows: When the Constituent Assembly has completed its labours, His Majesty's Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people, subject only to two matters which are mentioned in the statement and which, we believe are not controversial, namely, adequate provision for the protection of the minorities (paragraph 20 of the statement) and willingness to conclude a treaty with His Majesty's Government to cover matters arising out of the transfer of power (paragraph 22 of the statement) (P. He laid special importance on the issue of minorities. Section 55 provided for the appointment of other Judicial Officers. (1) The appointment, transfer, dismissal and disciplinary control of judicial officers is hereby vested in the Judicial Service Commission. The Judicial Committee deduced from these provisions thus: Thus there is secured a freedom from political control, and it is a punishable offence to attempt directly or indirectly to influence any decision of the Commission (Section 56). The Judicial Committee then described the position of the Bribery Tribunal as follows: A bribery tribunal, of which there may be any number, is composed of three members selected from a panel (Section 42). Even in Great Britain, where the doctrine of the legal sovereignty of Parliament has prevailed since the days of Erskinc, Blackstone, Austin and lastly Dicey, the new trend in judicial decisions is to hold that there can be at least procedural limitations (requirement of form and manner) on the legislative powers of the legislature. The Attorney General for the Irish Free State (1935) A. The Cabinet Mission statement had actually provided for the cession of sovereignty to the Indian people subject only to two matters which were; (1) willingness to conclude a treaty with His Majesty's Government to cover matters arising out of transfer of power and (2) adequate provisions for the protection of the minorities.

CA/24/Com./47, dated the 23rd April 1947 and dealt with by the Assembly during the April session. J., referred to certain portions of the speeches made by Pandit Nehru and Dr. 792 that he referred to these speeches "not with a view to interpret the provisions of Article 368, which we propose to do on its own terms, but only to notice the transcendental character given to the fundamental rights by two of the important architects of the Constitution." Bachawat, J., at p. I have no doubt that the Judicial Committee held that the provisions of Section 29(2) in the Ceylon Constitution were unamendable. S A de Smith in reviewing the book "Reflections on the Constitution and the Constituent Assembly. The reason could only be an implied limitation on the power to amend under Section 29(4) deducible from "the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution". Seervai relied on the portion within brackets of the following passage at pp. 225; 236-37 this Court implied that "the President has thus been made a formal or Constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The decision of the Privy Council in the Bribery Commissioner v. They represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these are therefore unalterable under the Constitution. 70 while interpreting the British North America Act 1867. Hence every power, executive, legislative or judicial, whether it belong to the nation or to the individual States, is subordinate to and controlled by the Constitution. Switzerland is probably the only country having a federal Constitution where full-fledged right of judicial review is not provided.

It should be treated as supplementary to the one forwarded to you with my letter No. Palkhivala in support of his argument that Part III similarly entrenched various religious and racial and other matters and these represented solemn balance of rights between the citizens of India, the fundamental conditions on which inter se they accepted the Constitution of India and these are, therefore, unalterable under the Constitution of India. But I am unable to accept this interpretation because in that sense other provisions of the Constitution were equally entrenched because no provision of the Ceylon Constitution could be amended without following the procedure laid down in Section 29(4). It was held that this was valid legislation, since it must be treated as pro tanto an alteration of the Constitution, which was neither fundamental in the sense of being beyond change nor so constructed as to require any special legislative process to pass upon the topic dealt with. It is rightly urged that the expression "which was neither fundamental in the sense of being beyond change" has reference to Section 29(2) of the Ceylon Constitution. It could "amend or repeal" any provision of the Constitution, which included Section 29(2) and Section 29(4) itself. These formed not only the essential features of the Constitution but also the fundamental conditions upon and the basis on which the various groups and interests adopted the Constitution as the Preamble hoped to create one unified integrated community. But for the present all that need be pointed out is that the above language is borrowed mainly from the judgment of Lord Pearce who, after setting out Section 29 of the Ceylon Constitutional Order which gave Parliament the power to make laws for the peace, order and good government of the island, said with regard to Clause (2) according to which no law could prohibit or restrict the free excrcise of any religion, There follow (b), (c) and (d), which set out further entrenched religious and racial matters, which shall not be the subject of legislation. A federal State derives its existence from the Constitution, just as a corporation derives its existence from the grant by which it is created. (1963) that the Swiss Courts are required by the Constitution to treat all laws passed by the federal assembly as valid though they may declare Cantonal laws to be void and that does not constitute such a departure from the federal principle that the Swiss people cannot be regarded as having a federal Constitution and a federal government.



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