Constituent Assembly Of India -Volume IX
Dated: September 15, 1949
The Constituent Assembly of India met in the Constitution Hall, New Delhi at Nine of the Clock, Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair.
New Article 112-B.
The Honourable Dr. B. R. Ambedkar (Bombay: General): Mr. President, Sir, I move:
Sir, the position is this that according to the ruling of the Privy Council there is a distinction between civil matters and matters relating to Income-tax and, for instance, acquisition proceedings. It has been held that the proceedings relating to income-tax and to acquisition of property do not lie within the purview of what are called 'civil proceedings.' And it might therefore be held that unless a special provision was made the powers of the Supreme Court were 'confined to civil proceedings. In order to remove that doubt this article 112B is now proposed to be introduced so as to give the Supreme Court full powers over all proceedings, including civil proceedings and other proceedings which are not of a civil nature. That is the reason why this article is sought to be introduced.
Pandit Thakur Das Bhargava (East Punjab: General) : Sir, I beg to move:
My only purpose in moving the amendment is that I am not sure if the words "under any existing law" will cover the entire scope of the jurisdiction which the Privy Council has been enjoying for such a long time. We have now got a Bill which is going to be introduced in a day or two-I think it is coming for discussion on the 17th-in which an attempt has been made to confer such jurisdiction on the Federal Court as has been enjoyed by the Privy Council. Paragraph 2 of the Bill says:
My submission is that it is doubtful in That manner and in what matters the Privy Council has been exercising jurisdiction. If there were no pre-existing law, but the Privy Council was exercising jurisdiction only as a matter of practice, those jurisdictions must be taken away from the Privy Council and conferred on the Federal Court. Much of the Constitution of England is by way of conventions, so that we have to see that the jurisdiction of our Federal Court may be foolproof and is no less expensive than that of the Privy Council.
Prof. Shibban Lal Saksena (United Provinces : General): Sir, I beg to move:
Sir, in article 112 of the Constitution, the Supreme Court has been given very wide powers. It has been said that the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree or final order in any case or matter, passed or made by any court or tribunal in the territory of India in cases where the provisions of article 110 or article 111 of this Constitution do not apply. So, there is inherent power in. the Supreme Court. I want to make this specific as this question is important.
I have had occasions to discuss this matter with many persons who are connected with decisions of the courts-martial. One thing that has struck me is that in the hearing of the courts-martial, the Judge Advocate who is the Judge is also the prosecuting counsel. When a military officer is prosecuted for breach of army discipline, the case goes to the Judge Advocate who is both the Court and also the person to give directions as if he were the prosecution Counsel in that case, with the result that lie prepares the prosecution case and at the same time sits in judgment on the accused. Naturally, he cannot be expected to be so fair and impartial as laws of jurisprudence would expect him to be. The man who is the prosecutor should not be the Judge. I know of many cases where the ends of justice have not been met for this reason.
Recently the British Government appointed a Commission to enquire into the procedures of Courts-Martial. That Commission recommended that the Judge Advocate should have nothing to do with the prosecution. Hence my amendment that the Supreme Court shall also have jurisdiction to bear appeals against sentence of death passed by Courts-martial.
Mr. Naziruddin Ahmad (West Bengal: Muslim): Sir, the amendment which stands in my name is of a verbal nature and, therefore, I shall leave it to the Drafting Committee to consider. I, however, with your permission, desire to take part in the general discussion.
This article 112B seeks to be very intricate and circumspect in its approach. It is the inevitable result of piecemeal introduction of articles on the subject. I submit that the way in which the present articles have been worded would make it absolutely difficult to realise what they mean, Article 112B tries to give jurisdiction to the Supreme Court over subjects on which "His Majesty in Council" had powers. We are thus linking the rights and powers of the Supreme Court in matters of appeal to the undefined powers of His Majesty in Council, I think instead of proceeding in a roundabout manner like this, the more satisfactory course would have been to say that Income-tax and Acquisition proceedings are subjects on which there would be a right of appeal before the Supreme Court.
Sir, I would like to draw the attention of the House to article 11 1A which gives absolute jurisdiction with regard to criminal cases where there is a final judgment, or order or sentence of a criminal Court. Provided of course there is a substantial question of law and there is special 'leave. Then in article 112 it is said that the Supreme Court may give special leave to appeal from any judgment, decree or final order in any cause or matter passed or made by any Court or tribunal in the territory of India. These, I think, ought to be enough so as not to require any further clarification by means of article 11 1B.
Then again in article 112A we have already provided that the Supreme Court has the powers to review any judgment pronounced or order passed in any case. So in these circumstances, the real utility of article I 12B is not very clear. If there are some loopholes in the articles already passed the better course would be to clarify the matter by specific enactments.
With regard to the British Constitution the greatest difficulty is that it is in a fluid condition. Nobody knows what the powers of the King are and nobody can define them with precision. They are determined by the Courts or by the Parliament when they arise. The proposal of linking the powers of the Supreme Court with the powers of His Majesty would be open to two objections, namely, the linking up of the Supreme Court with something which is vague and undefinable and secondly to inevitably perpetuate the designation of "His Majesty" in the Constitution of Free India.
Shri Brajeshwar Prasad (Bihar : General): Mr. President, Sir, I rise to support Prof. Saksena. I feel that military courts are not likely to have proper regard for the sanctity of human life. I am against capital sentence. The traditions of non-violence are so strong in this country that it is not advisable to vest final powers into the hands of military tribunals in cases of death sentence. We cannot abolish capital punishment here. All judiciaries, even the Supreme Court are responsive to public opinion. I have no reason to think that our Supreme Court here will have no regard for public opinion and for the traditions of this country.
Mr. President: Dr. Ambedkar, would you like to say anything?
The Honourable Dr. B. R. Ambedkar: Sir, with regard to the amendment of my Friend, Pandit Thakur Das Bhargava, I do not think that that amendment is necessary if he is really enlarging the jurisdiction of the Court. The word " practice" is generally taken to cover matters of procedure, and article 112B which I have proposed does not deal with procedure but deals with substantive matter of jurisdiction. Therefore his amendment "or practice" is unnecesary.
With regard to the amendment of my Friend Prof. Shibban Lal Saksena, there are two points to which I would like to reply, The first is this, that it there is to be an appeal to the Supreme Court in matters of sentence of death passed by Courts-martial. then such a provision could be easily made by the Indian Army Act giving the accused person the right to appeal, and it has been provided, if I may draw my friend's attention to clause (1) of article 11 4, that the Supreme Court shall have such further jurisdiction and power with respect to any matters in the Union List. it reads:
With regard to the amendment of my friend Mr. Naziruddin Ahmad to omit the words "existing law........
Mr. Naziruddin Ahmad: I have not moved that.
Mr. President: He has not moved it, he has left it to the Drafting Committee.
The Honourable Dr. B. R. Ambedkar: If he has left it to the Drafting Committee I am very glad, Sir. We shall certainly pay the, best attention that his point deserves.
Mr. President: Then I will put the amendments.
Prof. Shibban Lal Saksena: In view of the assurances given, I would like to withdraw my amendment.
Pandit Thakur Das Bhargava: I too am withdrawing my amendment, Sir.
The amendments were, by leave of the Assembly, withdrawn.
Mr. President: The question is:
New Article 15-A
Mr. President: Then we go back to New Article 15A.
The Honourable Dr. B. R. Ambedkar: Sir, I move:
Sir, the House will recall that when at a previous session of this Assembly we were discussing article 15, there was a great deal of controversy on the issue as to whether the words should be "except according to procedure established by law", or whether the words "due process" should be there in place of the words which now find a place in article 15. It was ultimately accepted that instead of the words "due process", the words should be "according to procedure established by law". I know that a large part of the House including myself were greatly dissatisfied with the wording of article 15. It will also be recalled that there is no part of our Draft Constitution which has been so violently criticised by the public outside as article 15 because all that article 15 does is this, it only prevents the executive from making an arrest. All that is necessary is to have a law and the law need not be subject to any conditions or limitations. In other words, it was felt that while this matter was being included in the Chapter dealing with Fundamental Rights, we were giving a carte blanche to Parliament to make and provide for the arrest of any person under any circumstances as Parliament may think fit. We are therefore now, by introducing article 15A, making, if I may say so, compensation for what was done then in passing article 15. In other words, we are providing for the substance of the law of "due process" by the introduction of article 15A.
Article 15A merely lifts from the provisions of the Criminal Procedure Code two of the most fundamental principles which every civilised country follows as principles of international justice. It is quite true that these two provisions contained in. clause (1) and clause (2) are already to be found in the Criminal Procedure Code and therefore probably it might be said that we are really not making any very fundamental change. But we are, as I contend, making a fundamental change because what we are doing by the introduction of article 15A is to put' a limitation upon the authority both of Parliament as well as of the Provincial Legislature not to abrogate these two provisions, because they are now introduced in our Constitution itself.
It is quite true that the enthusiasts for personal liberty are probably not content with the provisions of clauses (1) and (2). They probably want something more by way of further safeguards against the inroads of the executive and the legislature upon the personal liberty of the citizen. I personally think that while I sympathise with them that probably this article might have been expanded to include some further safeguards. I am quite satisfied that the provisions contained are sufficient against illegal or arbitrary arrests.
As Members will see, the provisions contained in clauses (I ) and (2) of article 15A are made subject to certain limitations which are set out in clause (3) which says that the provisions contained in clauses (1) and (2) of article 15A will not apply to any person who for the time being is an enemy alien. I do not think that there could he, any further objection to the reservation made in clause (3) (a) in respect of an enemy alien. With regard to sub-clause (b) of clause (3) 1 think it has to be recognised that in the present circumstances of the country, it may be necessary for the executive to detain a person who is tampering either with public order as mentioned in the Concurrent List or with the Defence Services of the country. In such a case I do not think that the exigency of the liberty of the individual should be placed above the interests of the State. It is on that basis that sub-clause (b) has been included within the provisions of clause (3).
There again, those who believe in the absolute personal liberty of the individual will recognise that this power of preventive detention has been helped in by two limitations : one is that the Government shall have power to detain a person in custody under the provisions of clause (3) only for three months. If they want to detain him beyond three months they must be in possession of a report made by an advisory board which will examine the papers submitted by the executive and will probably also give an opportunity to the accused to represent his case and come to the conclusion that the detention is justifiable. It is only under that that the executive will be able to detain him for more than three months Secondly, detention may be extended beyond three months if Parliament makes a general law laying down in what class of cases the detention may exceed three months and state the period of such detention.
I think, on the whole, those who are fighting for the protection of individual ought to congratulate themselves that it has been found possible to introduce this clause which, although it may not satisfy those who- hold absolute, views in this matter, certainly saves a great deal which had been lost by the non-introduction of the words 'due process of law. Sir, I commend this article to the House.
Pandit Thakur Das Bhargava: Sir, if you permit me I shall simply read out the numbers of my amendments and they may be treated as moved in the House. This will save time.
Mr. President: Yes, as the amendments are lengthy ones they may be treated as read out in the House.
Pandit Thakur Das Bhargva: Sir, I request that all my amendments may be taken as moved.
"That after article 15 the following new article be added
'15A. No procedure within the meaning of the proceeding section shall be deemed to be established by law if it is inconsistent with any of the following principles:-
115B. No procedure within the meaning of Sec. 15 shall be deemed to be established by law in case of preventive detention if it is inconsistent with any of the following principles:-
'15A. No procedure shall be deemed to be established by law within the meaning of article 15 if the law prescribing the procedure for criminal proceedings and trials of accused persons contravenes any of the following established principles and rights-
"That in amendment No. 1 above. in the proviso to clause (3) of the Proposed new article 15A, for the word 'three' the word 'two' be substituted."
"That in amendment No. 1 above, at the end of sub-clause (b) of the proviso to clause (3) of the proposed new article 15A, the following be added :-
The House has just heard the speech of the honourable Mover of the main motion. I need not recall to the memory of the House the heated controversy which raged about a year and a quarter ago round the words 'due process of law'. Now a substantive part, of the 'due process' has practically been given up after 70 per cent. being secured in article 13. 1 should think that in the circumstances of our country, this provision of 'due process' is certainly necessary cent. per cent. It is the only right process in this country. Our country is not trained to the restraints and discipline which mark out a country in which democracy has worked for a long time. Our country is full of autocratic ideas. The domination by a foreign power of this country for hundreds of years has so demoralised our character that a man in the street....
The Honourable Dr. B. R. Ambedkar: Sir, may I say a word ? I am prepared to accept one of the amendments of my honourable Friend which says that the accused shall have the right to be defended. I can add these words in the last line of clause (1) of article 15A. It will run thus : be denied the right to consult or to be defended by lawyers of his, choice'. I think that will carry out my honourable Friend's intention.Pandit Thakur Das Bhargava: In trials as well as in criminal proceedings ?
The Honourable Dr. B. R. Ambedkar: 'Defended' means that. Could we not curtail the debate now ?
Pandit Thakur Das Bhargava: We have already passed an article, No. 24 about Compensations. Is it the idea that no compensation need be given at all ? If you make acceptance of amendments a price for my not speaking further, I should be paid full compensation.
So far as the question of compensation is concerned, we wanted that the words 'due process of law' should be there. I am glad that Dr. Ambedkar, who has been very cautious in this matter, has today confessed that he is 'of the same view as many other lawyers in this House. But our misfortunate was that the greatest obstacle to this 'due process' came from the greatest jurist in this House and it is most unfortunate to this country that we have not been able to pass this due process' clause. In the long history of the struggle for liberty which the Congress had to wage with the foreign government, the High Courts and the Supreme Court many a time held that the laws passed by the bureaucracy were not valid. Now, this power is being taken away from our Indian courts in the name of liberty. My submission is that the first casualty in this Constitution is justice. After all what is a fundamental right? A fundamental right is a limitation of the powers of the executive and the legislature. Whatever fundamental rights we have given in this Constitution. lately an attempt has been made to take them away. Article 15 is the crown of our failures because by virtue of article 15 we have given the Executive and the legislature power to do as they like with the people of this country, so far as procedure is concerned. I cannot describe the state of mind in which I felt myself when I could not succeed in getting this House to agree to the due process clause.
Now, Sir, Dr. Ambedkar says that he has given a compensation for that clause. He has given us these two clauses (1) and (2). 1 congratulate him so far as these two clauses are concerned, although I shall have occasion to quarrel with him over one of these clauses. All the same, I congratulate him on the efforts he has made in salvaging something out of the lost cause. An the same, I do not know, Sir, which department of the Government of India or which Minister has got the cheek to oppose the whole nation when it wants to get into its own.
Now, Dr. Ambedkar says that he is agreeable to accept my amendment that the accused will have the right of being defended by a lawyer of his choice. I make bold to say that in no country, in no civilised country is that right not given. This too has been very niggardly given by Dr. Ambedkar. This Dr. Ambedkar says, is a sort of compensation to the original due process clause. I submit with great pain that this is in my opinion no concession at all. These two provisions mentioned by him are so elementary that I may say without any sort of hesitation that these two clauses are of such a nature that no civilised country, no civilised legislature, can have the heart to say that even these should not be recognised.
Now, in regard to the two matters of arrest and detention, these two clauses are sought to be introduced; but what happens after a person is arrested or detained ? His troubles begin then. When be is detained or arrested and he is in the clutches of the police, he is alone in the world, and the forces of the PC,' ice, the forces of the Crown and all other forces combine against him and he is helpless. We have made absolutely no provision to save him from the tyrannies of the police and the courts. After all, what is the magistracy?When we come to the other articles which are coming before the House, 209, etc., we will realise that the whole panorama of Swaraj is being taken away from us bit by bit. All the powers of the magistracy will remain in this country as before. They are not going to make any change so far as the question of the separation of the judiciary from the executive is concerned. Knowing well what kind of magistracy we have, we should at least provide some sort of check by the way of procedure at least. If you do not allow the courts, even the highest courts in this land to pronounce if any law is valid and just, you must at least have some compensatory thing. In regard to these principles, only two are sought to be put in. Now, after arrest and detention, there is absolutely no sort of right which is sought to be given.
Sir, if you will kindly examine these two clauses (1) and (2), you will be pleased to see that not only no further riot is sought to be given, but also that the take away from the existing rights. In regard to 15A (1), I submit it reads thus :-
The law at present is that no person is to be kept in detention for a single minute longer than is necessary or reasonable. Ibis section does not even give this right that the executive will be compelled to produce a person arrested before a court as soon as possible. If an officer detains a person longer than is necessary, he cannot be called upon to explain now. Fundamental Rights mean that these rights cannot be taken away by the legislature or the executive. Left to myself, I would rather be without any fundamental right, unless there is a modicum of right which ensures the liberty of the citizen. Sir, the present practice under 61 of the Criminal Procedure Code is as soon as a per-son is arrested, he must be produced before a court within twenty-four hours, excluding the time taken for the journey from the place of arrest to the nearest magistrate's court.
Apart from this, Sir, when he is brought before the Court under section 61 within twenty-four hours, then at that time the powers of the courts also are restricted under the present law, and I think they have been rightly restricted. We know that the magistracy, especially the special class magistrates, is police ridden, because the Superintendent of Police has only to write a letter in secret against the magistrate and the magistrate will be no more. Therefore the ordinary magistrates have not the guts to do anything against the wishes of the police. and therefore they allow detention as a matter of course. This is the present practice, and therefore the law enacted a provision in section 167 of the Criminal Procedure Code. With your permission, I would just read that provision.
The provision in the Criminal Procedure Code is as follows
Now, this provision and the other provision say that an accused must be kept with the authority of a Magistrate;-and third-class and second class Magistrates, unless they are specially empowered, have not the right to authorise detention of a person, because in 1923 we passed a law whereby a proviso was added to this effect :-
Even this right is taken away. There is an amendment by a friend of mine to this clause which says that only first-class Magistrates should be enabled to have, this power and to authorise detention. I do not agree with him, because unless and until the second-class and third-class magistrates are also specially empowered, it would be difficult to work it in practice, but at the same time, I do not SW any reason why this provision passed in 1923 should be taken away by this clause.
Then again, Sir, a very important and salutary check has been placed on the authority of the Magistrate by virtue of provision 167 (3) which says : "A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing," and I beg Dr. Ambedkar to kindly give me his car for half a minute. I beg to submit that only four words "and for reasons recorded" be added. When a person is brought before a Magistrate, this is exactly the time when his fate is going to be sealed or to be bettered. At that time, according to the practice followed in the Punjab and elsewhere, when an accused is presented before the Magistrate, when the 'remand is sought to be given, the Magistrate is bound to record his reasons and this is a very great check upon the power of the Magistrate. I have got some specific amendments to this effect. I want that in the first proviso in the proposed new article 15-A as moved by Dr. Ambedkar the words "and for reasons recorded" to be added and I beg of Dr. Ambedkar to kindly consider the full effect of these words.
I claim that unless these words are there, you will be taking away a very important right of the accused. If you put these words, then it would mean this that as soon as a man comes, as soon as the papers are presented to the Magistrate, it is the duty of the Magistrate to see how long the remand is to be given, for how long this man is to be put in the dungeon and give full reasons and these reasons could be scrutinized by the superior Courts and the accused could get that order revised. This order is revisable; it is a judicial order; it is not an executive order and therefore, reasons must be given. If reasons are given then, of course, we may say that the order is justified. If you provide the reasons to be given, then the Magistrate will be called upon to explain; he will have to hear the lawyer and then pass an order whether a man is to be detained for ten or five days and for what reasons he has to detain him. If you do not condition his order with the words "and for reasons recorded", the probability is that the Magistrate will mechanically make the order of remand.
I do not want to read from the rulings which give effect to it and why this is a very salutary law. I leave it to the House because I submit this is one of the most important amendments that I seek to make in this law. If these words are there, I submit Sir, the liberty of the accused will to a very great extent be secured and at the same time the present provision 15A (1) will not be necessary, because as soon as a person is brought within a period of twenty-four hours his counsel is there; then in that case when the Magistrate goes into the reasons as why he should allow further remand at that time, the reasons are gone into andthe accused is automatically informed and the accused can ask the Magistrate why he is granting a remand and why he is being put in custody. He has a right to an explanation from the Magistrate why he is detained, and thus the provisions of 15A (1) will be in effect fulfilled. If you put these words "and for reasons recorded" in clause, (2) then it would follow that 15A ( I ) will be unnecessary.
In practice what happens ? The police is all powerful, they misinform the persons, ill-treat him and his relations and give them wrong reasons of detention. You have got nothing to prevent this being done unless it lie by this clause. If a person has misinformed, the accused there is no record of it. You have got no check over the Police and have, no guarantee that these provisions will be, given effect to. Therefore the only check that you can place upon the police and on a Magistrate is, at the time when the man comes for remand and when he comes, you could certainly insist that the reasons must be recorded so that the Magistrate when he records the reasons and when he considers them he may also explain to the accused or to his counsel why he is being detained or for what further period he is to be detained. I only suggest that these words must be added to clause (2) if you really mean that a person may be secured in his rights. I do not think I am asking for more than what is absolutely due to the accused.
In regard to my other amendments, I am glad that one amendment has been accepted by Dr. Ambedkar regarding counsel and I will not take up your time by referring to this aspect of the case. The other amendments which follow also relate to such rights as have been already conceded by the Criminal Procedure Code and the only apprehension is that a panicky legislature or an autocratic Government may not take away those rights from the people and begin to tyrannise over them. Let us be quite clear in our minds about this aspect of the matter. The whole of India, though governed by the Centre, is at the same time governed by the Provincial Governments and States where the autocracy of the old days is still in vogue and it is high time that when the new legislatures come into being, we should see that the legislatures do not misuse the powers in respect of which they have not got any experience whatsoever. It is in the blood of every executive officer and much more so in India to have as much powers as possible. Does this House not remember that in 1947 we passed such a law as against which one of the present Ministers of the Crown stood up and said "It is a black law" ? Do we not remember that we in a panic passed in this House laws authorizing the Police to shoot over the public without any warning ? Do we not know that we in this House passed some laws whereby if a person wrote an article, not because it was inflammatory, but tended to do something which was quite vague in respect of worsening the relations between different Communities, not only his other publications, but the press in which they were published, could be confiscated without an appeal to any Court.'
I know that these powers were not used because we have got Sardar Patel at the helm of affairs, because we have got our own Government who do not want to use these powers. Suppose, Sir. in a new State which is being formed these powers are given to the Ruler of that State, who in his wisdom begins to exercise those rights, what would happen to the rights of the individual. We are making a Constitution which will save the liberty of the people. My humble submission is that that article 15 as it stands with these two safeguards also is a blot upon the Constitution. We have not been able to secure the rights which we wanted to secure. I know I am using strong words. But, my feelings are extremely strong and I cannot conceal them from this House. I want them toshare these feelings with me. As a matter of fact, I say this is the only time when you can impose some restrictions on the legislature. We must bring all the pressure on Dr. Ambedkar, and tell him that these are the minimum rights which we want to secure to the people at large. I would have rather liked that Dr. Ambedkar, instead of resisting the attempts of these 'people, should have, resigned from his post as a protest against the pressure which is being brought upon him by the powers so that these fundamental rights may not be put in.
We have agreed that due process of law shall not be there. But I do not agree that even these small rights should not be put in. I submit for your consideration what these rights are. One of these rights is that. every person accused of any offence shall have the right of cross-examining the witnesses produced against him and producing his defence. This is a very elementary right. If you do not allow this, why speak of a trial ? Do we not know every day that this right is being denied to the accused ? In the mofussil, the courts do not wait for the counsel and cases are conducted in places where witnesses do not reach. Me people are being deprived of their right of defence. So far as cross examination is concerned, we know even under section 256, the provisions are abused and attempts are made not to allow cross examination. Where is the guarantee that in the future the legislature will not assume, that the executive win not force the legislature to assume the power that any accused may be condemned even in his absence ? I know of the legislatures where attempts were made to see that in the absence of the accused, the hole trial is gone through. Do we not know the Rowlatt Act which said, no vakil, no daleel no appeal ?
Mr. President: The Honourable Member has made reference to this House several times. I do not know which House he means.
Dr. P. S. Deshmukh (C. P. & Berar: General) : In its legislative garb.
Pandit Thakur Das Bhargava: This House has got two forms, one legislative and the other constitutional. We pass laws in the other House and here we only pass this Constitution. I am referring to the other House. You are the President of that House also though we have got a Speaker too. My humble submission is, we take full responsibility for what we have done. These laws have not been misused. My humble submission is, where is the guarantee that any other Government which is not manned at the Centre by people like the present Cabinet, or any other provincial Government will not exercise these powers ? We do not think this Government would do it. But, there are other Governments. Take the case of Rajasthan. They have just emerged from autocracy; we do not know to what extent they will go when they are confronted with an emergency. With regard to emergency........
Mr. President: I was thinking of reference to this House when you mentioned the Rowlatt Act.
Pandit Das Bhargava: The Rowlatt Act was passed in 1918, XIV of 1918, I know. My submission is, where is the guarantee that this House or the provincial legislatures will not enact a law like that Act ? This should be made foolproof so that the courts would sit in judgment and pronounce that these Acts are not valid. When it is a case of giving compensation, let us be fair and let that compensation be adequate and fair and just. It is neither, it is not even justiciable.
I shall come to another clause. No person shall be subject to unnecessary restraints or to unreasonable search of person or property. This clause has a history of its own. I do not want to go into the history of general search, etc.,as they happened in England. But, I want to refer to what happened in this very House. On 3rd December, Kazi Syed Karimuddin brought an amendment in this House in your absence.. It was to this effect : it appears on page 794 of the proceedings dated 3rd December 1948.
When we were debating this, at the end, Dr. Ambedkar who is imbued with the notions of a criminal lawyer, I do not know whether he has practised or not, said, (it appears on page 796) : "I am however prepared to accept amendment No. 512 moved by Mr. Karimuddin. I think it is a useful provision and may find a place in our Constitution. There is nothing novel in it because the whole of the clause as suggested by him is to be found in the Criminal Procedure Code so that it might be said in a sense that this is already the Law of the land. It is perfectly possible that the legislatures of the future may abrogate the provisions specified in his amendment, but they are so important so far as personal liberty is concerned that it is very desirable to place these provisions beyond the reach of the legislature and I am therefore prepared to accept his amendment." The amendment was accepted. The Vice President said twice that the amendment was accepted. But then, the question was raised and ultimately this was negatived.
I am submitting this to prove that as a matter of fact, this Drafting Committee which we have appointed, which should have carried out the will of this House, has failed to do so. It has succumbed to extraneous influences from other authorities. I think that so far as this House is concerned, the Drafting Committee should have carried out the behest of this House. Dr. Ambedkar should have been allowed to have his own way. Dr. Ambedkar agrees that this is a useful provision. Yet, now, he is not prepared to accept my humble amendment to this very effect. What is the position? The position is,.that the win of the Members of this House is not being implemented- by this Drafting Committee. I do not want to read from the speeches of Dr. Ambedkar and Mr. Munshi who also was of this view. He gave very good reasons : I have taken my cue from those gentlemen: they are not my arguments; they are arguments proceeding from those gentlemen. I am very sorry that these gentlemen have had to succumb to pressure from other places. My humble submission is that so far as this amendment is concerned this is one which has been accepted by this House and I beg of Dr. Ambedkar to rise to the occasion and accept at least this amendment. He would have known fully well. if he had Practised as a criminal lawyer in the mofussil, that as a matter of fact, when houses are searched, it is not the search which we object to, but property is sometimes planted and then searches are made in the presence of witnesses who are procured by the police. The House must remember that at least in 50 per cent. of the criminal cases brought before the courts the accused are either discharged or acquitted. The House can see what amount of corruption, what amount of embarrasment and harassment is being caused to the public, on account of this corrupt and incompetent police.I know when we say this we are, condemning ourselves I do not take any pride in saying that the police is so bad. But we have just started reforming them after 200 years of slavery and it may take some time to change. If we continue to have the Cabinet which we have got now for some years more, I think things will improve. But, we must take stock of things as they are. We cannot be complacent that everything is being done rightly. May I humbly submit, Sir, I do not want to paint a gruesome picture, in the present circumstances of the country. But there is no doubt there is great corruption, there is great tyranny and there are no civil liberties in this country. Our ministers at the helm of affairs are not fully aware of the situation. May I tell you, Sir, what happened in Delhi to the refugees ? Without any law, police robbed the people of their goods, and broke up their stalls. There was no law; When asked under what law this was being done, the reply was that this was done under executive orders of the Cabinet. Now, my humble submission is that unless there is a reign of law in this country wherein no situation like the one in which we find ourselves will arise, the liberty that we have won is not worth the paper on which it is written.
What is the fifth right I claim ? I claim if there is a conviction, if a person is sent to imprisonment, at least you provide him with one appeal. Now it was after great fight and after you yourself took some interest in the affair that we were able to put in a clause relating to Federal Court that in cases of persons who are for the first time sentenced by the High Courts to death, in those cases an appeal was allowed; but even then if the High Court in its wisdom wants to sentence the accused to transportation for life, even though this is the first conviction, there is no appeal. My submission is that in every civilised country the judgment of one man is not given the power whereby he can put a person in imprisonment of transportation. I therefore want a very simple provision that every person when he is convicted or sentenced to imprisonment must have one right of appeal. Is it extravagant that at least when the liberties of the people are taken away, they will have at least one appeal.
Similarly when you go to the other question about speedy trial, what are the functions of Government ? Justice delayed is justice denied and I need not emphasize it. I am not one of those who want abstract rights-I am not one of those who are opposed to social control in the interest of the community but I do want that personal liberty may be secured to the individual in a full measure. My submission is that we must have the ordinary rights which have been enjoyed by every civilized country.
I now come to the second part of the provision and that is relating to preventive detention. There was a time when detention without trial was regarded as a very heinous offence by itself when every person said that no person should be detained without being tried. Now fortunately or unfortunately the time has come and in every civilised country we have a law about preventive detention. I do not want that my country must not have the safeguard; on the contrary I have always stood for having a law about preventive detention and I am glad that we are going to have clause (4). At the same time I want that the preventive detention may be regulated by law. I want that at least the barest demands of justice be secured to a person who is a detainee. After all every accused person before trial is presumed to be innocent, and similarly 'a detainee who is not even tried is presumed to be innocent. Therefore no unnecessary restriction may be put upon him and be may not be put to bard labour unless for wilful disobedience to lawful order or infraction of jail rules. Therefore I suggest that so far as these persons are concerned, they may not be put to unnecessary hardship or restriction-,.Now I am not satisfied that three months period is the right period which has been prescribed by Dr. Ambedkar. In ordinary cases we give fifteen days to Police for preparing the case. In cases of this nature' when a case is prepared for this impartial tribunal, then according to me one month is quite sufficient. Taking the exigencies of the time I submit that before two months are over an order should be obtained from an impartial tribunal and not from a board. I want to use those words which a year and a halt ago Dr. Ambedkar himself used, I am reading from the proposed draft of Dr. Ambedkar which he presented before the committee appointed to consider the question of Due Process. At that time the draft had these words :-
you call it Board and I call it Impartial Tribunal. If you call it an 'Impartial Tribunals, unconciously it gives the persons concerned an idea that it is an impartial tribunal. I want that this Board must be armed with the powers of examining the detainee. I regard it as one of the most salutary and one of the most elementary principles of justice.
We passed the other day an article that if a civil servant-if he was going to be reduced in rank or removed or dismissed, he must be given an opportunity of showing cause. Now this man whose liberty is taken away will not have such liberty of showing cause. Dr. Bakshi Tek Chand just showed me one of the laws of the Government of Madras which says that in a situation like this the Madras Legislature has in its wisdom sought to impose a restriction on the powers of the Executive that they must give the detainee the grounds for which he is detained and ask him his explanation of the same. When Dr. Ambedkar moved it he. said probably this power may be given to that Board. My submission is I do not want to stand on formalities. I want in our Constitution we must place it that every person who has been detained shall be given an opportunity before a tribunal to explain his conduct and- evidence against him and know the sources and the subject matter of evidence against him. He may be able to explain his conduct. I beg that this clause should be considered from this point of view. I want that this Board may be given the power of summary enquiry and examination of the detainee.
Now with regard to the ultimate period my humble submission is that in India the anticipation of life is said to be only 23 years and one year is certainly not a very short period because after that if the police is not able to secure evidence within that year and place before the Court, then I would imagine the evidence on which he is sought to be retained is not worth the paper on which it is written. Therefore this period may be taken to be one year.
I want these three amendments in this clause and I would be satisfied. My difficulty is if we pass these clauses as they appear in the amendment then we cannot touch this period of 3 months. This will become absolute and we cannot say in the coming law under clause (4) that the three months may be reduced to two months. In fairness the Executive has to account for every minute of the detention of such persons. It is in the laws of every country that no police officer is authorised to keep a person detained for a moment longer than is absolutely necessary and three months even is an unconscionably long period. I would like to reduce it further, but I would not go further than two months. Therefore, so far as these provisions are, concerned, they should at least be reframed in such a way that these amendments are incorporated and 'these rights are secured to the citizens of this country.Mr. Naziruddin Ahmad: Mr. President, Sir, I beg to move:
I also move :
I also move :
Shri Mahavir Tyagi (United Provinces: General) : Then, with what will the Member connect the word "nor" occurring there ?
Mr. Naziruddin Ahmad: It is not bad English, it is just good idiom. If it does not sound well to the musical ears of Mr. Tyagi, we may leave it to the Drafting Committee to cure it. Now, Sir, I do not wish to go over the general ground so ably and elaborately covered by my honourable Friend, Pandit Thakur Das Bhargava. He speaks with unique authority and experience and he speaks with the fervour of a real patriot and he has had ample experience as a criminal lawyer, of the vagaries of the police. And he is now not a practising lawyer and therefore he looks on these questions with considerable amount of knowledge and detachment which ought to be respected in the House.
I shall confine myself to the three amendments which I have just moved. There is a difference between the original article moved and my amendment, to clause (1). In the original clause the words are that when a man is arrested, he should be informed, as soon as may be, of the grounds of such arrest. This leaves it entirely to the discretion of the man arresting another whether or not to give the arrested person the reasons or ground-, of his arrest, at once. It leaves him entirely free to give the reasons or not. He may give the reason later on, or rather invent a reason for the arrest, later on. My amendment says that the grounds and the reasons for his arrest shall be given at the time of the arrest, or as soon as practicable, thereafter. The point is that there should be no needless delay. If quickness in giving of the information is impracticable, then alone he may delay it momentarily. Even then, be must give the information as soon as possible. I shall give the House an example. It may be that a man who is to be arrested gets scent of it and runs, and the police officer chases him. In that circumstance, it would be impracticable on the part of the arresting officer just before the arrest, to give the arrested man the reasons for the arrest. He must first of. all, secure his body and must give the reason at the time, or as soon thereafter as practicable. All that I mean is that there should be no difficulty in giving the man arrested the reason for his arrest or the grounds for his arrest. The usual grounds for such arrests are that there is a credible or reasonable information against him that he has committed or is concerned with a cognizable crime or that from his demeanour or other circumstances, the officer arresting him has reasonable suspicion that be is connected with a cognizable crime or he is about to commit such a crime. These are the general nature of the circumstances in which an arrest is effected. Other circumstances are there is a warrant or summons against him or there is an order,by an appropriate authority for his arrest. These are circumstances which it is easy for the police officer to explain, though not immediately before the arrest or at the time of making the arrest, at least immediately after that.
The need for such a provision is this. Although there are similar provisions in the Criminal Procedure Code, we must insert fool-proof provisions in the Constitution so as to make it impossible for a Legislature to change those salutary provisions. Therefore it is very necessary that the Constitution should be particularly careful about limiting the authority of the police in effecting arrests. There is nothing lost, but much gained by telling the accused immediately after the arrest or at the time of arrest the reasons for his arrest.
With regard to the other amendment, I seek to delete sub-clause (b) of clause (3) and of course the proviso to clause (3) which is connected therewith. Sub-clause (b) is to this effect-that nothing in this article shall apply to any person who is arrested under any law providing for preventive detention. Sir, I fail to see the necessity for this. If a man is to be detained, as a preventive measure, there is nothing lost, there would be no danger, nothing inconvenient in just letting the man know that he is being arrested for preventive purposes under, the orders of a Magistrate or the orders of a superior officer or that there are such and such reasons against him. In fact, it is very necessary that a man arrested should be given the reasons for his arrest. And the obvious necessity for this is that unless the police officer is bound to give him the in-formation at once, he may make indiscriminate arrests as is often done. If he can arrest a person without any justifiable reason, he will then be free to invent some reasons later on.
With regard to proviso to clause (3), there are a large number of elaborate provisions and I submit that they are going into too much details of administration. As, to what should be done for a man who is under preventive detention should be left to the Legislature. If we go too much into details, the result of that would be that cases which we do not provide for would be rather doubtful. In these circumstances, I submit that these amendments which I have proposed should be attended to and if thought proper, their substance may be incorporated in the article.
Shrimati Purnima Banerji (United Provinces : General) : Sir, I move:
I further move:
I further move:
I also move :
Further it has been said that any detenu who has been put into jail shall be detained for three months till an Advisory Board decides whether he should be detained for a longer period. We feel that the detenu should be permitted to appear before this Advisory Board in person and state his case in full. We know the process how the person is detained. If a person is considered undesirable, the local Magistrates or the local authorities leave it to their subordinates to handle the situation and even to decide upon the situation, Then it happens that people in these situations have no manner or measure of relief because they are simply detained and not allowed to appear before any court and not told for the time being why they are being detained. Therefore we do feel that after being detained a detenu should have the right to appear before the Advisory Board in person before he is condemned or his detention is upheld. No facts regarding the detenu should ordinarily be withheld from the Advisory Board.
Thirdly, I have moved another amendment by which I say that if the Advisory Board should consider that such a person should be detained,' in no case should that period exceed six months. I am sure that within that period if sufficient evidence is found against the accused the proper course would be that he should be placed before a proper court or he should be released. Continuous detention from month to month without a person getting a chance of appearing, or considering himself, sufficiently defended, before a properly constituted Board is highly arbitrary.
Fourthly, whereas in our Constitution many provisions have been made as to how much salary one should draw, what allowance members of the House shall get, what shall be each one's position and status, if a person is detained in prison and if he is an earning member of the family I do earnestly plead that he should be given a maintenance allowance. It should not be left to the arbitrary will of any one to deprive anybody of his liberty and then later on to decide, by leaving it to their sweet will, as to how his dependents shall live and maintain themselves.
With these words I commend my amendments to the House.Dr. P. S. Deshmukh : Sir, there is more than one amendment standing in my name. I need not move amendment No. 103, but I would like to move Nos. 107 and 110.
I further move:
Sir, I would like to offer some observations of a general nature on this article. I do not share the vehemence which has actuated my honourable Friend, Pandit Thakur Das Bhargava, although the grounds that he has stated in the House really incline one to take extreme views. As has been remarked by the Honourable, Dr. Ambedkar himself, he had really anticipated the argument that there is nothing new in this article and that most of these provisions were really covered by those which are in existence in the Criminal Procedure Code. His point was to a certain extent elaborated by my honourable Friend, Pandit Thakur Das Bhargava, and it was pointed out that if this article was passed in the shape in which it has been placed before this House the situation would be worse than it is at present and there would be no improvement.
In addition to the sections which have been referred to by my Friend, Pandit Thakur Das Bhargava from the Criminal Procedure Code I would like to refer to section 81 also. He has referred to section 61 where it has been laid down that
So, the period of the detention; not to exceed beyond twenty-four hours, is already provided for in the Criminal Procedure Code. In addition to that we have got section 81, which is as follows:-
So, on comparing the provisions that exist in this Code of Criminal Procedure passed as early as 1898 with the provisions which we are seeking to make now, I was struck that a person like the Honourable Dr. Ambedkar could find anything new in it and these provisions which existed had been respected till we came into power more scrupulously than they have been of recent days. They were quite sufficient to protect the liberties of the people of this country I do not think. it can be said that there were very many cases in which these provisions in the Criminal Procedure Code were disrespected or violated. But the reason why we feel, the necessity of something being stated in the Constitution itself is, a reflection of the present day events, of what is happening,and the administration of law and justice in the Provinces, and probably through the Ordinances that we have promulgated and the legislations that we have passed in the Centre also.
So, the apprehension that the liberty of persons living in India will not be safe is not really based on the inadequacy of provisions existing in the Criminal Procedure Code. It arises from the fact that the provisions, which we had respected far more before, are not being respected today. I admit the fact that at the present moment we are not respecting the provisions which exist because there are many people who feel that the liberties or the rights given by the Code of Criminal Procedure or the penal laws of India are not such as can be enjoyed by people after freedom. I am quoting no less a person than Mr. K. M. Munshi who categorically stated in the Legislative Assembly that this Code of Criminal Procedure is out of date because people have got into the habit of committing offences and this Code which gives more liberties cannot be worked and is leading to many difficulties so far as the administration is concerned.
If that is the point of view, if that is the attitude, then article 15A cannot be much of a remedy. The present situation is certainly most obnoxious. We know of instances in every Province where people's liberties are taken away. I will give a most poignant instance which should make every Member of the House sit up,and think. Two M.L.As. who were in Congress for eighteen years, who were elected on the Congress ticket, were detained by an order of the Bombay Government which is a Congress Government. One of them was released after a period of eleven months without being told at any time what the charges against him were, without there being any trial, without conviction; when his health was about to break down the Government was pleased to release him. The second M.L.A. is still in jail; he has not been tried, he has never been told what the allegation against him is, what offence he has committed; and to add insult to injury he has been told that because he has not attended the Legislative Assembly for a certain minimum period at laid down by the law, he ceases to be an M.L.A. of that Province. A person has been prevented from attending the Assembly because of an act of the Government and that has been made as a ground for ousting him from the membership of the Legislative Assembly. That I think is the height of disrespect for law. If that is the respect for law that we have, if that is the sort of administration that is going on in the Provinces and we are not to look into it or question their propriety, I do not think any provision in the Fundamental Rights would be of any use to us.
If you want to prevent this sort of thing happening, you will have to' go ,much farther than you are prepared to go in this article. This article can be no remedy; it is a mere repetition of what exists in the Code of Criminal Procedure and if you are not prepared to respect that Code I am sure there will not be much respect given to this provision either. As was pointed out by my Friend, Pandit Thakur Das Bhargava you are going to put in obstacles in the way of Parliament in enlarging the rights of the individuals; by the inclusion of sub-clause (3) you are going to lay down a procedure for all cases of preventive detention. If tomorrow the Legislature of a State or even the Parliament wishes to deal with the preventive detenus in a more liberal manner, they will be prevented from doing so by the fact that there is a provision in the Constitution which is of a fundamental nature and which cannot be altered by the Parliament. Therefore , this provision is absolutely useless. It does not protect the individual in any way to any greater extent than does the Code of Criminal Procedure. ifyou think that the Code of Criminal Procedure ought to be respected by the Provinces or by any individual who goes against it, there shall be some provision by which this evil can be prevented. But this is not the way in which it can be done. That is my humble opinion.
At any rate, if this article must be there, I have given so far as clause (2), is concerned my shorter draft of it. Of course, it is only in the nature of a drafting amendment, but I would like to support my Friend Mr. Naziruddin Ahmad and commend the omission of at least sub-paragraph (b) of clause (3) of this article, that is to say, the provision which will fetter the discretion of the future Parliament so far' as laying down the procedure for the release of the preventive detenus is concerned. This provision would be curtailing the rights of the individual and not enlarging them and I for one agree that there is much to be done so far as this abuse of law is concerned. My Friend Pandit Thakur Das Bhargava admitted that this autocracy is in our blood and it is showing signs everywhere. There have been shooting cases, there have been lathi charges and there has been no attempt whatsoever to investigate into the causes to look into the grievances of the people. The rule of unlawfulness, the want of the rule of law, is so rampant in the whole of India that it is likely to recoil upon the heads of all of us one of these days. The people are. getting tired, and if you feel that this Government is not popular there are very many reasons for that, but unfortunately nobody is paying any attention to it. If this is the way in which we want to pay attention to these facts,- then I would beg of my Honourable Friend Dr. Ambedkar to provide a remedy which Will be a real remedy and not something which will be merely taking away what exists. In fact, if there is not going to be any stringent provision, I would be more content to leave the thing as it is, under article 15. It would be much better not to have this article 15A at all than have it in this particular shape.
I appeal to you, Sir, that the situation is grave; our respect for law is certainly decreasing. We are ruling our people in a manner much less generous than the aliens did; if these rights that were conferred by the alien rulers upon the people of India as early as 1898, which continued though with very many violations throughout this period of fifty years, are not at all respected, if you want to respect them, if you want to safeguard the freedom of the people and their liberty, there should be a more radical provision in the Constitution than what has been proposed.
Shri H. V. Kamath (C.P. & Berar : General): Mr. President, it was refreshing to hear Dr. Amedkar make a confession of faith. He expressed his dissatisfaction with article IS as adopted by this Assembly. and said that he was trying through this new article 15A to undo the harm that might accrue from the operation of article 15 as it stands. He commended this new article to the House in accordance with the age-old maxim