CONSTITUENT ASSEMBLY OF INDIA - VOLUME IX Thursday, the 15th September 1949 Ardham tyajati panditah". I wish, Sir, we,could accept this new article in this spirit, but I feel, not being a pandit myself in name or otherwise, that we are giving up more than half. If it was really half, ardham tyajati,. I would not have minded it, but in an attempt to, salvage what has been lost we are giving up much more than half.That is why I have tabled my amendments whose purpose is to salvage as much as possible and undo the harm that has been done by the, adoption of article 15. If the House would refer to article 15, as adopted, my honourable colleagues-will see that the reference there is to procedure established by law. Once having adopted this article in this form, I see no reason why the law according to which a person could be deprived of his life and liberty could not have been safely left to the future Parliament. Why by introducing the new article 15A do we seek to fetter the future Parliament of our country ? it is due, I fear, to a lack of faith in our future Parliament. I would not say that the House, but the Drafting Committee, is afraid that the future Parliament may not act wisely. I am sorry if the Drafting Committee is motivated by such a fear. This whole article detailing the law and the procedure under which a person can be deprived of his liberty could have been safely left to the future Parliament to lay down and to provide for. This has been an unnecessary intrusion into our Constitution and it would have been quite adequate for our purpose to mention in article 15 that life and liberty will be sacrosanct, except under procedure established by law, and that law could have been left for Parliament to provide and regulate.
Coming, Sir., to my amendments, I shall move them one by one. First, I shall take amendment No. 104, List III, Eighth Week. I move:
"That in amendment No. 1 of List I (Eighth Week), in clause (1) of the proposed new article 15A, after the word 'magistrate' Occurring at the end, the words 'who shall afford days following his arrest' be substituted."
It is a well known fact, that the police or other authorities or persons arresting or detaining people are not always actuated by the justest and the fairest of motives. As one who has spent a few years in the administrative field-in the administration of a district-I am well aware myself how the police arrest people for reasons wholly unconnected with security or order and sometimes merely with a view to paying off old scores or wreaking private vengeance. In order to obviate or at least mitigate the evils or the harm that might accrue from unjust arrest of people by the police or other authorities I wish to provide through this amendment specifically that the person arrested shall be informed of the grounds of his arrest. within seven days following his arrest. The words used in this article moved by Dr. Ambedkar are "as soon as may be". I would be happy if the person is informed of. the grounds even at the, time of his arrest.
The Honourable Dr. B. R. Ambedkar: That is the intention. You are worsening the position by your amendment.
Shri H. V. Kamath: Why not then make it specific? I would welcome the substitution of the words "as soon as-, may be" by the word "immediately". My Friend, Shrimati Purnima Banerjee, has also moved an amendment to the same article, where she wishes to substitute the words "as soon as may be" by " not less than fifteen days". I think fifteen days is far too long a period. I think twenty-four hours would be the best. In any case if there is any hitch in informing the arrestee of the grounds of his arrest, I think in no case should it exceed more than a week.
Coming, Sir, to the next amendment (No. 108), I beg to move:
"That in amendment No. 1 of List I (Eighth Week), after clause (2) of the proposed article 15A, after the word magistrate' occurring at the end. the words 'who shall afford such person an opportunity of being heard' be added."
The Honourable Dr. B. R. Ambedkar : I must tell my honourable Friend Mr. Kamath that he is worsening the position. Our intention is that the word,,; as soon as possible" really mean immediately after arrest if not beforearrest. Clause (2) says that every person who is arrested and detained in custody shall be produced before the-nearest magistrate within a period of twenty four hours of such arrest. No magistrate can exercise his authority in permitting longer detention unless he knows the charges on which a man has been detained.
Shri H. V. Kamath : I know a little of the Criminal Procedure. I have known of cases where magistrates have remanded persons for fifteen days at a stretch without the police filing a chalan or charge sheet before him. I know of magistrates who have remanded persons without caring to go into the prima facie merits of the case. Another thing that Dr. Ambedkar said was that the words "as soon as may be" really means "immediately".
The Honourable Dr. B. R. Ambedkar: it means in any case within twenty four hours.
Shri H. V. Kamath: May I invite his attention to certain articles where the words "as soon as may be" have been used without any specific connotation. Take for instance article 280 which relates to the Emergency Powers of the President.
The Honourable Dr. B. R. Ambedkar : The interpretation of the meaning of the words "as soon as may be" must differ with the context.
Shri H. V. Kamath: I do not know whether Dr. Ambedkar will be always in India to interpret and argue with doubting lawyers and doubting judges as to the meaning of the words and phrases used in this Constitution. I am sorry Dr. Ambedkar will not be immortal to guide our judges and lawyers in this country. As the Constitution is being framed not for Dr. Ambedkar's life time, but for generations to come, I think we must, be specific in what we say.
The Honourable Dr. B. R. Ambedkar: You are selling your immortality very cheap Shri H. V. Kamath: If Dr. Ambedkar admits that in using the phrase "as however that Dr. Ambedkar presumes he will be immortal.
The Honourable Dr. B. R. Ambedkar : You might admit you have made a mistake in tabling this amendment.
Shri H. V. Kamath: If Dr. Ambedkar admits that in using the phrase "as soon as may be" he has erred, I would not say more.. He is standing on false prestige and showing obstinacy not worthy of him.
Coming to my amendment No. 108 I am glad to find that Shrimati Purnima Banerjee has also one on the same lines. Both these are to the effect that the advisory board shall decide every case after giving an opportunity to the arrestee or the detainee of being heard and that no case shall be decided by the advisory board without hearing the person concerned. In the article as moved by Dr. Ambedkar there is no satisfaction (in this point. I want that we should specifically provide that the advisory board shall hear a person or his lawyer before it recommends detention for a period longer than three months. The advisory board is liable to err and summarily dispose of cases especially where there are many of them awaiting disposal. We must clearly lay down in this Constitution that every person arrested or detained shall have an opportunity of being heard before his detention is extended under this article.Sir, I now move amendment No. 109;
"That in amendment No. 1 of List I (Eight Week), after clause (2) of the proposed new article 15-A, the following new clause be added :-
(2a) No detained person shall be subjected to physical or mental ill-treatment'."
I think Dr. Ambedkar is not quite aware of the frequent cases of physical or mental ill-treatment to which detenus were subjected during the British regime, especially during the dark days of 1942 and immediately thereafter. In one or two prisons where I myself was detained, I personally knew of cases, where detenus in C class were beaten mercilessly and also subjected to all sorts of third-degree methods of torture. There were cases where detenus were given no cloths to wear and were made to shiver in severe cold in a state of nudity. There were other cases where the cells of detenus were flooded and the detenus had to pass hours on the, damp floor which was not merely unhealthy, but definitely in some cases induced pneumonia and other diseases which proved fatal. Sir, after all, a man is detained on suspicion only. It is but fair that our Constitution should lay down specifically that no detenu will be subjected to physical and mental ill-treatment. The latest Constitution of Western Germany-the Bonn Constitution-though it is not the last word in constitution-making, has adopted, despite the prevalent chaotic conditions fraught with danger to the State, a clause on these very lines that no detenu shall be subjected to physical . and mental ill-treatment. In the Preamble to our Constitution we have paraded the ideals of justice, liberty, equality and fraternity and have proclaimed that our Sovereign Democratic Republic will secure these to all its citizens. The Chapters close to the Preamble, Chapters III, IV etc., seem to bear the impress of the Preamble, but as we wander further and further from the Preamble and especially when we come to the end of the Constitution one gets the impression that we have forgotten the Preamble. It seems to have slipped from our memory altogether and it looks as if, in very many cases, justice is being delayed, if not denied, and liberty is being suppressed. It is a very unfortunate state of affairs that, after having proclaimed so many fundamental rights in our Constitution, we should proceed to abrogate them and in some cases even nullify them.
My next amendment is No. 113.
Mr. President: Amendments Nos. 113 and 114 have been covered by the amendment moved by Shrimati Purnima Banerjee.
Shri IL V. Kamath: My next amendment is No. 1 16. This amendment goes to the root of the, matter and in my opinion it is a vital proposition. It runs as follows .
"That in amendment No, 1 of List I (Eighth Week), after clause (4) of the proposed new article 15A, the following new clause be added :-
'(5) Notwithstanding anything contained in this article, the powers conferred on the Supreme Court and the High Courts under article 25 and article 202 of this Constitution as respects the detention of persons under this article shall not be suspended or abrogated or extinguished'."
Sir, before I speak on this motion I would ask for clarification as regards the content of the motion moved by Dr. Ambedkar. I know that the amendment as moved by me is not couched in happy language. It can be put in better language by lawyers if they accept the principle embodied in this amendment. First, in regard to clause (4) of article 15A as moved by Dr. Ambedkar which invests Parliament with power to make laws regarding preventive detention. I would like to know whether with regard to the persons detained under thelaw of preventive detention, the jurisdiction of the High Courts and the Supreme Court, especially with regard to their right to issue a writ of habeas corpus will be ousted. If it is not ousted under this article, three is no need for amendment 116. If Dr. Ambedkar would make it categorically clear that the power and jurisdiction of the High Courts and the Supreme Court in regard to these detenues, and the right of the latter to move the High Courts and the Supreme Court, for a writ of habeas corpus, it these are not abrogated by this article 15A, then I would not press my amendment. do so. The article is silent on this point. Therefore it is that I have moved this amendment before the House.
We Sir, have already adopted article 280 seeking to vest in the President extraordinary powers in the event of an emergency. According to that article, in an emergency the right of the individual to move the High Courts and the Supreme Court for the enforcement of the rights guaranteed under Part III Fundamental Rights and the powers of the courts in this regard will be suspended. I hope this is the only article in our Constitution which seeks to abrogate or extinguish the fundamental rights conferred by this Constitution,-the rights of the individual as well as the powers of the Supreme Court and the High Courts in this regard.
Dr. Ambedkar in his speech referred to the enthusiastic champions of absolute liberty. I shall make it quite clear that I am not an advocate of absolute liberty.
Mr. President : He did not talk of absolute liberty today.
Shri H. V. Kamath: He did, Sir, if I remember aright. (The Honourable Dr. Ambedkar nodded in the affirmative). He referred to absolute personal liberty. I am not a champion or advocate of absolute personal liberty. No man can have absolute personal liberty if he wants to live within the social framework. If a man leaves the world and becomes an absolute sanyasi, not in the customary sense of the term but in the truest sense,-the case is different. If any man has to live in society, his personal liberty must be restrained. Liberty without restraint will become licence. The eternal problem of governments over the world has been how to reconcile the liberty of the individual in society with the safety and security of the State, and thinkers have widely differed on this point. Some have tried to exalt the State above the individual making it a leviathan making it a veritable supreme power, which can crush the individual without any compunction. There have been other thinkers who have sought to lay down the dictum' that the State is for the individual, and not the individual for the State. We will have to strike a balance between these two : the individual for the State and the State for the individual. We should bear in mind that the State has been formed, has been brought into being by individuals acting together, acting in unison, and we must provide that the State will not unjustly, unfairly override the claims of the individual to Justice and liberty. That is what we hear, the founding fathers of our free State, have got to provide in our Constitution. If we seek to take away or abrogate or extinguish the liberal of the individual without due course, without having in mind really the security of the State, but having in mind only the lust for power of a coterie, or a few men in power, then that provision to my mind stands self condemned.
The question is whether under the article as moved by Dr. Ambedkar we have provided for those cases where persons might be arrested and detained for long periods without even a show of justice. Clause (4) of this article laysdown that Parliament will prescribe the circumstances under which and the class or classes of casts in which a person who is arrested under any law providing for preventive detention may be detained for a period longer than three, months and also the maximum period for which any such person may be so detained., Supposing Parliament takes it into its head to lay down that the period of preventive detention may last a man's life-time, what stands in the way of the Parliament doing so ? But as a safeguard there, must be the courts of justice to go into every case and decide as to whether every person detained under that law has been justly detained, has beer) fairly detained and has been detained for longer than is absolutely necessary. That is why I want to vest the High Courts and the Supreme Court with this power to examine and decide the cases of persons detained under clause (4) of this article which provides for preventive detention. If, as I said, the powers and the jurisdiction of the High Courts and the Supreme Court have not been ousted by this article, then my amendment falls. Otherwise, there is a lacuna in this article and we shall greatly endanger the liberty of the individual if we do not provide any sort of safeguard against unjust detention which has been so often done in the past by the British Government. I do not mean to say that we will do so in future, but we know that the British detained persons without just cause, often on mere suspicion, or just because some officer wanted to take revenge on somebody.
Before I close, I would only say that it looks to me as though we are framing a short-term Constitution, we are drafting a Constitution which will last perhaps just as long as some of us hope to be in power and we do not have a long-term plan or vision. Has anybody considered how some other persons, possibly totally opposed to our ideals, to our conceptions of democracy, coming into power, might use this very Constitution against us, and suppress our rights and liberties ? This Constitution which we are framing here may act as a Boomerang, may recoil upon us and it would be then too late for us to rue the day when we made such provisions in the Constitution. I hope, Sir, and I pray to God that we shall be guided by wisdom and vision, not merely wisdom but the vision for a long-term constitution and we will see to it that the Constitution that we are framing will not last merely for a few years but will last at least our life-time, if not for a few generations. If unfortunately this outlook is not there, the old Biblical saying will come true-"Where there is no vision, the people perish."
Shri H. V. Pataskar (Bombay: General) : Mr. President, Sir, there has been considerable discussion with respect to the way in which we have already passed article 15 and with respect to the fact that we failed then to make provision for due process of law and all that discussion has gone on for a long time. I have no desire to enter into all that discussion, to reopen it and take the time of the House because the Honourable Dr. Ambedkar the Chairman of the Drafting Committee has himself stated that in view of the article 15 as it has been passed, he has thought it necessary to bring forward this article 15A as a sort of compensation: I start from that point and do not want to go behind that. Then, Sir, I have tabled some three or four amendments which are on the basis that I do not want to refer to that controversy which was carried on for a large number of hours in this House, but I want to see if I can contribute anything to the improvement of the draft as it stands in certain technical matters and only one matter which I regard as a matter of principle.
My first amendment is No. 105 : it reads as follows:--
"That in amendment No. 1 of List I (Eighth Week), in clause ( 1) of the Proposed new article 15A for the words as soon as may be' the words 'within twenty-four hours' be substituted". So, far as the intention is concerned, I would just claim for five minutes the attention of Dr. Ambedkar; he and I agree. He himself said while interrupting Mr. Kamath that the meaning of the words "as soon as may be" is that it must be done immediately. I agree entirely with the object in view, and say that the words "as soon as may be" should be- replaced by the words "within twenty four hours". Dr, Ambedkar says in clause (2) as follows : "Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours", and the magistrate is to authorise his detention further. In paragraph I we have mentioned that the grounds should be communicated to the person "as soon as may be". It may happen in a particular case like this--and I would like to stress this point : Supposing the Police arrest a man, they take that man under clause (2) to the magistrate within twenty-four hours and there at that time they do not communicate any reasons to this man because under paragraph (2) what is required of them is to produce the person before the magistrate within a period of twenty-four hours. The only thing that paragraph (2) is concerned with is for a different purpose, it is for the, purpose of enabling the Police Officer to get from the magistrate an authority to detain him for more than 24 hours and it has nothing to do with the question of informing that mail of the grounds on which he has to be detained. I would like to make that distinction. Paragraph 1 refers to a matter which refers directly to the person who is detained, namely that he has to be informed of the reasons on which he is to be detained and paragraph (2) only refers to the matter that he must be produced before a magistrate within 24 hours. In a given case it may be argued that a person was produced before a magistrate within 24 hours and the magistrate authorized that he may be detained for a further period of a month or fortnight or whatever it may be, but a man may still not be informed of the reasons for a longer period than 24 hours. So far as the principle is concerned, I entirely agree with him and the object is the same. I would like to draw his attention to paragraph (2) which is intended to enable the Police Officer to get from the magistrate the authority to detain an arrested person for a longer period and paragraph (1) relates to supplying of grounds to the Person who is detained. These are two different things.-Suppose A is arrested, he is detained and within 24 hours he is taken before a magistrate and we know it would not be very difficult for any police officer to get from the magistrate an extension for a further period and the accused may not be informed, as required by para (1). Therefore I would suggest to Dr. Ambedkar--Our objects are the same and we want that all these provisions in clauses (1) and (2) are based on the Code of Criminal Procedure provisions as they exist and there is no desire to go back on them-and I would appeal that this loop-hole be closed.
Therefore, I say instead of the words "as soon as may be" the words "Within twenty-four hours" be substituted. I hope I have been able to convince the Honourable Dr. Ambedkar that clauses (1) and (2) are entirely for different purposes and in respect of different persons. The idea between "as soon as may be" and "within twenty-four hours" is the same, and Dr. Ambedkar goes further than myself and he says that the man must be immediately informed. If that be, so I would appeal to him to accept my amendment No. 105.
As regards amendment No. 106 that also is an amendment which tries to carry out what is there already in the Code of Criminal Procedure. Along with several other arguments which were raised by Pandit Thakur Das Bhargava, he has already referred to this aspect of it. Under the Code of Criminal Procedure section 61 authories a Police Officer to detain a person for 24 hours and then thereis another section 167, and in that there is a proviso which says :
'Provided that no Magistrate of the third class and no Magistrate of the second class not specially empowered in this behalf by the (Provincial Government) shall authorize detention in the custody of the Police."
As the law stands now, the power has been given to extend the period of detention only to magistrates of the first class or to such third class and second class magistrates who are specially empowered in this behalf. Now, my amendment is that in amendment No. 1 of List I (Eighth Week), in clause (.2) of the proposed new article 15A, after the word "magistrate,", wherever it occurs, the words "of the First Class" be inserted. The reasons are clear. Probably on this point also, there may be no difference in principle. If under the Criminal Procedure Code, this power is to be exercised only by a Magistrate of the First Class and by magistrates of the Second Class and Third Class where they are specially empowered, I believe that in the Constitution, when we are making a provision of the nature which Dr., Ambedkar proposes to make, then, it is necessary that such a power should be confined only to Magistrates of the First Class, for reasons which I think it is not necessary for me to go into, knowing as he does the lower magistracy, its composition, ideas of justice and ideas of jurisprudence and all that. Probably Section 167 of the Criminal Procedure Co had to be amended because it was felt unsafe to leave this power in the hands of Second and Third Class magistrates unless they were specially empowered in this behalf. I would appeal therefore that this is a very salutary thing that when we are making a provision, this power should be given only to Magistrates of the First Class.
While I was discussing this matter with a colleague of mine, he suggested that the difficulty is that Second Class and Third Class magistrates may be available at short distances and First Class magistrates may not be available easily. To this, Sir, I would appeal. that we may exclude the time taken for producing the person before the magistrate. When we are guarding the liberty of a subject, it is better, even if a man is detained for a few days more, rather than taking him before a Third or Second Class magistrate, he should be taken before a First Class magistrate, who is expected at any rate not to be influenced so much by mere police reports or the report of an executive officer. It is from that point of view that I have given notice of this amendment No. 106 which stands in my name. I hope this amendment also will be acceptable to the Honourable Dr. Ambedkar.
Then, there is another amendment, No. 1 1 1 :
"That in amendment No. 1 of List I (Eighth Week), in sub-clause (b) of the operative part of clause (3) of the proposed new article 15A, after the word 'law' the words 'of the Union' be inserted."
Sir, this is not a formal amendment and naturally, I would like to press my views on this matter. Clause (2) of this new proposed article 15-A says : "Every person who is arrested and detained in custody shall be produced before the nearest magistrate etc., etc." Clause (1) says that he should be informed of the grounds for such arrest. Clause (3) is in the nature of a proviso, or an exception being made (to the provision already made) in clause ( 1) and (2). Clause (3) says : "Nothing in this article shall apply (a) to any person who for the time being is an enemy alien." There can be no point of difference so far as that provision is concerned. With respect to the next provision, the clause says : "to any person who is arrested under any law providing for preventive detention." My point is that so far as these laws for preventive, detention are concerned, there must be uniformity in the new Union to come into existence. At the present moment, we have got public safety measures passed by different provinces. There is one law in Bengal; there is another law in Madras and there is a third law in Bombay . Theydiffer in their wording, in their content and they differ in the manner in which they take away the jurisdiction of the High Courts. There have been various interpretations and naturally, therefore, there is a sort of a confusion. We have already listened to some honourable Members who have pointed out some of the defects in the existing public security measures Acts in the different provinces. I need' not dilate upon that point.
But, my point as a lawyer is that there must be uniformity in this legislation and it is the Union Government and the Union Parliament that alone should pass this legislation. I am told that it would be too late in the day now, when we have put in the Concurrent List certain matters. Unfortunately, I was not here at that time to express my view,. Even that difficulty does not exist to my mind because in the Concurrent List I am told there is made a provision for legislation with respect to public safety. and with respect to the safety of the State it has been left exclusively in the hands of the Parliament at the Centre. Even if it is in the Concurrent List, there is nothing wrong in providing here in the Constitution that so far as laws regarding preventive detention are concerned, where the question of the liberty of the individual is concerned, it is better that this exception should be made in clause (3) in respect of laws passed by the Union only. If a provincial Government has passed any law, that law must be in conformity with the provisions that we are making in article 15A and it must be within the limits which are now being presented so far as such legislation regarding arrest and detention of persons is concerned.
Therefore, I think, it is just and proper, it is in the interests of the administration of the country, it is in the interests of the reputation of our people as a whole that we have one uniform law so far as this question of restricting the liberty of a person is concerned. It is no good of having different provincial laws; ultimately, they react upon the whole country upon the reputation even of the Central Government whether the law are passed by this provincial Government or that. Therefore, I say this is an amendment of substance which I would like the honourable Members of the Drafting Committee to seriously consider. It is not my object to go back or blame this side or that. I know, if due process of law has not been accepted, it Is not the fault of Dr. Ambedkar is it was hinted by some other speaker; it is the fault of all of us. I deplore, more than any one else that we have riot done the right thing. Still, I say it is no good blaming them or charging them with this and that. The defect is that there is scant regard given in this House whenever measures of such importance come forward for reasons which, I would not like to go into.
Therefore, I would appeal to the Drafting Committee that it is better in the interests of the Central Government. it is better in the interests of the nation that we have one uniform law throughout the land with respect to this unwholesome and unpopular matter of detaining people with out trial. I learn on good reliable authority that even foreign countries we are being blamed for the way in which some of these provisions are being carried out. Is it not desirable therefore that we have one uniform legislation ? We have got our freedom newly. People have not learn to behave democratically and there are so many actions which are beyond control and resort has to be had to detention without trial. I would submit, let us not be warped by what is happening in the present, let us be guided by the wholesome principles which should prevail and if at all this thing is to be done, that should be done by the Central Parliament which may take a more dispassionate view rather than by the provincial Governments.Another drawback is that whenever power is given to any State or province to pass such a legislation, naturally, the human tendency is to go along the easiest line. If we anticipate some trouble somewhere for the ordinary process of law, which is believed to be cumbersome, the tendency is to curtail the liberty of the subject and to pass legislation which would prevent it. As a matter of fact, I find that that process, that method has not succeeded. On the contrary, it is bringing many of us into unpopularity. Because, as soon as a man is detained without trial under the Public Safety measures, he is exasperated, and his supporters get a handle. Therefore, I think it is best that if such measures are necessary, they should be uniform and they should be passed by the Central authority where representatives of all the States meet and where they can take a more dispassionate view rather than in the Provincial Governments. Therefore, Sir, I commend this amendment.
There is only one little point. 'Probably this was also intended by the Drafting Committee; as is apparent from what they have mentioned in para (4). Otherwise, it would not have been there. In paragraph (4) they say :
"Parliament may by law prescribe the circumstances under which and the class or classes of cases in which a person who is arrested. under any law providing for preventive detention may- be detained for a period longer than three months........ etc."
What is contemplated in clause (4) is-
"Parliament may by law prescribe the circumstances under which and the class or classes of cases in which a person who is arrested under any law providing for preventive detention may be detained for a period longer than three months and also the maximum period for which any such person may be so detained."
My amendment is that the exceptions should only apply to a person who is arrested under any law of the Union providing for preventive detention. I hope this amendment also will be, acceptable to the Drafting Committee.My next amendment is No. 112
"That in amendment No. 1 of List I (Eighth Week) in sub-clause (a) of the proviso to clause (3) of the proposed new article 15A, the words 'or are qualified to be appointed as' be deleted."
Now clause (3) in its latter portion makes provision for an Advisory Board because' it is thought that when we are trying to detain persons without trial their cases should be considered by some independent authority, so that there will be some sanction for the executive action by which the liberty of the individual has been taken away. We have been told of instances where people have to be detained for long periods. Therefore it has been wisely decided that this should be left at least after three months not to the discretion of the executive, but the matter should be brought before a Board. Therefore this is a wholesome provision. My amendment is that I do not want the words-'or are qualified to be appointed as.' The fundamental idea underlying the Constitution of this Board is that the matter should go before a judicial tribunal or before any authority which is capable of judiciously thinking, which has got either the experience or is at present concerned with administration of justice. But to make the provision for are qualified to be appointed as is dangerous. I can understand that this Board should consist of some High Court Judges at present working : I can understand if it should consist of some persons who have been High Court Judges and who therefore can take a judicious view of the question when it is brought before them.
Shri T. T. Krishnamachari (Madras: General): Will the honourable Member prevent a person like himself being appointed a member of the Advisory Board ?Shri H. V. Pataskar: Yes. Once you expand the scope of persons that can be appointed, it is dangerous. I expect the people will be appointed by the Executive and it will give a loophole in their hands-not that it is fair that I should charge that the present Executive would be unfair-but the question remains that if a loophole is kept whereby somebody who might in future be in charge of Government might take advantage of it and cram the Board with persons who are not fit enough for the purpose. Because a man is a graduate in law according to the provisions at present he can be appointed as High Court Judge and therefore he can be appointed to this Board. If we leave this loophole it may be abused. We can get people who are either Judges or who had worked as Judges. Of course there may be some eminent persons who are not on the Bench or who have not been on the Bench. If this loophole is kept it will enable an unscruplous executive to nominate persons who may be their own men. We have so many High Courts Judge-, and I am sure that a person who has acted in that position is likely to be more independent and fair than somebody who is unconnected. I need not dilate on this. There may be even better per-sons outside the High Courts but it is desirable, that it should consist of persons who have worked as Judges. It is from that point of view that I have moved amendment No.
112. To sum up, I would appeal that I have desisted as far as possible from reopening that old controversy about due process of law. I am happy that Dr. Ambedkar and the Drafting Committee have thought fit to make amends or as described by him, to compensate regarding what has been lost in the present article 15A. I have no quarrel with the Drafting Committee but the objective with which they have brought forward this amendment should be carried out in a more satisfactory manner in order that whatever we have lost by 15 may to some extent be gained by 15A in a manner to allay the fears of those who unfortunately have at the present moment to suffer on account of several other measures which are there.
I therefore commend that so far as 105 and 106 are concerned, there is absolutely no difference. between me and the Drafting, Committee regarding the objective. Regarding 105 there is no difference. Regarding 106 it is consistent with the present provision of the Criminal Procedure Code and I do not think there is :any desire to go behind those provisions in the Cr. P.C. Looking to 106, I think it should be confined only to first class magistrates. It will be unsafe to rely upon the authority given to second class magistrates. We have not abolished honorary Magistrates. On the contrary I find there is a desire to perpetuate them for reasons into which I need not go while discussing this matter. Therefore it is better to follow the principle which has been followed in the present Cr. P.C. and leave this matter only in the hands of First Class Magistrates so that there may be some security No. 111 says there must be uniformity in legislation in respect of such matters. In spite of the fact that this is in the Concurrent List there is nothing to prevent us from saying that exception shall apply only in cases of persons arrested and detained under any law passed by the, Union. I hope my reasons will appeal to the Drafting Committee.
No. 112 is meant only for ensuring a sort of a feeling in the public that what we are doing is that we are trying to do our best consistent with the present circumstances which requires such action to be taken, to do our utmost to see that justice is done and no injustice is done and we are giving fair opportunities to those who have or are to be unfortunately detained.I therefore commend my amendments to the acceptance of the Drafting Committee and the House.
Shri R. K. Sidhwa (C. P. & Berar: General): Mr. President, I move:-
"That in amendment No. 1 of List I (Eighth Week), at the end of clause (3) of the proposed new article 15A, the following new proviso be added :
'Provided that in the case of any such person so recommended for detention as stated in sub-clause (a) of clause (3), the total period of his detention shall not extend beyond nine months provided the Advisory Board has in its possession direct and ample evidence that such person is a source of continuous danger to the State and the society'."
While going through this article I wanted to know whether it gives any kind of concession or facilities to the detenus or it stiffens the present provisions of the laws provided in the Criminal Procedure Code or the Indian Penal Code.
I think, Sir, that this article now proposed does not give any kind of concession or facility to the detenus. I do feet that while the present laws are not stiffened, there is nothing in this article which should find a place in the Constitution. In a matter like this, the laws must be flexible so that according to the times, the laws may be framed according to the conditions prevailing in the country. We have, under the existing conditions to consider the state of affairs, namely peace and tranquility and law and order, and from that point of view we cannot bind down the Constitution with rigid laws which may not be really desirable during the time when the peace of the country is in danger. Sir, I find that clauses (1) and (2) are reproductions of the Criminal Procedure Code, as has been stated by many honourable Members here. Clause (3) provides for the Advisory Board. Such advisory board already exists and it may exist 'in the future also. In the past the detenus were asked to give explanations, if they have any, and the Advisory Board, comprising of High Court Judges used to give their opinions to the respective governments. There is nothing new in this article even as far as the provision of the Advisory Board is concerned.
And clause (4) says that despite what is stated therein, Parliament may make laws and the period of three months' detention may be increased. My amendment says that when an Advisory Board is appointed, it should be seen that the aggregate, continuous detention of a detenu is not more than nine months. If it exceeds this period, then there should be definite evidence before the Advisory Board that the person detained is a danger to society, that he is a pest to society and that he is out to destroy our freedom. I am certainly agreeable to making any kind of law for dealing with a person who is out to destroy our well-deserved freedom by violent methods. He should have, from my point of view, no quarter or no kind of protection. I am quite clear about that point. At the same time, I must say that persons detained on suspicion should be given the fullest protection, and from that point of view, I do not :find in this article any provision for that purpose. On the contrary, I find,from all sources his hands have been tied down. We know, Sir, during the British regime, detenus were put into prisons and the then legislature made law, that the maximum period should not be more than on year, which subsequently was enhanced to two years. In this article no maximum period is laid-down and a person' can be detained for an indefinite period. The Advisory Board may say that the detention should be continued. Today what happens is this. The detenu is asked whether he has to say anything against his detention. That is all. And on a statement by the accused, with C.I.D. report the judges give their opinion. My own feeling is that whatever the charges way be, whatever the evidence may be against the detenu, they should be supplied to himso that he may make a statement as to whether the charges are correct or not. Then it is for the judges to go into the matter. But it is not proper to give exports decisions by the judges on a mere statement from the C.I.D. and the detenu. He will certainly ask you, "For what purpose do you detain me' Please let me know the charge under which you detain me. You ask me for an explanation. I say, I am not guilty of anything, and so please release me." And the judges, on the other hand, say "There are good reasons for detaining you and so you must be detained for an indefinite period. That is not fair. I do not find any improvement made in this article. I do realise the conditions existing at present in the country, and for that purpose there should be some specific mention. But the whole thing should not be left to the discretion of the judges. I feel that, the charges for detention should be made public. The Advisory Board should say that such and such person has been detained because he is a danger to society and he is out to destroy the freedom of the country. By this method the confidence of the people will be gained. They will come to know that such and such a person deserves to be detained for an indefinite period. It may be that for certain purposes and in certain cases you may have to keep certain information secret.- But in the case of detention of such persons, you must make the grounds public. Otherwise the people will begin to have many doubts and suspicions as to why such and such person is detained.
Sir, from that point of view, my amendment makes the position clear and says that a man should not be detained for more than nine months, and if the detention is to be continued, then there should be explicit evidence against him, that he is a dangerous and violent person, that he is a danger to society; this should be made public. It should be known to the public, that that is the opinion of the judges, and they have got ample evidence to that effect. If such an amendment is made, then it can be said that this article is justified. Article 15 gives liberty. It says that a person shall have liberty to do anything, subject to the laws of the land. That is quite sufficient. He has not absolute liberty, but there are many laws of the land and he would be subjected to them. It is not that I state that every person should have absolute freedom. His liberty must be restricted, according to the law of the land. But at the same time, when a person is detained, I find article 15A gives no concession or facility to him. On the contrary, I must say, my feeling is it ties down his hands You tie him down under the Constitution by laying down all sorts of laws.
Therefore, there is no justification, in my opinion for providing article 15A in the Constitution. Parliament is there and Parliament makes the law and Parliament will see what are the conditions in the country and what is the state of affairs from time to time and make laws. But why do you put down such a clause in the Constitution ? It may become harmful to the State if you provide such an article in the Constitution. You may require something very deterrent. But why do you want to put it in the Constitution ? Why not leave it to Parliament. The person detained may be quite innocent. After all, the machinery of the State is composed of officials and we know the mind of the officials. Officials, after all, are officials. They have a particular line to follow and from that point of view it is very likely that even under a democratic government, most of the laws would be 'abused. Therefore, under the existing circumstances, a detenu, if be is detained on mere suspicion, should be properly protected . That is my point. I have no sympathy, as I have said, and I repeat it, for the man is out to destroy our freedom. He must haveno quarter. I again repeat that, and from that point of view, and for that purpose if you want to add to the article any stringent law, I am with the Drafting Committee; but not for other purposes. We know that even today for peaceful demonstrations and for such other matters persons have been detained by officials, and then subsequently the Ministers have realised that it is not a wise course and they have been released. As I said, no improvement has been made in this article. After all, when you make a provision, when you provide an article, some concession or some liberty is given to the person, and for that purpose articles are provided.
Mr. President : You are repeating yourself.
Shri R. K. Sidhwa: Therefore, Sir, my object in bringing this amendment is what I have already state(]. I commend my amendment for the acceptance of the House.
Dr. Bakshi Tek Chand (East Punjab: General) : Sir..........
Mr. President: There is one amendment which Dr. Bakhshi Tek Chand is going to move I do not know if Members have got copies of it, but I hope he will read it out.
Dr. Bakhshi Tek Chand: Sir, I move.
"That in the proviso to clause (3) of article 15A, the following new clause be added:--
'(aa) As soon as may be after the arrest of the Person, the grounds on which he has been arrested shall be communicated to him, and he shall be informed that he may submit such explanation as he desires to make which shall be placed before the Advisory Board referred to in sub-clause (a)'."
Sir, it is a very modest amendment and I hope in article 15A, attenuated as it has been, Dr. Ambedkar will accept and incorporate it in the article. The amendment goes no further than what is provided in the Safety Acts that have been enacted by some of the Provincial Legislatures. For instance clause (3) of the Madras Maintenance of Public Order Act (1 of 1947) lays down :
"When an order in respect of any person is made by the Provincial Government under subsection (1) of section 2. etc., the Provincial Government shall communicate to the person affected by the order. so far as such communication can be made without disclosing the facts which they consider would be against the public interest to disclose, the grounds on which the order has been made against him and such other particulars as are in their opinion sufficient to enable him to make, if he wishes, a representation against the order. And such person may, within such time as may be specified by the Provincial Government. make a representation in writing to them against the order, and it shall be the duty of the Provincial Government to inform such Person of his right of making such representation and to afford him opportunity of doing so.
(2) After the receipt of the representation referred to in sub-section (1). or in case no representation is received after the expiry of the time fixed therefore. the Provincial Government shall Place before the Advisory Council constituted under subsection (3) the grounds on which the order has been made. and in case such order has been made by an authority or officer subordinate to them. the report made by him under sub-section (2) of section 2. and the representation. if any, made by the person concerned, etc.. etc."
I need not repeat the remaining sub-sections of that section. This is the provision in the Madras Act.
Similar Provisions were to be found in the Rules made under the Defence of India Act. Many honourable Members of this House, who had been proceed against in 1942 and in the following years under the Defence of India Rules, will remember that the substance of the grounds on which they were detained were communicated to them and they were asked to make representations, if they chose to do so.Similar provisions existed even under the notorious Rowlatt Act passed in 1919, as a protest against which our revered leader, Mahatma Gandhi', started the great movement which ultimately culminated in the liberation of the country from foreign yoke.
In England under the Regulations framed under the Defence of Realm Act, both in 1914 when the first World War broke out and the Defence of Realm Act was enacted, and later again in the Regulations which were in force in 1939 when a state of grave emergency was declared and arrests or detentions began to be made in that country, similar provision existed.
As I have already stated, in Madras Act 1 of 1947 called "the Madras Maintenance of Public Order Act", similar provision has been made. In similar Acts in other Provinces, for instance in /Bombay, there is provision to the limited extent that the substance of the grounds on which a person is arrested and detained shall be communicated to him and he will be asked to submit, if he likes, an explanation. But there is no provision that his explanation will be laid before a tribunal or any other independent Board. The explanation is only for the consideration of the executive government which may, after considering it, either release him or confirm the previous order or order his detention for such longer period as it thinks proper. In the United Provinces also, while there is provision for an explanation of the person affected being taken, there is no provision for its being placed before an impartial tribunal. And in Bengal the latest Act is narrower still.
I submit this procedure is open to serious objection and it is necessary that Constitutional guarantees be provided, so that the legislatures of this country provincial or central--are precluded from enacting legislation of this kind. We should see that our legislature do not go farther than what the British Indian Government did under the Rowlatt Act or the Defence of India Act in 1942 or what was done under the Defence of Realm Act in England. That, Sir, is the, sum and substance of the amendment which I have moved.
Dr. Ambedkar, in the amended article 15A as he has introduced today, has made provision in clause (3) of the article that "an Advisory Board consisting of persons who are or have been or are qualified to be appointed as judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention". Of what value will the opinion of this tribunal be, if the explanation of the person affected is not laid before it ? It will be an exparte opinion expressed by the members of the tribunal upon such papers as may be placed before them by the executive government, which, in most cases will be based either upon police reports or reports of other officials or informers. The whole object of constituting a tribunal of three persons, who are High Court Judges or who have been High Court Judges or who are qualified to be High Court Judges, will be rendered nugatory if the explanation of the person affected is not taken and placed before it. And no explanation can be given by that person unless he is informed of the nature of the charges against him whether it was merely on suspicion or upon some solid ground that he had been arrested and was being detained. I submit that this is an elementary right which should be conceded Perhaps, this is an omission in Dr. Ambedkar's amended article, and if so, he will, I hope, supply it by accepting this amendment.
With your permission, Sir, I will now make a few general observations on article 15A as it has been introduced by Dr. Ambedkar today, and then I shall say a few words with regard to some of the amendments which have beenplaced before the House by Pandit Thakur Das Bhargava and other' Honourable Members. I feel---and I may be pardoned for saying categorically that I consider article 15A as the most reactionary article that has been placed by the Drafting Committee before the House, and therefore I would ask the House to reject it altogether and not allow it to form a part of the Constitution. I will ask Dr. Ambedkar and I will ask Mr. Munshi and I will ask our great jurist Shri Alladi Krishnaswami Ayyar whose knowledge of constitutional law is perhaps second to none in this country, and who has contributed so much to the drafting of this Constitution, if there is any written Constitution in the word in which there is provision for detention of persons without trial in this manner in normal times. In the case of a grave emergency, as for example when the country is involved in war, there are provisions even for suspension of the fundamental rights. But apart from that, I have looked in vain in any Constitution for a provision for such detention without trial in peace times. It is not to be found even in the Japanese Constitution, which the Drafting Committee purports now to follow. That Constitution was prepared for Japan in 1946, it a time when that country having been defeated and lay prostrate under the heel of a dictator appointed by the conquering powers, the United States and the other Allied Nations.
I consider that this article, in the form in which it has now been framed instead of being a fundamental right of the citizen, is a charter to the Provincial legislature to go on enacting legislation under which persons can be arrested without trial and detained for such period as they think fit subject to a maximum period fixed by Parliament.
It does not give any fundamental right to the people. In fact it is a charter for denial of liberties, and I am surprised to find how the Members of the Drafting Committee including great lawyers, have subscribed to it. It is strange, indeed, how the Members of the Drafting Committee have drafted from the position which they bad originally taken to the submission of the present article 15A. Sir, with your permission, I will place the history of this article before the House which will show how the Members of the Committee have come down from the high place at which they were at the beginning to the position to which they have ultimately come and which they want the House to adopt.
Our Law Minister, Dr. Ambedkar, a great lawyer, an eminent jurist, an erudite student of constitutional law as he is--what was the proposal that he submitted to the Drafting Committee before he had been appointed to the high office which he now occupies ? In 1947, soon after the Constituent Assembly met first, members were asked to submit their suggestions for the draft Constitution. A number of suggestions came. Dr. Ambedkar at that time was a private Member of this House; he had not been installed on the gaddi which he is occupying now and which, if I may say so with respect, he is so worthily occupying. Early in 1947 he submitted this note, which be circulated in the form of a book styled, "States and Minorities-What are their rights and how to secure them in the Constitution of Free India", by B. R. Ambedkar. At page 9, article 2, are his suggestions headed, "Fundamental Rights of Citizens", this article reads as follows :
"No State shall make or enforce any law or custom which shall abridge the privileges or immunities of citizens. Nor shall any State deprive any Person of life. liberty and Property without due process of law nor deny to any person within its jurisdiction equal Protection of law."
This is the suggestion which Dr. Ambedkar submitted to the Advisory Committee of the Constituent Assembly early in March 1947. That was his opinion as a private Member.Then we come to the Second stage of the consideration of this matter by the Advisory Committee of the Constituent Assembly. As you know, the Advisory Committee on Fundamental Rights and Minorities was one of the earliest Committees appointed by the Constituent Assembly and Sardar Vallabhbhai Patel was its Chairman. The Committee consisted of a large number of Members including three of the most prominent Members of the Drafting Committee, namely Dr. Ambedkar, Mr. Munshi and Shri Alladi Krishnaswami Ayyar. This Committee submitted its report on the 23rd of April 1947 recommending the adoption of certain fundamental rights by the Constituent Assembly. In this report also this "due process of law" clause figured prominently. The report of this Committee came up for consideration before the House in April 1947, and we find from the Reports of the Committees, (First Series) issued by the Constituent Assembly office that at page 28 a List of what are called "justiciable fundamental rights." Article No. 9 at page 29 is as follows :
"'No person shall be deprived of his life or liberty without due process of law, nor shall any person be denied equality before the law within the territory of the Union." This was the considered decision of this House and the Drafting Committee was directed to draft the Constitution on these lines."
Now, what did the Drafting Committee do ? It met, considered the matter, and ultimately produced this Draft Constitution which was circulated to the Members in February 1948. There in article 15 instead of submitting a draft on the lines of the resolution of April 1947 which I have just now read, it suggested the following article :
"No person shall be deprived of his life or personal liberty, except according to Procedure established by law. Nor shall any person be denied equality before the law or the equal protection of the laws within the territories of India."
So, instead of the words "due process of law" which, as I shall presently show, have acquired a certain fixed meaning both in England and in America, as a result of the struggle for liberty against the Executive which went on there for centuries, the Drafting Committee put in the words "according to procedure established by law." There is a footnote appended to it in the Draft Constitution. The footnote says :
"The Committee is of opinion that the word "liberty' should be qualified by the insertion of the word "Personal" 'before it, or otherwise it might be construed very widely so' as to include even the freedoms already dealt with in article 13.
The Committee has also substituted the expression 'except according to procedure established by law' for the words 'without due process of law' as the former is more specific (c.f. Art. of the Japanese Constitution, 1946). The corresponding provision in the Irish Constitution runs : 'No citizen shall be deprived of his personal liberty save In accordance with law.' Now, Sir, the reason given for the substitution of the words "according to procedure established by law" for the words "due process of law" is that the former expression is more specific and precise and are taken from the JapaneseConstitution. Well, no doubt, they are more precise in a sense. But while copying them from the Japanese Constitution the Drafting Committee has omitted some other important provisions which are to be found in that Constitution.
If I may just digress for a minute here, what does the, expression "due process of law" mean? It was for the first time introduced in England in the, year 1353 in the reign of King Edward III when a statute was passed incorporating the substance, of the great Magna Carta which King John had given to the people of England a century earlier.
Mr. President: I was not present during the discussion when article 15 was adopted, but I hope this whole question would have been discussed at great length and as a result of that discussion the article in the form in which it has found its place would have been passed.
Dr. Bakhshi Tek Chand: I won't take very long, Sir.
Mr. President: I am not objecting to your speaking. I Was only asking whether this question was not discussed at great length.
Bakshi Tek Chand: Sir, it was discussed. But Dr. Ambedkar promised to place before the House an amended article, and he, on behalf of the Drafting Committee, has proposed the present article 15A. As I was saying in the Magna Carta the words were "no person shall be arrested, etc.. except according to the law of the land". That was the expression originally used. Later, it was incorporated in the Statute of Edward III in the words, "no person shall, be arrested without due process of-law". Centuries later when the American Colonies bad separated from England and they framed their own Constitution, in the 14th Amendment to that Constitution they put in the words :
"Nor shall any State deprive any person of his liberty or property without due process of law, nor deny to any person within its jurisdiction equal protection of the law."
Many Judges of the Supreme Court have said that this clause has been the bulwark of the liberty of the people of the United States. It has been said that there is no other single clause in the Constitution which has done so much to preserve the liberty and the rights of the people as this particular clause apparently and it was from the American Constitution that Dr. Ambedkar had copied it in his original draft which he submitted to the Advisory Committee, There are various decisions of the courts of America. But the best exposition of it is by a great American lawyer Webster as to the meaning of the expression "due process of law", who said that "due process of law means the law which hears before it condemns; a law which proceeds upon enquiries and a law which renders judgment after trial. These are the three essentials that you will not condemn a person before hearing him; you will not proceed against hint without enquiry; you will not deliver judgment against him without trial.
Now there was great confusion in the American courts with regard to the interpretation of this phrase in regard to prop". Some Judges took the extreme view. that it protected the right of private property to the fullest extent and condemned socialistic legislation as unconstitutional. I need not go into that because that question does not concern us today.
But I do not know of any case in which there has been any confusion or conflict with, regard to the application of this phrase to personal liberty. in the context, its meaning has always been precise and clear.Let us now examine the reasons given by the Drafting Committee for substituting for this classic expression the phrase taken from the Japanese Constitution which was framed by eminent American lawyers. It has one obvious advantage. It steers clear of the expression "due process of law" so as to avoid any conflict of judicial decisions. I shall with your permission read the concerned articles.
"Article XXXI. No person shall be deprived of life or liberty, nor shall any other criminal criminal penalty be imposed, except according to procedure established by law."
This article 31 has been taken verbatim in our Draft Constitution. But in the Japanese Constitution there are other clauses, which embody the substance of the 'due process of law' clause and safeguard the rights of the subject, but which, unfortunately, find no place in our Draft Constitution. I shall read those articles:
"Article XXXIII. No person shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offence with which the Person is charged, unless he is apprehended while committing a crime.
Article XXXIV. No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel; nor shall he be detained without adequate cause; and upon demand of any person such cause must be immediately shown in open court in his presence and the Presence of his counsel.
The right of all persons to be secure in their homes. papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued ,only for probable cause, and particularly describing the place to be searched and things to be seized, or except as provided by article XXCIII.
Each search or seizure shall be made upon separate warrant issued for the purpose by a competent judicial officer.
The infliction of torture by any public officer and cruel punishments are absolutely forbidden.
Article XXXVII. In all criminal cases the accused shall enjoy the right to a speedy And public trial by an impartial tribunal.
He shall be permitted full opportunity to examine all witnesses. and he shall have the right of compulsory process for obtaining witnesses on his behalf at public expense.
At all times the accused shall have the assistance of competent counsel who shall. if the accused be unable to secure the same by his own efforts. be assigned to his use by the Government."
These are the additional provisions in the Japanese Constitution. They form one consistent, integrated whole, and incorporate the pith and substance of the phrase 'due process of law'. But what our Drafting Committee has done is to copy article XXXI only, and exclude from the Constitution of Free India ;anything corresponding to articles XXXII to XXXVII, which provide all the safeguards to ensure a fair trial, and to see that a person is not detained without being told as to what the cause of arrest is and without trial. Can it be said that this omission has been made for the sake of securing precision of expression only ?
When this clause came up for discussion before the House on 6th December 1948 an amendment was moved suggesting that the words "due process of law" be substituted for the words "according to procedure prescribed by law". The strongest supporter of this amendment at that time was our esteemed Friend Mr. Munshi. His speech on that occasion is to be found on page 851 to 853 of the proceedings of this House dated 6th December 1948, and I want to read portions from it.
Shri H. V. Kamath : Mr. President the honourable Member is awaiting your attention.Mr. President: The honourable Member may proceed.
Dr. Bakhshi Tek Chand: I will read only a few sentences from that speech. Mr. Munshi said:
"I know some honourable Members have got a feeling that in view of the emergent conditions in this country this clause, may lead Lo disastrous consequences. With great respect I have not been able to agree with this view."
"We have unfortunately in this country legislatures with large majorities facing very severe problems, and naturally, there is a tendency to Pass legislation in a hurry which give sweeping powers to the executive and the police. Now, there will be no deterrent if these legislations are not examined by a court of law. For instance I read the other day that there is going to be a legislation, or there is already a legislation, in one province in India which denies to the accused the assistance of lawyer. How is that going to be checked ? In another province I read that the certificate of report of an executive authority-mind you it is not a Secretary of a Government, but a subordinate executive--is conclusive evidence of a fact. This creates tremendous difficulties for the accused and I think, as I have submitted. there must be some agency in a democracy which strikes a balance between individual liberty and social control."
"Our emergency at the moment has perhaps led us to forget that if we do not give that scope to individual liberty, and give it the protection of the courts. we will create a. tradition which will ultimately destroy even whatever little of personal liberty which exists in this country. I therefore submit, Sir, that this amendment should be accepted."
Now, this was the position of Mr. Munshi. Why has he changed now?, I will next refer to the speech which Dr. Ambedkar himself delivered in this House on the 13th December 1948. That speech is printed on pages 999 to, 1001. I will not read the whole of it, but only three or four sentences from page 1000-
"The question of "due process" raises. in my judgment. the question of the relationship between the legislature and the judiciary. In a federal constitution. it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature. If the law made by a particular legislature exceeds the, authority of the power given to it by the Constitution, such law would be ultra vires and invalid. That is the normal thing that happens in all federal constitutions."
Further he says-
"The "due process" clause, in my judgment. would give the judiciary the power to question the law made by the legislature on another ground. That ground would be whether that law is in keeping with certain fundamental principles relating to the rights of the individual. In other words. the judiciary would be endowed with the authority to question the law not merely on the ground whether it was in excess of the authority of the legislature, but also on the ground whether the law was good law. apart from the question of the powers of the legislature making the law. The law may be Perfectly good and valid so far as the authority of the legislature is concerned. But it may not be a good law, that is to say, it violates certain fundamental principles; and the judiciary could have that additional power of declaring the law invalid."
These were the views of Dr. Ambedkar in December last. Why has her changed since ? I shall not refer in detail to the speech of Shri Alladi Krishnaswami Ayyar in that debate. It was directed mainly in expounding the uncertainty of the meaning of the expression "due process of law", but he gave no substantial reasons why it should not be used in relation to 'personal liberty', as was sought to be done in the amendment.
Sir, that phrase is now sought to be substituted by the phraseology of Act XXXI of the Japanese Constitution, in article 15 of our Constitution, without the safeguards which that Constitution has incorporated in Act XXXII et seq to protect the rights of the individual. Why has not that been done ? In pursuance of the promise which Dr. Ambedkar gave at the time that he wouldagain come up with the matter before the House, he has produced this article 15-A which, if I may say so with due deference to him, is nothing but a cloak for denying the liberty of the individual. It really comes to nothing. The first two clauses of the proposed article do not go, as Pandit Thakur Das Bhargava pointed out, as far as the Criminal Procedure Code does today. The article then provides for an Advisory Board or Tribunal which will, within three months, advise the local governments as to whether the grounds on which a person is arrested are sufficient for his further detention. But in the draft placed before the House today there is no provision that the person affected will be given an opportunity of being told what the grounds for his detention are. No doubt you have Judges of the High Court on this Board, but what can the Judges do unless they hear the other side? They will only pass judgment ex parte. Therefore I submit that this provision is very defective. It is no protection at all. It is only intended to make a show that some sort of protection is given. I submit with great respect that this is not the proper way of dealing with this question.
I will now make a few more remarks with regard to some of the amendments. I do not want to carry my speech today after tomorrow. If the article is to be retained at all, the three amendments which have been suggested by the previous speakers should be accepted. First of all is the alternative amendment moved by Pandit Thakur Das Bhargava which is printed at page 4 of List I, which says that at the end of clause (2) of the proposed new article the words "and for reasons to be recorded" be added. If a man is to be arrested and remanded to custody, the Magistrate must record his reasons in writing. I do not think there can be any objection to this being incorporated in the Constitution. Then there is the other amendment by Pandit Thakur Das Bhargava that indiscriminate arrests should not be permitted. If we are copying the Japanese Constitution, then let the provisions of article XXXV of that Constitution be also included. If the executive has to have this power of arrest and detention, then at least let the person affected have an opportunity of submitting his explanation. This is all that I have to submit on the amendment.
One word more, Sir. So far I have drawn your attention to the various Constitutions of the world, English, American, and Japanese. I will now make a reference to the Charter of Human Rights which is now being considered by the United Nations Assembly. As honourable Members are aware, to the Committee dealing with this matter, our country had also sent a delegate.
Prof. N. G. Ranga (Madras: General) : Into how much of detail are we being taken in this matter?
Mr. President: He is now completing his argument.
Prof. N. G. Ranga: He said he would complete it twenty minutes ago.
Dr. Bakhshi Tek Chand: My honourable Friend Prof Ranga who has just come from America, does not want to hear anything about the Charter of Human Rights. He is welcome to have that opinion., I shall read only two or three lines.
Sbri Mahavir Tyagi: It is quite important.
Dr. Bakhshi Tek Chand:
Article 3 provides : 'Everyone has the right to life. liberty and security of Person.Article 7.No one shall be subjected to arbitrary arrest or detention.
Article 8.In the determination of his rights and obligations and of any criminal charge against him everyone is entitled in full equality to a fair hearing by an independent and impartial tribunal.
Article 9.Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
2. No one shall be held guilty of any offence on account of any act or omission which did not constitute an offence, under national or international law at the time when it was committed."
I will read nothing more. This is the substance of Fundamental Human Rights for civilized nations. But in our Constitution are we going to incorporate provisions which lay down that persons can be arrested and detained without trial for three months, then there will be a sort of make-believe examination of the case by a tribunal which will give its opinion on ex parte examination of such papers as the executive might place before it and then the person concerned can be kept in further detention for any length of time ? In some provinces it was originally six months, then it was varied to one year and then again to three years In one province they can detain indefinitely. Are you going to incorporate such provisions in the first Constitution framed by Free India; so that when people compare this Constitution with those of other countries, they will say : "Here is a country which permits its legislatures to frame laws of this kind"? Will it. I submit, not be better to omit it altogether and leave it to the good sense of future Parliament or the good sense of the various Provincial legislatures to pass such laws as they like, and not to disfigure our Constitution with a provision like Act 15A?
Shri Alladi Krishnaswami Ayyar (Madras:, General) : Mr. President, my honourable Friend Dr. Bakhshi Tek Chand has gone over the whole ground which has been travelled at length by this House when it came to a conclusion after a very full debate and after an adjournment of the House that the expression "due process" must disappear from the article for the reasons which were then considered by the House at length. I do not propose again to repeat what I have said on that occasion. I might mention that the main reason why "due process" has been omitted was that if that expression remained there, it will prevent the State from having any detention laws, any deportation laws and even any laws relating to labour regulations. Labour is essentially a problem relating to persons and I might mention in tile United States Supreme Court, in the days when the Conservative regime dominated the U.S.A. politics, enactments restricting the hours of labour constituted a violation of the "due process of law". An American would be employed for five hours, ten hours or twenty hours and make a slave of himself and yet it was held to be interfering with due process of law if there was a restriction of the hours of labour until the United States Supreme Court put a different construction in a later decision.
After a consideration of all these points, with due regard to the whole history of the expression "due process" in the United States Supreme Court, this House deliberately came to the conclusion to drop that expression "due process" from our articles instead of leaving it to the Supreme Court judges to mould the Constitution or to read up all the decisions of the Supreme Court and adopt such decisions as appealed to them according to their conservative or radical instincts as the case may be. Therefore, I do not propose to go into that history, at this stage. I myself took some part on that occasion and it is enough for me to say it is entirely irrelevant for the purpose of the present discussion. At the same time on that occasion it was felt that there should be some guarantee for personal liberty; some essential rules of fairplayand justice should be adopted. It is because of some division of opinion and fighting over immaterial points that we were not able to insert any provisions in respect of those matters on that occasion.
The Honourable Dr. Ambedkar, who is as keen today on the problem of personal liberty as he has always been, has thought fit to bring forward this amendment and he thought that this article must find a place in the Constitution. My honourable Friend Dr. Bakhshi Tek Chand went so far as to say that he is ashamed, of being a party to the article 15A being passed. What is wrong with this article? Let us analyse. The first two clauses of the article are based upon the corresponding provisions of the criminal procedure and they are made into constitutional guarantees. The difference between that finding a place in the Criminal Procedure Code and that finding a place in a constitutional statute is that where as the Criminal Procedure Code is liable to alteration by the State Legislature or by the Central Legislature, when once it finds a place in the Constitution it cannot be changed excepting in the manner provided for the change of the Constitution. Therefore certain very important provisions which go to the fundamental principles are taken into article 15A. Therefore, I do not think any exception can be taken to, those two clauses. There are corresponding provisions in the Criminal Procedure Code and they are now transferred practically into a constitutional provision in order to prevent any change being made by any legislature in regard to those provisions because they were regarded as fundamental.
Then the next question is if you guarantee personal liberty in the Constitution either by the use of the words "due process" or "procedure" or any such thing the State will be hampered even with regard to detention and in regard to deportation. It is agreed on all hands that the security of the State is as important as the liberty of the individual. Having guaranteed personal liberty, having guaranteed that a person should not be detained or arrested for more than 24 hours, the problem necessarily had to be faced as to detention, because detention has become a necessary evil under the existing conditions of India. Even the most enthusiastic advocate of liberty says there are people in this land at the present day who are determined to undermine the Constitution and the State, and if we are to flourish and if liberty of person and property is to be secured, unless that particular evil is removed or the State is invested with sufficient power to guard against that evil there will be no guarantee even for that individual liberty of which we are all desirous. That is the object of the provision.
What do those provisions say ?
You cannot detain for more than three months unless the matter is placed before some kind of tribunal. The tribunal is to consist of people who are qualified to be judges of the High Court. Are we to say that a retired judge is eligible, but not a distinguished member of the Bar who might not have a chance of becoming a Judge of the High Court is eligible for a place in that Court ? If there is sufficient public spirit, I have no doubt members of the Bar who might have retired from the Bar or who might not have occupied the position of judges are eligible to be members of such tribunals, and it cannot be said that a person simply because he has not occupied a position of a judge is not good enough to be a member of the tribunal or to take a dispassionate view of the situation. Therefore, normally speaking, the tribunal will consist of people who were judges or people who. are fit to be judges, and people of high character. And after all, there are judges and judges, The one reason why we say that that it is better to have.judges is that they have security of tenure; they occupy a particular place in society and they are accustomed to deal with cases from a detached point of view and it is better to have these people as members of the tribunal.
You need not put an embargo on people who may take an impartial view of the question, who may be guided by principles of justice and fair play,. from being members of this tribunal, because they never happened to be Judges. I believe there is a sufficient number of people in this country who are fit to be in the tribunal other than Judges or people who are retired Judges. Imagine a man like Sir Tej Bahadur Sapru being alive and he being ineligible to be a member of the tribunal. I would have welcomed him as a member of the tribunal. The other day, Mr. Venkatarama Sastri was a member of the Board. A leading member of the Bar, who has occupied the position of Advocate General, he was a member of a Board which was constituted in Madras. He sat along with Judges who are much junior to him and possibly who could have sat under him and learnt some bit of law when they were at the Bar. Under those circumstances, we need not introduce a cast-iron provision to the effect that the members shall be only judges. There is absolutely no reason to believe that the members would not give an opportunity to the person before being satisfied that there is a case for detention if it is more than three months. Therefore, at any particular time, a person can only be detained for three months.
Beyond that time, there must be the imprimatur of this special tribunal' which will take into account all the circumstances of the case, examine all the materials placed before them and come to the conclusion whether there is a satisfactory ground or not. Normally, I have absolutely no doubt that they will give notice to the party in every case. To say that you must give notice, it might be to surrender the very principle. There are cases where it is not susceptible of exact proof, but there are materials from certain quarters which will carry conviction to any impartial mind. At the same time, these people who are concerned in subversive activities, sometimes take care to see that no sort of evidence is preserved. Therefore, it is to provide against these extreme cases this provision is made. On the other hand, if you say that in every case there shall be notice, there shall be a charge, there shall be a hearing, that there shall be examination and cross examination, there shall be counsel, then this Board may convert itself into a magistrate's court with all the paraphernalia of the magistrate's court, and it will defeat the very purpose of the article. This is the object of saying that you must have competent men with a fair sense of justice, trained in the law. It is such people that will be there in the Board. After all, it will be very difficult for a lawyer who has been a Judge to get rid of his legal mode of approach. That is the reason for having a tribunal.
Beyond that, Parliament will intervene. Otherwise, that procedure is to be followed. There might be cases when Parliament will have to consider whether detention for more than the period referred to is called for in the interests of the State. Parliament which is elected on universal adult suffrage will have to pass, a law. There are other guarantees in the Criminal Procedure Code (other than the Constitutional guarantees above referred to). The provisions of the Criminal Procedure Code are nowhere repealed or modified. The Constitutional guarantees constitute a minimum with which the legislature itself cannot interfere. The provisions in the criminal Procedure Code are liable to alteration by the legislature whereas this provision is not liable to alteration. Therefore, the question is which are the minimum rights that have got to be secured.I do not think my honourable Friend. Mr. Tek Chand can show any Constitution which contains all these provisions. I am quite willing to throw out a challenge to him to show any well known Constitution, which contains all these detailed provisions. I venture to say there is none. There is no known Constitution which contains such detailed provisions, transferring all these provisions of the Criminal Procedure Code into their Constitution so that they may hamper the action of the legislature, the action of the courts, which will become the battle-ground for lawyers. Therefore, the Honourable Dr. Ambedkar has taken care to put in what may be considered to be the fundamental principles into article 15A. The other guarantees are there, the guarantees under the Criminal Procedure Code. There is no intention of interfering with the provisions of the Criminal Procedure Code. Both these could be exercised side by side, the Criminal Procedure Code and the Constitutional guarantee. I thought of stating more; but I do not want to take more of the time of the House. It is better that the matter is finished as soon as possible. That is the reason why I refrain from taking more time of the House.
Shri H. V. Kamath: May I request, you, Sir, to be so good as to throw some light on the duration of this session ?
Mr. President : I have myself been considering that matter. There are certain matters which have to be held over for another session which will have to be held in October. The question is what we can dispose of now and what is to be held over for the October session. We have been considering the details and I think I shall be able to announce in the House tomorrow the details of the provisions which will have to be held over for the October session and those which we want to dispose of in this session. If we are able to get through our work quickly, we propose to finish this session by Saturday next. But, if by any chance, we axe not able to do it, we may have to o over to the next day or the day following., An honourable Member: The next day will be Sunday.
Mr. President: I do not know: if Members would sit on Sunday, I have no objection. Or we may sit on Monday.
Shri K. M. Munshi (Bombay: General) : We may sit' on Sunday, both morning and evening and finish it.
Pandit Lakshmi Kanta Maitra (West Bengal: General.) : The difficulty with some of us, orthodox Members is that we have got the Mahalaya ceremony which comes off on the 22nd.
Mr. President: It is not Monday.
Pandit Lakshmi Kanta Maitra: We have got to go back to our places; we may not be able to find transport later. If you can finish by Saturday, it will be helpful.
Mr. President: It is in the hands of Members. I shall try to get through the work as quickly as possible.
Shri Deshbandhu Gupta (Delhi) : Sir, when do we reassemble in October ?
Mr. President : As far as I can judge, this is not final, this is only provisional, we must begin about the 7th.The Honourable Shri Satya Narayan Sinha (Bihar: General) : Not earlier than the 10th, Sir.
Mr. President : Then there will be no time. We have a time limit on the other side. Diwali comes off on the 21st. If we have to complete these articles which will be left over, we must have sufficient time before we rise for Diwali Therefore, we have to begin the October session as early as possible. It all depends on the number of articles left over. Therefore, I said I would be able to say this with a little more definiteness tomorrow.
An honourable Member: If everybody speaks on every article, it may take two months.
Mr. President : I cannot prevent that.
We have got several time limits. We must finish the third reading at the, latest by the 18th of November. For that purpose, we are thinking of beginning the session for the Third Reading on the 7th of November, so that we may get about ten days for the Third Reading. Between the beginning of the Third Reading and the ending of the Second Reading, the Drafting Committee would naturally require some time to put the things in order, as renumbering, of the paragraphs, correcting of errors, getting the, thing printed and placing the whole Constitution in the hands of the Members in time for their consideration on the 7th of November. Therefore, it is necessary to complete the Second Reading pretty well in advance of the beginning of the Third Reading. Therefore I am suggesting that if we start, say, about the 7th October, we would be able to complete the Second Reading by about the 18th or 19th October and then we give them a fortnight for completing their revision and for printing and distributing to Members, so that we might start the Third Reading on the 7th November. These are the various dead lines which we may not cross and therefore it is necessary to fit in the whole programme within this time.
The House will now stand adjourned till Nine to-morrow.
The Assembly then adjourned till Nine of the Clock on Friday, the 16th September 1949.