CONSTITUENT ASSEMBLY OF INDIA - VOLUME VII Monday, the 6th December 1948 Mr. Vice-President: The question is:
"That the following proviso be added to clause (1) ofarticle 19:--
"Provided that no propaganda in favour of any onereligion which is calculated to result in change of faith bythe individuals affected, shall be allowed in any school orcollege or other educational institution, in any hospitalasylum or in any other place or institution where persons ofa tender age, or of unsound mind or body are liable to beexposed to undue influence from their teachers, nurses orphysicians, keepers or guardians or any other person set in author ity above them, and which is maintained whollyor partially from public revenues, or is in any way aided orprotected by the Government of the Union, or of any State orpublic author ity therein."
The amendment was negatived.
Mr. Vice-President: The question is:
"That in the Explanation to clause (1) of article 19,for the word `progession' the word `practice' be substituted."
The Honourable Shri Ghanshyam Singh Gupta: (C. P. &Berar: General): Sir, I wish to withdraw the amendment.
The amendment was, by leave of the Assembly, withdrawn.
Mr. Vice-President: The question is:
"That at the end of Explanation to clause (1) ofarticle 19, the words 'and for the matter of that any otherreligion' be inserted."
The amendment was adopted.
Mr. Vice-President: The question is:
"That after clause (1) of article 19, the following newsub-clause be added:--
"(2) The State shall not establish, endow or patronizeany particular religion. Nothing shall however prevent theState from imparting spiritual training or instruction to the citizens of the Union."
The amendment was negatived.
Mr. Vice-President: The question is:
"That in article 19, the following be inserted asclause (1a):--
"(1a) The Indian Republic shall make no law respectingan establishment of religion or prohibiting the freeexercise thereof."
The amendment was negatived.
Mr. Vice-President: The question is:
"That in clause (2) of article 19, for the word"preclude" the word "prevent" be substituted."
The amendment was adopted.
Mr. Vice-President: The question is:
"That in sub-clause (a) of clause (2) of article 19,for the words "regulating or restricting any economic,financial, political or other secular activity" the words"regulating, restricting or prohibiting any economic,financial, political or other secular activity" be substituted."
The amendment was negatived.
Mr. Vice-President: The question is:
"That in sub-clause (b) of clause (2) of article 19,after the words 'or throwing open to Hindu' the words 'Jain,Buddhist or Christian' be added."
The amendment was negatived.
Mr. Vice-President: The question is:
"That in sub-clause (b) of clause (2) of article 19 for the words "any class or section" the words 'all classes andsections' be substituted."
Have you accepted it, Dr. Ambedkar?
The Honourable Dr. B. R. Ambedkar: Yes, Sir.
Mr. Vice-President: The amendment has been accepted byDr. Ambedkar.
The amendment was adopted.
Mr. Vice-President: The question is:
"That after clause 2, of article 19, the following newclause be added:--
"(3) Nothing in clause (2) of this article shall affectthe right of any citizen to follow the personal law of thegroup or the community to which he belongs or professes to belong'.
The amendment was negatived.
Mr. Vice-President: I shall now put article 19, asamendment by amendment numbers 596 and 609 to vote. Thequestion is:
"That article 19, as amended, from part of theConsitution."
The motion was adopted.
Article 19, as amended, was added to the Constitution.
Mr. Vice-President: We shall go back to Article 14. Sofar as I remember --I am sorry I have mislaid my notes--inarticle 14 there were a number of amendments which were putto the vote one after the other, and that only twoamendments were being considered, when, for reasons alreadyknown to the House, we postponed their consideration. Onewas amendment No. 512 moved by Kazi Syed Karimuddin, and theother was a suggestion--am I right in saying that it was asuggestion made by Mr. T. T. Krishnamachari? Mr. T. T.Krishnamachari, will you please enlighten me? Was it asuggestion or was it a short notice amendment?
Shri T. T. Krishnamachari: It was a short noticeamendment.
Mr. Vice-President: It was a short notice amendmentadmitted by me. These two only remained to be put to the vote.
Mr. Naziruddin Ahmad: With regard to amendment No. 512I have a point of order, Mr. Vice-President.
You will be pleased to remember, Sir, that amendmentNo. 512 was moved in the House. It was accepted by Dr.Ambedkar and then it was put to the vote. The shoutsaccording to your estimate were in favour of its acceptance.Then some trouble arose and then shouts were again called.The shouts according to your estimate were again in favourof the amendment. What is very important in this connection,Sir, is that you declared the amendment to be carried.
Mr. Vice-President: Did I declare the amendment to becarried?
Mr. Naziruddin Ahmad: Yes, Sir. I remember.
Mr. Vice-President: Do the records show that?
Mr. Naziruddin Ahmad: The shorthand notes may bereferred to. My recollection is it was declared carried(Interruption).
Mr. Vice-President: Kindly, in order to preserve thediginity of the House, do not interrupt Mr. Naziruddin Ahmadonly because he is putting forward a point of view which maynot be agreeable to a certain section of the House.
(To Mr. Naziruddin Ahmed) Kindly confine your remarksto the business on hand.
Mr. Naziruddin Ahmad: Sir, I do not wish to obstructthe major ity in dealing with this amendment in any way theyplease. I simply suggest that if it is carried, it cannot beput again. It is against the Rules. But I have a way out,which I shall suggest and which will be constitutional.There is a rule, in our Rules, that with the consent oftwenty five per cent of the Members of the House, anyresolution that has been carried may be re-opened. Isuggest, Sir, that if I am right that it was declared to becarried, then, it should be re-opened in the regularconstitutional manner.
Mr. Vice-President: The official records of thedeliberations read this way.
"Just before the voting was called, however, ShriMahavir Tyagi made a suggestion, which was later supportedby the Prime Minister, that the voting on this particular amendment be postponed as there appeared to be someconfusion as to the full implications of this provision. TheHouse agreed to the suggestion and voting on this amendmentand on the article as a whole was accordingly postponed."
That shows that your whole objection falls to theground.
(Mr. Naziruddin Ahmad rose to speak.) Please do not argue.
I want to make certain other things clear to the House.I want to make clear the point of view from which I regardthis. As I have said already, the House is the ultimateauthor ity in this as in all matters. The House has laid downcertain Rules for the conduct of the business. These Ruleshave been laid down mainly because the aim of the House isthat the work should proceed smoothly. The smooth working of the House I regard as the really essential thing, and muchmore important than sticking to the Rules which the Househas made and which the House can un-make at any time. Whenthere was this confusion, to use the language of Mr.Naziruddin Ahmad, I made a reference to the House and theHouse agreed that the matter should be reconsidered. TheHouse is fully competent to do so and if the House is stillof that view, then the matter will be considered here and now.
Maulana Hasrat Mohani: (United Provinces: Muslim): MayI know, Sir, whether the House has reconsidered or whetherit is a mandate from the Congress Party who has issued awhip that it should be opposed? Do you decide to allow theHouse to reconsider or is it only a mandate from theCongress Party? I have got a copy of that whip in my hand,that this must be opposed.
Shri Mahavir Tyagi: (United Provinces: General): Sir, Iprotest against the language used and the honourableMember's referring to the whip of the Congress Party.
Mr. Vice-President: You have done your duty as aCongress man; now I shall do my duty as the presidingofficer here.
Maulana Hasrat Mohani: Sir, I stick to what I havesaid.
Mr. Vice-President: I am sorry.....................
Shri Mahavir Tyagi: Will you please ask him to giveback the whip, which the honourable Member has no right tohandle?
Mr. Vice-President: You are always the stormy petrel.While I am trying to bring peace and good humour you areinterfering. I will not allow you to do so again.
As I was saying, I am very sorry that an old andexperienced public man like Maulana Hasrat Mohani shouldhave permitted himself to make references to things which are no concern of this House. As I have said more than once,though I belong to a particular political party, so long asI am in the Chair, I recognise no party at all. It is inthat spirit that proceedings of this House are beingconducted. I regret very much that anything should have beensaid challenging the way in which the proceedings have beenconducted or are going to be conducted.
I ask the permission of the House once again as towhether I can re-open the matter.
Honourable Members: Yes.
Mr. Vice-President: Thank you. I am going to putamendment No. 512 to the vote.
The Honourable Shri Ghanshyam Singh Gupta: Sir, thereis no question of re-opening. You had not finally said thatthe amendment was carried or was not carried. I want toimpress upon the House that the Chair had not declared thatit was either carried or it was not carried and thereforethere is no question of re-opening at all. The matter isabsolutely in the discretion of the Chair now. The Rules arequite clear. A vote is taken. Once it is challenged. thedivision bell rings. After the division bell rings, the Chair again puts it to the vote and then sendsAyes and Noes to the lobbies. The Teller counts the votesand after that, it is declared that a certain motion is lostor is carried. This was not done at all. In fact, it was in the process of declaration by the Chair that the motion isor is not carried that the Chair was pleased to say thatthis thing stands over. Anybody who says that the Chairfinally declared that that motion was carried or lost is wrong.
Mr. Vice-President: It merely shows the depth of myignorance. I used the word which should not have been used.I used the word `reopen'. I am glad that the matter has beenset right. I only wish that I had sufficient--what shall Isay--ability to act in the way in which the Honourable Mr.Gupta has done. I now put amendment No. 512 to vote.
The question is:
"That in article 14, the following be added as clause(4):--
"(4) The right of the people to be secure in theirpersons, houses, papers and effects against unreasonablesearches and seizures shall not be violated and no warrantsshall issue but upon probable cause supported by oath oraffirmation and particularly describing the place to besearched and the persons or things to be seized."
The amendment was negatived.
Mr. Vice-President: We come to Mr. Krishnamachari'samendment which was accepted by Dr. Ambedkar.
Shri H. V. Kamath: Is it necessary to say that Dr.Ambedkar has accepted or rejected everytime?
Mr. Vice-President: Sometimes it is necessary. Notalways. I now put the amendment to vote.
The question is:
"That in clame 2 of article 14 after the word `shallbe' the words `prosecuted and' be inserted."
The amendment was adopted.
Mr. Vice-President: Now the question is:
"That article 14, as amended, stand part of the Constitution."
The motion was adopted.
Article 14, as amended was added to the Constitution.
Article 15 Mr. Vice-President: Now the motion before the House is:that article 15 form part of the Constitution.
We shall go over the amendments one after another. 515is ruled out of order. Nos. 516, 517, 518 and 532 aresimilar and of these I can allow 516 to be moved as also 517both standing in the name of Shri Brajeshwar Prasad.
Shri Brajeshwar Prasad: (Bihar: General): Sir, I am notmoving 516 and 517.
(Amendments Nos. 518, 532, 519 and 520 were not moved.) Mr. Vice-President: No. 521 is blocked. Then 522, 523,524, 525, 528 and 530 are similar. I can allow 523 to be moved.
Kazi Syed Karimuddin (C.P. & Berar: Muslim): Mr. Vice-President, Sir, if the proposed amendment by the Drafting Committee is accepted and the article is allowed to stand as it is:--
"No person shall be deprived of his life or personalliberty except according to procedure established by law........".then in my opinion, it will open a sad chapter in thehistory of constitutional law. Sir, the Advisory Committeeon Fundamental Rights appointed by the Constituent Assemblyhad suggested that no person shall be deprived of his lifeor liberty without due process of law; and I really do notunderstand how the words "personal" and "according to procedure established bylaw" have been brought into article 15 by the Drafting Committee.
Shri Lakshmi Kanta Maitra: Sir, is the honourableMember moving his amendment or not?
Mr. Vice-President: In order to meet the requirementsof technicalities, please move your amendment first.
Kazi Syed Karimuddin: Sir, I beg to move-
"That in article 15, for the words "No person shall bedeprived of his life or personal liberty except according toprocedure established by law" the words "No person shall bedeprived of his life or liberty without due process of law"be substituted.
Continuing my arguments Sir, if the words "according toprocedure established by law" are enacted, there will bevery great injustice to the law courts in the country,because as soon as a procedure according to law is compliedwith by a court, there will be an end to the duties of thecourt and if the court is satisfied that the procedure hasbeen complied with, then the judges cannot interfere withany law which might have been capricious, unjust oriniquitous. The clause, as it stands, can do great mischiefin a country which is the storm centre of political partiesand where discipline is unknown. Sir, let us guarantee toindividuals inalienable rights in such a way that thepolitical parties that come into power cannot extend theirjurisdiction in curtailing and invading the Fundamental rights laid down in this Constitution.
Sir, there is an instance in the AmericanConstitutional law in a case reported, Chambers vs. Floridawhere an act was challenged in a court of law on the groundthat the law was not sound and that it was capricious andunjust. Therefore, my submission is that if the words"according to procedure established by law" are kept then itwill not be open to the courts to look into the injustice ofa law or into a capricious provision in a law. As soon asthe procedure is complied with, there will be an end toeverything and the judges will be only spectators.Therefore, my submission is, first, that the words, "exceptaccording to procedure established by law" be deleted, and then that the words "without due process of law" be inserted.
Sir, actually I had sent two amendments, one about theword "personal" before the words `liberty', and the otherabout substitution of the words "without due process of law"for the words "except according to procedure established bylaw". But somehow or other, these two amendments have beenconsolidated, and I am required to move one amendment. Evenif my amendment about "personal liberty" is not accepted bythe Drafting Committee or Dr. Ambedkar, I do not mind; butthe second portion of my amendment should be accepted.
(Amendment No. 524 was not moved.) Mr. Vice-President: Amendment No. 525. Mr. NaziruddinAhmad. Do you want to press it?
Mr. Naziruddin Ahmad: Sir, there is a printing mistakewhich I want to point out.
Mr. Vice-President: All right. Then we come to No. 528standing in the names of Shri Upendranath Barman, ShriDamodar Swarup Seth and Shri S. V. Krishnamurthy Rao.
Kazi Syed Karimuddin: Sir, I have to raise a point oforder here. I said in my speech that I have tabled twoseparate amendments, one regarding the word `personal' and the other regarding `due process of law'. Both theseamendments have been consolidated by mistake of theSecretariat. So I have had to move the second part of myamendment. But then, according to the list supplied to us,No. 528 has been bracketted with No. 523-that is my amendment. I have moved mine, and so No. 528 cannot be movednow, but only put to vote, according to the practicefollowed in this House.
Mr. Vice-President: All right. We need not move No.528.
Shri S. V. Krishnamurthy Rao (Mysore): But there is adifference, in that in No. 528 there is no reference to theword `personal', whereas No. 523 refers to deletion of thisword.
Mr. Vice-President: But they are of similar import andI have already given my decision. We shall put No. 528 tovote.
Then No. 530 in the name of Mr. Z. H. Lari. Do you wantit to be put to the vote?
Mr. Z. H. Lari: (United Provinces: Muslim): Yes, Sir.
Mr. Vice-President: Then in my list come No. 524,second part, No. 526 and No.
527. These are almost the same.No. 526 may be moved.
Mahboob Ali Baig Sahib Bahadur (Madras: General): Sir,I beg to move:
"That in article 15 for the words "except according toprocedure established by law" the words, "save in accordancewith law" be substituted."
In the note given by the Drafting Committee, it isstated that they made two changes from the proposition orarticle passed by this Assembly in the month of August,April or May of 1947. The first is the insertion of the word`personal' before liberty, and the reason given is thatunless this word `personal' finds a place there, the clausemay be construed very widely so as to include even thefreedoms already dealt with in article 13.
That is the reason given for the addition of the word`personal'. As regards why the original words "without dueprocess of law" were omitted and the present words "exceptaccording to procedure established by law" are inserted, thereason is stated to be that the expression is more definiteand such a provision finds place in article 31 of theJapanese Constitution of 1946. I will try to confine myselfto the second change.
It is no doubt true that in the Japanese Constitutionarticle 31 reads like this but if the other articles thatfind place in the Japanese Constitution (viz., articles 32,34 and 35) had also been incorporated in this Draft Constitution that would have been a complete safeguarding of the personal liberty of the citizen. This Draft Constitutionhas conveniently omitted those provisions.
Article 32 of the Japanese Constitution provides that"no person shall be denied the right of access to thecourt." According to the present expression it may be arguedthat the legislature might pass a law that a person will have no right to go to a court of law to establish his innocence. But according to the Japanese Constitutionarticle 32 clearly says that "no person shall be denied theright of access to the court". Is there such a correspondingprovision in this Draft Constitution? That is the question.It does not find any place at all.
Article 34 of the Japanese Constitution provides that"no person shall be arrested or detained without being atonce informed of the charges against him or without theimmediate privilege of counsel, nor shall be detainedwithout adequate cause and upon demand of any such personsuch cause should be immediately shown in open court in hispresence and in the presence of his counsel." Such a clearright has not been given in these draft provisions.
Further, article 35 provides that the right of allpersons to be secured in their homes and against entry,searches, etc. shall not be impaired, except upon warrantissued only for probable cause and so on. If for the sake ofclarity and definiteness you have imported into this Draft Constitution article 31 of the Japanese Constitution youshould in fairness have incorporated the other articles of the Japanese Constitution, which arerelevant and which were enacted for safeguarding thepersonal liberty of the honest citizen. May I ask theDrafting Committee through its Chairman whether it is clearfrom this constitution that a man who has been arrested anddetained has got the right to resort to a court and provehis innocence? It may be said that the expression "exceptaccording to procedure established by law" covers the pointbut the expression means "procedure established by law" of the legislature and it will competent for the legislature tolay down a provision that in the matter of detention ofpersons whether for political or other reasons, thejurisdiction of the courts is ousted. We know the decisionsof the High Courts of India, especially of Madras and someother High Courts, where it has been laid down by thesecourts that it is open to the legislature to say that thecourts shall not interfere with the action taken by theGovernment in the case of certain citizens whom theyconsider to be committing an offence or about to commit anoffence or are likely to commit an offence. It is not opento the court to go into the merits or demerits of thegrounds on which a person has been detained. The only extentto which the courts can go is to find out whether there isbona fides or mala fides for the action of the Government,and the burden is laid upon the person to prove that thereis mala fides on the part of the Government in having issueda warrant of detention or arrest. Therefore the words"except according to procedure aid down by law" would mean,and according to me it does mean, that the futurelegislature might pass a law by which the right of a citizento be tried by a court to establish his innocence could betaken away. I do not by this mean to convey that undercertain circumstances it may not be necessary for Governmentto prevent a persons from committing an offence and to takethe precaution of arresting him and thus prevent him fromcommitting an offence. But I submit that there must be theright of the citizen to go to a court to prove that theground on which he has been arrested is wrong and he is innocent. That is the elementary right of the citizen asagainst the executive which might be clothed with power by aparty legislature which might pass a law saying that theexecutive is empowered to take away the liberty of a personunder certain circumstances and he will have no right to goto court and prove his innocence. If the framers of theDraft Constitution are able to tell us that these words"except according to procedure established by law" do notdeprive a person of his right to go before the court andestablish his innocence and he is not prevented from such acourse, then it will be another matter. But we mustunderstand that the words "without due process of law" havebeen held in England and other countries to convey themeaning that every citizen has got the right, when an actionhas been taken against him depriving him of his personalliberty, to go before the court and say that he is innocent.That right is given under the expression "without dueprocess of law" or "save in accordance with law". In England the law of the land does not deprive a man of thisfundamental and elementary right. All laws that may be madeare subject to the relevant principle that no man shall beconvicted and no man shall be deprived of his libertywithout a chance being given to him to prove that he is innocent. Therefore it must be a law, as I have submitted,which will hear him before it condemns a man.
The only reason which has been advanced in the footnoteis that this is more definite and that it finds a place in the Japanese Constitution. As I have already stated, let usnot sacrifice the liberty of the subject to prove his innocence, by resorting to the provisions of the JapaneseAct and not complete that right of the citizen to be tried-that liberty-by omitting the other provisions of theJapanese Act. I shall be satisfied if all the provisions of the Japanese Constitution find a place here. because the other provisions clearly state that no person can be deprived of his libertywithout his being given the chance to go to court and allassistance given to him. I therefore object to the words"except according to procedure established by law." If byany other method which may be said to be definite provisionthey can ensure that the citizen cannot be condemned withoutbeing heard by a court, I shall be satisfied. That is myreason for moving this amendment.
Mr. Vice-President: Amendments Nos. 529 and 531 aredisallowed as verbal amendments.
(Amendment No. 533 was not moved.) We can now proceed with the general discussion onarticle 15.
Pandit Thakur Dass Bhargava (East Punjab: General):Sir, I sent an amendment No. 525, which I wanted to amend byamendment No. 9 on List No. 1 (Third week). This andamendment No. 528 are the same. The amendment which has beenmoved by Mr. Karimuddin differs from these in so far as thatthe word "personal" before the word "liberty" does notappear in his amendment. I am opposed to the amendment ofMr. Karimuddin. The section as it is, with this amendmentnamely the substitution of the words "without due process oflaw" for the words "except according to procedureestablished by law" is the one which I wish to support.
In this connection the first question that arises iswhat is the meaning of the word `law'? According to thegeneral connotation of the word, so widely accepted and theconnotation which has been given to this word by Austin, lawmeans an Act enacted by the legislatures whereas I submit that when Dicey used his words "law of the land" he meantlaw in another meaning.
Similarly, when the Japanese Constitution and otherConstitutions used this word in the broad sense they meantto convey by the word `law' universal principles of justice etc. According to the present section procedure is heldsacrosanct whereas the word `law' really connotes bothprocedural law as well as substantive law. I have used theword `law' in the general sense. Though these words "withoutdue process of law" which are sought to be substituted for the words in the section have not been defined anywhere,their meanings and implications should be understood fully.By using these words "without due process of law" we wantthat the courts may be authorised to go into the question of the substantive law as well as procedural law. When anenactment is enacted, according to the amendment nowproposed to be passed by this House, the courts will havethe right to go into the question whether a particular law enacted by parliament is just or not, whether it is good ornot, whether as a matter of fact it protects the libertiesof the people or not. If the Supreme Court comes to theconclusion that it is unconstitutional, that the law isunreasonable or unjust, then in that case the courts willhold the law to be such and that law will not have anyfurther effect.
As regards procedure also, if any legislature takes itinto its head to divest itself of the ordinary rights ofhaving a good procedural law in this country, to that extentthe court will be entitled to say whether the procedure isjust or not. This is within the meaning of the word `law asit is used in this amendment and as it is generally used.The word `law' has also not been defined in thisConstitution. For the purpose of article 8 the word `law'has been defined. Otherwise it has not been defined. I wouldtherefore submit that if the words as used in the sectionremained, namely `procedure established by law', we will have to find out what is the meaning of the word `law'.These words would remain vague and it will result inmisconceptions and misconstructions. Therefore, unless anduntil we understand the meaning of "due process of law" we will not be doing justice to the amendment proposed. I therefore want to suggest that the words "due process of law" without being defined convey tous a sense as used in the American law as opposed to otherlaws. What will be the effect of this change? To illustratethis I would refer the House to Act XIV of 1908 called theBlack Law under which thousands, if not hundreds ofthousands of Congressmen were sent to jail. According to ActXIV of 1908 the Government took to themselves the powers ofdeclaring any organisation illegal by the mere fact thatthey passed a notification to that effect. This Act, whenpassed, was condemned by the whole of India. But theGovernment of the day enacted it in the teeth of fullopposition. When the non-co-operation movement began it wascivil disobedience of this law with which the Congressfought its battle. The Courts could not hold that thenotification of the Government was wrong. The courts werenot competent to hold that any organisation or associationof persons was legal though its objects were legal. Theobjects of the Congress were peaceful. They wanted to attainself-government but by peaceful and legitimate means. Allthe same, since the Government had notified, the courts werehelpless. This legislation demonstrates the need of thepowers of "due process."
Similarly I will give another illustration, and that isSection 26 of the Defence of India Act. We know that theFederal Court held this Section to be illegal and a newOrdinance had to be issued. Unless and until therefore youinvest the court with such power and make this Section 15really justiciable there is no guarantee that we will enjoythe freedoms that the Constitution wants to confer upon us.
The House has already accepted the word "reasonable" inarticle 13. At least 70 per cent. of the Acts which canevolve personal liberty have now come under the jurisdictionof the courts, and the courts are competent to pronounce anopinion on such laws, whether they are reasonable or not.The House is now estopped from adopting another principle.In regard to personal property and life the question is muchmore important. So far as the question of life and personalliberty are concerned they must be also under the categoryof subjects which are within the jurisdiction of the courts.
Therefore it is quite necessary that the House shouldaccept this amendment. There are two ways, as suggested bythe previous speakers: either you must put all the sectionsas in the Japanese Constitution, and we should pass many of the amendments tabled by Messrs. Lari and Karimuddin one ofwhich you were pleased to declare carried in the firstinstance and which was later declared lost. They seek tointroduce into the Constitution principles which the legislature will in future be unable to contravene. Allthose amendments regarding Fundamental Rights will becarried ipso facto if this one amendment of "due process" isaccepted. Another thing which will be achieved by theacceptance of this one amendment is a recognition in thisConstitution of the real genius of the people. In the olddays we have heard of seven or eight Rishis, all very piousand intelligent people, holding real power in the land. To them, well versed in the Shastras, the ministers and theancient kings went for advice. Those Rishis controlled thewhole field of administration. This old ideal willpractically be achieved if the full bench of the Supreme Court Judges well versed in law and procedure and possessingconcentrated wisdom had the final say in regard to peoples'rights.
Mr. Vice-President: The honourable Member's time is up.
Pandit Thakur Dass Bhargava: I have to say many thingsmore, Sir. I know the argument against this amendment isthat these words `due process of law' are not certain orclear. But may I know what is the exact meaning of the word `morality' put in this Constitution.
Mr. Vice-President: I ask the indulgence of thehonourable Member. I intimated to him twice that he hasexhausted his time. I have half a dozen notes from peoplecompetent to speak on this point. I am quite certain that it is not the wish of the honourable Member to curtail the timewhich I can allow them.
Pandit Thakur Dass Bhargava: I do not want to curtailthe time of the others.
Mr. Vice-President: Then you may have two minutes more.
Pandit Thakur Dass Bhargava: Thank you, Sir.
Shri Upendranath Barman: (West Bengal: General): May Isay a few words at this stage, Sir?
Mr. Vice-President: I am sorry I cannot oblige thehonourable Member.
Pandit Thakur Dass Bhargava: As I was saying, Sir, manyother words used in this Constitution have an uncertainmeaning. The words `decency' and `morality' have not got adefinite meaning.
Then, Sir, it is said this will tend to weaken theadministration by the uncertainties which will be importedif this amendment is carried. But, Sir, our liberties willbe certain through the particular law which may be reviewedby the court may become uncertain. The administration willnot be weakened thereby. I grant that it may probably bethat the administration will not have its way. But we wantto have a Government which will respect the liberties of thecitizens of India. As a matter of fact, if this amendment iscarried, it will constitute the bed-rock of our liberties.This will be a Magna Carta along with article 13 with theword `reasonable' in it. This is only victory for thejudiciary over the autocracy of the legislature. In fact wewant two bulwarks for our liberties. One is the Legislatureand the other is the judiciary. But even if the legislatureis carried away by party spirit and is sometimes panicky thejudiciary will save us from the tyranny of the legislatureand the executive.
In a democracy, the courts are the ultimate refuge of the citizens for the vindication of their rights andliberties. I want the judiciary to be exalted to its rightposition of palladium of justice and the people to be securein their rights and liberties under its protecting wings.
I commend my amendment and beg the House to pass it.
Shri Chimanlal Chakkubhai Shah [United States ofKathiawar (Saurashtra)]: Mr. Vice-President, Sir, the rightconferred by article 15 is the most fundamental of theFundamental Rights in this Chapter, because it is the rightwhich relates to life and personal liberty without which allother rights will be meaningless. Therefore, it is necessarythat in defining this right, we must make it clear andexplicit as to wh at it is that we want to confer and not putin restrictions upon the exercise of that right which makeit useless or nugatory. I therefore support the amendmentwhich says that the words `without due process of law'should be substituted for the words `except in accordancewith the procedure established by law.' Sir, the words`without due process of law' have been taken from theAmerican Constitution and they have come to acquire aparticular connotation. That connotation is that inreviewing legislation, the court will have the power to seenot only that the procedure is followed, namely, that thewarrant is in accordance with law or that the signature and the seal are there, but it has also the power to see thatthe substantive provisions of law are fair and just and notunreasonable or oppressive or capricious or arbitrary. Thatmeans that the judiciary is given power to review legislation. In America that kindof power which has been given to the judiciary undoubtedlyled to an amount of conservative outlook on the part of thejudiciary and to uncertainly in legislation. But our articleis in two respects entirely different from the article in the American Constitution. In the American Constitution, the words are used in connection with life, liberty andproperty. In this article we have omitted the word`property', because on account of the use of this word in the American Constitution, there has been a good deal oflitigation and uncertainty. There has been practically nolitigation and no uncertainty as regards the interpretationof the words "due process of law" as applied to `life' and`liberty'.
Secondly, Sir, in the word `liberty' that we have used,we have added the word `personal' and made it `personalliberty' to make it clear that this article does not referto any kind of liberty of contract or anything of that kind,but relates only to life and liberty of person. Therefore,it would be wrong to say that the words `due process of law'are likely to lead to any uncertainty in legislation orunnecessary interference by the judiciary in reviewing legislation.
Sir, in all Federal Constitutions, the judiciary hasundoubtedly the power which at times allows it to reviewlegislation. This is inherent in all Federal Constitutions.In England, for example, the judiciary can never say that alaw passed by Parliament is unconstitutional. All it can dois to interpret it. But in Federal Constitutions thejudiciary has the power to say that a law isunconstitutional. In several articles of this Constitution,we have ourselves provided for this and given express powersto the judiciary to pronounce any law to be unconstitutionalor beyond the powers of the legislature. I have no doubt inmy mind that this is a very salutary check on the arbitraryexercise of any power by the executive.
Sir, at times it does happen that the executiverequires extraordinary powers to deal with extraordinarysituations and they can pass emergency laws. The legislature, which is generally controlled by the executive-because it is the major ity that forms the executive-givessuch powers to the executive in moments of emergency.Therefore, it is but proper that we should give the right to the judiciary to review legislation.
It may be said that the judiciary may, in times ofcrisis, not be able to appreciate fully the necessitieswhich have required such kind of legislation. But I have nosuch apprehension. I have no doubt that the judiciary willtake into account fully the necessities of a situation whichhave required the legislature to pass such a law. But it hashappened at times that the law is so comprehensive that theindividual is deprived of life and liberty without anyopportunity of defence. What is the worst that can happen inan article like this if we put in the words `without dueprocess of law'? Some man may escape death or jail if thejudiciary takes the view that the law is oppressive. Sir, isit not better that nine guilty men may escape than oneinnocent man suffers? That is the worst that can happen evenif the judiciary takes a wrong view.
But, in these days, the executive is naturally anxiousto have more and more powers and it gets them. And we havedeveloped a kind of legislation which is called delegatedlegislation in which the powers are given to subordinateofficers to issue warrants and the like. For example, underthe Public Safety Measures Acts, if a Commissioner of Policeis satisfied that a particular man is acting against theinterests of the State or is dangerous to public security,he could detain the man without trial.
We know it to our cost that even the Commissioner ofPolice does not look into these matters personally as he isexpected to do and signs or issues warrants on the reports of subordinate officials. It isbetter under such circumstances that there is some checkupon the exercise of such powers if they are arbitrarilyused. I therefore fully support the amendment which seeks tosubstitute the words "without due process of law" in placeof the words which have been used in the Article. As Mr.Mahboob Ali Baig has rightly pointed out, these words aretaken from the Japanese Constitution but the Drafting Committee has omitted the other provisions which givemeaning to these words. Mr. Baig's amendment which seeks tosubstitute the words "save in accordance with law", I amafraid, will not serve his own purpose. If he has in mindthat the full import of all the provisions of the JapaneseConstitution read along with the one which the Drafting Committee has put in, should be brought out here, it isbetter that he accepts the words, "without due process oflaw", rather than the words "save in accordance with law"which are taken from the Irish Constitution and whichprobably have the same meaning as the words put in by theDrafting Committee. I therefore fully support amendment No.528.
Shri Krishna Chandra Sharma (United Provinces.General): Mr. Vice-President, Sir, my amendment No. 523sought the substitution of the words "without due process oflaw" for the words "except according to procedureestablished by law". This article guarantees the personalliberty and life of the citizen. In democratic life, libertyis guaranteed through law. Democracy means nothing exceptthat instead of the rule by an individual, whether a king ora despot, or a multitude, we will have the rule of the law.Sir, the term "without due process of law" has a necessarylimitation on the powers of the State, both executive andlegislative. The doctrine implied by "without due process oflaw" has a long history in Anglo-American law. It does notlay down a specific rule of but it implies a fundamentalprinciple of justice. These words have nowhere been definedeither in the English Constitution or in the AmericanConstitution but we can find their meaning through readingthe various antecedents of this expression. As a matter offact, it can be traced back to the days of King John whenthe barons wrung their charter from him, i.e., the MagnaCarta. The expression "Per Legum Terrea" in the Magna Cartahave come to mean "without due process of law". Chapter 39of the Charter says:-
"No free man shall be taken, or imprisoned, disseised,or outlawed, exiled, or in any way destroyed; nor shall wego upon him, nor send upon him, but by the lawful judgmentof his peers or by the law of the land."
These words were used again in 1331, 1351 and 1355.Statute No. 28 during the reign of Edward III says:-
"No man of what state or condition so ever he be, shallbe put out of his lands or tenements, nor taken, norimprisoned, nor indicated, nor put to death, without he bebrought to answer by due process of law".
Sir, in the American Constitution, these words werefirst used in 1791:-
"Nor shall any person . . . . . be deprived of life,liberty or property, without due process of law".
What this phrase means is to guarantee a fair trialboth in procedure as well as in substance. The procedureshould be in accordance with law and should be appealable to the civilised conscience of the community. It also ensures afair trial in substance, that is to say, that substantivelaw itself should be just and appealable to the civilisedconscience of the community. Sir, various decisions of theAmerican Supreme Court, when analysed, will stress the fourfundamental principles that a fair trial must be given,second, the court or agency which takes jurisdiction in thecase must be duly authorised by law to such prerogative,third that the defendant must be allowed an opportunity topresent his side of the case and fourth that certain assistance including counsel and the confronting of witnesses must beextended. These four fundamental points guarantee a fairtrail in substance.
As to social progress, my Friend Pandit Bhargava hasalready spoken and I need not repeat the argument here; butfor your enlightenment I would like to read a judgment whichclarifies the position. The judgment runs (from Willoughbyon the Constitution of the United States, p.1692):
"Thus, for example, in 1875, in Loan Association v.Topeka the Court said:
`It must be conceded that there are such rights inevery free government beyond the control of the state,-agovernment which recognised no such rights, which held thelives, the liberty and the property of its citizens subjectat all times to the absolute disposition and unlimitedcontrol of even the most democratic depository of power is,after all, a despotism.......The theory of our governments,state or municipal, is opposed to the deposit of unlimitedpower anywhere. The executive, the legislative and thejudicial branches of these governments are all of limitedand defined powers. There are limitations on such powerwhich grow out of the essential nature of all freegovernments-implied reservations of individual rights,without which the social compact could not exist, and which are respected by all governments entitled to the name. Nocourt, for instance, would hesitate to declare void astatute which enacted that A and B who were husband and wifeto each other should be so no longer, but that A shouldthereafter be the husband of C, and B the wife of D, orwhich should enact that the homestead now owned by A shouldhenceforth be the property of B."
Sir, with these words I support the amendment.
Shri H. V. Pataskar (Bombay: General): Mr. Vice-President, I have come forward only to take a few minutes of the House for supporting the amendment No. 528 which wantsto substitute "except according to procedure established bylaw" by the words "without due process of law". Already thelegal aspect of this matter has been discussed at length in this House, but I want to place it before the House fromanother point of view. We are, Sir, at the present moment ina state which is going to be a democracy. Now, democracyimplies party Government and party Government, in ourcountry, is rather new and we have instances which lead usto think that the party machine at work is likely toprescribe procedures which are going to lead to thenullification of the provisions which we have made in theFundamental Rights, which are being given to the people. Weknow from experience that in certain provinces there arealready legislations which have been enacted and whichprescribe certain procedures for detention, which have comein for criticism by the public in a very vehement manner. Itherefore, submit, Sir, that it is very essential from thepoint of view of the right of personal liberty, that the words "due process of law" should be particularly there.With these words, Sir, I support the amendment and would notlike to repeat what has been said in favour of this amendment already.
Shri K. M. Munshi: Mr. Vice-President, Sir, I want tosupport amendment No. 528 which seeks to incorporate the words "without due process of law" in substitution of the words "except according to procedure established by law". Inmy humble opinion, if the clause stood as it is, it wouldhave no meaning at all, because if the procedure prescribedby law were not followed by the courts, there would be theappeal court in every case, to set things right. This clausewould only have meaning if the courts could examine notmerely that the conviction has been according to law oraccording to proper procedure, but that the procedure aswell as the substantive part of the law are such as would beproper and justified by the circumstances of the case. Wewant to set up a democracy; the House has said it over andover again; and the essence of democracy is that a balancemust be struck between individual liberty on the one handand social control on the other. We must not forget that the major ity in a legislature is more anxious to establish social control than to serve individual liberty.Some scheme therefore must be devised to adjust the needs ofindividual liberty and the demands of social control.Eminent American constitutional lawyers are agreed on thepoint that no better scheme could have been evolved tostrike a balance between the two. Of course, as the Houseknows, lawyers delight to disagree and there is a certainvolume of opinion against it in America, but as pointed outby my honourable Friend, Mr. C. C. Shah, we have madedrastic changes in the American clause. The American clausesays that no person shall be deprived of his life, libertyor property without due process of law. That clause createdgreat difficulties with regard to laws relating to property.That word has been omitted. The word `liberty' was construedwidely so as to cover liberty of contract and that word hasbeen qualified. This clause is now restricted to liberty of the person, that is, nobody can be convicted, sent to jailor be sentenced to death without due process of law. That isthe narrow meaning of this clause which is now sought to be incorporated by amendment No. 528.
Now, the question we have to consider, I submit, isonly this. What are the implications of this `due process'?`Due process' is now confined to personal liberty. Thisclause would enable the courts to examine not only theprocedural part, the jurisdiction of the court, thejurisdiction of the legislature, but also the substantivelaw. When a law has been passed which entitles Government totake away the personal liberty of an individual, the courtwill consider whether the law which has been passed is suchas is required by the exigencies of the case, and,therefore, as I said, the balance will be struck betweenindividual liberty and the social control. In the result,Governments will have to go to the court of law and justifywhy a particular measure infringing the personal liberty of the citizen has been imposed. As a matter of fact, the fearthat in America the `due process' clause has upsetlegislative measures, is not correct. I have not got thefigures here, but I remember to have read it somewhere inover 90 per cent of the cases on the `due process' clausewhich have gone to the American courts, action of the legislatures has been upheld. In such matters involvingpersonal liberty Governments had to go before the court andjustify the need for passing the legislation under which theperson complaining was convicted. In a democracy it isnecessary that there should be given an opportunity to theGovernments to vindicate the measures that they take. Apartfrom anything else, it is a wholesome thing that aGovernment is given an opportunity to justify its action ina court of law.
I know some honourable Members have got a feeling that in view of the emergent conditions in this country thisclause may lead to disastrous consequences. With greatrespect I have not been able to agree with this view(Interruption). Take even our Public Safety Acts in theprovinces. In view of the condition in the country theywould certainly be upheld by the court of law and even ifone out of several acts is not upheld, even then, I am sure,nothing is going to happen. Human ingenuity supported by the legislature and assisted by the able lawyers of eachprovince will be sufficient to legislate in such a mannerthat law and order could be maintained.
Therefore, my submission is that this clause isnecessary for this purpose and is not likely to be abused.We have, unfortunately, in this country legislatures withlarge major ities, facing very severe problems, andnaturally, there is a tendency to pass legislation in ahurry which give sweeping powers to the executive and thepolice. Now, there will be no deterrent if theselegislations are not examined by a court of law. Forinstance, I read the other day that there is going to be alegislation, or there is already a legislation, in oneprovince in India which denies to the accused the assistanceof lawyer. How is that going to be checked? In anotherprovince, I read that the certificate or report of an executive author ity--mind you it is not aSecretary of a Government, but a subordinate executive--isconclusive evidence of a fact. This creates tremendousdifficulties for the accused and I think, as I havesubmitted, there must be some agency in a democracy whichstrikes a balance between individual liberty and socialcontrol. Our emergency at the moment has perhaps led us toforget that if we do not give that scope to individualliberty, and give it the protection of the courts, we willcreate a tradition which will ultimately destroy evenwhatever little of personal liberty which exists in thiscountry. I therefore submit, Sir, that this amendment shouldbe accepted.
Shri Alladi Krishnaswami Ayyar (Madras: General): Mr.Vice-President, Sir, the debate on this article reveals thatthere seems to be a leaning on the part of a good number ofmembers in this House in favour of the expression `dueprocess' being retained and not for substituting theexpression `procedure established by law', which is theexpression suggested by the Drafting Committee in its laststage. I am using the words `in its last stage' because myhonourable Friend Mr. Munshi has taken the opposite view.
Sir, at least in justification of the change suggestedby the Drafting Committee, I owe it to myself, to mycolleagues and the respected Chairman of the Drafting Committee, to say a few words, because, up to the lastmoment, presumably, the House is open to conviction.
The expression `due process' itself as interpreted bythe English Judges connoted merely the due course of legalproceedings according to the rules and forms established for the protection of rights, and a fair trial in a court ofjustice according to the modes of proceeding applicable to the case. Possibly, if the expression has been understoodaccording to its original content and according to theinterpretation of English Judges, there might be nodifficulty at all. The expression, however, as developed in the United States Supreme Court, has acquired a differentmeaning and import in a long course of American judicialdecisions. Today, according to Professor Willis, theexpression means, what the Supreme Court says what it meansin any particular case. It is just possible, some ardentdemocrats may have a greater faith in the judiciary than in the conscious will expressed through the enactment of apopular legislature. Three gentlemen or five gentlemen,sitting as a court of law, and stating what exactly is dueprocess according to them in any particular case, afterlistening to long discourses and arguments of briefedcounsel on either side, may appeal to certain democrats morethan the expressed wishes of the legislature or the actionof an executive responsible to the legislature. In thedevelopment of the doctrine of `due process', the UnitedStates Supreme Court has not adopted a consistent view atall and the decisions are conflicting. One decision veryoften reversed another decision. I would challenge anymember of the Bar with a deep knowledge of the cases in theUnited States Supreme Court to say that there is anythinglike uniformity in regard to the interpretation of `dueprocess'. One has only to take the index in the Law ReportsAnnotated Edition for fifteen years and compare thedecisions of one year with the decisions of another year andhe will come to the conclusion that it has no definiteimport. It all depended upon the particular Judges thatpresided on the occasion. Justice Holmes took a viewfavourable to social control. There were other Judges of aTory complexion who took a strong view in favour ofindividual liberty and private property. There is no sort ofuniformity at all in the decisions of the United StatesSupreme Court.
Some of my honourable Friends have spoken as if itmerely applied to cases of detention and imprisonment. TheMinimum Wage Law or a Restraint on Employment have in somecases been regarded as an invasion of personal liberty andfreedom, by the United States Supreme Court in its earlierdecisions, the theory being that it is an essential part ofpersonal liberty that every person in the world be she a woman, be he a child overfourteen years of age or be he a labourer, has the right toenter into any contract he or she liked and it is not theprovince of other people to interfere with that liberty. Onthat ground, in the earlier decisions of the Supreme Courtit has been held that the Minimum Wage Laws are invalid asinvading personal liberty. In recent times I quite realise,after the New Deal, the swing of the pendulum has been otherway. Even there, there has not been any consistency or anyuniformity. I hope that if this amendment is carried, in theinterpretation of this clause our Supreme Court will notfollow American precedence especially in the earlier stagesbut will mould the interpretation to suit the conditions ofIndia and the progress and well-being of the country. Thisclause may serve as a great handicap for all sociallegislation, for the ultimate relationship between employerand labour, for the protection of children, and for theprotection of women. It may prove fairly alright if only theJudges move with the times and bring to bear their wisdom onparticular issues. But since the Brit ish days we haveinherited a kind of faith in lawyers, legal arguments,legal consultations and in courts; I, for my part, havingflourished in the law, have no quarrel with those people whobelieve in the lawyer. In the earlier stages of Americanhistory, lawyers ranged themselves on the side of greatTrusts and Combines and in favour of Corporations who werein a position to fee them very well, sometimes in the nameof personal liberty, sometimes in the name of protection ofproperty. After all the word `personal liberty' has not thesame content and meaning as is imported into it by some of our friends who naturally feel very sensitive about peoplebeing detained without a proper trial. I equally feel it butthat is not the meaning of personal liberty attributed bythe American Courts in the context of `due process'. I trustthat the House will take into account the various aspects ofthis question, the future progress of India, the well-beingand the security of the States, the necessity of maintaininga minimum of liberty, the need for co-ordinating socialcontrol and personal liberty, before coming to a decision.One thing also will have to be taken into account, viz.,that the security of the State is far from being so secureas we are imagining at present. Take for example the normaldetention cases. I may tell you as a lawyer, I am againstthe man being detained without his being given anopportunity; but an opportunity is not necessarily given ina court of law, as a result of argument, as a result ofevidence, as a result of examination or cross-examination.Today I know in Madras a Special Committee has beenappointed consisting of a Judge of the High Court, theAdvocate-General of Madras and another person to go into thecases of detention and to find out whether there are propermaterials or not. Now all these cases might have to go toCourts of law and possibly it is a good thing for lawyers.Though I am getting old I do not despair of taking part inthose contests even in the future.
The support which the amendment has received revealsthe great faith which the Legislature and Constitutionmakers have in the Judiciary of the land. The Drafting Committee in suggesting "procedure" for "due process of law"was possibly guilty of being apprehensive of judicialvagaries in the moulding of law. The Drafting Committee hasmade the suggestion and it is ultimately for the House tocome to the conclusion whether that is correct, taking into consideration the security of the State, the need for theliberty of the individual and the harmony between the two. Iam still open to conviction and if other arguments areforthcoming I might be influenced to come to a different conclusion.
Mr. Z. H. Lari: Mr. Vice-President, the last speakerwho has spoken on this article has drawn the attention of the House to dangers to the State which are likely to ariseif the article as it stands is amended by the amendment No.528 or 530. I have not got that experience which the learned speaker has but with the little knowledge of the working of the Legislatures during the last ten years, I can say thatit is necessary not only in the interest of individualliberty but in the interest of proper working oflegislatures that such a clause as due process of law clauseshould find a place in the Constitution. It is open to thatspeaker at the fag end of his life as a lawyer to have afling at the profession of law but I can say that assistanceof lawyers is absolutely essential to secure justice.
Shri Alladi Krishnaswami Ayyar: On a point of order. Ihad no fling at the profession of law.
Mr. Z. H. Lari: I stand corrected.
I feel that two things are necessary. We all know thatthe State, these days, is all-powerful. Its coerciveprocesses extend to the utmost limits but still there is aphase of life which must be above the processes of ExecutiveGovernment, and that is individual liberty. In America nosuch word as `personal' existed. There the word libertyalone existed and possibly in that state of things, it waspossible to interpret it in such a way as to extend thescope of due process of law to other spheres of life butwhen the word `personal liberty' has been definitelyinserted in the clause, I doubt whether any Court which isconscious of the requirements of a State as well asconscious of the necessities of individual liberty, will beso uncharitable to the interest of the State as to interpretit in a way to thwart the proper working of the State. Myfriend admitted that in the latter rulings in America itselfthere has been a recognition of the necessities of the Stateand the word has been interpreted in such a way as not toobstruct the proper working of the State. My submissionwould be that in this land our Supreme Court will recognisethe limits of individual liberty as well as the necessitiesof the State and interpret it in such a way as to ensureindividual liberty of a man.
Pandit Thakur Dass Bhargava: The Drafting Committeealso said so in their note.
Mr. Z. H. Lari: My friend is right; and the only reasonwhich was given by the Drafting Committee of which thehonourable Speaker who preceded me was a member also, wasthat the words `due process of law' is not specific and theword as was used in the Japanese Constitution is morespecific. No doubt the words as they stand in the JapaneseConstitution are specific because the procedure is indicatedand definitely laid down there. What is the essence of thedue process of law? I think they are two. First is, enquirybefore you condemn a man. And then there is judgment aftertrial. If any procedure which is adopted by any legislatureprovides for the hearing of a person who is suspected or isaccused, and then after a proper hearing, enables him to getthe benefit of a judgment based on that enquiry, mysubmission is, that the requirements of the due process oflaw are complied with. And I would beg of the House to consider whether in any country, however emergent andhowever unstable its conditions, is it necessary or is itnot necessary that every individual citizen should feel thathe will be heard before he is condemned, and that he will bedealt with in the light of the judgment based on theenquiries and not be subject to arbitrary detention? TheHouse will also remember that lately there was the questionof drafting human rights, and already such a draft has beenprepared. And one of the clauses therein is that nobodyshould be subjected to arbitrary detention. Now, what is theway to prevent arbitrary detention? If you have the words in this clause, as they stand at present, namely, `procedureestablished by law' it means that the legislature is all-powerful and whatever procedure is deemed proper under thecircumstances will be binding upon the courts. But, Sir,there are certain procedures which are the inherent rightsof man and the should not be infringed upon by anylegislative Assembly. Men as well as assemblies, or any mass of people are subject to passing emotions, and you will realise that in the present state ofthings, particularly keeping in view the constitution that we are going to have, namely, a parliamentary government,the legislature is controlled by a Cabinet, which means bythe executive. You have also the provisions about havingordinances which means that the cabinet--a body consistingof eight to ten persons--decide upon a particular course ofaction, issue as an ordinance, and, the legislature then hasto approve of it, otherwise it would amount to a vote ofcensure. Therefore the legislature in the last analysismeans only the cabinet or the executive and nothing but theexecutive. The question before us is whether you are goingto give such powers to the Executive which can infringe eventhe elementary rights of a person, the elementary rights ofpersonal liberty, or whether you should not put certainchecks on the executive which can be done only if you acceptthe amendment which has been moved by a Congress member,i.e., amendment No. 528. My amendment No. 530 is exactly similar.
My friend who spoke on the other side gave instances oflegislation in the Brit ish period, of rights which werecurtailed, and of innocent persons jailed. But I submit with all humility, that every legislature and every government isliable to do such things which the Brit ish Government did.You cannot excuse excess of law simply because thoseexcesses are committed by a popularly elected legislature.That is why there are two domains, one is the domain of individual liberty, and the other domain is where the Statecomes in to regulate our life. What do you leave to the State? You leave to the State everything except personalliberty. As to stability of the State my submission would bethat if there are classes or communities which are prone to violence, there are sufficient provisions in thisConstitution to deal with them--they are in article 13.There, the State can come in and curtail the liberty of suchpersons, and even nullify their activities. What can anindividual do? If there are parties which have gotobjectives which run counter to the stability of the State,you have already got enough provisions where-by the Statecan declare those bodies unlawful. But this particularclause deals with a very small sphere of action, namely,personal liberty. My submission is that our State is not soweak as to be subverted by the activities of a particularindividual, and mark that, that individual will not have theliberty to do everything. He can be brought before a court.He can be judged in a court of law; no doubt, he will havethe assistance of counsel and the Government will have theobligation to produce evidence against him. Does this amountto curtailing the powers of the State? Does this amount tosubverting the State? Does it amount to annihilating theState? With all respect to the previous speaker, I feel hetook a very uncharitable view of the citizens of our State,and took a still more uncharitable view of the strength of the State which will emerge after the promulgation of thenew Constitution. No doubt, we have to go by realities. Wehave to take into consideration stern facts. But I mayremind the House of one thing. In America, this clause isaccepted and is reproduced in the Japanese Constitution. Youknow the Americans have been responsible for framing theJapanese Constitution. A constitution for a fascist country,a country where individuals are prone to violence--theywanted to overthrow the peace of the world--when they weredrafting a constitution for such a country, composed of suchcitizens, they laid down clauses 31, 32, 33 and 34 which saythat nobody shall be denied access to courts, nobody shallbe arrested unless causes are shown against him, and nobodyshall be denied the privilege of the assistance of counsel.May I say that if the framers of this latest constitution,based on experience and knowing the nature of the peopleliving in Japan, who are not a very peace-loving people as was demonstrated in the last war, haveaccepted these provisions, that means that these provisionshave stood the test of time and have safeguarded the libertyof the individual and also guaranteed the integrity of thestate. There are two things by which we have to go. One isexperience of others. No doubt, every clause can becriticised in one way or other. But we have to be guided byexperience. Here is the experience of other countries, and this has shown that the words `due process of law' can existwithout jeopardis ing the existence of the State. Secondly,we know that not only here, but throughout the world everyassembly is likely to misuse its power. It is bound tohappen. Power corrupts. We should profit by the experienceof other countries and by what has been observed forcenturies. Or should we go by the ipse dixit of X,Y,Z whosays that there seems to be some germ of disruption in thisclause? My submission is that it is only making a bogey outof nothing. We should not be led away by this bogey intoaccepting this clause. If this clause is accepted, then thewhole Constitution becomes lifeless. The article, as itstands, is lifeless and it makes also the whole Constitutionlifeless. Unless you accept this amendment, you would notearn the gratitude of future generations. Therefore, Sir, Ipray that this motion which has been supported by severalmembers should be accepted.
With these words, Sir, I support the amendment.
Mr. Vice President: The House stands adjourned till 10A.M. to-morrow.
The Constituent Assembly then adjourned till ten of theClock on Tuesday the 7th December, 1948.